say as a matter of law that the client is mentally retarded and therefore could not be executed i don't think that's something that this court is in a position to to determine at all what what case would say that you you mean without reaching any other issues why why shouldn't we if that's the only reversible error why shouldn't we affirm the sentence and indicate that a hearing is needed at some point in time since this is a constitutional right not to be executed not to be sentenced i think well i think it's up to this if this court were to remain and what case has has he has said that even the that the only heir was the additional hearing is needed before the end consider can be finally resolved therefore we reversed the sentence well your honor i think as far as the on the timing of the intellectual disability issue there webster there although these kinds of issues i think as far as what this court should do with the other issues in the brief i think the court could preacher meadows and remained just on the intellectual disability issue or it could reach those other issues that that's really up now that's not my question if we if we are if we decide that the other issues are without merit a need and should be affirmed what authority is there that we would still reverse the sentence because a hearing at that it is you know i think that the law in twenty to fifty five is a twenty to fifty five is a narrow remedy for issues that could not be adequately litigated on appeal this issue can be litigated and is being litigated on appeal i think they're also policy reasons this is to put th issue off say twenty to fifty five or even beyond would be i think unfair to the hardys do you think we can figure out the policy ideas one know if there was a law go ahead with your i would also say that webster case i think also indicates  this can be raise post sentence and at that point it was determined by the judge after the sentencing hearing it wasn't relegated to to a later stage is the standard for mental retardation the actions claim is the same under acton's the constitutional test as it is under the federal death penalty act we say it's the same certainly i think our claim is clearer and stronger under the statute but we think under the canon of constitutional avoidance they should be harmonize expand on that because i think i think there's the thing i'm struggling with is other there are other federal statutes that deal with similar terms developmentally disabled which defines it as twenty two or under eighteen or under and so i'm just curious as to as to why you're conceding that or taking the position that they are the same well i think in terms of interpret the federal statute i think th court needs to look to the developmental disability area and the social security or because the canon of and parry materia and other canons of constitutional of statutory construction say that when you have a phrase in a statute been defined either by congress or by the relevant agency which is what's happened with the social security provision which is also age twenty two that the court should look to that should rely on that it's not necessarily because we have a fiction that the disabilities area of law and the social security area of law which both defined the end of the developmental period as age twenty two i think it's important the government and those are still the law in both those areas the government the to the  materia can which you which you've invoked really relies on related statutes and arguably a statute dealing with with you know with sort of social legislation like disability and compensating disabilit and things like that is good social security is going to be have a different purpose and i'm not sure that they're related enough that the empire materia can would necessarily also let you know with the death penalty access i think that if you your orders fastening on is one that was fought out in the supreme court and hall and more and i think the supreme court answered it this report specifically faulted florida and especially texas i think more is the clearest expression for having different standards in the death penalty context which are less if you go back to the legislative history of the developmental disability statute and you go back to what the social security administration said about their age twenty two cutoffs they were both based on science and clearly the current science here i'll get to that in a moment supports h twenty two and i just want to give the court a quote for more which i think really the supreme court capsulized this they said quote texas cannot satisfactorily explain why it applies current medical standards in other contexts and over its educational benefits yet claims to supersede its standards when an individual's life is at stake so the court was making the point that if anything the standard should be more protective in the death of a context but certainly it should be less protected so that i think that issue is really addressed in more  of a lot of a car crash at age twenty and not out whereas the social security for example the reason the focus on development is is to isolate genetic rather than environmental disabilities so the age if the age doesn't isn't as important as the source of the of the deficit is it i don't agree i don't think that's true about the social security number of those cases so i tell you that's the focus well your honor i think that the the regulation in the social security area and the social security administration talked about this is it's based on the american psychological association which has long had an scare what is based and i'm not about what its purpose is its purpose and in those cases because the child disability cases typically is to focus on whether the intellectual deficits have been basically from birth injuries and those are clearly covered that's what the law says and this court has acknowledged that too that it's in a twenty two standard i would like to talk a little bit about the legislative history and also about the current scientific standards  and why those also support our our position in this case the legislative history there's a short discussion in one nine hundred eighty eight between represented levin the democrat and represented gecas who was a republican he was the floor manager for the bill and they read into the record a three prime definition and i think this is one of the areas where we in the government agreed that is a general definition of mental retardation which is now called intellectual disability nobody says agee and represented eleven and get and represent get to say a couple of other things that i think are very important for the court and figuring out sort of to the extent the court sees the legislative history is relevant figuring out the legislature's intent representative levin says  definition that i've just read this general definition so prompt three just says onset are in the developmental period he says this is one quote universally accepted in the courts and then represented get this as a repeat that he said so this is the nationwide definition yes well my understanding the legislative history though is that the congress was a relying on the medical consensus the same medical consensus consensus in the scientific community that the supreme court looked at it act hands and actions it was about age eighteen and the follow up case there was body age eighteen and am i wrong about the legislative history i mean that seems to be what the medical consensus was at the time well look i think you asked several questions short answer all of them  i think that the by adverting to the standard in the courts and again this is before there have been any court decisions about mental retardation in the death only context there was only one other state georgia that had enacted a death only exemption for the mentally retarded the year before there be no cases so when they talk about the standard in the courts are clearly talking about these other areas but as far as the scientific consensus this i don't think there was a clear scientific consensus at that point it may be that the predominant consensus favored age eighteen but i think this court in interpret in the statute and applying the constitution clearly has to go with and apply the current medical standards the current scientific standards for two reasons one is congress enacted as a provision here w a scientific term mental retardation and the definition they read had scientific terms clearly they meant this to be interpreted according to the best current medical understanding if you look at the discussion v discussion representative bartlett talks about this and he says look this isn't this is something that's going to be applied and he uses the phrase in scientific terms by qualified psychologists the other critical reason that the court needs to interpret the statute in light of current medical standards is that's what the supreme court said in a all and more has to be done that's what they specifically faulted texas and florida for not doing for applying outmoded medical standards and they said  in fact this court in sasser was looking at the arkansas statute and said clearly we need to interpret this statute under the principle of constitutional avoidance because the court said in hall and more current medical standards need to inform the application of the mental retardation exemption so i think the issue of the issue then becomes what are the current levels well and your statutory basis for this is that that mental retardation is a scientific term because i mean essentially what you're doing i think us to do something we normally do not do we look at statutes at the time they were enacted and try to figure out what they meant at that particular time you're suggesting that in a volves over time kind of like the supreme court's eighth amendment jurisprudence and your hook for that then i mental retard retardation term which you say might have a different meaning at different times absolutely your honor i think what's very notable about this statute is the only thing it says is mental retardation if you look at other state statutes some of them try to really drill down into  science and the court said you know sort of the science evolves because we have a quote improved understanding so the science involved and those states like florida for example in hall ran afoul because they had pinned their statute to outmoded science so i think it's i think from the fact it's a scientific term from the debate where it's talked about by represented bartlett says this is a scientific term it's going to be determined by psychologists and from the fact that the port didn't try to drill down into have scientific terms so if congress to enact a statute that said we're going to classify a certain drug depending on whether has legitimate medical uses i think it's reasonable to assume congress meant that that determination was go be contemporaneous it was a still a get it to an agency almost always and then you have the delegation question which just part was posed i think delegation is too strong a term because i think in the delegation context you're talking about chevron that really is the agency deciding and i think what the court made clear and more and hall is we're not saying that the a p a or psychologists have the ultimate decision courts have the ultimate decision and they have to weigh different factors but the science the current science has to be a very important factor so i wouldn't call it delegation but i do think that the congress was saying well and so e p a treats it all the time well again i don't think this is quite the the degree of delegation you have like in a chevron situation it's i think it's something different chevron has a standard review the don't don't mix that in question is whether congress intended to delegate in this manner i think congress delegated to the courts which is not congress doesn't delegated to the judiciary the the interpretation to change the law so to speak i wouldn't say again it's changing the law i think it's interpreted in the law according to among other things current medical standards and i think the important thing about her medical standards here is to look at the american psychiatric association the d s m five which came out in two thousand and thirteen if you look at the supreme court decisions particularly call and more clearly this is the central authority from it for mental retardation and the american psychiatric association abandoned and age eighteen cut off and said it's generally the developmental period now the government says this is really just a technical rewording didn't didn't matter that's the logical on its face but also in our brief we talked about all the various authorities which knowledge this was a very purposeful meaningful switch because the a p a understood that eighteen was no longer defensible as a cutoff for the development of your home i mean they're back t delegation question you're saying that congress in one thousand nine hundred four told the courts that the governing standard will be what the psychiatric association does in two thousand and thirteen that simply doesn't doesn't what you're discussing with my colleagues now again i think that i think that there are indications and support for interpreting the statute in light of current medical standards and i think the principle constitutional avoid really requires it because it would make sense to say well under the constitution we look at current medical standards but under the statute we're going to look at twenty five year old standards the government relies i think their entire argument on both on the legislative history and on the current scientific standards is the a i d d and i want to say just a little bit about that during the debate during the discussion there was a reference to this the general standard being one from the a i d d and it was but there was and the government says well the a idea also had the separate definition of the developmental period where it said it ended at age eighteen so we're going to we should assume that congress meant to incorporate that that was never mentioned the representatives who were discussing this bill who would who had drafted it the things they said were at odds with that as i said and it certainly wasn't something that any of the other legislatures legislators who voted for the bill would have known about  as far as the science behind a i d d manual was from two thousand and ten so it's almost ten years old and even at the time acknowledge that an age eighteen cut off was scientifically questionable and really largely based on other nonscientific considerations the other important thing about the i d d the courts should understand is that it's not primarily a scientific organization and the government itself has repeatedly said this in their briefs in id cases in in federal court they said it's an advocacy or  we've talked about other scientific authorities for the current science being the end of the developmental period and if the court has doubt about that again one of the court's options is to remain for fact finding in the district court about that issue the court could  the end of the developmental period and say it's twenty two which i think is supportable it could say we're not going to set a cutoff we're just going to say it's the developmental period and again mr coote says under here for work what he has to meet at this point is a very low on under from standards are one one factor i think if there were not a consensus i think the courts would need to try to look at the scientific standards that that might be a reason to remain and to the district court for testimony but i think there are numerous other indications in incorporated the same provision these were model protective statutes there was a lot of opposition to an act in any federal death penalty and the compromise that was reach was to have a super protective statute it had special provisions that the constitution did not require in the areas of race counsel the whole mental retardation exemption was not required by the constitution special provisions on age that the overall intent of this statute which again there's a canon that this court needs to look at particular provisions in light of that the overall intent of the statute was to make it maximally protective the government's argument is don't pick the ceiling pick the floor and again i don't even think it's constitutional for because we think it's eighteen would be unconstitutional but clearly if it is constitutional it's the floor you've got about half the states that have that and the other half that don't and i think that would go against the overall intent of the statute a few moments ago you mentioned before entering judge graduates question that that perhaps we don't set an age we just say it's just during the developmental period but youth develop at different different speeds and a different pace a no different rates and so i'm wondering how such a standard would work somebody who hits the end of the developmental period a twenty two and another person it's an age one thousand how in your view how would such a proposal work well i'm not sure what's gone on with the a p a moving to the general standard is really a function of differences between individuals no doubt i don't dispute that there are i think it's more about where the the general line is i think the important answer that question is this is a pretty unique case i have not come across any other case where the issue of where you draw the developmental period line whether it's twenty or twenty two  case really turns on that and so i think it's not going to affect a number of other cases i think usually you're going to have people clearly on one side of the line or the other and again i don't think the science supports the idea that there are individual differences so much  reasonable doubt persists about a statute scope that that the rule should be applied and i realize this is something that criminal defendants often appeal to and it's often not appropriate but i think it is appropriate here because i think there really is at worst for our position  lingering ambiguity and i think the rule of ledley applies here particularly for two reasons let me close with those the first is the supreme court in in its line of cases on intellectual disability particularly paul and more has made clear  that it wants courts to be especially careful not to miss defendants who are mentally retarded it's sort of almost a special rule of lenity in the mental retardation context i think is what what the court's talking about in hall and more and the exempted the intellectually disabled mr coons has a severe disability he has an i q of seventy one which is in the third percentile and there was evidence that it impaired him in his basic functioning in many respects both before he went to prison and after he went to prison and his handicap in peers the very elements of executive functioning the decision making part of the brain that congress one of the legislators in the debate and the court in at ins identified as important memory attention reasoning process and this was all in the record yes your honor versus the record you want a chance to make what your honor if there is if there is certainly a sufficient preliminary showing on these things in the record and  would we would want to but i think the government wants to obviously rebut it at a hearing it and we might have additional evidence but there is evidence of all these things in the record impulsivity regulating emotion and being a follower when confronted with a more dominant personality as happened in this crime these are all the things that congress and the identified as number one reducing blameworthiness and number two creating a risk of a wrongful execution because these deficits can lead to f exaggerated confessions they can lead to difficulty assisting counsel and they can lead to jurors not giving due regard or even treating as aggravating these deficits all these things happen in this case thank your honor i reserve the rest of my time for a may please the court defendant koos raises two claims on appeal the first is the same constitutional claim that he raised the low that claim he only raises in passing in the district court he expressed we medical definition of intellectual disability to include intellectual deficiencies that do not many fed the many first themselves after age eighteen instead and this is a quote instead of during this developmental period that statute counsels otherwise first in terms of the case law the screen court in atkins articulated the age of answer requirement as requiring the disability to become manifest before age eighteen this court in or t s in two thousand and eleven eleven repeated the same formulation the said mental retardation diagnosis requires defects deficit's originating before age eighteen  in particular particularly illustrate it is this court's decision in or t s of course which was a federal death penalty case what do we do with the fact that opposing counsel says well that might have been true in two thousand and eleven and might have been true in the out before the ordinary task of a stage to interpretation is interpret the statute as of the time of an act meant that would be the first response to the extent that considerations of constitutional avoidance inject subsequent the subsequent developments into the definition defendant's cruise position is unsupported on the basis of the medical evidence the the association the american association of intellectual and developmental disabilities manual on the fines intellectual disability as originating before eighty that has been the threshold under the definition of the american association for intellectual and developmental disabilities thousand seventy three age eighteen the manual explains is a generous criteria because the and this is also put to the manual because the primary time of brain development and change is deficit's originating during the developmental period but in the explanation of what that means the d s m also makes clear that during the developmental period means during childhood or at adolescence and five under differential diagnosis also points out and this also court to page forty of the d s m five then intellectual disability is a distinct from neurocognitive disorders which are characterized by a loss of neural cognitive function and that that is entirely consistent with what intellectual disability is intellectual disability is a developmental deficit it's not something that happens as a some point during one's life and for that reason it's different in kind as a medical as a medical matter as the d s m five shows confirms as well as a legal matter the supreme court the knack is to make clear that to the extent a defendant cannot show intellectual showing you need to make in the second sentence correct even if you if you were not genetically or whatever the word would be eligible for the first correct and the defendant will have however to show consistent with the second sentence of the section thirty five ninety six see inability to understand the penalty and so forth right and draw a rational connection between the crime and the penalty but  definition of the american association that of mental retardation which is now changes name to american association of into intellectual developmental disabilities now that definition of the core definition referred to the developmental period however the manual that the american association of mental retardation at issue at the time that was enforced at the time on the same page defined developmental period a quote the period of time between conception and the eighteenth birthday it is inconceivable even the attention that the definition meant of the richer vision received as part of the debate of the one nine hundred eighty eight act the of the f t p a a that congress might have intended to incorporate the definition from the american association of mental retardation but not what that that definition meant that is that your logical inference that  the age eighteen and so requirement of the thirteen states to retain the capital that have capital punishment seventeen have adopted an age eighteen onset requirement for adopt no definition of intellectual disability and six use the term developmental period for without further elaborating on the definition that means that at least seventeen and as many as twenty seven jurisdiction out of thirty one the  to the distinction that the law has traditionally drawn between intellectual disability and other forms of mental illness makes sense because as we mentioned before intellectual disability is a quintessential developmental  deficit and with that comes added difficulty in and developing the skills necessary for coping with certain situations for instance and that's such a generalization cannot be extended to mental illnesses even when those mental illnesses correlate with some loss of cognitive function finally to unless the court has any further questions to touch on the part of the opening question the judge  a council on the a much what was before the district court and what's before us one of the things and maybe this is making a difference is politics both parties treated the same but the federal death penalty act claim wasn't before the district court that i can tell and i'm asked opposing counsel about this on his established president there is no plane there was no there was no error there was a plane because there is no precedent for sure and i think opposing counsel probably recognize that for that reason alone this any statutory statutory error will not be plain ever well that brings the timing issue into clear focus as to whether it has to whether whether it has to be done now with the sentence reversed if it's plain air review there is obviously an opportunity  to make available in that in the time adkins requires for this relief the third and fourth prongs of a lot of the law right so i mean plain what about third and fourth prong well at this point it will be premature to because the only claim is that he would have had to receive they would have had to receive a hearing or that he has to receive it not nineteen and so they don't argue it but it comes up on appeal and it turns out that the kid was actually sixteen at the time he committed the offense it seems that this is more of a sort of a complete bar if you use  jurisprudence to complete it it's a complete bar on liability complete bar on the sat and so it's plain air really apply under those circumstances or would it just simply not apply because it's an absolute bar i think it would apply i think to your hypothetical is different because the hypothetical is premised on the notion that in that case there is no question that the defendant was actually not eighteen at the time so the facts as i understand a hypothetical are in dispute and the law is also well what is legally i think everyone would agree a novel claim as to the age of onset requirement and playing the really as a general matter as metaphors principle is about not forcing up putting courts of appeals in the difficult situation of arriving entirely new law without being part of this problem too without the benefit of the considered judgment of the district court that's one of the of the values one of the underlying principle so you think in my hypothetical why is it why why this plane air review ever permit the reversal of the sentence and go back to square one for a constitutional issue that does not come into play execution so the constitutional issue i think would come in with the imposition of a death sentence i think but  are we talking sentence or execution that's a distinction i'm talking about the sentence i think that well if is if is a matter of law the defendant was mentally retarded and that that is determined before trial or book before the sentencing phase then that dictates the sentence correct it with the right didn't happen here correct and i think i take their argument to be that i know what their argument is but if it's plainer reveal it's not plain in here that's exactly the position in our brief no it's it's not plain air under the third fourth prong even even if it was clear that the district court should have held the hearing given the preliminary prong would be an independent reason to a farm this judgment of the plain there are and they're playing our style the standard that we have argued applies in this case council could you please address the assigned there i think it's number eight to make clear that it was only advising the jury out of an abundance of caution and that had no reason to believe that the protest involved more than a handful of jurors that the court to the court explain why the defendant was not to be present no there was there the record a so you know you give the explanation that you dissipate the district court would have given if prompted to why are you doing that jazz so you know one you haven't said a word about that what was what was what would what would be a rational basis for excluding the defendant from that discussion so again going to be on the record if if i were not that's not beyond the record what was the court asked for an explanation the court was not asked for all right so now now we're now we're talking basically planar of you again and so the court was the court was not prompted to explain a decision which is now alleged to be unconstitutional what would what would a thoughtful and sophisticated trial court have said if as questions for the jurors and it's possible that an entirely benign faction of the court thought that not having to defend and presence would not that would cause the jurors to be more forthcoming or more willing to voice any concerns here in fact they had any beyond that it's hard you know the opposing counsel hypothesize some you know inference that the jury could have the jurors could have drawn about the defendants being somehow associated with a protest but in fact if that's where the bought if that's what the court had thought that would have made the removal of the juror jurors even less sense it would have made the remove it would not have it would have made it less likely that the jury would have removed that the defendant's because the defense would counsel present but it did not interpose an objection to the substance of the communication to that the advice that the corps actually gave to the jury so to use this course words this is one of those instances where the president's presence of the defendants would have been but a shadow i fisher for vogue i think your honor the suggestion was made that this claim could be relegated to shortly before execution much like a claim of competency to be executed under ford in plenty but those are two completely different kinds of claims the claim of competency of executed is not decades to put this off until then would be make it much more difficult to conduct that historical inquiry it would be an unnecessary burden and delay and impose potential costs on the court system on both parties on the raised for the first time in twenty two fifty five and webster came up after the sense neither court said well we can just put this off till later they both dealt with it when it was raised and i think that's what the statute calls for stress you asked about planar this clearly is not subject to  jackson has said that this is kind of like the hypothetical you gave with it with age where it's an eligibility factor and so they used the phrase actual innocence of the death penalty and so it's exempt from that rule this isn't a case where the defendant purposely waived it you have to be cognizant of the circumstances here the defendant was at the end of the sentencing hearing and hall came out which really changed the landscape and they were preparing to do their closing arguments they were questioning the last witness all came out on may twenty seventh they literally filed this motion may twenty eighth they scrambled to file it it's not perfect certainly but it does raise the intellectual disability claim just a couple of other things i wanted to clean out mister  said well you can't have both a cognitive disorder from brain damage and intellectual disability and that's just not true to two things the courts have repeatedly found intellectual disability based on brain damage and we cite those cases in our brief and the s m five on page thirty eight specifically says quote when intellectual disability results from a loss of previously acquired cognitive skills as in severe traumatic brain injury the diagnoses of intellectual disability and of a neurocognitive disorder may both be assigned and lastly i would just say about the what the supreme court has said about the developmental period clearly the reference to age eighteen acton's was was the dicta it was not considered dicta age of onset was not an issue the court wasn't adopting it wasn't disputed it wasn't addressed in the briefs that the issue an act into was is there some kind of exemption for mental retardation the court made act ins and later that it was leaving it to the lower courts to work out that definition actions didn't deal with the federal debt only act and finally the screen court in hall and more in subsequent cases has retreated from that age eighteen formulation and again the last point i want to make in my last minute mr valenti talked about the states we disagree with sort of where the states line up if you look at our reply brief we think it's it's twelve have age eighteen and  the current scientific standards which the supreme court really and more said is is the the guiding star for determining intellectual disability thank your honor thank you counsel case has been thoroughly briefed them very well argued and