Legal Case Summary

We're asking this Court to determine that the state findings of fact are objectively unreasonable. And given the totality of the record before this Court, there's no question that we have established by clear and convincing evidence that John Rasmussen is intellectually disabled. I'm using the phrase intellectually disabled, and that's now the accepted term. At times I go back and forth, I still haven't gotten it right. But this case tells a story of two people. A troubling story of John Reyes Mademoris from a childhood described as a boy who urinated himself at six, who continually put up the shoes on the wrong feet. Who at 14, is... I don't know, I don't know, somebody at six years old. But he still did it at 14. And if 14, his mother had to go to the bathroom with him to make sure he cleaned himself. She had to dress him. And then we have the troubling story of George Deng Cowsky, who the state says can't practice forensic... I have a troubled, troubled, troubled story of the victims in this case. That's the third part of it, your honor. But here we have the question of intellectual disability. And whether or not John Reyes Mademoris should be executed. And we have the state of Texas saying that the methodologies and opinions of Dr. Deng Cowsky are flawed. He's censured by the state of Texas. And yet the state of Texas relies on his opinions, his methodologies, and what he considers important criteria. I don't think he stepped back from that. He quote him, you see, you're irrelevant, but they still rely on his opinions. And what's important about his opinions, he says, in adaptive behavior analysis, you look to outside criteria, outside the scope of scientific testing. You can look to TYC records. You look at incarceration. And all of the methodology and accepted science says that that's not permissible. And so you have him, the court saying we're not going to consider his testimony, but as we pointed out in our brief, page after page, finding after finding, they're quoting Deng Cowsky as a basis for their opinions

. And what's important to note... I have a question. Can you use the TYC findings that were testify about, but just have the court use them on its own to say these show someone who's functioning and doing their own analysis, the court doing its own analysis in the adaptive functioning test analysis? Isn't that what it appears might have happened here? That's what they did. But why isn't that acceptable under the way that the Bersenio factors work in Texas? Well, Atkins and Berseno specifically say they look to the AMR, which is now the American Association on Intellectual and Disability Development. But at the time, Berseno was decided to the AMR, AMR, AAMR, and put no 25 in Berseno. Defines impairment and adaptive behavior are defined as significant limitations in an individual's effectiveness, in meeting the standards of maturation, learning, personal independence, or social responsibility, that are expected for his or her age level and cultural group as determined by clinical assessment, and usually standardize scales. So the definition that the court is adopting looks to clinical assessments by experts. Yeah, but didn't Atkins or I think Hall said that in addition to considering the opinions of medical community, the court can also consider it in its own independent judgment to consider whether a state's execution criteria and a master, cruel and unuseful punishment. But within the confines of the definition of intellectual disability, and the definition of intellectual disability that is now in Section 591.003, Section 15-A, requires that a person with intellectual disability means a person determined by a physician or psychologist that has some average intellectual functioning with deficit and adaptive behavior. So by definition, Berseno says you have to, and looking at determination of mental retardation or intellectual disability, you must look to the definition of what the doctors say, what psychologists say, you can't, you have to adjust or 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 aren't controlling, it's the clinical assessment, it's the assessment by experts. But is that true under our precedent? I mean, in Maldonado, for example, they used generalized adaptive functioning information and talked about anecdotal, I mean, not anecdotal, but information about the person when there wasn't expert testimony. And Maldonado is an interesting case, and it's the juxtaposition of matamourists, because Maldonado was contested in Kowski's methodology before the settlement by the board. And once the settlement by the board was reached, and Maldonado went back to the state courts and a new hearing without then Kowski was presented, he was granted relief. He was found to be intellectually disabled. Right, but that's about the state court, but I'm talking about our opinion before that happened. I've said that we were able to use the information from the observation of the person that was not based upon studies and tests. Well, that's part of it, it's all part of the assessment. But here, what the state court was doing was saying we're not going to consider the anecdotal stories of matamourists' sisters. We're not going to consider the diagnosis of mental retardation by the state when he was 14 or when he was 17. We're not going to consider those facts because we don't trust them. But yet, we're going to use things that Dinkowski says that are important for the consideration of adaptive behaviors. But are they saying they're using them because Dinkowski said they were important? Yes. But 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 the methodology without Dinkowski because I'm concerned whether the court can, on its own say this is the proper methodology, but it can the court on its own just say these are the records from TYC. This is the testimony from the case where he answered questions. And therefore, we say that he didn't establish that he didn't have these low adaptive functioning in at least two areas. You look at what the state is saying about Dr

. Smith, onset before age 18. A psychologist for juvenile probation conducts a psychological examination that is consistent with the norms in 1977. And says John Rasmussen is mentally retarded based upon his professional judgment. And he discusses characteristics of adaptive behavior that are in his report. And he talks about it being gullible. He's not being a leader. It's susceptible to influence by other people. He talks about all the characteristics that are consistent with the observations of his children, of his sisters. He saw John Maimoris as he 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 that he was mildly mentally retarded. But was he treated in the TYC like he was mentally retarded? He was diagnosed with TYC by another psychologist being my borderline mentally retarded by Dr. Norris Worthy. But was he treated as such? Because the findings here say he was not treated as such and he was treated like a... He was in general population given rules to follow. But he was still had the diagnosis consistent diagnosis before the age of 18. Like in hall the Supreme Court noted that school teachers labeled hall to be mentally retarded. And that was sufficient for up before onset before age 18. Here we have not schoolties with doctors clinicians saying he's mentally retarded. Anyone is disputing that if this was credited that this would be sufficient. I think what they're saying is that finder of fact did not credit Dr. Smith's report and gave reasons why not. But Dr. Smith's report if credited and Dr. Norris Worthy would be enough to help with the second and the third factor. And you already have the first factor. But the reason why he's not credited is comes from Dr

. Denkowski's analysis. He's the one that says... The fact that make up that definition based on testimony and other evidence. Why do you have to filter that through an expert for a court to decide that? As the Supreme Court said in hall, you look to the experts for clarification of what this means. You look to standardized scales testing to see how they fit in. Adaptive behavior is not a test of strengths rather is a test of limitations. And you look to see an analysis of those limitations on standardized scales. And once you find that standardized scales, you may have a person and a confinement that says he can stand in line, go to where he's supposed to be, but he can't do the same thing. He can't follow orders and instructions in society. And that's why you have to look to what's happening in society and defining intellectual disability. In fact, in the latest version of the manual written in 2011 or 12 by the American Association on Intellectual and Disability. The disability's development, they specifically say you aren't to look to how people act incarcerated as a means of determining what is adaptive behavior. While the industry or the doctors may believe that, that's not the standard that Texas has to adhere to, is it? The court of the European Court said this is a factor that couldn't be taken into consideration. It can't be the controlling factor when you have the testing that was done by two experts in this case. On the violin, you had significant deficit communication skills, social skills, and daily living skills. And as Dr. Oakland, as he interpreted the raw data on the abyss, he said that there were four areas, functional academics, health and safety, self-direction, and social skills, where on the raw data, those test scores show deficits in adaptive behavior that are consistent with the observation of his sisters and consistent with the observations of Dr. Smith. So I agree with you that there is that in the record, and there's been some discounting of some of the experts of how the test was done, but regardless of that, even if you're correct, that these other doctors' tests establish completely the case that you're trying to make, the trial court and then 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 and the court of court appeals finding is that if you take them out of the mix, take them out completely. The importance of TYC, as applies to John Ray's memoirs, would not have a assessment basis by a psychologist, because that's the key, because then Kowski, all the findings about TYC and the importance of that behavior come from then Kowski's opinions. It would have to just be the court looking at the records on its own and drawing these conclusions. Tell me whether or not we have a case that says that is okay. I agree with you that the court did look at it from the, they went through Dr. Dinkowski's testimony and had all the things that were summarized there, but could those things have been observed by the court on its own? And so where you would end up, was you would have experts to support your view of the case, but we would have all of this other evidence that a lay person and the court could rely upon under Texas law and the prescenio factors. Dr. Gilrod, I puzzled with that same question a lot. And the problem with that analysis is that if you, this is maybe a poor example, if you take mine comp by Ada Hitler and you take the cover off of what, and you have just the writers, what he said is just as atrocious without his name, but you put it because it goes from him

. That's an extreme example, but what you have is all the opinions and the conclusions that the court is taking is taking from Dinkowski. And their analysis and interpretation of facts are based upon the opinions of Dinkowski. And his methodology is so flawed that what we presented to this court when we filed our petition to stay the proceedings were records from numerous cases where Dinkowski testified. And we showed affidavits and records showing how his opinions and methodologies were so flawed. He has specifically mentioned as by the industry, by his peers, as saying he cannot be, his methodology is so flawed, he said, don't rely on him. By name. He's a PhD in psychology. He still make a living doing that. He's not chicken farming. He's not doing any mental retardation work anymore. Come here, see, you know, in the context of just litigation in general, let's look at this case. I see it one way you can look at it is the only issue we have is adaptive functioning. And so the petitioner puts on psychological testimony. And the court can accept that or reject it. I mean, there's no doubt the court has the same, make the same credibility call on experts in the yellow. So why can't a court say given the really uncontradicted record here and other evidence that I'm that I credit. This doesn't make sense to me. I think that given all this other 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 2006. We brought two statements from two other experts that said based upon these records. Yes, I am. You answered directly a little more than a little more direct one. Yes, to jelly. When you have that type of a judge can reject an expert. He can make it findings saying I reject that expert and I can because I find that expert not to be credible. But if the judge has to hear it and make determination, if you have one expert and competing evidence and the cross examination may be such that the expert is not credible. But if you have competing experts and one expert's methodology is set to be termined by the state licensing people or so flawed, he's censored. His opinions are so flawed that he's censored. His opinions can't be given any credence. I'm assuming that as I understand it, the trial court said, Dinkowski's testimonies are relevant

. So in effect, we're disregarding that and that was when the TCCA firm primarily on the basis of the trial court's opinion that it accepted that. So I'm just saying let's just disregard his testimony one way or the other. But why can't the court just disbelieve the petitioner's experts and say, I'm going to base my decision on this other evidence I see in the record. Then what are you left in the record? You have Dr. Rosen, Dr. Keano, Dr. Smith, Dr. Norseworthy, Dr. Oakland and Dr. Fletcher. That's left plus the sisters. And you have six psychologists saying John Rayus, Madam Morris is intellectually disabled. Not one, but six. And in the findings of fact, don't mention Fletcher or Clinton or Oakland. They totally disregard them. As we see in Judge Price's sending opinion, he considered them important. In the case where in Mel Donato, where the noble hearing was held, Bell Donato was found to be intellectually disabled. If the state could find one psychologist, one that would contradict Fletcher or Oakland, they would have brought him. I mean, do you have a case that says that the state must have an expert psychological opinion in order to impose the death penalty? I have Rosano. Rosano says there must be a clinical assessment. The statute says there has to be an assessment by a licensed psychologist or physician. And what statute says there? 591.003, Section 15-A. So you have a statute and the court of court appeals adoption of the standards of the American Association of Mental Retardation in Brzeino. It says all three prongs of the 10th. All three prongs. And one thing Judge Davis that you said was, it's not only about the behavior in this case, it's also on set before H.A. Team. And the only basis for rejection of Dr

. Smith's analysis in his opinion comes from Dinkowski. That's his opinion and that's what the district court adopted and that's what the state courts adopted. Was then Kowski's analysis of Dr. Smith's opinions. Oakland, Fletcher, and Rosano all say his opinions are valid. And in fact Fletcher and Oakland say that there was no scale testing done available for a doctor to analyze that to behavior before 1984. So they had to look at behavior and the behavior described by Smith is consistent with what his sisters say. So you take the fact findings from the court and you have to look at what else is there. Take out all the references to Dinkowski's testimony and what's left and then you say what is consistent? There are many records and the testimony at trial or all your left. And then you have TYC records where Dr. Oakland and Fletcher say those should not be considered. I bet they think the court can consider them if they want if it wants to. But there's then no assessment as required by law, as required by Rosano, as required by statute. And so by clearing convincing evidence you take it out of the equation, you still have six assessments of intellectual disability. Judge Mark Brown do. I realize that he accepted proposed finding. Was there a big hearing? I mean I know there was no evidentiary hearing and I know that there's some dispute of whether or not the affidavits that they were attached to consider them or not. But how would he be going about deciding that he was going to discount Dr. Smith? If he didn't hear the testimony, he wasn't Judge Bacon, the prior judge of the 180th. So 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 one were to say he didn't go about it very much and just bought the state's findings, if this court of criminal appeal said it was okay and that was a reasonable thing, then we can't look behind it anyway. But what is in the record that he, what he did? Nothing. We were called to court and he signed the, signed the findings in court. Did you each submit findings and he signed their findings? Yes, we did. Did he go through the findings and mark out ones that he didn't like? No. I agree with. If you look on the state, it says state's amended proposed findings of fact and conclusions of law. And that's what he signed. And I've been a district judge in Harris County, Texas and I've signed findings submitted. So I'm not casting aspersions on the court for signing submitted findings. Please don't misunderstand me

. But I'm just trying to figure out what was the process by which the judge signed findings when he wasn't the trial judge. I'm answering the question by the times up. Yeah. The findings, we submitted the affidavits and our objections to the prior proceedings. We presented proposed findings of fact and conclusions of law. State countered with its proposed findings and we were submitted and he signed them. And that was the process. Thank you. Okay. I do. You've saved a little time for a bottle, I believe. Mr. Geysel, we'll hear from you. I'm the greatest state of Texas. Thank you, Your Honor. May it please the court. I'd like to start with one of Judge Elrond's earlier questions to Mr. Schneider about the metholic methodology employed by the CCA. Because I think that gets at the heart of the case. Though Mr. Schneider frames this as an attack on the factual reasonfulness of the CCA's decision. In truth, it also involves legal challenges to that decision and to the legal reasonfulness of what the CCA determined. And once that legal framework is settled, it's going to inevitably follow that the decision is also factually reasonable. And so the legal challenges are that the decision was unscientific, that it failed to follow clinical methods, and that it relied on factors and evidence like Matamoros' behavior while he was at TYC and TDCJ and his criminal and maladaptive behavior. But this court has already rejected those arguments in cases like Chester and Lewis. And Maldonado itself. And so when the question is about what's the methodology here, the methodology is perennial. In perennial, put criminal and maladaptive behavior into the analysis. In perennial relied on behavior while institutionalized. And there is certainly no clearly established Supreme Court precedent that would prevent a state court 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 Bersenio when it writes, the ultimate issue of whether this person is, in fact, mentally retarded, is one for the finder of fact based upon all of the evidence and determinations of credibility. You know, one problem I have with the state's argument is that a lot of these findings are finding the fact. I mean repeatedly through the findings of fact that the trial does not sign, he put notes, then Kowskis testimony. After he said that it's irrelevant and in effect he's not going to disregard it. So don't we have to take the state court findings and the basis of those findings the way the court states them? I mean, can we just say, well, he didn't really rely on Kowskis? Yes. Can we say that when that's what he's relying on? We certainly just as an initial matter, we certainly do not dispute that the trial court here in his revised findings continue to cite Dr. Nekowski. But that point doesn't help Madam Morris for three reasons. First, it's the CCA's decision that matters, not the trial courts. Yes. But I mean, we're looking at, well, these are reasonable, unreasonable findings and seems to me we have to look at the basis for the finding. But the CCA stated that it was basing its decision on its own review of the record and not only on the trial courts written findings. And so I think that's actually a notable distinction between this case and Maldonado that actually makes our case even stronger here. So we have to be able to review the record and say that there's something in the record that would support the CCA's decision. I mean, it says it was basing its review. We have to be able to find something in the record that would support the decision made by both the CCA and the trial court. But what the determinations that the court made about the TYC records and the testimony at trial, there has to be something 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 at the heart of the question about what supports the decision and not the written opinion explaining that decision. And that's the punishment phase testimony from Mademois's trial, his trial counsels affidavit, the TYC and TDCJ records and the, sorry, the cell inventory testimony from death row officers. And some statements from doctors, Ros and Piano and Norseworthy, all of which support the state's view. And that, all that evidence is fair game without Dr. Denkowski's testimony because we don't need Dr. Denkowski to tell us that we can read TYC and TDCJ reports. The court do that on its own without having some methodological assistance. It says without being told that if you find this, it's indicative of, you know, of adaptive functioning or it's not. Without being told that adaptive behavioral deficits, excuse me, without being told that, how can you read the records and to glean what you're supposed to glean from them? The court can do that, Joe, Joe wrote, and we know that because that's what Prasenio puts as the methodology. And we know that because that's what happened in Maldonado

. Dr. Denkowski was the state's expert in Maldonado. And what the court did there, the analysis that this court conducted in Maldonado is exactly the analysis that we're asking this court to conduct here, which is... Maldonado didn't they disregard the test? They didn't disregard his total testimony, like here, as I recall. That was with the CCA's decision. It disregarded the opinion, but the findings there weren't structured to insulate themselves from Dr. Denkowski's criticism of other testimony, but when this court examined the record, this court disregarded Dr. Denkowski's testimony on the whole. And so Maldonado is one example. Another is in the United States versus Webster, where the defense placed and directed the results of a violent test. And this court noted that direct evidence, the deficit, repudied that violence. Both those cases, there was no expert testimony rejecting the finding of retardation. In Maldonado, there was only Dr. Denkowski. In 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 Chester and Lewis, which state that the methodology doesn't have to track clinical methods. It's a stronger case though than Maldonado because there are all these experts lining up on the other side. There was an expert in Maldonado as well. There are all these experts lining up on the other side. With respect to my friend and opposition, I think he's overstating the case that was made by the experts because there are substantial problems with all of their opinions that don't rest again on Dr. Denkowski's testimony. What is record supports the courts discounting or not considering Dr. Smith's report and Dr. Norris for these reports, both of which are crucial because they're before 18 and dealing with the deficit. I'll start with Dr. Norris' worthy because it's a shorter answer. Dr. Rosin herself stated that Dr

. Norris worthy didn't conduct any adaptive behavior assessment. That's at page 128 of volume 2 of the report's record. That's relying on Maldonado's own expert to show that there was no adaptive behavior assessment. That's of course the prong that's at issue here. We aren't disputing the first prong. And now as Dr. Smith, there are two main problems with his report. First, as a district court, the federal district court here explained, Dr. Smith's report didn't specifically address adaptive behaviors. Not even relevant what the federal district, I mean we often read and rely on federal district courts and they're wonderful. But how is that relevant, how the federal district court read it? That's not relevant to how I thought that was a very odd thing to have in the findings. It was almost because there was nothing that you could put in there except the federal district court. So there was this reaching out to the federal district court. So all of a sudden just kind of out of 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 full adaptive behavior assessment was conducted. She merely assumed that Dr. Smith analyzed adaptive behaviors, which she called informally, based on some of his discussion of Maldonado's personality traits. But she also admitted that personality testing isn't the same thing as an adaptive behavior assessment. So she really speculated that Dr. Smith took a new account adaptive behaviors because he reached an end result diagnosis. But she didn't talk to Dr. Smith. She has a no doctor Smith. All she has is that report. And so the state court, it can't be clearly erroneous for the state court not to credit Dr. Rosen's speculation about what Dr. Smith, what kind of analysis Dr. Smith performed. And more on Dr. Oakland said the same thing. Adaptive behavior never was assessed properly. And the second problem that 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 Madamoros socially inept simplistic and easily led. But there were other reports of Madamoros being manipulative and having good leadership potential in numerous reports of his good social skills. And there is also Madamoros' own testimony where he explained that he refused to do some of the more violent deeds that the Mexican Mafia encouraged 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. Rosen's part, even Dr. Rosen stated that she would accept Dr. Smith's report as only a bit of evidence in favor of Madamoros' position. And so if that report, even taking everything Dr. Rosen said to be true, can only be a bit of evidence that cannot be the basis for granting relief under Ed Puff. What do you do with your opposition's comment that the court of criminal appeals is not following its own versinio to factors based upon this in the statute that say that you should have a clinical assessment? On the first place, I'm not aware of versinio citing that specific part of the statute, but even so, nothing in versinio says that you need expert testimony. And indeed, that's why versinio says that quotation that I read earlier in my presentation where it says the decision is in the hands of the fact find. If it was going to make expert testimony conclusive somehow or make it so that fact finder had to defer would have said that. And so while we acknowledge again that the trial court cited Dr. Dinkowski, it's the CCA's decision that matters, this court has to evaluate the state court decision, not the opinion explaining that decision. You know in there like this ordinarily the fact finders role is to assess the competing opinions rather than it's not in the absence of any opinion that supports the conclusion it reaches to go off and find facts without an opinion to support its conclusion. I mean, it's odd to me that you'd have a finding like this of technical psychological finding of intellectual disability or retardation without an opinion to back it up. Your knowledge of different areas of the law vastly exceeds mine, so I won't pretend to say whether this is unusual or not, but I know this is also what happened in the Supreme Court's decision in Parker versus Matthews, which we cite in our case. Where they said that the jury could find its own its own sense of what happened contradicts an expert's opinion and then in the context of retardation. No, no, no, sorry, I was trying to. What about any context of retardation? I mean, you cited male is it. Did Mel do not have a having opinion that supported a finding of retardation. Only Dr. Dinkowski's

. Smith performed. And more on Dr. Oakland said the same thing. Adaptive behavior never was assessed properly. And the second problem that 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 Madamoros socially inept simplistic and easily led. But there were other reports of Madamoros being manipulative and having good leadership potential in numerous reports of his good social skills. And there is also Madamoros' own testimony where he explained that he refused to do some of the more violent deeds that the Mexican Mafia encouraged 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. Rosen's part, even Dr. Rosen stated that she would accept Dr. Smith's report as only a bit of evidence in favor of Madamoros' position. And so if that report, even taking everything Dr. Rosen said to be true, can only be a bit of evidence that cannot be the basis for granting relief under Ed Puff. What do you do with your opposition's comment that the court of criminal appeals is not following its own versinio to factors based upon this in the statute that say that you should have a clinical assessment? On the first place, I'm not aware of versinio citing that specific part of the statute, but even so, nothing in versinio says that you need expert testimony. And indeed, that's why versinio says that quotation that I read earlier in my presentation where it says the decision is in the hands of the fact find. If it was going to make expert testimony conclusive somehow or make it so that fact finder had to defer would have said that. And so while we acknowledge again that the trial court cited Dr. Dinkowski, it's the CCA's decision that matters, this court has to evaluate the state court decision, not the opinion explaining that decision. You know in there like this ordinarily the fact finders role is to assess the competing opinions rather than it's not in the absence of any opinion that supports the conclusion it reaches to go off and find facts without an opinion to support its conclusion. I mean, it's odd to me that you'd have a finding like this of technical psychological finding of intellectual disability or retardation without an opinion to back it up. Your knowledge of different areas of the law vastly exceeds mine, so I won't pretend to say whether this is unusual or not, but I know this is also what happened in the Supreme Court's decision in Parker versus Matthews, which we cite in our case. Where they said that the jury could find its own its own sense of what happened contradicts an expert's opinion and then in the context of retardation. No, no, no, sorry, I was trying to. What about any context of retardation? I mean, you cited male is it. Did Mel do not have a having opinion that supported a finding of retardation. Only Dr. Dinkowski's. And that was disregarded. And again, the court disregarded Dr. Dinkowski. And so that's why that analysis is not only mandated by Ed Puth, but also directs the route here because disregarding Dr. Dinkowski's testimony, the CCA'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 Bersenio can take into account. The court really take anything into account here. The court hadn't heard any of the witnesses. And are we, I mean, it may not matter at our level of review. But can we have any confidence that the court actually made these findings after agonizing over where the doctor Rosen was credible or not and all of that sort of thing? Do we have any confidence of that whatsoever? Yes, Judge R. R. R. R. R. because the state court is just as concerned as this court about getting to the right result. And I mean, he didn't hear Dr. Rosen. And he didn't hear any of these doctors at all. So, and then he relied on Dr. Dinkowski even though he said he wasn't. So, I'm a little bit concerned that there's maybe no there there. Did the district court actually go through and say, I've looked at these TYC records and on my own I can determine that the Bersenio factors are not met here. It didn't really seem like much was done. Maybe there was more done than what your opposing counsel says. Well, the CCA expressly stated that it did. And that's what we should look at. That's what you have to look at under Ed. And I recognize that we're asking a lot of the petitioner that it's a difficult standard to meet. But in the Supreme Court's reports, it's it if it seems like a difficult standard, that's because it was meant to be a difficult standard. So you have at least four six you either have four experts or six experts that what mouth some of them have problems in their testimony go against you

. And that was disregarded. And again, the court disregarded Dr. Dinkowski. And so that's why that analysis is not only mandated by Ed Puth, but also directs the route here because disregarding Dr. Dinkowski's testimony, the CCA'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 Bersenio can take into account. The court really take anything into account here. The court hadn't heard any of the witnesses. And are we, I mean, it may not matter at our level of review. But can we have any confidence that the court actually made these findings after agonizing over where the doctor Rosen was credible or not and all of that sort of thing? Do we have any confidence of that whatsoever? Yes, Judge R. R. R. R. R. because the state court is just as concerned as this court about getting to the right result. And I mean, he didn't hear Dr. Rosen. And he didn't hear any of these doctors at all. So, and then he relied on Dr. Dinkowski even though he said he wasn't. So, I'm a little bit concerned that there's maybe no there there. Did the district court actually go through and say, I've looked at these TYC records and on my own I can determine that the Bersenio factors are not met here. It didn't really seem like much was done. Maybe there was more done than what your opposing counsel says. Well, the CCA expressly stated that it did. And that's what we should look at. That's what you have to look at under Ed. And I recognize that we're asking a lot of the petitioner that it's a difficult standard to meet. But in the Supreme Court's reports, it's it if it seems like a difficult standard, that's because it was meant to be a difficult standard. So you have at least four six you either have four experts or six experts that what mouth some of them have problems in their testimony go against you. And then you've got on your side the records in the trial test money. Is that it? And the law. And the law. Yeah, the law that you deferred. We have the law and the reason the law is so important is because it lets us look at not just Matamores's trial testimony but reams of TYC and TDCJ reports from when he was 14 all through the hearing. And how do we go? What's the critical age that the petitioner must be mentally retarded before he gets relief? That's the third prong has to be before it has to be on set before the age of 18. Well, age of 18. What? All of this late testimony was not before the age of 18. It's both. It starts with. But what do we have? I know we've got Dr. Smith's testimony regarding his examination before age 18. And he we have some TYC records. Is there anything else before the age of 18? Before 18, I believe it's just the TYC reports and Dr. Smith's report. Dr. Norseworthy's report was 1980, I believe, but I'm forgetting when he was born. Well, isn't that what we have to look at as the evidence before the age of 18? Just for the third prong. And again, the burden would be on Matamores. So even if you could show, even if you could show that there was on set before the age of 18, he has to show that carried through after a tithing that's the second prong. But I do want to return to this issue of the experts because even if we're a pro-redector, just count up the number of experts on their side. We've already addressed Dr. Smith and Dr. Norseworthy. And again, Dr. Norseworthy, I don't think she counted all because she didn't conduct any adaptive behavior assessment. The same applies for Dr. Keanu and to the extent that Dr. Keanu's report is relevant, he actually supports the state's view, called Matamores well groomed, well-oriented, able to conduct a reasonable conversation. And that's exactly what is revealed by other reports

. And then you've got on your side the records in the trial test money. Is that it? And the law. And the law. Yeah, the law that you deferred. We have the law and the reason the law is so important is because it lets us look at not just Matamores's trial testimony but reams of TYC and TDCJ reports from when he was 14 all through the hearing. And how do we go? What's the critical age that the petitioner must be mentally retarded before he gets relief? That's the third prong has to be before it has to be on set before the age of 18. Well, age of 18. What? All of this late testimony was not before the age of 18. It's both. It starts with. But what do we have? I know we've got Dr. Smith's testimony regarding his examination before age 18. And he we have some TYC records. Is there anything else before the age of 18? Before 18, I believe it's just the TYC reports and Dr. Smith's report. Dr. Norseworthy's report was 1980, I believe, but I'm forgetting when he was born. Well, isn't that what we have to look at as the evidence before the age of 18? Just for the third prong. And again, the burden would be on Matamores. So even if you could show, even if you could show that there was on set before the age of 18, he has to show that carried through after a tithing that's the second prong. But I do want to return to this issue of the experts because even if we're a pro-redector, just count up the number of experts on their side. We've already addressed Dr. Smith and Dr. Norseworthy. And again, Dr. Norseworthy, I don't think she counted all because she didn't conduct any adaptive behavior assessment. The same applies for Dr. Keanu and to the extent that Dr. Keanu's report is relevant, he actually supports the state's view, called Matamores well groomed, well-oriented, able to conduct a reasonable conversation. And that's exactly what is revealed by other reports. And then as to Dr. Oakland and Dr. Fletcher, even if Matamores could overcome the colon versus pinholster problem, so that this court could rely on those affidavits, even though he didn't properly present them to the state courts, those affidavits don't help them because all they do is attack per se, you. How did he not properly present them? The criminal appeal said that they just recorded if it chose, could consider affidavits. They submitted affidavits so that the court of criminal appeals could, I mean, the district court could consider them. And at least the dissenters on the court of criminal appeals rely on those affidavits in their opinion. So how do we know that those weren't considered? The CCA gave the state trial court discretion to order affidavits. The court could act court or affidavits, or the CCA also said that the trial court can simply re-adopt its findings. Did the district court say no? I'm excluding your affidavits? No, but in the absence of either permission or some kind of procedural law that would allow it, as this court knows, the petitioners and litigants can't just throw evidence at the court and demand that it be heard. What do we do with the fact that at least some members of the CCA relied upon it in their opinion writing? I think that gets at the substance of the affidavits, which is about where I was going to get to anyhow, because all those affidavits do is attack the substance of Bersenia. They say that the CCA's decision wasn't scientific, and they specifically complain that the CCA relied on criminal maladaptive behavior and matamorosis behavior while at TYC and TDCJ. So if the court itself is relying on the affidavits to do its analysis, no. So pinhole, that's what we have the federal district court go do with hearing and considering evidence, or we did it on our own or something. With the CCA wants to consider affidavits, then we have to review the CCA, don't we? Yes, but there's no indication that the CCA majority, which is of course the basis of the decision, reviewed those affidavits. But if the majority say the dissent is wrong to cite these affidavits because they are not in the record before us. No, it doesn't, but there's no indication that they did consider them. But if the court thinks that it's a difficult decision on the colon versus pinholster issue, then I still don't think it matters because all those affidavits do is attack Bersenia. So... Can you call any pinholster ever been applied to documents at the dayvits that are before a court of criminal appeals as opposed to documents that are by the federal court on its own? Well, the key part isn't that it was before the court of criminal appeals, it wasn't properly before the state court. But does colon pinholster allow that type of analysis where if the court has it that we're going to look into whether that was proper or instead of whether it's in our court only? What case do you cite for this use of colon B pinholster? That's colon versus pinholster. No, but where it would be in this circumstance where they 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 on a 28J letter if it wishes. But the point of those affidavits was just to attack Bersenia. And so if the CCA wasn't going to revisit Bersenia, there was no point in discussing them. And so I think that might be why the CCA didn't discuss those affidavits. So in some, the best thing that Matamoros can say for his claim is that there is some evidence that supports his view. 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's conflicting evidence before the state court and the burden was on the petitioner before the state court and the burdens on the petitioner in this court not only to show that the state court's decision was wrong but objectively unreasonable and requires that relief be denied

. And then as to Dr. Oakland and Dr. Fletcher, even if Matamores could overcome the colon versus pinholster problem, so that this court could rely on those affidavits, even though he didn't properly present them to the state courts, those affidavits don't help them because all they do is attack per se, you. How did he not properly present them? The criminal appeal said that they just recorded if it chose, could consider affidavits. They submitted affidavits so that the court of criminal appeals could, I mean, the district court could consider them. And at least the dissenters on the court of criminal appeals rely on those affidavits in their opinion. So how do we know that those weren't considered? The CCA gave the state trial court discretion to order affidavits. The court could act court or affidavits, or the CCA also said that the trial court can simply re-adopt its findings. Did the district court say no? I'm excluding your affidavits? No, but in the absence of either permission or some kind of procedural law that would allow it, as this court knows, the petitioners and litigants can't just throw evidence at the court and demand that it be heard. What do we do with the fact that at least some members of the CCA relied upon it in their opinion writing? I think that gets at the substance of the affidavits, which is about where I was going to get to anyhow, because all those affidavits do is attack the substance of Bersenia. They say that the CCA's decision wasn't scientific, and they specifically complain that the CCA relied on criminal maladaptive behavior and matamorosis behavior while at TYC and TDCJ. So if the court itself is relying on the affidavits to do its analysis, no. So pinhole, that's what we have the federal district court go do with hearing and considering evidence, or we did it on our own or something. With the CCA wants to consider affidavits, then we have to review the CCA, don't we? Yes, but there's no indication that the CCA majority, which is of course the basis of the decision, reviewed those affidavits. But if the majority say the dissent is wrong to cite these affidavits because they are not in the record before us. No, it doesn't, but there's no indication that they did consider them. But if the court thinks that it's a difficult decision on the colon versus pinholster issue, then I still don't think it matters because all those affidavits do is attack Bersenia. So... Can you call any pinholster ever been applied to documents at the dayvits that are before a court of criminal appeals as opposed to documents that are by the federal court on its own? Well, the key part isn't that it was before the court of criminal appeals, it wasn't properly before the state court. But does colon pinholster allow that type of analysis where if the court has it that we're going to look into whether that was proper or instead of whether it's in our court only? What case do you cite for this use of colon B pinholster? That's colon versus pinholster. No, but where it would be in this circumstance where they 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 on a 28J letter if it wishes. But the point of those affidavits was just to attack Bersenia. And so if the CCA wasn't going to revisit Bersenia, there was no point in discussing them. And so I think that might be why the CCA didn't discuss those affidavits. So in some, the best thing that Matamoros can say for his claim is that there is some evidence that supports his view. 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's conflicting evidence before the state court and the burden was on the petitioner before the state court and the burdens on the petitioner in this court not only to show that the state court's decision was wrong but objectively unreasonable and requires that relief be denied. So we ask all the decisions from the other circuits that have affirmed a death penalty when there was no expert testimony about the state. I'm not aware of decisions in other circuits either way. I know again that there are decisions in this circuit like Maldonado. And so we do think that the analysis in Maldonado directs the proper outcome here. So what happens if the TYC records actually show some evidence of adaptive behavioral deficits such as immaturity, et cetera, that there are some, you can read the records to find that. Is that just a matter that we deferred of that court's reading of the records? Well, we do agree that there are some isolated statements in the TYC records. I think one of them was about Maldonado. But where there's conflicting evidence, it's in the hands of the fact finder. And that's what the best thing Maldonado could say for himself here. And we discussed in detail all the TYC reports, the TDCJ reports, Matamorra's own trial testimony and all of that points to the same place. And in that kind of situation, Ed Poe controls what can happen. Can you want to address that it seems that Paul is moving towards reliance on professionals with these difficult questions about whatever the proper term is for middle retardation that we're supposed to use now. Thank you, I apologize. Paul appears to be moving that way and the descent goes on at length that they don't believe it's appropriate for Paul to be moving that way. This is kind of cutting against the grain of Paul. That could be a fair characterization of Paul, but this court has already addressed how Paul impacts Prasenio. Well, that's I have a question about that. I thought that you might rely upon the May's case. But May's says using additional information, and this isn't additional, this is only. So I'm not sure that May's directly answers the question here. You see what I'm asking about how the language from May's that you cite and it says additional information can be used like the Prasenio factors, but that's additional. If you respond, excuse me. Non-diagnostic factors. I thought the idea behind that was addressing a Hall's decision, which was very focused on a strict intellectual cutoff. And so I thought May's was saying that Texas doesn't do that. It makes this a more holistic subjective assessment. But second response is that the point of May's is that it holds that hall in no way affects Prasenio. And third, even if May's doesn't address the question here, there's still no clearly established Supreme Court precedent at the time that the CCA rendered its decision that would prevent a state court from relying on the factors that we've discussed. And so we're going to have a discussion about the fact that length now and from relying on direct evidence. And we know that because there's nothing in addkins and we know that because this court has repeatedly used those factors to deny relief

. So we ask all the decisions from the other circuits that have affirmed a death penalty when there was no expert testimony about the state. I'm not aware of decisions in other circuits either way. I know again that there are decisions in this circuit like Maldonado. And so we do think that the analysis in Maldonado directs the proper outcome here. So what happens if the TYC records actually show some evidence of adaptive behavioral deficits such as immaturity, et cetera, that there are some, you can read the records to find that. Is that just a matter that we deferred of that court's reading of the records? Well, we do agree that there are some isolated statements in the TYC records. I think one of them was about Maldonado. But where there's conflicting evidence, it's in the hands of the fact finder. And that's what the best thing Maldonado could say for himself here. And we discussed in detail all the TYC reports, the TDCJ reports, Matamorra's own trial testimony and all of that points to the same place. And in that kind of situation, Ed Poe controls what can happen. Can you want to address that it seems that Paul is moving towards reliance on professionals with these difficult questions about whatever the proper term is for middle retardation that we're supposed to use now. Thank you, I apologize. Paul appears to be moving that way and the descent goes on at length that they don't believe it's appropriate for Paul to be moving that way. This is kind of cutting against the grain of Paul. That could be a fair characterization of Paul, but this court has already addressed how Paul impacts Prasenio. Well, that's I have a question about that. I thought that you might rely upon the May's case. But May's says using additional information, and this isn't additional, this is only. So I'm not sure that May's directly answers the question here. You see what I'm asking about how the language from May's that you cite and it says additional information can be used like the Prasenio factors, but that's additional. If you respond, excuse me. Non-diagnostic factors. I thought the idea behind that was addressing a Hall's decision, which was very focused on a strict intellectual cutoff. And so I thought May's was saying that Texas doesn't do that. It makes this a more holistic subjective assessment. But second response is that the point of May's is that it holds that hall in no way affects Prasenio. And third, even if May's doesn't address the question here, there's still no clearly established Supreme Court precedent at the time that the CCA rendered its decision that would prevent a state court from relying on the factors that we've discussed. And so we're going to have a discussion about the fact that length now and from relying on direct evidence. And we know that because there's nothing in addkins and we know that because this court has repeatedly used those factors to deny relief. And I'm sure this court is following, of course, clearly established Supreme Court precedent. Would it be unusual, though, even in Texas to execute someone that has below 70s for all of their tests, including the one that Dr. Dinkowski took before it was ratcheted up using his other methodology? I'm not sure about the state's history, unfortunately, but mental retardication or intellectual disability involves, of course, three prongs. And we're focused here on the second and third prongs. And that's... Did you take a fix, Judge L. R. D's question, even in Texas? I'm a... Perhaps I'm tongue in cheek and I don't certainly mean to be smurged. Texas, the great state of Texas. And I'm very fond of it. Texas follows the law. Oh my god, that's great. Texas follows the law. And as I said before, the CCA is just as concerned with this court as getting to a right decision, just that it's opinion writing practices are influenced by other factors. And so when it says that it based its decision on the record, respectfully submit that this court should take that at face value, especially in light of Edpa and the analysis that Edpa commands. And I've gotten myself in trouble now. I want to make sure when I say I'm very fond of the state of Texas, I don't mean the state of Texas is a litigant in this lawsuit. And I believe that the appellants are where the petitioners are aware of it. And I don't mean it in that sort of way at all. I only mean it in the abstract place that... So, thank you. We're going to like.

. And I'm sure this court is following, of course, clearly established Supreme Court precedent. Would it be unusual, though, even in Texas to execute someone that has below 70s for all of their tests, including the one that Dr. Dinkowski took before it was ratcheted up using his other methodology? I'm not sure about the state's history, unfortunately, but mental retardication or intellectual disability involves, of course, three prongs. And we're focused here on the second and third prongs. And that's... Did you take a fix, Judge L. R. D's question, even in Texas? I'm a... Perhaps I'm tongue in cheek and I don't certainly mean to be smurged. Texas, the great state of Texas. And I'm very fond of it. Texas follows the law. Oh my god, that's great. Texas follows the law. And as I said before, the CCA is just as concerned with this court as getting to a right decision, just that it's opinion writing practices are influenced by other factors. And so when it says that it based its decision on the record, respectfully submit that this court should take that at face value, especially in light of Edpa and the analysis that Edpa commands. And I've gotten myself in trouble now. I want to make sure when I say I'm very fond of the state of Texas, I don't mean the state of Texas is a litigant in this lawsuit. And I believe that the appellants are where the petitioners are aware of it. And I don't mean it in that sort of way at all. I only mean it in the abstract place that... So, thank you. We're going to like... The court has no further questions. We ask that a much. We'll sort your argument. Thank you. I... I miss your vote, so... Yes. We'll hear from you. Give us your take on Meldena at some point. Sir. Give us your take on Meldena and why it doesn't control this case. Yes, sir. Certainly. I have one point on rebuttal. And that is the fact that the Texas legislature hasn't spoken specifically as to the substantive and procedural process for dealing with Atkins claims. And so what we were left with is the CCA's opinion in proscenio. 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 diagnosis by a doctor or a licensed clinician. And so, Judge Elrod, when you spoke earlier about having concerns about the methodology that's employed and 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 make it... You have to make it fact finder's decision. Correct, Your Honor

.. The court has no further questions. We ask that a much. We'll sort your argument. Thank you. I... I miss your vote, so... Yes. We'll hear from you. Give us your take on Meldena at some point. Sir. Give us your take on Meldena and why it doesn't control this case. Yes, sir. Certainly. I have one point on rebuttal. And that is the fact that the Texas legislature hasn't spoken specifically as to the substantive and procedural process for dealing with Atkins claims. And so what we were left with is the CCA's opinion in proscenio. 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 diagnosis by a doctor or a licensed clinician. And so, Judge Elrod, when you spoke earlier about having concerns about the methodology that's employed and 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 make it... You have to make it fact finder's decision. Correct, Your Honor. Correct. But to inform the fact finder, to help them digest this information and understand what weight to assign to certain characteristics. And in this case, if we remove Dr. Dinkowski's findings of fact in all of his characterizations of those historical facts, what's left? Well, I'm just repeating what other judges here have said, do we have to rely on experts to tell us how common sense applies to a case? No, Your Honor. I don't believe any courts should have to rely on any facts. 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 into 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 tool has to be applied administered in a very particularized way. Why can't a judge just hear that testimony without a expert hear the evidence and make up his own mind about it? Well, with all due respect, Judge Jolly, I would think that when it comes to an issue like intellectual disability and specifically whether or not... Well, I mean intellectual disabilities, you know, why get so technical and refined? Because experts, you know, like lawyers, historically been accused, they make it so... they obviously should have a lawyer to figure out what the obfuscation is and create. I think we call that job security. I hear what you're saying, Your Honor. I know if somebody is, you know, is 18 years old, doesn't take a bath, doesn't do anything, he's got a low IQ, can't take care of himself. I mean, I know the guy is intellectually disabled. I mean, I haven't got to have an expert tell me that. It seems to me. Well, Your Honor, in this case, in the case that is before the court, we are working under a Texas scheme, under Prasenio, and under our statutes, specifically the Health and Safety Code. And if there are experts that have performed tests that have subjected those tests to peer review by folks that are smarter than them, 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 folks that have spilt the last 40 years studying this subject. I said judge informed. If one tells you this, they'll tell you that, both of them have credentials and tell you the opposite things. Well, Judge, I'll tell you what, that if we had an expert, a contributing expert, we wouldn't be here today. But we don't have competing experts. We wouldn't have competing experts. We've got six all saying that Mr

. Correct. But to inform the fact finder, to help them digest this information and understand what weight to assign to certain characteristics. And in this case, if we remove Dr. Dinkowski's findings of fact in all of his characterizations of those historical facts, what's left? Well, I'm just repeating what other judges here have said, do we have to rely on experts to tell us how common sense applies to a case? No, Your Honor. I don't believe any courts should have to rely on any facts. 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 into 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 tool has to be applied administered in a very particularized way. Why can't a judge just hear that testimony without a expert hear the evidence and make up his own mind about it? Well, with all due respect, Judge Jolly, I would think that when it comes to an issue like intellectual disability and specifically whether or not... Well, I mean intellectual disabilities, you know, why get so technical and refined? Because experts, you know, like lawyers, historically been accused, they make it so... they obviously should have a lawyer to figure out what the obfuscation is and create. I think we call that job security. I hear what you're saying, Your Honor. I know if somebody is, you know, is 18 years old, doesn't take a bath, doesn't do anything, he's got a low IQ, can't take care of himself. I mean, I know the guy is intellectually disabled. I mean, I haven't got to have an expert tell me that. It seems to me. Well, Your Honor, in this case, in the case that is before the court, we are working under a Texas scheme, under Prasenio, and under our statutes, specifically the Health and Safety Code. And if there are experts that have performed tests that have subjected those tests to peer review by folks that are smarter than them, 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 folks that have spilt the last 40 years studying this subject. I said judge informed. If one tells you this, they'll tell you that, both of them have credentials and tell you the opposite things. Well, Judge, I'll tell you what, that if we had an expert, a contributing expert, we wouldn't be here today. But we don't have competing experts. We wouldn't have competing experts. We've got six all saying that Mr. Bada Morris is intellectually disabled. I know your man. I understand the chase. But there's no one on the other side. If there were, were the trial court free to ignore these six and believe this one? Perhaps. Well, you know, there's no doubt certain issues require expert testimony. Yes, sir. And the question is whether this one does. The adaptive function, whether that requires an expert. And did the mountain otter, was there any expert testimony that helped in that case? I believe that there was, Your Honor, that we were dealing with it with a circumstance of competing experts. Well, holding council says no, said all they had was, was, uh, Denkowski there and he was disregarding that. Is that your understanding of the court? The direct election of the case, Your Honor, is that there were, there were independent sources for the historical facts that the court, the fact finder wasn't relying specifically on Denkowski's characterization of those historical facts. And in that particular instance, I mean, you and I can both look at this podium and say it's a brown podium. That's an objective truth. But when you take someone like Denkowski and the podium's not here. And you're left with just what his presentation to the fact finder is. Then the fact finder stuck with that presentation. Well, that's more than that now. I mean, they had, you know, the fact that he's able to concoct the story and defend it as a trial and the testimony and what he was incarcerated. They did have that. Well, Your Honor, but, but the significance of those phenomena is, is colored through Denkowski's lenses. He has waited those, those items more heavily than what every other professional has told us they deserve to be waited. And it is that reason that he's no longer allowed to even practice forensic psychology on Atkins claims in Texas. I see that my time has concluded my. Thank you very much. You've been helpful. Thank you for your full count. You have a case in hand.

We're asking this Court to determine that the state findings of fact are objectively unreasonable. And given the totality of the record before this Court, there's no question that we have established by clear and convincing evidence that John Rasmussen is intellectually disabled. I'm using the phrase intellectually disabled, and that's now the accepted term. At times I go back and forth, I still haven't gotten it right. But this case tells a story of two people. A troubling story of John Reyes Mademoris from a childhood described as a boy who urinated himself at six, who continually put up the shoes on the wrong feet. Who at 14, is... I don't know, I don't know, somebody at six years old. But he still did it at 14. And if 14, his mother had to go to the bathroom with him to make sure he cleaned himself. She had to dress him. And then we have the troubling story of George Deng Cowsky, who the state says can't practice forensic... I have a troubled, troubled, troubled story of the victims in this case. That's the third part of it, your honor. But here we have the question of intellectual disability. And whether or not John Reyes Mademoris should be executed. And we have the state of Texas saying that the methodologies and opinions of Dr. Deng Cowsky are flawed. He's censured by the state of Texas. And yet the state of Texas relies on his opinions, his methodologies, and what he considers important criteria. I don't think he stepped back from that. He quote him, you see, you're irrelevant, but they still rely on his opinions. And what's important about his opinions, he says, in adaptive behavior analysis, you look to outside criteria, outside the scope of scientific testing. You can look to TYC records. You look at incarceration. And all of the methodology and accepted science says that that's not permissible. And so you have him, the court saying we're not going to consider his testimony, but as we pointed out in our brief, page after page, finding after finding, they're quoting Deng Cowsky as a basis for their opinions. And what's important to note... I have a question. Can you use the TYC findings that were testify about, but just have the court use them on its own to say these show someone who's functioning and doing their own analysis, the court doing its own analysis in the adaptive functioning test analysis? Isn't that what it appears might have happened here? That's what they did. But why isn't that acceptable under the way that the Bersenio factors work in Texas? Well, Atkins and Berseno specifically say they look to the AMR, which is now the American Association on Intellectual and Disability Development. But at the time, Berseno was decided to the AMR, AMR, AAMR, and put no 25 in Berseno. Defines impairment and adaptive behavior are defined as significant limitations in an individual's effectiveness, in meeting the standards of maturation, learning, personal independence, or social responsibility, that are expected for his or her age level and cultural group as determined by clinical assessment, and usually standardize scales. So the definition that the court is adopting looks to clinical assessments by experts. Yeah, but didn't Atkins or I think Hall said that in addition to considering the opinions of medical community, the court can also consider it in its own independent judgment to consider whether a state's execution criteria and a master, cruel and unuseful punishment. But within the confines of the definition of intellectual disability, and the definition of intellectual disability that is now in Section 591.003, Section 15-A, requires that a person with intellectual disability means a person determined by a physician or psychologist that has some average intellectual functioning with deficit and adaptive behavior. So by definition, Berseno says you have to, and looking at determination of mental retardation or intellectual disability, you must look to the definition of what the doctors say, what psychologists say, you can't, you have to adjust or 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 aren't controlling, it's the clinical assessment, it's the assessment by experts. But is that true under our precedent? I mean, in Maldonado, for example, they used generalized adaptive functioning information and talked about anecdotal, I mean, not anecdotal, but information about the person when there wasn't expert testimony. And Maldonado is an interesting case, and it's the juxtaposition of matamourists, because Maldonado was contested in Kowski's methodology before the settlement by the board. And once the settlement by the board was reached, and Maldonado went back to the state courts and a new hearing without then Kowski was presented, he was granted relief. He was found to be intellectually disabled. Right, but that's about the state court, but I'm talking about our opinion before that happened. I've said that we were able to use the information from the observation of the person that was not based upon studies and tests. Well, that's part of it, it's all part of the assessment. But here, what the state court was doing was saying we're not going to consider the anecdotal stories of matamourists' sisters. We're not going to consider the diagnosis of mental retardation by the state when he was 14 or when he was 17. We're not going to consider those facts because we don't trust them. But yet, we're going to use things that Dinkowski says that are important for the consideration of adaptive behaviors. But are they saying they're using them because Dinkowski said they were important? Yes. But 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 the methodology without Dinkowski because I'm concerned whether the court can, on its own say this is the proper methodology, but it can the court on its own just say these are the records from TYC. This is the testimony from the case where he answered questions. And therefore, we say that he didn't establish that he didn't have these low adaptive functioning in at least two areas. You look at what the state is saying about Dr. Smith, onset before age 18. A psychologist for juvenile probation conducts a psychological examination that is consistent with the norms in 1977. And says John Rasmussen is mentally retarded based upon his professional judgment. And he discusses characteristics of adaptive behavior that are in his report. And he talks about it being gullible. He's not being a leader. It's susceptible to influence by other people. He talks about all the characteristics that are consistent with the observations of his children, of his sisters. He saw John Maimoris as he 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 that he was mildly mentally retarded. But was he treated in the TYC like he was mentally retarded? He was diagnosed with TYC by another psychologist being my borderline mentally retarded by Dr. Norris Worthy. But was he treated as such? Because the findings here say he was not treated as such and he was treated like a... He was in general population given rules to follow. But he was still had the diagnosis consistent diagnosis before the age of 18. Like in hall the Supreme Court noted that school teachers labeled hall to be mentally retarded. And that was sufficient for up before onset before age 18. Here we have not schoolties with doctors clinicians saying he's mentally retarded. Anyone is disputing that if this was credited that this would be sufficient. I think what they're saying is that finder of fact did not credit Dr. Smith's report and gave reasons why not. But Dr. Smith's report if credited and Dr. Norris Worthy would be enough to help with the second and the third factor. And you already have the first factor. But the reason why he's not credited is comes from Dr. Denkowski's analysis. He's the one that says... The fact that make up that definition based on testimony and other evidence. Why do you have to filter that through an expert for a court to decide that? As the Supreme Court said in hall, you look to the experts for clarification of what this means. You look to standardized scales testing to see how they fit in. Adaptive behavior is not a test of strengths rather is a test of limitations. And you look to see an analysis of those limitations on standardized scales. And once you find that standardized scales, you may have a person and a confinement that says he can stand in line, go to where he's supposed to be, but he can't do the same thing. He can't follow orders and instructions in society. And that's why you have to look to what's happening in society and defining intellectual disability. In fact, in the latest version of the manual written in 2011 or 12 by the American Association on Intellectual and Disability. The disability's development, they specifically say you aren't to look to how people act incarcerated as a means of determining what is adaptive behavior. While the industry or the doctors may believe that, that's not the standard that Texas has to adhere to, is it? The court of the European Court said this is a factor that couldn't be taken into consideration. It can't be the controlling factor when you have the testing that was done by two experts in this case. On the violin, you had significant deficit communication skills, social skills, and daily living skills. And as Dr. Oakland, as he interpreted the raw data on the abyss, he said that there were four areas, functional academics, health and safety, self-direction, and social skills, where on the raw data, those test scores show deficits in adaptive behavior that are consistent with the observation of his sisters and consistent with the observations of Dr. Smith. So I agree with you that there is that in the record, and there's been some discounting of some of the experts of how the test was done, but regardless of that, even if you're correct, that these other doctors' tests establish completely the case that you're trying to make, the trial court and then 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 and the court of court appeals finding is that if you take them out of the mix, take them out completely. The importance of TYC, as applies to John Ray's memoirs, would not have a assessment basis by a psychologist, because that's the key, because then Kowski, all the findings about TYC and the importance of that behavior come from then Kowski's opinions. It would have to just be the court looking at the records on its own and drawing these conclusions. Tell me whether or not we have a case that says that is okay. I agree with you that the court did look at it from the, they went through Dr. Dinkowski's testimony and had all the things that were summarized there, but could those things have been observed by the court on its own? And so where you would end up, was you would have experts to support your view of the case, but we would have all of this other evidence that a lay person and the court could rely upon under Texas law and the prescenio factors. Dr. Gilrod, I puzzled with that same question a lot. And the problem with that analysis is that if you, this is maybe a poor example, if you take mine comp by Ada Hitler and you take the cover off of what, and you have just the writers, what he said is just as atrocious without his name, but you put it because it goes from him. That's an extreme example, but what you have is all the opinions and the conclusions that the court is taking is taking from Dinkowski. And their analysis and interpretation of facts are based upon the opinions of Dinkowski. And his methodology is so flawed that what we presented to this court when we filed our petition to stay the proceedings were records from numerous cases where Dinkowski testified. And we showed affidavits and records showing how his opinions and methodologies were so flawed. He has specifically mentioned as by the industry, by his peers, as saying he cannot be, his methodology is so flawed, he said, don't rely on him. By name. He's a PhD in psychology. He still make a living doing that. He's not chicken farming. He's not doing any mental retardation work anymore. Come here, see, you know, in the context of just litigation in general, let's look at this case. I see it one way you can look at it is the only issue we have is adaptive functioning. And so the petitioner puts on psychological testimony. And the court can accept that or reject it. I mean, there's no doubt the court has the same, make the same credibility call on experts in the yellow. So why can't a court say given the really uncontradicted record here and other evidence that I'm that I credit. This doesn't make sense to me. I think that given all this other 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 2006. We brought two statements from two other experts that said based upon these records. Yes, I am. You answered directly a little more than a little more direct one. Yes, to jelly. When you have that type of a judge can reject an expert. He can make it findings saying I reject that expert and I can because I find that expert not to be credible. But if the judge has to hear it and make determination, if you have one expert and competing evidence and the cross examination may be such that the expert is not credible. But if you have competing experts and one expert's methodology is set to be termined by the state licensing people or so flawed, he's censored. His opinions are so flawed that he's censored. His opinions can't be given any credence. I'm assuming that as I understand it, the trial court said, Dinkowski's testimonies are relevant. So in effect, we're disregarding that and that was when the TCCA firm primarily on the basis of the trial court's opinion that it accepted that. So I'm just saying let's just disregard his testimony one way or the other. But why can't the court just disbelieve the petitioner's experts and say, I'm going to base my decision on this other evidence I see in the record. Then what are you left in the record? You have Dr. Rosen, Dr. Keano, Dr. Smith, Dr. Norseworthy, Dr. Oakland and Dr. Fletcher. That's left plus the sisters. And you have six psychologists saying John Rayus, Madam Morris is intellectually disabled. Not one, but six. And in the findings of fact, don't mention Fletcher or Clinton or Oakland. They totally disregard them. As we see in Judge Price's sending opinion, he considered them important. In the case where in Mel Donato, where the noble hearing was held, Bell Donato was found to be intellectually disabled. If the state could find one psychologist, one that would contradict Fletcher or Oakland, they would have brought him. I mean, do you have a case that says that the state must have an expert psychological opinion in order to impose the death penalty? I have Rosano. Rosano says there must be a clinical assessment. The statute says there has to be an assessment by a licensed psychologist or physician. And what statute says there? 591.003, Section 15-A. So you have a statute and the court of court appeals adoption of the standards of the American Association of Mental Retardation in Brzeino. It says all three prongs of the 10th. All three prongs. And one thing Judge Davis that you said was, it's not only about the behavior in this case, it's also on set before H.A. Team. And the only basis for rejection of Dr. Smith's analysis in his opinion comes from Dinkowski. That's his opinion and that's what the district court adopted and that's what the state courts adopted. Was then Kowski's analysis of Dr. Smith's opinions. Oakland, Fletcher, and Rosano all say his opinions are valid. And in fact Fletcher and Oakland say that there was no scale testing done available for a doctor to analyze that to behavior before 1984. So they had to look at behavior and the behavior described by Smith is consistent with what his sisters say. So you take the fact findings from the court and you have to look at what else is there. Take out all the references to Dinkowski's testimony and what's left and then you say what is consistent? There are many records and the testimony at trial or all your left. And then you have TYC records where Dr. Oakland and Fletcher say those should not be considered. I bet they think the court can consider them if they want if it wants to. But there's then no assessment as required by law, as required by Rosano, as required by statute. And so by clearing convincing evidence you take it out of the equation, you still have six assessments of intellectual disability. Judge Mark Brown do. I realize that he accepted proposed finding. Was there a big hearing? I mean I know there was no evidentiary hearing and I know that there's some dispute of whether or not the affidavits that they were attached to consider them or not. But how would he be going about deciding that he was going to discount Dr. Smith? If he didn't hear the testimony, he wasn't Judge Bacon, the prior judge of the 180th. So 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 one were to say he didn't go about it very much and just bought the state's findings, if this court of criminal appeal said it was okay and that was a reasonable thing, then we can't look behind it anyway. But what is in the record that he, what he did? Nothing. We were called to court and he signed the, signed the findings in court. Did you each submit findings and he signed their findings? Yes, we did. Did he go through the findings and mark out ones that he didn't like? No. I agree with. If you look on the state, it says state's amended proposed findings of fact and conclusions of law. And that's what he signed. And I've been a district judge in Harris County, Texas and I've signed findings submitted. So I'm not casting aspersions on the court for signing submitted findings. Please don't misunderstand me. But I'm just trying to figure out what was the process by which the judge signed findings when he wasn't the trial judge. I'm answering the question by the times up. Yeah. The findings, we submitted the affidavits and our objections to the prior proceedings. We presented proposed findings of fact and conclusions of law. State countered with its proposed findings and we were submitted and he signed them. And that was the process. Thank you. Okay. I do. You've saved a little time for a bottle, I believe. Mr. Geysel, we'll hear from you. I'm the greatest state of Texas. Thank you, Your Honor. May it please the court. I'd like to start with one of Judge Elrond's earlier questions to Mr. Schneider about the metholic methodology employed by the CCA. Because I think that gets at the heart of the case. Though Mr. Schneider frames this as an attack on the factual reasonfulness of the CCA's decision. In truth, it also involves legal challenges to that decision and to the legal reasonfulness of what the CCA determined. And once that legal framework is settled, it's going to inevitably follow that the decision is also factually reasonable. And so the legal challenges are that the decision was unscientific, that it failed to follow clinical methods, and that it relied on factors and evidence like Matamoros' behavior while he was at TYC and TDCJ and his criminal and maladaptive behavior. But this court has already rejected those arguments in cases like Chester and Lewis. And Maldonado itself. And so when the question is about what's the methodology here, the methodology is perennial. In perennial, put criminal and maladaptive behavior into the analysis. In perennial relied on behavior while institutionalized. And there is certainly no clearly established Supreme Court precedent that would prevent a state court 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 Bersenio when it writes, the ultimate issue of whether this person is, in fact, mentally retarded, is one for the finder of fact based upon all of the evidence and determinations of credibility. You know, one problem I have with the state's argument is that a lot of these findings are finding the fact. I mean repeatedly through the findings of fact that the trial does not sign, he put notes, then Kowskis testimony. After he said that it's irrelevant and in effect he's not going to disregard it. So don't we have to take the state court findings and the basis of those findings the way the court states them? I mean, can we just say, well, he didn't really rely on Kowskis? Yes. Can we say that when that's what he's relying on? We certainly just as an initial matter, we certainly do not dispute that the trial court here in his revised findings continue to cite Dr. Nekowski. But that point doesn't help Madam Morris for three reasons. First, it's the CCA's decision that matters, not the trial courts. Yes. But I mean, we're looking at, well, these are reasonable, unreasonable findings and seems to me we have to look at the basis for the finding. But the CCA stated that it was basing its decision on its own review of the record and not only on the trial courts written findings. And so I think that's actually a notable distinction between this case and Maldonado that actually makes our case even stronger here. So we have to be able to review the record and say that there's something in the record that would support the CCA's decision. I mean, it says it was basing its review. We have to be able to find something in the record that would support the decision made by both the CCA and the trial court. But what the determinations that the court made about the TYC records and the testimony at trial, there has to be something 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 at the heart of the question about what supports the decision and not the written opinion explaining that decision. And that's the punishment phase testimony from Mademois's trial, his trial counsels affidavit, the TYC and TDCJ records and the, sorry, the cell inventory testimony from death row officers. And some statements from doctors, Ros and Piano and Norseworthy, all of which support the state's view. And that, all that evidence is fair game without Dr. Denkowski's testimony because we don't need Dr. Denkowski to tell us that we can read TYC and TDCJ reports. The court do that on its own without having some methodological assistance. It says without being told that if you find this, it's indicative of, you know, of adaptive functioning or it's not. Without being told that adaptive behavioral deficits, excuse me, without being told that, how can you read the records and to glean what you're supposed to glean from them? The court can do that, Joe, Joe wrote, and we know that because that's what Prasenio puts as the methodology. And we know that because that's what happened in Maldonado. Dr. Denkowski was the state's expert in Maldonado. And what the court did there, the analysis that this court conducted in Maldonado is exactly the analysis that we're asking this court to conduct here, which is... Maldonado didn't they disregard the test? They didn't disregard his total testimony, like here, as I recall. That was with the CCA's decision. It disregarded the opinion, but the findings there weren't structured to insulate themselves from Dr. Denkowski's criticism of other testimony, but when this court examined the record, this court disregarded Dr. Denkowski's testimony on the whole. And so Maldonado is one example. Another is in the United States versus Webster, where the defense placed and directed the results of a violent test. And this court noted that direct evidence, the deficit, repudied that violence. Both those cases, there was no expert testimony rejecting the finding of retardation. In Maldonado, there was only Dr. Denkowski. In 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 Chester and Lewis, which state that the methodology doesn't have to track clinical methods. It's a stronger case though than Maldonado because there are all these experts lining up on the other side. There was an expert in Maldonado as well. There are all these experts lining up on the other side. With respect to my friend and opposition, I think he's overstating the case that was made by the experts because there are substantial problems with all of their opinions that don't rest again on Dr. Denkowski's testimony. What is record supports the courts discounting or not considering Dr. Smith's report and Dr. Norris for these reports, both of which are crucial because they're before 18 and dealing with the deficit. I'll start with Dr. Norris' worthy because it's a shorter answer. Dr. Rosin herself stated that Dr. Norris worthy didn't conduct any adaptive behavior assessment. That's at page 128 of volume 2 of the report's record. That's relying on Maldonado's own expert to show that there was no adaptive behavior assessment. That's of course the prong that's at issue here. We aren't disputing the first prong. And now as Dr. Smith, there are two main problems with his report. First, as a district court, the federal district court here explained, Dr. Smith's report didn't specifically address adaptive behaviors. Not even relevant what the federal district, I mean we often read and rely on federal district courts and they're wonderful. But how is that relevant, how the federal district court read it? That's not relevant to how I thought that was a very odd thing to have in the findings. It was almost because there was nothing that you could put in there except the federal district court. So there was this reaching out to the federal district court. So all of a sudden just kind of out of 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 full adaptive behavior assessment was conducted. She merely assumed that Dr. Smith analyzed adaptive behaviors, which she called informally, based on some of his discussion of Maldonado's personality traits. But she also admitted that personality testing isn't the same thing as an adaptive behavior assessment. So she really speculated that Dr. Smith took a new account adaptive behaviors because he reached an end result diagnosis. But she didn't talk to Dr. Smith. She has a no doctor Smith. All she has is that report. And so the state court, it can't be clearly erroneous for the state court not to credit Dr. Rosen's speculation about what Dr. Smith, what kind of analysis Dr. Smith performed. And more on Dr. Oakland said the same thing. Adaptive behavior never was assessed properly. And the second problem that 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 Madamoros socially inept simplistic and easily led. But there were other reports of Madamoros being manipulative and having good leadership potential in numerous reports of his good social skills. And there is also Madamoros' own testimony where he explained that he refused to do some of the more violent deeds that the Mexican Mafia encouraged 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. Rosen's part, even Dr. Rosen stated that she would accept Dr. Smith's report as only a bit of evidence in favor of Madamoros' position. And so if that report, even taking everything Dr. Rosen said to be true, can only be a bit of evidence that cannot be the basis for granting relief under Ed Puff. What do you do with your opposition's comment that the court of criminal appeals is not following its own versinio to factors based upon this in the statute that say that you should have a clinical assessment? On the first place, I'm not aware of versinio citing that specific part of the statute, but even so, nothing in versinio says that you need expert testimony. And indeed, that's why versinio says that quotation that I read earlier in my presentation where it says the decision is in the hands of the fact find. If it was going to make expert testimony conclusive somehow or make it so that fact finder had to defer would have said that. And so while we acknowledge again that the trial court cited Dr. Dinkowski, it's the CCA's decision that matters, this court has to evaluate the state court decision, not the opinion explaining that decision. You know in there like this ordinarily the fact finders role is to assess the competing opinions rather than it's not in the absence of any opinion that supports the conclusion it reaches to go off and find facts without an opinion to support its conclusion. I mean, it's odd to me that you'd have a finding like this of technical psychological finding of intellectual disability or retardation without an opinion to back it up. Your knowledge of different areas of the law vastly exceeds mine, so I won't pretend to say whether this is unusual or not, but I know this is also what happened in the Supreme Court's decision in Parker versus Matthews, which we cite in our case. Where they said that the jury could find its own its own sense of what happened contradicts an expert's opinion and then in the context of retardation. No, no, no, sorry, I was trying to. What about any context of retardation? I mean, you cited male is it. Did Mel do not have a having opinion that supported a finding of retardation. Only Dr. Dinkowski's. And that was disregarded. And again, the court disregarded Dr. Dinkowski. And so that's why that analysis is not only mandated by Ed Puth, but also directs the route here because disregarding Dr. Dinkowski's testimony, the CCA'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 Bersenio can take into account. The court really take anything into account here. The court hadn't heard any of the witnesses. And are we, I mean, it may not matter at our level of review. But can we have any confidence that the court actually made these findings after agonizing over where the doctor Rosen was credible or not and all of that sort of thing? Do we have any confidence of that whatsoever? Yes, Judge R. R. R. R. R. because the state court is just as concerned as this court about getting to the right result. And I mean, he didn't hear Dr. Rosen. And he didn't hear any of these doctors at all. So, and then he relied on Dr. Dinkowski even though he said he wasn't. So, I'm a little bit concerned that there's maybe no there there. Did the district court actually go through and say, I've looked at these TYC records and on my own I can determine that the Bersenio factors are not met here. It didn't really seem like much was done. Maybe there was more done than what your opposing counsel says. Well, the CCA expressly stated that it did. And that's what we should look at. That's what you have to look at under Ed. And I recognize that we're asking a lot of the petitioner that it's a difficult standard to meet. But in the Supreme Court's reports, it's it if it seems like a difficult standard, that's because it was meant to be a difficult standard. So you have at least four six you either have four experts or six experts that what mouth some of them have problems in their testimony go against you. And then you've got on your side the records in the trial test money. Is that it? And the law. And the law. Yeah, the law that you deferred. We have the law and the reason the law is so important is because it lets us look at not just Matamores's trial testimony but reams of TYC and TDCJ reports from when he was 14 all through the hearing. And how do we go? What's the critical age that the petitioner must be mentally retarded before he gets relief? That's the third prong has to be before it has to be on set before the age of 18. Well, age of 18. What? All of this late testimony was not before the age of 18. It's both. It starts with. But what do we have? I know we've got Dr. Smith's testimony regarding his examination before age 18. And he we have some TYC records. Is there anything else before the age of 18? Before 18, I believe it's just the TYC reports and Dr. Smith's report. Dr. Norseworthy's report was 1980, I believe, but I'm forgetting when he was born. Well, isn't that what we have to look at as the evidence before the age of 18? Just for the third prong. And again, the burden would be on Matamores. So even if you could show, even if you could show that there was on set before the age of 18, he has to show that carried through after a tithing that's the second prong. But I do want to return to this issue of the experts because even if we're a pro-redector, just count up the number of experts on their side. We've already addressed Dr. Smith and Dr. Norseworthy. And again, Dr. Norseworthy, I don't think she counted all because she didn't conduct any adaptive behavior assessment. The same applies for Dr. Keanu and to the extent that Dr. Keanu's report is relevant, he actually supports the state's view, called Matamores well groomed, well-oriented, able to conduct a reasonable conversation. And that's exactly what is revealed by other reports. And then as to Dr. Oakland and Dr. Fletcher, even if Matamores could overcome the colon versus pinholster problem, so that this court could rely on those affidavits, even though he didn't properly present them to the state courts, those affidavits don't help them because all they do is attack per se, you. How did he not properly present them? The criminal appeal said that they just recorded if it chose, could consider affidavits. They submitted affidavits so that the court of criminal appeals could, I mean, the district court could consider them. And at least the dissenters on the court of criminal appeals rely on those affidavits in their opinion. So how do we know that those weren't considered? The CCA gave the state trial court discretion to order affidavits. The court could act court or affidavits, or the CCA also said that the trial court can simply re-adopt its findings. Did the district court say no? I'm excluding your affidavits? No, but in the absence of either permission or some kind of procedural law that would allow it, as this court knows, the petitioners and litigants can't just throw evidence at the court and demand that it be heard. What do we do with the fact that at least some members of the CCA relied upon it in their opinion writing? I think that gets at the substance of the affidavits, which is about where I was going to get to anyhow, because all those affidavits do is attack the substance of Bersenia. They say that the CCA's decision wasn't scientific, and they specifically complain that the CCA relied on criminal maladaptive behavior and matamorosis behavior while at TYC and TDCJ. So if the court itself is relying on the affidavits to do its analysis, no. So pinhole, that's what we have the federal district court go do with hearing and considering evidence, or we did it on our own or something. With the CCA wants to consider affidavits, then we have to review the CCA, don't we? Yes, but there's no indication that the CCA majority, which is of course the basis of the decision, reviewed those affidavits. But if the majority say the dissent is wrong to cite these affidavits because they are not in the record before us. No, it doesn't, but there's no indication that they did consider them. But if the court thinks that it's a difficult decision on the colon versus pinholster issue, then I still don't think it matters because all those affidavits do is attack Bersenia. So... Can you call any pinholster ever been applied to documents at the dayvits that are before a court of criminal appeals as opposed to documents that are by the federal court on its own? Well, the key part isn't that it was before the court of criminal appeals, it wasn't properly before the state court. But does colon pinholster allow that type of analysis where if the court has it that we're going to look into whether that was proper or instead of whether it's in our court only? What case do you cite for this use of colon B pinholster? That's colon versus pinholster. No, but where it would be in this circumstance where they 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 on a 28J letter if it wishes. But the point of those affidavits was just to attack Bersenia. And so if the CCA wasn't going to revisit Bersenia, there was no point in discussing them. And so I think that might be why the CCA didn't discuss those affidavits. So in some, the best thing that Matamoros can say for his claim is that there is some evidence that supports his view. 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's conflicting evidence before the state court and the burden was on the petitioner before the state court and the burdens on the petitioner in this court not only to show that the state court's decision was wrong but objectively unreasonable and requires that relief be denied. So we ask all the decisions from the other circuits that have affirmed a death penalty when there was no expert testimony about the state. I'm not aware of decisions in other circuits either way. I know again that there are decisions in this circuit like Maldonado. And so we do think that the analysis in Maldonado directs the proper outcome here. So what happens if the TYC records actually show some evidence of adaptive behavioral deficits such as immaturity, et cetera, that there are some, you can read the records to find that. Is that just a matter that we deferred of that court's reading of the records? Well, we do agree that there are some isolated statements in the TYC records. I think one of them was about Maldonado. But where there's conflicting evidence, it's in the hands of the fact finder. And that's what the best thing Maldonado could say for himself here. And we discussed in detail all the TYC reports, the TDCJ reports, Matamorra's own trial testimony and all of that points to the same place. And in that kind of situation, Ed Poe controls what can happen. Can you want to address that it seems that Paul is moving towards reliance on professionals with these difficult questions about whatever the proper term is for middle retardation that we're supposed to use now. Thank you, I apologize. Paul appears to be moving that way and the descent goes on at length that they don't believe it's appropriate for Paul to be moving that way. This is kind of cutting against the grain of Paul. That could be a fair characterization of Paul, but this court has already addressed how Paul impacts Prasenio. Well, that's I have a question about that. I thought that you might rely upon the May's case. But May's says using additional information, and this isn't additional, this is only. So I'm not sure that May's directly answers the question here. You see what I'm asking about how the language from May's that you cite and it says additional information can be used like the Prasenio factors, but that's additional. If you respond, excuse me. Non-diagnostic factors. I thought the idea behind that was addressing a Hall's decision, which was very focused on a strict intellectual cutoff. And so I thought May's was saying that Texas doesn't do that. It makes this a more holistic subjective assessment. But second response is that the point of May's is that it holds that hall in no way affects Prasenio. And third, even if May's doesn't address the question here, there's still no clearly established Supreme Court precedent at the time that the CCA rendered its decision that would prevent a state court from relying on the factors that we've discussed. And so we're going to have a discussion about the fact that length now and from relying on direct evidence. And we know that because there's nothing in addkins and we know that because this court has repeatedly used those factors to deny relief. And I'm sure this court is following, of course, clearly established Supreme Court precedent. Would it be unusual, though, even in Texas to execute someone that has below 70s for all of their tests, including the one that Dr. Dinkowski took before it was ratcheted up using his other methodology? I'm not sure about the state's history, unfortunately, but mental retardication or intellectual disability involves, of course, three prongs. And we're focused here on the second and third prongs. And that's... Did you take a fix, Judge L. R. D's question, even in Texas? I'm a... Perhaps I'm tongue in cheek and I don't certainly mean to be smurged. Texas, the great state of Texas. And I'm very fond of it. Texas follows the law. Oh my god, that's great. Texas follows the law. And as I said before, the CCA is just as concerned with this court as getting to a right decision, just that it's opinion writing practices are influenced by other factors. And so when it says that it based its decision on the record, respectfully submit that this court should take that at face value, especially in light of Edpa and the analysis that Edpa commands. And I've gotten myself in trouble now. I want to make sure when I say I'm very fond of the state of Texas, I don't mean the state of Texas is a litigant in this lawsuit. And I believe that the appellants are where the petitioners are aware of it. And I don't mean it in that sort of way at all. I only mean it in the abstract place that... So, thank you. We're going to like... The court has no further questions. We ask that a much. We'll sort your argument. Thank you. I... I miss your vote, so... Yes. We'll hear from you. Give us your take on Meldena at some point. Sir. Give us your take on Meldena and why it doesn't control this case. Yes, sir. Certainly. I have one point on rebuttal. And that is the fact that the Texas legislature hasn't spoken specifically as to the substantive and procedural process for dealing with Atkins claims. And so what we were left with is the CCA's opinion in proscenio. 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 diagnosis by a doctor or a licensed clinician. And so, Judge Elrod, when you spoke earlier about having concerns about the methodology that's employed and 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 make it... You have to make it fact finder's decision. Correct, Your Honor. Correct. But to inform the fact finder, to help them digest this information and understand what weight to assign to certain characteristics. And in this case, if we remove Dr. Dinkowski's findings of fact in all of his characterizations of those historical facts, what's left? Well, I'm just repeating what other judges here have said, do we have to rely on experts to tell us how common sense applies to a case? No, Your Honor. I don't believe any courts should have to rely on any facts. 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 into 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 tool has to be applied administered in a very particularized way. Why can't a judge just hear that testimony without a expert hear the evidence and make up his own mind about it? Well, with all due respect, Judge Jolly, I would think that when it comes to an issue like intellectual disability and specifically whether or not... Well, I mean intellectual disabilities, you know, why get so technical and refined? Because experts, you know, like lawyers, historically been accused, they make it so... they obviously should have a lawyer to figure out what the obfuscation is and create. I think we call that job security. I hear what you're saying, Your Honor. I know if somebody is, you know, is 18 years old, doesn't take a bath, doesn't do anything, he's got a low IQ, can't take care of himself. I mean, I know the guy is intellectually disabled. I mean, I haven't got to have an expert tell me that. It seems to me. Well, Your Honor, in this case, in the case that is before the court, we are working under a Texas scheme, under Prasenio, and under our statutes, specifically the Health and Safety Code. And if there are experts that have performed tests that have subjected those tests to peer review by folks that are smarter than them, 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 folks that have spilt the last 40 years studying this subject. I said judge informed. If one tells you this, they'll tell you that, both of them have credentials and tell you the opposite things. Well, Judge, I'll tell you what, that if we had an expert, a contributing expert, we wouldn't be here today. But we don't have competing experts. We wouldn't have competing experts. We've got six all saying that Mr. Bada Morris is intellectually disabled. I know your man. I understand the chase. But there's no one on the other side. If there were, were the trial court free to ignore these six and believe this one? Perhaps. Well, you know, there's no doubt certain issues require expert testimony. Yes, sir. And the question is whether this one does. The adaptive function, whether that requires an expert. And did the mountain otter, was there any expert testimony that helped in that case? I believe that there was, Your Honor, that we were dealing with it with a circumstance of competing experts. Well, holding council says no, said all they had was, was, uh, Denkowski there and he was disregarding that. Is that your understanding of the court? The direct election of the case, Your Honor, is that there were, there were independent sources for the historical facts that the court, the fact finder wasn't relying specifically on Denkowski's characterization of those historical facts. And in that particular instance, I mean, you and I can both look at this podium and say it's a brown podium. That's an objective truth. But when you take someone like Denkowski and the podium's not here. And you're left with just what his presentation to the fact finder is. Then the fact finder stuck with that presentation. Well, that's more than that now. I mean, they had, you know, the fact that he's able to concoct the story and defend it as a trial and the testimony and what he was incarcerated. They did have that. Well, Your Honor, but, but the significance of those phenomena is, is colored through Denkowski's lenses. He has waited those, those items more heavily than what every other professional has told us they deserve to be waited. And it is that reason that he's no longer allowed to even practice forensic psychology on Atkins claims in Texas. I see that my time has concluded my. Thank you very much. You've been helpful. Thank you for your full count. You have a case in hand