Petition for Writ of Certiorari — Michael Duane Zack, III, Petitioner v. Florida, et al.

No

IN rup

åupreme {,ourt of tbe @niteù ãtuteg

Mlcnenl Du¡Nn Z¡rcx, III,

Petitioner,

v

Srarp or FlonroA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

PETITION FOR A WRIT OF CERTIORARI

ROBERT S. FRIEDMAN

Counsel of Record

DA\4/N B. MACREADY

STACY R. BIGGART

Office of the Capital Collateral

Regional Counsel - Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0922

Robert. Friedman@ccrc- north.org

D awn.Ma ue ady@ccrc-north. org

Stacy. Bi g gaú,@ccr c- north. or g

CAPITAL CASE

QUESTIONS PRESENTED

1. Did the Florida Supreme Court disregard the diagnostic framework for

intellectual disability established in Moore u. Texas,137 S. Ct. 1039 (2OI7),

Hall u. Florída,134 S. Ct. 1986 (2014), andAthins u. Virginia,536 U.S. 304

(2002) by simply shifting the intelligence score cutoff to account for

measurement error and then using those scores solely to summarily deny

relief on an Athins claim?

2. Where there is signifi.cant evidence of adaptive deficits, regardless of an

individual's intelligence score, can there be a meaningful consideration of

intellectual disability absent an evidentiary hearing?

3. Did the Florida Supreme Court disregard the Sixth Amendment's

applicability to the determination of intellectual disability pursuant to

Hurst u. Florída, 136 S. Ct. 616 (2016) and Hurst u. State, 202 So.3d 40

(FIa.2016)?

I

PARTIES TO THE PROCEEDINGS

AII parties appear in the caption of the case on the cover page.

1l

TABLE OF CONTENTS

Questions Presented.

Parties to the Proceedings...

.ll

Table of Contents

iii

Table ofAuthorities...

............iv

Decision Below

1

Jurisdiction....

......1

Constitutional and Statutory Provisions Involved....

,1

Statement of the Case...

,3

I.

Introduction.

3

II.

Factual and Procedural Background

3

A.

Zack has significantly subaverage intellectual functioning........ 3

B.

Zack has defi.cits in adaptive behavior that manifested prior to

age 18.

.......5

C.

State Collateral Proceedings... .

Reasons for Granting the Writ...

........8

...10

I

This Court should grant certiorari to provide guidance to the Florida

Supreme Court about the proper application of HaII u. Florid,a,134 S.

Ct. 1986 (2014), and Moore u. Texas, I37 S. Ct 1039 (2017); specifically,

whether courts can impose any intelligent score cutoff to deny anAthins

claim without an evidentiary hearing where there is signifi.cant evidence

10

of adaptive defi.cits.

II.

This Court should grant certiorari to provide guidance to the Florida

Supreme Court as to whether the Sixth Amendment requires that

findings of intellectual disability be made by a jury pursuant to Hurst u.

Florída, 136 S. Ct. 616 (2016), and Hurst u. State,202 So.3d 40 (FIa.

2016).

.¡.......

.........19

Conclusion.....

.....22

ll1

INDEX TO APPENDD(

Florida Supreme Court Opinion Below (June 15,2017).

..............4ppendix A

Florida Supreme Court Order Denying Rehearing (October 12,2017).......Appendix B

Florida Supreme Court Order Denying Motion to Recall the Mandate

(January 23,2018).

......Appendix C

Escambia County Circuit Court Order Denying Relief (July 8, 2015).........Appendix D

Appellant/Petitioner's Motion for Rehearing (Jun e 3O, 2OI7)

.Appendix E

Appellant's Motion to Recall the Mandate (November 6,20L7)

.Appendix F

Appellee's Response to Motion to Recall the Mandate

(November 17,2017)......

.......Appendix G

TABLE OF AUTHORITIES

Cases:

Arizona u. Fulímante, 499 U.S. 279 (1991)

Atkins u. Virginia,536 U.S. 304 (2002)...

11

po,ssLm

Bottoson u. Moore,833 So. 2d 693 (Fla. 2002)

20

Brown u. State,959 So. 2d146 (Fla. 2007)

2T

Brumfield u. Cain,135 S. Ct.2269 (2015)

12,17

Chambers u. Florida, 309 U.5.227 (1940)

11

Cherry u. State,959 So. 2d702 (Fla.2007)...

Gregg u. Georgía, 428 U.S. 153 (1976)..

.,.8, 12

11

Hq,ll u. Florida,l34 S. Ct. 1986 (2014)..

Hurst u. Florída, 136 S. Ct. 616 (2016)

.....pøssim

3, 19,20,2L,22

Hu,rst u. State,202 So. 3d 40 (Fla. 2016)

3,19,21

lv

Miller u. Fenton, 474U.5.104 (1985)

11

Mooreu. Texas,137 S. Ct. 1039 (2017).

.......pøssím

Oats u. Jones, 220 So. 3d IL27 (Fta. 2017)

19,20

oats u. state,181 So. 3d 457 (Fla. 2015)

2T

Perry u. State,210 So. 3d 630 (Fla. 2016)

.....2I

Ríng u. Arizona, 536 U.S. 584 (2002)

20

State u. Herring, 76 So. 3d 891 (Fla. 2011)

2T

Wright u. Florida, 138 S. Ct. 360 (2017)

9, 18, 19

Zach u. Støte, 228 So.3d 41 (FIa. 2017)

L,9, 17

Statutes:

Fla. Stat. 5921.137 (2017)

.passLnx

Other Authorities:

AMpHceNI AssocmttoN oN lNtnllgcruAr, AND Dovpr,optr¿ENTAL DtsAgll,ttms,

INrpLlpcruAL DtseelLITy: DnplNItIoN, CLASSIFICATIoN, AND Sysrpnas oF SuppoRTS

(11th ed. 2010).

..........I2

AnnpnIcaN PsycHntRIC ASSoCIATIoN, DIecNosrIC AND Sretrstlc¡I Meuuel oF

MpNrRr- Dlsonopns FlrrH EortroN (American Psychiatric Association

.......4, 5, 12, 14, L5

Aupnrc¡N PsycunrRrc AssocrATroN, Dmcuosrrc AND SreusrrcAl, MANUAL oF

Mpxtel Drsononns FoURTH EttrtoN (Text Revision) (American Psychiatric

Association 2000)...

......4,5

V

PETITION FOR WRIT OF CERTIORARI

Michael Duane Zack,III, respectfully petitions for a writ of certiorari to review

the Florida Supreme Court's order denying rehearing of its opinion affirming the

Escambia County Circuit Court's denial of postconviction relief and denying habeas

corpus relief.

DECISION BELOW

The decision of the Florida Supreme Court is reporte d at Zacl¿ u. State, 228 So

3d 41 (Fla. 2017), and is also attached as Appendix ("App.") A.

JURISDICTION

On June I5, 2017, the Florida Supreme Court issued its opinion affi.rming the

Escambia Circuit Court's denial of postconviction relief and denying Zack's habeas

petition. October 12, 2017, the Florida Supreme Court entered an order denying

rehearing of this opinion. On January 5, 2018, Justice Thomas granted an extension

of time to fiIe a petition for certiorari to March 11, 2018. This Court's jurisdiction is

invoked under 28 U.S.C. $ 1257(a)

C

ONSTITUTIONAL AND STATUTORY PROVISIONS INIVOLVED

The Fifth Amendment provides: "No person should be deprived of life, liberty,

or property without due process of law." U.S. CoNsr. AMEND. V

The Sixth Amendment provides, in relevant part: "In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jn*y ..."

Il.S. CoNsr. AunNo. VI.

1

The Eighth Amendment provides: "Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CoNsr.

AMEND. VIII

The Fourteenth Amendment provides, "[N]or shall any State deprive any

person of life, liberty, or property, without due process of law." U.S. CoNST. AMEND

XIV

Florida law prohibits the imposition of death sentences on intellectually

disabled persons:

"Intellectual disability" means significantly subaverage general

intellectual functioning existing concurrently with deficits in adaptive

behavior and manifested during the period from conception to age 18.

The term'significantly subaverage general intellectual functioning,' for

the purpose of this section, means performance that is two or more

standard deviations from the mean score on a standardized intelligence

test specified in the rules of the Agency for Persons with Disabilities.

The term 'adaptive behavior,' for the purpose of this definition, means

the effectiveness or degree with which an individual meets the

standards of personal independence and social responsibility expected

of his or her age, cultural group, and community.

Fla. Stat. S 921.137.I (2017)

Florida law requires a judge to decide whether an individual is

intellectually disabled:

[T]he fi.nal sentencing hearing shall be held without a jury. At the fi"nal

sentencing hearing, the court shall consider the findings of the courtappointed experts and consider the findings of any other expert which is

offered by the state or the defense on the issue of whether the defendant

has an intellectual disability. If the court finds, by clear and convincing

evidence, that the defendant has an intellectual disability as defined in

subsection (1), the court may not impose a sentence of death and shall

enter a written order that sets forth with specificity the findings in

support of the determination.

2

Fla. Stat. S 921.137.4(2oL7).

STATEMENT OF THE CASE

I.

Introduction

Florida law protects intellectually disabled people from execution if they are

found to have 1) significantly subaverage general intellectual functioning (IQ), 2)

existing concurrently with deficits in adaptive behavior, 3) manifested in the period

between conception and age 18. Fla. Stat. S 921.137.1 (2017). "Signifi.cantly

subaverage general intellectual functioning" is defined as "t\ñ/o or more standard

deviations from the mean score on a standardized intelligence test." Id. Pñor to this

Court's decision in Hall u. Florida,IS4 S. Ct. 1986 (2014), Florida defendants could

show signifi.cant subaverage general intellectual functioning only with an IQ score of

70 or less. While this Court in HalI rejected a bright line cutoff, Florida, in practice,

continues to impose one.

Furthermore, Florida's designation of the trial judge, rather than the jury, as

the factfi.nder for determinations of intellectual disability, disregards an individual's

Sixth Amendment right to a jury trial. Fla. Stat. S 921.137.a Q0L7); See Hurst u.

Florida,136 S. Ct. 616 (2016), and Hurst u. State,202 So.3d 40 (Fla. 2016)

rI.

Factual and Procedural Background

A.

Zaekhas signifrcantlysubaverage intellectualfunctioning.

Michael Duane Zack, III, has been intellectually disabled his entire life

Throughout his life, Zack's IQ test scores consistently have shown severe splits in

verbal and performance IQ test scores. Those splits have ranged from 10 points to 31

J

points, have appeared in all of his IQ tests since age 11, and indicate organic brain

damage. Zack has fi.ve full-scale IQ scores available: 92,85,86,79, and 80. These

scores, however, should not be dispositive. According to the Diagnostic and Statistical

Manual of Mental Disorders ("DSM") "when there is a marked discrepancy across

verbal and performance scores, averaging to obtain a full-scale IQ score can be

misleading." DSM-IV-TR, at 42. The DSM-V expanded upon this idea, noting that

"highly discrepant individual subtest scores may make an overall IQ score invalid."

DSM-V, at 37

In preparation for postconviction counsel's Fla. R. Crim. P. 3.851 motion, Dr

Hyman Eisenstein administered the WAIS-4 in 2015, which resulted in Zack's score

of 80. He diagnosed Zack as intellectually disabled. In his fi.ndings, he stated that

Zack's verbal language skills have always been in the significantly impaired range,

his adaptive functioning skills have been compromised since childhood, and that

there is evidence of onset prior to age 18. He also stated his belief that Zack has left

hemisphere brain abnormalities, and that his etiology is likely based on numerous

head injuries which create a marked personality change, indicated by the downward

spiraling IQ scores.

The WAIS IV uses 10 subtests to evaluate a subject and determine functioning

on four scales; Verbal Comprehension, Perceptual Reasoning, Working Memory, and

Processing Speed. The results also provide a full scale IQ. On these four subtests,

Zack scored aT4onVerbal Comprehension, a 105 on Perceptual Reasoning, a77 on

Working Memory, and a 74 on Processing Speed. His overall full scale IQ was scored

4

at 80. However, Dr. Eisenstein noted that when a significant difference between the

index scores is evident, the full scale IQ "is not the best indicator of true intellectual

functioning." This is because the full scale IQ is a composite of the index scores. See

DSM-IV-TR, at 42; DSM-Y, at 37 .

This is exactly why this Court abrogated bright line cutoffs. "An IQ score is an

approximation, not a fi.nal and infallible assessment of intellectual functioníng." HalI

134 S. Ct. at 2000

B.

Zaek has defÏcits in adaptive behavior that manifested prior to

age 18.

Zack took longer than his siblings to reach developmental milestones. Unable

to verbalize and ask for things like a normal toddler, Zack simply pointed at objects

He strained to read, write, and memorize numbers and names of body parts, and

could not color within the lines. His older sister, Theresa, helped bathe him since he

struggled to clean himself properly. Zack could not match his clothes or dress

appropriately for the weather, so Theresa laid out his clothes for him. Zack could not

make his bed or fold his clothes, and functioned at a level lower than his sister Zíva,

who is six years his junior.

Zack's sister Ziva also remembers him being unable to perform simple chores

around the house. When Zackwashed dishes, his siblings would have to rewash them

they were still dirty. When Zack's stepfather told him and his siblings to pack

"essentials" for a move, Zack packed only toys

As an adult, Ziva describes Zack as "childlike." Unlike his comparably-aged

peers, Zack depended on others to survive. W'ithout help, he would not have had a

5

roof over his head. Because he could not manage money, balance a checkbook, or

remember when bills were due, he needed others to manage his fi.nances. Zack seldom

bathed, wore fiIthy clothes, and was unkempt. This was not for lack of trying-he

simply lacked the basic skills to wash his clothes and properly clean himself.

Even simple tasks eluded Zack. On one occasion, Zíva sent him to the store to

pick up three large pizzas to feed a large group of people. Rather than completing the

task as asked, Zack purchased one small pízza, but spent the rest of the money on

candy. He ate mostly fast food, as he was incapable of making foods that required

measurement or specifi.c directions. Zack's ability to read, write and do simple math

were very limited. Despite numerous efforts to complete his GED, Zack was

unsuccessful. Zack tried to work, but could never hold down a job for very long before

his bosses would fire him for failing to show up for a shift or for failing to complete

required tasks. He lost his job as a janitor on a cleaning crew because he could not

properly measure and mix the cleaning chemicals and use them for their intended

purpose. Zack thought in very concrete terms. When a cabinet door fell off, he nailed

the door back onto the cabinet and considered it fixed, even though the door no longer

opened.

When Zack's mother died, he lived with Frederick and Phyllis Anglemyer, long-

time friends,of his mother. Mr. Anglemyer knew Zack since he was a small child and

described him as one of the lowest functioning individuals he had ever dealt with.

The Anglemyers requested thatZack clean his room and make his bed daily while he

lived with them. Zack was unable to follow through. Zack would go days without

6

showering if someone did not specifically tell him to do. This was particularly

problematic since he still wet the bed at that time. He was incapable of forethought,

and would leave the house during a blízzard in nothing more than a tee-shirt. Mr

Anglemyer recalled attempting to play the board game Monopoly with Zack When

Zack could not grasp the rules and objectives of the game, he became very frustrated

and the game ended.

In 1987, Zack had a daughter with Roberta Owen, whom Zack dated for about

a year. Knowing he was slow, Roberta asked only that he help provide diapers and

formula for their daughter, a task he often failed at despite his best intentions. Zack

could not hold down a job for any period of time. Zack could not read or write well,

and did not have a bank account or a driver's license. He did not wash his clothes or

cook. Owen had to remind him to bathe and he would never brush his teeth. Their

daughter has a severe learning disability and other mental health issues, and

receives social security for her disabilities and is unable to manage her finances or

live alone. When Ms. Owen met Zack, he was approximately eighteen years old and

was functioning then at the same level as their disabled daughter.

Zack subsequently had a son with Shawn Mooneyhan in 1989. In total, Ms

Mooneyhan lived with Zack for approximately two years. Ms. Mooneyhan remembers

Zack having a very short attention span. She would not let him watch their son by

himself because it would have been too dangerous, asZackwas easily distracted. He

\¡ras very immature and often acted like a ten or eleven year old. Zack liked to play

his stereo loud and didn't understand why his music needed to be turned down when

7

the baby was sleeping. Zack was unable to handle money responsibly and did not

know how to budget. He \¡ras unable to plan ahead or follow through with

appointments. He was unable to read a map or navigate to a destination to which he

not previously been.

C.

State Collateral Proceedings

While all this evidence demonstrates significant adaptive deficits, Zack never

had the opportunity to present it because of Florida's previous adoption of an IQ score

of 70 to foreclose Athins relief. Following this Court's decisionin Hall u. Floridø,134

S. Ct. 1986 (2014), however, Zack's postconviction counsel filed a successive motion

to vacate his judgment and sentence pursuant to Fla. R. Crim. P. 3.851, arguing that

because HaIl ovetruled precedent on which the Florida Supreme Court relied in

previously denying Zack relief,' Zack \ñras no\ry entitled to a hearing

The Escambia circuit court held a case management conference on July 2,2015

and heard arguments from both sides. On July 8, 2015, the trial court issued an order

denying Zack's motion, holding that "[d]efendant's IQ scores do not place him within

the range of concern contemplated in the HalI decision." App. D. Zack fiIed for

rehearing, and the circuit court denied that motion on August 6, 2015, concluding

t};rat Zack failed to present any facts, law, or issues meriting further consideration

On appeal to the Florida Supreme Court, Zack argued that the trial court erred in

summarily denying }lris Athins claim without a hearing, and in ruling that his IQ score

'Zack previously argued that he was entitled to a hearing to prove his intellectual disability, but the

Florida Supreme Court cited to Cherry u. Støte,959 So.2d 702, 712-14 (FIa. 2007), which reiterated

the cutoff score for the first prong of intellectual disability standard to be an IQ of 70 or below, to deny

Zacktelíef."

8

is too high for an Athins hearing without considering other evidence under Ha,II.

In affi.rming the trial court, the Florida Supreme Court continued its pre-Hall

error in fi.nding:

The trial court correctly found the significantly subaverage

intellectual functioning prong dispositive of Zack's intellectual

disability claim based on Zack's scores prior to age 18, which

were all over 75.. .. The record demonstrates fi"ve I.Q. scoresforZack:

a score of 92 in 1980 when Zack was 11 years old, and four scores after

Zack turned 18 - 84 and 86 in 1997 at 27 years of age, 79 in 20O2, and

80 in 2015. While a holistic hearing is required, defendants must

still be able to meet the fïrst prong of Hall. Because Zack's

current score is well above 75, and there are no scores in his

history below 75, it is unlikely that he would ever be able to

satisfy the signifïcantly subaverage intellectual functioning

prong.

Zøch u. State, 228 So.3d 41, 47 (Fla. 2017) (emphasis added). And, as to Zack's second

issue, along the same lines the Florida Supreme Court stated:

We find that the trial court's determination thatZack did not satisfr the

signifi.cantly subaverage intellectual functioning prong is supported by

competent, substantial evidence. As previously mentioned, Zack

provided several I.Q. scores that were all well outside the

standard error of measurement. While Zack argues that Hall

requires the trial court to consider other evidence, a defendant's

scores must first fall within the test's acknowledged and

inherent margin of error. Hall, 134 S. Ct. at 2001. Here, all of the

scores presented - 92,84, 86,79 and 80 - are outside of the test's margin

of error and the presentation of evidence regarding the other two prongs

do not cure Zack's inability to satisfii the fi.rst.

Id. at 47 (emphasis added).

Zack filed a Motion for Rehearing on June 30, 2017. App. E. The Florida

Supreme Court denied rehearing on October 12,20L7, and the mandate was issued

on October 3O,20L7. App. B. Zack then filed a Motion to Recall the Mandate in light

of this Court's opinion tnWright u. Florida, 138 S. Ct. 360 (2017).App. F.

9

Zack also fi.led an application for an extension of time within which to fi.le a

petition for a writ of certiorari due to his pending Motion to Recall the Mandate, and

on January 5, 2018, Justice Thomas granted an extension. On January 23,2018, the

Florida Supreme Court denied Zack's Motion to Recall the Mandate. App. C.

REASONS FOR GRANTING THE WRIT

I

This Court should grant certiorari to provide guidance to

the Florida Supreme Court about the proper application

of Hall u. Florída, I34 S. Ct. 1986 (2014), and, Moore u. Texas,

137 S. Ct 1039 (2017); specifically, whether courts can

impose any intelligent score cutoff to deny anAthins claim

without an evidentiary hearing where there is signifrcant

evidence of adaptive deficits.

The Florida Supreme Court continues to disregard the diagnostic framework

for intellectual disability established ín Moore u. Texas, 137 S. Ct. 1039 (2O17), HalI

u. Florid,a, L34 S. Ct. 1986 (2014), and Athíns u. Virginía, 536 U.S. 304 (2002) by

treating intelligence tests as dispositive of intellectual disability. Zack has

significantly subaverage intellectual and adaptive functioning. Executing him would

violate this Court's precedent and the Fifth, Eighth and Fourteenth Amendments

Florida law creates an insurmountable gauntlet for capital defendants with

intellectual disabilities, violating procedural due process protections and cruel and

unusual punishment standards of the Fifth, Eighth, and Fourteenth Amendments

The Florida Supreme Court erred in treating IQ scores as dispositive of death

eligibility. The Court should grant this petition and vacate the decision of the Florida

10

Supreme Court to protect an intellectually disabled man from illegal execution.,

The Eighth Amendment bars execution of intellectually disabled people.

Athins, 536 U.S. at 320. Relating the diminished culpability of the intellectually

disabled to the penological philosophy of death penalty, the Athins Court found

execution of intellectually disabled people served no purpose. Id. at 318-20.

Diminished intellectual capacity, with its resultant difficulties in understanding

information, inability to learn from experience, ineptitude in logical reasoning, and

impossibility of controlling impulses, makes an intellectually disabled person less

morally culpable and less amenable to deterrence. Id.If the death penalty does not

serve penological aims, it is nothing more than, "the purposeless and needless

imposition of pain and suffering." Id. at 319 (citing Gregg u. Georgia, 428 U.S. 153,

183 (1976)). Exempting the intellectually disabled from capital punishment also

protects the integrity of the trial process. Hall, 134 S. Ct. at 1993. The intellectually

disabled face a heightened risk of wrongful execution because they give false

confessions, are poor witnesses, and are less able to give meaningful assistance to

counsel..Id

Florida law protects intellectually disabled people from execution if they are

found to have signifi.cantly subaverage general intellectual functioning (IQ), existing

concurrently with deficits in adaptive behavior, manifested in the period between

2On a petition for certiorari, this Court reviews legal issues de nouo. Ariz,onø u. Fulima,nte, 499 U.S.

279,287 (1991). An ultimate issue, such as intellectual disability barring the imposition of the death

penalty, is a legal question requiring independent federal determination. See Moore,137 S. Ct. 1039;

Høll, L34 S. Ct. 1986; Miller u. Fenton,474U.S.104 (1985). See also Charnbers u. Florid.a,309 U.S.

227, 228-229 (1940).

il

conception and age 18. Fla. Stat. Ann. S 921.137.1 (20L7). "Significantly subaverage

general intellectual functioning" is defined as "two or more standard deviations from

the mean score on a standardized intelligence test." 1d. Florida law defines, "adaptive

behavior," as "the effectiveness or degree with which an individual meets the

standards of personal independence and social responsibility expected of his or her

age, cultural group, and community." Id,. As discussed in HaIl, the Florida statute

could be interpreted consistently wít}rAtkíns. HaIl, 134 S. Ct. at 1994. Yet, Florida

courts have historically botched the analysis by taking IQ scores as fi.nal conclusive

evidence of intellectual disability and by barring full and fair consideration of

evidence of adaptive functioning. See Cherry u. State, 959 So.2d 702 (Fla. 2007),

abrogated by HaIl,134 S. Ct. at 1994.

HalI cortected Florida's Eighth Amendment violations by establishing IQ as

an imprecise range with a standard error of measurement ("SEM") and insisting that

courts consider the professional consensus of the medical community in evaluating

intellectual disability. HaIl, 134 S. Ct. at 1994-1995; 200O-2OOI (citing the DSM-V

and the AIDD-I1).In Brumfíeld u. Cain, 135 S. Ct.2269 (2OI5), the Court found an

IQ score of 75 was not dispositive of intellectual capability. As in Hall and in concert

with the unanimous consensus of the medical community, the flaws and imprecision

in IQ test scores make them a poor vehicle for diagnosis. See HaII,134 S. Ct. at 2000.

Low IQ scores should lead to a full, multifactored consideration of adaptive

functioning to reduce the risk of executing intellectual disabled people in violation of

the Eighth Amendment. Brumfíe\d,135 S. Ct. at 2278

t2

On March 23, 20L7, Moore u. Texas, 137 S. Ct. 1039 (2017), authoritatively

revisited the standard for evaluating adaptive functioning and intellectual disability.

Robby Moore, a man with mild intellectual disability, an IQ of 70.66, the ability to

survive on the streets, play pool and mow lawns for money, was given a sentence of

death in Texas. In overruling the death penalty in Moore's case, this Court forged

explicit standards for assessing adaptive functioning. Id. at 1050-51. First, adaptive

strengths and behavior in controlled environments like prison should not be

overemphasized by courts considering intellectual disability claims. Second,

consistent with scientific consensus, deficits in one of three domains are sufficient for

a finding of intellectual disability. Third, childhood trauma and learning disabilities

should be considered as risk factors, rather than alternative explanations, for

adaptive deficits in intellectual disability determinations. The Florida Supreme

Court failed to even consider these deficits by finding Zack's IQ scores outcome

determinative despite Hall's instruction that intellectual disability "is a condition,

not a number." Hall u. Florid,a, 134 S. Ct. 1986, 2001 (2014). At the Huff hearing,

counsel for the State claimed that Hall merely shifts the cutoff for intellectual

disability from 70 to 75, and that because Zack's scores are above 75, he is not entitled

to a hearing. Additionally, they claimed that the most relevant IQ test score is Zack's

score of 92, attained at age 11, because it is evidence against onset prior to age 18.

However, Zack correctly argued that Hall requires the Court look at all

evidence of intellectual disability in making its determination. The IQ test scores are

not dispositive of intellectual disability. If HaIl is followed and the court looks at all

13

of the evidence regarding Zack, there is signifi.cant evidence of intellectual disability

Throughout his life,Zack's IQ test scores have consistently shown severe splits

in verbal and performance IQ test scores, present in his age 11 IQ test and indicating

a verbal and performance IQ test split of 22 points, indicative of organic brain

damage. (DSM-V at 37). Records of Zack's psychological testing reveal a well-

documented history of significant and severe splits between his verbal and

performance IQ scores. These splits range from 10 points to 31 points and have

appeared in all of his IQ tests since he was 11 years old. In 1980, when Zack was 11

years old, he was given the Wechsler Intelligence Scale for Children-Revised (\mSCR) which reflected a verbal performance discrepancy of 20 points. Upon review of this

information, Dr. James Larson indicated this was a red flag for organic brain damage

Zackwas also given the Bender-Gestalt test at age 11, which showed that he was one

to two years behind developmentally. By this point, Zack was already a year behind

in school. Dr. Larson gave Zack the Wechsler Adult Intelligence Scale-Revised

(WAIS-R) in 1997 at age 28and it reflected a 16 point split between verbal and

performance IQ.

Zack also has a history of significant adaptive deficits, beginning in childhood

and continuing through adulthood. These adaptive deficits indicate that Zack had

profound difficulty maintaining a daily routine, appreciating the nature of simple

tasks, and in academic performance

The circuit court denied Zack's motion, stating that his IQ is beyond the range

of concern in Hall. This is a misunderstanding of the Hall decísion. Zack achieved an

t4

IQ test score of 92 in 1980, 84 in 1997,86 in 1997, 79 in 2002, and 80 in 2015

However, Hall prohibits the court from relying on IQ score alone, and must look to

other factors, such as his significant adaptive defi.cits. The DSM-V itself has

eliminated IQ test scores as a factor in diagnosis of intellectual disability and instead

relies on adaptive defi.cits.

Zack's 1980 IQ test showed a verbal performance split of 22 points, a 16 point

split in 1997 , a 26 point split on the other 1997 test, a 10 point split on the 2002 test,

and a 31 point split on his 2015 test. The verbal and performance based splits on IQ

tests, as well as the downward spiral in his IQ test scores, can be attributed to his

organic brain damage which is likely related to numerous head injuries, childhood

abuse, ingestion of hard liquor as a child, or ingestion of LSD as a child. Zack was

also born a month premature after his mother \ñras involved in a car accident, likely

contributing to his brain damage.

In preparation for postconviction counsel's Fla. R. Crim. P. 3.851 motion, Dr.

Hyman Eisenstein administered the WAIS-4, and diagnosed Zack as intellectually

disabled. In his findings, he stated t}nat Zack's verbal language skills have always

been in the signifi.cantly impaired range, his adaptive functioning skills have been

compromised since childhood, and that there is evidence of onset prior to age 18. He

also stated his belief thatZack has left hemisphere brain abnormalities, and that his

etiologS' is likely based on numerous head injuries which create a marked personality

change, indicated by the downward spiraling IQ scores.

The WAIS IV uses 10 subtests to evaluate a subject and determine functioning

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on four scales; Verbal Comprehension, Perceptual Reasoning, Working Memory, and

Processing Speed. The results also provide a full scale IQ. On these four subtests,

Zack scored a74 on Verbal Comprehension, a 105 on Perceptual Reasoning, a77 on

Working Memory, and a 74 on Processing Speed. His overall full scale IQ was scored

at 80. However, Dr. Eisenstein noted that when a significant difference between the

index scores is evident, the full scale IQ "is not the best indicator of true intellectual

functioning." This is because the full scale IQ is a composite of the index scores.

Additional evidence contained in the record is Zack's 1997 test, which indicated

that he had the intellectual age of a 15 year old and the emotional age of a 10 year

old. His grade equivalency scores ranged from the fourth grade to the seventh grade

Dr. Barry Crown also testified at trial that Zackhad the mental age of a 10 or 1l year

old. Zack's disabilities also impacted the everyday tasks that many take for granted.

He failed his driving exam 12 times, has never had a savings or banking account, and

even in testing is difficult to keep on point. Dr. Eisenstein stated that, "there is a

significant difference between the index scores, and þecause] the fuII scale IQ is a

composite of the index scores, it is not the best indicator of true intellectual

functioning." In other words, because of the anomaly of the 105 score in perceptual

reasoning Zack's IQ score is skewed upwards because the IQ is simply a "composite"

of the index scores, including the perceptual reasoning score.

Despite this, the Florida Supreme Court, in contravention to Høll, ended its

inquiry once it deemed Zack's IQ score too high. IQ scores are "imprecise" and cannot

be final and conclusive evidence of intellectual disabllity. Høll,I34 S. Ct. at 2001. An

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IQ score should be considered as a range due to the SEM, which accounts for

variations such as practice from earlier tests, the subjective judgment in scoring, or

simple lucky guessing. Id. at 1995-96. The SEM in IQ scores is generally considered

to be approximately plus or minus five points, so that the range of IQ for establishing

intellectual disability can be between 65 and 75.ld. at 1995. The analysis of multiple

scores is "a complicated endeavor" as "intellectual disability is condition, not a

number." -Id. See Brum,field, 135 S. Ct. at 2278 (Louisiana state trial court finding

75 IQ was not "subaverage intelligence" was unreasonable); Moore,137 S. Ct. at 1053

(Texas appellate court finding of sufficient intellectual capacity with average IQ of

70.66 overruled). IQ tests can also be flawed or administered in a fLawed manner

Hall, 134 S. Ct. at 1995-96, 1998 ("Atkins itself acknowledges the inherent error in

IQ testing"). When Florida denies legitimate intellectual disability claims by people

with borderline IQ scores, it also denies "the basic dignity the Constitution protects."

Id. at 2001. The Florida Supreme Court found that because all of Zack's scores were

above 75, a new strict numerical cutoff to account for standard measurement error,

Zack would never "be able to satisfu the significantly subaverage intellectual

functioning prong." Zack u. State,228 So.3d 41, 47 (FIa. 20L7). With this statement,

the Florida Supreme Court violated this Court's exhortation ín Hall by functionally

reinstating the strict numerical cutoff that violates the Eighth Amendment-viewing

IQ as single number, rather than an imprecise range

Recently, this Court granted, vacated, and remanded a petition wherein the

Florida Supreme Court's application of HalI and Moore was similarly flawed. In the

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case of Tavares Wright, Mr. Wright was provided a "special hearing to specifically

address whether [he] met the statutory criteria for mental retardation." Wríght u

State,213 So. 3d 881, 893 (Fla. 2ol7). However, because Wright's IQ scores were

higher than 70, the trial court held that Wright could not satisfii Fla. Rev. Stat. $

92L.137.I Id. After Wright's postconviction proceedings progressed to appeal, this

Court issued Hall u. Florid,a, 134 S. Ct. 1986 (2014). Wright requested the Florida

Supreme Court relinquish jurisdiction to permit him to fiIe a renewed motion for

determination of intellectual disability. Wríght, 2I3 So. 3d at 894. Following an

evidentiary hearing on the issue where Wright presented witnesses, including

experts, the circuit court denied the motion. Id. On appeal, the Florida Supreme

Court said that Wright had not established that he met the criteria set forth ín Hall;

specifi.cally, he could not satisfr the fi.rst prong-significantly subaverage

intelligence. The Florida Supreme Court noted that Wright was allowed to present

evidence about his IQ scores, including the standard error of measurement and Flynn

effect. Id. at 897. The Florida Supreme Court further noted that Wright had taken

nine IQ tests and all of his full scale IQ scores were 75 or above, including a 76, 80,

8L,75, 82. Id. Based upon the scores and Wright's expert's testimony that the score

of 82 was valid, the Florida Supreme Court held Wright did not satisfr the subaverage

intellectual functioning prong. Id.at 898.

Vfright filed a petition for writ of certiorari with this Court, the question

presented asking: Did the Florida Supreme Court disregard the diagnostic framework

for intellectual disability established ín Moore u. Texas, I37 S. Ct. 1039 (2017), HaIl

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u. Florida, I34 S. Ct. 1986 (20L4), and Athins u. Virginia, 536 U.S. 304 (2002) by

treating intelligence tests as dispositive of intellectual functioning and requiring

proof of adaptive defi.cits beyond mild intellectual disability in finding that Tavares

Wright can be executed in violation of the Fifth, Eighth and Fourteenth

Amendments?

After briefing, this Court granted the petition, vacated the judgment of the

Florida Supreme Court, and remanded for further consideration in light of Moore.

Because the Florida Supreme Court continues to impose a bright line IQ score, this

Court should grant certiorari

II

This Court should grant certiorari to provide guidance to

the Florida Supreme Court as to whether the Sixth

Amendment requires that frndings of intellectual

disability be made by a jury pursuant to Hurst u, Florída,

136 S. Ct. 616 (2016), and. Hurst u. State,202 So. 3d 40 (Fla.

2016).

"Although Atl¿ins held that the imposition of the death penalty against

intellectually disabled individuals is unconstitutional, the united States Supreme

Court left for the states 'the task of developing appropriate ways to enforce the

constitutional restriction' establishe d in Athins. Oats u. Jones, 220 So. 3d LI27 , lI29

(FIa. 2017), citing Atl¿ins u. Virginia,536 U.S. 304, 3I7 (2002). As a result, the Florida

Legislature enacted section 92I.L37, Florida Statutes, barring the execution of

intellectually disabled defendants, and the Florida Supreme Court adopted Florida

Rule of Criminal Procedure 3.202 to provide a procedure for implementing Athins

See Fla. Stat. 5921.137 (20L7)

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However, the Florida Legislature's designation of the trial judge, rather than

the jury, as the factfinder for intellectual disability determinations cannot trump an

individual's Sixth Amendment right to a jury trial. Oøts was wrongly decided by the

Florida Supreme Court in much the same way that Bottoson u. Moore was wrongly

decided. See Bottosotl u. Moore,833 So. 2d 693 (Fla. 2002), abrogated by Hurst u.

Florida, 136 S. Ct. 616 (2016). In Bottoson, t};'e court declined to grant relief under

Ríng u. Arízona, 536 U.S. 584 (2002), because "the lJnited States Supreme Court

repeatedly has reviewed and upheld Florida's capital sentencing statute over the past

quarter of a centuty..." Bottoson,833 So. 2d at 695. Fourteen years later this Court

abrogated that decision in Hurst u. Florida, holding Florida's capital sentencing

scheme unconstitutional, as violative of the Sixth Amendment right to a jury trial.

Simply because the United States Supreme Court left it up to the states to implement

a capital sentencing scheme, does not guarantee that it will be constitutionally sound.

Nor does it give the states the power to trample on an individual's right to a jury trial

as guaranteed by the Sixth Amendment.

Under 5921.137.2, Florida Statutes, "[a] sentence of death may not be imposed

upon a defendant convicted of a capital felony if it is determined . . . that the

defendant is intellectually disabled." Section 92I.I37.4 provides that when a

defendant raises intellectual disability as a bar to a death sentence and the judge

finds that "the defendant has an intellectual disability as defined in subsection (1),

the court may not impose a sentence of death and shall enter a written order that

sets forth with specificity the findings in support of that determination." Thus,

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Florida law provides that an intellectually disabled defendant is not eligible for a

death sentence.

Hurst u. Florida, 136 S. Ct. at 622, held that the Sixth Amendment guarantees

that all facts that are statutorily necessary before a judge is authorized to impose

death are subject to the capital defendant's constitutional right to a jury trial. As a

result, the Florida Supreme Court in Hurst u. State, 202 So.3d at 53, held that "the

jury-not the judge-must be the fi.nder of every fact, and thus every element

necessary for the imposition of the death penalty." The court further concluded that

in Florida, "the penalty phase jury must be unanimous in making the critical findings

and recommendation that are necessary before a sentence of death may be

considered by the judge or imposed." Perry u. State,210 So. 3d 630, 634 (Fla.

2016) (quoting Hurst u. State,202 So.3d at 59) (emphasis added)

Whether a defendant is intellectually disabled is a question of fact as the

Florida Supreme Court's decision in Oats u. State, 181 So. 3d 457 (Fla. 2015), made

clear. There, the Court explained:

In reviewing the circuit court's determination that Oats is not

intellectually disabled, "this Court examines the record for whether

competent, substantial evidence supports the determination of the trial

court." State u. Herring, 76 So. 3d 891, 895 (FIa. 2011). We "do [ ] not

reweigh the evidence or second-guess the circuit court's findings as to

the credibility of witnesses." Brown u. Støte, 959 So. 2d 146, 149 (Fla.

2007).

oats u. state,181 So. 3d at 456-66.

Hurst u. State applies to the determination of fact, i.e. the defendant's

intellectual disability, which must be addressed and resolved before a death sentence

2l

can be imposed when properly raised by the defense under 5921.137. The question of

whether Zack is intellectually disabled is subject to the Sixth Amendment right to a

jury trial under Hurst u. Florida.

Because the Florida's procedure for determining intellectual disability relies

on the judge, rather than the jury, as factfinder, in violation of the Sixth Amendment,

this Court should grant certiorari.

CONCLUSION

WHEREFORE, for the reasons set forth above, Petitioner Michael Duane Zack,

III, prays that this Court grant this Petition for a Writ of Certiorari and order further

briefing or vacate and remand this case to the Florida Supreme Court.

Respectfully submitted,

ROBERT S. FRIEDMAN

Counsel of Record

DA\4/N B. MACREADY

STACY R. BIGGART

Office of the Capital Collateral

Regional Counsel - Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0e22

Robert. Friedman@ccrc- north. org

D awn.Macre ady@ccrc-north. org

Stacy. Bi g gaú,@ccr c- north. or g

Dated March 12,2018

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