Petition for Writ of Certiorari — Kenneth Darcell Quince, Petitioner v. Florida

Supreme Court briefJun 25, 2018

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No. _ _ _ _ __

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KENNETH DARCELL QUINCE AIK.!A RASIKH ABDUL-HAKIM,

Petitioner,

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

PETITION FOR WRIT OF CERTIORARI

DEA TH PENALTY CASE

RAIIEELA AHMED

COUNSEL OF RECORD

FLORIDA BAR No. 0713457

AHMED@CCMR.STATE.FL. US

MARIA CHRISTINE PERINETTI

FLORIDA BAR No. 0013837

PERINETTI@CCMR.STATE.FL. US

LISA MARIE BORT

FLORIDA BAR No. 0119074

BORT@CCMR.STA TE.FL.US

ASSISTANT CCRCs

LAW OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL - MIDDLE REGION

12973 NORTH TELECOM PARKWAY,

TEMPLE TERRACE, FLORIDA 33637-0907

(813) 558-1600

Counsel for the Petitioner, Kenneth D.

Quince.

CAPITAL CASE

QUESTIONS PRESENTED

QUESTION ONE

Did Florida violate Atkins v. Virginia, Hall v. Florida, Moore v. Texas, and the Eighth and

Fourteenth Amendments of the United States Constitution when it disregarded the opinion(s) of

the medical community in accepting the Flynn effect as a valid correction of intelligence quotient

scores formulated from outdated tests, and further disregarded the medical diagnostic framework

for intellectual disability by ignoring the evidence of deficits in adaptive functioning manifested

prior to the age of 18, thus finding Kenneth Darcell Quince eligible to be executed?

QUESTION Two

Whether Florida's statutory mandate that Kenneth Darcell Quince prove all three prongs to

determine intellectual disability by clear and convincing evidence creates a real danger of

executing the intellectually disabled in violation of Atkins v. Virginia, Cooper v. Oklahoma,

Medina v. California, and the Eighth and Fourteenth Amendments to the United States

Constitution?

LIST OF PARTIES

All parties appear in the caption of the case.

TABLE OF CONTENTS

CONTENTS

PAGE(S)

QUESTIONS PRESENTED ............................................................................................................ i

LIST OF PARTIES ......................................................................................................................... ii

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

INDEX TO APPENDICES ............................................................................................................. V

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

OPINIONS BELOW ....................................................................................................................... 1

JURISDICTION ............................................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................... 2

STATEMENT OF THE CASE ....................................................................................................... 3

Introduction ......................................................................................................................... 3

Trial Court Proceedings and Initial Postconviction Proceedings ...................................... 4

Summary of the Mental Health/Expert evidence presented at the trial

proceedings ................................................................................................ 4

Atkins - related Postconviction Proceedings ....................................................................... 5

Summary of the Mental Health/Expert evidence presented at the Atkins related postconviction proceedings ............................................................. 6

Summary of the lay witness evidence presented at the Atkins - related

postconviction proceedings ....................................................................... 13

Hall - related Postconviction Proceedings ........................................................................ 14

Summary of the evidence presented at the Hall - related postconviction

proceedings .. .. .. ..... ........... ... .. .... ... .... ....... . .. . .. ... .. .. ... ......... .... ... ... ... .. .......... 15

iii

TABLE OF CONTENTS - CONTINUED

CONTENTS

PAGE(S)

REASONS FOR GRANTING THE PETITION .......................................................................... 26

Question One ................................................................................................................... 17

Introduction........................................................................................................... 17

Florida's disregard of the Flynn effect in correcting outdated intelligence tests .. 18

Florida's failure to assess all three prongs in tandem in determining intellectual

disability ............................................................................................................... 23

Question Two ................................................................................................................... 30

CONCLUSION ............................................................................................................................. 36

TABLE OF CONTENTS

INDEX TO APPENDICES

[IN SEPARATE VOLUME]

Appendix A.

Revised opinion of the Supreme Court of Florida affirming the lower

court's denial of relief. Quince v. State, Appeal No. SC17-127 (April 12,

2018)."

Appendix B.

Order of the Supreme Court of Florida granting the State's motion for

clarification and denying Quince's motion for rehearing. Quince v. State,

Appeal No. SCI 7-127 (April 12, 2018).

Appendix C.

Quince's motion for rehearing filed before the Supreme Court of Florida.

Quince v. State, Appeal No. SCI 7-127 (February 1, 2018).

Appendix D.

State of Florida's motion for clarification filed before the Supreme Court of

Florida. Qu(nce v. State, Appeal No. SCI 7-127 (January 23, 2018).

Appendix

Initial opinion of the Supreme Court of Florida affirming the lower court's

denial ofrelief. Quince v. State, Appeal No. SC17-127 (January 18, 2018).

Appendix F.

Final Order of the Circuit Court of the Seventh Judicial Circuit in and for

Volusia County, Florida, denying Quince's renewed motion for

determination of intellectual disability as a bar to execution. Circuit Court

Case No. 80-00048CFAES (December 28, 2016).

Appendix G.

Non-final Order of the Circuit Court of the Seventh Judicial Circuit in and

for Volusia County, Florida, on Quince's renewed motion for determination

of intellectual disability as a bar to execution under Florida Rule of Criminal

Procedure 3.203 and §921.137, Florida Statutes. Circuit Court Case No. 8000048CF AES (May 17, 2017).

Appendix H.

Table from an excerpt of Quince's initial brief to the Supreme Court of

Florida demonstrating Quince's intelligent quotient scores, his scores with

the Flynn effect correction, his scores with the standard error measurement,

and his scores with the Flynn effect correction and standard error of

measurement. Quince v. State, Appeal No. SCI 7-127 (filed on April 12,

2017).

Appendix I.

Table from an excerpt of Quince's initial brief to the Supreme Court of

Florida demonstrating Quince's evidence of concurrent deficits in present

adaptive functioning. Quince v. State, Appeal No. SCI 7-127 (filed on April

12,2017).

TABLE OF AUTHORITIES

CASES

PAGE(S)

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ...................... passim

Blackv. Bell, 664 F. 3d 81, 96 (6th Cir. 2011) ............................................................................. 21

Black v. Carpenter, 866 F. 3d 734 (6th Cir. 2017) ................................. :..................................... 18

Brumfieldv. Cain, - - - U.S. - - -, 135 S. Ct. 2269, 192 L. Ed. 2d 356 (2015) ............................. 25

Bundy v. State, 471 So. 2d 9 (Fla. 1985) ......................................................................................... 6

Burgess v. Comm 'r., Ala. Dept. of Corr., 723 F. 3d 1308 (11th Cir. 2013)

........................................................................................................................................................ 21

Burns v. State, 944 So. 2d 234 (Fla. 2006) ................................................................................... 30

Chase v. State, 171 So. 3d 463 (Miss. 2015) ................................................................................ 21

Chase v. State, 873 So. 2d 1013 (Miss. 2004) ........................................................................ 25, 33

Cherry v. State, 959 So. 2d 702 (Fla. 2007) ......................................................................... passim

Coleman v. State, 341 S.W. 3d 221 (Tenn. 2011) ....................................................................... .21

Commonwealth v. Sanchez, 614 Pa. 1, 36 A. 3d 24 (2011) ......................................................... 33

Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996) ..................... i, 30

Dufour v. State, 69 So. 3d 235 (Fla. 2011) .................................................................................. 30

Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) ............................ 31

Ex parte Briseno, 135 S.W. 3d 1 (Tex. Crim. App. 2004), abrogated by Moore v. Texas, 137 S.

Ct. 1039, abrogated by Ex parte Moore, - - - S.W. 3d - - -, 2018 WL 2714680 (Tex. Crim. App.

June 6, 2018) ........................................................................................................................... 33, 34

Franklin v. Maynard, 356 S.C. 276, 588 S.E. 2d 604 (2003) ....................................................... 33

Frye v. US., 293 F. 1013 (D.C. Cir. 1923) ............................................................................... 6, 21

Green v. Johnson, 2006 WL 3746138 (E.D. Va. December 15, 2006) ....................................... .22

Green v. Johnson, 431 F. Supp. 2d 601 (E.D. Va. May 4, 2006) ................................................. 21

TABLE OF AUTHORITIES - CONTINUED

CASES

PAGE(S)

Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) ................................... 31

Hall v. Florida, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014) ................................................ passim

Hall v. State, 201 So. 3d 628 (Fla. 2016) .......................................................................... 14, 24, 25

Hill v. Humphrey, 662 F. 3d 1335 (11th Cir. 2011) ..................................................................... 32

Hooks v. Workman, 689 F. 3d 1148 (10th Cir. 2012) ................................................................... 34

Jones v. State, 966 So. 2d 319 (Fla. 2007) .................................................................................... 30

Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F. 3d 600 (11th Cir. 2016) .... 19

Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992) ..................... i, 30

Moore v. Texas, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017) ................................................ passim

Morrow v. State, 928 So. 2d 315 (AL Crim. App. 2004) .............................................................. 33

Oats v. State, 181 So. 3d 457 (Fla. 2015) ............................................................................... 24, 28

People v. Superior Court, 28 Cal. Rptr. 3d 529 (Cal. Ct. App. 2005) overruled on other grounds

by 40 Cal. 4th 999, 56 Cal. Rptr. 3d 851, 155 P. 3d 259 (2007) .................................................. 21

Phillips v. State, 984 So. 2d 503 (Fla. 2008) ............................................................................... 30

Pickens v. State, 126 P. 3d 612 (Okla. Crim. App. 2005) ............................................................. 33

Pruitt v. State, 834 N.E. 2d 90 (Ind. 2005) .................................................................................. 32

Quince v. State, 241 So. 3d 58 (Fla. 2018) .................................................................................... 1

Quince v. State, 2018 WL 458942 (Fla. 2018) .............................................................................. 1

Quince v. State, 2018 WL 1783084 (Fla. 2018) ............................................................................ 1

Quince v. State, 116 So. 3d 1262 (Fla. 2012) ................................................................................. 6

Quince v. State, 732 So. 2d 1059 (Fla. 1999) ................................................................................ 4

Quince v. State, 592 So. 2d 669 (Fla. 1992) .................................................................................. 4

vii

TABLE OF AUTHORITIES - CONTINUED

CASES

PAGE(S)

Quince v. State, 4 77 So. 2d 535 (Fla. 1985) .................................................................................. 4

Quince v. State, 414 So. 2d 185 (Fla. 1982) .................................................................................. 4

Rogers v. State, 698 N.E. 2d 1172 (Ind. 1998) ............................................................................ 32

Sasser v. Hobbs, 735 F. 3d 833 (8th Cir. 2013) ............................................................................ 21

Smith v. Duckworth, 824 F. 3d 1233 (10th Cir. 2016) .................................................................. 18

Smith v. State, 357 S.W. 3d 322 (Tenn. 2011) .............................................................................. 21

State v. Agee, 358 Or. 325, 364 P.3d 971 (2015) ........................................................................... 33

State v. Jimenez, 188 N.J. 390, 908 A 2d181 (2006), opinion clarified, 191 N.J. 453, 924 A 2d

513 (2007) ..................................................................................................................................... 32

State v. Lott, 97 Ohio St. 3d 303, 779 N.E. 2d 1011 (2002) ........................................................ 33

Thomas v. Allen, 607 F. 3d 749 (11th Cir. 2010) .................................................................... 21, 22

Thomas v. Allen, 614 F. Supp. 2d 1257 (N.D. Ala. 2009) ............................................................ 22

Trotter v. State, 932 So. 2d 1045 (Fla. 2006) ............................................................................... 30

United States v. Bourgeois, 2011 WL 1930684 (S.D. Tex. 2011) ............................................... 34

United States v. Davis, 611 F. Supp. 2d 472 (D. Md. 2009) .................................................. 21, 22

United States v. Hardy, 762 F. Supp. 2d 849 (E.D. La. 2010) .............................................. .21, 22

United States v. Lewis, 2010 WL 5418901 (N.D. Ohio 2010) ..................................................... 21

United States v. Northington, 2012 WL 4024944 (E.D. Pa. 2012) ............................................... 34

United States v. Parker, 65 M.J. 626 (Navy-Marine Crim. App. 2007) ................................. 21, 22

United States v. Roland, 281 F. Supp. 3d 470 (D.N.J. 2017) ....................................................... 21

United States v. Salad, 959 F. Supp. 2d 865 (E.D. Va. 2013) ...................................................... 34

United States v. Smith, 790 F. Supp. 2d 482 (E.D. La. 2011) ................................................. 21, 34

viii

TABLE OF AUTHORITIES - CONTINUED

CASES

PAGE(S)

United States v. Wilson, 170 F. Supp. 3d 347 (E.D.N.Y. 2016) .................................................. 34

Walker v. True, 399 F. 3d 315 (4th Cir. 2005) ........................................................................ 21, 22

Walls v. State, 213 So. 3d 340 (Fla. 2016) .............................................................................. 15, 24

Wiley v. Epps, 668 F. Supp. 2d 848 (N.D. Miss. 2009) ................................................................ 21

Witt v. State, 387 So. 2d 922 (Fla. 1980) ...................................................................................... 15

Woodall v. Commonwealth, - - - S.W. 3d - - -, 2018 WL 2979581 (Ky. June 14, 2018)

.......................................................................................................................................... 23, 34, 34

Wright v. Florida, 138 S. Ct. 360 (Mem.) (2017) .................................................................. 15, 17

Wright v. State, 213 So. 3d 881 (Fla. 2016) ...................................................................... 15, 17, 30

Zackv. State, 911 So. 2d 1190 (Fla. 2005) .................................................................................. .23

CONSTITUTION

PAGE(S)

U.S. CONST. amend. VIII. ...................................................................................................... passim

U.S. CONST. amend. XIV . ...................................................................................................... passim

STATUTES/CODES

PAGE(S)

28 U.S.C. § 1257 (a) ................................................................................................................... 1, 2

ARIZ. REV. STAT. ANN.§ 13-753 (2011) ...................................................................................... 32

ARK. CODE ANN. § 5-4-618 (West) .............................................................................................. 33

Cal. Penal Code§ 1376 (West 2013) ........................................................................................... 33

COLO. REV. STAT.§ 18-1.3-1102 (2012) ...................................................................................... 32

DEL. CODE ANN. tit. 11, § 4209 (West) held unconstitutional by Raufv. Delaware, 145 A. 2d 460

(Del. 2016) .................................................................................................................................... 32

FLA. STAT.§ 921.141 ...................................................................................................................... 4

TABLE OF AUTHORITIES - CONTINUED

STATUTES/CODES

PAGE(S)

FLA. STAT.§ 921.137 ............................................................................................................. passim

IDAHO CODE ANN.§ 19-2515A (West) ........................................................................................ 33

IND. CODE ANN. § 35-36-9-4 ........................................................................................................ 32

KAN. STAT. ANN.§ 21-6622 (West 2017) .................................................................................... 34

KY. REV. STAT. ANN.§ 532.135 (West 2012) .............................................................................. 34

La. Code Crim. Proc. Ann. art. 905.5.1 (2015) ............................................................................. 33

MD. CODE ANN., Crim. Law§ 2-202 (West) repealed by Acts 2013, c. 156, § 3 (eff. Oct. 1, 2013)

....................................................................................................................................................... 34

Mo. ANN. STAT. § 565.030 (West 2016) ...................................................................................... 33

N.C. GEN. STAT. § 15A-2005 (2015) ........................................................................................... 32

NEB. REV. STAT. ANN.§ 28-105.01 (2018) .................................................................................. 33

NEV. REV. STAT. ANN. § 174.098 (West 2015) ............................................................................ 33

N.M. STAT. ANN.§ 31-20A-2.l repealed by L. 2009, Ch. 11, § 5 (eff. July 1, 2009) .................. 34

Rosa's Law, PL 111-256, October 5, 2010, 124 Stat. 2643 ........................................................... 3

S.D. CODIFIED LA ws § 23A-27 A-26.3 (West) .............................................................................. 33

TENN. CODE ANN. § 39-13-203 (2014) ........................................................................................ 33

UTAH CODE ANN.§ 77-15a-104 (West) amended by 2018 UTAH LAWS Ch. 281 (S.B. 116)

....................................................................................................................................................... 34

VA. CODE ANN.§ 19.2-264.3:1.1 (West 2017) ............................................................................. 34

WASH. REV. CODE ANN. § 10.95.030 (West 2015) ...................................................................... 34

TABLE OF AUTHORITIES - CONTINUED

RULES

PAGE(S)

Ala. R. Crim. P. 32 ....................................................................................................................... 33

Fla. R. Crim. P. 3.851 ..................................................................................................................... 5

Fla. R. Crim. P. 3.203 ..................................................................................................... 3, 5, 14, 25

Pa. R. Crim. P. 843 ....................................................................................................................... 33

OTHER AUTHORITIES

PAGE(S)

American Association on Mental Retardation, Mental Retardation: Definition, Classification, and

Systems of Supports 5 (9th ed. 1992) ..................................................................................... 25, 26

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th

ed. 2013) ............................................................................................................................... 3, 7, 18

BLACK'S LAW DICTIONARY (10th ed. 2014) ................................................................................ 31

Blume, John H. & Karen L. Salekin, Analysis of Atkins Cases, in The Death Penalty and

Intellectual Disability 37 (Edward A. Polloway ed., 2015) .......................................................... 35

McGrew, Kevin S., Norm Obsolescence: The Flynn Effect, in The Death Penalty and Intellectual

Disability 155 (Edward A. Polloway ed., 2015) ........................................................................... 20

Schalock et al., The Renaming of Mental Retardation: Understanding the Change to the Term

Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007) ......................... 3

Siperstein, Gary N. & Melissa A. Collins, Intellectual Disability, in The Death Penalty and

Intellectual Disability 21 (Edward A. Polloway ed., 2015) .......................................................... 34

Watson, Dale G., Intelligence Testing, in The Death Penalty and Intellectual Disability 113

(Edward A. Polloway ed., 2015) ............................................................................................... 8, 20

Young, Geraldine W ., A more intelligent and just Atkins: Adjusting for the Flynn Effect in capital

determinations ofmental retardation or intellectual disability. 65 V AND ERB ILTL. REV. 615 (2012)

........................................................................................................................................................ 20

OPINION BELOW

The opinion of the Supreme Court of Florida was rendered on April 12, 2018, and is

reported as Quince v. State, 241 So. 3d 58 (Fla. 2018) and is reprinted in Appendix A.

JURISDICTION

The Supreme Court of Florida entered its initial opinion on January 18, 2018. See Quince

v. State, 2018 WL 458942 (Fla. 2018) (unreported); Appendix E. The State filed a motion for

clarification to correct the Supreme Court of Florida's recitation of Quince's reported Intelligence

Quotient ("IQ") scores. Appendix D. Quince filed a motion for rehearing which in part concurred

that the Supreme Court of Florida had recited the wrong scores in its opinion, and also directed the

court to additional corrections and arguments. Appendix C. On April 12, 2018, the Supreme Court

of Florida granted the State's motion for clarification and denied Quince's motion for rehearing.

See Quince v. State, 2018 WL 1783084 (Fla. 2018) (unreported); Appendix B. The Supreme Court

of Florida issued a revised opinion on April 12, 2018. See Quince, 241 So. 3d 58; Appendix A. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1257 (a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the United States

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

unusual punishments inflicted.

U.S. CONST. amend. VIII.

The Fourteenth Amendment to the Constitution of the United States

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; 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 the laws.

U.S. CONST. amend. XIV,§ 1.

State courts; certiorari

(a) Final judgments or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United States is drawn in question or

where the validity of a statute of any State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or laws of the United States, or where

any title, right, privilege, or immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any commission held or authority

exercised under, the United States.

28 U.S.C. § 1257(a).

Section 921.137, Florida Statutes Annotated, entitled "Imposition of the death

sentence upon an intellectually disabled defendant prohibited."

(1) As used in this section, the term "intellectually disabled" or "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. ANN.§ 921.137.

STATEMENT OF THE CASE

INTRODUCTION

Kenneth Darcell Quince ("Quince") is an almost 60 year old intellectually disabled 1 man

who is incarcerated in the solitary confinement of death row in Florida. In 1980, medical experts

described Quince as a man of borderline or low intelligence, not bright, possessing the intelligence

of a minor, and of borderline mental retardation. Lay witnesses 2 gave details as to Quince's current

and prior to the age of 18 adaptive functioning deficits. Even though Quince's intellectual

deficiencies have been evident since 1980 (before Atkins 3 and Hall 4 were decided), Florida has

determined that Quince should be executed because IQ numbers are more important than a

complete medical and psychiatric assessment of his condition. Quince presented strong and

uncontroverted medical evidence on all three prongs to show that he is mildly intellectually

disabled under current medical standards 5 and ineligible for execution. See Fla. R. Crim. P. 3 .203 ;6

see FLA. STAT. ANN.§ 921.137. 7

In earlier litigation, the terms ''mentally retarded" or "mental retardation" were used in place of the terms

"intellectually disabled" or "intellectually disability." Wherever possible, undersigned counsel will use

"intellectually disabled" or "intellectual disability." However, for the purpose of these proceedings it is

counsel's intention that these terms reference the exact same condition. See also Hall v. Florida, 134 S. Ct.

1986, 1990, 188 L. Ed. 2d 1007 (2014) (citing Rosa's Law, PL 111-256, October 5, 2010, 124 Stat. 2643;

and citing Schalock et al., The Renaming of Mental Retardation: Understanding the Change to the Term

Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007)).

Lay witness evidence presented at the Atkins motion hearing consisted of testimony from Quince's family,

school teachers, a school psychologist and a Department of Juvenile Justice supervisor. See infra p.5-14.

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).

Hall v. Florida, 134 S. Ct. 1986.

5 This Court recognized the American Association on Mental Retardation ("AAMR") and the American

Psychiatric Association ("APA"), publisher of the Diagnostic and Statistical Manual of Mental Disorders

("DSM"), as the authorities for establishing the diagnostic criteria for intellectual disability. See Atkins, 536

U.S. at n. 3. The current medical standards are governed by the DSM and the manual of the American

Association on Intellectual and Developmental Disabilities ("AAIDD") (renamed from AAMR).

Fla. R. Crim. P. 3.203 requires that, for a showing of intellectual disability, the defendant must have

"significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive

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

Florida's statute requires that for a showing of intellectual disability, the defendant must have

"significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive

TRIAL COURT PROCEEDINGS AND INITIAL POSTCONVICTION PROCEEDINGS

On January 17, 1980, Quince was indicted in the Circuit Court of the Seventh Judicial

Circuit of the State of Florida in and for Volusia County with first-degree murder, sexual battery

(this count was later dismissed by the trial court), and burglary of an occupied dwelling. A mere

six months and 25 days after the indictment, Quince pled guilty to first-degree felony murder and

burglary on August 11, 1980. Quince waived his right to an advisory jury recommendation. 8 After

a sentencing hearing, the trial court independently imposed a sentence of death on October 21,

1980. The convictions and death sentence were affirmed on direct appeal. Quince v. State, 414 So.

2d 185 (Fla. 1982), cert. denied, 459 U.S. 895, 103 S. Ct. 192, 74 L. Ed. 2d 155 (1982). Quince

filed a motion for postconviction relief which was denied; the denial was affirmed on appeal. See

Quince v. State, 477 So. 2d 535 (Fla. 1985), cert. denied, 475 U.S. 1132, 106 S. Ct. 1662, 90 L.

Ed. 2d 204 (1986). Quince then filed two successive motions for postconviction relief, both of

which were denied and affirmed on appeal. See Quince v. State, 592 So. 2d 669 (Fla. 1992); see

Quince v. State, 732 So. 2d 1059 (Fla. 1999).

SUMMARY OF THE MENTAL HEALTH/EXPERT EVIDENCE PRESENTED AT THE TRIAL

PROCEEDINGS

The history of Quince's mental health evaluations are pertinent for this Court's review.

Prior to his plea, Quince was evaluated by George W. Barnard, M.D. (pursuant to a defense

behavior and manifested during the period from conception to age 18." "Significantly subaverage general

intellectual functioning" is defined as "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"

or "performance that is two or more standard deviations from the mean score on a standardized intelligence

test authorized by the Department of Children and Family Services in rule 65G-4.0I 1 of the Florida

Administrative Code." "Adaptive behavior" is defined 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."

Quince is currently litigating the constitutionality of his death sentence as he was sentenced under FLA.

STAT. ANN.§ 921.141 (1979) which has been found to unconstitutional by this Court in Hurst v. Florida,

136 S. Ct. 616 (2016). See Quince v. Florida, Supreme Court Case No. 17-9401.

motion), Edward J. Rossario, M.D. (court-appointed) and Frank Carrera, III, M.D. (court

appointed). The three doctors were specifically and solely appointed to determine Quince's

competency and sanity at the time of the offense. Dr. Barnard opined that "[c]linically [Quince] is

judged to be of dull normal level of intelligence" and of"borderline level intelligence." Similarly,

Dr. Rossario opined that Quince's "intelligence can be described as slightly below average." Drs.

Barnard, Rossario, and Carrera did not do any standardized Intelligence Quotient (IQ) testing on

Quince. Dr. Ann McMillan was the psychologist who was appointed by the trial court to examine

Quince for the presence of mental mitigating factors. Dr. McMillan met with Quince on October

2, 1980, and administered the Minnesota Multiphasic Personality Test and the Wechsler Adult

Intelligence Test on him. Dr. McMillan opined that Quince suffered from borderline mental

retardation, severe specific learning disability, and neurological impairment. Dr. McMillan

further opined that "Quince has permanent learning and judgment disability and limited ability

to perceive the consequences of his actions." Dr. McMillan testified that Quince had a "low

intelligence score, which is functioning on an eleven-year-old basis." Dr. Stem, a specialist in

psychiatry, examined Quince on October 13, 1980. Dr. Stem performed only a mental status

examination on Quince to check his mental state to see if he was psychiatrically insane or sane.

Like Dr. McMillan, Dr. Stern testified that Quince "is not a bright gentleman" and that Quince

"is functioning at a borderline level of intellectual capability." As early as in 1980, there were

obvious red flags that Quince had severe deficits in his intellectual functioning.

ATKINS- RELATED POSTCONVICTION PROCEEDINGS.

On or about November I, 2004, after this Court's decision in Atkins, Quince filed a third

successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3. 851

as well as Rule 3.203 ("Atkins motion"). The Atkins motion court granted an evidentiary hearing

on Quince's Atkins motion. The hearing was conducted on May 12, 2008, May 15, 2008, May 16,

2008, and November 3, 2008. Of note, the lower circuit court conducted a full Frye 9 hearing and

found that the Flynn ejfect10 is an acceptable scientific principal for application in a court of

Florida. The Atkins motion court entered a written final order denying Quince relief and not

finding him mentally retarded on November 7, 2011. The order denying Quince's Atkins motion

was affirmed on appeal by the Supreme Court of Florida. See Quince v. State, 116 So. 3d 1262

(Fla. 2012) (Table), cert. denied, 134 S. Ct. 2695 (Mem) (2014). The Atkins motion court and the

Supreme Court of Florida denied Quince relief because none of his IQ scores were below the

Cherry 11 bright-line cutoff of 70. See Quince, 116 So. 3d 1262. Further, the Atkins motion court

and the Supreme Court of Florida made this determination by subjecting Quince to a clear and

convincing burden. See id.

SUMMARY OF THE MENTAL HEALTH/EXPERT EVIDENCE PRESENTED AT THE ATKINS- RELATED

POSTCONVICTION PROCEEDINGS

Thomas Oakland, Ph.D., 12a licensed psychologist and professor in the Department of

Educational Psychology at the University of Florida, evaluated Quince from 2007 to 2008, and

opined that Quince is mentally retarded. Forensic psychologist Robert M. Berland, Ph.D.'s 2005

report was reproduced for the court in support of Quince's Atkins' motion. Both Dr. Oakland and

Frye v. US., 293 F. 1013, 1014 (D.C. Cir. 1923). The Supreme Court of Florida adopted the Frye standard

for evaluating expert testimony in 1985. See Bundy v. State, 471 So. 2d 9, 13 (Fla. 1985) ("Under Frye the

results of mechanical or scientific testing are not admissible unless the testing has developed or improved

to the point where experts in the field widely share the view that the results are scientifically reliable as

accurate.")

The Flynn effect is a scientific correction applied to IQ scores and is found to be in the DSM-V. It will

be discussed in detail below. See infra p.17-23.

Cherry v. State, 959 So. 2d 702 (Fla. 2007) abrogated by Hall v. Florida, 134 S. Ct. 1986.

During his almost forty years of work as a psychologist, Dr. Oakland has developed a renowned specialty

in the area of mental retardation, as well as the area oftest development. Further, Dr. Oakland's expertise

with test development includes being one of the developers of the Adaptive Behavior Assessment Systems

I & II (ABAS I & II) and being on the development teams for revising numerous intelligence tests, including

the WAIS-III.

Dr. Berland evaluated Quince under all three prongs of the current medical diagnostic framework

governed by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text

Revision ("DSM-IV") to determine Quince's intellectually disability.

In following current medical and clinical practices, Dr. Oakland correctly defined mental

retardation generally "in terms of diminished intellectual ability and adaptive behavior occurring

prior to the age of 18." Dr. Oakland further explained that the DSM-IV definition for mental

retardation is a three part definition requiring "significantly subaverage intellectual functioning,"

"concurrent deficits or impairments in present adaptive functioning," and "this condition must be

prior to the age of 18." Dr. Oakland confirmed that these three diagnostic criteria must exist to

diagnose mental retardation. Dr. Oakland relied on clinical and medical authorities which included

materials written by Dr. James Flynn; the ABAS II, Clinical Use and Interpretation; the User's

Guide for Mental Retardation published by the AAIDD, the Comprehensive Manual for the Scales

of Independent Behavior- Revised ("SIB-R"), and the Comprehensive Manual for the ABAS II.

Dr. Oakland also reviewed Quince's historical records and interviewed family members, teachers,

and a correctional officer at death row. 13

With regard to prong one, Dr. Oakland relied upon the Flynn effect in making the

determination that Quince possessed subaverage general intellectual functioning for mental

retardation. Dr. Oakland testified that the Flynn effect "refers to the increasing level of intelligence

Dr. Oakland completed a review of Quince's records that included Quince's school records; Quince's

sister, Brenda's, school records; Quince's medical records; Dr. Stern's testimony; Dr. McMillan's

evaluation; Dr. Berland's report; the record on appeal of the trial proceedings; Quince's Department of

Corrections records; and the testimony of a number of witnesses that included Linda Stovel, Mary Quince,

Valerie Quince, Jean Smith, Clara Edwards, Phalesia Canidate, and Rosemary Bryant. In addition, Dr.

Oakland interviewed and met with Quince's mother, Mary Quince; Mr. Gregory Quince; Quince's sisters,

Phalesia Canidate, Valerie Stanton, and Monique Mobley; Quince's cousin, Tony Harold; Quince's former

teachers, Dee Jarrard, Mr. Griggs, and Ms. Charles; Russell Mootry from the Department of Sociology at

Bethune-Cookman College, and Ms. Paskewitz,

within a population over time, particularly during the 20th century." He further explained that

"[t]he general estimate is that for a population, the increase is approximately three points per a

decade or .33 per year." Dr. Oakland testified that the Flynn effect is widely accepted within the

profession of psychology as being valid, and that the procedures he used in applying the Flynn

effect to a particular score were also considered valid in the scientific community. Dr. Oakland

further explained that a psychologist may decide to use the Flynn effect when making a decision

regarding an individual and apply it in a case to adjust an IQ score downward. 14 After a hearing

on the Flynn effect, the Atkins motion postconviciton court found "that the Flynn effect is in fact

a theory or methodology generally accepted in the field of psychology and the procedures followed

to apply this process are also generally accepted in the relevant psychological community" and

thus the court permitted "the testimony regarding the Flynn effect and the applicability of it in this

particular case."

Quince has undergone intelligence testing on three separate occasions. Each intelligence

assessment utilized the Wechsler Adult Intelligence Scale that was current at the time of testing.

In 1980, on the WAIS, Quince obtained a full scale score of 79. In 1984, on the Wechsler Adult

Intelligence Scale-Revised (WAIS-R) he obtained a full scale score of 77. In 2006, on the Wechsler

Adult Intelligence Scale-III (WAIS-III) he attained a full scale full scale score of 79. Dr. Oakland

found that the twenty-six year gap between the WAIS norms and Quince's testing in 1980 was a

relevant factor in his decision to apply the Flynn effect. Dr. Oakland testified that the original

WAIS administered to Quince (IQ of 79) in 1980, was normed in 1954. The twenty-six year

Dr. Oakland's testimony is directly supported by the AAIDD which states that "[t]he procedure for

computing an adjustment for the Flynn effect has generally involved calculating the time between the

administration of a test and the midpoint of the year(s) of norming (which is often 1 to 4 years prior to

publication), multiplying that number by .3 points, and subtracting this amount from the obtained full-scale

IQ test score of the test in question." Dale G. Watson, Intelligence Testing, in The Death Penalty and

Intellectual Disability 113, 125 (Edward A. Polloway ed., 2015).

difference between the test's norming and its administration to Quince would account for an

expected nine point reduction in Quince's IQ score when the Flynn effect is applied. As applied to

Quince's 1980 WAIS, the Flynn effect would show that Quince's IQ score was actually a 70.

Dr. Oakland explained that in applying the Flynn effect, it is important to note that it applies mainly

to persons with lower intellectual abilities. Thus, when making a determination as to whether to

apply the Flynn effect to an IQ score, the fact that an individual such as Quince has a lower level

of intellectual ability means that a higher probability exists that it should be applied to him. Dr.

Oakland further testified that his determination of mental retardation based upon the 1980 IQ test

was consistent with the scores Quince received on the two subsequent IQ tests that were

administered to him.

Regarding the 1984 administration of the WAIS-R, Dr. Oakland testified that applying the

Flynn effect correction to the IQ of 77 yielded a score of approximately 76. However, the midyear norming date for the WAIS-R is 1978. It appears from Dr. Oakland's testimony that he

inadvertently used the 1981 publication date in applying the Flynn correction, coming up with a

transformed score of 76. However, when the mid-year norming date of 1978 is instead applied in

accordance with the procedure set forth by the AAIDD, one finds that the difference between the

1978 date and the 1984 date of administration is six years. Multiplying the six years times .3 yields

a Flynn correction number of 1.8, which, when rounded up to a whole number is 2. When the two

points are then subtracted from the score of 77, the Flynn effect-transformed score is 75.

Finally, the WAIS-III IQ score of 79 administered to Quince in 2006, would be normed in

1995. The 2006 administration of the WAIS-III occurred 11 years after the mid-year norming date

of 1995. Multiplying 11 times .3 yields 3 .3, which results in a Flynn-corrected score of 76 on the

2006 administration. The original score was a 79. The foregoing norming of three IQ scores is

consistent with the AAIDD and Table 8.4 from the AAIDD. It is clear that Dr. Oakland took great

efforts to make sure that Quince's IQ scores were as accurate as possible. Appendix H, see Hall,

134 S. Ct. at 2001 ("Courts must recognize, as does the medical community, that the IQ test is

imprecise."); see also supra p.22.

The State's expert psychologist, Harry McClaren, acknowledged that the application of the

Flynn effect to all of the results of Quince's IQ tests would result in scores ranging from 70 to 75.

As applied to Quince's 1980 WAIS, Dr. McClaren agreed with Dr. Oakland that the score would

reflect an IQ of 70 with the Flynn effect. Dr. McClaren also testified that when the Flynn effect

is applied to the two subsequent tests, the scores of 77 and 79 would both be reduced to 75. Dr.

McClaren conceded that the AAMR 15 , in its most recent publication, discussed the use of the Flynn

effect within the context of"the assessment and treatment of mental retardation."

Dr. McClaren 16 administered the WAIS-III, a test on malingering, Wide Range

Achievement Test 3rd Edition, and the SIB-R upon Quince. Dr. McClaren opined that Quince's

IQ was 79. Even though Dr. McClaren conceded that Cherry 17 is in conflict with the definition of

mental retardation as stated by the AAMR and DSM-IV, he opined that Quince was not mentally

retarded based solely on the 2006 IQ testing with an above the Cherry bright-line cut off. Dr.

McClaren's opinion regarding Quince's mental retardation did not look into Quince's adaptive

behavior or any other evaluations of Quince and his abilities; hence his evaluation stopped at the

first prong. 18 In contrast Dr. Oakland did not opine Quince was mentally retarded simply based of

The AAMR is now called the AAIDD.

Dr. McClaren did not speak with any of Quince's family members; nor had he reviewed any testimony

by family members, friends or teachers; nor had he made any inquiries at Union Correctional Institution

about Quince's activities regarding books and the law library; and nor had he reviewed any of Dr. Oakland's

work relating to adaptive behavior.

959 So. 2d 702.

Dr. McClaren did administer the SIB-R to test for adaptive behavior deficits, however, the SIB-R was

not scored because Quince received a score of 79 on the WAIS-III and Dr. McClaren concluded that the

the numerical values of the IQ scores. Dr. Oakland, in accordance with medical and clinical

practices, assessed the remaining two prongs before determining if Quince was mentally retarded.

In assessing prong two, Dr. Oakland conducted evaluations of Quince's adaptive

functioning on two different occasions, once in April of2007 and once in April of 2008. Appendix

H. In his initial April 2007 testing of Quince's adaptive functioning, Dr. Oakland used the ABAS

II 19 and did interviews with Quince and the family members and teachers who knew him around

1980. In the April 2007 assessment, Quince's score put him in the lowest one percentile of all

individuals and indicated that Quince had diminished capacity in "conceptual, social and practical

skills." In April 2008, Dr. Oakland re-administered the ABAS II to Quince to measure his "current

adaptive functioning." 20 During this testing, Dr. Oakland re-interviewed Quince and a correctional

officer at the facility. Dr. Oakland again found Quince to have limitations in all three subject areas

defined by the AAMR and all the areas identified by the DSM-IV. 21 Finally, with respect to prong

three, Dr. Oakland opined that Quince had deficits in adaptive behavior prior to the age of 18 based

on his investigations and interviews. 22

score was too high to justify assessing adaptive behavior.

ABAS assesses ten skill areas which are combined into the three domains of adaptive behavior recognized

by the DSM and AAIDD.

Dr. McClaren seemed to agree with Dr. Oakland's position that it is not a psychologist's preference to

obtain data of adaptive functioning in an incarcerated setting. Dr. McClaren agreed that there is no current

test or assessment instrument designed for use on incarcerated individuals to assess their present adaptive

functioning.

Dr. Oakland opined that the lower scores on the second testing can be accounted for by the fact that

Quince is on death row, and he isn't allowed to display many normal behaviors in such a restricted

environment. Dr. Oakland later testified that it is outside standard practice to look at behavior while in an

incarcerated situation to try and make an accurate assessment of what an individual can do outside of an

incarcerated situation. He testified that it would not be any psychologist's preference to acquire this data

on the behavior of a person incarcerated on death row. This is supported by the AAIDD and found to be

the correct practice.

Dr. Oakland found the following:

"There's considerable uniformity in the descriptions from the various people who describe

Kenny as a follower. He minimized drawing attention to himself. He walked awkwardly.

was a loaner (sic). Perhaps he had at most one permanent friend, a fellow who lived

around the comer. He would not initiate conversation. And, in fact, rarely did he engage in

With regard to determining Quince's intelligence, Dr. Berland looked at Dr. McMillan's

testing from October 1980. Dr. Berland reported in detail the norming of Quince's IQ score

attained on the WAIS test to show a range of scores where Quince met the IQ requirements for

retardation. Dr. Berland also evaluated Quince as to the remaining two prongs. Dr. Berland noted

in his report that "[t]here is another aspect to determining whether someone should truly be

considered retarded besides measuring their intelligence. It must also be found out whether their

abilities in key skill areas necessary for daily functioning are also at a level consistent with retarded

functioning." According to his report, Dr. Berland administered the Interview Edition of the

Vineland Adaptive Behavior Scales23 to Quince's sister, Linda Stouffer, on November 30, 2004,

by telephone. She was asked to recall Quince's abilities at the age of 18. Significantly, Dr.

Berland's administration of the Vineland Adaptive Behavior Scales revealed that Quince's

adaptive behavior was more than two standard deviations below the mean and ranked in the first

percentile of the population, a finding consistent with Dr. Oakland's 2007 administration of the

ABAS. After looking at all three prongs, Dr. Berland "reasonably concluded that this defendant

appears to have functioned at a retarded level in accordance with the statutory criteria for

conversation. He generally watched TV. There was no evidence of his reading any books

or newspapers. He rarely engaged in work at home, and engaged in work only under the

supervision of others and at their request. He never had a bank account. Never had a credit

card. Never repaired his clothing. Never used an iron. Never prepared any meals for others.

Never did laundry. Never handled money very well. People were either - - he was either

giving money to others or if - - in order for him to retain money, on occasion his mother

would hold his money so that he didn't either spend it or give it away. Never saved money."

Dr. Oakland testified that the foregoing characteristics are important because these "general characteristics

allow us to characterize Quince at that time to define some important qualities that help to define whether

his everyday behaviors were normal relative to others who are 16, 17 or 18" and they "relate to items that

exist on measures of adaptive functioning." Dr. McClaren conceded that many of the characteristics

testified to by the lay witnesses, such as his mannerism, interaction with others, lack of reading, and

problems with money and employment, could all be possible signs pointing to problems with adaptive

behavior and a determination of mental retardation.

23 The Vineland Adaptive Behavior Scales have been among the most widely used of these objective

measures of adaptive functioning.

determining retardation."

SUMMARY OF THE LAY WITNESS EVIDENCE PRESENTED AT THE ATKINS - RELATED

POSTCONVICTION PROCEEDINGS

Aside from the mental health expert evidence, lay witness evidence was also presented at

the Atkins motion hearing. The lay witnesses who testified on behalf of Quince at the evidentiary

hearing were Mrs. Jeanette Walker Quince (Quince's sister-in-law), Mr. Gregory Lee Quince

(Quince's older brother), Ms. Vivian Charles (former high school physical education teacher)24,

Mr. Earl Griggs (former high school physical education teacher and coach)25 , and Mr. Fred

Phillips (department of corrections employee)26 • Additionally, Ms. Doris L. Paskewitz's (former

school psychologist and exceptional student education (ESC) specialist with the Volusia County

school system)27 deposition was introduced in lieu of her live testimony. Ms. Paskewitz also

Ms. Charles had the opportunity to observe Quince when he was in eighth grade at Campbell Junior High

School. She testified that the special education. students were screened by a psychologist and that "they

used the IQ score and the California Achievement Test, and then another specific test" that she could not

recall. Moreover, Ms. Charles testified that this screening was "state-mandated" in order for a child to be

determined to be a special education student. Ms. Charles clearly recalled that Quince was a "special ed"

student at that time. She described Quince as "really kind of withdrawn and introverted," "kind of docile,

very quiet," and that he was "kind of a loaner (sic)." Ms. Charles clearly recalled that because Quince was

a special education student and that he would be a target for bullies and teasing.

Mr. Griggs remembered Quince from the same time as Ms. Charles, and recalled watching him at physical

education classes. Mr. Griggs also described Quince as "docile," "lethargic," and "a loaner (sic)." Mr.

Griggs testified that at times it just seemed that Quince did not understand "[h]is purpose for being in PE."

He further described Quince as not wanting to participate in the physical education classes like other

children normally do and that Quince "would go to himself' and "be to himself." Mr. Griggs testified that

Quince was picked on by the other children. Like, Ms. Charles, Mr. Griggs also recalled that Quince was a

student assigned to the special education classes.

26 Mr. Phillips knew Quince from when he was employed with the Department of Juvenile Justice. Mr.

Phillips recalled working with Quince when he was a juvenile. Mr. Phillips supervised Quince in 1974, for

a short period of time. Mr. Phillips recounted an occasion when he interviewed Quince at a detention center

after he was arrested for what "really was not a serious incident." Mr. Phillips was prepared to release

Quince back home but "the Defendant felt like he needed to be punished and wanted to go to detention."

Mr. Phillips testified that this incident "kind of stuck in [his] mind because it was rather unusual." Mr.

Griggs also testified that he "found it hard to communicate with [Quince] in the sense that [he] just really

didn't know whether [he] was getting through or not." Mr. Griggs testified that Quince "was a little bit

slow" and he just had "trouble communicating with him, basically."

Ms. Paskewitz was responsible for evaluating students and administering tests for the ESC program. s.

Paskewitz was a school psychologist for about fifteen years and was responsible for placement of the

children. Ms. Paskewitz explained that before the children were sixteen, she administered the Wechsler

looked at the same or similar prongs for determining intellectual disability. It should be noted that

similar to Quince's case, attempts to locate Hall's Florida Public School records for psychological

testing administered in the 1950s were unsuccessful, but "based on Hall's academic record, it is

reasonable to believe that some testing must have occurred because Hall was referred to placement

in Special Education classes and referred to as intellectually disabled in the school record." Hall

v. State, 201 So. 3d 628, 633 (Fla. 2016). So, it is just as reasonable to believe that the school

testing showed a score below 70 for Quince.

The foregoing lay witnesses provided evidence of Quince's personality traits and

characteristics, school history, and behavior that spanned from his childhood to when he was

incarcerated. This testimony demonstrated Quince's limitations, adaptive behavior deficits, and

the intellectual and adaptive behavior problems he displayed before he turned 18 years old.

HALL - RELATED POSTCONVICTION PROCEEDINGS.

On May 27, 2014, this Court held in Hall v. Florida, 134 S. Ct. 1986 that Florida's brightline rule pursuant to Cherry was unconstitutional. Thus, on May 21, 2015, Quince filed a renewed

motion for determination of intellectual disability as a bar to execution pursuant to FLA. STAT.

ANN.§ 921.137 and Fla. R. Crim. P. 3.203. ("Hall motion"). The State filed a response and motion

Scale oflntelligence test, the Bender Gestalt test, the Wide Range Achievement Test, test of mental ability

and a California test of achievement. Ms. Paskewitz confirmed that the school system also administered an

adaptive behavior test like a Vineland test. Ms. Paskewitz explained that in order to get into the ESE

program the child "had to score below 70," on the WAlS test, but they preferred that the child score a little

bit lower. Ms. Paskewitz clarified that the preference was that the child score be 69, but it had to be below

70 on the WAIS test. With regard to the adaptive behaviors, Ms. Paskewitz explained that they would

collect as much information as possible on the child and have a history from the parents, neighbors, and

classroom teachers. This was the criteria per Ms. Paskewitz that existed in 1973, to enroll a child into the

program.

Ms. Paskewitz recalled Quince as a student at Campbell Junior High School, who she recalled came to a

classroom to test in. Ms. Paskewitz stated that Quince as "very, very slow," and that "when he got up to go

back, he was very confused about where to find his room." She remembered that she heard that Quince

came from a very poor family and had siblings who "were retarded." She remembered that Quince was

tested at that time, but not by her. However, Ms. Paskewitz confirmed that if Quince was placed in the

E.S.E. program, he must have scored under 70 on the WAIS test.

to dismiss on July 6, 2015. With the court's permission, Quince filed a reply on February 17, 2016.

The Hall motion court conducted a hearing on the pleadings on May 9, 2016. The Hall motion

court issued a written non-final order on May 17,2016, determining "that the Halfl 8 opinion should

be given retroactive effect" to Quince's case. (footnote added); Appendix G; see also Walls v.

State, 213 So. 3d 340 (Fla. 2016) 29 • The Hall motion court further held "[o]ver the Defendant's

objection ... to apply the 'clear and convincing evidence' standard pursuant to FLA. STAT. ANN.

§ 921.137(4) in determining whether the Defendant is intellectually disabled." Appendix G. No

further evidentiary development was requested by either party and the court was directed to rely

on the evidence presented in the Atkins motion hearing in light of Hall. Both parties agreed to

submit written memoranda and proposed orders to the court. 30 In a final written order the Hall

motion court denied Quince relief. Appendix F. The order denying Quince's Hall motion was

affirmed on appeal by the Supreme Court of Florida. 31 See Quince, 241 So. 3d 58; Appendix A.

This ruling is before this Court on review.

SUMMARY OF THE EVIDENCE PRESENTED AT THE HALL - RELATED POSTCONVICTION

PROCEEDINGS

The Hall motion postconviction court looked at the evidence from the Atkins motion

hearing in light of Hall. See supra p.6-14. Quince presented two tables to clearly demonstrate that

Quince suffers from significantly subaverage general intellectual functioning and that he suffered

Hall v. Florida, 134 S. Ct. 1986.

The Supreme Court of Florida held that Hall, 134 S. Ct. 188, is retroactive under Witt v. State, 387 So.

2d 922 (Fla. 1980).

In the interim, the Supreme Court of Florida decided Hall v. State, 201 So. 3d 628, and held that Hall

was intellectually disabled and ineligible for execution.

31 Prior to the Supreme Court of Florida's denial in Quince's case, this Court granted a petition for writ of

certiorari and remanded Wright v. State, 213 So. 3d 881 (Fla. 2017) for further consideration in light of

Moore v. Texas, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017). See id. cert. granted,judgment vacated sub

nom. Wright v. Florida, 138 S: Ct. 360 (Mem.) (2017). Quince filed this opinion as supplemental authority

with the Supreme Court of Florida on October 18, 2017.

from cognitive deficits or impairments in present adaptive functioning. These tables from the

record below are reproduced in Appendix Hand Appendix I, respectively, for this Court's review.

Quince provided the court with a number of scientific authorities, excerpts from the DSM-V and

AAIDD, and summaries of record evidence clearly demonstrating that Quince is intellectually

disabled.

REASONS FOR GRANTING THE WRIT

QUESTION ONE

INTRODUCTION

"The death penalty is the gravest sentence our society may impose." Hall, 134 S. Ct. at

2001. Florida's decision in Quince's case "contravenes our Nation's commitment to dignity and

its duty to teach human decency as the mark of a civilized world." Id. This Court has painstakingly

endeavored to create Eighth Amendment safeguards to prevent the execution of the intellectually

disabled. This Court in Atkins, Hall, and Moore created those safeguards by relying heavily on the

medical community and medical authorities to determine the diagnostic framework for intellectual

disability to protect capital defendant's Eighth and Fourteenth Amendments. U.S. CONST. amend.

VIII; amend. XIV. Yet, despite this precedent, Florida, as it did in Hall32 and Wright, 33 continues

to disregard the comprehensive testimony of medical experts in accordance with current medical

standards. Florida continues to create arbitrary numerical barriers. Specifically, in Quince's case,

Florida denied relief by solely looking at IQ scores. Florida forgets that "[a]n IQ score is an

approximation, not a final and infallible assessment of intellectual functioning." Hall, 134 S. Ct.

at 2000. Florida inexplicably fails to recognize the Flynn effect in correcting IQ scores formulated

from outdated tests. The ruling in Quince flies in the face of the diagnostic controlled medical

treatises and the role of the medical community and ensures the execution of an intellectually

disabled 60 year old man.

Hall and Moore require Quince to demonstrate that his medical determination is supported

by the professional community's diagnostic framework and teachings, which are governed by the

Hall v. State, l 09 So. 3d 704 (Fla. 2012), rev'd and remanded sub nom. Hall v. Florida, 134 S. Ct. 1986

(2014), and opinion withdrawn, 201 So. 3d 628 (Fla. 2016).

Wright, 213 So. 3d 881 cert. granted,judgment vacated sub nom. Wright, 138 S. Ct. 360.

DSM-V and AAIDD. See Hall, 134 S. Ct. at 2000; see Moore, 137 S. Ct. at 1048-1049. These are

the authorities that Quince relied on to demonstrate his intellectual disability in accordance with

Hall's recognition of the importance of an informed medical opinion. This Court has

unequivocally held that "[i]ntellectual disability is a condition, not a number." See Hall, 134 S. Ct.

at 2001 (emphasis added) (citing American Psychiatric Association, Diagnostic and Statistical

Manual ofMental Disorders 3 7 (5th ed. 2013) ). Further, "[t]he legal determination of intellectual

disability is distinct from a medical diagnosis, but it is informed by the medical community's

diagnostic framework." Id. at 2000 (emphasis added). This Court recognized that the AAMR34

and the AP A, the publisher of the DSM, are authorities for establishing the diagnostic criteria for

intellectual disability. See Atkins, 536 U.S. at n. 3; see also Hall, 134 S. Ct. at 1048, 1053; see also

Moore, 137 S. Ct. at 1045.

FLORIDA'S DISREGARD OF THE FLYNN EFFECT IN CORRECTING OUTDATED INTELLIGENCE TESTS

Florida has gone through great efforts to avoid finding Quince intellectually disabled,

despite the lengthy history of his intellectual deficiencies. Florida denied Quince relief because he

had "not demonstrated that Hall requires that his IQ scores be adjusted for the Flynn effect, and

there is competent, substantial evidence in the record to support the trial court's decision not to

apply the Flynn effect to adjust Quince's IQ scores." Quince, 241 So. 3d at 62. Florida ignores the

scientific phenomenon of the Flynn effect simply because this Court did not mention or address

the Flynn effect in its Hall opinion. See Quince, 241 So. 3d at 62. Florida limited its scope to only

courts that "have already recognized, Hall does not mention the Flynn effect and does not require

its application to all IQ scores in Atkins cases" and gave examples of three Circuit Courts of Appeal

decisions. Id. (citingBlackv. Carpenter, 866 F. 3d 734, 746 (6th Cir. 2017)); Smith v. Duckworth,

The AAMR has been renamed and is now called AAIDD.

824 F. 3d 1233, 1246 (10th Cir. 2016); Ledford v. Warden, Ga. Diagnostic & Classification

Prison, 818 F. 3d 600, 639 (11th Cir. 2016); but see infra p.21-22, n.46-47. Florida misinterprets

Hall's silence on the Flynn effect to mean that the Flynn effect should be disregarded because it is

not mandated. Hall did not address the Flynn effect as it was not at issue or a factor in Hall's case.

Florida knew this fact because Quince's denial stemmed from the same court that denied Hall

relief at first. See Hall, 109 So. 3d 704 rev'd and remanded sub nom. Hall v. Florida, 134 S. Ct.

1986.

Further, Florida misconstrues this Court's opinion in Moore by only partially quoting that

"Hall indicated that being informed by the medical community does not demand adherence to

everything stated in the latest medical guide." Quince ,214 So. 3d at 62 (quoting Moore. 137 S. Ct

at 1049). Florida failed to read the foregoing statement in context of the surrounding statements.

The complete quote is as follows:

We further noted that Florida had parted ways with practices and trends in other

States. Id, at - 134 S. Ct., at 1995-1998. Hall 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 1049; see Hall, 134 S. Ct. at 2000 (citing Kansas v. Crane, 534 U.S. 407,

413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002)). In context, this Court is clarifying to the state

courts that they do not have to follow everything stated in the latest medical guide, however, the

Court reminds the lower courts that they cannot disregard current medical standards. To ignore the

authority of these current and recognized "leading medical manuals" would led to an Eighth

Amendment unfettered abuse of the analysis of intellectual disability, where there is no informed

medical diagnostic framework. Moore, 137 S. Ct. at 1048-1049. Quince's intellectual disability

determination is clearly supported by current medical standards and must be upheld by this Court

in accordance with Moore and Hall.

Quince has maintained from the beginning that he is intellectually disabled, and that current

medical standards mandate that his scores be adjusted for the Flynn effect The AAIDD, 35 an

authoritative text on intellectual disability, recognizes the Flynn effect as a valid and real

phenomena that is mandated to adjust scores. Professionals who determine IQ scores apply a

correction based upon the "Flynn effect." 36 The Flynn effect is named for James R. Flynn, an

intelligence researcher who documented it. 37 Also known as norm obsolescence, the Flynn effect

describes the false inflation ofIQ scores that occurs when an individual's performance on an IQ

test is compared with outdated test norms. 3839 The DSM recognizes "(f)actors that may affect test

scores include practice effect and the 'Flynn effect' (i.e., overly high scores due to out-of-date test

norms."). 40 In addition, according to the AAIDD,

[n]ot only is there a scientific consensus that the Flynn effect is a valid and real

phenomenon, there is also a consensus that individually obtained IQ tests scores

derived from tests with outdated norms must be adjusted to account for the Flynn

effect, particularly in Atkins cases. 41

Furthermore, legal scholars have adopted the position that the Flynn correction should be applied

in Atkins cases. One scholar concluded that

adjusting for the Flynn effect reflects a practice consistent with both Atkins and the

known world of IQ measurements. While a freakish strike of lightning is difficult

to avoid, the potentially deadly and unconstitutional consequences of refusing to

account for the Flynn effect are wholly preventable. Thus, for the intelligent and

just enforcement of Atkins, courts and juries should adjust IQ scores from outdated

tests for the Flynn effect. 42

This Court in Moore relied on the DSM-V and AAIDD as the "leading diagnostic manuals." Moore, 137

S. Ct. at 1048.

Kevin S. McGrew, Norm Obsolescence: The Flynn Effect, in The Death Penalty and Intellectual

Disability 155, 160 (Edward A. Polloway ed., 2015).

Id. at 157.

Id at 155.

39 Dale G. Watson, Intelligence Testing, in The Death Penalty and Intellectual Disability 113, 124-25

(Edward A. Polloway ed., 2015).

DSM-Vat p.37

41 Kevin S. McGrew, Norm Obsolescence: The Flynn Effect, in The Death Penalty and Intellectual

Disability 155, 160.

Geraldine W. Young, A more intelligent and just Atkins; Adjusting for the Flynn Effect in capital

Notably, the Atkins motion postconviction court, after a comprehensive Frye 43 hearing on

the Flynn effect, found "that the Flynn Effect is in fact a theory or methodology generally accepted

in the field of psychology and the procedures followed to apply this process are also generally

accepted in the relevant psychological community" and thus the court permitted "the testimony

regarding the Flynn effect and the applicability of it" in Quince's case. Yet, Florida inexplicably

disregards the lower court's findings and continues to refuse to accept this thoroughly vetted

clinical principle. Many jurisdictions have approved accounting for the Flynn effect when

assessing IQ scores for purposes of determining intellectual disability. 44 In addition, in accordance

with the AAIDD, there are several courts 45 that have found the Flynn effect to be mandated by the

determinations of mental retardation or intellectual disability. 65 VANDERBILTL. REV. 615,663 (2012),

quoted in McGrew, n. 45.

Frye v. U.S., 293 F. 1013.

See Chase v. State, 171 So. 3d 463, 480 (Miss. 2015) (holding that the trial court did not err in finding

the defendant proved subaverage intellectual functioning where the Flynn effect was applied to his IQ

score); Sasser v. Hobbs, 735 F. 3d 833, 847 (8th Cir. 2013) (holding that it was error for the district court

to refuse to consider testimony regarding the Flynn effect in determining whether the defendant suffered

from significantly subaverage intellectual functioning); Burgess v. Comm 'r., Ala. Dept. of Corr., 723 3d

1308, 1321-22 (11th Cir. 2013) (remanding the case to the district court for purposes of an evidentiary

hearing including testimony on the Flynn effect); United States v. Smith, 790 F. Supp. 2d 482, 491 & n.43

(E.D. La. 2011) (finding that the Flynn effect should be applied to the defendant's WAIS-III scores); United

States v. Hardy, 762 F. Supp. 2d 849, 866-68 (E.D. La. 2010) (holding that applying the Flynn effect is best

practice); Coleman v. State, 341 S.W. 3d 221,224,242 n.55 (Tenn. 2011) (allowing for testimony regarding

the Flynn effect); Black v. Bell, 664 F. 3d 81, 96 (6th Cir. 2011) (holding that Flynn effect evidence must

be considered); Smith v. State, 357 S.W. 3d 322, 353-54 (Tenn. 2011) (remanding for consideration of

evidence of the defendant's functional IQ, including evidence regarding the Flynn effect); United States v.

Lewis, 2010 WL 5418901 at* 11 (N.D. Ohio 2010) (finding that applying the Flynn effect is best practice);

Thomas v. Allen, 607 F. 3d 749, 757 (11th Cir. 2010) (finding no error in the district court's decision to

adjust for the Flynn effect); United States v. Davis, 611 F. Supp. 2d 472,488 (D. Md. 2009) (finding Flynn

effect evidence relevant and persuasive); Wiley v. Epps, 668 F. Supp. 2d 848, 897-98 (N.D. Miss. 2009)

(taking the Flynn effect into account); United States v. Parker, 65 M.J. 626, 629-30 (Navy-Marine Crim.

App. 2007) (adopting the AAMR standard for evaluating IQ scores, including the process of accounting for

the Flynn effect); Green v. Johnson, 431 F. Supp. 2d 601, 615-16 (E.D. Va. May 4, 2006) (granting

evidentiary hearing allowing for testimony concerning the Flynn effect); Walker v. True, 399 F. 3d 315,

318, 320 (4th Cir. 2005) (remanding with instructions to consider the persuasiveness of Flynn effect

evidence).

See United States v. Roland,45 281 F. Supp. 3d 470, 502-3 (D.N.J. 2017); see People v. Superior

Court, 45 28 Cal. Rptr. 3d 529, 558-59 (Cal. Ct. App. 2005), overruled on other grounds by 40 Cal. 4th 999,

56 Cal. Rptr. 3d 851, 155 P. 3d 259 (2007); see U.S. v. Hardy, 45 762 F. Supp. 2d 849, 862-67 (E.D. La.

2010). Furthermore, the opinion in Hardy looked in depth into the analysis of other courts that have

AAIDD and to follow the DSM-V. There is ample evidence from the medical community, medical

authorities, and case law to support the Flynn correction in light of Hall. Florida continues to be

one of the outliers. It bears repeating that this Court warned states about the imprecise nature of

IQ scores. See Hall, 134 S. Ct. at 2001. Specifically, this Court held as follows:

Courts must recognize, as does the medical community, that the IQ test is

imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable

significance, as he medical community recognizes. But in using these scores to

assess a defendant's eligibility for the death penalty, a State must afford these test

scores the same studied skepticism that those who design and use the tests do,

and understand that an IQ test score represents a range rather than a frxed

number.

Id. Without this correction, there is a great and real danger of executing the intellectually disabled,

especially in older cases. Florida is "[a] State that ignores the inherent imprecision of these tests

[and] risks executing a person who suffers from intellectual disability." Hall, 134 S. Ct. at 2001.

Further, Florida's holding in Quince's case is again "in direct opposition to the views of those who

design, administer, and interpret the IQ test." Id. at 2001.

Finally, the Supreme Court of Florida recognized but did not address the application of the

SEM and Flynn effect to Quince's IQ scores. The court denied relief based on the failure of Quince

to demonstrate that Hall requires that Quince' IQ scores be corrected for the Flynn effect. See

Quince, 241 So. 3d at 62. When the SEM is applied to Quince's 1980 Flynn-corrected score of 70,

the range is 65-75, which is well within the criteria for such a finding. When the SEM is applied

to the 1984 Flynn-corrected score of 75, the range is 70-80. When the SEM is applied to the third

Flynn-corrected 2006 score of 76, the range is 71-81. All of these ranges contain a score on which

a finding of significantly subaverage general intellectual functioning is warranted. Applying the

accepted the Flynn effect. See Hardy, 762 F. Supp. 2d 849 at 862 (citing Thomas v. Allen, 607 F. 3d at 753);

Holladay v. Allen, 555 F. 3d 1346, 1350 n. 4, 1358 (11th Cir. 2009); Walker, 399 F. 3d at 322-23; Davis,

611 F. Supp. 2d at 486-88; Thomas v. Allen, 614 F. Supp. 2d 1257, 1278 (N.D. Ala. 2009); Green v.

Johnson, 2006 WL 3746138, at *45 (E.D. Va. December 15, 2006); Parker, 65 M.J. 626.

Flynn correction and the SEM, as informed by standard clinical practice and required by Hall, it

is clear that Quince's 1980 and 1984 IQ scores show he suffers from "significantly subaverage

general intellectual functioning." If the norming error of the WAIS-III is also considered, all three

of Quince's known IQ scores entitle him to a finding of significantly subaverage general

intellectual functioning. Unlike, Dr. McClaren, who just stopped at the Cherry line, Dr. Oakland

and Dr. Berland looked at the remaining two prongs before forming an opinion.

FLORIDA'S FAILURE TO ASSESS ALL THREE PRONGS IN TANDEM IN DETERMINING INTELLECTUAL

DISABILITY

This Court held that "[i]t is not sound to view a single factor as dispositive of a conjunctive

and interrelated assessment." Hall, 134 S. Ct. at 2001 (quoting DSM-5, at 37) ("[A] person with

IQ score above 70 may have such severe adaptive behavior problems ... that the person's actual

functioning is comparable to the individuals with a lower IQ score."). Even though Florida

recognized that "Hall requires courts to consider all three prongs of intellectual disability in

tandem" it inexplicably proceeded to deny Quince relief because he failed to "meet the

significantly subaverage functioning prong." Quince, 241 So. 3d at 62 (emphasis added). Florida

gave no consideration to the abundant testimony presented in support of the other two prongs. See

id. (citing Zack v. State, 228 So. 3d 41, 47 (Fla. 2017)) ("while Hall requires a holistic hearing,

'defendants must still be able to meet the first prong of [the intellectual disability

standard]."')(emphasis added). Recently the Supreme Court of Kentucky, in light of Hall and

Moore, held that "any rule of law that states that a criminal defendant automatically cannot be

ruled intellectually disabled and precluded from execution simply because he or she has an IQ of

71 or above, even after adjustment for statistical error, is unconstitutional." Woodall v.

Commonwealth, - - - S.W. 3d - - -, 2018 WL 2979581 at *4 (Ky. June 14, 2018). What Florida

continues to ignore and Kentucky clearly understands is that "the prevailing tone of [this] Court's

examination of this issue suggests that a determination based solely on IQ score, even after proper

statistical-error adjustments have been made, is highly suspect; and 2) prevailing medical standards

should be the basis for a determination as to a defendant's intellectual disability to preclude the

imposition of the death penalty." Id. at *3. The current medical standards for diagnosis of

intellectual disability nationally are governed by the DSM-V and the AAIDD. To ignore the

authority of these current and recognized "leading medical manuals" would led to an Eight

Amendment unfettered abuse of the analysis of intellectual disability, where there is no informed

medical diagnostic framework. Moore, 137 S. Ct. at 1048-1049; see Woodall, 2018 WL 2979581

at *4. 46 Florida failed to follow a mandate established by this Court in Hall and repeated in Moore

that requires the assessment of all three prongs under the current medical standards in determining

intellectual disability.

Florida's holding in Quince's case is inexplicable in light of its own precedent that

considers all three prongs of the intellectual disability test in tandem and explains that the

conjunctive and interrelated nature of the test requires that no single factor be considered

dispositive because these factors are interdependent. See, e.g., Oats v. State) 81 So. 3d 457 (Fla.

2015); Hall v. State, 201 So. 3d 628; Walls v. State, 213 So. 3d 340. Further, Florida even held

that "if one of the prongs is relatively less strong, a finding of intellectual disability may still be

warranted based on the strength of the other prongs." See Walls, 213 So. 3d at 346 (quoting Oats,

181 So. 3d 457 at 467-68). Florida is clearly wrong in limiting the medical assessment of Quince's

intellectual disability to prong one. See Quince, 241 So. 3d at 62. Intellectual disability is not a

cut-off number; it is not a cut-off range; it is not a bright-line assessment of only one prong47 ; it is

"Because prevailing medical standards change as new medical discoveries are made, routine application

of a bright-line test alone to determine death-penalty-disqualifying intellectual disability is an exercise in

futility."

See Quince, 241 So. 3d at 62.

a medical condition based on the DSM-V and AAIDD and the evaluation of all three prongs in

tandem. See Hall, 134 S'. Ct. at2001; see Brumfieldv. Cain, - - - U.S. - - -, 135 S. Ct. 2269, 227882, 192 L. Ed. 2d 356 (2015); see Chase v. State, 873 So. 2d 1013, 1028, n18 (Miss. 2004). 48 Dr.

Oakland and Dr. Berland are the only mental health professionals who made a full determination

as to intellectual disability, assessed all three prongs in accordance with the DSM and AAIDD,

and unequivocally found Quince to be mentally retarded. See Hall v. State, 201 So. 3d 637. This

Court cannot overlook the strength of the medical support for all three prongs for Quince's

intellectual disability.

Florida made no findings regarding Quince's adaptive functioning deficits under prong two

or three. 49 Both Drs. Oakland and Berland opined that Quince's significantly subaverage general

intellectual functioning and concurrent deficits in adaptive behavior manifested before the age of

18. According to Florida, "adaptive behavior" 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. 50 Neither the statute nor the Rule provide guidance as

to recommended means of measuring adaptive behavior. However, Florida courts use the standard

set forth in Atkins. According to Atkins, deficits in adaptive behavior are "limitations in two or

more of the following applicable adaptive skill areas: communication, self-care, home living,

social skills, community use, self-direction, health and safety, functional academics, leisure, and

work." 536 U.S. at 308 n. 3 (quoting Am. Ass'n on Mental Retardation, Mental Retardation:

"IQ, alone, does not determine mental retardation. According to the DSM-IV, 'it is possible to diagnose

Mental Retardation in individuals with IQ's between 70 and 75 who exhibit significant deficits in adaptive

behavior.' Conversely, Mental Retardation would not be diagnosed in an individual with an IQ lower than

70 if there are no significant deficits or impairments in adaptive functioning." All three prongs must be

assessed.

49 FLA. STAT. ANN.§ 921.137(1); Fla. R. Crim. P. 3.203(b).

so Id

Definition, Classification, and Systems of Supports 5 (9th ed. 1992).

This Court has the unrebutted and fully informed opinions of Drs. Oakland and Berland

that Quince suffered severe deficits in adaptive functioning. Like Dr. Gregory Prichard in Hall,

Dr. Oakland made his full determination based on his personal evaluation of Quince, interviews

of several familial and school witnesses, school records, medical records, previous psychological

and psychiatric reports and prior testimony with regard to Quince's mental status. 51 See Hall, 201

So. 3d at 636-38. At the evidentiary hearing held on Quince's Atkins motion, several lay witnesses

testified as to Quince's adaptive functioning prior to and around the time he was arrested and

charged in this case. See supra p.13-14. Dr. Oakland administered the ABAS by questioning a

total of twelve individuals, including Quince and several family members, teachers, and a school

psychologist. The focus of this administration was Quince's adaptive behavior just prior to the age

of 18. Dr. Oakland concluded that Quince was a follower who minimized drawing attention to

himself. P4/490. He walked awkwardly. He was a loner who had only one friend. He did not

initiate conversation and rarely engaged in it. There was no evidence of reading books or

newspapers. He rarely engaged in work at home, and if he did, he was supervised by others and

the work was done at their request. He never had a bank account or a credit card. He never repaired

his clothing or did laundry, used an iron, or prepared meals for others. His mother held his money

so that he did not give it away. Dr. Oakland testified that these observations were helpful to

understanding whether Quince's behaviors were normal relative to others at the same age at the

In contrast, Dr. McClaren had not talked to any of Quince's family members; nor had he reviewed any

testimony by family members, friends or teachers; nor had he made any inquiries at Union Correctional

Institution about Quince's activities regarding books and the law library; and nor had he reviewed any of

Dr. Oakland's work relating to adaptive behavior. Dr. McClaren did not asses Quince's adaptive behavior

or consider any other evaluations of Quince and his abilities. He had no opinion as to Quince's adaptive

functioning and his sole reliance on evidence at the time of incarceration has been rejected. See Hall, 201

So. 3d at 636.

time and also relate to items that exist on measures of adaptive behavior.

Dr. Berland administered the Interview Edition of the Vineland Adaptive Behavior Scales

to Quince's sister, Linda Stouffer. She was asked to recall Quince's abilities at the age of 18. Dr.

Berland's administration of the Vineland Adaptive Behavior Scales revealed that Quince's

adaptive behavior was not only more than two standard deviations below the mean but ranked in

the first percentile of the population, a finding consistent with Dr. Oakland's 2007 administration

of the ABAS. Other evidence of severe deficits in adaptive functioning included: Dr. Bernard, who

testified that Quince entered the Job Corps at age 19, but lost his privileges after eight months due

to arguments with teachers, that Quince had worked as a dishwasher and in landscaping, but that

the longest he ever held a job was approximately five months, that Quince looked at the floor, did

not talk spontaneously, had poor eye contact, answered with a soft voice, and had deficits in recent

and remote memory; Dr. Carrera, who mentioned that Quince was in the Job Corps and worked as

landscaper and dishwasher, with his longest job lasting 6 months, that Quince could not control

his bladder until adolescence, that he was poor in arithmetic and that he could abstract only one

out of five proverbs, and that his intellectual social judgment was marginal; Dr. Rossario noted

that the Defendant's insight was "completely lacking," that his judgment was "markedly

impaired," that he was "unable to sustain any consistent work" and lacked the "ability to function

as a responsible person"; Dr. Louis Legum, a clinical psychologist, who administered the WAISR in 1984, reported that Quince was unable to control his urine until age 16; and even Dr. McClaren

also noted Quince's slight eye contact, non-spontaneous speech, that he only answered direct

questions, and that he reported he copied work from other inmates. The foregoing mental health

evaluations, taken together with the testimony described above from the lay witnesses, clearly

indicate that Quince had significant adaptive functioning deficits.

The final showing Quince must make in order for a court to deem him intellectually

disabled is that his deficits in intellectual functioning and adaptive behavior manifested before the

age of 18. Quince presented strong and unrefuted evidence from school professionals and family

members that he suffered deficits in intellectual and adaptive functioning concurrently and prior

to the age of 18. Ms. Paskewitz testified in her deposition that in order to be placed into special

education, a child at Quince's school would have had to score below 70 on an IQ test. Both Vivian

Charles and Earl Griggs testified that Quince was in special education classes. Quince also suffered

from concurrent deficits in adaptive behavior prior to the age of 18. Jeanette Quince, Gregory

Quince, Vivian Charles, Earl Griggs, and Fred Phillips all testified as to Quince's behavior prior

to age 18. Moreover, only Drs. Oakland and Berland assessed this prong and found conclusively

that Quince's deficits in intellectual functioning and adaptive behavior occurred concurrently and

prior to the age of 18, evident from the testing and lay witness testimony. Only after conducting a

comprehensive assessment as to all three prongs, Drs. Oakland and Berland opined Quince is

mentally retarded.

In light of Atkins, Hall and Moore it is clear that Quince suffers from significantly

subaverage general intellectual functioning, that coexists with deficits in adaptive behavior, and

the deficits in intellectual functioning and adaptive behavior manifested before the age of 18. These

conclusions are evident from the face of the record, which contains extensive expert findings and

testimony regarding each of the three prongs demonstrating that Quince is intellectually disabled.

CONCLUSION

Florida clearly recognizes the importance of courts to be "guided by established medical

practice and psychiatric and professional studies that elaborate on the purpose and meaning of each

of the three prongs for determining an intellectual disability." Oats, 181 So. 3d at 457 (citing Hall,

134 S. Ct. at 1993). 52 Yet, Florida denies Quince his Eight and Fourteenth Amendment

constitutional rights by disregarding the well-accepted correction pursuant to the Flynn effect, and

also disregarding the well-accepted clinical determination of intellectual disability based on all

three prongs of the DSM and AAIDD. This Court must intervene in Florida's blatant disregard of

this Court's and the medical communities opinions and grant Quince relief. Otherwise, an

intellectually disabled man will be wrongfully executed.

This Court "has made clear that when determining whether an individual meets the criteria to be

considered intellectual disability, the definition that matters most is the one used by mental health

professionals in making this determination in all contexts, including those 'far beyond the confines of the

death penalty.' As such, courts cannot disregard the informed assessments of experts." Hall. 134 S. Ct. at

2000-01 (internal citations omitted).

QUESTION Two

Florida requires an individual to prove intellectual disability by clear and convincing

evidence. 53 Florida's heightened standard is unconstitutional under Atkins, Cooper v. Oklahoma, 54

Medina v. California, 55 and the Eighth and the Fourteenth Amendments to the United States

Constitution. 56 See U.S. CONST. amend. VIII; amend. XIV. This Court, in Atkins, emphasized the

fact that an intellectually disabled individual, because he is unable to assist in his own defense, has

a constitutionally unacceptable risk of wrongful execution. 57 To require an individual who is

intellectually disabled to prove his disability by such an inordinately high standard as "clear and

convincing" therefore unconstitutionally increases the risk of wrongful execution. In Quince's

case, Florida continues to not address the constitutionality of its burden. See Quince 241 So. 3d at

63 ("Because we conclude that Quince's intellectual disability claim would have failed even under

the preponderance of the evidence standard, we need not address the constitutionality of the clear

and convincing evidence standard of section 921.137(4), Florida Statutes."); see e.g., Dufour v.

State, 69 So. 3d 235, 253 (Fla. 2011); see Phillips, 984 So. 2d 503, 509, n.11 (Fla. 2008); see

Trotter v. State, 932 So. 2d 1045, 1049, n.5 (Fla. 2006); see Jones v. State, 966 So. 2d 319, 329

(Fla. 2007); see Burns v. State, 944 So. 2d 234, 249, n.13 (Fla. 2006); see generally Wright, 213

So. 3d at 896, n.3. The constitutionality of the burden Florida requires to prove a condemned

FLA. STAT. ANN.§ 921.137(4).

517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996) (This Court held that Oklahoma's requirement

that a defendant prove his incompetence to stand trial by clear and convincing evidence was

unconstitutional).

505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992) (This Court rendered a historical analysis on the

fundamental fairness of mandating the burden on the defendant to prove incompetence. This Court

thoroughly discussed the burden of preponderance of evidence as one that does not offend the conscience

and traditions of the people and fundamental fairness.)

56 It is Quince's position that he proved his intellectual disability by clear and convincing evidence under a

proper Hall and Moore analysis.

536 U.S. at 320-21.

person is intellectually disabled is of great importance for this Court's review.

The execution of an intellectually disabled individual is constitutionally impermissible

under the Eighth and Fourteenth Amendments pursuant to Atkins. 58 See U.S. CONST. amend. VIII;

amend. XIV. In Atkins, this Court ruled that executing an intellectually disabled individual could

serve neither deterrence nor retribution, the two social purposes served by the death penalty. 59 The

death penalty cannot act as a deterrent for the intellectually disabled because. of their diminished

ability to process the potential punishment and make choices accordingly. 60 It also does not serve

the purpose ofretribution because "the severity of the appropriate punishment necessarily depends

on the culpability of the offender," and the culpability of even the average murderer is not enough

to justify the death penalty. 61 Because an intellectually disabled offender is less culpable due to his

or her diminished capacity, the interest of retribution is not served. 62 Therefore, imposing the death

penalty on such a person constitutes "purposeless and needless imposition of pain and suffering";

hence, it is unconstitutional. 63 This Court further held that the intellectually disabled are less

capable of assisting in their own defense, more likely to give false confessions, and more

susceptible to false findings of lack of remorse. 64 There is an unacceptable risk of wrongful

execution because of these factors. 65

Under this Court's decision in Cooper and Medina, in light of Atkins, Florida's burden

536 U.S. at 321.

Id. at 318-19 (citing Greggv. Georgia, 428 U.S. 153, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859, (1976) Goint

opinion of Stewart, Powell, and Stevens, JJ.)).

Id. at 320.

Id. at 319.

62 Id.

Id. (citingEnmundv. Florida, 458 U.S. 782,798, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)).

Id. at 320-2.1 (internal citations omitted).

Id. This burden is defined as "[e]vidence indicating that the thing to be proved is highly probable or

reasonably certain. This is a greater burden than preponderance of evidence ... but less than evidence

beyond a reasonable doubt." Clear and convincing evidence, BLACK'S LAW DICTIONARY (10th ed. 2014).

cannot be deemed constitutional. Indiana66 provided a comprehensive roadmap as to why such a

heightened burden67 to determine intellectual disability is unconstitutional. See Pruitt v. State, 834

N.E. 2d 90 (Ind. 2005) (abrogating Rogers v. State, 698 N.E. 2d 1172 (Ind. 1998)). 68 Pruitt found

that this Court "[a]fter reviewing historical practice and finding that proof by a preponderance of

the evidence is the standard in the great majority of United States jurisdictions," had "concluded

that 'the heightened standard [of clear and convincing evidence] offends a principle of justice that

is deeply 'rooted in the traditions and conscience of our people"" under the Due Process Clause.

Id. (quoting Medina, 505 U.S. at 438). Further, New Jersey looked to Pruitt to uphold its

preponderance of evidence burden of proof and to explain how the higher burdens could create a

substantial risk of wrongfully executing the intellectually disabled. See State v. Jimenez, 188 NJ.

390, 399-403, 908 A. 2d181 (2006), opinion clarified, 191 N.J. 453,924 A. 2d 513 (2007) (quoting

Pruitt, 834 N.E. 2d at 102-03). 69 Texas also recognized that "[t]he issue of mental retardation is

similar to affirmative defenses such as insanity, incompetency to stand trial, or incompetency to

be executed, for which the Texas Legislature has allocated the burden of proof upon a defendant

Even though in 2005, Pruitt held that the clear and convincing standard is unconstitutional, the Indiana

legislature inexplicably amended the law in 2007, and continued to require that the defendant must prove

his intellectual disability by clear and convincing evidence. See IND. CODE ANN. § 35-36-9-4 (West).

Currently Florida, Arizona, Colorado, Indiana, and North Carolina currently apply this unconstitutional

and heavy burden. See ARIZ. REV. STAT. ANN.§ 13-753(0) (2011); see COLO. REV. STAT.§ 18-1.3-1102

(2012); see N.C. GEN. STAT.§ 15A-2005(c) (2015). Delaware also has the clear and convincing standard,

but its death penalty sentencing statute is in flux. See DEL. CODE ANN. tit. 11, § 4209 (West) held

unconstitutional by Rauf v. Delaware, 145 A. 2d 460 (Del. 2016). This handful of states have created a

great risk for the intellectually disabled to be executed. Georgia is an outlier with a beyond a reasonable

doubt burden of proof. See Hill v. Humphrey, 662 F. 3d 1335,"1360 (11th Cir. 2011).

Pruitt held that Indiana's statute requiring a clear and convincing burden of proof to prove mental

retardation was unconstitutional and violated the defendant's right to due process. But see IND. CODE ANN.

§ 35-36-9-4.

"By way of example, the Indiana Supreme Court rejected the imposition of a higher burden of proof on

the defendant, explaining that a clear and convincing standard 'would result in execution of some persons

who are mentally retarded' and that 'the defendant's right not to be executed if mentally retarded outweighs

the state's interest' in imposing the death penalty. In this respect, the (Indiana] court expressed a concern

that mentally retarded defendants face a heightened risk of wrongful execution because of their diminished

ability to assist in their own defense." (internal citations omitted).

to establish by a preponderance of the evidence." Ex parte Briseno, 135 S.W. 3d 1, 12 (Tex. Crim.

App. 2004), abrogated by Moore v. Texas, 137 S. Ct. 1039, abrogated by Ex parte Moore, - - S.W. 3d - - -, 2018 WL 2714680 (Tex. Crim. App. June 6, 2018) 70 ; see Neal v. State, 256 S.W. 3d

264, 273 (Tex. Crim. App. 2008); see Franklin v. Maynard, 356 S.C. 276, 279, 588 S.E. 2d 604

(2003); see State v. Lott, 97 Ohio St. 3d 303,307, 779 N.E. 2d 1011 (2002).

The ability of different states to apply different burdens to prove whether an individual is

intellectually burden can only lead to detrimental outcomes. See supra p.32, n.69. Alabama,71

Arkansas, 72 California, 73 Idaho, 74 Louisiana, 75 Missouri, 76 Mississippi, 77 Nebraska, 78 Nevada, 79

Ohio, 80 Oklahoma, 81 Oregon, 82 Pennsylvania, 83 South Carolina, 84 South Dakota, 85 Tennessee, 86

This Court held in Moore that the Briseno factors adopted by the Texas Court of Criminal Appeals created

an unacceptable risk that the intellectually disabled would be executed in violation of the Eighth

Amendment. The opinion did not address the preponderance of evidence burden of proof.

See Morrow v. State, 928 So. 2d 315, 322-23 (Al. Crim. App. 2004); see Ala. R. Crim. P. 32.

See ARK. CODE ANN.§ 5-4-618 (a)(2)(c) (West).

See Cal. Penal Code§ 1376(b)(3) (West 2013).

See IDAHO CODE ANN.§ 19-2515A (3)(West).

See La. Code Crim. Proc. Ann. art. 905.5.1 (2015).

See MO. ANN. STAT.§ 565.030 (4)(1) (West 2016).

See Chase, 873 So. 2d at 1028-29.

See NEB. REV. STAT. ANN.§ 28-105.01 (4) (2018).

See NEV. REV. STAT. ANN.§ 174.098 (West 2015).

See Lott, 97 Ohio St. 3d 303.

81 See Pickens v. State, 126 P. 3d 612, 614 (Okla. Crim. App. 2005).

"[1]n the years since the Supreme Court decided Atkins, the Oregon legislature has not adopted any

procedure for determining whether a person accused of aggravated murder has an intellectual disability

and, therefore, ineligible for the death penalty. Nor has the issue been addressed by the Oregon appellate

courts before today. Lacking such guidance, the trial court in this case invited suggestions from the parties

about how to proceed and ultimately concluded that it would conduct a pretrial hearing, which we refer to

as an Atkins hearing, during which both sides would present evidence on defendant's mental health and

abilities as well as on the prevailing standards for making the determination of intellectual disability. For

defendant to be found intellectually disabled and, therefore, ineligible for the death penalty, the trial court

ruled, defendant would have to establish that he was intellectually disabled by a preponderance of

the evidence." State v. Agee, 358 Or. 325, 340-41, 364 P.3d 971 (2015) (footnote omitted).

See Pa. R. Crim. P. 843 (citing Commonwealth v. Sanchez, 614 Pa. 1, 36 A. 3d 24 (2011)).

See Franklin, 356 S.C. at 279.

See S.D. CODIFIED LAWS § 23A-27A-26.3 (West) amended by SD LEGIS 148 (2018), 2018 SOUTH

DAKOTA LAWS Ch. 148 (HB 1077).

See TENN. CODE ANN.§ 39-13-203 (2014).

Utah, 87 Virginia, 88 Washington, 89 and Texas90 require, by case law, statute, or rule, proof by a

preponderance of the evidence to determine intellectual disability. 91 Kentucky and Kansas do not

have defined burdens of proof. 92 Furthermore, the Federal Death Penalty Act places the burden on

the defendant to prove he in intellectually disabled by a preponderance of the evidence. 93 There is

certainly a trend across the country in favor of the burden of preponderance of evidence to prevent

states from the grave mistake of executing the intellectually disabled. In short, similarly situated

intellectually disabled individuals can live in one state but be eligible to be executed in another,

simply because of what burden they face. This fundamentally unfair and unconstitutional practice

must be corrected by this Court.

Following Cooper and Medina, it is clear that this Court recognizes the preponderance of

evidence burden of proof as one that is fundamentally fair, that does not violate the Due Process

Clause of the Fourteenth Amendment, and protects the intellectually disabled from being executed

in violation of the Eighth Amendment and Atkins. See U.S. CONST. amend. VIII; amend. XIV. This

protection is especially important in cases where individuals with mild intellectual disability are

more difficult to identify than those with moderate or severe forms of the disorder. 94 Their deficits

See UTAH CODE ANN.§ 77-15a-104 (12); (13) (West) amended by 2018 UTAHLAWSCh. 281 (S.B. 116).

88 SeeVA.C0DEANN. § 19.2-264.3:1.1 (C)(West2017).

89 See WASH. REV. CODE ANN. § 10.95.030 (2) (West 2015) held unconstitutional on other grounds.

See Ex parte Briseno, 135 S.W. 3d at 7, 12, nn.24-27.

Prior to the abolition of the death penalty, Maryland and New Mexico also required proof by the

preponderance of evidence. See MD. CODE ANN., Crim. Law§ 2-202 (West) repealed by Acts 2013, c. 156,

§ 3 (eff. Oct. 1, 2013); see N.M. STAT. ANN.§ 3 l-20A-2. l repealed by L. 2009, Ch. 11, § 5 (eff. July 1,

2009).

See KAN. STAT. ANN.§ 21-6622 (West 2017); see KY. REV. STAT. ANN.§ 532.135 (West 2012)/ound

unconstitutional by Woodall, 2018 WL 2979581 (see supra p.23-24) .

. 93 See e.g., Thomas, 614 F. Supp. 2d at 1260; Smith, 790 F. Supp. 2d at 484 (E.D. La. 2011); United States

v. Bourgeois, 2011 WL 1930684, at *46 (S.D. Tex. 2011); Hooks v. Workman, 689 F. 3d 1148, 1166 (10th

Cir. 2012); United States v. Northington, 2012 WL 4024944, at *3 (E.D. Pa. 2012); United States v. Salad,

959 F. Supp. 2d 865,868 (E.D. Va. 2013); United States v. Wilson, 170 F. Supp. 3d 347 (E.D.N.Y. 2016).

94 Gary N. Siperstein & Melissa A. Collins, Intellectual Disability, in The Death Penalty and Intellectual

Disability 21, 26 (Edward A. Polloway ed., 2015).

are often subtle and not readily observable. 95 They engage in many activities common to those

who are not intellectually disabled, but have deficits in socializing and conceptualizing; these

deficits cause them to be easily led and to fail to understand the consequences of their actions.96

These deficits represent one main reason that the Atkins Court found that the death penalty was

inappropriate for the intellectually disabled - they lack the same culpability as non-intellectually

disabled individuals. 97 Furthermore, and likely for this reason, most jurisdictions and the Federal

Death Penalty Act require only that intellectual disability be proven by a preponderance of the

evidence. 98 See supra p.33, n.74. The "clear and convincing evidence" requirement is an

impossibility, particularly in cases of mild and moderate intellectual disability, and runs afoul of

Atkins, Cooper, Medina and the Eighth and Fourteenth Amendments to the Constitution of the

United States. Florida continues to be in the minority with its burdensome statutory scheme which

will only serve to execute the intellectually disabled.

95 Id.

96 Id.

536 U.S. at 319.

98 John H. Blume & Karen L. Salekin, Analysis of Atkins Cases,

Disability 37, 41 (Edward A. Polloway ed., 2015).

in The Death Penalty and Intellectual

CONCLUSION

For all the foregoing reasons, this Court should grant the petition for writ of certiorari and

order further briefing in Mr. Quince's case.

Respectfully submitted

cJ?i ~

Raheela Ahmed

Counsel of Record

Florida Bar Number 0713457

Assistant CCRC

Email: ahmed@ccmr.state.fl.us

Secondary Email: support@ccmr.state.fl.us

'-'t'V\~ ( - ) ~

Maria Christine Perinetti

Florida Bar Number 0013837

Email: perinetti@ccmr. state .fl. us

Secondary Email: support@ccmr.state.fl.us

Lisa Marie Bort

Florida Bar Number 119074

Email: bort@ccmr.state.fl.us

Secondary Email: support@ccrnr.state.fl.us

The Law Office of the Capital Collateral

Regional Counsel - Middle Region

12973 North Telecom Parkway,

Temple Terrace, Florida 33637

Tel: (813) 558-1600

Fax: (813) 558-1601

June 25, 2018 .

Dated

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