troubling story of john reyes man morris from a childhood described as a boy who your nail them self at six who continually put up the shoes on the wrong feet who at fourteen at but he still didn't have fourteen f words he in his mother had to go to the bathroom with them make sure he cleaned themselves she had a dresser and then we have the troubling story of george through the state says can practice forensic vic that's the third part of it your honor but here we have the question of intellectual disability and whether or not john raised her more should be executed and we have the state texas is a relevant but they still rely on of opinions and what's important about opinions he says in adaptive behavior analysis you look outside criteria outside the scope of scientific testing c find findings that were testify about but just have the court use them on its own to say someone who is functioning in doing their own analysis the court doing its own analysis in the adaptive and functioning test analysis well as of the end that what it appears might have happened here that's what they did and what isn't that acceptable under the way that the percent here factors as significant limitations in an individual's effectiveness in meaning the standards of maturation learning personal independence bourse and or social responsibility that are expected for his or her age level and cultural group as determined by clinical assessment and using a usually standardized scales so that the definition that the court is adopting looks to clinical assessments by experts  within the confines of the definition of intellectual disability and the definition of intellectual disability that is now in section five ninety one point zero zero three section fifteen  requires that a perk a person with intellectual disability mean the person determined by a physician or psychologist that have sub average intellectual functioning with a deficit in adaptive behavior so by definition or is a no says you have to in looking at determination of mental retardation or intellectual disability you must look to the definition and of what the doctors say what what psychologists say you can't you have to adjust judge adaptive behavior within the confines of what the science is and how these outside factors these are outside factors that these scientists should look at but they are controlling as these clinical assessment is the assessment by experts true under stress i mean in the not for example they generalized adaptive information and talked about anecdotal i mean not anecdotal but information about the person when there was an expert testimony in another not always an interesting case and it's the right but that's the bad state court but i'm talking about our opinion before that happened and said that we were able to use the the the information from the from the observation of the person that the end of those stories now the amount of morse's sisters we're not going to consider the diagnosis of mental retardation biased by the state when he was fourteen when he was seventeen using them because down in koski said they were important yes words but no i just think they're saying they're using these factors and so i'm going to ask the state if they can get to know skip through the methodology without in koski because i'm concerned whether it is to get the poor can on its own say this is the proper methodology but it could can the court on its own just say these are the the records from t y c this is the testimony from the  morse is mentally retarded based upon his professional judgment and he discusses characteristics of adaptive behavior in his report and he talks about being lived in society and dr smith wrote a report and he was labeled by the state of texas to be mentally retarded that carried through all of the juvenile proceedings but he was mildly he was not treated as such and he was treated like a he was in general population in general population given rules had to follow and but he was still had the diagnosis consistent diagnosis before the age of eighteen like in haw the supreme court noted the school teachers labeled hall to be mentally retarded and that was sufficient for shopping for answer before age eighteen here we have not doctors collection saying he's mentally retarded and he wants disputing that if this was credited that this would be sufficient i think what they're saying is the finder of fact did not credit dr smith's reporting and gave reasons why not but don trip smith's report if credited and dr nurse were they would be enough to help with the with the second and third factor you already have the first that well but the reason why testimony and other evidence why do you have to filter that through the next four quarters to decide that as as the supreme court said in hall you look to the the experts  or clarification of what the what this means you look to standardize scales testing to see how they fit in their adaptive behavior is not a test of streng rather is a test of limitations and you look to see an analysis of those limitations on standardized jails and once you find mr sandusky as you may have a person in a confinement that says intellectual disability and in fact in the latest version of the of the manual written in two thousand and eleven or twelve by the american association on intellectual the testing that was done by two experts in this case on the  you had significant deafening communication skills social skills and daily living skills and as dr oakland as he interpreted the raw data on the abbos he said that there were four areas functional academics health and safety self direction social skills where on the raw data those test scores show deficits in that the behavior that are consistent with the observation of the sisters and it's just that with the observations of dr smith i so i do agree with you the theories that in the record and there's been some discounting of some of the experts of how the the test was done and regardless of that even if you're correct that these other doctors tests establish completely the case that you're trying to make the the trial court and in the court of criminal appeals did not choose to believe the evidence that way and we review under a very deferential standard the problem with the state court finding the court who feels finding is that if you take t me whether or not we have a case says that is that is  ok i agree with you that the court did look at it from the doctor count ski's testimony and and all the things that were summarized there that could those things have been observed by the court on its own and so where you would end up with you would have experts support your view of the case but we would have all of this other evidence that a lay person or that the court could rely upon under texas law and the person the in fact ok all right i puzzled that same question a lot and the problem with that analysis is that evidence i reject that psychological testimony and this is what i find well here we had went to the state court with the record from two thousand and six brought two statements that type of a judge can reject an expert he can make a finding saying i didn't reject that expert and i can try it because i find that expert got to be credible but if the judge has to hear it and make so i'm just saying let's let's give this regard his testimony one way or the other and but when but why can't the record just disbelieve the petitioner's expert and say i'm going to base my that's left plus the sisters and you have six psychologists saying joe johns has been a morris is is intellectually disabled not one but six and in the findings of fact says there must be a clinical assessment the statute says there has to be a assessment by a licensed psychologist or physician and what structures five ninety one point that they were attached to he considered them or not but how he'd be go about deciding that he was going to discount dr smith what would what if he didn't hear this testimony he was a judge  judge bacon the prior judge of the one a t f so what would he how did he go about what's in the record to help us with that and the problem is even if i believe that he if  were saying he didn't go about it very much and just bought the state's findings if this court of criminal appeals said it was ok and that was a reasonable thing then we can't look behind it anyway but but what is in the record that he what he did not thin decision in truth it also involves legal challenges to that decision and to the legal reasonable miss of what the c c a determined and once that legal framework is settled it's going to inevitably follow that the decision is also from relying on those factors and that's why this court has repeatedly used those factors in denying relief and so the question of expert testimony is solved by or senior when it writes the ultimate issue of whether this person is in but the c c a stated that it was basing its decision on its own review of the record and not only on the trial court's written findings and so i think that's actually a notable between this case and maldonado that actually makes our case even stronger here to be able to review the record and think that there's something in the record that with support the c c a position i mean it says it was basing its review we have to be able to find something in the record that would support the there has to be film thing to support it that's exactly right the way you frame the question about how there has to be something in the record to support the decision was going to be my second response to judge davis and so to get out the heart of the question about what you find it's indicative of adaptive functioning or it's not without being told that a dad dept of behavioral deficits gives me without being told that how can you examined the record this court disregarded doctor testimony on the whole in so much on all those one example another is in the united states versus webster where the defense placed in to record the results of a viol there was only doctored cowskin webster i believe there were government witnesses but the key part of the opinion is noting that direct evidence in lay testimony can rebut expert testimony and again we know that because of decisions like adaptive behavior assessment and that's a page one hundred twenty eight of volume two of the recorders record and so that's relying on the morses own expert to show that there was no adaptive behavior assessment and that's of course the issue here we are disputing the first prong and now as to dr smith there are two main problems with his report first as as a district court the federal district court here explained dr seuss report didn't specifically address adopt the blue what besides the federal district court would support this we need to go outside the federal district court certainly dr rosen's testimony herself she stated that no formal adaptive behavior assessment was conducted she  assumed that dr smith analyzed the doctor behaviors which she called informally based on some of his discussion of metamorphosis personality traits but she also admitted that personality testing isn't the same thing as an adaptive oakland said the same thing adaptive behavior never was assessed properly in the second problem with dr smith's report is that even if you credit that personality assessment as being an adaptive behavior assessment of some kind his specific conclusions were rebutted by other evidence in the record he called metamorphose socially inept simplistic and easily led but there were other reports of matter morris being manipulative and having good leadership potential numerous reports of his good social skills instead and there's also mount morris his own testimony where he explained that he refused to do some of the more violent deeds that the mexican mafia encouraged him or asked him to do and so where you have that conflicting evidence that's exactly what happened in webster where direct evidence rebutted findings from an expert and even crediting all that speculation on dr  that say that you should have a clinical author meant in the first place i'm not aware person you're citing that for specific part of the statute but even so nothing in person you know says that you need expert testimony and indeed that's why they're saying you says that quotation that i read earlier in my presentation where it says the decision is in the hands of the fact find it was going to make an expert testimony conclusive somehow or make it so the fact finder had to whether this is unusual or not but i know this is also what happened in the supreme court's decision in parker vs matthews which we cite in our case where it said that the jury can find its own its own sense of what happened contradicts an expert's opinion scott's testimony the c c s decision there was reasonable and so too is the decision here because of all the evidence that we know the court as fact finder under sane you can take into account state court is just as concerned as this court about getting to the right result not only didn't hear dr rosen and he didn't hear any of these doctors at all so happy and then he relied on d koski even though he said he wasn't so i'm a little bit concerned that there's maybe no there there if you district court actually go through and say i've looked at these t y c stated that it did and that's what we should look at and that's what you have to look at under at the and i recognize that we're asking a lot of the petitioner that it's a difficult standard to meet but at the supreme court's of chords it's a it seems like a difficult standard that's do want to return to this issue of the experts because even if it were per day just count up the number of experts on their side we've already addressed dr smith and dr norsworthy and again doctors were the i don't think should count at all because she didn't conduct any adaptive behavior had the documents and some of them looked at it and some of them may not have but it's not the federal court going in and doing its own hearing i don't have anything specifically on that i'm happy to update the court may twentieth jay letter as it w some the best thing that matter morris can say for his claim is that there is some evidence that supports his feet and i think much of that evidence is seriously flawed as i've explained with his experts in particular but even if he has some evidence in support of his view where there is conflicting evidence before the state court and the burden is on the petitioner before the state court in the burden is on the petitioner in this court not only to show that the state court's decision was wrong that objective immaturity but where there's conflicting evidence it's in the hands of the fact finder and that's what the best thing not a morris could say for himself here and we've discussed in detail all the t y c reports the t way that this is kind of cutting a great gains the great but that could be a fair characterization paul but this court has already addressed how hall impacts for saying you know that's i have a question about that i thought that you might rely upon the case  maze case many ways says using additional information and this is an additional this is only so i'm not sure the maze directly answers the your response excuse me for on diagnostic i thought the idea behind that was addressing hall's decision which was very focused on a strict intellectual cut off and so i thought maybe it was saying that texas doesn't do that it makes this a more holistic subjective assessment but second second response is that the point is that it holds that whole in no way affects percent you know in third even if mazed doesn't address the question here there's still no clearly established supreme court precedent at the time that the c c a rendered its decision that would prevent a state court from relying on the factors that we've discussed at length now and from the lying on direct evidence and we we know that because there is nothing in attitudes and we know that because this court has repeatedly used those factors to deny release and i'm sure that this court is following a course clearly establish supreme court precedent  directed using his or their methodology i'm not sure about the state's history unfortunately but mental retardation or intellectual disability involves of course three problems and we're focused here on the second and third prong and that's and that is the fact that the texas legislature hasn't spoken specifically as to the substantive and procedural process for doing the net contains and so what we are left with is the c c s opinion and  know that opinion refers to two sources two definitions for defining mental retardation that is texas statutes the texas health and safety code which defines mental retardation as a di as a diagnosis by a doctor or a licensed clinician and so judge all right when you spoke earlier about having concerns about the methodology that's employed in making these types of determinations that's a legitimate concern i mean the reason that we allow expert testimony is to inform the fact finder if that testimony is going to help the fact finder may contribute that crime fish restaurant correct but to inform the fact finder to characterizations of those historical facts what's left i'm really have to rely on  i don't believe that any fact finder should have to rely on an expert for something that's common sensical is the issue of intellectual disability common sense i can say that i've certainly learned a whole lot about what goes on and making that kind of determination that there are specific diagnostic tools for particular populations based on their age based on their education based on cultural phenomena and that that tool has to be applied in a minister in a performed tests that have subjected those tests to peer reviewed by folks are smarter than him and if you stack up all these years of research your honor it would seem to me that a fact finder would want to be informed by those independent sources for the historical facts that the court the fact finder wasn't relying specifically on skis characterization of those historical facts in that particular instance when you and i can both look at th podium and say to brown that's objective truth but when you take someone like him and the podium is not here and you're left with just what his presentation to the fact