it please the court i my name is emma rolls and i along with tom heard represent the appellant mr smith in this case your honor mr smith is likely female intellectually disabled capitol havey  short has had the opportunity to consider on what basis do you say that you have some statistical idea review the cases that you can help with i certainly can your honor and preparing for this argument i read presented and a scatter of scores from fifty three to eighty now the court and the experts isolated just two of those scores as valid in those scores were seventy three and seventy six i believe and the lower scores were passed out because of the client's lack of cooperation so we have much higher scores than mr spence but with respect to adaptive functioning in mr hookes case the court focused on the fact that he ran a sophisticated prostitution ring he could read he wrote six and seventy nine pretrial nowhere near the low fifty's and sixty's that we have here and his entire argument depended soley on the flynn effect in this court's acceptance of the flynn effect but there spect on this case was more of a challenge to the oklahoma law in general and in fact at the time of the trial the defendant's own expert testified that he was not intellectually disabled and i'd like to take a moment to say i will probably go from the terms intellectually disabled to mentally retarded even though intellectually disabled as the clinically accepted him that there's no red line that we can resort to then no particular statistical  atkins opinion were in the court referenced those state statutes that had already mandated the prohibition of the mentally retarded it referenced clinical definitions as the appropriate ways and the and those statutes i'm not your honor so we're we're working with the murphy then working with the murphy definition which more or less merit the clinical definition is at the torah so as to the first the factor intellectual function g the o c ca didn't ignore the experts they talked about the experts they talked about the expert testimony the tests they performed the opinions expressed i'm having a hard time understanding the argument that i think you're trying to make that the o c c a didn't consider clinical standards when there's references to all of those things in the r c c it is opinion well what the r c c a did was recognize and perhaps add repeat what the clinical evidence was but they gave much greater credence to the lady witnesses as a matter of emphasis as opposed to ignoring clinical evidence are you saying they ignored the clinical evidence completely because that isn't really what they said in their opinion i'm not saying they ignored it completely but they certainly rest most of their attention on nonclinical stereotypes based on the intellectually disabled is not expert evidence irrelevant to the first factor it's not a relevant your honor but clinical stand and then we're starting to talk with well maybe the o c say underemphasized won or overemphasized another then we're going to run into the situation where we have to defer to the o c cia so how are we supposed to do that but i'm certainly aware that ad creates a hurdle here but it's it does not preclude this court from looking at the sufficiency challenge and of course it doesn't because it doesn't quote we have had as a deferential standard not as an absolute block but it's a deferential standard what i'm asking you is for some help for us in how we're supposed to navigate the fact that the o c ca at least considered some of both types of evidence from your perspective disabled and the supreme court in reversing that case didn't even so much as bother to mention that they went straight to the elements and said no this is not acceptable reversed and i think that's because ed that is here to correct these extreme malfunctions that we're seeing in this case this is the case that meets the standards mr smith's i q as roy asked you you have three three criteria you have to meet right correct smith suffered from impoverished communication within an inability to be spontaneous and produce ideas and that he in fact function at the level of a five year old with respect to functional academics and when was th there as early as as very young seven eight years old and he spent the entirety of his education in these classes which required consistent testing for placement every three years this man was tested and qualified for these classes that which were acquired q from fifty to seventy five but going back to those you go through these three proms it would help me if you were able to identify what specific supreme court case you're talking about and what the holding was that compels your conclusion that the so can we look at those cases because they were cited after the o c c address this case and we have the super cancer in this year which says you've got to take into account supreme court law move we're going to pursue that before we get to the other elements of the law at the time was that you had to know about this intellectual disability at the time we applying the manifesting itself standard or the knowing well your honor and i'm assuming this is about proposition two with the jury instruction whether this jury was in fact instructed not that it just needed to be manifested but it situation here but what was even more problematic about the instruction in the attempt at an earlier age what was clearly an error learning as instruction was that the instruction read that this type of evidence that this present here to know the evidence could be stablished by lay opinion or more school records at no fault of mr smith's all of his school records were destroyed other than his high school transcript and so immediately the prosecutor exploits this part of the argument to say unfortunately for mr smith there's no school records to show that he was mentally retarded at the time but his to you at your age teachers that testified clearly indicated he was properly placed and exactly the jury you have that information the jury knew from those witnesses who had experience with that with these divisions and so so it's important because that language departs from the clinical definition and if the clinical ask you on this jury instruction this was a jury instruction that came at the end of murphy depended murphy and earlier said you're not challenging but you really are yes but the actual definition from irving only men use the manifest language which i think highlights the unreasonable ness of the court's adoption of this precise instruction i was there they were just they were they were just following what the oklahoma supreme court said they're supposed to do when that was provided the instruction i'm not i'm not saying the can argue it's unreasonable but that's what they did certainly that is what they did and they also two months later rectified the instruction to correct the problem yet mr smith did not get the benefit of that correction now much of the state's case here case here rests on the at allegation of the lingering against my client d forensic psychologist he has a j d he does not have a clinical practice unlike dr whom well who testified on the behalf of mr smith who gave a clinical practitioner and had years of experiencing excuse me years of experience diagnosing the intellectually disabled in the ad a passerby as a military doctor but with but with officers trying to get out of service with screening benefit recipients he was particularly astute at detecting mulling in his interpretation of the tom test which were not normed on the intellectually or brain damage population both of disabilities from which my client suffers that the that the results on that time test did not indicate mulling brain but what i'd that's years and years in separation from when he was put in classes i don't understand how you can say he's put in classes so he could have been lingering twenty years later thirty years later well i have he may have a claim unless you have educational level class that you have to meet certain criteria yes and the special education director for oklahoma city public schools and bad didn't testify well that was what my next question was in their testimony to that effect able to marshal some facts and if you're approaching us like the jury then maybe we would agree with you but that's not the right isn't the test whether any rational fact finder could have found  d upon here and that when you rely on the clinical evidence that does not support military those tests on which doctor called them go to mullingar or die from the state of oklahoma those tests on which he relied were not normal for the intellectually disabled testing of the final and show that he had severe netizens in every area the murphy definition required deficits in only two mr smith operates at the level of the five to seven year old in all areas on the wide circuit court found the state courts determinations that a defendant was not and the actually disabled and reasonable based on precisely these types of uninformed inaccurate stereotypes about the intellectually disabled in van tran the court the lower courts relied on the defendants post crime conduct he stole that victim's car he took it to a gas station he set it on fire he drove it a great distance and he set it on fire with the state courts looked at that evidence and said that just from such pain planning he couldn't be intellectually disabled precisely the type of evidence that the oka relied on here in determining that mr smith's ability to clean up the house and place the bodies of his victims in a made bad under a bed and in a closet showed his ability to think clearly what's more his ability to carry on the duties of a janitor and these a loser type of supervisory duties ascribed to him are clearly within the abilities of the intellectually disabled all of these are inaccurate stereotypes and as long as courts are willing to overlook clinical definitions and instead rely on inaccurate improper stereotypes about the intellectually disabled then atkins will be a nobody but  ability her hand testimony in front of it about and allegedly disabled person might be able to be the supervisory janitor from various witnesses and then once again when we're not the jury so what you that he failed on that adaptive functioning two of those on that climbs are tall order it is a tall order but if you're looking at the clinical evidence and in conjunction with the label evidence that equally supports testing that went on here i think that this court should pay close attention to the arguments and proposition three where we argued that the atoms trial counsel were in effect at the actions trial counsel had a really important benefit here that most trial attorneys do to that your honor i promise had a trial counsel followed up with what they knew to be a certain challenge to the type of testing that dr hallowell administered and they knew it because in the mistrial by that point the time that the reporter he said he clearly had problems with the way in which dr hogan used the bible and and he said that the apples would have been the better test so in september of two thousand and three trial counsel knew this was coming and did nothing and i would eighty two and there is great trouble with assessing the adaptive behavior of a person who has no opportunity to really make decisions they don't cook they don't face the day to day adaptive choices that people out in a free  in a certain way i would also state that despite dr call scathing criticism of the use of the bible and he administered absolutely no adaptive behavior assessment so he himself has nothing to write about it that our society has chosen to supreme court precedent the proposition that as a civilized society that we will not execute the mentally disabled and so the fundamental question about this gentleman that is here before us today is whether he is in fact intellectually disabled as defined by the supreme court i cannot help but be affected in my questions this morning by having read re read last night the bobby james moore first texas case which is so close to this case in so many ways texas court of criminal appeals  after a jury determination that there was no mental retardation as they used the term in earlier times proceeded to remand the case for furthe determination where the court of criminal appeals just gave the same answer all over again finally i think it's pretty evident that the court gets to the point where they just gave up and said we part sending this back but he couldn't be lying about the fact that he met the other elements of the test namely this kid was in the lowest levels of is academic stand classes from the earliest age he is subjected to a test about not whether these disabilities manifested themselves i don't see how anybody rational factfinder good argue with the proposition that they did manifest themselves at age seven  but now he has to face the test that he somehow knew about it i don't know how you go but beating that test he has to proceed to try to prove his case with the school records  but we do have the benefit of the teachings of the teachers who testified that i don't want to but belies the time here this morning but i must tell you that i'm quite concerned about the fact that we are being asked to nonsense i call it nonsense because this witness has been disowned by the very courts that relied on him in the past as they refused to rely on him anymore because the everybody that came along before him was  i'd like to have the benefit of your thinking as to why you feel that it does not violate the spirit of atkins and jurisprudence of the court of di state supreme court coaching him trying to make him you know give him reason that he would have multiple personality disorder so it's the idea that moaning during is somehow only relevant in this case because of  test go and i know i q i mean i don't think there's any doubt that he was in special education classes that's he can i don't think i could argue that he wouldn't have met prone to if  prior to the age of eighteen i mean it seems to me like that's just really a cut off as you know when you just when you want to term something as brain damage vs mental retardation so as want that to me that the age of eighteen doesn't seem to be anything other than will disqualify under atkins fermanagh retardation so yes i cut don't think i could stand up here and say there wouldn't be sufficient evidence that he had some sort of intellectual disability or some sort of sub average intelligence at that age because he was placed in these classes you don't seem to press the point in your brief that's so you know i mean yeah it's it's i mean the evidence is there i know it tracked the hearing now there was a lot to be made about well do you have to be a military target to be in this class and there were no there's other types of individuals that are in those classes and unfortunately we didn't have the records but we did have testimony from the teacher is that a function  function blow but i think what if the court had to focus on what the jury had at the minara take excuse me mental retardation proceedings was they did have i q exams they had you know some that two that you would probably rely on the most would be the seventy in the seventy three and i say seventy because i know dr smith testified initially he gave him a sixty five he tested out of sixty five but he also testified that he i thought he was a little bit broader than that so he gave him this raven test or you could get a range and the range he fell in i want to say sixty nine to seventy eight when he testified at this hearing he said he's no longer as skeptical as he used to be it doesn't mean he's not a skeptic skeptical and if you look at his testimony i think he says he falls on the cusp and if he had to give it if he had the vote he would err on the side  i don't think so the doctor calls testimony was i can't give you an answer either way because this testing done adequate he said i can't tell you that he is and i can't tell you that is why doesn't the result of the first go because even under jack american you know if you don't have it if you have any expert at the truck who can say that mr smith was intellectually disabled how can that possibly establish that the first element the first murphy element is that well i think you have to look at would you have to take into consideration too he didn't do any adaptive  yes did that does that mean problem one is the net and no i would agree i would say it doesn't because there's a little bit more to prop one and that is does the sub average intellectual functioning does it we divided them into two you know areas they were like eight i q's and the only ones i don't know that i can i mean i can look that up and follow it twenty a day if i can find that it's a very prong one is hanging by a that extra language of prong one beyond the i q but i've read prong one and i understand there's an extra language in murphy perhaps adkins but the cases that i see on prong one go straight to i q correct front the focus on the i q and the reliance on the eye cues in this case is so much less based on the evidence of how this man lived his life from the age of eighteen and so i mean i know that maybe it hasn't made its way into a lot of cases in the past and i think this case is different i mean this cases you did this jury couldn't rely too much on i q scores really at all why capable actually offered him a job to work for selling insurance and other financial services you have emma watts who was his case manager for two years that said he had to say he had no problem communicating with me i didn't notice anything that was wrong with him the only thing different from him in a lot of inmates is he's actually very manipulative about getting his cell changes i will focus on his job for a moment because yes he was a janitor and yes he was promoted to head janitor the jury heard all that the jury heard because they had his oh job description what he was responsible for doing you also have a little bit of conflicting testimony with regards to his job because you had certain family members petitioner testifying that things he didn't do and then you have to mark woodward you know the time that he did manage and there are absolutely no family members working with them and so can i just i just ask you i'm kind of i'm back to the issue of whether there's any expert support or way of the jury came in trying to determine whether someone is intellectually disabled or not it seems to require some help to the fact finder from someone where expertise and if the things that you've just been talking about the job and other other matters to the extent that that evidence is is is relevant doesn't the jury need some assistance from an expert who can say i know from my training experience testing and everything  build that information into the analysis and it's my expert opinion that nobody said that at this trial did they i definitely think they need that what they need that they didn't get it heck they didn't get the kind of x expertise to make a rational decision about whether mr smith was intellectually disabled or not you just don't have an expert who expresses an opinion mr smith is intellectually disabled nobody said that or even said he is intellectually disabled because and give an explanation and yet we have a jury coming back the way intellectually disabled in this case just based on the evidence presented at trial they did have an expert i mean they had dr hopewell come in and talk all about his limitations you did give the vineland but an expert is only so good until they are i mean i don't  and position is going to depend on that order determination of how smart they are depends on that and somebody comes wise as oh he's lying about it he's he's smarter that he did a li that's subjective right yes that is totally subjective yes one we have some objectivity to be able to prove that the other one we're just we don't know we don't know whether he is or he is willing very he's likely to mulling down i guess why you'd want to do that or she would want to do that i don't know but is but it can't mullingar in the other direction correct right correct so the other direction here is i think the highest i think that any of these all we have to look at what the jury had and what the jury had was the testimony from dr von dr hopewell and dr hopewell just testified that sent to the vineland  think testimony was that he had limitations and all three or all five areas of the vitamin and so that's what the jury had in that respect and then dr calls testimony was that the violin is not a proper measure for prong three of the murphy based upon the way it was given and that is right out of the book and you know counsel i think did expect that based on the report and so dr hopewell was he articulated why he did give the volume but again there was no medical literature or anything that would back or substantiate that that would be a proper test to get and why you're in prison and fact there's really both of them experts have testified there paul did not testify that you should give the a b a s what call testified is that there is another test to be given but none of these are normal for a prison setting you know contacts with the defendant and so the testimony opposing testimony of that was that there was no adaptive functioning deficit's you know other than of course i don't even know that they really talk too much about  talking about but i've had this question about not just our analytical framework under have been for as applied to this context so at the intellectual disability trial mr smith tries to explain the way we navigate this situation under under and yes and the o c c a applied as far as the sufficiency of evidence is concerned a standard that is the equivalent of the jackson test which asks whether any reasonable jury could come out the way this this this jury did yes all right so so far so good ye in your brief you talked about the fact that there's double deference yet involved here and i'm having a hard time understanding how that's supposed to work with the jackson test because if the tests whether any rational jury can come out the way this jury did and given that nobody is contesting murphy i mean what does and even can't but i'm just i don't want to belabor the point is just it's a been having a little trouble understanding that ok the only way that for me that i i look at it and i think we are getting kind of what we've already discussed was that there's a we get you know when when we're looking at a sufficiency claim if you look at the evidence in the light most favorable to the state and whether that was found be on the air or whether it was possible that they could find in this case that he didn't prove he was mentally retarded by proponents of the evidence and so i think the first level of deference is that that's the determination and then maybe with the second level of deference is just what we've talked about our court of criminal appeals found that decision reasonable and so this kort rule against it i don't think so i think we don't get it do the first prong well the jury was instructed because there was argument were not there is a disagreement about what happened in travel and everybody acknowledges that murphy's manifest murphys language that it must manifest for the age of eighteen and then the jury instructions that they've you know suggested they give say present known i mean there was discussion on the record we need to make a record the court current bills needs to know this language appears to be different the court colonel kills the dress that over the years and said it's it's not a problem and i know it's changed now but what they did in this case just to make sure there wasn't a confusion is then they say they instructed the jury i have eleven seconds can i finish this  opinion of course school records maybe consider and the school records were all sponsored through their witnesses they had the teachers so i mean i don't i don't can't imagine that if the jury had made it to the second that would have even i would suggest they would have likely found it i mean i don't think that this instruction or the other instruction shows that they would they would show and i mean it's not to be known because this there's got to be evidence of it i mean someone's got to know something defendant proceeding based on kind of a scab i q scores as in the seventy five to seventy six range of federal level to ensure a hearing was held on the matter and he was nonetheless found to be intellectually disabled so i would provide that case to the administered by dr murray nowhere in the testimony of dr call or in the one nine hundred ninety four testimony of dr murphy i went back and looked as he ever identify what type of test did he administer he didn't but one thing that the responder conveniently understanding based on the experts in this case what is there a tipping point what but what's the what's the number well as supreme court has said intellectual disability is not a number it's not a number but typically in the seventy seven to seventy five range is where or where we're looking at and i think it's important to remember that these cases involve what was once terms of the mildly mentally retarded that operate in this kind of fifty five to seventy five range we're not going to see the defendants in the lower what was once termed the profoundly mentally retarded range those people don't make it through the criminal justice system either they're institutionalized or found competent so this fifty five to seventy five range is typical in the type of cases we're seeing and respondent referenced dr hall's testimony at the resentencing where according to respondent she said that mr smith was milling around i don't necessarily recall her testimony in quite that way she did say that there was there had been some retardation for medication purposes that has to mean something today and i would ask this court to reverse  well i it was in a slightly different context so on frankly i cannot make that argument but i do think it has some significance here three times the court acknowledge that there was compelling evidence of his mental retardation for the purposes of mitigation just because the