Petition for Writ of Certiorari — Ernest Johnson, Petitioner v. Paul Blair, Warden
Supreme Court briefOct 4, 2021
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Capital Case – Execution October 5, 2021 at 6:00 p.m. Central
No. 21-______
In The Supreme Court Of The United States
ERNEST JOHNSON,
Petitioner,
v.
PAUL BLAIR,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF MISSOURI
PETITION FOR WRIT OF CERTIORARI
*LAURENCE E. KOMP
Capital Habeas Unit, Chief
JEREMY S. WEIS
Assistant Federal Public Defender
PAULA K. HARMS
Assistant Federal Public Defender
Federal Public Defender
Western District of Missouri
1000 Walnut, Suite 600
Kansas City, MO 64106
laurence_komp@fd.org
(816) 471-8282
COUNSEL FOR PETITIONER
*Counsel of Record
CAPITAL CASE – EXECUTION DATE 10/5/2021 at 6:00 p.m. Central
QUESTIONS PRESENTED
The State of Missouri is set to execute an individual whom every evaluating
expert following clinical diagnostic requirements has concluded meets the criteria for
intellectual disability. The Missouri Supreme Court failed to understand and apply
current medical standards in assessing intellectual disability, in direct contradiction
of the Eighth Amendment and this Court’s precedent as set forth in Moore v. Texas,
137 S. Ct. 1039 (2017) (Moore I), and Moore v. Texas, 139 S. Ct. 666 (2019) (Moore
II).
1. May a state add a diagnostic criterion to the definition of intellectual
disability requiring a causal connection between subaverage intellectual
functioning and adaptive deficits thereby ignoring Atkins and its
progeny?
2. After Moore I and Moore II rejected the Briseno factors for assessing
adaptive deficits as relying on unscientific, layperson stereotypes of
intellectual disability rather than on clinical criteria, and
overemphasizing adaptive strengths when the inquiry solely demands
evidence of adaptive deficits, may a state rely on evidence of perceived
adaptive strengths to deny the subaverage intellectual functioning
prong?
Since before the Birth of our Nation, juries have held a favored role in cases
where death is the possible sentence. It is well-settled that a jury must unanimously
find every factor that exposes a defendant to heightened punishment, such as the
possibility of a death sentence in a capital case. Contrary to this well-settled principle,
Missouri procedures for determining intellectual disability permit a single juror to
overrule eleven others to expose the defendant to the death penalty. Nonetheless, in
denying Mr. Johnson’s most recent petition for habeas corpus, the Missouri Supreme
Court recognized for purposes of Missouri law that the Atkins determination is an
eligibility question. This presents the following question:
1. Under the Sixth and Eighth Amendments, may a single hold-out
juror subvert the will of the jury on an eligibility question such as
intellectual disability and render someone subject to the death
penalty?
i
2. Is an intellectual disability determination in a capital case where the
jury is instructed it must find unanimously that a defendant is not
eligible for the death penalty, where the jury rendered no verdict and
was not polled but simply instructed to move on to the sentencing
question, sufficiently reliable under the Eighth Amendment to
subject a defendant whom all evaluating and testifying experts agree
meets the criteria for intellectual disability to preclude execution?
ii
PROCEEDINGS DIRECTLY RELATED TO THIS CASE
State v. Johnson, Thirteenth Circuit Court of Missouri, Boone County, Div. I, Case
No. 13RO19441558-01. Judgment entered June 21, 2006.
State v. Johnson (Johnson I), 968 S.W.2d 686 (Mo. banc 1998). Docket No. 78282.
Judgment entered May 26, 1998.
State v. Johnson (Johnson II), 22 S.W.3d 183 (Mo. banc 2000). Docket No. SC 81596.
Judgment entered August 1, 2000.
Johnson v. State (Johnson III), 102 S.W.3d 535, 537 (Mo. banc 2003). Docket No. SC
84502. Judgment entered April 22, 2003.
State v. Johnson (Johnson IV), 244 S.W.3d 144, 155-56 (Mo. banc 2008). Docket No.
SC 87825. Judgment entered February 19, 2008.
Johnson v. Steele, No. 11–08001–CV–W–DGK, 2013 WL 625318 (W.D. Mo. 2013).
Docket No. 11-08001-CV-W-DGK. Judgment entered February 20, 2013.
State ex rel. Johnson v. Blair, No. SC 99176, 2021 WL 3887574 (Mo. banc Aug. 31,
2021). Docket No. SC 99176. Judgment entered October 1, 2021.
iii
RULE 29.6 STATEMENT
All parties to the proceedings are named in the caption of the case.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
PROCEEDINGS DIRECTLY RELATED TO THIS CASE ........................................ iii
LIST OF PARTIES ....................................................................................................... iv
TABLE OF CONTENTS ................................................................................................ v
TABLE OF AUTHORITIES ........................................................................................ vii
TABLE OF APPENDIX ................................................................................................ ix
OPINIONS BELOW ...................................................................................................... 1
JURISDICTIONAL STATEMENT ............................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS............................................. 2
STATEMENT OF THE CASE....................................................................................... 2
I.
INTRODUCTION. .................................................................................... 2
II.
PROCEDURAL HISTORY. ...................................................................... 4
III.
OVERWHELMING EVIDENCE OF INTELLECTUAL
DISABILITY. ............................................................................................ 4
IV.
FLAWED JURY INSTRUCTIONS. ....................................................... 10
REASONS FOR GRANTING THE WRIT .................................................................. 10
I.
Mr. Johnson is Ineligible for the Death Penalty Because He is
Intellectually Disabled as Defined by Clinical Standards Relied
on by this Court in Atkins, and its Progeny. The Missouri
Supreme Court opinion is out of step with clinical standards and
the science of intellectual disability, recently emphasized by this
Court in Moore I, 137 S. Ct. 1039 (2017) and Moore II, 139 S. Ct.
666 (2019). .............................................................................................. 10
v
A. The Missouri Supreme Court required Mr. Johnson to
demonstrate causation between the first and second
prongs of the diagnosis, at odds with well-established
clinical practice and imposing an additional element to
the definition of intellectual disability inconsistent with
either the clinical or state statutory definitions......................... 14
B. Overreliance on the facts of the crime to deny Atkins
protection, at odds with Moore I and II. ..................................... 21
C. The Missouri Supreme Court misapprehended the
significance and consistency in Mr. Johnson’s IQ scores
and ignored objective evidence which indicated that Mr.
Johnson was not malingering during testing with the
State’s technician. ........................................................................ 25
D. Interpreting the Missouri statute to require a diagnosis of
intellectual disability prior to the age of 18 violates the
Eighth and Fourteenth Amendments. ........................................ 28
II.
Missouri’s Intellectual Disability Instructions Violated Mr.
Johnson’s Sixth And Eighth Amendment Rights. ................................ 30
CONCLUSION............................................................................................................. 37
vi
TABLE OF AUTHORITIES
CASES
Page(s)
Andres v. United States, 333 U.S. 740 (1948) ............................................................ 32
Atkins v. Virginia, 536 U.S. 304 (2002) ...............................................................passim
Brumfield v. Cain, 576 U.S. 305 (2015) ................................................................ 12, 23
Brumfield v. Cain, 808 F.3d 1041 (5th Cir. 2015) ................................................ 22, 23
Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014), ....................................................... 23
Brumfield v. Cain, 854 F.Supp.2d 36 (M.D. La. 2012) ............................................... 23
Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 34
Hall v. Florida, 572 U.S. 701 (2014)................................................................ 12, 13, 34
Hooks v. State, 126 P.3d 636 (Okla. Ct. Crim. App. 2005) ........................................ 22
Hurst v. Florida, 577 U.S. 92 (2016) ........................................................................... 33
Jackson v. Payne, --- F.4th ---, 2021 WL 3573012 (8th Cir. Aug. 13, 2021) ........ 16, 17
Johnson v. State, 102 S.W.3d 535 (Mo. banc 2003) ...................................................... 4
Johnson v. State, 244 S.W.3d 144 (Mo. 2008)......................................................... 4, 33
Ring v. Arizona, 536 U.S. 584 (2002) .................................................................... 33, 34
McKoy v. North Carolina, 494 U.S. 433 (1990) .......................................................... 36
Mills v. Maryland, 486 U.S. 367 (1988) ...................................................................... 36
Montgomery v. Louisiana, 577 U.S. 190 (2016).......................................................... 35
Moore v. Texas, 137 S. Ct. 1039 (2017) ................................................................passim
Moore v. Texas, 139 S. Ct. 666 (2019) ..................................................................passim
Muncy v. Apfel, 247 F.3d 728 (8th Cir. 2001) ............................................................. 30
Newman v. Harrington, 726 F.3d 921 (7th Cir. 2013). .............................................. 27
Oats v. State, 181 So.3d 457 (Fla. 2015) ..................................................................... 29
Ramos v. Louisiana, 140 S. Ct. 1390 (2020) ..................................................... 3, 31, 32
Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019)......................................................... 27
State ex rel. Johnson v. Blair, --- S.W.3d ---, 2021 WL 3887574
(Mo. banc Aug. 31, 2021) ......................................................................................passim
United States v. Nelson, 419 F.Supp.2d 891 (E.D. La. 2006) .................................... 27
United States v. Wilson, 170 F.Supp.3d 347 (E.D. N.Y. 2016) ............................ 16, 29
Van Tran v. Colson, 764 F.3d 594, 608-09 (6th Cir. 2014)......................................... 22
Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010) ................................................................. 5
Williams v. Florida, 399 U.S. 78 (1970) ...................................................................... 32
Statutes and Rules
28 U.S.C. § 1257 ............................................................................................................. 2
Sixth Amendment ................................................................................................passim
Eighth Amendment .............................................................................................passim
Fourteenth Amendment ......................................................................................passim
vii
Sup. Ct. R. 10 (c) ........................................................................................ 21, 25, 30, 37
Other Sources
American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders (5th ed. 2013).......................................................................passim
American Association on Intellectual and Developmental Disabilities,
Intellectual Disability: Definition, Classification, and Systems of Supports
(12th ed. 2021) ......................................................................................................passim
Edward Polloway, ed., The Death Penalty and Intellectual Disability,
(AAIDD) (2015) ............................................................................................................ 27
Tasse, Marc J. and Blume, John H., Intellectual Disability and the
Death Penalty, Current Issues and Controversies, (2018). ....................................... 24
viii
TABLE OF APPENDIX
Missouri Supreme Court Opinion – 8/31/2021 ............................................ Appendix A
Missouri Supreme Court Rehearing Ruling – 10/1/2021 ............................ Appendix B
Letter from Dr. S. Appelbaum, MD ............................................................. Appendix C
Intellectual Developmental Disorder
(Intellectual Disability Text Updates) ......................................................... Appendix D
Dr. Martell’s Report ...................................................................................... Appendix E
Dr. Heisler’s Report ...................................................................................... Appendix F
Deposition of Debra Turner .......................................................................... Appendix G
Jury Instructions ..........................................................................................Appendix H
Proposed Jury Instructions ........................................................................... Appendix I
Dr. Novick-Brown’s Report ............................................................................Appendix J
School Records .............................................................................................. Appendix K
Relevant Portions of Transcript ................................................................... Appendix L
Rule 91 ......................................................................................................... Appendix M
Motion for Rehearing ....................................................................................Appendix N
Diagnostic Center Report Dated June 15, 1979 .......................................... Appendix O
ix
Capital Case – Execution October 5, 2021 at 6:00 central
No. 21-______
In The Supreme Court Of The United States
ERNEST JOHNSON,
Petitioner,
v.
PAUL BLAIR,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF MISSOURI
PETITION FOR WRIT OF CERTIORARI
Petitioner Ernest Johnson respectfully prays that a Writ of Certiorari issue to
review the opinion entered by the Missouri Supreme Court.
OPINIONS BELOW
The Missouri Supreme Court’s decision denying state habeas corpus relief is
reported at State ex rel. Johnson v. Blair, --- S.W.3d ---, 2021 WL 3887574 (Mo. banc
Aug. 31, 2021). App. A. On October 1, 2021, the Missouri Supreme Court denied
Petitioner Johnson’s request for rehearing. App. B. Mr. Johnson filed a state petition
for habeas corpus in the Missouri Supreme Court, pursuant to Rule 91 of the Missouri
Supreme Court Rules. (App. M).
1
JURISDICTIONAL STATEMENT
The decision of the Missouri Supreme Court became final upon the denial of
the rehearing request on October 1, 2021. This Court has jurisdiction under 28 U.S.C.
§ 1257(a) to review this Petition.
CONSTITUIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the Sixth Amendment to the Constitution of the United
States, which reads in pertinent part: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State… .”
This case involves the Eighth Amendment to the Constitution of the United
States, which reads in pertinent part: “… nor cruel and unusual punishments
inflicted.”
This case involves the Fourteenth Amendment, Sec. 1, to the Constitution of
the United States, which reads in pertinent part: “nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
STATEMENT OF THE CASE
I.
INTRODUCTION
Petitioner Ernest Johnson is a 61-year-old man with intellectually disability
facing imminent execution. Mr. Johnson petitions this Court to grant certiorari
because the Missouri Supreme Court’s recent ruling violates the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution. State ex rel. Johnson v.
Blair, No. SC 99176, 2021 WL 3887574 (Mo. banc Aug. 31, 2021). (App. A-B).
2
This is not a close case – Mr. Johnson is intellectually disabled. In spite of
overwhelming evidence of consistently low IQ scores, consistently poor academic
achievement, and a lifetime of evidence illustrating adaptive behavior deficits, the
Missouri Supreme Court ignored the intellectual disability rulings of this Court and
relied on lay stereotypes about the intellectually disabled that are at odds with the
clinical science governing the diagnosis, in direct contradiction to this Court’s
holdings in Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore I), and Moore v. Texas, 139
S. Ct. 666 (2019) (Moore II).
In addition, the jury instructions on intellectual disability, an eligibility
determination pursuant to Missouri law (App. H, p. 21), allowed a single hold-out
juror to decide Mr. Johnson’s death penalty eligibility, thus violating his Sixth
Amendment right to a unanimous jury verdict. “This Court has long explained that
the Sixth Amendment right to a jury trial is ‘fundamental to the American scheme of
justice,’” and this fundamental right has always “included a right to a unanimous
verdict.” Ramos v. Louisiana, 140 S. Ct. 1390, 1397-1402 (2020). Not only was Mr.
Johnson denied a fundamental right, but the jury instructions used in his case are
those still in use when a jury needs to render an intellectual disability finding in
capital cases in Missouri. Thus, there remains a great risk that numerous
intellectually disabled Missouri defendants will be deprived the fundamental right to
a unanimous jury verdict when facing this country’s most serious and irreparable
punishment, death – a single juror makes that determination in Missouri.
3
II.
PROCEDURAL HISTORY
Mr. Johnson was convicted of first-degree murder in Missouri state court in
1995. In 2003, after this Court’s ruling in Atkins v. Virginia, 536 U.S. 304 (2002), Mr.
Johnson was granted a resentencing to provide evidence of his intellectual disability.
Johnson v. State (Johnson III), 102 S.W.3d 535 (Mo. banc 2003). Even though the
State presented no expert testimony to contradict the defense experts that opined Mr.
Johnson was intellectually disabled, the jury recommended death. However, the jury
was provided unconstitutional and misleading instructions that enabled a single
holdout juror to prevent them from finding that Mr. Johnson was intellectually
disabled. The resentencing was appealed on other grounds, and Mr. Johnson was
denied relief. State v. Johnson (Johnson IV), 244 S.W.3d 144 (Mo. banc 2008).
Mr. Johnson filed a state habeas petition and the Missouri Supreme Court
reviewed on the merits his claim of intellectual disability. State ex rel. Johnson v.
Blair, No. SC 99176, 2021 WL 3887574 (Mo. banc Aug. 31, 2021). (App. B, pp. 8-19).
The court also rejected the jury instruction claim – but noted Atkins was an eligibility
factor. Id. 19-20. Mr. Johnson filed a timely rehearing request. (App. N). The Missouri
Supreme Court denied that request on October 1, 2021. (App. B).
III.
OVERWHELMING EVIDENCE OF INTELLECTUAL DISABILITY.
Mr. Johnson was born intellectually disabled. His disability has consistently
been recognized by those close to him, beginning with his teachers at an early age.
Mr. Johnson’s IQ has been tested on numerous occasions throughout his life,
beginning when he was only 8 years old. His IQ scores have been remarkably
4
consistent throughout his life with eight of the nine full-scale IQ tests within the
subaverage intellectual functioning range. Covering five decades and multiple test
administrators in a variety of settings, Mr. Johnson’s lifetime test scores break down
as follows:
Test/Test Date
FSIQ
Obtained
WISC
1968
77
WISC
1972
63
WAIS-R
1994
78
WAIS-R
1995
84
WAIS-III
2003
67
WAIS-III
2004
67
WAIS-III
2008
70
WAIS-III
2009
71
WAIS-IV
2019
70
Lifetime Average 71.9
Mid-Year Norm
Date
1948
20 years
1948
24 years
1978
17 years
1978
17 years
1995
8 years
1995
9 years
1995
13 years
1995
14 years
2007
12 years
Flynn
Adjustment
Corrected
FSIQ
-6.0
71.0
-7.2
55.8
-5.1
72.9
-5.1
78.9 1
-2.4
64.6
-2.7
64.3
-3.9
66.1
-4.2
66.8
-3.6
66.4
67.4
On academic achievement tests administered during his elementary school
years, Mr. Johnson scored reliably in the bottom percentiles in every single area:
1 This sole outlier score was noted by the court-appointed competency expert to “be tainted somewhat
by the fact that 5 to 6 months prior to that testing, he was also given the same test.” 3rd PCR Exh. 57
at 6; see also Wiley v. Epps, 625 F.3d 199, 222 n.1 (5th Cir. 2010) (explaining that the practice effect
occurs “when a subject who is tested more than once generally will do better on subsequent tests than
on the first test.”). Thus, even this score when adjusted for testing effect falls within the standard error
of measurement.
5
Grade
Grade 2
Grade 3
Grade 4
Grade 3
Grade 5
Grade 7
Grade 9
Date
April 1969
April 1970
April 1971
April 1972
April 1973
April 1974
October 1975
Reading
1% (1.0)
2% (1-5)
1% (1-6)
29% (3-1)
2% (2-8)
7%
2%
Math
*
4% (2-4)
*
*
2% (3-4)
8%
21%
Language Arts
*
9% (2-4)
2% (2-4)
13% (2-5)
2% (2-9)
2%
6%
Mr. Johnson attended a segregated school as a young child, and then
transitioned to an integrated school for the rest of his education. (App. G, p. 4). He
was held back three times, in second and third grade, and in his freshman year in
high school. (App. E, p. 39; App. L, p. 3). He dropped out of school in his freshman
year, during his second attempt at passing. Id. He was placed in special education
classes from fourth through eighth grade. (App. L, p. 2). His adult IQ scores were
remarkably consistent with his childhood scores, illustrating a case of “convergent
validity” over the course of 51 years of IQ testing. (App. E, p. 30).
At resentencing, his teachers testified regarding their observations of Mr.
Johnson’s intellectual disability during the developmental period. Robin Seabaugh
was hired by the Charleston school district as the teacher for the intellectually
disabled. (App. L, p. 2). She taught Mr. Johnson at age 15, in a freshman
developmental reading class “specifically for students who couldn’t read and students
who struggled in the regular classroom.” Id. Because Mr. Johnson was black where
he was placed was impacted, school districts at that time were put under pressure
due to federal mandates to “only have a certain percentage of the enrollment in the
special education classes and a certain percentage of blacks in special education
6
classes.” Id. at 3. Mr. Johnson’s school district was pressured to “mainstream” special
education kids by putting them in regular classes. Id. at 5. Mr. Johnson was still
placed on the “basic track” for “slower-ability kids.” Id. at 3. Even in those classes,
Mr. Johnson “didn’t do well at all.” Id. When Ms. Seabaugh attempted to characterize
Mr. Johnson as a “mentally retarded” child, the prosecutor objected and this objection
was sustained. Id. Mr. Johnson’s reading level at age 15 was at 2.1, between the
second and third grade level. Id. at 3-4. She characterized his intelligence as “very
low.” Id. at 4.
Steven Mason taught Mr. Johnson in art class when he had to repeat ninth
grade. Id. at 6. He testified that Mr. Johnson could not “understand the instructions
and he pretty much had a hard time doing everything he tried to do in class.” Id. He
had a specific memory of tasking Mr. Johnson with something very simple: taking a
ball of clay and rolling it on the table to make a coil. Id. He testified that “90 percent
of my students, do that the first time.” Id. Mr. Johnson struggled “with that every
time. He never did, couldn’t get it. He’d rub it and mash it too hard and it would flop.”
Id. When he would ask Mr. Johnson why he was struggling, he’d have a “I don’t know
what you’re talking about” blank look on his face. (App. L, p. 6). Mr. Johnson could
not read the instructions provided for the assignments. Id. He could not even
accomplish a basic task like using a ruler or compass. Id. at 7. The children were
tasked with taking notes on art history and Mr. Johnson’s folder of notes was always
blank. Id. When tested, he would have three or four wrong answers and the rest would
7
be blank. Id. He was not a behavioral problem in class, but Mr. Johnson could not
complete a single project and received an F in art. Id.
Deborah Turner’s deposition was admitted at Mr. Johnson’s resentencing.
(App. L, p. 1). She worked at the segregated school Mr. Johnson attended as a child.
(App. G, p. 4). The black children were given hand-me down books from the all-white
school and conditions at the school were very poor. Id. She recalled that as a child in
first or second grade, Mr. Johnson was “very shy, very slow” and a “withdrawn child.”
Id. at 5. She recalled that he could not keep up with the average students and worked
below his grade level. Id. at 17. He was simply “a child that could not grasp very
quickly.” Id. at 18. Even when given special attention, and going over things over and
over, Mr. Johnson “could not pick up.” Id.
A 1979 report from the Missouri Department of Corrections notes that on their
own testing, Mr. Johnson was “barely able” to read the sixth-grade reading level
material provided and the report notes the childhood IQ score of 70. (App. O). A
corrections case worker described Mr. Johnson as “very childlike and unintelligent.”
Id.
In his state habeas corpus petition, Mr. Johnson submitted a report from Dr.
Daniel Martell, another clinician who diagnosed Mr. Johnson with intellectual
disability. (App. E, pp. 1-63). After considering objective measures of adaptive
behavior, and administering another test of IQ, Dr. Martell opined that Mr. Johnson
meets the criteria for the diagnosis of intellectual disability. Id. at 62. Also notable is
the fact that Mr. Johnson’s mother and brother are also intellectually disabled, with
8
his brother’s intellectual disability of severity that he was institutionalized most of
his life. Id. at 12. Intellectual disability runs in families and having a parent or sibling
with the disorder significantly increases its likelihood. Id. Mr. Johnson also has Fetal
Alcohol Spectrum Disorder (FASD), which is the leading risk factor for intellectual
disability. Id. at 13.
The state has never called an expert to testify in any proceeding that Mr.
Johnson is not intellectually disabled. In denying Mr. Johnson relief in his state
habeas petition, the Missouri Supreme Court relied upon the report of a nontestifying expert that was never submitted before the jury at resentencing. (App. A,
pp. 11-12, 18).
The opinion of the Missouri Supreme Court violates clinical practice and the
holdings of this Court. Dramatically, the court created a new-diagnostic-criteria to
find intellectual disability, requiring a causative relationship between the
intellectual functioning prong of the diagnosis and the adaptive behavior prong.
Further, ignoring this Court’s admonition in Moore I and Moore II, the court relied
on the facts of the crime, similar to the unconstitutional Briseno factors, to deny Mr.
Johnson the protection of Atkins. As a result, the court ignored Mr. Johnson’s
consistent history of IQ scores and achievement tests, as well as teacher testimony,
that demonstrate subaverage intellectual functioning. Finally, the court required a
diagnosis of intellectual disability during the developmental period rather than
simply an on-set of the condition during the developmental period.
9
IV.
FLAWED JURY INSTRUCTIONS.
The instructions conveyed the jury must “unanimously find” that Mr. Johnson
had proven he was intellectually disabled by a preponderance of the evidence. (App.
H, p. 6). Jury Instructions #7, 11, 12, 16, 17, and 21, reiterated the unanimity
requirement: “[i]f you did not unanimously find by a preponderance that the
defendant is mentally retarded. . . .” Id. at 7, 12, 14, 19, 21, 25. The verdict forms
reiterated that the jury must find unanimously Mr. Johnson had proven intellectual
disability. Id. at 31, 35, 39. Jury instructions submitted by the defense, which would
have instructed the jury that the State had the burden of proving Mr. Johnson was
not intellectually disabled, beyond a reasonable doubt, were rejected. (App. I, pp. 12, 4, 6, 8-9, 10-13). There is no signed verdict form directly addressing the jury’s
finding on the intellectual disability question. The instructions require an automatic
progression to the capital weighing question if a single juror did not believe Mr.
Johnson was intellectually disabled.
REASONS FOR GRANTING THE WRIT
I.
Mr. Johnson Is Ineligible For The Death Penalty Because He Is Intellectually
Disabled As Defined By Clinical Standards Relied On By This Court In Atkins,
And Its Progeny. The Missouri Supreme Court Opinion Is Out-Of-Step With
Clinical Standards And The Science Of Intellectual Disability, Recently
Emphasized By This Court In Moore I, 137 S. Ct. 1039 (2017) And Moore II,
139 S. Ct. 666 (2019).
In Atkins, this Court prohibited the execution of persons with intellectual
disability under the Eighth Amendment’s prohibition against cruel and unusual
punishment. Atkins, 536 U.S. at 321. This Court recognized that doing so serves
neither of the recognized purposes of capital punishment: retribution and deterrence.
10
Unless the death penalty “measurably contributes to one or both of these goals, it is
nothing more than the purposeless and needless imposition of pain and suffering, and
hence an unconstitutional punishment.” Atkins, 536 U.S. at 318 (internal quotations
omitted).
In setting forth the ban, this Court referred to the definitions of intellectual
disability from the American Association on Intellectual and Developmental
Disabilities (AAIDD) and the American Psychiatric Association (APA). Id. at 309, n.
3. This Court noted three diagnostic criteria:
[C]linical definitions of mental retardation require not only subaverage
intellectual functioning, but also significant limitations in adaptive
skills such as communication, self-care, and self-direction that became
manifest before age 18.
Atkins, 536 U.S. at 318. 2
2 The current definition of intellectual disability from the DSM-5 has three diagnostic criteria and
states:
Intellectual disability (intellectual developmental disorder) is a disorder with onset
during the developmental period that includes both intellectual and adaptive
functioning deficits in conceptual, social, and practical domains. The following three
criteria must be met: (a) Deficits in intellectual functions, such as reasoning, problem
solving, planning, abstract thinking, judgment, academic learning, and learning from
experience, confirmed by both clinical assessment and individualized, standardized
intelligence testing. (b) Deficits in adaptive functioning that result in failure to meet
developmental and sociocultural standards for personal independence and social
responsibility. Without ongoing support, the adaptive deficits limit functioning in one
or more activities of daily life, such as communication, social participation, and
independent living, across multiple environments, such as home, school, work, and
community. (c) Onset of intellectual and adaptive deficits during the developmental
period.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, p. 38 (5th
ed. 2013) (DSM-5). The AAIDD has three diagnostic criteria and defines intellectual disability as:
11
Since Atkins, this Court has consistently reinforced the necessity of clinical
criteria for an accurate determination of whether someone is intellectually disabled.
In Hall v. Florida, 572 U.S. 701 (2014), this Court presented the question of “how
intellectual disability must be defined in order to implement these principles and the
holding of Atkins.” Id. Hall further noted it is unsurprising that “this Court, state
courts, and state legislatures consult and are informed by the work of medical experts
in determining intellectual disability.” Id. In Hall, the Supreme Court repeatedly
referred to medical journals to guide the Court’s analysis of the appropriate way to
evaluate the use of IQ scores. See generally, Hall, supra.
In Brumfield v. Cain, 576 U.S. 305 (2015), this Court considered whether an
IQ score of 75 was inconsistent with a finding that the defendant was intellectually
disabled. The Court held that a score of 75 was “entirely consistent with intellectual
disability.” Id. at 314. In so concluding, the Court relied on expert opinions and thirdparty sources such as the AAMR as well as the DSM-IV. The Court in Brumfield thus
reemphasized the Court’s reliance on experts in the field of intellectual disability to
guide the Court’s jurisprudence on this difficult subject.
This Court recently addressed the scope of Atkins in Moore I, 137 S.Ct. 1039.
In Moore I, this Court evaluated Texas’s Briseno factors for determining intellectual
ID is characterized by significant limitations both in intellectual functioning and in
adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This
disability originates during the developmental period, which is defined operationally
as before the individual attains age 22.
American Association on Intellectual and Developmental Disabilities, Intellectual Disability:
Definition, Classification, and Systems of Supports, p. 13 (12th ed. 2021) (AAIDD-12). The AAIDD was
formerly known as the American Association on Mental Retardation (AAMR).
12
disability. Id. at 1048. The Court rejected the Briseno factors because the factors were
based on outdated medical standards resulting in the “unacceptable risk that persons
with intellectual disability will be executed.” Moore I, 137 S.Ct. at 1044 (quoting Hall,
572 U.S. at 704). This Court noted state courts must “consider other evidence of
intellectual disability where an individual’s IQ score, adjusted for the test’s standard
error, falls within the clinically established range for intellectual-functioning
deficits.” Id. While the state court in Moore I considered adaptive functioning, it did
so in a manner inconsistent with the clinical standards.
The state court improperly relied on Mr. Moore’s adaptive strengths to
determine he did not meet the requirements for intellectual disability. Instead, the
medical community relies on an individual’s adaptive deficits. Id. at 1050. The state
court relied on Mr. Moore’s life on the streets, his ability to mow lawns, and his
playing pool for money as evidence he was not intellectually disabled. Id. The state
court also relied on his relative improvement once he was imprisoned. Id. This Court
rejected that approach relying on the medical and clinical standards. This Court
noted that the medical community cautions against “reliance on adaptive strengths
developed “‘in a controlled setting,’” such as a prison. Id. (quoting DSM-5, at 38). This
Court ultimately held the state court’s reliance on the outdated Briseno factors
hindered the proper evaluation of Mr. Moore, resulting in a significant risk an
intellectually disabled person will be put to death.
The development of intellectual disability jurisprudence since Atkins serves
only to strengthen the evidence of Mr. Johnson’s intellectual disability diagnosis.
13
Reliance on the clinical evaluations and accepted medical standards demonstrates
Mr. Johnson’s clinical diagnosis of intellectual disability to be correct and undercuts
any argument to the contrary. Indeed, as set forth more fully below, the limited
evidence casting doubt on Mr. Johnson’s intellectual disability diagnosis represents
a rejection of medical and clinical standards essential to this Court’s repeated
mandates.
The Missouri Supreme Court decision contains several fundamental flaws that
put it at odds with both the clinical standards governing diagnosis and this Court’s
pronouncements in Moore I, 137 S. Ct. 1039 and Moore II, 139 S. Ct. 666. Mr. Johnson
requests that his case be summarily reversed and remanded to the Missouri Supreme
Court for the proper application of these precedents so that his intellectually
disability can be reliably and fairly determined by reference to the science of
intellectually disability, and not by reference to lay stereotypes at odds with clinical
practice.
A. The Missouri Supreme Court required Mr. Johnson to demonstrate
causation between the first and second prongs of the diagnosis, at odds with
well-established clinical practice and imposing an additional element to the
definition of intellectual disability inconsistent with either the clinical or
state statutory definitions.
Contrary to Atkins, the DSM-5, the AAIDD, 12th Edition, and Missouri’s
Statute, the Missouri Supreme Court created a fourth diagnostic criterion to
determine intellectual disability. This Court noted that there are three diagnostic
criteria to determine whether someone is intellectually disabled. Atkins, 536 U.S. at
318. The Missouri Supreme Court improperly created a fourth diagnostic criterion.
14
The Missouri Supreme Court purported to rely on the DSM-5 to guide its
decision, but in doing so it misinterpreted the text of the DSM-5 in a way that imposed
an additional evidentiary burden unsupported by the clinical definitions and even the
Missouri statutory definition. The court interpreted the DSM-5 in a way that required
Mr. Johnson to prove causation between his intellectual disability and his adaptive
deficits: “[i]n essence, adaptive deficits must be caused by intellectual functioning.”
App. A, p. 13; see also id. at 14 (“…suffer from a lack of causal connection to his alleged
impaired intellectual functioning.”); Id. at 16 (“this Court finds Johnson failed to
prove a causal connection between his poor academic performance and his alleged
intellectual impairment.”); Id. at 17 (“Johnson again does not demonstrate a causal
connection between these facts and his alleged intellectual impairment.”); Id. at 1819 (“Criminal behavior, absent a causal connection to intellectual impairment,
however, does not support intellectual disability.”)
The Missouri Supreme Court relied on a sentence in the DSM-5 stating: “[t]o
meet diagnostic criteria for intellectual disability, the deficits in adaptive functioning
must be directly related to the [person’s] intellectual impairments[.]” DSM5 at 37;
App. A, p. 13. The court then imposed a burden on Mr. Johnson to “provide enough
evidence to prove the alleged deficits are related to his alleged deficits in intellectual
functioning.” App. A, p. 13 (citing DSM-5 at 38). The court misinterpreted the DSM5 and the burdens on the intellectually disabled to prove the causal relationship.
Imposing an additional diagnostic criterion makes Missouri an outlier because
clinical requirements reject the imposition of a fourth criterion based on such a causal
15
connection. “Intellectual functioning and adaptive behavior are distinct and separate
constructs, which are only moderately correlated. Equal weight and joint
consideration are given to intellectual functioning and adaptive behavior diagnosis of
ID.” AAIDD, 12th Edition, p. 33. The AAIDD describes requiring a causal connection
as a “thinking error:”
This initial positioning has led to two additional thinking errors. The first
is that limitations in intellectual functioning cause the limitation in
adaptive behavior. This error in thinking is refuted by three facts: (1) the
relation between intellectual functioning and adaptive behavior as
always been expressed historically and consistently as correlational, not
causative; (2) there is only a low to moderate statistical correlation
between intelligence and adaptive behavior scores; and (3) there is no
empirical evidence to support inserting a causal interpretation between
the two.
Id. at 34 (citations omitted from original).
The DSM-5 does not require Mr. Johnson to prove causation. In United States
v. Wilson, 170 F.Supp.3d 347 (E.D. N.Y. 2016), the court rejected a causation
requirement: “the Government’s approach would transform the standard for
intellectual disability into an impossible test: In order for a defendant to show that
he was intellectually disabled, he would need to prove that he satisfied the criteria
because he was intellectually disabled.” Id. at 371.
In Jackson v. Payne, --- F.4th ---, 2021 WL 3573012, at *7 (8th Cir. Aug. 13,
2021), the Eighth Circuit examined the language relied upon by the Missouri
Supreme Court from the DSM-5, at 38, and expressly rejected the position that this
language required the petitioner to show causation between the first and second
prongs of the diagnosis:
16
The DSM-5’s diagnostic criteria do not require a direct relationship
between adaptive deficits and subaverage intellectual functioning, but
the explanatory text states that “[t]o meet diagnostic criteria for
intellectual disability, the deficits in adaptive functioning must be
directly related to the intellectual impairments described in [prong
one].” DSM-5, supra note 4, at 38 (emphasis added). However, following
Moore I, we explained that “Jackson is not required to demonstrate a
specific connection between subaverage intellectual functioning and
adaptive behavior deficits. Rather, he must show only that deficits
related to intellectual functioning exist.” Jackson III, 898 F.3d at 869.
And “Jackson is not required to exclude [other] disorders as causes of
his adaptive behavior deficits.” Id.
Id. at *7 (emphasis added).
The AAIDD identified the language from the DSM-5 as a potential concern and
sought to clarify the language of the DSM-5. See AAIDD Opposes a Proposed Revision
to the DSM-5’s Entry for Intellectual Disability, AAIDD, July 29, 2019
(https://www.aaidd.org/news-policy/news/releases/2019/07/29/aaidd-opposes-aproposed-revision-to-the-dsm-5-s-entry-for-intellectual-disability).
The
AAIDD
proposed the DSM-5 remove the language cited by the Missouri Supreme Court
because “the current text appeared to add a new, fourth criterion to the diagnostic
criteria, one that required the deficits in adaptive functioning be “directly related to”
(commonly understood to mean “caused by”) the deficits in intellectual functioning, a
criterion which is neither possible for clinicians to ascertain nor empirically
supported.” Id. The AAIDD noted the practical implications for intellectually disabled
individuals in “criminal and civil justice systems.” Id.
On September 16, 2021, the APA updated the language in the DSM-5 with
several text updates related to intellectual disability. (App. D). The APA removed the
language relied on by the Missouri Supreme Court, but otherwise left the elements
17
of intellectual disability alone. Id. The language was taken out because of a
recognition of the “confusion this sentence caused in the diagnostic process, appearing
to add a diagnostic criterion beyond the official criteria set. That was not the intent
of the sentence and thus, to avoid such confusion, the sentence was removed.” (App.
C). The change further reflects the concerns that the manual is primarily intended
for clinical practice and there is a potential for misuse in a forensic context. DSM-5
at 25 (“When DSM-5 categories, criteria, and textual descriptions are employed for
forensic purposes, there is a risk that diagnostic information will be misused or
misunderstood.”)
The Missouri Supreme Court was made aware of the changes in the DSM-5 in
Mr. Johnson’s rehearing petition and again in his reply filed with the court. Despite
this, the court denied Mr. Johnson’s petition for rehearing. The court did this even
though the court knew from the Chair of the DSM Steering Committee’s Letter filed
with the court and the formal publishing of the text revisions to the DSM-5 that the
basis for its opinion had been eliminated.
The Missouri Supreme Court’s decision to graft on a causal/related to
requirement also conflicts with Moore I and Moore II. This Court noted in Moore I
that the Briseno factors “incorporated” an outdated version of the AAIDD imposing a
“related to” requirement. Moore I, 137 S. Ct. at 1046. Thereafter, this Court found
that the analysis of the “related to” requirement violated “clinical practice,” and
rather than being used to refute intellectual disability, the facts the Texas court found
at odds with the diagnosis should instead have been considered risk factors for
18
intellectual disability. Id. at 1051 (noting the state court violated clinical practice by
finding that evidence of childhood abuse and a personality order detracted from a
finding of intellectual disability. When the Texas court again applied the “related to”
requirement, this Court reiterated the previous error (see Moore II, 139 S.Ct. at 669),
and again reversed, noting:
Further, the court of appeals concluded that Moore failed to show that
the “cause of [his] deficient social behavior was related to any deficits in
general mental abilities” rather than “emotional problems.” Id., at 570.
But in our last review, we said that the court of appeals had “departed
from clinical practice” when it required Moore to prove that his
“problems in kindergarten” stemmed from his intellectual disability,
rather than “‘emotional problems.’” Moore, 581 U. S., at ___, 137 S. Ct.
1039, 197 L.Ed. 2d 416, at 429 (quoting Ex parte Moore I, 470 S. W. 3d,
at 488, 526).
Moore II, 139 S.Ct. at 671.
The Missouri Supreme Court’s decision is replete with instances where the
court used the relatedness language as a vehicle to backdoor lay stereotypes or
evidence of adaptive strengths to undermine an otherwise clinical diagnosis. See
Moore I, 137 S.Ct. at 1051. For instance, in evaluating Mr. Johnson’s academic
performance, the court stated, “he does not attempt to connect the alleged deficit with
diminished intellectual functioning.” (App. A, p. 16). The court then noted “there are
multiple factors present in Johnson’s life that could, absent intellectual disability,
prevent academic achievement.” Id. All the experts to testify regarding Mr. Johnson’s
intellectual disability diagnosis, though, agree his intellectual disability impacted his
ability to perform well academically. Their reports were supported by testimony from
teachers, his grades, and his consistently poor performance on standardized testing
19
showing him to be at or near the lowest levels of achievement and ability. The
Missouri Supreme Court’s rejection of this evidence highlights the concerns laid out
in Wilson, that: “In order for a defendant to show that he was intellectually disabled,
he would need to prove that he satisfied the criteria because he was intellectually
disabled.” Id. at 371.
Although the State hired an expert to draft a report addressing Mr. Johnson’s
intellectual disability, the State chose not to call him to the stand to testify at the
resentencing. However, the Missouri Supreme Court relied on his report in denying
relief, even though his methods of assessing the diagnosis of intellectual disability
are clearly at odds with established clinical practice and he has never been subjected
to cross-examination regarding this fact. Instead of utilizing an objective measure of
adaptive behavior, Dr. Heisler attributed Mr. Johnson’s poor academic record to his
“impoverished background” and “substance abuse before age 10.” (App. F, p. 4).
Dr. Heisler’s statement demonstrates his lack of knowledge about clinical
assessments of intellectual disability and undermines his qualification to provide a
reliable opinion. There is no requirement that Mr. Johnson prove that his deficits are
caused by his intellectual disability and these circumstances in his background are
risk factors for intellectual disability – they do not detract from it. See Moore I, 137
S. Ct. 1047, 1051 (noting that alternative causes for adaptive deficits cited by the
State included drug abuse and “an abuse-filled childhood”; academic failure and
traumatic childhood experiences are also risk factors for intellectual disability). If Mr.
Johnson had been properly diagnosed and cared for as a child it is more than likely
20
he would not have formed maladaptive mechanisms, like drug addiction, that fueled
this crime.
There are only three criteria, not four. Because the Missouri Supreme Court
has decided an important federal question in a way that conflicts with Atkins and its
progeny, this Court should grant, or in the alternative grant, vacate, and remand
pursuant to Sup. Ct. R. 10(c).
B.
Overreliance on the facts of the crime to deny Atkins protection, places
the Missouri Supreme Court at odds with Moore I and II.
The Missouri Supreme Court relied heavily on the facts of the crime to conclude
Mr. Johnson was not a person with intellectual disability. (App. A, p. 12). (noting the
facts of the crime “illustrate Johnson’s ability to plan, strategize, and problem solve
– contrary to a finding of substantial subaverage intelligence.”). However, this
reliance mirrors the errors committed by the Texas state courts in applying the
“Briseno factors.” Moore I, 137 S. Ct. at 1046 n.6 (the final Briseno factor posed was
“did the commission of the offense require forethought, planning, and complex
execution of purpose.”). This Court has condemned the Briseno factors and described
them as “an outlier” because they deviated so substantially from accepted clinical
practices. Moore I, 137 S. Ct. at 1052.
Texas forced this Court to again take corrective action in Moore II, where this
Court a second time reversed the state court for its continued reliance on the facts of
the crime Briseno factor. 139 S. Ct. at 671. This Court noted that “[e]mphasizing the
Briseno factors over clinical factor “‘creat[es] an unacceptable risk that persons with
21
intellectual disability will be executed.’” Id. at 669 (citation omitted). This risk has
come to fruition in Mr. Johnson’s case.
Criminal behavior is considered maladaptive behavior and because there are
no objective norms for its consideration, it should not be considered in the diagnostic
process. See Brumfield v. Cain, 808 F.3d 1041, 1047 (5th Cir. 2015) (in upholding the
lower court’s finding of intellectual disability, the court credited expert testimony
explaining that the presence or absence of maladaptive behavior “is not relevant to
the diagnosis of intellectual disability.”). The Atkins ban exists because the
intellectually
disabled
commit
crimes,
including
violent
crimes.
However,
overemphasis on the facts of the crime to deny the protection of Atkins is at odds with
the established clinical science. See Van Tran v. Colson, 764 F.3d 594, 608-09 (6th
Cir. 2014) (“The sophistication of the crime and Van Tran’s role in it are mostly
irrelevant to the very narrow, clinically defined question of whether Van Tran suffers
a deficit in the area of functional academics.”); Hooks v. State, 126 P.3d 636, 644
(Okla. Ct. Crim. App. 2005) (“individual acts of violent crime, such as armed robbery
or rape, require little or no abstract thought or complex planning.”). The diagnostic
manuals specifically warn against using “past criminal behavior or verbal behavior
to infer [a] level of adaptive behavior.” Brumfield, 808 F.3d at 1053 (citation omitted).
The facts of the crime in Moore closely resemble Mr. Johnson’s crime – a
“botched robbery” that resulted in the fatal shooting of a store clerk. Moore I, 137 S.
Ct. at 1044. In Moore I, the Texas court relied upon Mr. Moore’s ability to commit
“the crime in a sophisticated way.” Id. at 1047. After the remand from this Court, the
22
Texas courts again relied heavily on the facts of the crime to justify its finding that
he was not intellectually disabled. Moore II, 139 S. Ct. at 671. This Court again
reversed this finding because it was based so heavily on lay stereotypes about what
the intellectually disabled can do, in contrast with established science. Id. at 672.
In the original district court proceedings in Brumfield v. Cain, 854 F.Supp.2d
36 (M.D. La. 2012), in which the district court found Brumfield to be intellectually
disabled, the court ably noted why a heavy reliance on the facts of the crime is at odds
with the clinical science:
The reasons for not using maladaptive criminal behavior to assess
adaptive skills are several: (1) the defendant may have gullibly acted
under the direction or training of a confederate during the crime; (2)
there may not be available enough accurate details about the facts of the
crime from which to draw adaptive conclusions; and (3) in any event,
there is a lack of normative information about actions during and
following crimes to be able to meaningfully assess whether and how
much a defendant's actions deviated from the mean adaptive behavior
during criminal acts.
Id. Although these findings were overturned by the Fifth Circuit Court of Appeals in
Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014), that decision was itself overturned
by this Court in Brumfield, 576 U.S. 305. On remand, the Fifth Circuit upheld the
grant of habeas relief based upon intellectual disability. See Brumfield, 808 F.3d
1041.
The Missouri Supreme Court relied upon various crime facts to undermine the
diagnosis of intellectual disability, App. A, p. 11, but there is nothing in the facts of
the crime at odds with a finding of intellectually disability and the state court’s
overreliance on these facts violates clinical standards. The court, for instance, relied
23
on Mr. Johnson’s acquisition of a firearm to infer he had a premeditated plan for the
crime. Id. at 2. However, while Mr. Johnson did obtain a firearm prior to robbing the
store, the firearm was provided by his drug dealer, and the drug dealer had to show
Mr. Johnson how to use the weapon and provided him with only one bullet. (App. L,
pp. 9-15). The crime was committed with three different weapons, but only the
firearm, used in a non-fatal manner, was brought to the scene in advance. (App. A, p.
2). The other two weapons were grabbed in the frenzy of the moment, undermining
the court’s characterization of this crime as well-planned. These facts demonstrate
Johnson’s lack of sophistication and at best demonstrate a plan to rob to support a
drug habit.
The state court also described a plan to wear layers of clothing in order to
escape detection upon fleeing the scene. Id. at 2, 12. However, after the crime, Mr.
Johnson walked into his home with the same clothes on in front of witnesses. Id. The
clothing and evidence were brought home and thus the “plan” of escaping detection
did not come to fruition. As the state court noted, Johnson was arrested just one day
later and immediately contradicted his own alibi. (App. A, p. 3).
Even if the crime were to be considered in the clinical analysis, it should be
contextualized for what it is – a plan to rob that went tragically awry. Most adults
with intellectual disabilities can achieve reading, arithmetic, and writing skills
equivalent to a 5th or 6th grader. See Tasse, Marc J. and Blume, John H., Intellectual
Disability and the Death Penalty, Current Issues and Controversies, p. 102 (2018). A
child of that age “has the ability to lie, hide, plot and deceive to get out of trouble.” Id.
24
It is not, therefore, surprising or indicative of special skills that Mr. Johnson would
be capable of committing a crime, even with his significant limitations.
This Court recognized the improper overreliance on the facts of the crime in
twice reversing the Fifth Circuit in Moore I and II. Because the Missouri Supreme
Court has decided an important federal question in a way that conflicts with relevant
decision of this Court, this Court should grant, or in the alternative grant, vacate,
and remand pursuant to Sup. Ct. R. 10(c).
C.
The Missouri Supreme Court misapprehended the significance and
consistency in Mr. Johnson’s IQ scores and ignored objective evidence
which indicated that Mr. Johnson was not malingering during testing
with the State’s technician.
In finding that Mr. Johnson did not to meet the intellectual functioning prong,
the Missouri Supreme Court proceeded from a flawed premise. It discounted the later
testing and noted that on previous IQ testing, “only one (out of four valid scores) . . .
would indicate significant subaverage intelligence.” (App. A, p. 11). Not accurately
knowing the import of the IQ tests is a dramatic substantive error. Only one of these
four scores do not indicate significant subaverage intelligence. Three out of four tests
administered and relied upon by the state court fully fall within the range of
intellectual disability:
1.
The Missouri Supreme Court references the 77 in 1968. A Flynn
Effect adjusted score of 71. With the standard error of
measurement (SEM) of 5, the IQ range is 66-76, falling within the
range of intellectual disability;
2.
The Missouri Supreme Court references the 63 in 1971, this score
safely falls within the range of intellectual disability; and,
25
3.
The Court references the 78 in 1994. A Flynn Effect adjusted
score of 72.9. With the SEM of 5, the IQ range is 67.9-77.9, and
falls within the range of intellectual disability.
Contrary to the state court’s findings, Mr. Johnson’s IQ scores have been
remarkably consistent throughout his life, with eight of the nine full-scale IQ tests
within the subaverage intellectual functioning range. See supra at 5-6. In focusing on
IQ scores (incorrectly noting the significance of the same), the Missouri Supreme
Court failed to consider or discuss the remarkable consistency of Mr. Johnson’s IQ
scores with the results of Achievement Test Scores. To reiterate, they reflect evidence
of intellectual disability established long before the crime. The childhood IQ scores
and achievement test scores were supported by the testimony of teachers noting Mr.
Johnson’s significant cognitive shortcomings.
The Missouri Supreme Court also relied upon the subjective assertion of an
untrained technician, never called to the stand to testify, that Mr. Johnson was
malingering on the IQ test he was given. (App. A, p. 11). Mr. Bradshaw was tasked
by Dr. Heisler, the State’s expert who the State did not call to testify at resentencing,
with giving Mr. Johnson an IQ test. Dr. Heisler adopted Mr. Bradshaw’s assertion
that Mr. Johnson was malingering. (App. F, p. 3). However, what both Dr. Heisler
and Mr. Bradshaw failed to either recognize or mention in their assertion of
malingering was that embedded in the version of the IQ test Mr. Johnson was given
by Mr. Bradshaw were two tests of validity. (App. E p. 30). Mr. Johnson passed this
validity test, belying Mr. Bradshaw’s subjective observation that he was malingering.
Id. (emphasis added).
26
One of the reasons Mr. Johnson requested this case be remanded for additional
factual findings by a Special Master, which is allowed under Missouri rules, is that
Dr. Heisler’s conclusions were never subjected to cross-examination. The objective
measures of validity on the IQ test Bradshaw gave, as well as Mr. Johnson’s
consistency in IQ scores over the years, rebuts any subjective assertion of
malingering. See United States v. Nelson, 419 F.Supp.2d 891, 903 (E.D. La. 2006) (“It
is simply impossible for the Court to conclude that Nelson has been malingering since
age 11 and has been able to manufacture the identical testing pattern for all those
years.”). Further, the objective measures then and now, universally rebut any lack of
effort on Mr. Johnson’s behalf.
For those practitioners who have little or no clinical experience with the
intellectually disabled, “[m]alingering may be suspected because of confusion related
to a combination of psychiatric symptoms, neurological symptoms, and cognitive
deficits. . .” Edward Polloway, ed., The Death Penalty and Intellectual Disability,
(AAIDD) (2015), at 270. “[A] defendant cannot readily feign the symptoms of mental
retardation.” Newman v. Harrington, 726 F.3d 921, 929 (7th Cir. 2013); Smith v.
Sharp, 935 F.3d 1064, 1081 (10th Cir. 2019). Mr. Johnson’s consistent IQ scores over
the years belie an assertion of malingering and it is significant that he obtained the
exact same IQ score on his testing with the defense expert, who did give Mr. Johnson
an objective test of effort: “it is extremely unlikely that a person with Mr. Johnson’s
history of adaptive deficits could ‘fake’ on two IQ tests a year apart and be able to
obtain the exact same score.” (App. E, p. 30). Instead, Mr. Johnson’s history of IQ
27
scores, over a 51-year time span, indicates overwhelming proof that he fits the first
prong of the diagnosis. See id. at 30 (noting that the consistency of scores indicates a
case of convergent validity on IQ).
D.
Interpreting the Missouri statute to require a diagnosis of intellectual
disability prior to the age of 18 violates the Eighth and Fourteenth
Amendments.
For various reasons, many of those who suffer from intellectual disability are
not diagnosed as such during the developmental period. See Polloway, at 222 (noting
that many Atkins petitioners have a clear history of school failure but were never
labeled ID in school and this is especially true of poor minority children). In Mr.
Johnson’s case, he was born into the poverty of the Missouri bootheel as a child of a
sharecropper, at a time where people with his skin color were shipped to separate,
but not equal, schools. The reality is that the impoverished school districts Mr.
Johnson attended simply did not provide the opportunity for diagnosis, regardless of
the apparent need. In addition, at the time Mr. Johnson was in school, the district
was under pressure due to federal mandates to “mainstream” special education
students and only a certain percentage of Black students could be placed in special
education. (App. L, pp. 3, 5).
The Missouri Supreme Court cited the Missouri statute for the proposition of
requiring intellectual disability to be “manifested and documented before eighteen
years of age.” (App. A, p. 15). On this basis, the court concluded that “[b]ecause
Johnson is now over 60 years old, reports of Johnson’s alleged current mental ability
are not given much weight.” Id. The state court also noted that Johnson did “not
28
provide any evidence of a formal evaluation or diagnosis of intellectual disability
during the developmental period.” Id. at 16.
Thus, Missouri improperly modified the on-set criterion to require diagnosis of
intellectual disability during the developmental period. Contrary to Atkins, the DSM5, the AAIDD, 12th Edition, and Missouri’s Statute, the Missouri Supreme Court
redefined a diagnostic criterion. This runs contrary to and violates the Eighth
Amendment. See Oats v. State, 181 So.3d 457, 469 (Fla. 2015) (reversing a lower
court’s finding, based upon a Florida statute with similar language to that of
Missouri, that the defendant was not intellectually disabled based upon a
misperception that a lack of diagnosis prior to age 18 was fatal to the claim and
ignoring later evidence as a result). In Oats, the Florida Supreme Court noted that it
would be at odds with the Supreme Court’s decision following Atkins to require
diagnosis prior to age 18 before the protection of Atkins is given: “[t]hat inflexible
view would not be supported by the United States Supreme Court’s recent
enunciations in Hall and Brumfield.” Id. at 469; see also Wilson, 170 F.Supp.3d at
391 (noting that the age of onset requirement does not require diagnosis before the
age of 18).
It is error to give Mr. Johnson’s later IQ scores little weight in determining his
intellectual disability. His IQ scores, from childhood to now, have been consistently
within the range of intellectual disability, something even the Missouri Supreme
Court acknowledged. See App. A, p. 11 (noting that after adjusting for the margin of
error and the Flynn effect, Mr. Johnson’s test scores “are within the range that could
29
be indicative of intellectual disability”). The fact that Mr. Johnson may not have been
diagnosed as intellectually disabled during the developmental time frame is more a
function of the paucity of services available to him during his childhood in rural
Missouri and his status as a minority.
Furthermore, IQ scores remain relatively consistent over a person’s lifetime,
as illustrated by Mr. Johnson’s consistency in IQ scores over time. See Muncy v. Apfel,
247 F.3d 728, 734 (8th Cir. 2001) (“a person’s IQ is presumed to remain stable over
time in the absence of any evidence of a change in a claimant’s intellectual
functioning.”). Mr. Johnson should not be exempted from the protection of Atkins,
and his later consistent IQ scores ignored, simply because of the absence of diagnosis
during the developmental period. This is especially true since Mr. Johnson’s IQ scores
virtually have remained the same over 50 years.
Because the Missouri Supreme Court has decided an important federal
question in a way that conflicts with Atkins and its progeny, this Court should grant,
or in the alternative grant, vacate, and remand pursuant to Sup. Ct. R. 10(c).
II.
Missouri’s Intellectual Disability Instructions Violated Mr. Johnson’s Sixth
And Eighth Amendment Rights.
In denying Mr. Johnson’s state habeas petition, the Missouri Supreme Court
upheld its pattern juror instructions on intellectual disability, which required Mr.
Johnson to unanimously prove that question by a preponderance of the evidence.
(App. A, p. 19). As to Missouri’s treatment of the intellectual disability question, the
Missouri Supreme Court held “intellectual disability concerns whether an offender is
30
eligible for the death penalty. See Atkins, 536 U.S. at 320” (App. A, p. 20) (emphasis
in the original).
As written, these instructions permit juries to impose the death penalty even
if eleven out of twelve jurors believed that Mr. Johnson was intellectually disabled.
Even more troublingly, the jury was not polled and there is no verdict sheet
documenting what the jury finding on the intellectual disability question actually
was. This Court’s jurisprudence makes clear that these instructions cannot withstand
constitutional scrutiny on an eligibility question.
First, since the question of intellectual disability is an eligibility
determination, as the Missouri Supreme Court itself recently noted, the burden
should be on the State to prove Mr. Johnson is not intellectually disabled, and
therefore is eligible for the death penalty. Second, by not polling the jury as to its
finding on the intellectual disability question, the process by which Mr. Johnson was
sentenced to death was insufficiently reliable to guard against the execution of a
person with intellectual disability. By placing the burden on Mr. Johnson and
allowing a lone holdout juror voting against a finding of intellectual disability to
eviscerate the substantive protections of Atkins, Missouri violated Petitioner’s Sixth
and Eighth Amendment rights.
In Ramos v. Louisiana, this Court held that the Sixth Amendment right to a
jury trial, as incorporated against the States by way of the Fourteenth Amendment,
requires a unanimous verdict to convict a defendant of a serious offense, with the
burden being placed on the State. 140 S. Ct. 1390 (2020). As this Court explained in
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Andres v. United States, “[a] verdict embodies in a single finding the conclusions by
the jury upon all the questions submitted to it.” 333 U.S. 740, 748 (1948) (emphasis
added). Thus, the “requirement of unanimity extends to all issues—character or
degree of the crime, guilt and punishment—which are left to the jury.” Id. A
unanimous verdict, with the burden being placed on the state, serves the purposes of
a jury trial by providing for “the community participation and shared responsibility
that results from that group's determination of guilt or innocence.” Williams v.
Florida, 399 U.S. 78, 100 (1970). Further, at the time of the Founding, a unanimous
jury verdict of guilt had been required at common law for over 400 years. See Ramos,
140 S. Ct. at 1396 (“If the term ‘trial by an impartial jury’ carried any meaning at all,
it surely included a requirement as long and widely accepted as unanimity.”)
Ironically in Missouri, the post-Atkins jury instructions actually made it more
difficult for Mr. Johnson to have a jury spare him from execution because of his
intellectual disability. This cannot be what the Court intended. Prior to Atkins, Mr.
Johnson could at least present evidence of his intellectual disability as a mitigating
circumstance that any single juror could find supporting a life sentence, without a
requirement of unanimity for mitigation. Under those circumstances, a lone juror
could rightly find that Mr. Johnson’s evidence of intellectual disability warranted
sparing him from a death sentence. Under the current instructions, however, where
intellectual disability is no longer considered as a part of the mitigation inquiry, the
opposite is now true: a lone juror’s vote could expose Mr. Johnson to a death sentence,
even if all other jurors believed him to be ineligible by reason of intellectual disability.
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These instructions actually provide him less protection due to his disability,
something not contemplated by this Court when it rendered its decision in Atkins.
The Missouri Supreme Court recognized that the question of intellectual
disability is a question of Mr. Johnson’s eligibility for the death sentence. App. A at
21, citing Atkins, 536 U.S. at 320. However, the court denied the challenge to the jury
instructions allowing a non-unanimous finding by referencing their earlier opinion,
Johnson v. State, 244 S.W.3d 144 (Mo. 2008). The 2008 opinion did not recognize that
the question under Atkins concerned an eligibility factor for facing the death penalty.
In Ring v. Arizona, 536 U.S. 584 (2002), decided the same year as Atkins, this
Court held that death penalty eligibility factors must be proven to a jury with the
burden on the State and their burden is beyond a reasonable doubt. More recently in
Hurst v. Florida, 577 U.S. 92 (2016), this Court overruled prior decisions which had
held that the Sixth Amendment did not require a jury to find the specific findings
underlying the death sentence because those decisions “were irreconcilable with
Apprendi.” Id. at 101.
In Atkins, this Court held that a capital defendant’s right to submit evidence
of intellectual disability to a sentencing jury in mitigation was insufficient to satisfy
the Eighth Amendment’s prohibition against excessive punishment, and that the
Eighth Amendment required announcement of an additional rule that “the mentally
retarded should be categorically excluded from executions.” Atkins, 536 U.S. at 318.
Thus, after Atkins and Ring, the absence of intellectual disability is a constitutional
precondition for the imposition of a capital sentence that “operates as the functional
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equivalent of an element of a greater offense.” Ring, 536 U.S. at 609 (citation omitted)
(emphasis added). Read together, the cases require that the Sixth Amendment right
to a jury trial attaches to elements that are required to adjust the scope of
consequences for the criminal offense, with the burden being on the State to prove a
defendant is eligible to face the ultimate punishment. Atkins adds this element:
“[t]hus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the
most deserving of execution are put to death, an exclusion for the mentally retarded
is appropriate.” Atkins, 536 U.S. at 319 (emphasis added).
Atkins left to the States “the task of developing appropriate ways to enforce
the constitutional restriction upon [their] execution of sentences.” 536 U.S. at 317. In
so doing, the Court cited their approach in Ford v. Wainwright, 477 U.S. 399 (1986).
Atkins, at 317. Ford recognized that the Eighth Amendment required insane
defendants be given an opportunity to seek its protection, and that “the lodestar of
any effort to devise a procedure [to determine sanity] must be the overriding dual
imperative of providing redress for those with substantial claims and of encouraging
accuracy in the factfinding determination.” Ford, 477 U.S. at 417.
However, Atkins “did not give the States unfettered discretion” in determining
which defendants received the Eighth Amendment’s protections.” Hall, 572 U.S. at
719. This Court noted “[i]f the States were to have complete autonomy to define
intellectual disability as they wished, the Court’s decision in Atkins could become a
nullity, and the Eighth Amendment’s protection of human dignity would not become
a reality.” Id. at 719-720.
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As explained, in Montgomery v. Louisiana, “when the Constitution prohibits a
particular form of punishment for a class of persons, an affected prisoner receives a
procedure through which he can show that he belongs to the protected class.” 577
U.S. 190, 210 (2016) (citing Atkins). When creating this procedural entitlement, “this
Court is careful to limit [its] scope... to avoid intruding more than necessary upon the
States’ sovereign administration of their criminal justice systems...Fidelity to this
important principle of federalism, however, should not be construed to demean the
substantive character of the federal right at issue.” Id. at 211. By prohibiting the cruel
and unusual execution of intellectually disabled defendants, such as Mr. Johnson,
Atkins imposed on the States the requirement to enact procedural mechanisms
necessary to safeguard its holding.
Because Atkins stands for the proposition that death is never the “appropriate”
punishment for those who are intellectually disabled, the Eighth Amendment
requires, at a minimum, that the determination of a defendant’s intellectual ability
be subject to heightened procedural scrutiny. Atkins, 536 U.S. at 319. Procedures
employed pursuant to Atkins that are likely to result in inaccurate, arbitrary, or
capricious findings of intellectual ability are repugnant to the Eighth Amendment. It
follows that the execution of a defendant based on a non-unanimous eligibility
finding—where it is impossible to know what the jury actually found on the
intellectual disability question, other than that at least one juror did not find Johnson
to be intellectually disabled— results in a violation of the Eighth Amendment.
Consonant with these principles, in cases where the procedure is inadequate to
35
reliably result in the appropriate punishment, this Court has repeatedly held rules
of criminal procedure in violation of the Eighth Amendment. See, e.g., McKoy v.
North Carolina, 494 U.S. 433, 435 (1990) (State’s procedure failed to allow jurors to
“give effect to mitigation evidence” violated Eighth Amendment).
“The decision to exercise the power of the State to execute a defendant is unlike
any other decision citizens and public officials are called upon to make. Evolving
standards of societal decency have imposed a correspondingly high requirement of
reliability on the determination that death is the appropriate penalty in a particular
case. The possibility that petitioner’s jury conducted its task improperly certainly is
great enough to require resentencing.” Mills v. Maryland, 486 U.S. 367, 383–84
(1988). Here, as in McKoy, “[t]he unanimity requirement thus allows one holdout
juror to prevent the others from giving effect to evidence that they believe calls for a
sentence less than death.” 494 U.S. at 439 (internal quotations omitted). Under Jury
Instruction Nos. 6 and 11, 16, and 21 (MAI-CR 3d 313.38) eleven jurors may have
thought that Mr. Johnson was ineligible for the death penalty, yet could have been
prevented from considering and ultimately submitting the death penalty because of
the capriciousness of one juror. An eligibility determination cannot be made with
fewer procedural safeguards than a selection determination.
The Missouri Supreme Court’s misguided approach permits the intellectually
disabled to be executed so long as a single juror believes he is not intellectually
disabled. Thus, Missouri creates an unacceptable risk that the intellectually disabled
will be executed under its current instructions. This Court should grant review to
36
correct a ruling that reduces Atkins to a nullity. Because the Missouri Supreme Court
has decided an important federal question in a way that conflicts with relevant
decision of this Court, this Court grant certiorari pursuant to Sup. Ct. R. l0(c).
CONCLUSION
Because the Missouri Supreme Court decided Mr. Johnson's intellectual
disability in a way that conflicts with this Court's holding in Atkins and its progeny,
certiorari should be granted, and the lower court's opinion should be vacated and the
case remanded for further proceedings consistent with Moore I and Moore 11 In
addition, the jury instructions on intellectual disability violate the Sixth Amendment
by allowing a single juror to deny him the protections of Atkins, and therefore this
Court should grant certiorari.
nit, Chief
IS
Assistant Federal Public Defender
PAULA K. HARMS
Assistant Federal Public Defender
Federal Public Defender
Western District of Missouri
1000 Walnut, Suite 600
Kansas City, MO 64106
laurence_komp@fd.org
(816) 471 ·8282
COUNSEL FOR PETITIONER
*Counsel ofRecord
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.