Petition for Writ of Certiorari — Larry Lamont White, Petitioner v. Kentucky

No. 18-

IN THE

SUPREME COURT OF THE UNITED STATES

’ October Term, 2018

LARRY LAMONT WHITE

Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

PETITION FOR A WRIT OF CERTIORARI

CAPITAL CASE

Kathleen Kallaher Schmidt*

Erin Hoffman Yang

Department of Public Advocacy

5 Mill Creek Park, Suite 100

Frankfort, Kentucky 40601

(502) 564-8006 (office)

502) 564-0511 (fax)

kathleen.schmidt@ky.gov

*Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

I.

Intellectual Disability

Two months before petitioner’s case went to trial, this Court decided Hall v.

Florida, 134 S. Ct. 1986 (2014), forbidding reliance on a “single factor” in

determining whether a defendant is intellectually disabled (ID), mandating

“conjunctive and interrelated assessment” of intellectual and adaptive functioning,

and mandating application of prevailing diagnostic criteria contained in the latest

American Association on Intellectual and Developmental Disabilities [AAIDD]

manual and Diagnostic and Statistical Manual [DSM]-5. Petitioner presented

evidence of sub-average intellectual functioning from when he was 12, including two

1Q scores—73 and 76—and evidence demonstrating deficits in adaptive

functioning. Five months before petitioner’s case was decided on appeal, this Court

rendered Moore v. Texas, 187 S. Ct. 1039 (2017), requiring focus on a defendant’s

weaknesses rather than his strengths, and rejecting the use of stereotypical lay

criteria for determining the adaptive functioning prong of ID.

In clear violation of Hall, Moore, and the Eighth Amendment, the Kentucky

Supreme Court found petitioner eligible for the death penalty by 1) relying on a

single factor (his IQ score of 76), 2) failing to conduct a “conjunctive and

interrelated” assessment of both prongs of ID, 3) refusing to apply prevailing

4

clinical criteria contained in the AAIDD manual and DSM°5, and 4) focusing on

strengths and lay stereotype in evaluating adaptive behavior.

Did the Kentucky Supreme Court violate the Eighth Amendment as

interpreted in Ha// and Moore when it denied White the opportunity to present

evidence supporting the “conjunctive and interrelated” assessment of both prongs of

ID, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn

effect and refusing to look past White’s other IQ score of 76 adjusted for standard

error of measurement? Should this Court grant certiorari, vacate, and remand to

allow the Kentucky Supreme Court to reconsider and apply Hall and Moore to

correct clear Eighth Amendment violations?

II.

Search and Seizure

A seizure for a traffic violation justifies a police investigation of that

violation. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). However, “[t]he

scope of the detention must be carefully tailored to its underlying justification.”

Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1825, 75 L. Ed. 2d 229 (1983).

Because addressing the infraction is the purpose of the stop, it may “last no longer

than is necessary to effectuate th[at] purpose.” Jd. An officer's investigation of

matters unrelated to the justification for the traffic are only lawful if those inquiries

do not measurably extend the duration of the stop. Arizona v. Johnson, 555 U.S.

323, 333 (2009). In the case below, the Kentucky Supreme Court ignored this

foundational requirement, finding that the petitioner was legally removed from the

car and frisked while failing to address the fact that the officers involved apparently

abandoned their investigation of the traffic violation justifying the initial stop.

The question presented is: .

Does it violate the Fourth Amendment when officers abandon their duty to

address a traffic violation which justified a pretextual stop in order to investigate a

passenger?

List of All Parties

Petitioner is Mr. Larry Lamont White. Counsel for Mr. White is the Hon.

Kathleen Kallaher Schmidt and Hon. Erin Hoffman Yang, Assistant Public

Advocates, Department of Public Advocacy, 5 Mill Creek Park, Suite 100, Frankfort,

Kentucky 40601. | .

Respondent is the Commonwealth of Kentucky, represented by Hon. Jeffrey

Allan Cross, Assistant Attorney General, Hon. Emily Lucas, Assistant Attorney

General and to Hon. Andy Beshear, Attorney General of the Commonwealth of

Kentucky, 1024 Capital Center Drive, P.O. Box 2000, Frankfort, Kentucky 40602-

2000, (502) 696-5342, Counsel for Respondent. |

TABLE OF CONTENTS

QUESTIONS PRESENTED..sssssscssssscsssesssssessssssesessesnssssssensseesseasnssaesssassessasseanseneee 1

LIST OF ALL PARTIES vssssssssvsssssonssnnninnosssrstenne secssestaseetenesteneetnetsee 4

TABLE OF CONTENTS w.asccssscscscessscenssecessenssssessenessentnsstseesnsstasesststsestnnssnnsseaeseaese 5-6

TABLE OF AUTHORITIES ...eccccscccssecsssesscsessesesssensssssesssnsssenssssssssanssesssseanssssansenase 78

APPENDIX onsessssscsssscssssnsssscssevensssnesssssstnssstansseasesanessensenansssnassiansssanssoaneananssnsansevasee 9

TABLE OF CONTENTS TO APPENDIX ccsscssssssssssssssssssssssssssssssessnsssssseesasssesansesnee 10

CITATION TO OPINIONS BELOW. isscssccsssssssssssssesssssessesssssssssssssssesssssanstassessssesee i

JURISDICTION. sssscsssscsssesesssessnesseseseseeeneevnesvnessnestanetaeesnesseanssnassasssaessasessansessse 12

CONSTITUTIONAL PROVISIONS INVOLVED vcvccssssssssssssssssssssecsessssessessssssssee 13-14

STATEMENT OF THE CASE. woscccsscssscsssesssesssssssssssnssesnssssasstssssassssasseassssassesssee 14-23

REASONS FOR GRANTING THE WRIT vsssssssssssssssatssussssssutitisssnasansiese 23-36

I. The Kentucky Supreme Court violated the Eighth Amendment as

interpreted in Hal/ and Moore when it refused to consider evidence supporting

the “conjunctive and interrelated” assessment of both prongs of ID, ignoring an

IQ score of 73 presented to the trial court and the Kentucky Supreme Court, a

possible Flynn effect and refusing to look past White’s other IQ score of 76

adjusted for standard error of measurement? This Court should grant

certiorari, vacate, and remand to allow the Kentucky Supreme Court to

reconsider and apply Ha// and Moore to correct clear Eighth Amendment

violations.

II. The decision below merits this Court’s review because it is inconsistent with

several decisions of this Court. Automobile stops are subject to the constitutional

imperative that they not be “unreasonable” under the circumstances. Whren v.

United States, 517 U.S. 806, 810 (1996). A traffic stop is reasonable where the police

have probable cause to investigate a traffic violation. Jd. When officers fail to

address the traffic violation at issue and instead conduct a warrantless search of a

passenger, the stop becomes unreasonable. In United States v. Di Re, 332 U.S. 581,

587 (1948), this Court held that it was “not convinced that a person, by mere

presence in a suspected car, loses immunities from search of his person to which he

would otherwise be entitled.” Because Terry frisks involve an exception to the -

general rule requiring probable cause, this Court has been careful to maintain its

narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).

Moreover, the opinion below conflicts with the holdings in other states

including Maryland, Idaho, Delaware and Illinois. The question presented is a

fundamental Fourth Amendment issue. Clear guidelines for law enforcement and a

uniform constitutional rule are crucial.

CONCLUSION Wu. ccc cseessecesesscersseeesssscsscscsssesssssessssessevessssssesssssasseacssesscssnessaseeaseeessssenessseegs 37

TABLE OF AUTHORITIES

CASES

Federal Cases

Ake v. Oklahoma, 470 U.S. 68 (1985)......... eseenessecsuccscescsascsessucescsusssessecsecaucssesaeessenseeseess 12, 26

Arizona v. Johnson, 555 U.S. 823 (2009) ..cccccccscsssssscsssssssssssssesssssssssssevecssssssseessees passim

Atkins v. Virginia, 586 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)........... passim

Black v. Bell, 664 F.3d 81 (6th Cir.2011) vccccccccsccscsssssscscscssssscscsesscssscsssssssssscscsssssssssscees 25

Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005)......ccssssssssssssessessesssssssesesseeneasens 21

Brumfield vy. Cain, 135 S. Ct. 2269 (2015) ....ccccccscccccscsccssssssscsscscescsccsessesescescecens seeeeeee26, 33

Caldwell v. State, 780 A.2d 1037 (Del. 2001) .....ceescecssessstessessstessseesseseseessnessseessseessanes 36

Carroll v. Alabama, 137 S. Ct. 2093 (2017) vcccccccccscscsssscsccssssssceecssssssesescacscscececessasaseres 33

Charity v. State, 753 A.2d 556 (Md. 2000) ....cesccscssssesessscscsessessssescessscsesseesesesssseesceseseatens 35

Dunaway v. New York, 442 U.S. 200 (1979) w.ccccccsssssscssssssssssssssssecsssessssssssesssscasssvssscsssseness 6

Florida v. Royer, 460 U.S. 491, 103 S. Ct. 13819, 75 L. Ed. 2d 229 (1983) vce 2, 34

Hall v. Florida, 184 S. Ct. 1986 (2014) w..cccccssssssessssssscsssssessssssessssessssssssssssssssssessecens passim

Hall v. Florida, 572 U.S.__, 184 S. Ct. 1986 (May 27, 2014) .oecccssescsssssseseees passim

Hooks v. Workman, 689 F.3d 1148 (10th Cir.2012) 0... ccs sessuscuecasensenseracensceaeeaeuss 25

Lawrence v. Chater, 516 U.S. 168 (1996) wo eessccssccssescscecescesesssceccecessssessscecessasececanes 33

Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 187 L.Ed.2d 41 (1997)...... geeteeeeeses 23

McManus v. Neal, 779 F.3d 634 (7th Cir. 2015) .....ccccssessssssscsssssssssessssessesssessesesscsseens 25, 27

Moore v. Texas, 187 S. Ct. 1039 (2017) ...eeeeccecsesssessesseeseessestesseeessesseenees sesesenseeseneeeseess passim

Owens v. Commonwealth, 291 S.W.3d 704 (Ky. 2009) ....cecscccscscsccsccesesessssssesesesseseseseseess 23

People v. Brownlee, 713 N.E.2d 556 (Ill. 1999) .o..ceccecccscssssessssssssscsscssssesessssesecetesecesseceeees 36

Ragland v. DiGiuro, 352 S.W.3d 908 (Ky. App. 2010) w.cc.cceceeceeccescesceeccececscceceseees 34

Robert Woodall v. Commonwealth, 2017-SC-OOO17 1... esscssssscsssscescssscsesesceeseneees 15, 34

Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015) .............. “sasecesetaccesceaceceaceuees 2, 35

Roper v. Simmons, 548 U.S. 551 (2005) ....cccccsssssscssscssscssecsscccsccesscesscssecceesesceeseeeeees 34

Sasser v. Hobbs, 735 F.3d 838 (Eighth Cir. 2013) ....ccscsessscscsssscscscsesessscacscessscesscacees 26

State v. Luna, 236, 880 P.2d 265 (Idaho Ct. App. 1994) ....ccccscssesesesssssesesesesscssscscscsces 36

Terry v. Ohio, 392 U.S. 1, 24 (1968) voc eesetsteeseceeees Jeseveseccesccesensees vesceesssecesseasecseseseees 5, 34

Thomas v. Allen, 607 F.3d 749 (11th Cir. 2010) ...cccccsscsscsssescsssccessccessrssesessesesseseesessessens 25

United States v. Di Re, 332 U.S. 581 (1948) wo cccscscscscsseseslcscsssssscsesssssssscscscscsessescessasans 5

United States v. Johnson, 457 U.S. 537 (1982) .ceccccscccssssssscscsscsscsesscssessescssssssssssesssconseseee 33

United States v. Roland, 281 F. Supp. 3d 470 (D.N.J. 2017) voccecccccescscessssesessestesesesseees 28

Walker v. True, 399 F.3d 315 (4th Cir.2005) .....cccccccccscsssscscessscsssscssscsessscscsscscsesscscssceescseees 25

White v. Commonwealth, 544 S.W.3d 125 (Ky. 2017) w.ccccccccsssscscsessscssssssssesestsseses passim

Whren v. United States, 517 U.S. 806 (1996) ......cscsssesssesssssssssessesscssesssssarersseseeeesaeenees 5,35

CONSTITUTIONAL PROVISIONS

ULS. Const. Amend. IV wii. eesessseseccceccceeeessssssscceeeees Lestecaaasccceeeesecensaececesaeees passim

U.S. Const. Amend. VI ose. eeesesesessssessseseeesececscscsescsecececscecsesessasacseeesecueecacseesssavees passim

U.S. Const. Amend. VID oo... ee eececcccccccccecsssssecceecenenassseceeceseeeceessseeeeeeseeeees passim

ULS. Const. Amend. XIV... ecccccccsssscccccssseeccseeseccccensssceseeeesecsecsecessuaseeccenenss passim

STATUTES AND RULES

28 U.S.C. §1 257 oe cccsssscscsseescsecscescecsscescessssesscacsssescecesesacseessesesaesasesssscaesessneeeseueasenesseseeeseeses 12

Fla. Stat. Ann. § 921.137 wo. cccsscssssesscsnecetecssesesesesessesnseseeessessnes sacsessecesscceseeeessceessceseceesees 24

KRS 582.010 oe esccssescescssssescsseescnsesscnssssscseeescesscerssecsecseesenseseeassnesensessesessacesesssseseseseseeees 14

KRS 532.025 oe essessessesesseceensscescessscessensneesssssesesscsssscseseccscsacseessssceaseneesseesaesassnsseensenssasseeeeanes 14

KRS 582.080... escessscsseseescssenseessssscsssssencessssscescesessssecscasesseseesteneeasensesenseeesessnesseaeseeseaeaeeresses 14

KRS 532.180 0. sesssssscescessecesccssenscescesseesecescsucssessssescestesecaeensssesaseueneeseseeeeseesseeaessessenses passim

KRS 532.130 (2)... cecsssssecssteceseccsssreessssessnseeesscesssceesssccessscessseesessnseessaessssenecseseeeessasenesnees passim

KRS 582.185 oe eeceseeteeeeeees Levaesesceseeseseecoaensnenssessseseseseesseescecseseasenasensceneesssesscesassensaes passim

KRS 532.140... ccsccssssssessecssescsccessesseseccseesesesseeescescaseeces seeaeesssssesessscsseseaescsseneneneeceneseseseees passim

OTHER

U.S. National Library of Medicine, National Institutes of Health website, -

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4152423/ .......ccsscsscssssscsssesscsscssesssensensesseseeseeeees 17

https://en.wikipedia.org/wiki/Wechsler_Intelligence Scale for Children..............cccesscsesseeseees 17

James R. Flynn, Massive I@ Gains in 14 Nations: What IQ Tests Really Measure,

101 Psych. Bull. 171-91(1987 No. 2)...sssssssssssscssssssssensesssssssssssssnsesesceesssnsnesseeeee essesssnnanasescees 22

Frank M. Gresham & Daniel J. Reschly, Standard of Practice and Flynn Effect

Testimony in Death Penalty Cases, 49 Intellectual & Developmental Disabilities

131 (QOLL) on. eeceeesesssesseccssecsecsccsscsssecescssesssssucsssssuessucssscsasssucssscssccscsscssscescssscssessscssessscsscesecssesssee 25

Young, Adjusting for the Flyrn HffCCt...cccccsccscccccesessssssssesscsssssssscssssssvscesesssesscecesessnetaceaceaes 25

No. 18-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

LARRY LAMONT WHITE

Petitioner,

“ov,

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

APPENDIX

CAPITAL CASE

Kathleen Kallaher Schmidt*

Erin Hoffman Yang

Department of Public Advocacy

5 Mill Creek Park, Suite 100

Frankfort, Kentucky 40601

(502) 564-8006 (office)

502) 564-0511 (fax)

kathleen.schmidt@ky.gov

*Counsel of Record

TABLE OF CONTENTS TO APPENDIX

A. Kentucky Supreme Court decision, as modified on March 22, 2018... A1-52

B. Kentucky Supreme Court Decision, rendered August 24, 2017..........453-101

C. Motion to Exclude Death with IQ and Personality Test Results and Raw

Data....cseeccccseccssscccnsseesnsseesneeeeneseeeeeeneeneseeeeeeeeeeeeeeeeneee pee eee see eee sees A102-155

D. Report of Dennis E. Wagner..............04. Laenaeaeeceecenceaeeeeeeesteseeseneees A156°157

I. Motion for New Trial and Judgment Notwithstanding the Verdict....A158-169

F. Trial Court Order and Opinion on Motion for New Trial Motion....... A170-183

G. Memorandum of Law in Support of Defendant’s Motion to Suppress

EVICCNCE.........c cess ese sec cece cncsentecessseceeesseeesceenecsseeecsesesscesveveseesesecs A184-195

H. Trial Court Order and Opinion on Motion to Suppress............s.c000 A196-200

I. Appellant’s Motion for Leave to Cite Supplemental Authority.........A201-202

J. Robert Woodall v. Commonwealth, 2017-SC-000171 (rendered June 14, 2018) (to

be published)............cccceecceceesceveeeseees ce eteceeene nee eeneesnssaesessnseeeseaates A203-216

No. 18-

_ INTHE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

LARRY LAMONT WHITE

| Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

CITATIONS TO OPINIONS BELOW

The Petitioner filed a direct appeal of his convictions and death sentence in

the Kentucky Supreme Court. That court rendered a decision which denied relief on

Petitioner’s intellectual disability claims and affirmed the lower court’s ruling

denying his motion to suppress evidence on August 24, 2017. It is attached at the

Appendix at A53 to A101. The Petitioner filed a Petition for Rehearing. The

Kentucky Supreme Court granted the petition to the extent it modified the opinion

and the modified opinion was rendered March 22, 2018. The final opinion is

reported as White v. Commonwealth, 544 S.W.3d 125 (Ky. 2017), as modified (Mar.

11

22, 2018). That opinion is attached at Appendix A1-A52. The decision of the trial

court denying relief on petitioner’s claim of intellectual disability is attached at

Appendix A170-A183. The trial court order(s) overruling Petitioner’s motion to

suppress is attached at Appendix A196-A200. |

JURISDICTION

The Kentucky Supreme Court decision was originally entered on August 24,

2017, (A53-A101) and a timely request for rehearing was filed by the Petitioner was

granted on March 22, 2018. (Al) The Kentucky Supreme Court entered its modified

decision on March 22, 2018, (A2-A52). The decision below affirms the complete

denial of relief to Petitioner and is a final judgment of the state's highest court.

Petitioner sought application of Hal/ to his intellectual-disability claim prior to

sentencing and raised HaJ/on appeal. In denying White’s ID claim the Kentucky

court did not rely on untimeliness or any other procedural bar. Because the

Kentucky court decided the ID claim on the merits, the judgment below does not

rest on an independent state ground and this Court has jurisdiction to considér the

issues raised. Ake v. Oklahoma, 470 U.S. 68, 74 (1985). Moore was decided on

March 28, 2017, five months before the Kentucky Supreme Court’s original

(unmodified) decision and a year prior to its final decision upholding petitioner’s

death penalty. The Kentucky Supreme Court misapplied HaJ/ and implicitly

rejected Moore, vesting this Court with jurisdiction under 28 U.S.C. §1257.

The same is true for its treatment of Arizona v. Johnson, 555 U.S. 323, 333

(2009), refusing to suppress evidence seized in violation of the Fourth Amendment

12

as well. This petition has been filed within ninety days of that opinion, as required

by Supreme Court Rule 13.1.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides, in relevant

part: L

..nor shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of laws....

Ky. Rev. Stat. 532.130 provides:

(1) An adult, or a minor under eighteen (18) years of age who may be

tried as an adult, convicted of a crime and subject to sentencing, is

referred to in KRS 532.135 and 532.140 as a defendant.

(2) A defendant with significant subaverage intellectual functioning

existing concurrently with substantial deficits in adaptive behavior and

manifested during the developmental period is referred to in KRS

532.135 and 532.140 as a defendant with a serious intellectual disability.

“Significantly subaverage general intellectual functioning” is defined as

an intelligence quotient (I.Q.) of seventy (70) or below.

Ky. Rev. Stat. 532.135 provides:

(1) At least thirty (80) days before trial, the defendant shall file a motion

with the trial court wherein the defendant may allege that he is a

13

defendant with a serious intellectual disability and present evidence with

regard thereto. The Commonwealth may offer evidence in rebuttal.

(2) At least ten (10) days before the beginning of the trial, the court shall

determine whether or not the defendant is a defendant with a serious

intellectual disability in accordance with the definition in KRS 532.130.

(3) The decision of the court shall be placed in the record.

(4) The pretrial determination of the trial court shall not preclude the

defendant from raising any legal defense during the trial. If it is

determined the defendant is an offender with a serious intellectual

disability, he shall be sentenced as provided in KRS 532.140.

Ky. Rev. Stat 532.140 provides:

(1) KRS 532.010, 532.025, and 532.030 to the contrary notwithstanding,

no offender who has been determined to be an offender with a serious

intellectual disability under the provisions of KRS 532.135, shall be

subject to execution. The same procedure as required in KRS 532.025 and

532.030 shall be utilized in determining the sentence of the offender with

a serious intellectual disability under the provisions of KRS 532.135 and

532.140.

(2) The provisions of KRS 532.135 and 532.140 do not preclude the

sentencing of an offender with a serious intellectual disability to any

other sentence authorized by KRS 532.010, 532.025, or 532.030 for a

crime which is a capital offense.

(3) The provisions of KRS 532.135 and 532.140 shall apply only to trials

commenced after July 13, 1990.

STATEMENT OF THE CASE

I. Statement of the Case Regarding Intellectual Disability

Petitioner Larry Lamont White was born March 30, 1958, and grew up in

Louisville, Kentucky, in the home of his mother and grandmother. When he was 12,

he underwent comprehensive psychological and IQ evaluation resulting in two IQ

scores, a 73 and a 76, included within 50 pages of psychological and IQ test results,

reports and raw data.! (A105-A155).

' Trial counsel attached this data to a Motion to Exclude Death as Possible Punishment Based Upon Defendant’s

Previous Borderline IQ Testing and Recent Decision of Supreme Court in Hail v. Florida served on July 28, 2014.

14

Kentucky’s definition of ID includes an arbitrary 70 IQ score cut-off,

contained in Kentucky Revised Statutes (KRS) 532.130(2)2, as follows:

(2) A defendant with significant subaverage intellectual functioning

existing concurrently with substantial deficits in adaptive behavior and

manifested during the developmental period is referred to in KRS

532.135 and 532.140 as a defendant with a serious intellectual disability.

“Significantly subaverage general intellectual functioning” is defined as

an intelligence quotient (I.Q.) of seventy (70) or below.

But seven weeks before White’s trial, this Court decided Hall v. Florida, 572

U.S.__, 184 S. Ct. 1986 (May 27, 2014), requiring application of a five-point

standard error of measurement (SEM) in evaluating IQ scores. Hall held that

Florida's strict cut-off requiring an IQ score of 70 or below (which is virtually

identical to Kentucky’s cut-off’) and Florida’s reliance on a single IQ score to deny

ID status violated the Eighth Amendment by disregarding established medical

practice in two interrelated ways: 1) by taking an IQ score as final and conclusive,

and 2) by relying exclusively on an IQ score to deny exemption from the death

penalty. Jd., at 1995.

? Petitioner alerts,this Court to a very recent decision of the Kentucky Supreme Court in Robert Woodall v.

Commonwealth, 2017-SC-000171 (rendered June 14, 2018). A203-A216. In that opinion, the Kentucky Supreme

Court held that KRS 532.130 (2) was unconstitutional under the Eighth Amendment, finding it contained “an

outdated test for ascertaining intellectual disability.”A203. Woodall, a death row inmate, filed a post-conviction

motion asking the trial court to declare him intellectually disabled. The Kentucky Supreme Court remanded to the

trial court to hold a hearing, make findings and issue a ruling on intellectual disability. In its opinion, it cites

petitioner’s opinion of August 24, 2017, and another opinion (from another death row inmate named Karu White)

for the principle that they restrict a Kentucky defendant’s “ability to attain intellectual-disability status to prevent the

consideration of the death penalty on the finding that the defendant has an IQ score of 70 or below.” A207. While

this opinion is not yet final, the relevance to petitioner’s case is plain. Not four months ago, the Kentucky Supreme

Court used this same statute to deny relief where petitioner asked it to hold that the trial court erred by failing to

hold a hearing on his intellectual disability. It must be noted the Commonwealth conceded Woodall was entitled to a

hearing in the trial court. A212.

3 This Court observed that only Kentucky and Virginia have adopted a strict IQ cut-off similar to Florida’s. Hall,

134 S.Ct. at 1996.

15

On July 14, 2014, White’s trial started, and on July 28, 2014, a jury found

him guilty of rape and murder and recommended the death penalty plus 20 years.

Sentencing was scheduled for September 26, 2104.

A month prior to sentencing, on August 4, 2014, White’s counsel filed a timely

motion for new trial and asked for a hearing on ID, citing Hall. Motion for New

Trial and Judgment Notwithstanding the Verdict. (A158-A169) Counsel also filed a

Motion to Exclude Death as Possible Punishment Based Upon Deferdant’s Previous

Borderline IQ Testing and Recent Decision of Supreme Court in Hall v. Florida

served on July 28, 2014. (A102-A103). With that motion, counsel introduced the 50

pages of psychological test results, reports, and raw data from 1971, including both

of White’s IQ scores, the 73 (A150-A155) and the 76 (A128-A134).

The trial court noted in passing that the Commonwealth argued White’s

violation of Kentucky’s 30-day pre-trial deadline for claiming exemption from the

death penalty due to ID. The Commonwealth also argued Hall required more than a

showing of borderline intelligence to eliminate the death penalty. The trial court ©

stated White had not cited any other evidence of intellectual impairment. It

summarily denied White relief. The trial court overlooked (or ignored) White’s IQ

score of 78, and relied solely on his higher score of 76. (A180).

In his direct appeal brief, petitioner submitted to the Kentucky Supreme

Court the same 50 pages of ID evidence he presented to the trial court. Included .

were his IQ scores of 73 on the Otis Quick-Scoring Mental Ability Test (Otis) and

his 76 on the original Weschler Intelligence Scale for Children (WISC). White

16

| argued on appeal that the SEM and the Flynn Effect4 should be applied to lower his

IQ scores. Prior to oral argument on appeal, Petitioner filed a Motion for Leave to

Cite Supplemental Authority and reminded the Kentucky court not to overlook Mr.

White’s lower IQ score of 73. (A201-A202).

Yet the Kentucky Supreme Court failed to mention or consider the 73 IQ

score. Had the SEM alone been applied to White’s 73 Otis score, it would have

established his IQ in a range as low as 68, satisfying the first prong of KRS

532.130(2). The Kentucky Supreme Court also categorically rejected considering the

Flynn Effect.

The WISC administered to White was published in 1949, but normed in 1947,

which was 24 years before White took the test at age 12.5 Adjusting for the Flynn

Effect alone at .31 points per year, the total Flynn adjustment for White’s 1971

WISC score would be 7.44 points, reducing his WISC score to as low as 68.56. This

is without any adjustment for the SEM. White’s WISC score, when adjusted for the

Flynn Effect alone, satisfies the “significant subaverage intellectual functioning”

prong of ID under KRS 532.130 and KRS 532.135.

4 The “Flynn Effect” refers to the observed rise over time in standardized intelligence test scores, documented by

Flynn in a study on intelligence quotient (IQ) score gains in the standardization samples of successive versions of

Stanford-Binet and Wechsler intelligence tests. Flynn’s study revealed a 0.3-point increase per year. The Flynn

effect was also supported by calculations of IQ score gains between 1972 and 2006 for tests including the Wechsler

Intelligence Scale for Children (WISC). The average increase in IQ scores per year was 0.31, which was consistent

with Flynn’s earlier findings. U.S. National Library of Medicine, National Institutes of Health website,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4152423/. (last checked April 11, 2018)

* https://en.wikipedia.org/wiki/Wechsler Intelligence Scale_for Children, last checked May 5, 2018.

17

Evidence Meeting Both Prongs of ID at Trial and on Appeal

The 50 pages of testing, reports, and raw data were compiled when White

was 12 years old, and there can be no question that his ID manifested during the

developmental period.

White’s psychological testing and raw data presented at trial and on appeal

included a report by licensed psychologist Dennis Wagner, who in 2009 reviewed

the 1971 evidence. Psychological Examination Report (A156-A157). Wagner noted

that White had completed 10‘ grade and had a GED. But he also reported that “[i]n

1971, at age 12, Mr. White was found to have Borderline Intellectual functioning

and significant learning deficits in reading and mathematics. Reasoning was in the

low normal range.... He was immature, turned off with school, and committed to

delinquent values, though slight socialization had been internalized.” Wagner

Report (A157).

Psychologist Sonia Hess evaluated White in 1971 when he was before the.

court for truancy and warehouse breaking. Hess stated that at age 12 White had “a

significant learning deficit, with reading at the 2.4 grade level and arithmetic at the

3.4 level.” Sonia Hess, Psychological Services Report (A107).6 He showed a “fairly

primitive level of socialization” and “[a]social distance from family and friends ...

[having] little to do with his brother when the latter was at home.” Jd. Hess noted

petitioner “spends his time at home playing cards with his grandmother or

watching TV.” Jd. White’s mother ascribed White’s “present difficulties” in 1971 to

6 Mr. White is referred to as “Larry Griffin” in the 1971 testing and evaluation.

18

some older boys with whom he’d been associating. White’s 1971 probation officer,

M.L. Harris, stated White was “peer group oriented with older sophisticated

delinquents.” Harris Referral (A137). Hess recommended removal from the home

and commitment to a boys’ camp. Jd.

The Trial

Trial started on July 14, 2014. No mitigation evidence apart from White’s

youthful age of 25 at the time of the murder was presented to the jury.7 Yet White

demonstrated substantial deficits in adaptive behavior to the trial court. White -

refused to meet with experts and refused to agree to further psychological testing or

to sign releases. He refused to dress and come out of his cell for the penalty phase of

his trial. Mitigation witnesses were available but White refused to allow their

testimony. Prior to sentencing White’s counsel submitted White’s IQ scores of 73

and 76 with the 1971 psychological tests, reports, and raw data, cited Halli, and

asked the trial court for a hearing on ID, stating, “[T]his evidence must be heard:...”

Trial Court Ruling on ID

White’s counsel pointed out that Kentucky Revised Statute (KRS) 532.130

: defining ID ineligibility for the death penalty is essentially identical to the statute

struck down in Hall. Motion for New Trial (A103). Yet the trial court overlooked or

ignored petitioner’s score of 73 on the Otis entirely and failed to apply either the

SEM or Flynn Effect to petitioner’s 76 score. The trial court ignored petitioner’s

immature behavior and the raw data and reports from White’s developmental

7 White was 25 at the time of the Armstrong murder.

19

period showing deficits in adaptive behavior. The trial court ruled that White’s

showing of ID.was insufficient to merit exemption from the death penalty:

...the Commonwealth argues that, based on Hall, it takes more

than merely a showing of borderline intelligence to eliminate the death

penalty. The Defendant has cited no other evidence regarding any

impairment.

Trial Court Opinion and Order (A180).

Kentucky Supreme Court Ruling on ID

The Kentucky Supreme Court ignored White’s failure to meet the 30-day pretrial deadline in KRS 532.135 for raising an issue regarding ID. Based entirely on

the fact that White’s WISC score was still one point above 70 after the SEM was

applied, the Kentucky court denied a hearing, refusing to engage in further

exploration of White’s ID. The court upheld his death sentence, stating in relevant

part as follows:

Appellant submitted to the trial court his 1971 IQ test score of 76.

After applying the standard error of measurement, Appellant's IQ score

has a range of 71 to 81. Such a score is above the statutory cutoff of 70,

thereby failing to meet the “significant subaverage” requirement. Thusly,

further investigation into his adaptive behavior was unnecessary.

Nonetheless, Appellant submits that Hal/ forbids states from denying

further exploration of intellectual disability simply based on an IQ score

above 70. However, this Court can find no such prohibition. The holding

of Hall renders a strict 70-point cutoff as unconstitutional if the standard

error of measurement is not taken into account. Jd. at 2000. In other

words, HaJ/ stands for the proposition that prior to the application of the

plus or minus 5-point standard error of measurement, “an individual with

an IQ test score ‘between 70 and 75 or lower’ may show intellectual

disability by presenting additional evidence regarding difficulties in

adaptive functioning.” Jd. (quoting Atkins v. Virginia, 536 U.S. 304, 309,

n. 5, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). That is not the case before

us, as Appellant's IQ, even after subtracting the 5-point standard error of

measurement, is higher than the 70-point minimum threshold.

20

We also reject Appellant's request that we apply the “Flynn Effect” to

his IQ score. The Flynn Effect is a term used to describe the hypothesis

that “as time passes and IQ test norms grow older, the mean IQ score

tested by the same norm will increase by approximately three points per

decade.” Bowling v. Commonwealth, 163 S.W.3d 361, 374 (Ky. 2005)

(citing James R. Flynn, Massive IQ Gains in 14 Nations: What IQ Tests

Really Measure, 101 Psych. Bull. 171-91(1987 No. 2)). Therefore, as

applied, Appellant's 1971 IQ score of 76, would actually be 59 by today's

standards—71 minus 12 points for the Flynn Effect and 5 points for the

standard error of measurement—well below the 70-point threshold.

Appellant, however, fails to cite any precedential or statutory authority

indicating that trial courts must take into account the Flynn Effect.

Indeed, KRS 532.140 is unambiguous and makes no allowance for the

Flynn Effect, nor is such an adjustment mandated by this Court or the

U.S. Supreme Court. See Bowling, 163 S.W.3d at 375-76. Furthermore,

even if the Court was obliged to ignore the confines of KRS 532.135 and

place less weight on Appellant's IQ score, there is ample evidence of

Appellant's mental acumen. For example, Appellant often advocated for

himself through numerous pro se motions. One such motion was written

so persuasively that defense counsel specifically asked the trial court to

rule on its merits. Consequently, we find no error in the trial court's

denial of Appellant's motion for an evidentiary hearing or exclusion of the

death penalty. ,

White v. Commonwealth, 544 S.W.3d 125, 152 (Ky. 2017), as modified (Mar. 22,

2018) (A45-A46).

II. Statement of the Case Regarding Illegal Search and Seizure

Sergeant Aaron Crowell testified he was directed to find a DNA sample from

White. He was surveilling White’s residence with Detective William Hibbs on

2/21/06 when a car White had entered as a passenger pulled out and began

speeding. Hibbs and Crowell initiated a stop on the Lincoln Town Car White was

riding in. Crowell asked White to exit the passenger seat and frisked him, based on

his knowledge of White’s “propensity to carry weapons.” White placed a cigar on the

21

trunk of the car during the frisk. When the traffic stop ended, the cigar rolled onto

the street and was collected by the officers. |

Crowell testified that he was entitled to pull White from the car and frisk

him to determine if White had a warrant for failing to appear. Crowell testified that

he was present for White’s court date the day before the stop, but White and his

attorney were not. “So it was my understanding when I left the courthouse that day

a circuit court warrant was being issued for Mr. White.” Crowell claimed that he

could not confirm whether or not there was a warrant without asking White to exit

the car. Nonetheless, Crowell admitted “whether there was a warrant issued or not,

our mission was the same. And we would’ve conducted the same activity.”

Contrary to Crowell’s testimony, a video tape of the hearing in question, introduced

by White’s trial counsel, below, showed that White, his attorney, and the

prosecution were present. TR 421. But Crowell was not present. TR 421. Crowell’s

testimony was also contradicted by Hibbs, who stated that a warrant could be

verified regardless of whether the defendant exited the car. While the car was

purportedly stopped because of speeding, neither Hibbs nor Crowell issued any

citation or ticket for speeding. See, Memorandum of Law in Support of Motion to

Suppress (A184-A194). The trial court failed to address White’s argument that a

citation was never made. (A196-A200). Instead, the trial court simply held there

was probable cause a speeding violation occurred and speculated that Mr. White’s

DNA would be subject to inevitable discovery based on a later 2008 Conviction. Id.

22

The Kentucky Supreme Court affirmed the denial of his suppression motion.

The Court held, “we can quickly dispose of Appellant's contentions” that he was

illegally removed from the car and frisked. Pursuant to Owens v. Commonwealth,

291 S.W.3d 704 (Ky. 2009) an “officer has the authority to order a passenger to exit

a vehicle pending completion of a minor traffic stop.” Id. at 708 (citing Maryland v. -

Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 187 L.Ed.2d 41 (1997)). The Opinion

Affirming stated that once White exited the cay, Crowell had reasonable suspicion

to believe White was armed.

The Kentucky Supreme Court did not address the fact that neither officer

issued a citation to the driver of the car, White v. Commonwealth, 544 S.W.3d 125,

140 (Ky. 2017), as modified (Mar. 22, 2018). But there was no “completion of the

minor traffic stop.”

REASONS FOR GRANTING, VACATING, AND REMANDING FOR FURTHER

CONSIDERATION OF INTELLECTUAL DISABILITY

1) The Kentucky Supreme Court violated Hall and Moore in Three Clear Ways,

by a) basing its ID decision on a single factor and failing to conduct a

“conjunctive and interrelated assessment” of ID, b) failing to apply prevailing

diagnostic criteria (the SEM and Flynn Effect) to both of White’s IQ Scores,

and c) determining White’s adaptive functioning by relying on strengths and

lay stereotype instead of weaknesses.

Executing a person with intellectual disability violates the Eighth

Amendment. Atkins v. Virginia, 536 U.S. 304, 321 (2002). Atkins left “to the States

the task of developing appropriate ways to enforce the constitutional restriction,”

fd., at 317, But this Court recognized in Hall v. Florida, 134 S. Ct. 1986 (2014) and

Moore v. Texas, 137 S. Ct. 1039 (2017), that states’ discretion is “not ‘unfettered....”

23

Moore, at 1042 (quoting Hall, 184 S. Ct. at 1998). Fla. Stat. Ann. § 921.137. Hall

focused on the first prong of ID, intellectual functioning, and held that Florida's ID

statute was unconstitutional as applied because Florida failed to comply with the

prevailing medical consensus regarding the interpretation of IQ scores. Hall, 1348S.

. Ct. at 1990. Moore focused on the second prong of ID, adaptive behavior, and

reversed a Texas death sentence because it was based on the defendant’s strengths,

not his weaknesses, and because it relied on lay stereotypical notions of ID. Moore

confirmed the holding in Ha// that a determination whether a defendant is ID must

be “informed by the medical community’s diagnostic framework,” by “current,”

“established” medical practices, “practices and trends in other states,” and “current

medical standards,” as contained in “the most recent (and still current) leading

diagnostic manuals”:

Although Atkins and Hall left to the States “the task of developing

appropriate ways to enforce” the restriction on executing the

intellectually disabled, States' discretion, we cautioned, is not

“unfettered,” Even if “the views of medical experts” do not “dictate” a

court's intellectual-disability determination, we clarified, the

determination must be “informed by the medical community's diagnostic

framework,” We relied on the most recent (and still current) versions of

‘the leading diagnostic manuals—the DSM-5 and AAIDD-11. Florida, we

concluded, had violated the Eighth Amendment by “disregardling]

established medical practice.” We further noted that Florida had parted

ways with practices and trends in other States. Ha// indicated that being

informed by the medical community does not demand adherence to

everything stated in the latest medical guide. But neither does our

precedent license disregard of current medical standards.

Moore, 137 S. Ct. at 1048-49 (internal citations omitted) (emphasis added)

24

Halland Moore Resolved a Split, but Courts are Still Confused

Prior to Hal/ and Moore the courts were split regarding the Flynn Effect. In

2015, after the decision in Hal/ but prior to Moore, the Seventh Circuit Court of

Appeals described the split as follows:

The Flynn Effect is taking on increased prominence in habeas

litigation alleging death ineligibility under Atkins. See Frank M.

Gresham & Daniel J. Reschly, Standard of Practice and Flynn Effect

Testimony in Death Penalty Cases, 49 Intellectual & Developmental

Disabilities 131 (2011). The circuits are not consistent in their approach

on this point. Compare, e.g., Black v. Bell, 664 F.3d 81, 95 (6th Cir.2011)

(faulting state court for not considering the Flynn Effect under Tennessee

law) and Walker v. True, 399 F.3d 315, 322-23 (4th Cir.2005) (finding the

Flynn Effect relevant to whether someone is two standard deviations

below the mean), with Hooks v. Workman, 689 F.3d 1148, 1170 (10th

Cir.2012) (‘Atkins does not mandate an adjustment for the Flynn

Effect.”). See also Thomas, 607 F.3d at 757-58 (collecting cases and

noting that no expert consensus exists on how to apply the Flynn Effect

to individual cases); ‘Young, Adjusting for the Flynn Effect, supra, at 631—

41 (analyzing the different approaches used in state and federal courts);

Gresham & Reschly, supra, at 136-87 (criticizing those administering

psychological tests for failing to consider the Flynn Effect). Our circuit

has not yet weighed in.

McManus v. Neal, 779 F.3d 634, 653 (7th Cir. 2015) (stating nothing in Atkins

suggests IQ test scores must be adjusted to account for the Flynn Effect).

This Court should grant certiorari, vacate and remand this case to dispel the

persisting confusion exhibited in McManus and the present case, and to underscore

that while Atkins did not address the Flynn Effect, Hal] and Moore have resolved

the Flynn Effect issue. Both Hal/ and Moore name the DSM-5 and the eleventh

edition of the AAIDD Manual as the “leading” manuals and both Hal/ and Moore

mandate that scientific criteria recommended in those manuals must be applied in

determining ID. The DSM-5 and the eleventh edition of the AAIDD Manual both

25

mandate consideration of the Flynn Effect. The Kentucky court, like the court in

McMan us, failed to recognize that under Hal/ and Moore the Flynn Effect must be

considered and applied. This Court should grant certiorari, vacate the Kentucky

court’s decision, and remand for further consideration under Hall and Moore.

a) Kentucky Violated Hall by Evaluating White’s intellectual Functioning

Based on a Single Factor, His Highest IQ Score, a 76

In denying White’s ID claim the Kentucky court did not rely on untimeliness

or any other procedural bar. Because the Kentucky court decided the ID claim on

the merits, the judgment below does not rest on an independent state ground and

this Court has jurisdiction to consider the issues raised. Ake v. Oklahoma, 470 U.S.

68, 74 (1985).

According to the DSM-—5, a defendant’s IQ score alone is not enough to reject

his ID claim, because it is necessary to also consider his adaptive functioning in

conjunction with his IQ score. “Simply put, an IQ test score alone is inconclusive.”

| Sasser v. Hobbs, 735 F.3d 833, 844 (Eighth Cir. 2013). See also Brumfield v. Cain,

- 185 S. Ct. 2269 (2015) (state court violated due process by determining that

prisoner's IQ score of 75 demonstrated that he could not possess subaverage

intelligence). Hal/ rejects short-cut reliance on a single factor, like a single IQ score,

and states explicitly that intellectual functioning and adaptive functioning must be

considered together in a “conjunctive and interrelated assessment” as recommended

in the DSM-5. Hall refers to this as “the requisite test”:

...the requisite test for establishing intellectual disability is a

“conjunctive and interrelated assessment” under which “i]t is not sound °

to view a single factor as dispositive.” Id. (quoting the fifth (and most

26

recent) edition of the Diagnostic and Statistical Manual of Mental

Disorders for the proposition that “a person with an IQ score above 70

may have such severe adaptive behavior problems ... that the person's

actual functioning is comparable to that of individuals with a lower IQ

score”).

Hall at 1994.

According to Merriam Webster “requisite” means “essential, necessary.”8 By

using the word “requisite” Hallindicated that a “conjunctive and interrelated”

assessment is mandatory. “Interrelated’ means “having a mutual or reciprocal

relation.”9 And “conjunctive” means “connective, conjunct, or conjoined.”!0 By using

both “conjunctive” and “interrelated” to describe the nature of the requisite

assessment, Hal/’s ruling is clear that intellectual functioning is not to be evaluated

on its own, that adaptive functioning must be considered simultaneously with

intellectual functioning, no matter what a defendant’s IQ scores may be.

By mandating a “conjunctive and interrelated” assessment, and requiring

conjoined consideration of intellectual and’ adaptive functioning, Hal/ recognizes

that deficiencies in adaptive behavior can lower an IQ score. Even when an IQ score

adjusted for SEM remains above 70, assessment of ID does not stop.

| The Kentucky court’s refusal to consider White’s adaptive functioning at all

clearly and obviously violated Hall. Under Halla court cannot cherry-pick a single

factor—like a defendant’s highest IQ score— and ignore another lower score. Yet

8 Merriam Webster online dictionary, https://www.merriam-webster.com/dictionary/requisite last consulted on May

7, 2018.

° Merriam Webster online dictionary, https://www.merriam-webster.com/dictionary/interrelated, last consulted on

May 7, 2018.

10 Merriam Webster online dictionary, https://www.merriam-webster.com/dictionary/conjunctive, last consulted on

May 5. 2018.

27

the Kentucky court focused solely on White’s WISC score of 76 to deny his ID:

status. Kentucky ignored White’s lower IQ score of 78, and failed to apply the SEM

to that score, which would have lowered it to 68 and satisfied the first prong of KRS

532.130. Relying solely on White’s highest IQ score as a single factor was a clear

violation of Hall. Kentucky violated Hall and Moore by relying on a single factor,

the WISC score, ignoring White’s 73 IQ score, and refusing to conduct the requisite

interrelated and conjunctive assessment of White’s IQ scores in the light of his

adaptive deficits as required by Moore. This Court should grant certiorari, vacate,

and remand to allow Kentucky to comply with Hal/ and Moore.

b) Kentucky Violated Hal/ and Moore by Failing to Apply Prevailing Diagnostic

Criteria (SEM and Flynn Effect) to White’s IQ Scores.

The current AAIDD, eleventh edition, recognizes the Flynn Effect as a

“challenge” to the reliability and validity of an I.Q. test score, AAIDD-11, at 37, and

mandates application of the Flynn Effect by naming it a “best practice” for a

clinician administering a test with outdated norms. See AAIDD-11 at 95-96; id. at

37 (“[Blest practices require recognition of a potential Flynn Effect when older

editions of an intelligence test (with corresponding older norms) are used in the

assessment or interpretation of an IQ score.”). The DSM-—5 likewise recognizes the

Flynn Effect as a factor that may affect IQ test scores. See DSM-5 at 37. See also,

United States v. Roland, 281 F. Supp. 3d 470, 503 (D.N.J. 2017) (recognizing

application of the Flynn Effect as a “best practice”)

Hall noted that “[olnly the Kentucky and Virginia Legislatures have adopted

a fixed score cutoff identical to Florida's,” thus pointedly calling Kentucky’s KRS

28

532.130(2) into question. Hal/, at 1996. In marginal, grudging compliance with

Hall, the Kentucky court applied the SEM to White’s 76 WISC score. But Kentucky

violated Hallby failing to even recognize and then apply the SEM to White’s 73 IQ

score, and violated Hall by failing to apply the Flynn Effect to either of White’s two

IQ scores. Both Ha// and Moore require that a decision on ID must be informed by

the current AAIDD and the DSM. The Kentucky court refused to apply the Flynn

Effect to either of White’s IQ scores, stating that White had “failed to cite any

precedential or statutory authority indicating that trial courts must take into

’ account the Flynn Effect.” This is incorrect, because White cited Hal/, and Hall

requires states to take into account prevailing diagnostic criteria contained in the

latest AAIDD manual and DSM-5, and the AAIDD and current DSM-5 both require

accounting for the Flynn Effect, particularly in a test as outdated as the 1949

original version of the WISC administered to Mr. White in 1971.

The Kentucky court’s failure to apply even the SEM to White’s 73 Otis score

is an obvious, clear violation of Ha//. Failure to apply both the SEM and the Flynn

Effect to White’s 73 score and failure to apply the Flynn Effect to his 76 score

violated Hall and resulted in a deadly exaggeration of White’s IQ, rendering him

eligible for the death penalty when he should be exempt.!! The Court should grant

certiorari, vacate, and remand this case under Hail].

'' The WISC test administered to petitioner was published in 1949, but normed in 1947, which was 24 years earlier.

Adjusting for the Flynn Effect at .3 points per year, the total Flynn adjustment for petitioner’s 1971 WISC score

would be 7.2 points. Accordingly, petitioner’s WISC score of 76 adjusted solely for the Flynn Effect even (without

considering the SEM) would be 69. A 69 score satisfies the “significant subaverage intellectual functioning” prong

of ID under KRS 532.130.

29

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