Moore v. Texas Page 14

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Media for Moore v. Texas

Audio Transcription for Oral Argument - November 29, 2016 in Moore v. Texas

Elena Kagan:

Right.

I -- yes, it has adopted the three-part test.

But within each of those prongs, you get to apply it. I thought that that was the entire point of Hall: No, that's wrong.

You don't get to apply it however you want.

Scott A. Keller:

But on intellectual functioning, Texas has never had an IQ cutoff.

As Hall recognized, it applied the -- the error of measurement. And even on the adaptive prong analysis, that is going to account for conceptual, social, and practical skills as Texas has actually adopted the current standards.

John G. Roberts, Jr.:

Thank you, counsel. Three minutes, Mr. Sloan.

Clifford M. Sloan:

Thank you, Your Honor.

Just a few brief points. First, there was a lot of discussion about the role of Briseno and the relationship to clinical standards in the Texas Court of Criminal Appeals' decisions. And I would suggest that the Court look at the American Bar Association amicus brief because it goes through three decisions of the Court of Criminal Appeals where in each of those three decisions, the clinical testimony, the expert testimony, was unanimous that the individual was intellectually disabled, and the Texas courts used the Briseno factors to conclude that, in fact, he was eligible for execution notwithstanding the unanimity of that expert testimony. Second, my friend said that I conceded that they could have just applied the DSM-IV and rejected the DSM-5.

Just to -- to be clear, and just for the record, I did not concede that. And in my response to Justice Kennedy, I was saying that if a court -- if a State is going to reject clinical consensus and in the current clinical standard, as in that example, then there would be a number of factors that the court would look at. And what I didn't get to was, and very importantly, is the Eighth Amendment principles and concerns that this Court outlined in Hall and in Atkins, and the absolute requirement to ensure that somebody who is intellectually disabled is not going to be executed. Third, one point about Chief Justice's initial question that I never quite got to about the question presented, in addition to the fact that, as we did discuss, its interwoven with the Briseno decision. In the cert papers themselves, in our cert petition and our reply, we repeatedly used the phrases like "nonclinical," "unscientific," "standards completely untethered to clinical consensus." And, indeed, the State, in its opposition to the cert petition, rested heavily on the Briseno factors.

There is a few pages of their opposition that are specifically directed to that.

So there -- that was very extensively discussed in the cert papers at the time.

Samuel A. Alito, Jr.:

Could you just clarify what you said about DSM-IV and DSM-5, because I had a different impression from your initial argument. So if we were to say today every State must adopt DSM-5, and then at some point in the future DSM-6 comes out, would it be your position that those States would all have to go back and reconsider what they're doing?

Clifford M. Sloan:

They -- they would have to consider them as part of the diagnostic framework. And, again, these new editions come out about once every 10 years.

But, yes, Your Honor, because those editions represent the scientific method at work, people using their best clinical and medical training to refine and to sharpen the tools, and with regard to intellectual disability, to identify the people --

Anthony M. Kennedy:

Is it your view that Briseno factors are all consistent with DSM-IV?

Clifford M. Sloan:

No, Your Honor.

They are completely inconsistent with clinical factors, and they have been from the day that they were announced.

But it is even more clear that they are inconsistent with clinical factors in light of the current clinical standards. And my friend also was suggesting that there is some question about -- based on Briseno -- may I finish this sentence, your Honor?

John G. Roberts, Jr.:

Sure.

Clifford M. Sloan:

-- based on Briseno about whether, in fact, there is a bright line exemption for the intellectually disabled.

He was suggesting that it's clear there is.

And I just briefly wanted to call the Court's attention to what the Court of Criminal Appeals has said relying on Briseno. In Ex parte Hearn, the Court said, and I quote: "This Court has expressly declined to establish a mental retardation bright line exemption from execution without significantly greater assistance from the Legislature." Briseno 135 Southwest 3d., et seq. And, similarly, in Ex parte Sosa, the Court said, "Answering questions about whether the defendant is mentally retarded for a particular clinical purpose is -- is instructive but not conclusive." Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel. The case is submitted.