Amicus Curiae Brief — Donald Dillbeck, Petitioner v. Florida, et al.

No. 22-6819

IN THE

Supreme Court of the United States

_________

DONALD DAVID DILLBECK,

Petitioner,

v.

STATE OF FLORIDA, ET AL.

Respondents.

_________

On Petition for Writ of Certiorari to the

Supreme Court of Florida

_________

BRIEF OF AMICUS CURIAE FASD UNITED

IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

_________

JOHN R. MILLS

Counsel of Record

PHILLIPS BLACK, INC.

1721 Broadway, Suite 201

Oakland, CA 94612

888-532-0897

j.mills@phillipsblack.org

JOSEPH J. PERKOVICH

PHILLIPS BLACK, INC.

P.O. Box 3547

New York, NY 10008

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

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

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

ARGUMENT................................................................ 3

I. CURRENT MEDICAL CONSENSUS

COLLAPSES ANY RATIONAlE FOR

DIFFERENTIATING BETWEEN THOSE WITH

ND-PAE AND THOSE WITH INTELELCTUAL

DISABILITY ............................................................ 3

A. States Must Account for the Current

Medical Consensus to Determine Who They

Exempt from Execution....................................... 3

B. States Must Account for the Current

Medical Consensus, Which Now Recognizes NDPAE Encompasses Commensurate Deficits to

Intellectual Disability, to Determine Who They

Exempt from Execution....................................... 5

II. THE FLORIDA SUPREME COURT FAILED

TO ACCOUNT FOR THE CURRENT MEDICAL

CONSENSUS THAT ND-PAE IS

FUNCTIONALLY EQUIVALENT TO

INTELLECTUAL DISABLITY ............................... 9

III. EXECUTING MR. DILLBECK WOULD

DEFY CAPITAL PUNISHMENT’S

PENALOGICAL JUSTIFICATION...................... 10

CONCLUSION .......................................................... 13

ii

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia,

536 U.S. 304 (2002)................................... 3, 4

Ford v. Wainwright,

477 U.S. 399 (1986)................................... 4

Hall v. Florida,

572 U.S. 701 (2014)................................... 4

Moore v. Texas,

581 U.S. 1 (2017)....................................... 4

Other Authorities

AAMR, Mental Retardation: Definition,

Classification, and Systems of Support

5 (9th ed. 1992) ......................................... 4

APA, Diagnostic and Statistical Manual

of Mental Disorders 41 (4th ed. 2000) ..... 4

APA, Diagnostic and Statistical Manual

of Mental Disorders (5th ed., text rev.)

(2022) ......................................................... 6, 7

Natalie Novick Brown, Fetal Alcohol

Spectrum

Disorders

(FASD):

Intellectual Disability Equivalence in

Stephen Greenspan, et al., Fetal

Alcohol Spectrum Disorder in Adults:

Ethical and Legal Perspectives (2019) .... 7

iii

Natalie Novick Brown, et al., A proposed

Model

Standard

for

Forensic

Assessment of FASD, 38 J. Psy. & L. 383

(2010) ......................................................... 6

Natalie Novick Brown, et al., Prenatal

Alcohol Exposure: An Assessment

Strategy for the Legal Context, 42 Int’l J.

L. & Mental Health 144 (2015) ................ 6

Natalie Novick Brown & Stephen

Greenspan, Diagnosing Intellectual

Disability in People with FASD: A

Function of Which Diagnostic Manual

Is Used?, 40 Behav. Sci. & L. 31 (2021) ... 6

Natalie Novick Brown & Stephen

Greenspan, Diminished Culpability in

Fetal Alcohol Spectrum Disorders, 39

Behav. Sci. & L. 1 (2021) .......................... 9

Natalie Novick Brown & C.R. Reynolds,

Connecting the Dots: Functional

Behavior Evaluation in Fetal Alcohol

Spectrum Disorder in Evaluating Fetal

Alcohol Spectrum Disorders (FASD) in

the Forensic Context ................................ 8

Lisa Christensen & Bruce L. Baker, Risktaking and Delinquent Behaviors

Among Youth with and Without

Intellectual Disabilities, 13 J. Mental

Health

&

Res.

in

Intellectual

Disabilities 1 (2020) .................................. 9

iv

Lorcan Cribb, et al., Childhood Executive

Function Predicts Later Autistic Feature

and Adaptive Behavior in Young

Autistic People: A 12-Year Prospective

Study, 47 J. Abnormal Child Psy. 1089

(2018) ......................................................... 8

Christopher

Fanning,

Defining

Intellectual Disability: Fetal Alcohol

Spectrum Disorders and Capital

Punishment, 38 Rutgers L. Rec. 1 (2010)

................................................................... 5

Emily Gardiner & Grace Iarocci,

Everyday Executive Function Predicts

Adaptive and Internalizing Behavior in

Children with and Without Autism

Spectrum Disorder 11 Autism Res. 284

(2017) ......................................................... 7

Sissel Gravrakmo, et al., Associations

Between

Executive

Functions,

Intelligence and Adaptive Behaviour in

Children and Adolescents with Mild

Intellectual Disability, J. of Intellectual

Disabilities (2022) ..................................... 8

Stephen Greenspan, et al., Determining

Disability Severity for Fetal Alcohol

Spectrum Disorder: Assessing the

Extent of Impairment in Natalie Novick

Brown, Evaluating Fetal Alcohol

Spectrum Disorders (FASD) in the

Forensic Context: A Manual for Mental

Health Practice (2021) .............................. 7

v

Stephen Greenspan, et al., Determining

Disability Severity Level for Fetal

Alcohol Spectrum Disorder: Assessing

the Extent of Impairment in Evaluating

Fetal Alcohol Spectrum Disorders

(FASD) in the Forensic Context ............... 8

Stephen Greenspan, et al., FASD and the

Concept of “Intellectual Disability

Equivalence”, in Monty Nelson &

Marguerite Trussler, Law and Ethics in

Fetal Alcohol Spectrum Disorder (2016)

................................................................... 6

Stephen Greenspan, James C.O. Harris,

& George W. Woods, Intellectual

Disability Is “A Condition, Not a

Number”: Ethics of IQ Cut-offs in

Psychiatry, Human Service, and Law, 1

Ethics, Med. & Pub. Health 312 (2015) ... 6

James C. Harris & Stephen Greenspan,

Definition and Nature of Intellectual

Disability in Nirbary N. Singh,

Handbook of Evidence Based Practices

in Intellectual and Developmental

Disabilities (2016) ..................................... 5

Anastasia Hronis, et al., A Review of

Cognitive Impairments in Children with

Intellectual Disability: Implications for

Cognitive Behvioural Therapy, 56

British J. Clin. Psy. 189 (2017) ................ 9

vi

Goodwin Liu, State Courts and

Constitutional Structure, 128 Yale L.J.

1304, 1314 (2019) ...................................... 4

Timothy E. Moore & M. Green, Fetal

Alcohol Spectrum Disorder (FASD): A

Need for Closer Examination by the

Criminal Justice System, 19 Crim.

Reports 99 (2004) ...................................... 5

H.

Carmichael

Olson,

et

al.,

Neuropsychological

Deficits

in

Adolescents

with

Fetal

Alcohol

Syndrome; Clinical Findings, 22

Alcoholism: Clinical and Experimental

Research 8 (1998-2012) ............................ 9

Camila Sabat, et al., Different Abilities

Needed at Home and School: The

Relation Between Executive Function

and Adaptive Behavior in Adolescents

with Down Syndrome, 10 Sci. Rep. 1683

(2020) ......................................................... 8

Amy M. Schonfeld, et al., Executive

Functioning Predicts Social Skills

Following Prenatal Alcohol Exposure,

12 Child Neuropsy. 439 (2006) ................. 8

Jeffery S. Sutton, 51 Imperfect Solutions:

States and the Making of Constitutional

Law 18–20 (2018)...................................... 4

Ashley L. Ware, et al., Executive Function

Predicts Adaptive Behavior in Children

vii

with Histories of Heavy Prenatal

Alcohol

Exposure

and

Attention

Deficit/Hyperactivity

Disorder,

36

Alcoholism: Clinical & Experimental

Res. 1431 (2012) ........................................ 8

George W. Woods & Stephen Greenspan,

Intellectual Disability as a Disorder of

Reasoning and Judgment: The Move

Away from Intelligence Quotient

Ceilings, 27 Current Op. in Psy. 110

(2014) ......................................................... 5

K. Wyper & J. Pei, Neurocognitive

Difficulties Underlying High Risk and

Criminal Behaviour in FASD: Clinical

Implications in Nelson & Trussler .......... 9

BRIEF OF AMICUS CURIAE1

_________

INTEREST OF AMICUS

Amicus, FASD United, is a national, non-profit

public health advocacy group committed to raising

awareness of the risks associated with alcohol consumption during pregnancy and supporting families

living with neurodevelopmental disorder associated

with prenatal alcohol exposure (“ND-PAE”). FASD

United represents children and adults seeking medical, mental health, education, rehabilitative, and

other therapeutic services for the spectrum of effects

associated with prenatal alcohol exposure. ND-PAE is

the leading cause of intellectual disabilities and neurobehavioral disorders in the developed world and affects as many as 40,000 newborns each year in the

United States alone.

In light of the evidence before the Florida courts,

Petitioner Donald David Dillbeck exhibits the hallmark features of ND-PAE. Although his case is an extreme example, persons with ND-PAE do exhibit maladaptive behavior and face criminal charges much

more often than the general population: 61% of adolescents with FASD and 58% of adults with the disorder come into contact with the criminal justice system.

Twenty-three percent are ultimately confined in a

1 Pursuant

to Rules 37.2(a) and 37.6, Amici certify

that no party or party’s counsel authored this brief in

whole or in part and that no party or party’s counsel

made a monetary contribution intended to fund the

preparation or submission of this brief. All counsel of

record received timely notice of Amici’s intent to file

this brief more than ten days prior to its due date.

2

mental hospital and 35% are incarcerated for a crime.

Accordingly, FASD United advocates for the education about ND-PAE for law enforcement officials, corrections officers, and the courts as well as urges the

courts, law enforcement officials, and corrections officers to become educated about ND-PAE. Amicus also

urges sentencing authorities to appropriately consider

ND-PAE and its effects in making punishment and

confinement decisions.

In the context of capital punishment, FASD United

maintains that, with respect to blameworthiness, NDPAE is a disorder without a medical distinction from

intellectual disability. FASD United thus further

maintains that persons suffering from it should not be

executed. This case has important implications for

persons with ND-PAE and for the courts as they ensure that the punishments they mete out and administer are consistent with current standards of medical

and scientific communities and society’s evolving

standards of decency.

SUMMARY OF ARGUMENT

This Court has repeatedly held that to effectuate

the exemption from execution of the intellectually disabled (“ID”), courts must account for the current medical standard relevant to that inquiry. That standard

has recently undergone a shift both related to the relative importance of IQ scores and in the recognition of

neurodevelopment prenatal alcohol exposure (“NDPAE”) disorder as being ID-equivalent.

The Florida Supreme Court did not account for this

change in the current medical standards as it addressed Petitioner’s claim of categorical exemption

from punishment. It addressed neither the consensus

that ID is best understood without undue emphasis on

3

a test score nor that ND-PAE is an ID-equivalent disorder.

Properly accounted for, Donald Dillbeck’s undisputed ND-PAE diagnosis should exempt him from execution. His pre-natal alcohol exposure was extraordinary, exceeding by more than 40 times the threshold

for excess exposure, with his mother drinking dozens

of drinks daily during her pregnancy. And his life was

marked by the disorder.

This Court should grant review to enforce the

Eighth Amendment’s requirement of the courts to account for current standards of the medical and scientific communities in assessing developmental disabilities and blameworthiness.

ARGUMENT

I. CURRENT

MEDICAL

CONSENSUS

COLLAPSES

ANY

RATIONALE

FOR

DIFFERENTIATING

BETWEEN

THOSE

WITH

ND-PAE

AND

THOSE

WITH

INTELELCTUAL DISABILITY

A. States Must Account for the Current Medical Consensus to Determine Who They Exempt from Execution

The constitution prohibits executing persons with

intellectual disability. See generally Atkins v. Virginia, 536 U.S. 304 (2002). At the time the Court announced that protection, intellectual disability generally required a showing that a person had substantially impaired intellectual functioning and deficits in

adaptive functioning, with onset during the development period. Id. at 308 n.3 (citing AAMR, Mental

4

Retardation: Definition, Classification, and Systems

of Support 5 (9th ed. 1992) and APA, Diagnostic and

Statistical Manual of Mental Disorders 41 (4th ed.

2000)).

In announcing that protection, the Court initially

gave states leeway to develop standards for implementing this limitation on punishment, resulting in a

leading example of “constitutional experimentation.”

Goodwin Liu, State Courts and Constitutional Structure, 128 Yale L.J. 1304, 1314 (2019) (discussing Jeffery S. Sutton, 51 Imperfect Solutions: States and the

Making of Constitutional Law 18–20 (2018) and noting that the federal courts benefit from state courts

engaging in constitutional questions before the federal courts definitively “decid[e] a federal constitutional issue.”). This was consistent with its approach

taken with other categorical exemption from the ultimate punishment. See Atkins, 536 U.S. at 317 (“As

was our approach in Ford v. Wainwright, with regard

to insanity, ‘we leave to the States the task of developing appropriate ways to enforce the constitutional

restriction upon its execution of sentences.’” quoting

Ford v. Wainwright, 477 U.S. 399, 405 (1986)).

Eventually, a consensus emerged that applying

the current medical definitions to assess intellectual

disability was necessary to avoid an unconstitutional

risk of executing someone who was, in fact, categorically excluded from the death penalty. See Hall v.

Florida, 572 U.S. 701, 704 (2014). Implementing that

protection, the Court has required states to implement the current medical consensus on both assessments of intellectual functioning, see id. at 724, and

deficits in adaptive functioning. See Moore v. Texas,

581 U.S. 1, 5–6 (2017).

To determine whether a person has intellectual

5

disability, courts must account for the current medical

understanding of the disorder.

B. States Must Account for the Current Medical Consensus, Which Now Recognizes NDPAE Encompasses Commensurate Deficits

to Intellectual Disability, to Determine Who

They Exempt from Execution

Recent advancements in understanding intelligence and fetal alcohol spectrum disorders in general

and ND-PAE in particular have led experts in the field

away from a use of IQ testing and towards a clinically

based model that focuses on adaptive deficits. See

James C. Harris & Stephen Greenspan, Definition

and Nature of Intellectual Disability in Nirbary N.

Singh, Handbook of Evidence Based Practices in Intellectual and Developmental Disabilities (2016);

Christopher Fanning, Defining Intellectual Disability:

Fetal Alcohol Spectrum Disorders and Capital Punishment, 38 Rutgers L. Rec. 1 (2010); George W.

Woods & Stephen Greenspan, Intellectual Disability

as a Disorder of Reasoning and Judgment: The Move

Away from Intelligence Quotient Ceilings, 27 Current

Op. in Psy. 110 (2014); Timothy E. Moore & M. Green,

Fetal Alcohol Spectrum Disorder (FASD): A Need for

Closer Examination by the Criminal Justice System,

19 Crim. Reports 99 (2004). These advancements have

rendered irrelevant, under the current medical definition, the use of IQ testing as a means to exclude from

treatment persons with substantial impairments in

adaptive functioning with onset during the development period.

They have also newly recognized that ND-PAE and

ID are, like Down Syndrome and Fragile X disorder,

ID-equivalent conditions, notwithstanding IQ score.

Natalie Novick Brown & Stephen Greenspan,

6

Diagnosing Intellectual Disability in People with

FASD: A Function of Which Diagnostic Manual Is

Used?, 40 Behav. Sci. & L. 31 (2021); Stephen Greenspan, et al., FASD and the Concept of “Intellectual Disability Equivalence”, in Monty Nelson & Marguerite

Trussler, Law and Ethics in Fetal Alcohol Spectrum

Disorder (2016). Accounting for these advancements,

an IQ score of around 70 is no longer required for persons with ND-PAE for exclusion from execution.

Which Manual?, supra, at 31; Stephen Greenspan,

James C.O. Harris, & George W. Woods, Intellectual

Disability Is “A Condition, Not a Number”: Ethics of

IQ Cut-offs in Psychiatry, Human Service, and Law, 1

Ethics, Med. & Pub. Health 312 (2015).

ND-PAE is a fetal alcohol spectrum disorder. For

diagnosis, a patient must undergo a multidisciplinary

assessment conducted by a neuropsychologist, medical doctor, and psychologist. Natalie Novick Brown, et

al., Prenatal Alcohol Exposure: An Assessment Strategy for the Legal Context, 42 Int’l J. L. & Mental

Health 144 (2015); Natalie Novick Brown, et al., A

proposed Model Standard for Forensic Assessment of

FASD, 38 J. Psy. & L. 383 (2010). A person may be

diagnosed with ND-PAE only if there is verified prenatal alcohol exposure and deficits manifesting in

childhood that span the neurocognitive, self-regulatory, and adaptive areas. APA, Diagnostic and Statistical Manual of Mental Disorders (5th ed., text rev.)

(2022).

In 2013, in the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual, ND-PAE was listed as among “Conditions for Further Study,” which encouraged medical professionals

to study the disorder and to develop diagnostic

7

criterial. Id. In the intervening decade, researchers

heeded this call.

In the intervening years, medical standards have

developed to recognize a consensus that ND-PAE as a

lifelong disorder that is congenital, manifesting early

in childhood and presenting with impairments and

support needs that are the same as those with intellectual disability. Stephen Greenspan, et al., Determining Disability Severity for Fetal Alcohol Spectrum

Disorder: Assessing the Extent of Impairment in Natalie Novick Brown, Evaluating Fetal Alcohol Spectrum Disorders (FASD) in the Forensic Context: A

Manual for Mental Health Practice (2021). Those similarities hold, even when a person with ND-PAE has

an IQ above 75. Natalie Novick Brown, Fetal Alcohol

Spectrum Disorders (FASD): Intellectual Disability

Equivalence in Stephen Greenspan, et al., Fetal Alcohol Spectrum Disorder in Adults: Ethical and Legal

Perspectives (2019).

Over the last decade, in the context of intellectual

disability assessments, there has been a growing consensus against placing undue weight on IQ testing

and, instead, focusing on adaptive behavior and executive functioning. Executive functioning and adaptive

behavior provide a more realistic paradigm for assessing the impacts of a disorder because they are oriented around real world challenges. This paradigm

holds true for normally developing individuals, Emily

Gardiner & Grace Iarocci, Everyday Executive Function Predicts Adaptive and Internalizing Behavior in

Children with and Without Autism Spectrum Disorder

11 Autism Res. 284 (2017), as well as autism spectrum

disorder, Lorcan Cribb, et al., Childhood Executive

Function Predicts Later Autistic Feature and Adaptive

Behavior in Young Autistic People: A 12-Year

8

Prospective Study, 47 J. Abnormal Child Psy. 1089

(2018), Down syndrome, Camila Sabat, et al., Different Abilities Needed at Home and School: The Relation

Between Executive Function and Adaptive Behavior in

Adolescents with Down Syndrome, 10 Sci. Rep. 1683

(2020), and FASD. See Ashley L. Ware, et al., Executive Function Predicts Adaptive Behavior in Children

with Histories of Heavy Prenatal Alcohol Exposure

and Attention Deficit/Hyperactivity Disorder, 36 Alcoholism: Clinical & Experimental Res. 1431 (2012);

Amy M. Schonfeld, et al., Executive Functioning Predicts Social Skills Following Prenatal Alcohol Exposure, 12 Child Neuropsy. 439 (2006). In fact, when IQ

and executive functioning were recently compared in

a study involving children with mild intellectual disability, executive functioning directly predicted adaptive behavior while IQ did not. See Sissel Gravrakmo,

et al., Associations Between Executive Functions, Intelligence and Adaptive Behaviour in Children and

Adolescents with Mild Intellectual Disability, J. of Intellectual Disabilities (2022).

The similarities between intellectual disability

and ND-PAE are extensive. See Natalie Novick Brown

& C.R. Reynolds, Connecting the Dots: Functional Behavior Evaluation in Fetal Alcohol Spectrum Disorder

in Evaluating Fetal Alcohol Spectrum Disorders

(FASD) in the Forensic Context. Beyond the similarities in symptoms and course, treatments also are similar; although neither can be cured, the effects of each

are amenable to interventions that mitigate their effects. Stephen Greenspan, et al., Determining Disability Severity Level for Fetal Alcohol Spectrum Disorder:

Assessing the Extent of Impairment in Evaluating Fetal Alcohol Spectrum Disorders (FASD) in the Forensic Context. Both disorders also have come to be

9

defined by disordered thinking and an inability to

adapt to changing environments. See Anastasia Hronis, et al., A Review of Cognitive Impairments in Children with Intellectual Disability: Implications for Cognitive Behvioural Therapy, 56 British J. Clin. Psy. 189

(2017); H. Carmichael Olson, et al., Neuropsychological Deficits in Adolescents with Fetal Alcohol Syndrome; Clinical Findings, 22 Alcoholism: Clinical and

Experimental Research 8 (1998-2012). Behaviors associated with these conditions are typified by taking

particular courses of action without recognizing or

avoiding risk. K. Wyper & J. Pei, Neurocognitive Difficulties Underlying High Risk and Criminal Behaviour in FASD: Clinical Implications in Nelson &

Trussler, supra; Natalie Novick Brown & Stephen

Greenspan, Diminished Culpability in Fetal Alcohol

Spectrum Disorders, 39 Behav. Sci. & L. 1 (2021); Lisa

Christensen & Bruce L. Baker, Risk-taking and Delinquent Behaviors Among Youth with and Without

Intellectual Disabilities, 13 J. Mental Health & Res.

in Intellectual Disabilities 1 (2020). Because these behavioral impairments define both disorders, the

emerging medical consensus is that an IQ score

should not be the point of emphasis for either diagnosis and that ND-PAE and ID are equivalent disorders.

See Greenspan, The Gradual Move Away, supra, at 10.

II.

THE FLORIDA SUPREME COURT

FAILED TO ACCOUNT FOR THE

CURRENT

MEDICAL

CONSENSUS

THAT ND-PAE IS FUNCTIONALLY

EQUIVALENT

TO

INTELLECTUAL

DISABLITY

The Court below did not account for how development in the medical consensus undermines its refusal

to extend Atkins protections to those with conditions

10

other than intellectual disability per se, but with developmental disability of indistinguishable blameworthiness. The court below refused to entertain the new

medical consensus that ND-PAE is an ID-equivalent

disorder and that IQ testing no longer has the weight

it once possessed. Instead, it flatly observed that it

had long declined to extend Atkins to those with conditions other than intellectual disability. Pet. App. 5.

But in light of the current medical understanding,

no extension is required. Rather, mere recognition of

the equivalence of these two developmental disabilities is needed. ND-PAE is an ID-equivalent disorder,

and applying this current medical consensus requires

shielding Mr. Dillbeck from execution. The Florida

Supreme Court failed to consider, let alone account

for, this emergent consensus and, thus, failed to meet

the Eighth Amendment's mandate to avoid an intolerable risk of wrongful execution.

III.

EXECUTING MR. DILLBECK WOULD

DEFY

CAPITAL

PUNISHMENT’S

PENALOGICAL JUSTIFICATION

It is firmly established that “[n]o legitimate penological purpose is served by executing a person with intellectual disability.” Hall v. Florida, 572 U.S. 701,

708 (2014) (citing Atkins, 536 U.S. at 317, 320). The

Eighth Amendment prohibits executing the intellectually disabled because doing so can serve neither deterrence nor retribution. Id. at 709. As set forth above,

the medical and scientific rationale for this prohibition under the Eighth Amendment applies as much to

the intellectually disabled as it does to those, like Mr.

Dillbeck, who are developmentally disabled with the

mental defect of ND-PAE.

11

Expert reports on Mr. Dillbeck issued May 1, 2019,

establish that he plainly satisfies—indeed, exceeds—

all criteria for ND-PAE. (PCR4 84). Mr. Dillbeck’s forensic psychological evaluation specifically established: (1) his gestational alcohol exposure exceeded by

more than 40 times the monthly threshold for “more

than minimal” exposure, given that his mother consumed 18-to-24 beers daily for the duration of her

pregnancy; (2) he possessed four neurocognitive impairments in the categories of intellectual/IQ discrepancies, academic achievement, verbal learning/memory, and visuospatial construction; (3) he was

impaired in executive functioning; (4) he suffered

three adaptive impairments regarding socialization,

daily living skills, and communication; (5) he had

early childhood speech, language, and learning deficits establishing childhood onset of clinically significant impairments; (6) his impairments caused secondary disabilities, namely (a) school disruption, (b) mental health problems, (c) substance abuse, (d) negative

contact with the law, and (e) confinement; and (7)

other possible causes of his dysfunction were ruled

out. (PCR 84-85).

Experts also conducted quantitative electroencephalogram (qEEG) brain mapping of Mr. Dillbeck, which

applies “digitalization/computerized methods to the

analysis of the well-established practice of studying

the brain’s electrical activity.” (PCR4 151). This form

of mapping permits the quantification of brain waive

testing. (Id.). Broadly, the point of a qEEG in relation

to Mr. Dillbeck’s legal position is to present medical

findings speaking to the question of his blameworthiness for his actions. (PCR4 153). To that end, this

brain mapping provided that Mr. Dillbeck’s “qEEG as

a whole is clearly and markedly abnormal,” and

12

“showed ‘dysregulation’ (a general term conveying abnormalities of various types . . .) on both the right and

left sides of the brain and affecting all of its major sections: the frontal, temporal, parietal and occipital

lobes.” (PCR4 156).

Further, the analytic technique applied to the qEEG

“showed a particular abnormality located at the left

inferior frontal lobe. This area of the brain is vital in

the following: Executive, Functioning, Abstract

Thinking, Language Expression, Sequential (i.e., strategic) Planning, mood control and social skills.” (PCR4

156-57 (emphasis in original)). Furthermore, every

single qEEG-based indicia of brain connectivity were

“abnormal” and “impaired in every one of the brain’s

four regions.” (PCR4 157).

In sum, Mr. Dillbeck’s brain mapping data and analysis leave nothing to the imagination, resoundingly

confirming the forensic psychological evaluation’s

ND-PAE diagnosis. (Id.).

13

CONCLUSION

For all of the foregoing reasons, amicus respectfully submits that the Court should grant the petition.

JOHN R. MILLS

PHILLIPS BLACK, INC.

1721 Broadway, Suite 201

Oakland, CA 94612

888-532-0897

j.mills@phillipsblack.org

JOSEPH J. PERKOVICH

PHILLIPS BLACK, INC.

P.O. Box 3547

New York, NY 10008

Counsel for Amicus Curiae

February 2023