Petition for Writ of Certiorari — Allen Robertson, Jr., Petitioner v. Louisiana
Supreme Court briefJul 5, 2018
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No. _ __
In The Supreme Court Of The United States
ALLEN ROBERTSON,
Petitioner,
v.
DARREL VANNOY, Warden,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
TIIB LOUISIANA SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
.. Matilde Carbia* (#294732)
Charlotte Faciane
Naila Campbell
Capital Post-Conviction Project of Louisiana
1340 Poydras, Suite 1700
New Orleans, Louisiana 70112
Telephone: (504) 212-2110
Facsimile: (504) 212-2130
Counsel for Petitioner Allen Robertson
* Counsel ofRecord
CAPITAL CASE-NO EXECUTION DATE SET
QUESTIONS PRESENTED
I.
Whether it violates the Eighth Amendment and this Court's decisions in Moore v.
Texas, 137 S. Ct 1039 (2017), Hall v. Florida, 134 S. Ct. 1986 (2014), and Atkins
v. Virginia, 536 U.S. 304 (2002) where the Louisiana state courts relied on
evidence of Petitioner's criminal behavior, contrary to the standards of the
medical co=unity, in determining that Petitioner Allen Robertson is not
intellectually disabled?
II.
Whether it violates the Sixth Amendment and this Court's decision in Pena-
Rodriguez v. Colorado, 137 S. Ct. 855 (2017), where a member of the jury that
convicted Petitioner and sentenced him to death stated that "[m]urders and stuff,
it's all done by them niggers," and where the Louisiana state courts denied
Petitioner's racial bias claim without co=ent?
Petitioner Allen Robertson respectfully requests that this Court issue a writ of certiorari
to review the decision of the Louisiana Supreme Court.
PARTIES TO THE PROCEEDING IN THE COURTS BELOW
I.
Allen Robertson, Plaintiffi'Appellant
2.
Darrel Vannoy, Warden, Louisiana State Penitentiary
11
Table of Contents
OPINIONS DELIVERED IN THE COURT BELOW................................................................... 1
JURISDICTIONAL STATEMENT ............................................................................................... 1
CONSTITUTIONAL PROVISIONS AT ISSUE ........................................................................... 2
STATEMENT OF THE CASE ....................................................................................................... 2
REASONS FOR GRANTING THE PETITION .......................................................................... 11
I.
The Louisiana Courts Improperly Considered Petitioner's Criminal Behavior in its
Determination that Petitioner is Not Intellectually Disabled .................................................... 11
IL
Petitioner's right to a fair and impartial jury was violated by a juror's racial animus
towards Mr. Robertson.............................................................................................................. 17
CONCLUSION ............................................................................................................................. 22
Contents of Appendix
Appendix A
Louisiana Supreme Court, Per Curiam, April 6, 2018
Appendix B
March 31, 2008 Order of the Nineteenth Judicial District Court of East Baton
Parish, Louisiana
ill
Table Of Authorities
Cases
Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................................. passim
Brumfield v. Cain, 854 F. Supp. 2d 392, 394 (M.D. La., 2009) ................................. 13, 14, 15, 17
Edwards v. Balisok, 520 U.S. 641(1997) ..................................................................................... 21
Hall v, Florida, 134 S. Ct. at 1995 ......................................................................................... passim
Hill v. Anderson, 881 F.3d 483 (6th Cir., 2018) ........................................................................... 17
Hughes v. United States, 258 F.3d 453 (6th Cir. 2001) ................................................................ 21
Johnson v. United States, 520 U.S. 461 (1997) ............................................................................ 21
McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984) ................................................. 20
Moore v. Texas, 137 S. Ct. 1039 (2017) ........................................................................... 11, 12, 13
Neder v. United States, 527 U.S. I (1999) .................................................................................... 21
Pena-Rodriguez, 137 S. Ct. 855 (2017) ................................................................................. passim
Rose-v.- Clark, 478 U:S-. 570 (1986) .............................................................................................. 21
Sajjle v. Parks, 494 U.S. 484 (1990) ............................................................................................. 18
Schriro v. Summerlin, 542 U.S. 348 (2004) .................................................................................. 18
Smith v. Phillips, 455 U.S. 209 (1982) ......................................................................................... 20
State ex rel. Taylor v. Whitley, 606 So.2d 1292 (1992) ................................................................ 18
State v. Brown, 907 So.2d I (La. 4/12/05) .................................................................................... 15
State v. Dunn, 01-1635, 41 So.3d 454 (La. 5/11/10) ................................................................ 9, 15
State v. Robertson, 2008-1116 (La. 09/04/09); 17 So. 3d 960........................................................ 3
State v. Scott, 921 So.2d 904 (La. 1/19/06) .................................................................................. 15
Teague v. Lane, 489 U.S. 288 (1989) ........................................................................................... 18
IV
Tharpe v. Sellers, 138 S. Ct 545 (2018) ................................................................................. 19, 21
Thomas v. Davis, 17-70002 (5th Cir. 2018).................................................................................. 20
Tumey v. Ohio, 273 U.S. 510 (1927) ............................................................................................ 21
Turner v. Murray, 476 U.S. 28 (1986) .......................................................................................... 20
Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) ............................................................................. 21
Wainwrightv. Witt, 469 U.S. 412 (1988) ..................................................................................... 20
Whorton v. Bockting, 549 U.S. 406 (2007) ................................................................................... 18
Statutes
28 U.S.C. § 1257 ............................................................................................................................. 1
28 U.S.C. § 1257(a) .............................................................. ;......................................................... 1
Other Authorities
AAIDD guidelines ........................................................................................................................ 10
AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports 1 (11th ed.
-------
-
-- -
--
2010) ("AAIDD Manual") ................................................................................................. passim
AAMR, Mental Retardation: Definition, Classification, and Systems of Supports, 79 (10th ed.
2002)("AAMR Manual") ................................................................................................ 5, 13, 15
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed.
2012) ········································································································································· 12
Atkins v. Virginia: A Dozen Years Later - A Report Card: Scientizing Culpability: The
Implications of Hall v. F1orida and the Possibility of a Scientific State Decisis, 23 Wm. &
Mary Bill ofRts. J. 415, 422 (2014) ................................................................................... 14, 16
BriefofAmici Curiae American Psychological Association, et al. in Support ofPetitioner, Moore
v Texas, 2016 U.S. S. Ct. Briefs LEXIS 2882, 35 (2016) (No. 15-797) ................................... 13
v
John H. Blume, Sheri Lynn Johnson & Christopher Seeds, OfAtkins and Men: Deviations from
Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J. L. & Pub.
Pol'y 689, 713 (2009) --------------------------------------------------------------------------------------------------------------- 16
John Matthew Fabian, William W. Thompson, N, & Jeffrey B. Lazarus, Life, Death, and IQ:
It's Much More Than Just a Score: Understanding and Utilizing Forensic Psychology and
Neuropsychological Evaluations in Atkins Intellectual Disability, Mental Retardation Cases,
59 Clev. St. L. Rev. 399------------------------------------------------------------------------------------------------------------ 16
Nancy Haydt, Intellectual Disability: A Digest of Complex Concepts in Atkins Proceedings, 38
Champion 44, 50 (2014) ----------------------------------------------------------------------------------------------------------- 16
The Death Penalty and Intellectual Disability (Edward A. Polloway, ed., 2015)------------------ 13, 14
Rules
Federal Rules of Evidence Rule 606(b) ---------------------------------------------------------------------------------------- 18
La. C.E. 606(B) (2017) ----------------------------------------------------------------------------------------------------------------- 17
-The Louisiana Code of Criminal Procedure Article 905-;;;;; __ :;-_"'"--: ..... :.... :.. ;;;;;:;::o:;;::."''--"--'------ -12
Constitutional Provisions
U.S. Const. amend. VI----------------------------------------------------------------------------------------------------------- i, 2, 17
U.S. Const. amend. VIIL ....................................................................................................... i, 2, 12
U.S. Const. amend. XN ................................................................................................................. 2
Vl
No. _ __
In The Supreme Court Of The United States
ALLEN ROBERTSON,
Petitioner,
v.
DARREL VANNOY, Warden,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE LOUISIANA SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
Petitioner Allen Robertson respectfully prays that a Writ of Certiorari issue to review the
judgment of the Louisiana Supreme Court entered in this case.
OPINIONS DELIVERED IN THE COURT BELOW
The Per Curiam rendered by the Louisiana Supreme Court on April 6, 2018 denying
Petitioner's writ to review the district court's denial of post-conviction relief, is attached as
Appendix A. The March 31, 2008 Order of the Nineteenth Judicial District Court of East Baton
Parish, Louisiana, denying Petitioner's application for post-conviction relief is attached as
AppendixB.
JURISDICTIONAL STATEMENT
The Louisiana Supreme Court issued its denial of Petitioner's writ of review on April 6,
2018 and that ruling became final on that date. This Court has jurisdiction under 28 U.S.C. §
1257(a) to review this Petition.
1
CONSTITUTIONAL PROVISIONS AT ISSUE
The Eighth Amendment to the United States Constitution provides: " ... nor cruel and
unusual punishments inflicted." U.S. Const. amend_ VIII.
The Sixth Amendment to the United States Constitution provides: "In all criminal
prosecutions, the accused shall enjoy the right to... have the Assistance of Counsel for his
defense." U.S. Const. amend_ VI.
The Fourteenth Amendment to the United States Constitution provides: "No State shall ..
. deprive any person of life, liberty, or property, without due process of law; nor deny any person
within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §1.
STATEMENT OF THE CASE
Petitioner Allen Robertson was convicted and sentenced to death for the January 1, 1991
stabbing deaths of Kozuko and Morris Prestenback in 1991 and again in 1995. 1 Louisiana
district court Judge Michael Erwin presided over both trials. During the 1995 trial of Allen
Robertson, a black male from East Baton Rouge Parish, a white man named Johnny Robin sat on
the jury.
Both of Petitioner's trials took place prior to this Court's 2002 decision in Atkins v.
Virginia, 536 U.S. 304 (2002). During state post-conviction proceedings, counsel raised, among
other issues, a claim that Allen is intellectually disabled and thus ineligible for the death penalty
under Atkins as well as a claim that Petitioner's jury was infected with racial bias.
Juror
interviews were conducted with the members of Petitioner's 1995 jury before his post-conviction
petition was filed. In an interview with post-conviction counsel,2 Juror Johnny Robin expressed:
1 After Petitioner's initial trial, the Supreme Court of Louisiana granted a new trial on direct appeal based on a jury
issue. State v. Robertson, 92-2660 (La. 1114/94), 630 So.2d 1278.
2 At the time of Mr. Robin's interview, undersigned counsel was not yet post-conviction counsel.
2
My impression of Robertson was that he was trashy. He kept his head down
throughout and never looked up. At sentencing his lawyer argued that he grew up
in a bad environment and didn't have a father figure. I don't think that matters.
Lots of black people don't have fathers - they don't know who their fathers are.
That's just them.
Declaration of Johnny Robin at 4. Mr. Robin further stated that "Robertson was just a low life
like other black people" and that "[a]ll this crime is committed by them." Affidavit of Alison
McCrary. When asked who he meant by "them," Mr. Robin explained:
You know. People like him [Robertson]. Yeah, you know, pardon my French, but
they're all n*ggers. You see it on TV. They took over the neighborhood where the
old Japanese woman and her husband lived [the victims]. Northern Baton Rouge
is full of them now. I don't know why they commit crimes.
Id. In 2008, the state district court denied all post-conviction relief in an oral ruling.
Particular to Atkins, Judge Erwin found that "after reviewing the record and having heard the
case twice, and seen Mr. Robertson's reactions and heard his answers under questioning by both
his attorney and the State and ... the evidence that has been presented at those trials, ... it
doesn't appear that he falls into the mentally retarded category." February 14, 2008 hearing
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transcript. The state district court judge denied Petitioner's racial bias claim as procedurally
barred (but did not specify which procedural bar applied to the claim). Appendix B. In denying
post-conviction relief, Judge Erwin likewise denied an evidentiary hearing. Id.
The Supreme Court of Louisiana reversed and remanded Petitioner's case to Judge Erwin
to conduct an evidentiary hearing on the issue of whether Allen Robertson is intellectually
disabled. The denial of all other claims, including Petitioner's racial bias claim, was affirmed. 3
See State v. Robertson, 2008-1116 (La. 09/04/09); 17 So. 3d 960.
3After the remand, Judge Erwin expressed confusion during a status hearing with post-conviction counsel:
The Court: As I understand it the Supreme Court has ordered a hearing to determine whether or
not MI. Robertson is mentally retarded to the extent that he couldn't be executed.
Ms. Burns [prosecutor]: That's correct, your Honor.
The Court: My question is didn't we go through this io the trial?
3
As ordered by the Supreme Court of Louisiana, an Atkins hearing was held in front of
Judge Erwin over the course of three settings.
Each side presented expert testimony.
Petitioner's expert, Dr. Mark Cunningham, and court-appointed expert Dr. Jill Hayes found that
Petitioner is a person with intellectual disability.
The State's expert and a second court-
appointed expert testified that Petitioner does not have intellectual disability. 4
Each expert
concluded that Mr. Robertson made his best effort on testing and was not malingering. Two of
the four experts who evaluated Mr. Robertson-Dr. Jill Hayes 5 (court-appointed) and Dr. Mark
Cunningharn6 (Petitioner's expert}-found that Mr. Robertson meets all criteria for a diagnosis
of intellectual disability and that both at the time of the offense in 1991 and presently, Mr.
Robertson is a person with intellectual disability.
Three of the four experts-Ors. Hayes, Cunningham, and Hoppe-concluded that IQ
scores in the range of Allen Robertson's tested scores satisfy the first prong of intellectual
disability. Court-appointed expert, Dr. Hayes, determined that "Mr. Robertson's measured IQ
Ms. Burns: Well, Judge, that was our position, aud the court, upon review, have determined that
we have to now, in postconviction [sic], have that hearing and address that matter more fully.
Mr. Trenticosta [defense counsel]: ... This court ruled that Mr. Robertson is not mentally
retarded.
The Conrt: I understand that. Because we - I heard it twice; two different times, aud two different
cases that he wasn't mentally retarded. So, I didn't - I just kind of took them at their word. So,
what did the supreme court decide?
Mr. Degravelles [defense counsel]: The Supreme Court decided that there should be an
evidentiary hearing.
The Court: Why, John? I mean, we're going to have it I'm just curious. I haven't read the
decision.
1/22/10 Hearing Transcript.
4 The experts were: two court-appointed experts, Drs. Jill Hayes and Curtis Vincent; one defense expert, Dr. Mark
Cunningham; and one prosecution expert, Dr. Donald Hoppe. Petitioner also presented testimony from Dr. Frank
Gresham, who testified regarding adaptive deficits.
5 Court-appointed expert Dr. Jill Hayes, who was qualified as an expert in clinical and forensic psychology and
mental retardation and intellectual disability, testified that "Mr. Robertson met the criteria related to intellectual
functioning ... and that his deficits occurred prior to the age of eighteen and continued until the time of the crime."
6 Dr. Cunningham concluded that "[b]oth currently and in 1991, Mr. Robertson meets the diagnostic criteria as a
person with Mental Retardation". Report of Dr. Mark Cunningham at 38; see also 11113113 Atkins Hearing
Transcript at 128.
4
scores ranged from 67 to 76 (± 5 points to include the SEM)" 7-Report of Dr. Jill Hayes at 45and concluded that:
Mr. Robertson's intelligence would be considered "approximately two standard
deviations below the population mean, as outlined by the AAMRIAAIDD and the
APA Taken together, in my opinion, to a reasonable degree of psychological and
neuropsychological certainty, Mr. Robertson fulfills the intellectual criterion for a
diagnosis of mental retardation as defined by the AAMRIAAIDD and the APA.
Id. at 4 7. Dr. Mark Cunningham, Petitioner's expert, evaluated Mr. Robertson for intellectual
disability and likewise concluded that "[i]t is my opinion that he [Allen Robertson] does meet the
first definition-the first criteria of that definition [for intellectual disability)." 8 11/13/13 Atkins
Hearing Transcript at 128.
The State's expert, Dr. Hoppe, testified on cross-examination that a hard and fast cut off
score is not psychometrically justifiable (4/06116 Atkins Hearing Transcript at 113 ); that the LQ.
cut off for prong one is "very squishy" (id. at 114-115); that he did not believe there is a cutoff
line for LQ. scores (id. at 116); that it was not impossible for a person with an LQ. score of 79 to
. be intellectually disabled (id. at 117); and that1!!1IQ of 7~ ~ould "IIlore l~e!J_tha11 no!"_satis[y __
the intellectual functioning criterion for intellectual disability (id.).
The fourth expert, Dr. Vincent, testified on cross-examination that, considering the SEM,
an IQ of70-75 meets prong one-4/23/14 Atkins Hearing Transcript at 43-and further testified
that authoritative texts advise that a "hard and fast IQ cutoff score" is not advised and that a
"fixed point cutoff for intellectual disability is not psychometrically justifiable." Id. at 43 -45.
7 Both Dr. Hayes
and Dr. Cunningham determined that Mr. Robertson's IQ scores were all approximately two
standard deviations below the mean, as discussed by the AAIDD and the APA, regardless of the Flynn Effect. The
Flynn Effect results in inflated IQ scores due to out-of-date test norms. See DSM-V, at 37; see also AAIDD 11"' ecL,
at37.
8 Dr. Cunningham also noted that Mr. Robertson's IQ scores must be interpreted in light of the Standard Error of
Measurement (SEM). He explained that "[t]he SEM reflects the inherent inaccuracy of any test instrument. In other
words, though the precision of an exact IQ measurement would simplify diagnostic eligibility, this is beyond the
psychometric properties of the test" Report ofDr. Mark Cunningham at 7-8.
5
Dr. Cunningham testified that Mr. Robertson "shows pervasive deficits across all areas"
and found that Mr. Robertson's greatest weaknesses are in "functional academic skills, social
interpersonal skills, home living, use of co=unity resources, self-direction, work, and health."
11114/13 Atkins Hearing Transcript at 56. Dr. Hayes likewise concluded that Mr. Robertson has
significant weaknesses in adaptive functioning. In particular, she identified that his greatest
weaknesses are in functional academics, which was supported by Mr. Robertson's school
records, and in employment, which was supported by Mr. Robertson's vocational rehabilitation
report. 11121/14 Atkins Hearing Transcript at 66. Additionally, Dr. Curtis Vincent administered
the Adaptive Behavior Assessment System-II ("ABAS-II") to Mr. Robertson, his nephew and his
mother, and reported that "all three measures of adaptive functioning retrospective to age 17 fell
within the ID/MR [intellectually disabled] range, i.e., two or more standard deviations below the
mean."
Further, the State's expert, testified that Mr.
Report of Dr. Curtis Vincent at 31.
Robertson "absolutely" has weaknesses in reading and math computation.
4/05/16 Atkins
Hearing Transcript at 6.
The experts confirmed that weaknesses in adaptive functioning coexist with strengths.
Id. at 44 (Testimony of Dr. Mark Cunningham) ("There are no exclusionary criteria [for
intellectual disability] ... And, in fact, the definition even assumes strengths"); see also 4/21114
Atkins Hearing Transcript at 9 (Dr. Hayes testifying that persons with mild intellectual disability
can have strengths and outwardly appear no different to most people); see also 4/04/16 Atkins
Hearing Transcript at 135 (Testimony of Dr. Donald Hoppe) (Dr. Hoppe testifying that it is
possible for persons with intellectual disability to have normal grammar, vocabulary, and
syntax); see also 4/23114 Atkins Hearing Transcript at 11 (Dr. Hoppe testifying that adaptive
6
functioning of persons with mild intellectual disability can improve and that weaknesses can
coexist with strengths).
On cross-examination, court-appointed expert Dr. Curtis Vincent, who found Petitioner
was not intellectually disabled, testified that, in evaluating adaptive functioning, strengths must
be assessed as well as weaknesses:
Q: And mental retardation or intellectual disability is defined by deficits?
A: It's defined by both. Most co=only it's referred to what the - one measures
the abilities of the individuals, and it's the typical abilities when you're looking at
adaptive functioning, but both have to be assessed, both deficits and strengths.
Id. at 42.
Dr. Vincent further testified, when asked whether intellectual disability was a
condition characterized by deficits, that:
A: I don't see it that way, no. If we're measuring deficits, deficits and all skills
exist on a continuum. So we-the cutoff being approximately seventy for I.D.
they're - that individual is not only going to have deficits that's-that was
discussed considerably in the AAIDD manuals. The individual has strengths and
has deficits as well. So it's not possible to simply look at deficits.
4/04/16 Atkins Hearing Transcript at 16.
During its direct examinations, the State focused on the-facts ofthe criille andPei:itioner's
criminal history--4/04/2016 Atkins Hearing Transcript at 44 (asking Dr. Vincent, "And you
look, certainly, at the person's history, their prior behavior, and their actions at the time of the
crime; did you not in this case?" who responds, "Yes. We're always look for inconsistencies;
we're looking for corroborations, yes.)--and walked through the facts of the murders several
times, first with the court-appointed expert:
Q: Did - according to his testimony and that of the police officer, was he aware
that there was a police officer following him?
A: Yes.
Q: And at some point did he manage to hit the accelerator, floor itand flee?
A: Yes.
Q: Did he take the valuables; the watch, the wallet, and the money from the car,
nevertheless?
7
A: He took the wallet and the money. Honestly, I don't recall ifhe took the watch
with him or not.
Q: The butcher knife was left, though?
A: Yes.
Q: And as he fled, he did - talking about his ability with math - he did know that
there were two hundred and sixty dollars that he'd taken from this victim that he
just killed?
A: That's correct.
Q: And also, when he was trapped in that yard, he tried to calm down Mr. Weir,
who pulled a shotgun on him; did he not?
A: Yes, he did.
Q: And he attempted to secure his release by offering a certain amount of money,
as well, to Mr. Weir?
A: Yes.
Q: And did this impress you as terms of his - certainly, quick adaptability after
just committing a murder, to try to calm down another person for results of
preservation to escape?
A: Those are certainly adaptive skills, yes.
Id. at 46-47 (Testimony of Dr. Vincent). And then again with its own expert:
Q: And certainly, if a crime had occurred in 1991, the person's actions at that
time, at the age of twenty-three would certainly be, I would presume in your
mind, very valid as opposed to something twenty-three years later or twenty-four
years later when the person is in their mid-forties?
A: I think that would be worth looking at for sure, yes.
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Q: And would you want to interview, you would want to know the facts of the
cases, is what you're telling me?
A: Correct.
Q: And would you want to know if there were prior occasions of such criminal
behavior, particularly if they involved premeditation, preplanning, acting alone,
and involving gullible or vulnerable victims?
A: Well, prior criminal acts would also be well documented examples of an
individual's adaption, to use the word loosely, to his culture or his context.
Id. at 82-83 (Testimony ofDr. Hoppe). 9
9 The State continued questioning its expert about tbe facts of the crime:
Q: And at tbe time of the events, did the defendant have the wherewithal to take valuables, as well
as the murder weapon, from the house?
A: He did those things from which we can assume there was wherewithal to make those decisions.
Q: And fleeing afler being seen by a police officer. Of course, as consciousness of guilt, as we
say, does that also indicate to you the mind working and functioning, trying to survive?
A: Absolutely.
Q: And if at tbe time of being close to being caugbt, you take -you leave the murder weapon, but
take valuables; that a conscious decision at that point as well?
8
The State routinely objected to questions about intellectual disability being a disorder
characterized by deficits-See, e.g., id. at 14-15 (State's objection that legal analysis is different
from clinical analysis and takes into consideration facts of the crime, strengths, and maladaptive
behavior}-and likewise objected to questions about the irrelevance of criminal behavior:
Q: A diagnosis of intellectual disability is not based on a person's street-smarts?
A: Well, actually, street-smarts, if you're referring to adaptive skills, it is based
on that.
Q: Street-smarts should not be used to infer a level of adaptive behavior?
A: What do you mean by "street-smarts"?
Q: Past criminal behavior.
Ms. Burns [prosecutor]: Objection, again, your Honor. State v. Dunn.
Ms. Carbia [defense counsel]: You Honor, Dr. Vincent has already
testified that the medical community's opinions inform a diagnosis of intellectual
disability.
Ms. Burns: But what she's asking for, your Honor, is an absolute
conclusion on his part, so that is incorrect.
The Court: Sustained.
Ms. Carbia: I'll rephrase, your Honor.
Ms. Carbia:
Q: It is the opinion of the medical community that past criminal behavior should
not be used to infer a level of adaptive behavior?
A: I would not say that all of the medical community would concur with that
statement. The American Psychological Association would; the American
PsycfuatncAssodat!on
so if'tliat's whaTyou'i-e ID.cillding,
yes.
Q: Thank you.
A: The medical community is very, very broad.
Q: Sure. And the American Psychiatric Association is the body that puts out the
S.S.M.?
A: Yes.
wollld;
then,
A: That's [sic] certainly sounds like a conscious, deliberate decision.
Q: Okay. And the incident where he was trapped in a yard and tried to, according to the testimony
of Ms. Carlos Weir, tried to calm her husband dowo. The fact that he could try to reason, the fact
that he was like a negotiator; would that be important to you?
A: That was a very interesting exchange, as I understood it. There was a fairly high level of
reasoning involved that, including, I believe, a statement that he was being pursued by a white
manQ:Yes.
A: -- because he was negotiating this with an African-American man, like himself. I believe there
was some offer of money involved in it. It certainly suggested high level negotiating skills.
4/04/16 Atkins Hearing Transcript a1 94-96 (Testimony of Dr. Hoppe).
9
Q: And the American Association on Intellectual and Developmental Disabilities
is also a part a part of the medical community?
A: Yes.
Q: And it is their opinion that past criminal behavior is-should not be used to
access [sic- assess] adaptive function?
A: Correct.
4/04/2016 Atkins Hearing Transcript at 21-23. The State's expert agreed, on cross-examinatio~
that the AAIDD guidelines instruct "do not use past criminal behavior or verbal behavior to infer
a level of adaptive behavior." Id. at 136.
At the close of the State expert's testimony, the court handed him an affidavit submitted
into the record by undersigned counsel, in which Petitioner waived his presence at the
evidentiary hearing. After asking the State's expert to read the affidavit aloud, the judge asked:
"What does that mean to you?" 4/05/16 Atkins Hearing Transcript at 27. The State's expert
answered, "It means that he was judged competent to understand his rights and to make a waiver
of his rights through that-he made an informative [sic] decision based upon what is written in
the law, in a very sophisticated language I would add." Id. at 27-28. At that point, the State
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marked and submitted the affidavit into evidence. Id. at 29.
On rebuttal, undersigned counsel called expert Dr. Mark Cunningham back to the stand,
who testified regarding the difference between intellectual disability and legal competence:
Q: Is there a difference between legal competence and intellectual disability?
A: Yes, sir, there is.
Q: Can you describe briefly what that is?
A: There are many - or with some regularity, persons with no [sic] retardation or
intellectual disability come before the courts. They have committed crimes and
[in] many, if not most instances, they are deemed to be competent to stand trial
even though they're a person with mental retardation....
Id. at 59. The state district court interjected, stating:
The Court: Let me interrupt you. From someone who has been doing this for
twenty-six years, it's never happened in my court, so I don't believe that either.
Mr. Clements: Excuse me your honor, I'm not-I didn't hear what you said.
10
The Court: I said I've been doing this for twenty-six years. That situation hasor scenario has never come up in my court. I don't think it applies.
Id. at 59-60.
Barely two weeks after the conclusion of the hearing, Judge Erwin denied Petitioner's
Atkins claim, again noting that Allen was "very active in his two trials with his lawyers" and
further basing his denial on "the video tapes that I watched of his [Petitioner's] confession and
the video tape that was not admitted into evidence during the trial." 4/22/16 Hearing Transcript
at 3. Petitioner filed a writ to the Supreme Court of Louisiana on September 20, 2016.
After this Court's decisions in Moore v. Texas, 137 S. Ct 1039 (2017) and PenaRodriguez, 137 S. Ct 855 (2017), Petitioner filed a supplement to his writ application, giving the
court notice of these pertinent decisions, asking the court to apply Moore to Petitioner's Atkins
claim, and requesting that the court reopen and remand Petitioner's juror bias claim in light of
Pena-Rodriguez.
In its decision, the state supreme court held that as shown by the crime, Mr. Robertson is
-- . ''capable ofpre~meclitation, problem-solving skills, and negotiation."SeeAppendlXA.-The court
walked through the crime:
Robertson, the sole perpetrator, was acquainted with the victims and twice
entered their residence undetected. He stole a television and sold it for $20 before
returning a second time. After Roberson killed both victims, he stole a watch,
cash, and car keys and successfully drove the victim's vehicle while eluding an
off-duty police officer. He also counted the stolen money and negotiated with
witnesses to avoid arrest.
Id.
The Supreme Court of Louisiana's decision did not address Petitioner's writ
supplement, nor did it mention Moore or Pena-Rodriguez.
REASONS FOR GRANTING THE PETITION
I.
The Louisiana Courts Improperly Considered Petitioner's Criminal
Behavior in its Determination that Petitioner is Not Intellectually Disabled
11
Pursuant to Atkins, Hall, and Moore, the Eighth Amendment bars the execution of
persons who are intellectually disabled ("ID") according to current medical standards.
"Intellectual disability is characterized by significant limitations both in intellectual functioning
and in adaptive behavior as expressed in conceptual, social and practical adaptive skills. This
disability originates before age 18." AAIDD, Intellectual Disability: Definition, Classification,
and Systems ofSupports 1 (11th ed. 2010) ("AAIDD Manual"). 10
While this Court allowed the States to develop appropriate ways to enforce the Eighth
Amendment protection against the execution of the intellectually disabled, as set out in Atkins,
536 U.S. at 348, this Court has since clarified that the States do not have "unfettered discretion."
Hall, 134 S. Ct. at 1999; See also Moore, 137 S. Ct. at 1052. Specifically, "[t]he medical
community's current standards supply one constraint on States' leeway in this area" Moore, 137
S. Ct. at 1052. This Court's review of Petitioner's case is necessary to ensure the prevention of
the unconstitutional execution of Petitioner who is intellectually disabled under current medical
standards.
The 2010 edition of the AAIDD Manual provides an explicit instruction: "[d]o not use
past criminal behavior or verbal behavior to infer level of adaptive behavior or about having ID."
AAIDD Manual at 102. 11 The AAIDD User's Guide: Intellectual Disability: Definition,
1010 The Louisiana Code of Criminal Procedure Article 905.5.1.H(l) defines Intellectual Disability as, "a disability
characterized by all of the following deficits, the onset of which must occur during the developmental period: (a)
Deficits in intellectual functions such as reasoning, problem solving, planning, abstract thinking, judgement,
academic learning, and learning from experience, confirmed by both clinical assessment and individualized,
standardized intelligence testing. (b) Deficits in adaptive functioning that result in failure to meet developmental and
sociocultural standards for personal independence and social responsibility; and that, without ongoing support, limit
functioning in one or more activities of daily life including, without limitation, communication, social participation,
and independent living, across multiple environments such as home, school, work and community." This definition
is almost ver batim to the definition provided in the American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (5" ed. 2012). See also: Atkins, 536 U.S. at 308 n. 3; Hall, 134 S. Ct at 1994; Moore,
137 S. Ct. at 1045.
11 In each of Atkins, Hall, and Moore, this Court relied on the most recent publications of the AAIDD to define
relevant medical standards. See Moore, 137 S. Ct. at 1048 and 1053. (At the time of Atkins, the AAIDD was the
12
Classification, and Systems ofSupport (2012) ("AAIDD User's Guide") reiterated the instruction
not to use criminal behavior to infer adaptive behavior, and established that "[t]he diagnosis of
ID is not based on the person's 'street smarts', behavior in jail or prison, or criminal adaptive
functioning." AAIDD User's Guide at 20. In 2015, the AAIDD published The Death Penalty and
Intellectual Disability, in which two studies by Schalock et al. (2010 and 2012) are cited to
support the position "that past criminal behavior is not an indicator of one's level of adaptive
functioning[.]" The Death Penalty and Intellectual Disability at 196 (Edward A. Polloway, ed.,
20 l 5)("The Death Penalty and Intellectual Disability").
The medical rationalization behind this position is multifaceted. 12 First, intellectual
disability is diagnosed by the presence of deficits in adaptive functioning, which are evaluated by
examining the typical behavior of the individual within their community. See: AAIDD Manual at
4 7 (noting that typical behavior is more significant than what the individual can or could do); see
also: The Death Penalty and Intellectual Disability, at 196. Persons with intellectual disability
may exhibit stre~gtlls_; and the concern ist]iat consideration of a single_incident, specifically the _
crime, may distract from the individual's typical behavior and level of ability.13 "Intellectual
disability is not diagnosed by focusing on abilities or strengths, but instead by identifying deficits
in adaptive functioning. The focus on the crime---0ne event-may come at the expense of other,
more typical life events that provide a more accurate assessment of an individual's adaptive
functioning." Brief of Amici Curiae American Psychological Association, et al. in Support of
Petitioner, Moore v Texas, 2016 U.S. S. Ct. Briefs LEXIS 2882, 35 (2016) (No. 15-797).
American Association on Mental Retardation ("AAMR"), and the current Manual was the 10th edition, published in
2002.)
12 See: Brumfieldv. Cain, 854 F. Supp. 2d 392, 394 (M.D. La, 2009).
13 Notably, criminal or 'maladaptive behavior' is different from 'impaired adaptive behavior.' See: The Death
Penalty and Intellectual Disability at 197, see also AA.MR, Mental Retardation: Definition, Classification, and
Systems ofSupports, 79 (10th ed. 2002)("AAMR Manual").
13
Next, there is a concern that the facts of a crime are not known in sufficient detail as to
the sequence of events and level of involvement of oilier individuals. The court, and in tum the
experts conducting an evaluation, may lack information, for example, concerning whether 1he
defendant's behavior was coached by another individual. See: Symposium, Atkins v. Virginia: A
Dozen Years Later - A Report Card: Scientizing Culpability: The Implications ofHall v. Florida
and the Possibility of a Scientific State Decisis, 23 Wm. & Mary Bill ofRts. J. 415, 422 (2014).
Furthermore, where there is insufficient information, there is a danger 1hat signs of intellectual
disability may have a surface appearance of competence. For example, while evading police and
avoiding capture can exhibit raw physical skills, at other times those acts are just as consistent
wi1h primal survival instincts as 1hey are with callous, cold-blooded calculation. Brumfield v.
Cain, 854 F. Supp. 2d 392, 399 (M.D. La., 2009). As in Mr. Robertson's case, "robberies may
become homicidal when the script goes awry and the perpetrator panics." The Death Penalty and
Intellectual Disability at 228. Medical standards require that professionals conduct interviews to
clarify the level_of adaptive fimctioning dis]Jlayeci_by the_defe]1d"_ntin ariy_given set_ting. To do so
in relation to a criminal incident may place the evaluator in an inappropriate role. Symposium,
Atkins v. Virginia: A Dozen Years Later - A Report Card: Scientizing Culpability: The
Implications of Hall v. Florida and the Possibility of a Scientific State Decisis, 23 Wm. & Mary
Bill of Rts. J. 415, 478 (2014). Finally, 1here is insufficient research on norming criminal
behavior for determining whe1her individuals with intellectual disability are capable of, for
example, carrying out robberies. The Death Penalty and Intellectual Disability at 228.
In Petitioner's case, the Louisiana Supreme Court found that the facts of the crime are
indicative of Mr. Robertson being "capable of pre-meditation, problem-solving skills, and
negotiation." See Appendix A. Specifically, the court laid out the following facts as evidence
14
considered: "Robertson, the sole perpetrator, was acquainted with the victims and twice entered
their residence undetected. He stole a television and sold it for $20 before returning a second
time. After Roberson killed both victims, he stole a watch, cash, and car keys and successfully
drove the victim's vehicle while eluding an off-duty police officer. He also counted the stolen
money and negotiated with witnesses to avoid arrest." Jd. 14 Petitioner's case is not the first
instance in which the Supreme Court of Louisiana considered a defendant's criminal behavior in
deciding the question of intellectual disability. See, e.g., State v. Dunn, 01-1635, 41 So.3d 454,
471 (La. 5/11/10), 15 State v. Scott, 921 So.2d 904, 959 (La 1/19/06), 16 and State v. Brown, 907
So.2d 1, 32 (La 4/12/05). 17
This Court has previously noted that, although the facts of the crime may go toward
evidence of adaptive skills, the AAMR provides that people with intellectual disability may have
strengths in adaptive areas where they are otherwise limited. Brumfield v. Cain, 135 S. Ct. 2269,
2281. The Louisiana courts' reliance on the crime in Petitioner's case is erroneous for two
re<LSOns: the Il1ed!.cal COIJ1IJ1llI!ity' sstruid_<ir_cis opp_osesth~ consideration of the facts of the cPll:le
in assessing intellectual disability; and the determination of intellectual disability depends on the
presence of deficits, not the finding of strengths. "[E]ven a clear ability to function in the
criminal context is irrelevant if the offender can identify an adaptive deficit in either
14 Notably, the residence that Mr. Robertson entered that night was unlocked, see Appendix A, so Mr. Robertson did
not exhibit any skills of being able to break in silently. The victims were apparently killed the second time Mr.
Robertson entered the property, when they awoke disturbed, id., at 270, so Mr. Robertson was in fact detected. Mr.
Robertson fled the scene in the victims' car, uprooting and driving over a chain-link fence, and ran a stop sigr,
finally drawing the attention of an off-duty police officer. Id Mr. Robertson "abandoned the car and escaped on
foot," id., which shows that he was a faster runner than the police officer, but from which we should infer no more
than "a primal survival instinctO[.]" See Brumfield v. Cain, 854 F. Supp, 2d at 399.
15 In State v. Dunn, the Supreme Court of Louisiana stated that, "[i]t is important to consider the defendant's
behavior during the planning and commission of the instant crime as it relates to his adaptive skills functioning."
State v. Dunn, 41 So.3d at 472. This is exactly contrary to the position of the medical community as evidenced by
the 10th Edition of the AAIDD Manual released in the same year as the Dunn decision.
16 The Supreme Court of Louisiana noted that behavior during and following the commission of the crime "can be
relevant to the determination of mental retardation". State v. Scott, 921 "So.2d at 959.
17 !n State v. Brown, the Supreme Court of Louisiana noted the unique facts of the defendant's behavior following
the commission of the crime. State v. Brown, 97 So. 2d at 32.
15
communication, social participation, or independent living." Symposium, Atkins v. Virginia: A
Dozen Years Later - A Report Card: Scientizing Culpability: The Implications ofHall v. Florida
and the Possibility ofa Scientific State Decisis, 23 Wm. & Mary Bill ofRts. J. 415, 422 (2014).
The Louisiana Supreme Court credited the State experts', relying on Mr. Robertson's
criminal behavior to support their conclusion that he is not intellectually disabled. See Appendix
A. "Prosecution experts always assert that criminal behavior is a positive indicator of adaptive
functioning. This assertion is incorrect and in direct contradiction to the standards promulgated
by AAIDD." Nancy Haydt, Intellectual Disability: A Digest of Complex Concepts in Atkins
Proceedings, 38 Champion 44, 50 (2014). 18 Reliance on facts of the crime is directly contrary to
current medical standards. See AAIDD Manual at 102; see also AAIDD User's Guide at 20. The
opinions of experts that do not follow the current standards of the medical community in
performing an evaluation and providing their opinion should not be given weight. 19
The
guidelines concerning diagnosing intellectual disability specifically instruct not to use criminal
behavior to infer adaptive behavior, AAIDD Manual at 102, tlierefore, the opinio_nsof~xperts
who disregard this should not be credited with evidentiary weight when the court makes an
intellectual disability determination. 20
"Courts cannot bypass the Supreme Court's clear
18 See also John Matthew Fabian, William W. Thompson, IV, & Jeffrey B. Lazarus, Life, Death, and IQ: It's Much
More Than Just a Score: Understanding and Utilizing Forensic Psychology and Neuropsychological Evaluations in
Atkins Intellectual Disability, Mental Retardation Cases, 59 Clev. St. L. Rev. 399, 427 (noting that "experts are not
equipped to dissect the behavioral context of a defendant's alleged crimes when considering adaptive versus
antisocial functioning.").
19 "It is not necessary to resolve differences between experts where one expert applies methodology that does not
generally conform to the clinical definitions." John H. Blume, Sheri Lynn Johnson & Christopher Seeds, OfAtkins
and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J. L. &
Pub. Pol'y 689, 713 (2009).
20 The Eleventh Circuit found that a State's expert's "predominant focus" on the defendant's crime indicated that the
expert did not recognize that the criteria for diagnosing intellectual disabili1y required a showing of deficits rather
than strengths, as both may be present within an individual with intellectual disabili1y. Holladay v. Allen, 555 F.3d
1346,1363 (11th Cir., 2009). The Sixth Circuit found that the Ohio State court was erroneous in relying on the
defendant's crimes to discount his weakness of being easily led. Hill v. Anderson, 881 F.3d 483, 496 (6th Cir.,
2018). "Under prevailing medical standards, however, Hill's prior criminal behavior should not be given weight in
this analysis." Id. "[A]s Dr. Greenspan noted, because there are few studies showing normative behavior during
16
instruction not to 'disregard established medical practice,' Hall, 134 S. Ct. at 1995, by relying on
experts who have done just that." Hill v. Anderson, 881 F.3d 483, 498 (6th Cir., 2018).
Petitioner respectfully requests that this Court grant certiorari, vacate the decision of the
Supreme Court of Louisiana, and remand his case for further proceedings not inconsistent with
this Court's precedent.
II.
Petitioner's right to a fair and impartial jury was violated by a juror's racial
animus towards Mr. Robertson
In Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), this Court held that "where a juror
makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict
a criminal defendant, the Sixth Amendment requires that the no-impeachment rule21 give way in
order to permit the trial court to consider the evidence of the juror's statement and any resulting
denial of the jury trial guarantee." Pena-Rodriguez, 137 S. Ct. at 869. "A constitutional rule that
racial bias in the justice system must be addressed-including, in some instances, after the
verdict has been entered-is necessary to prevent a systemic loss of confidence in jury verdicts, a
--
----~-
-
__________ __ __ ,
,
confidence that is a central premise of the Sixth Amendment trial right." Id. In the instant case,
racial animus infected Mr. Robertson's conviction and death sentence in violation of his Sixth
Amendment rights. Petitioner respectfully requests that this Court remand his jury misconduct
commission of a crime, courts must be wary of drawing conclusions from those actions alone." Brumfield v. Cain,
854 F. Supp. 2d 392, 394 (M.D. La., 2009). IBtimately, the District Court in Brumfield decided that while it would
consider the facts of the crime, it would not give such evidence much weight, because of "the clinical admonitions
that using those facts to determine adaptive skills is at best a haphaz.ard and risky business." Brumfield v. Cain, 854
F. Supp. 2d 392, 395-6 (M.D. La., 2009) See also Id. at 401.
21 The no-impeachment rule, also called the ''.jury shield law'', codified in Louisiana law as C.E. 606(B), states:
B. Inquiry into validity of verdict or indictment. -- Upon an inqniry into the validity of a verdict
or indictment, a juror may not testify as to any matter or statement occurring during the course of
the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions
as influencing him to assent to or dissent from the verdict or indictment or concerning his mental
processes in connection therewith~ except that a juror may testify on the question whether any
outside inilnence was improperly brought to bear npon any juror, and, in criminal cases only,
whether extraneous prejudicial information was improperly bronght to the jury's attention. Nor
may his affidavit or evidence of any statement by him concerning a matter about which he would
be precluded from testifying be received for these purposes.
La. C.E. 606(B)(2017).
17
claim for consideration in light of Pena-Rodriguez. 22
Juror Johnny Robin, who served on Petitioner's 1995 capital murder trial, stated:
My impression of Robertson was that he was trashy. He kept his head down
throughout and never looked up. At sentencing his lawyer argued that he grew up
in a bad environment and didn't have a father figure. I don't think that matters.
Lots of black people don't have fathers - they don't know who their fathers are.
That's just them.
Declaration of Johnny Robin at 4. Mr. Robin made further comments, including:
Robertson was just a low life like other black people. He [Robertson] was in
trouble with the cops his whole life. He and his family were poor and lived in
poverty. We [the jurors] knew Robertson was trashy because of the evidence we
heard. That's all we could say about him.
A lot of violence is coming to Baton Rouge now that so many people have moved
here from New Orleans. A lot of people in Baton Rouge are moving to the
suburbs like in Zachary to put their children in better schools and to get away
from the poor neighborhoods. All this crime is committed by them.
and:
ThiScolirt
a
has-held that ;.,ew constitutional rule will apply-retroactively to cases on collaterOJ review ~ tWo
circumstances-where when a new constitutional rule is (1) a substantive rule or (2) a "watershed" rule of criminal
procedure. See Teague v. Lane, 489 U.S. 288, 311 (1989); State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296
(1992) (Supreme Court of Louisiana adopting Teague standard for all cases on collateral review in state court
proceedings); see also Saffle v. Parks, 494 U.S. 484, 494-495 (1990). The Pena-Rodriguez decision announced a
"watershed" rule, one which implicates the fundamental fairness and accuracy of a criminal proceeding and must
meet two requirements: 1) it must be necessary to prevent an impermissibly large risk of an inaccurate conviction
and 2) the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a
proceeding. See Sa[fle, 494 U.S. at 495; see also Whorton v. Bockting, 549 U.S. 406, 418 (2007) (quoting Schriro v.
Summerlin, 542 U.S. 348, 352 (2004)). Pena-Rodriguez satisfies both requirements.
22
First, unaddressed racial bias in the jury system, "would risk systemic injury to the administration of justice." PenaRodriguez v. Colorado, 137 S. Ct 855, 883 (2017). Second, Pena-Rodriguez changes the bedrock procedural
elements necessary to the fairness of a proceeding by requiring a trial court to consider juror statements in cases
where a juror relied on racial stereotypes or animus to convict a defendant. Before Pena-Rodrigu.ez, racial bias was
not recognized as a constitutionally-required exception to the jury shield law. Forty-two jurisdictions follow the
Federal Rules for juror statements, and only eleven of those jurisdictions had previously recognized an exception for
racial bias. See Pena-Rodriguez, 137 S. Ct at 865. Specifically, Louisiana, which follows the current Federal Rules
of Evidence Rule 606(b), did not allow for a racial bias exception. See La C.E. art. 606(B). Consequently, PenaRodriguez has effected "a profound and sweeping change" by requiring trial courts to consider jurors' statements in
cases where juror racial bias is alleged. Whorton, 549 U.S. at42L Pena-Rodriguez constitutes a watershed rule that
must be applied retroactively.
18
You know. People like him [Robertson]. Yeah, you know, pardon my French, but
they're all n*ggers. You see it on TV. They took over the neighborhood where the
old Japanese woman and her husband lived [the victims]. Northern Baton Rouge
is full of them now. I don't know why they commit crimes.
Affidavit of Alison McCrary at 2-3. Mr. Robin made further troubling statements:
I paid for my children to go to Catholic schools so they wouldn't have to be
around the violence and poor schools in Baton Rouge. Baton Rouge schools are
becoming a lot like New Orleans public schools. They're becoming all black.
Affidavit of Alison McCrary at 2. Mr. Robin further stated:
Robertson was just a low life like other black people. He [Robertson] was in
trouble with the cops his whole life. He and his family were poor and lived in
poverty. We [the jurors] knew Robertson was trashy because of the evidence we
heard. That's all we could say about him.
A lot of violence is coming to Baton Rouge now that so many people have moved
here from New Orleans. A lot of people in Baton Rouge are moving to the
suburbs like in Zachary to put their children in better schools and to get away
from the poor neighborhoods. All this crime is co=itted by them.
Id. When asked what he meant when he referred to ''them," Mr. Robin explained:
You know. People like him [Robertson]. Yeah, you know, pardon my French, but
they're all n*ggers. You see it on TV. They took over the neighborhood where the
old Japanese womaii and her husband lived [the v!c1:ll:Ilsf:Northemilafon Rouge
is full of them now. I don't know why they commit crimes.
Id. Later in the conversation, Mr. Robin said:
[A]11 of this violence is caused by young black people. Murders and stuff, it's all
done by them n*ggers.
Id. at 3. Neither the state district court nor the Louisiana Supreme Court ever considered Mr.
Robin's racial bias.
Juror Robin's co=ents regarding Petitioner specifically and African-Americans in
general are a clear indication that he held racial animus towards African-Americans during his
time as a juror in Petitioner's trial. Juror Robins' statements are similar to those made in another
capital case. See Tharpe v. Sellers, 138 S. Ct. 545 (2018). In that case, following conviction, a
19
juror signed an affidavit indicating his views that "'there are two types of black people: 1. Black
folks and 2. N*ggers'; that Tharpe, 'who wasn't in the 'good' black folks category in my book,
should get the electric chair for what he did'; that 'some of the jurors voted for death because
they felt Tharpe should be an example to other blacks who kill blacks, but that wasn't my
reason'; and that, 'after studying the Bible, I have wondered if black people even have souls."'
See id. at 546. This Court reversed the Eleventh Circuit's denial of a certificate of appealability,
concluding that the juror affidavit "presents a strong factual basis for the argument that Tharpe's
race affected Gattie's vote for a death verdict."23 Id. at 546.
Here, not only did Mr. Robin's inclusion on the jury violate Petitioner's substantive due
process rights because his guilt and sentence were determined by a racist person, but Petitioner's
right to an impartial jury and right to challenge for cause t)l.ose persons who could not be
impartial were violated by Mr. Robin's failure to disclose his bias on voir dire, bias which would
have made him ineligible to serve as a juror. See Witherspoon v. Rlinois, 391 US. 510, 519
(1968); see also Wainwright v. Witt, 469 U.S. 412, ~24 (1988} (r_eaffirming the standar_d f_or .
challenges for cause as whether the juror's views would "prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath."); Turner v.
Murray, 476 U.S. 28, 36-37 (1986) (holding that a defendant is entitled to voir dire on racial
prejudice); see also McDonough Power Equip. v. Greenwood, 464 U.S. 548, 554 (1984) ("One
touchstone of a fair trial is an impartial trier of fact-' a jury capable and willing to decide the
case solely on the evidence before it."' (citing Smith v. Phillips, 455 U.S. 209, 217 (1982)).
"Vair dire examination serves to protect that right by exposing possible biases, both known and
Further, the Fifth Circuit recently granted a Certificate of Appealability based in part on multiple jurors'
opposition to interracial relationships. See Thomas v. Davis, 17-70002 (5th Cir. 2018).
23
20
unknown, on the part of potential jurors .... The necessity of truthful answers by prospective
jurors if this process is to serve its purpose is obvious.").
As in Tharpe, Mr. Robin formed bis racist opinions long before he sat on Mr.
Robertson's jury and brought them into the jury box and deliberation room with him. Because
"the bias of a juror will rarely be admitted by the juror himself, 'partly because the juror may
have an interest in concealing his own bias and partly because the juror may be unaware of it' it
necessarily must be inferred from surrounding facts and circumstances." McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 588 (1984); Hughes v. United States, 258 F.3d
453, 459 (6th Cir. 2001) ("the presence of actual bias can be revealed by a juror's express
admission of that fact, but more frequently, jurors are reluctant to admit actual bias, and the
reality of their biased attitudes must be revealed by circumstantial evidence."). Mr. Robin's
racial bias has resulted in the unreliability of the jury's guilty verdict and resulting death
sentence in Petitioner's case. There can be no way to guarantee that Mr. Robin's prejudices did
not infect otlier_ aJ"_eas (Jf thejury_d~liber~tion rroc~ss: However, the mere presence_O.f_()nejuror
who is biased against the defendant is a structural defect. Virgil v. Dretke, 446 F.3d 598, 607 (5th
Cir. 2006) (citing Neder v. United States, 527 U.S. 1, 8 (1999); Edwards v. Balisok, 520 U.S.
641, 647 (1997); Johnson v. United States, 520 U.S. 461, 469 (1997); Rose v. Clark, 478 U.S.
570, 577-78 (1986); Tumey v. Ohio, 273 U.S. 510, 523 (1927)).
Neither the state district court nor the Louisiana Supreme Court considered Petitioner's
racial bias claim. Pena-Rodriguez now makes it possible for the district court to consider the
evidence in support of Mr. Robertson's juror misconduct claim. In light of Pena-Rodriguez, the
Louisiana Supreme Court's denial is clearly in error. Petitioner respectfully requests that this
21
Court remand his racial bias claim for reconsideration in a manner not inconsistent with this
Court's precedent.
CONCLUSION
For the foregoing reasons, the Court should grant Petitioner's petition and issue a writ of
certiorari to review the decision of the Louisiana Supreme Court.
Alternatively, this Court
should grant the writ and remand this case back to the Louisiana Supreme Court for a merits
review of the Petitioner's Atkins and Pena-Rodriguez claims in a manner consistent with this
Court's jurisprudence.
arbia* (#294732)
Charlotte Faciane
Naila Campbell
Capital Post-Conviction Project of Louisiana
1340 Poydras, Suite 1700
New Orleans, Louisiana 70112
Telephone: (504) 212-2110
Facsimile: (504) 212-2130
Counsel for Petitioner Allen Robertson
* Counsel ofRecord
22
No. _ __
In The Supreme Court Of The United States
ALLEN ROBERTSON,
Petitioner,
v.
DARREL VANNOY, Warden,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE LOUISIANA SUPREME COURT
CERTIFICATE OF SERVICE
I hereby certify that Petitioner's Motion to Proceed In F orma Pauperis and Petition for Writ of
... __ <:::.ertiorari wert< s§ryeci via regular U.S. Mail, on this±th day ou::k, 2018 upon Assistant
I
District Attorney Dylan Alge, of the East Baton Rouge Parish District Attorney's Office, 222 St.
Louis Street, Baton Rouge, Louisiana, 70801. All persons required to be served have been
served.
y submitted,
.
~-UL----~
tilde ca:rbia* (#294732)
Charlotte Faciane
Naila Campbell
Capital Post-Conviction Project of Louisiana
1340 Poydras, Suite 1700
New Orleans, Louisiana 70112
Telephone: (504) 212-2110
Counsel for Petitioner Allen Robertson
*Counsel ofRecord
23
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.