Amicus Curiae Brief — Michael Apelt, Petitioner v. Charles L. Ryan, Director, Arizona Department of Corrections

No. 18-8386

In the

Supreme Court of the United States

MICHAEL APELT,

Petitioner,

v.

CHARLES L. RYAN,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF OF THE FEDERAL REPUBLIC

OF GERMANY AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

Owen C. Pell

Counsel of Record

A lice Tsier

Sequoia K aul

Aure Renza Demoulin

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

(212) 819-8200

opell@whitecase.com

Counsel for Amicus Curiae

287855

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

In Atkins v. Virginia, 536 U.S. 304 (2002), this Court

held that the Eighth Amendment prohibits the execution

of intellectually disabled (“ID”) individuals due to their

diminished moral culpability. Ample evidence shows that

both State and Federal courts are struggling to apply

scientifically accepted medical standards in making ID

determinations, with many courts, including the courts

below, relying on factors that are contrary to scientifically

accepted clinical standards. Accordingly:

Under Atkins, should the lower courts in capital cases

be permitted to rely on evidence that is not based on

scientifically accepted clinical standards for accurately

identifying ID individuals?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Moral Culpability of Individuals

with So-Called “Mild” ID Was At The

Heart of This Court’s Decision In Atkins . . . . . . 5

A. People with Mild ID have deficits

that are directly relevant to moral

culpability for criminal conduct . . . . . . . . . . 5

B. People with Mild ID face entrenched

stereotypes in the criminal justice

system about ID . . . . . . . . . . . . . . . . . . . . . . . 7

C. People with Mild ID are uniquely

vulnerable in the criminal justice

system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Atkins focused on hard science in

recognizing the unique vulnerability of

people with Mild ID . . . . . . . . . . . . . . . . . . . 10

iii

Table of Contents

Page

E. A t k i n s s h o w e d t h a t C l i n i c a l

Def i n it ion s come w it h Cl i n ic a l

Diagnostic tools that are essential for

evaluating Mild ID . . . . . . . . . . . . . . . . . . . . 11

II. Even Though The Medical Science Has

Remained Consistent, Ample Evidence Now

Exists That State and Federal Courts Are

Struggling to Properly Apply Atkins . . . . . . . . 13

A. The scientifically-accepted standards

for ID have remained consistent

since Atkins . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. State and Federal Courts are not

basing findings of moral culpability

on scientifically recognized standards

of ID . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. As in Moore II, this Court could summarily

reverse the Ninth Circuit for ignoring

established science in its decision . . . . . . . .19

III. The Scattered and Arbitrary Way In

Which Courts Continue To Apply Atkins

Presents A Substantial Federal Question . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iv

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Atkins v. Virginia,

536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . passim

Gregg v. Georgia,

428 U.S. 153 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Hall v. Florida,

572 U.S. 701 (2014) . . . . . . . . . . . . . . . . . . . . . . . . passim

Henderson v. Director,

No. 1:06-CV-507, 2013 U.S. Dist. LEXIS 127922

(E.D. Tex. Sept. 6, 2013) . . . . . . . . . . . . . . . . . . . . . . 15

Holladay v. Allen,

555 F.3d 1346 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . 14

Locket v. Ohio,

438 U.S. 586 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Monge v. Cal.,

524 U.S. 721 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Moore v. Texas,

137 S. Ct. 1039 (2017) . . . . . . . . . . . . . . . . . . . . . passim

Penry v. Lynaugh,

492 U.S. 302 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

v

Cited Authorities

Page

Tison v. Ariz.,

481 U.S. 137 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Roland,

281 F. Supp. 3d 470 (D.C.N.J. 2017) . . . . . . . . . . . . . 14

Walker v. Kelly,

593 F.3d 319 (4th Cir. 2010), cert. denied,

560 U.S. 921 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Walker v. True,

399 F.3d 315 (4th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 14

Williams v. Mitchell,

792 F.3d 606 (6th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 16

STATE CASES

Anderson v. State,

163 S.W.3d 333 (Ark. 2004) . . . . . . . . . . . . . . . . . 15, 18

Branch v. State,

961 So. 2d 659 (Miss. 2007) . . . . . . . . . . . . . . . . . . . . 17

Ex parte Briseno,

135 S.W.3d 11 (Tex. Crim. App. 2004) . . . . . . . . . 17, 8

Cherry v. State,

959 So. 2d 702 (Fla. 2007) . . . . . . . . . . . . . . . . . . . . . 15

vi

Cited Authorities

Page

Dufour v. State,

69 So. 3d 235 (Fla. 2011) . . . . . . . . . . . . . . . . . . . . . . . 17

Hall v. State,

109 So. 3d 704 (Fla. 2012) . . . . . . . . . . . . . . . . . . . . . . 15

Lane v. State,

169 So. 3d 1076 (Ala. Crim. App. 2013) . . . . . . . . . . . 17

State v. Hill,

894 N.E.2d 108 (Ohio Ct. App. 2008) . . . . . . . . . . . . 17

State v. Scott,

233 So. 3d 253 (Miss. 2017) . . . . . . . . . . . . . . . . . 15, 16

State v. Were,

890 N.E.2d 263 (Ohio 2008) . . . . . . . . . . . . . . . . . . . . 16

Wright v. State,

213 So. 3d 881 (Fla. 2017) . . . . . . . . . . . . . . . . . . . . . . 15

MISCELLANEOUS

American Association on Mental Retardation, Mental

Retardation: Definition, Classification, and

Systems of Supports (10th ed. 2002) . . . . . . . . . . 7, 20

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders

41 (4th ed. text revision 2000) . . . . . . . . . . . . 5, 6, 8, 21

vii

Cited Authorities

Page

Brief of American Psychiatric Association et

al. as Amici Curiae Supporting Petitioner,

Atkins v. Virginia (No. 00-8452) . . . . . . . . . . 11, 12, 14

Brief of American Psychiatric Association et

al. as Amici Curiae Supporting Petitioner,

Hall v. Florida (No. 12-10882) . . . . . . . . . . . . . . . . . . 14

Brief of American Psychiatric Association et

al. as Amici Curiae Supporting Petitioner,

Moore v. Texas (No. 15-797) . . . . . . . . . . . . . . . . . . . . 14

Brief of American Psychiatric Association et

al. as Amici Curiae Supporting Petitioner

Moore v. Texas (No. 18-443) . . . . . . . . . . . . . . . . . . . 14

Daniel J. Reschly, Documenting the Developmental

Origins of Mild Mental Retardation, Applied

Neuropsychology 124, 133 (2009) . . . . . . . . . . . . . . 6, 8

Excerpts of Record, Apelt v. Ryan, No. 15-99013

(9th Cir. Mar. 9, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Excerpts of Record, Apelt v. Ryan, No. 15-99013

(9th Cir. Oct. 13, 2016) . . . . . . . . . . . . . . . . . . . . . . . . 21

J. Gregory Olley, Knowledge and Experience

Required for Experts in Atkins Cases, 16

Applied Neuropsychology 135 (2009) . . . . . . . . . . . . . 8

viii

Cited Authorities

Page

John H. Blume et al., A Tale of Two (and

Po s s i b l y T h r e e) A t k i n s : In t e l l e c t u a l

Disability and Capital Punishment

Twelve Years After the Supreme Court’s

Creation of a Categorical Bar, 23 Wm &

Mary Bill of Rights J. 393 (2015) . . . . . . . . . . . . 14, 23

Karen L., Salekin, et al., Of fenders With

Intellectual Disability: Characteristics,

P r e v a l e n c e , a n d Is s u e s i n Fo r e n s i c

Assessment, 3 J. Mental Health Research in

Intellectual Disabilities 97 (2010) . . . . . . . . . . . passim

Ma rc J. Ta ssé, Ad aptive Beh av io r

Assessment and the Diagnosis of

Mental Retardation in Capital Cases,

16 Applied Neuropsychology 114 (2009) . . . . . . . . . . . 8

Sarah E. Wood et al., A Failure to Implement:

Analyzing State Responses to the Supreme

Court’s Directives in Atkins v. Virginia

and Suggestions for a National Standard,

21 Psychiatry, Psychol. & L 16 (2014). . . . . . . . . . . 6, 7

Stephen Greenspan, Homicide Defendants with

Intellectual Disabilities: Issues in Diagnosis

in Capital Cases, 19 Exceptionality 219 (2011) . . . 7, 9

Tom Gumpel, Social Competence and Social Skills

Training for Persons with Mental Retardation:

An Expansion of a Behavioral Paradigm,

29 Educ. & Training in Mental Retardation

& Developmental Disabilities 194 (1994) . . . . . . . . . . 6

1

INTEREST OF AMICUS CURIAE

The Federal Republic of Germany submits this amicus

curiae brief in support of Petitioner, Michael Apelt.1

Mr. Apelt is a German citizen facing the death penalty

in Arizona. Germany has a constitutional obligation to

protect German citizens abroad;2 this is especially true

when they face execution. Germany’s concern here is

amplified because it appears from the Record below

that Mr. Apelt suffers from mild intellectual disability, a

scientifically well-defined condition that gravely affects

Mr. Apelt’s adaptive functioning, behavior control, and

ability to reason. 3 He therefore does not act with the same

level of moral culpability that characterizes the most

serious criminal conduct.

Like the United States, Germany is founded on

principles of liberty, democracy, respect for human rights,

fundamental freedoms, and the rule of law. These principles

1. Counsel of record for the parties received timely notice of the

intent to file this amicus brief and have consented in writing to its

filing. No counsel for any party authored this brief in whole or in part,

and no party or counsel for any party made a monetary contribution

intended to fund the preparation or submission of this brief. This

brief was paid entirely by Amicus Curiae and/or its counsel.

2. Bundesverfassungsgericht [BVerfG] [Federal Constitutional

Court] Dec. 16, 1980, 90 ILR 386, 396–97 (Ger).

3. Some authorities refer to an intellectually disabled person

as “mentally retarded.” More recent authorities, however, use the

phrase “intellectually disabled” to refer to the identical condition.

This brief will use “intellectually disabled” unless necessary to quote

another authority directly.

2

demand that punishment be proportional to culpability—

an idea that comports with this Court’s rulings that

certain scientifically defined mental impairments affecting

culpability render the death penalty constitutionally

inappropriate. Germany has great respect for the United

States, its people, its government, and its commitment to

the rule of law. It is that respect that motivates the need

for review by this Court here.

SUMMARY OF ARGUMENT

Evolving standards of decency compelled this Court

to prohibit the execution of intellectually disabled (“ID”)

persons in Atkins v. Virginia, 536 U.S. 304 (2002), because

they do not act with the same level of moral culpability

that characterizes the most serious adult criminal conduct.

The decision to overturn Penry v. Lynaugh, 492 U.S. 302

(1989), and impose a categorical prohibition rather than

leave this decision to judges and jurors was driven by the

fact that most people with ID are not readily identifiable

to the lay person. Indeed, 85% of people with ID suffer

from so-called “Mild ID,” a condition defined by life-long

cognitive and adaptive deficits that coexist with pockets

of adaptive strengths. The existence of these strengths—

which typically relate to practical, every-day life skills that

can be learned through imitation and repetition—does

not mean a person is any less intellectually disabled, but

it can make people with Mild ID appear superficially

“normal,” while masking their limitations in engaging in

abstract thinking, learning from experience, controlling

their impulses, and foreseeing the consequences of their

actions—all factors relevant to avoiding criminal conduct.

Because of their deficits, people with ID by definition do not

act with the level of moral culpability that characterizes

3

the most serious adult criminal conduct. In Atkins, this

Court recognized that people with Mild ID should not face

the death penalty solely because their condition may exist

alongside a bundle of practical skills that do not diminish

their ID condition.

Atkins relied on scientifically-accepted clinical

definitions of ID to delineate the group shielded from

execution due to reduced moral culpability. An inescapable

corollary of relying on a clinical definition of ID is that

determining who falls into it cannot be done by relying

on non-scientific methods or “common sense” based upon

widespread stereotypes about what such individuals can

and cannot do. To get this right, qualified professionals

must use scientifically-recognized clinical tools. In fact,

standards that have remained consistent since Atkins

establish that identifying people with ID requires a

comprehensive evaluation by qualified professionals

using valid and reliable diagnostic tests and protocols.

In particular, the scientific community has not wavered

since Atkins in its longstanding emphasis on (i) qualified

professionals administering accepted standardized

measures; (ii) avoiding using or “weighing” strengths to

offset relative deficits (which is not scientifically accepted

or valid); and (iii) rejecting the use of lay stereotypes as

incompatible with the clinical definition of ID.

Notw ithstanding the consistency of scientif ic

standards, State and Federal courts have struggled

to apply these approaches when confronted with nonscientific methods and lay stereotypes that can be used by

proffered experts to argue in favor of the death penalty.

In the seventeen years since Atkins, courts have varied

widely in their approach to weighing medical evidence

4

of ID. While some courts have used clinical evidence to

identify defendants with ID, other courts have instead

relied on demonstrably non-scientific evidence in making

ID determinations. This case is a perfect example of a

persistent problem. The Record makes clear that Mr.

Apelt has an IQ well below 70 (a fact the Ninth Circuit

acknowledged and the State’s expert did not contest).

But, the courts below then ignored Record evidence

showing that the State’s expert—whose testimony was

credited by the courts—did not follow controlling clinical

guidelines in assessing whether Mr. Apelt has ID. In

particular, the courts below relied exclusively on evidence

of Mr. Apelt’s adaptive strengths and the facts of his

crime to conclude he did not have ID. This is precisely

the outcome prohibited by Atkins.

The scattered and arbitrary way in which the lower

courts continue to apply Atkins presents a substantial

federal question. Inconsistent approaches to accepted

scientific guidelines for assessing ID creates arbitrary

outcomes and repeatedly forces this Court to provide

guidance to fix the most egregious cases. Certiorari should

be granted because it is now clear that further clarity is

needed to ensure that courts approach ID-related evidence

in a fair and consistent manner that is consistent with the

moral culpability issues central to the ID determination.

Whatever one feels about the appropriateness of the death

penalty, all can agree that it must never be applied in an

arbitrary manner, and that it must always be pinned to

moral culpability.

5

ARGUMENT

I.

The Moral Culpability of Individuals with SoCalled “Mild” ID Was At The Heart of This Court’s

Decision in Atkins

Evolving standards of decency compelled this Court

to prohibit the execution of intellectually disabled (“ID”)

persons in Atkins v. Virginia, because they do not act with

the same level of moral culpability that characterizes the

most serious adult criminal conduct. 536 U.S. 304, 306

(2002). The prohibition against executing the intellectually

disabled was animated by the unique vulnerabilities faced

by people with so-called “Mild ID,” whose deficits in

reasoning and judgment coexist with adaptive strengths

that mask their condition. In Atkins, this Court recognized

that the death penalty should not be applied simply

because the cognitive and behavioral impairments of

individuals with Mild ID may exist alongside areas of

adequate functioning.

A.

People with Mild ID have deficits that are

directly relevant to moral culpability for

criminal conduct.

ID is a life-long condition characterized by significant

deficits in intellectual and adaptive functioning. ID is

categorized into mild, moderate, severe and profound

categories, based on IQ levels.4

4. The “mild” category includes IQ levels of 50-55 to 70; the

moderate category includes IQ levels of 35-40 to 50-55; the severe

category includes individuals with IQ scores of 20-25 to 35-40; the

profound category includes individuals with IQ levels below 20-25. Am.

Psych. Ass’n, Diagnostic and Statistical Manual of Mental Disorders

41, 42 (4th ed. text revision 2000) [hereinafter DSM-IV-TR].

6

People with Mild ID comprise 85% of all intellectually

disabled individuals. 5 Their level of intelligence is in

the bottom 2% of the general population.6 Like other

intellectually disabled people, they have “persistent

developmental challenges in the use of abstract thought

and complex judgment.”7 Although they “understand basic

concepts of right and wrong . . . [they are] impaired in

their ability to understand moral principles and exercise

abstract reasoning and judgment, in decisions about lawful

and unlawful behaviors.”8 They struggle to read social

cues, interpret facial expressions, and understand the

feelings of others.9 They are less able than average adults

to learn from experience, engage in logical reasoning,

and control their impulses. Atkins, 536 U.S. at 318.

They exhibit cognitive rigidity,10 and struggle to adapt

5. DSM-IV-TR at 41-42.

6. Sarah E. Wood et al., A Failure to Implement: Analyzing

State Responses to the Supreme Court’s Directives in Atkins v.

Virginia and Suggestions for a National Standard, 21 Psychiatry,

Psychol. & L. 16, 20 (2014).

7. Daniel J. Reschly, Documenting the Developmental Origins

of Mild Mental Retardation, 16 Applied Neuropsychology 124, 133

(2009).

8. Id.

9. Tom Gumpel, Social Competence and Social Skills

Training for Persons with Mental Retardation: An Expansion

of a Behavioral Paradigm, 29 Educ. & Training in Mental

Retardation & Developmental Disabilities 194, 195 (1994).

10. Karen L., Salekin, et al., Offenders With Intellectual

Disability: Characteristics, Prevalence, and Issues in Forensic

Assessment, 3 J. Mental Health Research in Intellectual Disabilities

97, 99 (2010).

7

to changing demands, make good decisions, and engage

in meaningful planning for the future.11 As this Court

recognized in Atkins, these deficiencies go to the heart

of moral culpability. Id. at 318 nn. 23-24 (citing research).

B. People with Mild ID face entrenched stereotypes

in the criminal justice system about ID.

Stereotypes of ID “held by judges, juries, and (some)

experts, are . . . more appropriate to moderate or severe

ID, where behavioral and physical characteristics are

obvious and limitations are fairly global.”12 By contrast,

individuals with Mild ID do not appear or behave the way

that the general public might expect from the intellectually

disabled, because their deficits in judgment and complex

reasoning coexist with some areas of adequate functioning,

particularly in the domain of everyday skills.13 Indeed,

even mental health professionals are prone to fall into

these stereotypes. Accordingly the scientific community

in the AAMR manual has long emphasized that “within

an individual, limitations often coexist with strengths.”14

Specifically, individuals with Mild ID can escape

identification because they can attain practical skills that

11. Id. at 99.

12 . St ephen Greenspa n, Ho micid e Defen d ants w ith

Intellectual Disabilities: Issues in Diagnosis in Capital Cases, 19

Exceptionality 219, 220 (2011).

13. Wood, supra note 6, at 19.

14. Am. Ass’n on Mental Retardation, Mental Retardation:

Definition, Classification, and Systems of Supports, 74 (10 th ed.

2002) [hereinafter AAMR Manual].

8

can be learned through repetition and do not require

abstract understanding.15 For example, they can attain

“basic literacy, typically reading at about the fourth grade

level, with some reading as high as the sixth grade level.”16

“Most are capable of driving competently and many can

pass the written driver’s license examination. Many

can also secure employment and economic self-support,

typically in low-level jobs that do not require complex

reasoning and decision making.”17

These basic skills do not enable individuals with Mild

ID to succeed at more complex, high-order tasks. For

example, while they can often “recognize denominations

of money and make simple purchases . . . they often

have problems counting change and budgeting money.”18

However, they do allow individuals with Mild ID to appear

superficially “normal” to the general public, as well as to

medical professionals unfamiliar with ID.19

C.

People with Mild ID are uniquely vulnerable

in the criminal justice system.

Because their cognitive and adaptive deficits coexist

with strengths that make them seem “normal,” individuals

15. Salekin, supra note 10, at 99.

16. DSM-IV-TR at 43; see also Marc J. Tassé, Adaptive

Behavior Assessment and the Diagnosis of Mental Retardation in

Capital Cases, 16 Applied Neuropsychology 114, 121 (2009).

17. Reschly, supra note 7, at 124, 133.

18. Salekin, supra note 10, at 100.

19. J. Gregory Olley, Knowledge and Experience Required

for Experts in Atkins Cases, 16 Applied Neuropsychology 135, 136

(2009).

9

with Mild ID are uniquely vulnerable to criminal conduct,

especially as compared to individuals with moderate or

severe ID. Initially, their seemingly normal outward

presentation makes them less likely to be identified as

having a disability and needing social support. 20 But

absent support, “they have a poor employment potential

and are at increased risk of for engaging in criminal

activity.” 21 Moreover, their limitations in reasoning, and

a desire to fit into a group make them more likely to be

susceptible to the negative influences of others. 22

Sadly, the known characteristics of individuals with

Mild ID also make them vulnerable to abuse, which can

further their journey into criminal activity. 23 This was

certainly the case here, where Mr. Apelt suffered horrific

abuse by his father as a child and until his father’s death

in 1977. See Excerpts of Record, Apelt v. Ryan, No.

15-99013 (9th Cir. Mar. 9, 2016), ECF No. 6, at 532-34

(“Dkt. 6”); see also Pet. 19, 25-26; Pet. App. 30a-31a, 122a

(summarizing evidence of abuse). At the same time, Mild

ID then prevents sufferers from extricating themselves

from their negative environments, compounding their

risk of getting caught up in the criminal justice system. 24

Once in the justice system, individuals with Mild

ID have problems understanding their rights and the

20. Salekin, supra note 10, at 100-101.

21. Id. at 100.

22. Id. at 99, 101.

23. Greenspan, supra note 12, at 233.

24. Salekin, supra note 10, at 99, 101.

10

seriousness of their charges. 25 Their suggestibility and

tendency to acquiesce makes them prone to involuntary

confessions, and their limitations make it difficult for

them to work effectively with attorneys to put on a

strong defense. 26 Indeed, as recognized in Atkins, in the

context of capital cases ID defendants are at a special

risk of execution. 536 U.S. at 321 (“Mentally retarded

defendants in the aggregate face a special risk of wrongful

execution.”).

D.

Atkins focused on hard science in recognizing

the unique vulnerability of people with Mild

ID.

The central question in Atkins was whether the

Constitution prohibits the execution of defendants who,

like Atkins, suffer from Mild ID. 536 U.S. at 307, 309

(defendant’s IQ of 59 fell within Mild ID). In concluding

that it does, this Court relied on decades of scientific

research establishing that all individuals with ID by

definition do not act with sufficient moral culpability to

warrant the death penalty. See id. at 319.

This Court also held that a blanket prohibition on

executing people with ID was required to ensure that

all intellectually disabled people—not just those who are

easily identifiable—received the protection of Atkins. In

so ruling, this Court recognized the challenges faced by

judges and juries in identifying defendants with ID. Id.

at 317. Long-standing medical consensus confirms the

wisdom of this ruling. As the APA’s amicus brief in Atkins

25. Id. at 103-04.

26. Id. at 97.

11

explained, identifying people with ID requires evaluation

by qualified professionals using valid and reliable tests

and protocols—and professionals lacking the appropriate

expertise are likely to miss ID (and particularly Mild

ID). 27

E. Atkins showed that Clinical Definitions

come with Clinical Diagnostic tools that are

essential for evaluating Mild ID.

This Court’s decision in Atkins relied on leading

clinical definitions of ID to delineate the group to be

shielded from execution due to reduced moral culpability.

536 U.S. at 317-18. These universally accepted definitions

of ID are based upon recognized, substantial, and lifelong cognitive and behavioral deficits that can only can be

identified using standard clinical diagnostic tools.

Indeed, an inescapable corollary of relying on a clinical

definition is that, in turn, such reliance requires the use

of scientifically recognized clinical tools, as opposed to

stereotypes or non-scientific methods. For example, in

Hall v. Florida, this Court confirmed that courts cannot

rely on an inflexible IQ cutoff of 70 as dispositive of an

individual’s intellectual functioning while ignoring the

test’s standard error of measurement (“SEM”). See 572

U.S. 701, 713-14 (2014). As explained in Hall, “A test’s SEM

is a statistical fact, a reflection of the inherent imprecision

of the test itself.” Id. at 713. In Moore v. Texas, this Court

27. Brief of Am. Psych. Ass’n. et al. as Amici Curiae in Support

of Petitioner, at 24, Atkins v. Virginia (No. 00-8452). Subsequent

reference to the APA’s amicus briefs filed in this Court will be cited

as “[case name] APA Br.”

12

confirmed that, in considering whether an individual

suffers from significant adaptive deficits (the second prong

of the two-prong clinical definition of ID), courts are not

permitted to rely on evidence of adaptive “strengths”

or behavioral improvements in prison to determine the

presence of adaptive deficits. 137 S. Ct. 1039, 1043, 1050

(2017).

Moore recognized that scientifically recognized

principles have established that ID is not a balancing test.

Rather it is a condition that exists once some number of

defined factors are shown to exist. That is, the existence

of strengths in other areas emphatically does not render

a person free of ID—it only may serve to mask the nature

and depth of that ID. See id.

Accordingly, and consistent with Atkins, this Court

rejected the use of arbitrary evaluative tools that do not

apply established medical guidelines for clinically defining

ID. See Hall, 572 U.S. at 720 (confirming that the clinical

definition of ID is “a fundamental premise of Atkins”). To

prevent courts from making determinations of ID on the

basis of lay stereotypes, those determinations must be

made in accordance with clinical guidelines, which offer

“the best available description of how mental disorders

are expressed and can be recognized by trained clinicians

. . . .” Moore, 137 S. Ct. at 1052. These guidelines mandate

that ID—and especially Mild ID—can only be accurately

identified by (i) qualified professionals experienced in the

area of ID, (ii) conducting a complete ID evaluation, and

(iii) applying valid, reliable, and scientifically grounded

diagnostic tools. 28

28. Atkins APA Br. 15.

13

II. Even Though The Medical Science Has Remained

Consistent, Ample Evidence Now Exists That State

and Federal Courts Are Struggling to Properly

Apply Atkins

With respect to ID as understood in Atkins, the two

main diagnostic manuals—the AAIDD Manual and the

DSM—distill the best scientific practices for diagnosis. 29

While particular diagnostic methods have been refined

over time and the standardized instruments continue to

improve, the medical consensus regarding how to properly

diagnose ID has remained remarkably consistent over

time. Unfortunately, the lower courts have nonetheless

struggled to apply these scientific approaches when

confronted with lay stereotypes and non-scientific

methods and opinions that often are used to argue in favor

of the death penalty.

A.

The scientifically-accepted standards for ID

have remained consistent since Atkins.

This case does not demand the formulation of new

or difficult standards. Indeed, to the contrary, while

specific diagnostic tools have been refined over time,

the scientifically-accepted standards for identifying

individuals with ID have remained remarkably consistent

since Atkins. The best measure of this consistency are the

amicus filings of the American Psychiatric Association

(“APA”) in Atkins, Hall, and Moore.

Thus, the APA filings have consistently reiterated

the unanimous professional consensus for evaluating

29. Atkins APA Br. 2 n. 8.

14

deficits in intellectual and adaptive functioning. In

assessing how the lower courts have struggled with

identifying ID defendants, it is particular important to

note the medical community’s longstanding emphasis on

(i) administration of current standardized measures by

qualified professionals, see Atkins APA Br. 3-4, 15, 24;

Hall APA Br. 6, 19; Moore APA Br. 11-13; Moore II APA

Br. 9; (ii) avoidance of overemphasizing strengths and

“weighing” strengths against relative deficits, see Atkins

APA Br. 6; Moore APA Br. 13, 18; Moore II APA Br. 4-6;

and (iii) rejection of lay stereotypes as incompatible with

the clinical definition of ID, see Moore APA Br. 17-18, 24;

Moore II APA Br. 4-6.

Tellingly, these are precisely the areas where the

lower courts have struggled in applying Atkins—including

the courts below in this case.

B. State and Federal Courts are not basing

findings of moral culpability on scientifically

recognized standards of ID.

In the seventeen years since Atkins, State and Federal

courts have struggled with how to weigh medical evidence

of disability. 30 While some courts have used clinical

evidence to identify defendants with ID, 31 other courts

30. John H. Blume et al., A Tale of Two (and Possibly Three)

Atkins: Intellectual Disability and Capital Punishment Twelve

Years After the Supreme Court’s Creation of a Categorical Bar, 23

Wm & Mary Bill of Rights J. 393 (2015) (surveying twelve years of

Atkins jurisprudence).

31. See, e.g., Holladay v. Allen, 555 F.3d 1346, 1357-58 (11th

Cir. 2009); Walker v. True, 399 F.3d 315, 323 (4th Cir. 2004); United

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

15

have instead relied on demonstrably non-scientific factors

in making ID determinations. Specifically, courts have

allowed ID determinations to be based on:

• Strict IQ cutoffs that disregard the standard error

of measurement. 32

• Short form tests and screening tests that were not

designed to measure IQ. 33

• Tests to determine malingering that were not

designed to properly evaluate individuals suffering

from ID. 34

32. See Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007); Hall

v. State, 109 So. 3d 704, 707, 709 (Fla. 2012).

33. See Henderson v. Director, No. 1:06-CV-507, 2013 U.S. Dist.

LEXIS 127922*, at *40-41 (E.D. Tex. Sept. 6, 2013) (State’s expert

testified that the highest IQ score is the most reliable because “you

can’t fake knowing the answer”); Anderson v. State, 163 S.W.3d

333, 355-56 (Ark. 2004) (relying on a ten-question questionnaire

that provided estimated IQ scores, as well as expert testimony

extrapolating an estimated IQ range from scores on the Wide Range

Achievement Test [WRAT], which is not a test designed to measure

IQ).

34. Wright v. State, 213 So. 3d 881, 898 (Fla. 2017) (considering

the results of a Validity Indicator Profile (“VIP”) test indicating

that Wright was malingering even though the VIP is not normed

for individuals with ID). As a general matter, although multiple

instr uments ex ist to assess malinger ing, there is clinical

disagreement about their utility for assessing malingering by

individuals with ID. See State v. Scott, 233 So. 3d 253, 261 (Miss.

2017) (admitting expert opinion that multiple consistent IQ scores

in the ID range ruled out the possibility of malingering, and noting

that “[b]oth [expert for the State and for the Defendant] claimed no

16

• Arbitrary IQ score adjustments, untethered to

medical evidence. 35

• Arbitrary rejection of past evidence of ID and of

the clinically established fact that ID manifests

before eighteen. 36

Other courts have ignored scientifically recognized

standards by making findings on the absence of deficits

in adaptive functioning based on factors that do not rule

out those deficits (i.e., they have weighed factors one

against the other, which is not scientifically appropriate),

including by:

• Refusing to consider medical histories, behavioral

record, school tests and reports, and testimony of

family members and friends. 37

malingering test has been “normed” for the intellectually disabled”).

Experts look instead to consistency of scores across multiple testing

instruments to rule out malingering, due to the complexity of

achieving a consistent score consistent with of Mild ID on multiple

tests, especially if those tests are separated by time. Id. at 262. This

approach has been accepted by multiple jurisdictions. See id. at 262

n. 15 (collecting cases).

35. State v. Were, 890 N.E.2d 263, 293 (Ohio 2008) (rejecting

an Atkins claim where defendant offered an IQ score of 69 because

of expert testimony that the test scores should be adjusted due to

“cultural bias”).

36. Williams v. Mitchell, 792 F.3d 606, 617 (6th Cir. 2015)

(noting that the lower court “rejected outright any pre-1989 evidence

from its analysis of Williams’s intellectual functioning and adaptive

skills, despite finding this same evidence showed that Williams was

intellectually disabled before he turned eighteen”).

37. Id. at 609.

17

• Considering the facts of the crime (including

whether they demonstrate planning or deception).38

• Considering adjustment to prison life, including

evidence of employment, gang membership,

reading books or magazines, acting “normal” and

being polite. 39

• Considering stereotypes about what people with

ID can do, including evidence that a defendant

could, read, write and do basic math;40 maintain

personal hygiene; 41 drive on occasion; 4 2 was

appropriately groomed and had a driver’s license;43

and maintained relationships with women.44

38. See, e.g., Walker v. Kelly, 593 F.3d 319, 324-25 (4th Cir.

2010), cert. denied, 560 U.S. 921 (2010).

39. See, e.g., Walker, 593 F.3d at 325-27; State v. Hill, 894

N.E.2d 108, 124-25 (Ohio Ct. App. 2008); Ex parte Briseno, 135

S.W.3d 11, 18 (Tex. Crim. App. 2004).

40. See, e.g., Lane v. State, 169 So. 3d 1076, 1091 (Ala. Crim.

App. 2013) (noting that defendant “was able to write and read and

put words together in a coherent matter”).

41. See, e.g., Walker, 593 F.3d at 319.

42. See, e.g., Dufour v. State, 69 So. 3d 235, 258 (Fla. 2011)

(noting that “[i]n the past, [the defendant] drove a car and possessed

a driver’s license”).

43. See, e.g., Branch v. State, 961 So. 2d 659 (Miss. 2007).

44. See, e.g., Walker, 593 F.3d at 326 (noting defendant’s “ability

to ingratiate himself to women and establish intimate relationships

with them in a relatively short period of time as evidence of his

social skills”).

18

These non-scientific approaches create two serious

problems. First, they reveal that in disputes over ID—and

particularly Mild ID—parties will revert to non-scientific

factors to make their case.45 But this places the lower

courts in the untenable position of analyzing the death

eligibility of defendants who may not have the moral

culpability to support the imposition of the death penalty

in the first place. This then creates the second problem:

This Court has been left to continuously step in to guide

the lower courts by correcting only the most egregious

cases.

In both Hall and Moore, this Court recognized that

the lower courts had deviated from accepted diagnostic

guidelines in ways that created a high risk that defendants

with ID would face execution—in Hall, by ignoring the

SEM of IQ tests, and in Moore, by relying on stereotypes

of what people with ID can do as a basis for finding a

lack of ID. In both cases, this Court recognized that

failure to apply scientifically-mandated standards runs

the risk that ID defendants who lack the requisite moral

culpability will nonetheless be executed. See Moore, 137

S. Ct. at 1051-52; Hall, 572 U.S. at 710. Indeed, Moore

required a second review because it was clear that, on

remand, the Texas court had repeated its prior errors by

(i) once again relying on Moore’s adaptive strengths and

behavioral improvements made in prison to conclude that

he lacked deficits in adaptive functioning, (ii) considering

that “emotional problems”—a risk factor for ID—could

be an alternative to an ID diagnosis; and (iii) continuing

to rely on the so-called Briseno factors. Moore, 139 S. Ct.

at 669, 670-71.

45. See, e.g., Anderson, 163 S.W.3d at 355-56.

19

C.

As in Moore II, this Court could summarily

reverse the Ninth Circuit for ig noring

established science in its decision.

Here, as in Moore, the courts below consistently

ignored record evidence showing that scientifically

accepted guidelines were not followed in assessing

whether Mr. Apelt is ID. This error alone would mandate

summary reversal so that the Ninth Circuit (or the District

Court) could consider and properly apply the scientifically

accepted standards relating to ID, which bear directly on

moral culpability.

The Record before the Ninth Circuit showed that

the State’s expert, Dr. Moran, performed an evaluation

that ignored scientifically-accepted clinical standards. In

particular:

• Dr. Moran based his conclusion about Mr. Apelt’s

IQ on a single test result, that even he conceded

was unreliable. Dr. Moran did not contest the

validity of the defense’s IQ tests, which showed a

full-scale IQ of 61 and 65 for Mr. Apelt (which would

support Mild ID). In contesting that Mr. Apelt had

subaverage intellectual function before the age

of 18, Dr. Moran testified that his conclusion was

based solely on a single score of 88 on a group IQ

test dating from Mr. Apelt’s childhood. Dkt. 6 at

692. But all three experts for the State (including

Dr. Moran) agreed that this score was suspect and

likely a result of measurement error.

• D r. Moran did not administer a single

standardized instrument. Instead of following

20

scientifically-accepted practice, Dr. Moran

interviewed Mr. Apelt for two hours, only using

questions that he hand-picked from one of the

standard instruments. But, the AAMR explicitly

states that this instrument cannot be used to

diagnose ID.46 Dr. Moran conceded that his use of

this particular standard test instrument did not

meet clinical standards and was not scientifically

valid. In any event, Dr. Moran then cut his

interview short because he believed Mr. Apelt

was malingering, but made no effort to verify his

intuition by administering any accepted measure

for malingering (not even the one he claimed was

valid).

• Dr. Moran relied on Mr. Apelt’s strengths to

conclude that he had no adaptive function

deficits. The medical consensus is clear that

clinicians cannot rely on evidence of adaptive

strenghts, past criminal conduct, or past verbal

behavior, to rule out ID. But at trial, these factors

were the only ones Dr. Moran offered. He never

contested the validity of the adaptive function tests

administered by the defense experts (described

below).

46. AAMR Manual at 89 (“The Residential and Community

version, ABS-RC:2, was developed to be appropriate for individuals

through 79 year of age, but norms are not available for adultes with

typical functioning . . . the ABS-RC:2 does not fit the psychometric

criteria proposed in this 2002 manual for a diagnosis of mental

retardation. It has a long history, however, of providing excellent

information for planning supports . . . .”).

21

• Dr. Moran justified his conclusions by the very

stereotypes that animated the need for Atkins.

Dr. Moran testified that the main characteristics

of people with ID are that (i) their deficits become

apparent to anyone speaking with them after a

short time, and (ii) they “appear naïve, gullible,

and easily exploited.” Dkt. 6 at 832-33. According

to Dr. Moran, Mr. Apelt and his brother did not

fit the bill because they were like “the wolves in

sheep’s clothing.” He referred to ID as a “six hour

disorder” and testified that it only manifested

during school hours. Id. at 698. He concluded that

Mr. Apelt’s characteristics were more consistent

with Antisocial Personality Disorder (“APD”)

because of the “predatory” nature of Mr. Apelt’s

behavior. This, despite the fact that the DSM-IV

states that APD cannot rule out a diagnosis of ID.47

Dr. Moran was not the first expert hired by the State.

The state initially retained Dr. Kury. See Excerpts of

Record, Apelt v. Ryan, No. 15-99013 (9th Cir. Oct. 13,

2016), ECF No. 23, at 1971-74 (“Dkt. 23”). Dr. Kury

performed eight individual IQ tests and found a range of

scores, with a median IQ of 65 (which would support Mild

ID). See id. at 1994-95, 2005, 2032. After an initial draft of

his report opined that Mr. Apelt had ID, the State asked

Dr. Kury to remove the adaptive functioning analysis from

his report, leaving only the results of his IQ testing. Id. at

2062-63, 2096. The State then hired Dr. Moran.

By contrast, the experts who testified for the defense,

Dr. Kury and Dr. Ruff, hewed closely to accepted

47. See DSM-IV-TR at 47.

22

medical guidelines. Dr. Ruff conducted two evaluations

of Mr. Apelt, which corroborated Dr. Kury’s findings.

Specifically:

• Dr. Ruff first evaluated Mr. Apelt in 2000. At

the time he determined that Mr. Apelt had an

IQ of 61, and based on neuropsychological tests

and a thorough review of Mr. Apelt’s records, he

issued a report providing a diagnostic impression

that Mr. Apelt had “mental retardation, severity

unspecified.” Pet. App. 137a.

• Dr. Ruff then re-evaluated Mr. Apelt in 2006.

He administered two of the clinically-accepted

standardized instruments for testing adaptive

function and found that Mr. Apelt exhibited

significant deficits in four out of eleven adaptive

function domains (only two are needed to support a

finding of ID): (1) social/interpersonal skills; (2) use

of community resources; (3) functional academic

skills; and (4) work. See Pet. App. 169a-171a; Dkt.

6 at 526.

Notw ithstanding Dr. Moran’s deviations from

scientifically-accepted clinical tools and methods, the

State court credited Dr. Moran’s testimony as supporting

a finding that Mr. Apelt does not have ID, and specifically

rejected Dr. Ruff’s findings because he focused too much

on Mr. Apelt’s deficits. The Ninth Circuit repeated that

error.

As in Hall and Moore I and II, the lower courts here

have premised their holdings as to death eligibility on

non-scientific analyses that demonstrably deviate from

standards recognized in Atkins. On that basis alone,

23

this Court could summarily reverse the decision below,

and instruct the Ninth Circuit to remand the case to the

District Court for reconsideration in light of the scientific

standards recognized in Atkins, Hall, and Moore I and II.

III. The Scattered and Arbitrary Way in which Courts

Continue to Apply Atkins Presents a Substantial

Federal Question

This Court’s teaching on the death penalty has made

two principles crystal clear. First, the death penalty must

never be applied in an arbitrary manner. Gregg v. Georgia,

428 U.S. 153, 189 (1976) (“[W]here discretion is afforded a

sentencing body on a matter so grave as the determination

of whether a human life should be taken or spared, that

discretion must be suitably directed and limited so as

to minimize the risk of wholly arbitrary and capricious

action.”); Monge v. Cal., 524 U.S. 721, 732 (1998) (“Because

the death penalty is unique ‘in both its severity and its

finality’ we have recognized an acute need for reliability

in capital sentencing proceedings.”) (quoting Locket v.

Ohio, 438 U.S. 586, 604 (1978)). Second, defendants lacking

the requisite moral culpability may not be subject to the

death penalty. See Tison v. Ariz., 481 U.S. 137, 156 (1987)

(“A critical facet of the individualized determination of

culpability required in capital cases is the mental state

with which the defendant commits the crime.”). Yet, as

explained above, there now is ample evidence that the

lower courts are applying haphazard approaches to ID

evidence, which, in turn, is yielding arbitrary results in

which ID individuals are subject to execution.48 This risks

undermining central tenets of this Court’s death penalty

jurisprudence and presents a substantial federal question.

48. See Blume et al., supra note 30.

24

In short, certiorari should be granted because clarity

in how the lower courts should determine whether a

defendant has ID is crucial to ensuring that punishment

is proportional to the blameworthiness of the offender.

Specifically, as in other situations involving expert

testimony, this Court must set forth a fair and consistent

way for the lower court to approach evidence relating to

ID. By providing this type of guidance, this Court would

be true to the principles enunciated in Atkins and Roper,

and also would avoid the need to micro-manage how State

and Federal courts administer and assess death penalty

sentencing.

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition for Certiorari and reverse the Ninth Circuit’s

decision.

Respectfully submitted,

Owen C. Pell

Counsel of Record

A lice Tsier

Sequoia K aul

Aure Renza Demoulin

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

(212) 819-8200

opell@whitecase.com

Counsel for Amicus Curiae