Opposition Brief — Kentucky, Petitioner v. Larry Lamont White

No. 20-240

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2019

COMMONWEALTH OF KENTUCKY,

Commonwealth

vs.

LARRY LAMONT WHITE

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

RESPONDENT LARRY LAMONT WHITE

BRIEF IN OPPOSITION

*Kathleen K. Schmidt Erin Hoffman Yang

Department of Public Advocacy Department of Public Advocacy

5 Mill Creek Park, Suite 100 5 Mill Creek Park, Suite 100

Frankfort, KY 40601 Frankfort, KY 40601

(502) 564-8006 (502) 564-8006

Kathleen.schmidt @ky.gov erin.yang@ky.gov

*Counsel of Record for Larry Lamont White Counsel for Larry Lamont White

October 27, 2020

QUESTION PRESENTED

Whether a State court may order an evidentiary hearing on the intellectual

disability claim of a defendant facing the death penalty, despite a pro se request by

the defendant to waive the claim, where the issue has been properly preserved by

defense counsel, the record contains sufficient evidence to form a reasonable doubt

as to the defendant’s intellectual capabilities, and the Commonwealth agreed below

that an intellectual disability claim can be raised until the moment of execution?

TABLE OF CONTENTS

QUESTION PRESENTED. .............0cccccccccssesseeeeecuueeceeeseeneeesenaaaececeeeaaaeeeseeeea ees i

TABLE OF CONTENTS. .......0....cccseccesceseeesseseeeeceeneecescnaeeeeesauaaaeneesesesssisetseeereees ii

TABLE OF AUTHORITIES. .............0..cccccccceeeecccseteccceccneeeeeceaaeeeeeeeesaaaaeeetenees iii

INTRODUCTION. ........ 0.0.00 ccc cccseeecce cece cee eeee scan aececcenaaueeneaeeeeseeuueeeereesaaaaaeeenans 1

STATEMENT OF THE CASE... cccccccssccecsseeeees eeu eeececreecseneneretseeaeaneseeeeaee ees 3

REASONS FOR DENYING THE WRIT..............:cccscsscecccceseeeceeeeeeeeeeeeenaunaseneees 10

A. The Commonwealth waived its argument that White

can forgo his intellectual disability claim and be

barred from raising it in the future......000 00. cceseseesteseseeeeeeteeteeeeeeneD)

B. There is no split of authority on whether a

death-sentenced inmate who has been determined

to have presented sufficient evidence of intellectual

disability to proceed to an evidentiary hearing

can unilaterally withdraw the claim that had been

properly presented to the Courts. ...................cccccccecceseceseceeceueeeeaeenees 11

C. Once this Court imposes a categorical bar abolishing

the death penalty for intellectually disabled inmates,

and evidence reasonably indicates the inmate falls

within that category, that bar is not subject to pro se

waiver by the inmate himself. .......0.......0. 0. cecceeeeccccseeseaeeeeeeteeeaneeseneees 18

D. This case would be a poor vehicle to determine

whether a defendant can waive an Atkins claim. ....................:00000000+ 22

CONCLUSION. ..0000... occ cccceeeccccccseseeecccceeuaeeeeccesaeenseeeeeeeeeeeeeeenseaseseeesaeeeseeseees 27

APPENDIX

Appendix A-Brief for Commonwealth (May 6, 2019) .............. Al-A21

Appendix B-Order in Kentucky Supreme Court (August 12, 2019).......... A 22

Appendix C-Brief for Commonwealth (September 11, 2019).................... A 23-A 45

TABLE OF AUTHORITIES

Cases Page

Atkins v. Virginia, 536 U.S. 304 (2002)... eccesecessetcseseeeseseeesesessesesesesesseseenesesesens passim

Ex parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007)... cs eesssssssessesenseeeneneesene 17,18

Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005)... cccsssssesssseseeteeeessseesees 7,18

Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) ........ eee 19

Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015).......ccccccccsssseseccsssessssessenssserssesseeersees 13

Commonwealth v. Robinson, 623 Pa. 345, 82 A.3d 998 (20138) ou... cecceeseeseesseeesees 12

Douglas v. California, 372 U.S. 353 (1968) oo. cesesesessseececseseeseessseessscsesseeeeessestsseeenes 23

Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).......... 19, 20

Faretta v. California, 422 U.S. 806 (1975)... eceecesssesseseeseneseeeseetseeeeseteneeseasee .. passim

Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)............... 19

Frazier v. Jenkins, 770 F.3d 485 (6th Cir. 2014)... cccsccsesssessssssesssentsesseess 15

Gregg v. Georgia, 428 U.S. 153 (1976) ........ceccscssssssssssessssssssssersescsssessesesseasseeseaeacaeeessceseeesees 19

Hall v. Florida, 572 U.S. 701 (2014) wee eeccseceseesetecceesesenesseseensesesscseaesenensseneseneessens passim

Head v. Hill, 277 587 S.E.2d 613 (2008) o....eeesesssecesssscssseecesseesseessseesesceeseseseseeeseseseeseeeseees 14

Jones v. Barnes, 463 U.S. 745 (1988) .occccccccssecssesssesssseseseeeesscenessssessseseseeesesceeseseseeescseseees 23

Karu White v. Commonwealth, 500 S.W.3d 208 (Ky. 2016)... cessessssseeeerseseeeseeenes 9

Lockhart v. McCree, 476 U.S. 162 (1986) ......ccccccssssssssssescssecstosesecssssssessseessessesscescncssessseeess

McCoy v. Louisiana, 138 8. Ct. 1500, (2018)

Moore v. Texas, 187 S. Ct. 1089 (2017) wccccccesessssssscseecssssessssesssessssssssssesscssecssnsesesses

People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 (2011)........ 21

People v. Patillo, 185 A.D.3d 46 (N.Y. 2020) ”

Rees v. Payton, 384 U.S. 312 (1966) oe cseeseceseeeceeeeeesesenesesssesssenseestensesessseseneeceeees

reh'g granted, opinion withdrawn, 881 F.3d 933 (5th Cir. 2018), and on reh'g, 716,

Fed. Appx. 366 (Sth Cir. 2018)... ecsecessecssesecnsneerseeneneeseseasaeoneseanersaesseaeasueessseersesetens 17

Rogers v. State, 575 S.E.2d 879 (Ga. 20038)... csecsesecsesessseceseesessssessseesesesneeeeeseseseseseranes 14

Roper v. Simmons, 543 U.S. 551 (2005) oe ccsssssssessesseseescssssceseeseeseesesseeeneassueeateeneeee 19

Sorto v. Davis, 859 F.3d 356 (5th Cir. 2017) oes .17

St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004).. wee 5S

White v. Commonwealth, 600 S.W.3d 176, (Ky. 2020)... passim

White v. Kentucky, 189 S. Ct. 582 (2019) oc ssssssesseseeresseveerssssseeaseessteneseeasseessensesees 4

Wilson v. Commonwealth, 381 S.W.3d 180 (Ky. 2012). 21

Winston v. Commonwealth, 604 S.E.2d 21 (Va. 2004) oe eceeecceeeeeetsectsessseesessestenseees 16

Winston v. Kelly, 784 F. Supp. 2d 623 (W.D. Va. 2011)... eecsceneseesseeceeeereeseeseees 17

Winston v. Pearson, 683 F.3d 489 (4th Cir. 2012)

Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) ...cccccsccscsssssssscscesesseeeseneees passim

Constitutional Provisions

Sixth Amendment to the United States Constitution... ccsesesesescseseeseseeteaeeseenes 24

Eighth Amendment to the United States Constitution..................cccccceeeeees passim

Fourteenth Amendment to the United States Constitution..................0:::006 passim

Statutes

Kentucky Revised Statute 532.130(2).........ccsssssesscsseesesssecesssessssssesssseseesesesensssaseeesesees 7

KRE 404 (b)

Rules

CR 76.36 once eescessecnsesneseersesscneenenescnsersnsaneneneasessensensesseneensusucnessevessasseasaasuesesacseseeuseesseesesnsesateaes

Kentucky Civil Rule 60.02

Rr 11.42 ec eecccseseesssseaeseessassnevssconscsssesscecsencescsesesscscaeacesessesesussesssusonsssunsssaeeeasscseceentes

Rr 60.02. eecccecsescscesescsenesesesesesesesesssssssesescsssesssasesessacsessacscsescsssesesesecussssasssessseaessacseseneasscaeenees

Other

https‘//www.hrw.org/reports/2001/ustat/ustat0301-O1 htm oc esesesteseseesesesesseeeees 20

https://www.nytimes.com/2000/08/07/us/executing-the-mentally-retarded-even-aslaws-begin-to-shift. Wt) oo... ee cseneceesesscneseseecsesesesesesesesssesesecesesesesssesuassssesssesscaesees 20

INTRODUCTION

The Commonwealth of Kentucky seeks review of the question “[w]hether a

capital defendant can waive a claim of intellectual disability under Atkins v. Virginia,

536 U.S. 304 (2002), and its progeny.” Pet. i. That formulation of the question

presented not only grossly oversimplifies the issue decided by the Kentucky Supreme

Court, but also ignores the many reasons why this Court’s review is unwarranted.

To start, in the Kentucky Supreme Court, the Commonwealth argued that

White should be permitted to waive his intellectual disability claim on direct appeal

because “the waiver decision at issue is not a ‘forever’ decision that can never be

revisited.” Kentucky Supreme Court Brief for Commonwealth, filed 9/11/2019 at 16.

App. C 42. As the Commonwealth explained:

White may raise an intellectual disability claim at any time until he is

executed . . . According to [the Kentucky Supreme Court] just three

years ago, “offenders who raise successful claims under Atkins and Hall

are barred from execution” and this “protection” "endures to the very

moment of execution.” Therefore, if White later changes his mind ... he

can raise the intellectual disability claim via, for example, a [Kentucky

Civil Rule] 60.02 motion as other death row inmates have done.”

Id. The petition should be denied on that ground alone.

Even looking past the Commonwealth's turnabout, there is neither a conflict

among state courts of last resort over the question presented nor a departure from

this Court’s precedent. The Commonwealth posits that several courts—all of which

rendered decisions pre-Moore v. Texas, 137 S. Ct. 1039 (2017)—disagree as to

whether an Atkins claim can be waived. Beyond the fact that the Kentucky Supreme

Court’s decision relies on the reasoning of Moore that none of the other decisions in

the purported split analyzed, the different outcomes in the cited cases are easily

reconciled by a key factual difference: Where (unlike here) courts have found waiver,

they have done so because both the defendants and their counsel failed to raise a

timely intellectual disability claim and there was insufficient evidence of intellectual

disability to create a threshold question. By contrast, where (as here) courts have

required adjudication of a claim, they have done so because the defendants’ counsel

have timely raised well-supported intellectual disability claims, even though the

defendant may take issue with the claim.

Such a requirement to adjudicate Atkins claims where a defendant “has met

his burden to receive an evidentiary hearing on his intellectual disability claim,”

rather than “allow him to pro se waive that issue,” App. 8, is eminently correct.

Regardless of whether constitutional or Eighth Amendment claims can be waived as

a general matter, at the very least a pro se defendant’s request to waive an Atkins

claim cannot be accepted in the face of evidence sufficient “to form a reasonable doubt

as to ... intellectual capacity,” id. at 11, without first determining whether the

defendant is competent to make that request. Tellingly, even the Commonwealth

frames its argument in terms of whether “a defendant can waive a constitutional

right that provides [a defendant] no protection absent the presentation of sufficient

supporting evidence.” Pet. 10 (emphasis added). Here, such evidence has been

proffered, Pet. App. 7-10, and cannot be overcome by the Commonwealth’s bare

insistence that White suffers from no intellectual disability. To hold otherwise—

particularly in the name of expediency—would be the opposite of the “rule of law.”

Amicus By. 6°7.

For the same reasons, this case would be a poor vehicle to determine whether

a defendant can waive an Atkinsclaim. Although White may have indicated a desire

to waive such a claim, the fact remains that his counsel has fully preserved and is

continuing to pursue the vindication of White’s Eighth Amendment rights. In short,

the supposed waiver underlying the Commonwealth’s petition does not exist. And

given the Commonwealth’s apparent certainty (Pet. 3, 27) that it will prevail on

remand and moot this appeal that is all the more reason for this Court not to wade

unnecessarily into this interlocutory appeal. To the extent that the Commonwealth

is correct that the question presented is one that will recur, it (and its amici will have

ample opportunity to seek this Court’s review.

STATEMENT OF THE CASE

A. The Trial Record Yields Reasonable Doubt of Intellectual Capabilities

After the Court remanded White’s case to the Kentucky Supreme Court to

reconsider in light of Moore v. Texas, 137 S. Ct. 1039 (2017), the state court found

White met his burden of receiving an evidentiary hearing on his claim of intellectual

disability. White v. Commonwealth, 600 S.W.3d 176, 180-181 (Ky. 2020). That court

detailed the record evidence, timely and properly submitted by his counsel, which

was sufficient to form a reasonable doubt as to White’s intellectual capabilities.

Despite that, the Commonwealth does not paint an accurate picture of those events,

including White’s conduct at trial. The Commonwealth appears to try and convince

3

the Court that the evidence presented below was insufficient to adequately raise the

issue of White’s intellectual disability (despite the fact the question it presents to the

Court is not based on this assertion), ignoring that the Court granted, vacated and

remanded in White’s favor based on that evidence. White v. Kentucky, 139 S. Ct. 532

(2019) [White I].

1. The Commonwealth omits and mischaracterizes material facts

about Larry White’s behavior at trial.

The Commonwealth relies upon the vacated Kentucky Supreme Court opinion,

saying that “White had a better grasp on his case than most.” Pet. 2. The

Commonwealth ignores that White acted out often at trial, and that he never asked

to represent himself. No hearing under Faretta v. California, 422 U.S. 806 (1975) was

held. Nonetheless, the Commonwealth cherry picks quotes from the direct appeal

opinion, painting a skewed portrait of a layman’s Atticus Finch. The truth from the

written and video record is altogether different.

For example, consider the pro se motions filed by White. Some were typed,

some handwritten, some had misspellings, some made no sense, and no evidence was

heard about who may have written or helped him on these or the letters sent.1 These

include: Motion for Dossier on Prosecuting Witnesses, misspelling “defendent,” and

“investergation.” TR Vol. 1, pp. 20-21; Motion to Withdraw Appointed Public

Defender and Appoint Special Attorney, citing “conflict of intrest” and in handwriting

1 Tellingly, the Commonwealth did not submit accurate copies of the letters White wrote between

May 21, 2019 and January 24, 2020. It re-typed those letters rather than attaching true copies.

4

that appears different from the above motion where “defendant” is spelled correctly.

TR Vol. 1, pp. 22-24; Motion to Challenge the Scope of KRE 404 (b) Ruling Made by

the Court, typed with many grammatical errors. TR Vol. 3, pp. 310-313; Motion,

Memorandum in Support of Writ of Prohibition Pursuant to CR 76.36 typed and

containing these errors- “they did obtain this statement illegal and would not use the

statement in a new trial,” “the patter of offense...criminal signature or serial patter.”

TR Vol. 2, pp. 292-301; Writ of Prohibition Pursuant to CR 76.36, containing these

statements- “The key words used by the Judge is ‘almost”, well almost only counts in

a game of horseshows.” “All sapient minds can easily discern...,” TR Vol. 3, pp. 343-

345; Motion to Dismiss Charging Instrument, typed and claiming he was not served

with the indictment. TR Vol. 4, pp. 587-545

It is hard to forget the image of the trial court, standing between the holding

cell and the courtroom, trying to inquire of a recalcitrant White, who refused to come

into the courtroom for the penalty phase, the questions dictated by state law for

giving up his right to be present.?

2. The Commonwealth also omits the full substance of the evidence

White’s attorneys presented at trial regarding White’s intellectual

disability.

2 On the morning of the penalty phase, July 28, 2014, White’s attorneys told the trial court White was

refusing to put on his clothes or come into the courtroom to participate in the penalty phase. Defense

counsel said White did not want to present mitigation or make any argument. The prosecutor asked

the court to ask White to come out. The court did but White refused. So, the trial court stood at the

door between the hall and the courtroom and talked to White, explaining his rights. They briefly

discussed under Kentucky law he must be informed of his right to present mitigation, which he was

told he had by counsel and the trial court, and he refused to do this. It came out that White refused

to sign waivers so a mitigation specialist could gather records or meet with an expert. The parties also

went through the other requirements if a defendant wanted to forgo presenting any mitigation. The

court found he waived his right to present mitigating evidence under St. Clair v. Commonwealth, 140

8.W.3d 510, 561 (Ky. 2004). VR 7/28/14; 11:20:42-11:23:52, 11:26:17-11:37:45.

5

A month prior to sentencing, White's counsel filed a timely motion for new

trial and asked for an intellectual disability evidentiary hearing, citing Hall v.

Florida, 572 U.S. 701 (2014) (holding unconstitutional a state rule which forecloses

any further exploration of intellectual disability of a capital defendant if an IQ score

over 70 exists.). Trial counsel also filed a Motion to Exclude Death as Possible

Punishment Based Upon Defendant's Previous Borderline IQ Testing and Recent

Decision of Supreme Court in Hall v. Florida. With that motion, counsel introduced

50 pages of psychological test results, reports, and raw data from 1971. Included

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

76 on the original Weschler Intelligence Scale for Children (WISC), obtained when

he was 12 years of age, along with findings from White’s youth that he had

“Borderline Intellectual functioning” and a “fairly primitive level of socialization.”

White emphasized the 73 IQ score to the Kentucky Supreme Court afterwards and

during his direct appeal oral argument.

The Commonwealth argued at trial that Hall required more than a showing

of borderline intelligence to eliminate the death penalty. The trial court stated White

had not cited any other evidence of intellectual impairment. It summarily denied

White relief. The trial court overlooked White’s IQ score of 73, and relied solely on

his higher score of 76. White filed no pro se pleadings on this issue. Now before this

Court, the Commonwealth attaches the motions filed by White’s trial counsel to its

Petition for Certiorari, but not the 50 pages of documents supporting the claim that

sufficient evidence existed for a hearing to be heard on whether White is

intellectually disabled and should be subject to the death penalty.? The Petition

omits any mention of White’s IQ score of 73, even though that score clearly places

him within the intellectual deficit range to proceed further with his intellectual

disability claim.

Applying the principles of Moore v Texas to Kentucky, the Kentucky Supreme

Court on remand analyzed the test it announced in Woodall v. Commonwealth, 563

S.W.3d 1 (Ky. 2018), reh'g denied (Dec. 13, 2018), in which it held KRS 532.130(2)

unconstitutional, and asked whether White demonstrated:

(1) intellectual-functioning deficits (indicated by an IQ score

‘approximately two standard deviations below the mean’—i.e., a score of

roughly 70—adjusted for the ‘standard error of measurement’; (2)

adaptive deficits (‘the inability to learn basic skills and adjust behavior

to changing circumstances,’); and (3) the onset of these deficits while still

a minor.

White v. Commonwealth, 600 S.W.3d at 180. That court recognized both IQ scores as

well as the standard error of measurement which meant White produced scores of

between 71-81 and 68-78.4 Id. at 181. The court then detailed the evidence of

adaptive deficits White demonstrated, noting his evidence came from around the

period of time when he was a minor, White had yet to have an evidentiary hearing

to flesh out this factor and had spent all but four of his 43 years of adult life in prison.

3 White attached this documents to his Petition for Certiorari in White I.

4 Ironically, when the Commonwealth argued the Otis test was unreliable, the court chided the Commonwealth for

taking the opposite position in Bowling v. Commonwealth, 163 $.W.3d 361, 384 (Ky. 2005) because the Otis 1Q

scores were well above 70 and thus supported its argument that the defendant was not intellectually disabled. fd.

at 181.

Last, the court held “Moore requires courts to ‘consult current medical standards to

determine intellectual disability, and we direct trial courts to review the Woodall

test in light of the prevailing medical standards at the time of the evidentiary

hearing. 137 S. Ct. at 1048; 563 S.W.3d at 7.” Id. at 182. Based on this evidence, the

court concluded, “White's evidence suffices the reasonable doubt standard entitling

him to an evidentiary hearing on the matter of his potential intellectual disability.”

Id. at 182.

B. The Commonwealth’s Shifting Positions On Remand

After the Court’s remand, the Kentucky Supreme Court ordered simultaneous

briefing on the issue of remand; those briefs were filed on May 6, 2019. On June 10,

2019, the Commonwealth filed its Motion to Resolve Conflict between Appellant and

his Counsel Regarding Intellectual Disability Claim. On July 1, 2019, White filed a

pro se “motion to withdraw appeal counsel for the failure to inform the main person

about the substance of this certiorari, but mislead me” and on July 5, 2019, a pro se

response in opposition of defense counsel.

The Commonwealth then asked for supplemental briefing. On August 12, 2019

the Kentucky Supreme Court ordered supplemental briefing regarding “whether a

death row inmate may waive a claim that he is intellectually disabled, raised by his

counsel, before any person or court has determined he is intellectually disabled.” App.

B 22. Simultaneous briefs were filed on September 11, 2019.

In its pleadings, the Commonwealth waived its argument that White could

truly waive his claim and that principles of default would apply. The Commonwealth

argued that White could drop his claim now and revive it at any time. It also stated

that it did not matter because White would never be executed due to his age and the

status of the case.

REASONS FOR DENYING THE WRIT

A. The Commonwealth waived its argument that White can forgo his

intellectual disability claim and be barred from raising it in the future.

The Commonwealth waived the issue of whether White could enter a binding

withdrawal of his intellectual disability claim when it took a contrary position before

the state court.

Subsequent to this Court’s grant, vacate, and remand in White I, the Kentucky

Supreme Court ordered simultaneous briefing on the issue of intellectual disability.

The Commonwealth argued: “Should this Court again reject White’s intellectual

disability claim, he will suffer no harm since he can raise such a claim at any time

until he is executed.” Kentucky Supreme Court Brief for Commonwealth on remand

filed May 6, 2019 (emphasis added). App. A 20. The Commonwealth acknowledged,

under state law, protection from execution based on an intellectual disability claim

“endures to the very moment of execution.” Id., citing Karu White v. Commonwealth,

500 S.W.3d 208, 215 (Ky. 2016), abrogated on other grounds by Woodall v.

Commonwealth, 563 S8.W.3d 1, 2 (Ky. 2010) (the Commonwealth did not seek

certiorari in either of those two cases). According to the Commonwealth, White could

use RCr 60.02 to raise the issue of intellectual disability “effectively whenever he

wants so long as he has proof to back it up.” Id. (emphasis added).

It is patent the Commonwealth argued that the Kentucky Supreme Court

could reject the merits of White’s intellectual disability claim yet could raise it again

on the merits at any time before execution.

After this first post-remand briefing, the Commonwealth argued that White

contacted them, claimed his attorneys had not told him about raising this issue and

agreed with them that he wanted to drop this “retarded foolishness.” Pet. App. 108.

Shockingly, the Commonwealth, while consistently arguing to uphold his conviction

and death sentence, claimed White would likely never be executed because of his

age and where his litigation stood.

The Kentucky Supreme Court granted the Commonwealth’s request for

briefing on White’s stated desire to waive the intellectual disability claim. The

Commonwealth argued the decision to waive an intellectual disability claim “is not a

‘forever’ decision that can never be revisited.” App. C 42. Again, the Commonwealth

argued that “White may raise an intellectual disability claim at any time until he is

executed.” Id. (emphasis added).

The Commonwealth now takes the opposite position, arguing that “Eighth

Amendment rights are presumably waivable.” But the Commonwealth did not raise

the issue of waivability below that it presents now. The Commonwealth’s petition

asserts that allowing White to waive a determination of intellectual disability would

serve the ends of justice for the defendant and the Commonwealth by expediting the

RCr 11.42 process.5 This argument is not properly before the Court because it was

5 It is also factually wrong. It would cause further delay because of the amount of time expended to

litigate whether the claim proceeds and whether White is competent to withdraw the claim in

10

not presented to the lower court and because the Commonwealth instead argued

below that White’s ability to claim an intellectual disability exemption to execution

“endures to the very moment of execution.” Certiorari should be denied for this reason

alone.

B. There is no split of authority on whether a death-sentenced inmate who

has been determined to have presented sufficient evidence of intellectual

disability to proceed to an evidentiary hearing can unilaterally withdraw

the claim that had been properly presented to the courts.

The Commonwealth simply conflates two separate doctrines and two separate

factual scenarios to manufacture a split of authority that does not exist. An

individual’s attempt generally to withdraw a claim on his own and after sufficient

evidence has been presented to raise a genuine question of whether the individual

person categorically cannot be executed (7.e., the issue actually presented here) is

materially different than a procedural default stemming from counsel’s failure to

adequately develop and present the claim in a manner that allows the state court’s

to reach the merits and thus avoid a procedural default (i.e., the issue presented in

each of the cases the Commonwealth claims pose a conflict). The latter scenario deals

with the long-standing procedural default for which there is no dispute and which the

Kentucky Supreme Court still applies to intellectual disability claims. The former

comparison to the amount of time it would take to conduct the evidentiary hearing and render a

decision is likely greater. It would also not further delay post-conviction proceedings because those

proceedings could, if the Commonwealth agrees, proceed simultaneously. And, as to the ironic position

the Commonwealth takes of desiring to proceed to White being able to litigate his innocence claims

that the Commonwealth believes are meritless, it is well-known that innocent intellectually disabled

people are more likely to be implicated and convicted of a crime than non-intellectually disabled people.

So, White’s intellectual disability claim could aid the post-conviction innocence and other claims that

the Commonwealth believes should proceed now without any adjudication first of White’s intellectual

disability.

11

deals with a fully preserved claim with sufficient evidence of intellectual disability to

proceed further. With the former, all courts that have addressed the issue have

reached the same conclusion the Kentucky Supreme Court reached. With the latter,

all courts, including the Kentucky Supreme Court, are also in agreement. Thus, there

is simply no split of authority.

1. No split exists on whether a defendant who falls into a category for

which the death penalty is barred can somehow choose to be subject

to that penalty anyway; all courts that have addressed the issue of

whether a defendant can choose to withdraw a properly presented

intellectual disability claim whereby sufficient evidence in support of

the claim has been presented have ruled that the claim cannot be

withdrawn

Rather than split on the issue, all courts have aligned with Kentucky in holding

evidence of intellectual disability cannot be waived pro se or otherwise ignored once

the claim has been properly presented and is supported with some evidence of

intellectual disability.6 The Commonwealth paints the question broadly-whether an

Eight Amendment right can be waived under any circumstances. To the contrary, the

Kentucky Supreme Court held that a hearing was necessary after it was raised in the

trial court and a fact-finding court found sufficient evidence to warrant a hearing.

Moreover, the Kentucky Supreme Court has not stripped White of all autonomy in

this case, acknowledging that “[i]f, on remand, White persists in expressing

disagreement with his counsel's representation concerning his appeal, he may

6 The Commonwealth’s citation to Pennsylvania law as evidence of a “split of authority” on this

issue is a reach, based on dicta in a case that does not address the issue at hand. See Commonwealth

v. Robinson, 623 Pa. 345, 382-83, 82 A.3d 998, 1020 (2013). In Robinson, the defendant asked the state

court to extend the Atkins bar on execution of the intellectually disabled to a person with traumatic

brain injury. The discussion of Atkins is merely tangential to the overall holding the Supreme Court

has not extended the bar on execution to other classes of defendants. Id. at 1020-21.

12

request an evidentiary hearing regarding his competency to self-represent.” White v.

Commonwealth, 600 S.W.3d 176, 182 (Ky. 2020), citing Commonwealth v. Mason, 130

A.3d 601, 671 (2015). In short, the question the Commonwealth asserts is presented

by Kentucky Supreme Court’s opinion in fact is not presented at all.

Similar to White’s correspondence with the Kentucky Supreme Court,

in Commonwealth v. Mason, Mason wrote the Pennsylvania post-conviction

trial court expressing his desire to waive an intellectual disability claim under

Pennsylvania’s post-conviction relief act (PCRA). Commonwealth v. Mason,

130 A.3d 601, 671 (Pa. 2015). The Pennsylvania Supreme Court held that the

court below erred by acting directly on Appellant's pro se letter, and was

required to instead forward the letter to counsel rather than allow Mason to

deliver a prepared statement in opposition to counsel’s chosen course of

representation. Id. The court then proceeded to hold that a defendant cannot

veto a potentially colorable Atkins claim, “where the very question asking

whether a defendant meets the psychological criteria of ‘intellectually disabled’

for purposes of the Eighth Amendment turns on a complex, diagnostic inquiry

into whether the defendant experienced onset of both sub-average intellectual

functioning as revealed by IQ tests and adaptive functioning deficits based on

standards and definitions adopted in the DSM and AAIDD before the age of

eighteen.” Mason, supra at 670.

Likewise, in Georgia, a defendant wrote the court seeking to withdraw

his intellectual disability claim, and the trial court granted his request. The

13

Georgia Supreme Court reversed and held that the claim could not be waived

because sufficient evidence of intellectual disability to proceed further had

already been provided. Rogers v. State, 575 S.E.2d 879, 882 (Ga. 2003).

The Commonwealth argues Georgia is “internally” inconsistent based on a case

also decided in 2003, Head v. Hill, 277 587 S.E.2d 613, 618 (2003). In Hill, defense

counsel did not request a “guilty but mentally retarded” verdict. Hill “could have

obtained a jury finding on his alleged mental retardation in his original trial ifhe had

asked for one.” Id. at 620. “Instead, he presented expert testimony showing that he

was ‘somewhat slow but not mentally retarded, and argued that he had functioned

admirably well in society and in his family life despite his intellectual shortcomings.”

Id.

Hill is not inconsistent with Rogers. Rogers was sentenced to death prior to the

exemption for intellectually disabled individuals. Rogers initiated state habeas

corpus proceedings by filing a petition seeking a jury trial on the issue of intellectual

disability. Id. At a hearing on his petition, “Rogers presented evidence of mental

retardation, including affidavits of mental health experts who diagnosed him as

mentally retarded and suffering from significant neurological impairment.” Id. at

880-81. The habeas corpus court concluded that a genuine issue of fact existed

regarding Rogers’ mental retardation and granted the writ for the purpose of

conducting a trial to determine whether he was in fact, intellectually disabled. Id. at

881. Unlike Hill, Roger’s counsel did not forego a claim of intellectual disability due

to insufficient proof. Like Kentucky, the Georgia Supreme Court rejected the notion

14

that a defendant could waive a finding of intellectual disability once there was

sufficient credible evidence of JD to create an issue of fact to be determined. See

section 1, supra. The Georgia Supreme Court is consistently applying the same legal

principle — waiver after sufficient evidence of intellectual disability has been

presented- to differing factual situations.

In White’s case, the Kentucky Supreme Court held the same, thereby

demonstrating there is no split among the authority of the few courts that have

addressed the issued while also demonstrating that the rarity by which the

issue arises provides further reason for the Court to pass the opportunity to

now get involved in White’s case again.

2. The cases cited by the Commonwealth in support of allowing a waiver are

factually distinct. In these cases, trial counsel withdrew, or failed to raise,

a defendant’s claim of intellectual disability and there was insufficient

evidence of intellectual disability to warrant a hearing. None involved

whether a pro se defendant asking to withdraw a claim of intellectual

disability and forego a finding on the issue after the court has determined

there was sufficient evidence to require an evidentiary hearing can do so.

There are two critical distinctions between the case at issue and the cases cited

by the Commonwealth. First, in all of the cases cited by the Commonwealth, the

intellectual disability claim, was either never raised or raised and withdrawn by

counsel. Also, in all of these cases, there was insufficient evidence of intellectual

disability to warrant an evidentiary hearing. Moreover, all the cases cited by the

Commonwealth predate Moore I and Moore II.

In Frazier v. Jenkins, trial counsel withdrew a request for an Atkins hearing

based on the advice of two experts who evaluated the defendant’s intellectual

is

functioning and adaptive skills and found he was not intellectually disabled. 770

F.3d 485, 491-92 (6th Cir. 2014). By withdrawing the motion for an Atkins hearing,

Frazier failed to create a full record on the issue and to allow the state-trial-court

judge—the judicial officer with the best sense of Frazier's actual abilities—to decide

whether he was intellectually disabled.

Frazier is distinguishable from White’s case. Trial counsel withdrew the claim,

not the client, after evidence indicated the defendant was not intellectually disabled.

The court noted that “Frazier’s own expert found him not to be mentally retarded”

and “[llawyers are permitted to rely upon qualified experts.” Jd. at 501 [internal

citations omitted].

In White’s case, the claim was raised at sentencing and on direct appeal (with

client’s knowledge) and is supported by “enough evidence to form a reasonable doubt

as to his intellectual capabilities.” White v. Commonwealth, 600 S.W.3d 176, 178 (Ky.

2020). The question is not of defense counsel’s strategy to forego a claim based on lack

of evidence, but whether a client can forfeit an intellectual disability claim once it has

been raised and adequately supported by the record.

In a Virginia case, the defendant’s intellectual disability claims were found to

be waived because he deliberately declined to raise a claim of intellectual disability.

Winston v. Commonwealth, 604 S.E.2d 21, 51 (Va. 2004). Again, this was a strategic

waiver by trial counsel, not a case where counsel had raised intellectual disability at

trial and on direct appeal. Winston simply failed to make an argument as to or offer

16

proof of intellectual disability. Id. Nonetheless, Winston was later granted habeas

relief by federal court.7

Ex parte Blue, cited by the Commonwealth, also dealt with whether an

intellectual disability claim was defaulted when the defendant filed a petition for

habeas subsequent to Atkins, and counsel failed to raise the issue. 230 S.W.3d 151,

162 (Tex. Crim. App. 2007). Neither trial counsel not appellate counsel raised the

issue as well. Blue then raised the issue on a second petition. Id. The court found the

Texas legislature has determined “that the State's interest in the finality of its

judgments justifies the imposition of higher burdens upon the subsequent applicant

who did not avail himself of the opportunity and resources available to him at trial

or in an initial writ.” 230 S.W. 151 at 162.

Notably, the holding in Blue was fact driven, and has been subsequently called

into question. When an applicant raises an Atkins claim for the first time in a

subsequent habeas application, Texas requires “‘a threshold showing of evidence that

would be at least sufficient to support an ultimate conclusion, by clear and convincing

”

evidence, that no rational factfinder would fail to find mental retardation”. Sorto v.

Davis, 859 F.3d 356, 362 (5th Cir. 2017), reh'g granted, opinion withdrawn, 881 F.3d

933 (5th Cir. 2018), and on reh’g, 716 Fed. Appx. 366 (5th Cir. 2018), citing Blue at

163.8 The state court found that was not the case in Blue. The only IQ score, based on

7 See Winston v. Kelly, 784 F. Supp. 2d 623, 634 (W.D. Va. 2011), aff'd sub nom. Winston v. Pearson, 683 F.3d 489

(4th Cir. 2012).

8 The rehearing was on the basis of expert funding, not the intellectual disability determination.

17

incomplete testing, indicated a score between 75 and 80. Blue, 230 S.W. 151 at 162.

As for adaptive deficits, Blue offered “sketchy, anecdotal evidence and opinions” from

family and friends. Id. At 165. Without IQ scores indicative of significant sub-average

intelligence, Blue’s evidence fell short of “evidence that could reasonably support a

firm belief or conviction that [Blue] is mentally retarded.” Id. at 166.

The Kentucky Supreme Court’s holding in White’s case is also distinguishable

from Bowling v. Commonwealth, 163 S.W.3d 361, 368 (Ky. 2005), abrogated by

Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018). Bowling (who had counsel)

“simply did not assert [intellectual disability] at his trial or in his RCr 11.42 motion.”

Id. at 371. Also, unlike White, Bowling failed to make a prima facie showing sufficient

to create a doubt as to whether he was intellectually disabled, as he had prior IQ

scores of 86 and 87 respectively. Id. at 373.

The cases cited as “split of authority” are factually different-as they involve

counsel —rather than a pro se litigant-who alternatively withdrew, or failed to raise

intellectually disability claims.

C. Once this Court imposes a categorical bar abolishing the death penalty

for intellectually disabled inmates, and evidence reasonably indicates the

inmate falls within that category, that bar is not subject to pro se waiver by

the inmate himself.

The Commonwealth argues the question of whether White is intellectually

disabled is a defense which he controls. This position is contrary to well-established

law. This Court upheld the facial constitutionality of the death penalty as a whole

based on the principle that it would not be applied arbitrarily or capriciously. “Capital

punishment must be limited to those offenders who commit ‘a narrow category of the

18

most serious crimes’ and whose extreme culpability makes them ‘the most deserving

of execution.’ Atkins, supra, at 319, 122 S.Ct. 2242.” Roper v. Simmons, 543 U.S. 551,

568, citing Atkins v. Virginia, 536 U.S. 304 (2002). See also Gregg v. Georgia, 428 U.S.

153 (1976).

“The inquiry into our society's evolving standards of decency” has led this

Court to abolish the death penalty as disproportionate for a number of groups and

crimes. Roper v. Simmons, 543 US. at 563.

There are a number of crimes that beyond question are severe in

absolute terms, yet the death penalty may not be imposed for their

commission. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d

982 (1977) (rape of an adult woman); Enmund v. Florida, 458 U.S. 782,

102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (felony murder where **1195

defendant did not kill, attempt to kill, or intend to kill). The death

penalty may not be imposed on certain classes of offenders, such as

juveniles under 16, the insane, and the mentally retarded, no matter

how heinous the crime. Thompson v. Oklahoma, supra; Ford v.

Wainwright, 477 U.S. 399, 106 8.Ct. 2595, 91 L.Ed.2d 335 (1986);

Atkins, supra. These rules vindicate the underlying principle *569 that

the death penalty is reserved for a narrow category of crimes and

offenders.

Roper v. Simmons, 543 U.S. at 568-69.

The Court explained why intellectually disabled criminals must not be

executed.

Mentally retarded persons frequently know the difference between right

and wrong and are competent to stand trial. Because of their

impairments, however, by definition they have diminished capacities to

understand and process information, to communicate, to abstract from

mistakes and learn from experience, to engage in logical reasoning, to

control impulses, and to understand the reactions of others. There is no

evidence that they are more likely to engage in criminal conduct than

others, but there is abundant evidence that they often act on impulse

rather than pursuant to a premeditated plan, and that in group settings

they are followers rather than leaders.

19

Atkins v. Virginia, 536 U.S. at 318 (citations omitted). The Court held that there was

“serious question” whether the execution of intellectually disabled persons

“measurably contributes” to the twin justifications for capital punishment-

retribution and deterrence. Id. at 318-319, citing Enmund, 458 US. at 798.

To whatever extent a categorical bar could be waived, the nature of intellectual

disability is such that once sufficient evidence is presented to believe a death row

inmate falls in this category, he cannot waive that claim. Intellectually disabled

individuals frequently do not “self-identify” as intellectually disabled. “One reason for

the lack of precise data about the number of mentally retarded inmates on death row

is that the mentally retarded themselves struggle to hide their disability, even though

in many cases it is the one thing that might save them from execution.” 9 As one expert

psychologist noted, “Who wants to say they are mentally retarded?”!° Indeed many

individuals would rather “pass.” Since intellectually disabled people are often

ashamed of their own limitations, they may go to great lengths to hide their disability,

fooling those with no expertise in the subject. “They may wrap themselves in a ‘cloak

of competence,’ hiding their disability even from those who want to help them,

including their lawyers.”!! Nonetheless, the Eighth Amendment categorically bars

execution of an intellectually disabled defendant. In light of the colorable evidence of

° https://www.nytimes.com/2000/08/07/us/executing-the-mentally-retarded-even-as-laws-begin-to-

shift.htm]

10 Ta.

11 https‘//www.hrw.org/reports/2001/ustat/ustat0301-01. htm

20

intellectual disability, a hearing on the matter is warranted. Wilson v.

Commonwealth, 381 8.W.3d 180. 183 (Ky. 2012).

People with intellectual disabilities possess “diminished capacities to

understand and process information, to communicate, to abstract from

mistakes and learn from experience, to engage in logical reasoning, to control

impulses, and to understand the reactions of others” People v. Patillo, 185

A.D.3d 46, 46 (N.Y. 2020) citing Atkins, 536 U.S. at 318. Moreover, they may

be “easily confused, highly suggestible, and easy to manipulate.” Jd. And

indeed in this case, the Commonwealth seeks to manipulate White into

believing it is an ally, rather than a person seeking his execution.

The Supreme Court of New York noted that people with intellectual

disabilities are less able to meaningfully assist their counsel. Patillo, 185

A.D.3d at 48, citing Hall v. Florida, 572 U.S. at 709. Even if an intellectually

disabled individual is competent to be tried, “a court must account for his

diminished mental capacity in ensuring that any waiver of constitutional

rights is knowing, intelligent and voluntary.” Id. citing People v. Bradshaw, 18

N.Y.3d 257, 266, 9388 N.Y.S.2d 254, 961 N.E.2d 645 (2011) (trial court was

obliged to “give defendant a thorough explanation” and to ensure that

“defendant fully grasped the nature of this fundamental right that he was

foregoing,” in light of the defendant's background and history of mental

illness). As such, it is impossible to determine whether White’s waiver is

21

knowing, voluntary, and intelligent without holding the evidentiary hearing

on the issue the Kentucky Supreme Court ordered.

D. This case would be a poor vehicle to determine whether a defendant can

waive an Atkins claim.

1. No factual determination after a full hearing in state court has ever

been made about White’s communication with counsel and whether

he desires and is competent to waive counsel.

Even if a death sentenced inmate could waive a categorical bar to the death

penalty, the Court is in no position to make that finding based on the record as it

exists now. Perhaps the most disturbing aspect of the Commonwealth’s argument is

the assertion that based on the record as it exists now, the Court should find White

has already waived the claim that he is intellectually disabled. Despite his letters

after this Court’s remand, White did not object on the record to his attorneys raising

the issue of whether intellectual disability barred a death sentence at trial. He did

not ask the state court to strike the direct appeal briefing that included that issue

nor did he write the Court to complain when his counsel filed the Petition in White I

based in part on this issue.

The Commonwealth accepts at face value White’s assertions about his

communications with counsel and muses he is competent to waive any rights he has.

The Commonwealth tries to put White’s counsel in the unenviable position of either

refuting their client’s allegations in his letters, or, because of attorney-client

privilege, not refuting them thoroughly and risking this Court having an incomplete

22

picture of the communications between White and his counsel. White’s relationship

with his counsel has not been fully fleshed out on the record.

The Kentucky Supreme Court noted, “While we are not a fact-finding court, we

acknowledge White's displeasure with his current and former counsel, as well as his

lack of participation in the proceedings below.” White v. Commonwealth, 600 S.W.3d

at 182. The Kentucky Supreme Court went on the note that on remand to the trial

court White could request a hearing on his right to self-representation. White cannot

waive his intellectual disability claim unless he is competent to waive his right to

counsel and his claim.

“This Court, in holding that a State must provide counsel for an indigent

appellant on his first appeal as of right, recognized the superior ability of trained

counsel in the ‘examination into the record, research of the law, and marshalling of

arguments on [the appellant's] behalf,’ Douglas v. California, 372 U.S., at 358, 83

S.Ct. at 817. Yet by promulgating a per se rule that the client, not the professional

advocate, must be allowed to decide what issues are to be pressed, the Court of

Appeals seriously undermines the ability of counsel to present the client's case in

accord with counsel's professional evaluation.” Jones v. Barnes, 463 U.S. 745, 751

(1983). “There can hardly be any question about the importance of having the

appellate advocate examine the record with a view to selecting the most promising

issues for review. This has assumed a greater importance in an era when oral

argument is strictly limited in most courts—often to as little as 15 minutes—and

when page limits on briefs are widely imposed.” Jones v., 463 U.S. at 752-53.

23

Without a waiver of counsel, White’s appellate attorneys performed as this

Court, and Kentucky Rules of Ethics, expect. Counsel has in no way usurped White’s

right to set the goal of litigation which is to obtain a new trial to prove his innocence.

The Commonwealth presumes While is competent to waive his right to counsel or his

Atkins claim. But no such determination has been made that White is competent to

knowingly and intelligently forfeit that right. This is a far ery from McCoy v.

Louisiana, 138 8S. Ct. 1500, 1507 (2018), which did not address either a defendant

with a colorable intellectual disability claim or a defendant who might have been

incompetent to waive counsel.

To be clear, despite the Commonwealth’s reliance on White’s pro se actions at

trial, the trial court held no hearing comporting with this Court’s requirements in

Faretta v. California, 422 U.S. 806 (1975). In Faretta, the Court held, “The Sixth

Amendment does not provide merely that a defense shall be made for the accused; it

grants to the accused personally the right to make his defense.” Jd. at 819.

For this reason, in order to represent himself, the accused must

‘knowingly and intelligently’ forgo those relinquished benefits. Johnson

v. Zerbst, 304 U.S., at 464—465, 58 S.Ct., at 1023. Cf. Von Moltke v.

Gillies, 332 U.S. 708, 723—724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality

opinion of Black, J.). Although a defendant need not himself have the

skill and experience of a lawyer in order competently and intelligently

to choose self-representation, he should be made aware of the dangers

and disadvantages of self-representation, so that the record will

establish that ‘he knows what he is doing and his choice is made with

eyes open.’ Adams v. United States ex rel. McCann, 317 US., at 279, 63

S.Ct., at 242.

Id. at 835

24

No finding was made that White could waive counsel in whole or in part and

represent himself at trial. No finding was made by the Kentucky Supreme Court

during the direct appeal that White has waived his right to counsel.

If White had written the letters from May 21, 2019 to January 24, 2020, to the

trial court, that court, under Kentucky law applying the baseline requirements of this

Court in Faretta, would have been required to hold a hearing to determine what

White’s desires were regarding counsel and whether he could represent himself.

2. No evidentiary hearing has been held on the ultimate issue of

whether White is intellectually disabled.

Whether White, a death sentenced person, can waive a colorable claim of

intellectual disability obviously turns on whether he is intellectually disabled. That

finding has not been made under the current standards dictated by the Eighth and

Fourteenth Amendments. The Kentucky Supreme Court, based on the record before

it, remanded for a hearing to determine that very issue. Despite the attempts of the

Commonwealth to read White’s mind, any number of outcomes are possible at that

hearing. White will have new counsel and may communicate more productively with

them. White may change his mind and fully participate in the litigation of this issue.

He might at least acquiesce to the hearing. The Commonwealth assumes White must

participate in testing to press his claim- that is not necessarily true. Evidence already

exists of his intellectual disability. The trial court might find White is not

intellectually disabled.

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