Reply Brief — Vernon Madison, Petitioner v. Alabama

No. 17-7505

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------VERNON MADISON,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

Mobile County Circuit Court

-----------------------------------------------------------------REPLY BRIEF OF PETITIONER

-----------------------------------------------------------------BRYAN A. STEVENSON

Counsel of Record

ANGELA L. SETZER

RANDALL S. SUSSKIND

EQUAL JUSTICE INITIATIVE

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

bstevenson@eji.org

asetzer@eji.org

rsusskind@eji.org

Counsel for Petitioner

August 30, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

SUMMARY OF ARGUMENT ..............................

1

ARGUMENT ........................................................

4

I.

II.

III.

Vernon Madison Suffers from a Verifiable

and Confirmed Case of Vascular Dementia, and the Resulting Cognitive and Physical Disabilities Render Him Unable to

Understand or Appreciate the Circumstances of His Pending Execution .............

4

The Inclusion of Individuals Suffering

from Vascular Dementia in the Class of

People for Whom Execution Would Constitute a Cruel and Unusual Punishment

Does Not Alter the Analysis Established

in Ford and Panetti or Otherwise Expand

the Category of Individuals for Whom Execution Is Inappropriate ............................

9

A Finding that Mr. Madison Is Incompetent Does Not Implicate the State’s Ability

to Punish but Rather Enforces the Community’s Understanding of Human Dignity in the Context of Punishment ............ 13

CONCLUSION..................................................... 18

ii

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 536 U.S. 304 (2002)................. 15, 16

Ford v. Wainwright, 752 F.2d 526 (11th Cir.

1985), rev’d, 477 U.S. 399 (1986) .............................15

Ford v. Wainwright, 477 U.S. 399 (1986) ............ passim

Madison v. Allen, No. 09-00009-KD-B, 2013 WL

1776073 (S.D. Ala. Apr. 25, 2013) .............................2

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d

1173 (11th Cir. 2017) ....................................... 2, 8, 12

Madison v. State, 718 So. 2d 90 (Ala. Crim. App.

1997) ..........................................................................3

Panetti v. Quarterman, 551 U.S. 930 (2007) ....... passim

Robinson v. California, 370 U.S. 660 (1962) ..............13

Roper v. Simmons, 543 U.S. 551 (2005) ................ 15, 16

Singleton v. Norris, 319 F.3d 1018 (8th Cir.

2003) ........................................................................16

Stewart v. Martinez-Villareal, 523 U.S. 637

(1998) .......................................................................15

Trop v. Dulles, 356 U.S. 86 (1958)...............................13

Washington v. Glucksberg, 521 U.S. 702 (1997) ...........4

iii

TABLE OF AUTHORITIES – Continued

Page

MISCELLANEOUS

Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders (5th ed. 2013) ...... 11, 12

Equal Justice Initiative, The Death Penalty in

Alabama: Judge Override (2011), http://eji.org/sites/

default/files/death-penalty-in-alabama-judgeoverride.pdf ...............................................................3

1

SUMMARY OF ARGUMENT

Experts agree that Vernon Madison now sits on Alabama’s death row unable to fully orient to time and

place. Brain trauma as a result of multiple strokes has

led to decreasing cognitive capabilities and reduced his

intellectual functioning to the borderline range. It is

undisputed that he suffers from varying degrees of disorientation and confusion about the world around him.

He frequently urinates on himself and complains that

no one will let him out to use the bathroom when there

is a toilet inches away from his bed. His memory is so

impaired that he can no longer recite the alphabet or

do a simple math problem. He is unable to remember

that his mother and brother are deceased and cannot

identify the prison warden or officers who have been

guarding him for years. Multiple strokes and brain injuries have left Mr. Madison nearly blind and he can

no longer read or write; he often has difficulty speaking

and his tangential and repetitive speech makes him

difficult to understand. By every available measure,

Mr. Madison’s diagnosed dementia has compromised

his cognitive functioning and rendered him unable to

rationally understand his current circumstances and

pending execution.

In the lower courts, Respondent argued that Ford

relief was only available to prisoners who suffered

from “delusions” or “psychosis” as a result of a mental

illness, and that because Mr. Madison’s claim was

based on a diagnosis of dementia, he “failed to

implicate Ford v. Wainwright, 477 U.S. 399 (1986), or

Panetti [v. Quarterman, 551 U.S. 930 (2007),] in this

2

proceeding.” (Doc. 8-2 at 140-41); see also Madison v.

Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173, 1188 (11th

Cir. 2017) (“Rather, the State suggests that only a prisoner suffering from gross delusions can show incompetency under Panetti.”). Respondent now appears to

concede that dementia can be the basis for relief under

Ford although that is not what the State argued to either the state or federal courts. Respondent’s concession is significant because there is no dispute that Mr.

Madison suffers from severe vascular dementia with

acute features that leaves him unable to rationally understand the circumstances of his pending execution

and the reasons for his confinement.

Vernon Madison suffers from a permanent and

irreversible neurological condition. Without substantially addressing the facts of Mr. Madison’s vascular

dementia, Respondent nevertheless argues that protecting Mr. Madison from a cruel execution will circumscribe the State’s sovereign power to “impose a just

and constitutional punishment on a violent criminal

who murdered one of the State’s own law enforcement

officers.” Resp’t Br. 1. But neither the facts surrounding Mr. Madison’s conviction and sentence of death for

the shooting death of Officer Julius Schulte nor the

propriety of a death sentence when the victim is a law

enforcement officer is at issue in this case.1

1

It is worth reemphasizing that in this case, the community

– as represented by a jury of “seven (7) blacks and seven (7)

whites,” Resp’t Br. 5 (citing Madison v. Allen, No. 09-00009-KD-B,

2013 WL 1776073, at *2 (S.D. Ala. Apr. 25, 2013)) – rejected the

death penalty as the appropriate punishment and instead

3

The question of whether the Eighth Amendment

prohibits the execution of the incompetent has already

been resolved by this Court in Ford v. Wainwright, 477

U.S. 399, 410 (1986), and reaffirmed in Panetti v. Quarterman, 551 U.S. 930, 934 (2007). In those cases, the

Court recognized that the Eighth Amendment places a

substantive limit on a State’s ability to execute a category of individuals defined by their mental disability.

See id. (“[T]he Eighth Amendment prohibits a State

from carrying out a sentence of death upon a prisoner

who is insane.” (quoting Ford, 477 U.S. at 409-10)). The

Court’s Eighth Amendment jurisprudence thus already embodies the way a just society treats people

who are severely disabled by their mental status. This

determination, however, is completely unrelated to the

identity or status of the victim, the heinousness of the

crime, or the propriety of the original sentence.

Moreover, the Eighth Amendment prohibition on

the execution of incompetent prisoners does not negate

the State’s ability to punish but rather enforces the

community’s understanding of human dignity in the

context of punishment. Nothing about the State’s

decision to charge, convict and severely punish criminal offenders, even seek the death penalty for those

sentenced Mr. Madison to life without the possibility of parole.

Judge McRae, the trial judge, rejected this life sentence, and, as

he has done on five other occasions with five other life-sentenced

defendants, see Equal Justice Initiative, The Death Penalty in Alabama: Judge Override 16 (2011), http://eji.org/sites/default/files/

death-penalty-in-alabama-judge-override.pdf, he sentenced Mr.

Madison to death. Madison v. State, 718 So. 2d 90, 94 (Ala. Crim.

App. 1997).

4

convicted of killing a law enforcement officer, is implicated by this case. Rather, the question for the Court

in this case is whether Mr. Madison, who suffers from

the severe physical and cognitive deficits that reflect

the progressive decline endemic to vascular dementia,

should be shielded from an extreme punishment in the

same way that our legal system shields such vulnerable individuals in other contexts. Cf. Washington v.

Glucksberg, 521 U.S. 702, 734-35 (1997) (State of Washington’s ban on assisted suicide reasonably ensures

against risk of abuse of “vulnerable persons, including

severely disabled neonates and elderly persons suffering from dementia”).

For the reasons identified in Mr. Madison’s principal brief as well as those stated below, this Court

should reverse the lower court judgment.

------------------------------------------------------------------

ARGUMENT

I.

Vernon Madison Suffers from a Verifiable

and Confirmed Case of Vascular Dementia,

and the Resulting Cognitive and Physical

Disabilities Render Him Unable to Understand or Appreciate the Circumstances of

His Pending Execution.

Vernon Madison suffers from a verifiable and

confirmed case of vascular dementia. In its brief, Respondent essentially ignores the import of this diagnosis and instead focuses primarily on the assertion

that a prisoner’s inability to recall events in one’s life,

5

including the circumstances surrounding the crime for

which he is to be executed, is insufficient to establish

incompetency under the dictates of Ford and Panetti.

See, e.g., Resp’t Br. 2, 13, 15-16, 20-21. Supporting

amici similarly focus almost exclusively on memory,

arguing that the ability to recall details of the crime is

not generally required for culpability purposes, Texas

et al. Amicus Br. 5-7, and is even “less relevant in the

execution context,” id. at 8. But Mr. Madison is not

challenging his culpability or even arguing that, standing alone, a simple memory deficit would necessarily

place him under the protection of Panetti. Rather, it is

the verifiable and uncontested diagnosis of vascular

dementia, and the attendant and inevitable progressive decline that characterizes this permanent neurological disorder, that disables Mr. Madison.

As detailed in Mr. Madison’s opening brief and the

record aptly demonstrates, in this case, vascular dementia has manifested such that, as measured by

every identifiable metric – physical, intellectual, and

psychological – Mr. Madison’s connection with the outside world has been severed so as to prevent him from

understanding or appreciating the circumstances of

his current execution, thus placing him in the category

of prisoners for whom execution would constitute a

“uniquely cruel penalty.” Ford, 477 U.S. at 421 (Powell,

J., concurring).

In addition to being legally blind, Mr. Madison’s

incontinence, inability to walk unassisted, and dysarthric or slurred speech are all symptoms characteristic of

late-stage vascular dementia. Am. Psychological Ass’n

6

& Am. Psychiatric Ass’n Amicus Br. 9-10 [hereinafter

“APA Br.”]. He suffers from additional, chronic medical

conditions – small vessel ischemia, occipital angioma –

that continue to exacerbate his physical and cognitive

decline. See Pet. Br. 8.

Likewise, Mr. Madison’s intellectual deficits are

apparent and undisputed, based largely on Dr. Goff ’s

evaluation and neuropsychological testing: he now

functions in the borderline range of intelligence with

an IQ score of 72 and suffers from severe memory deficits, most clearly demonstrated in a Working Memory

Score of 58, placing him “within the borderline to intellectually disabled range.” (Doc. 8-3 at 17, 20 (expert report of Dr. Goff ); Doc. 8-1 at 97-98 (4/14/16 hearing).)

While important markers of the extent to which the

cerebral trauma he has experienced have negatively

impacted his cognitive abilities, these scores do not adequately capture the specific ways in which this disease has devastated Mr. Madison’s abilities to make

connections in his day-to-day interactions.

At a minimum, these deficits impair Mr. Madison’s

ability to interact with the world around him and he

routinely exhibits profound confusion and disorientation. Drs. Goff and Kirkland noted that he was only

partially oriented to time and place (Doc. 8-1 at 74-75

(hearing); Doc. 8-3 at 8 (expert report of Dr. Kirkland)),

noting that he did not know the season, date or day of

the week (Doc. 8-3 at 8 (Kirkland report); see also Doc.

8-3 at 16 (Goff report) (not oriented to day of month)).

He had “some difficulty understanding” the reasons for

Dr. Goff ’s evaluation (Doc. 8-3 at 15 (Goff report)), and

7

became confused when he reached the letter “G” while

attempting to recite the alphabet (Doc. 8-3 at 16 (Goff

report); see also Doc. 8-1 at 100 (hearing)). He is “unable to rephrase simple sentences” or “perform simple

mathematical calculations” (Doc. 8-3 at 18 (Goff report)), could not “recall any out of 25 elements from a

brief story vignette,” and his “[l]ogical memory for verbal material was very poor” (Doc. 8-3 at 16 (Goff report)). When he was unable to recall the details or

recount an incident he “confabulated some things,”

meaning that he “made stuff up to fill the gaps, which

people with memory problems, that’s what they do.”

(Doc. 8-1 at 100 (hearing).)

This profound disorientation and confusion manifest in other ways as well: struggling to retain basic

information, repeatedly asking the same question,

even when it had been answered, and increasingly focusing on a limited number of familiar topics. (Doc. 81 at 22, ¶ 13 (Affidavit of Ashley Edwards); Doc. 8-1 at

25, ¶ 8 (Affidavit of Jennae Swiergula).) He seemed unable to recognize his attorney over the phone or in person (Doc. 8-1 at 25, ¶ 6 (Swiergula affidavit)), and

“could not remember his attorneys’ names” during Dr.

Goff ’s evaluation (Doc. 8-3 at 18 (Goff report)). He has

also exhibited signs of confusion while communicating

with his attorney, at one point asking a question about

an in-person meeting he believed occurred the previous day, when in fact, his attorney had not seen him for

several months. (Doc. 8-1 at 25, ¶ 7 (Swiergula affidavit).) During a legal visit in February 2016, he indicated confusion about the status of his case, stating

8

that he plans to move to Florida or live abroad after he

is released from prison. Madison, 851 F.3d at 1179; (see

also Doc. 8-1 at 24-25, ¶¶ 4, 9 (Swiergula affidavit)).

He “could not recall people and events that he had

previously identified as being extremely significant to

him.” (Doc. 8-1 at 24, ¶ 5 (Swiergula affidavit).) He was

unable to “retrieve his [father’s] name” when speaking

with Dr. Goff. (Doc. 8-3 at 15 (Goff report).) Notably, after returning from the hospital after his stroke, he repeatedly asked that his mother be notified, and had to

repeatedly be told that he could not see her because

she had passed away several years earlier. (Doc. 8-1 at

24, ¶ 5 (Swiergula affidavit); see also Doc. 8-1 at 101

(hearing); Doc. 8-3 at 19 (Goff report).) Similarly, he

asked to see his brother, who had also died previously.

(Doc. 8-1 at 101 (hearing); Doc. 8-3 at 19 (Goff report).)

This disorientation extends to confusion about

his surroundings and hygiene-related tasks. See APA

Br. 9. Mr. Madison reported frequently urinating on

himself because “no one will let me out to use the

bathroom,” despite the fact that he has a toilet in his

cell. Madison, 851 F.3d at 1179; (Doc. 8-1 at 22, ¶ 12

(Edwards affidavit)). Additionally, Mr. Madison has

presented as increasingly and uncharacteristically disheveled, wearing a visibly soiled uniform, covered in

stains and hair shavings, and on his bare feet, wearing

plastic shower sandals that did not match. (Doc.

8-1 at 21-22, ¶ 11 (Edwards affidavit).) In subsequent

visits, his hygiene continued to deteriorate. (Doc. 8-1 at

25, ¶ 10 (Swiergula affidavit).)

9

Mr. Madison’s diagnosed vascular dementia, and

the physical and cognitive deficits referenced here and

in Mr. Madison’s opening brief make clear that Respondent’s attempt to pigeon hole this case as one that

is only about Mr. Madison’s “inability to recall his

crime” or “amnesia” simply fails to account for the undisputed evidence in this case. See, e.g., Resp’t Br. 22,

30. By every available metric, Mr. Madison has and will

continue to experience profound and progressive deterioration in his cognitive and physical functioning that

fundamentally alters his ability to understand and

connect the events in his life. See APA Br. 10 (“These

deficits interfere with Mr. Madison’s ability to form a

rational understanding of his punishment and its relationship to his crime of conviction.”).

II.

The Inclusion of Individuals Suffering from

Vascular Dementia in the Class of People

for Whom Execution Would Constitute a

Cruel and Unusual Punishment Does Not

Alter the Analysis Established in Ford and

Panetti or Otherwise Expand the Category

of Individuals for Whom Execution Is Inappropriate.

Mr. Madison has consistently maintained that he

is not competent to be executed because as a result of

multiple, severe strokes, he suffers from vascular dementia and the corresponding physical and cognitive

deficits that have impaired his ability to recall numerous events in his life, including the sequence of events

from the offense, to his arrest, to his trial. Because he

10

can no longer understand or connect the underlying offense to his pending execution, he does not have the

“rational understanding” required by Ford and Panetti,

and his execution is therefore barred by the Eighth

Amendment.

Despite this consistent claim, Respondent insists

that Mr. Madison intends to “extend[ ] the doctrine of

Ford and Panetti” to ban the execution of prisoners with

“amnesia,” Resp’t Br. 39, and then spends considerable

space and effort arguing that this “extension” is not

supported by this Court’s Eighth Amendment doctrine,

Resp’t Br. 41, and would result in “new opportunities

for malingering and evasion,” Resp’t Br. 45, and an increase in “false claims, manipulation, and abuse,”

Resp’t Br. 41.2 But Respondent’s arguments are both

inaccurate and misleading.

Mr. Madison is not, in fact, arguing that this Court

should shield him from execution based solely on a

claim of simple amnesia, as Respondent suggests. Rather, Mr. Madison is asking this Court to recognize that

a prisoner may be deemed incompetent under the analysis outlined in Ford and Panetti where, as here, the

undisputed evidence establishes that Mr. Madison has

been diagnosed with vascular dementia, a serious

neurocognitive disorder, and that the cognitive and

physical deficits associated with that disorder have

2

Likewise, Texas and states joining with Respondent argue

that Mr. Madison seeks a “categorical rule.” Texas et al. Amicus

Br. 2 (“[D]ementia and other mental illnesses are too variable for

a categorical rule like Atkins.”).

11

rendered him unable to rationally understand his current circumstances.

As articulated in both Mr. Madison’s opening brief

and the supporting amicus brief of the APA, medical

and scientific advancements have allowed for increased confidence in the diagnosis of mental disorders, such as dementia, that merit protection under the

Eighth Amendment. These advancements include not

only neuroimaging and brain-mapping techniques, see

Pet. Br. 31-33, but “well-established procedures” including structured clinical interviews, consultation of

collateral sources of information and treatment records, and cognitive tests, see APA Br. 14-16. Vascular

dementia, in particular, has “several unifying characteristics, which allow for consistent diagnoses,” APA

Br. 7-8, made in reliance on history, physical examination and neuroimaging, Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 62122 (5th ed. 2013) [hereinafter “DSM-5”].

In addition to the specific criteria necessary for

a diagnosis of dementia or major neurocognitive disorder, see DSM-5 at 602, the etiological subtype of

vascular dementia requires that the “onset of cognitive deficits [be] temporally related to one or more

cerebrovascular events” or be “prominent in complex

attention . . . and frontal-executive function,” and

that “[t]here is evidence of the presence of cerebrovascular disease from history,” to include neuroimaging

evidence of “large vessel infarcts or hemorrhages,” a

“strategically placed single infarct,” “two or more lacunar infarcts outside the brain stem,” or “extensive and

12

confluent white matter lesions.” DSM-5 at 621-22. As

such, dementia is verifiable in ways that other mental

illnesses are not.

Not only are mental-health professionals adept at

using both traditional tools and brain imaging to diagnose dementia, but in using these tools to identify persons who are malingering or otherwise feigning

impairment.3 APA Br. 16-17.

The only question in this case has been, and continues to be, whether dementia and its attendant cognitive deficits and memory impairments can render a

prisoner incompetent under the rubric developed in

Ford and Panetti.4 Because the record undisputedly establishes that Mr. Madison is severely compromised by

a verifiable neurological disease of vascular dementia,

as well as brain injury, cognitive decline, memory loss

and a diminished capacity to rationally understand

3

In this case, the experts agreed that Mr. Madison was not

malingering his dementia and associated cognitive deficits. (Doc.

8-3 at 17 (Goff report); Doc. 8-3 at 9 (Kirkland report).)

4

Up to this point, Respondent has answered a resounding

“no” to that question, and the state trial court followed suit when

it made no mention of Mr. Madison’s diagnosed dementia anywhere in its 2016 order denying Mr. Madison’s competency claim.

(Doc 8-2 at 149-58.) While Respondent now claims to have previously argued that dementia could form the basis of an incompetency claim, Resp’t Br. 23 n.4, the record contradicts Respondent

on this point. See Madison, 851 F.3d at 1188 n.15 (“At oral argument, the State argued that a prisoner who has severe dementia

that doesn’t result in delusions but has completely obliterated his

memory would be competent to be executed because the mere fact

that a prisoner doesn’t suffer from delusions means that he can

form the rational understanding required by Panetti.”).

13

what he is experiencing, the answer to that question

must be yes.

III. A Finding that Mr. Madison Is Incompetent Does Not Implicate the State’s Ability

to Punish but Rather Enforces the Community’s Understanding of Human Dignity in

the Context of Punishment.

There is no question the Eighth Amendment ban

on cruel and unusual punishments provides boundaries within which states must operate. Robinson v.

California, 370 U.S. 660, 667 (1962) (holding Eighth

Amendment ban on “cruel and unusual punishment”

extends to states). “While the State has the power to

punish, the [Eighth] Amendment stands to assure that

this power be exercised within the limits of civilized

standards.” Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion).

In Ford, this Court recognized that the civilized

standards embodied in the Eighth Amendment prohibited the execution of prisoners found to be incompetent. 477 U.S. at 409-10. In so holding, this Court did

not find any fault with the general propriety of the

death penalty or how it was imposed, but rather affirmed a principle embraced by all the states that executing an incompetent person served no useful

penological purpose and diminished society’s view of

its own pursuit of justice. Id. at 406-09; see also id. at

419 (Powell, J., concurring).

14

Respondent and supporting amici nevertheless

devote a significant portion of their briefing to arguments about the propriety of the death penalty in cases

in which a law enforcement officer is killed and more

specifically about Mr. Madison’s culpability in this

case.5 See, e.g., Resp’t Br. 17 (“The Constitution affirms

the sovereign power of the States to execute the worst

murderers” and “the State has an especially strong interest” in executing those convicted of killing police officers), 38 (“He is fully culpable for his actions.”); Texas

et al. Amicus Br. 12 (“Because petitioner did not have

dementia when he murdered a police officer and attempted to murder his ex-girlfriend, his culpability for

those crimes is in no way diminished by his current

state.”). But the question before the Court – whether

the Eighth Amendment prohibits the execution of a

mentally disabled prisoner with severe cognitive deficits and neurological impairments as a result of vascular dementia – has nothing to do with culpability and

does not negate the State’s ability to punish. Mr. Madison has not and will not go unpunished. He has now

been held in solitary confinement on death row for 33

years facing the constant threat of execution. He exists

in a small cell where dementia has left him disoriented, confused, blind, incontinent, and unable to walk

5

The National Association of Police Organizations argues

that enhanced penalties for those convicted of killing police officers are constitutional. See, e.g., Nat’l Ass’n Police Orgs. Amicus Br.

12. Mr. Madison has never argued otherwise, and it is telling that

nowhere in the organization’s brief will this Court find a citation

to Ford or Panetti and nowhere will it find the words “competence,” “incompetent,” or like.

15

while he questions the circumstances of his confinement and pending execution and asks to see relatives

that have long been dead. Rather, this case has everything to do with how we treat individuals who have

been rendered incapacitated by a mental disorder, development or disability.

The Court’s holding in Ford, and later in Panetti,

makes clear that the prohibition on executing an incompetent person does not turn on the nature of the

offense for which the death sentence has been imposed.

In Ford, for example, this Court never even elucidated

the facts of the offense for which Mr. Ford was convicted. In fact, a jury found that “on July 21, 1974, Alvin Bernard Ford murdered a helpless, wounded police

officer by shooting him in the back of the head at close

range.” Ford v. Wainwright, 752 F.2d 526, 526 (11th Cir.

1985) (per curiam), rev’d, 477 U.S. 399 (1986). Scott

Panetti was convicted of killing his mother-in-law and

father-in-law in front of his wife and daughter. 551 U.S.

at 935-36. At no point did this Court question whether

these facts were determinative of whether the Eighth

Amendment permitted their execution despite evidence suggesting each was incompetent. See also

Stewart v. Martinez-Villareal, 523 U.S. 637, 639 (1998)

(noting without elaboration that petitioner was convicted of two counts of first-degree murder in holding

his Ford claim was not a “second or successive petition”

for AEDPA purposes).

Similarly, this Court’s Eighth Amendment holdings in Roper and Atkins barring certain defendants

from being sentenced to death contain no exemption

16

dependent upon the circumstances of the crime. See

Roper v. Simmons, 543 U.S. 551, 572 (2005) (finding bar

on execution of children while noting “we cannot deny

or overlook the brutal crimes too many juvenile offenders have committed”); Atkins v. Virginia, 536 U.S. 304,

319 (2002) (noting death penalty already confined to “a

narrow category of the most serious crimes”). Likewise,

despite Respondent’s insistence to the contrary, Ford’s

and Panetti’s prohibition on executing the mentally incompetent provides no exemption for an incompetent

person to be executed if the State deems the prisoner

to be the “worst murderer[ ]” or the case to be one in

which the State “has an especially strong interest.”

Resp’t Br. 17.

In addition, a finding that Mr. Madison’s vascular

dementia and severe cognitive and memory deficits

render him incompetent to be executed will not curtail

the states’ powers to seek and impose death in any

other case in which it is already able to do so. Ford

did not end the death penalty, did not limit the crimes

for which death can be imposed, and did not erect any

bar on those who could be sentenced to death. Indeed,

Ford still permits the execution of someone found incompetent so long as that person regains competence.

See 477 U.S. at 425 n.5 (Powell, J., concurring) (“[I]f petitioner is cured of his disease, the State is free to execute him.”); see also Singleton v. Norris, 319 F.3d 1018,

1027 (8th Cir. 2003) (en banc) (“A State does not violate

the Eighth Amendment as interpreted by Ford when it

executes a prisoner who became incompetent during

his long stay on death row but who subsequently

17

regained competency through appropriate medical

care.”). Here, finding Mr. Madison incompetent based

on his significant mental disabilities does not “interpos[e]” any additional step between conviction and execution, as the State alleges, Resp’t Br. 39, because

Ford and Panetti already establish that the Eighth

Amendment requires, or “interposes” a requirement of,

competence.

Mr. Madison has a verifiable neuropsychological

disorder – vascular dementia as a result of several

strokes – that impedes his ability to rationally understand what the State proposes to do to him and why it

proposes to do it. This Court should affirm Ford and

Panetti and find that Mr. Madison’s execution is prohibited. 551 U.S. at 934 (“ ‘[T]he Eighth Amendment

prohibits a State from carrying out a sentence of death

upon a prisoner who is insane.’ The prohibition applies

despite a prisoner’s earlier competency to be held responsible for committing a crime and to be tried for it.”

(quoting Ford, 477 U.S. at 409-10)).

------------------------------------------------------------------

18

CONCLUSION

The judgment of the Mobile County Circuit Court

should be reversed.

Respectfully submitted,

BRYAN A. STEVENSON

Counsel of Record

ANGELA L. SETZER

RANDALL S. SUSSKIND

EQUAL JUSTICE INITIATIVE

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

bstevenson@eji.org

asetzer@eji.org

rsusskind@eji.org

Counsel for Petitioner