Amicus Curiae Brief — Hall v. Thaler

No. 10-37

— me ee wee =

IN ‘THI 7

Supreme Court of the Gnited States

5 mee ee ee

On Petition for a Writ of C'ertuorari to the

(/nited States Court of Appeal for lhe fifth eT

BRIEF OF THE AMERICAN ASSOCIATION ON

INTELLECTUAL AND DEVELOPMENTAL

DISABILITIES (AAIDD) AND THE ARC OF

THE UNITED STATES AS AMICI CURIAIL

IN SUPPORT OF PETITIONER

Danny } Ashby

danny.ashby@klvat

Counsel of Record

Cnr tophe I). Krato

Casey P. Kaplan*

K&L GATES LLP

1717 Main

Dallas, Texas 7520)

(214) 9389-5500

Street ‘ Liite

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“mpervi ed by prin

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A. Atkins Grants States the Limited Task

of Implementing Ways to Evaluate

Atkins Claims Pursuant to the Clinical

Definition of Mental Retardation. .......... 15

B. Reliance on Clinical Judgment of

Trained Mental Retardation Experts

Promotes Accurate and Just

Assessments of Atkins Claims. ............... 17

. Properly Trained Clinicians

Provide the Most Reliable

Evidence for Fact-Finder’s

Determination of Mental

PROCTOR IIIN acini ode cncovicasstevavesesnaces 19

The Dangers and Unreliability

of Lay Persons’ Assessments

Regarding an Individual’s

Diagnosis of Mental

PERT REIN, ...5.5.000<0000<na0eacces000 ee

bo

C. Texas’s Departure from the Clinical

Standard for Assessing and Diagnosing

Mental Retardation Results in Under-

Protection of Atkins Rights.........00...00...... 21

iL. The Texas Court of Criminal

Appeals’ Briseno Decision. ......... 21

2. In the Case at Bar, the Lower

Courts Failed to Follow the

Correct Clinical Definition of

Mental Retardation. ................... 25

Pe a Nr aa ieeereranerine 27

11}

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma,

B70 U.S CLOGS oovcvccicccccsccccssccsccnccaseiazscashncie 18

Atkins v. Virginia,

FeO Fs Te vo sn ccncas cesuncasiavenseratines ...passim

Brown v. State,

S50 0.20 146 CP 1a, BOOT). svcceccsccccccnvescacesesseass eS

Brumsfield v. Cain,

No. 04-787-J3J B-CN, 2008 WL 2600140

(WA. EF. Lam. FUME BO, ZOOS) oc. ci ccccscccsssccssse: eye

City of Cleburne v. Cleburne Living Ctr.,

ae eee ee ON ok chs cae dea sino ae

Clark v. Quarterman,

Mist Fee BEL (AD Cab. DOG) isa cessnticcsesivcacewensvess 12

Ex parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004)..... 12, 18, 21,

Ex parte Van Alstyne,

239 S.W.3d 815 (Tex. Crim. App. 2007) .............. 24

Ford v. Wainwright,

477 U.S. 399 (1986).......... ERR en eesmrey WE i

Heller v. Doe,

509 U.S. 312 (1993)................ meee ree Ma

lV

Hill v. Anderson,

300 F.3d G79 (Gth Coir; BOOZ) ok ccacaccavasaceceass eee 16

Holladay v. Campbell,

463 F. Supp. 2d 1324 (N.D. Ala. 2006),

aff'd, 535 F.3d 1346 (11th Cir. 2... 14

Lambert v. State.

126 P.3d 646 (Okla. Crim. App. 2005)................. 15

Maldonado v. Thaler,

662 F. Supp. 2d 684 (S.D. Tex. 2009).................. 24

Neal v. State,

256 S.W.3d 264 (Tex. Crim. App. 2008), cert

denied, _U.S.___, 129 S. Ct. 1037 (2009)......... 13

Penry v. Johnson,

$32 U.S. 782 (2001) G:..c.. cia 17

Penry v. Lynaugh,

4927 U.S. S02 (108) nie 1, 13-14, 17

State v. Dunn,

831 So. 20 S62 (La. 2002)... 17

State v. White,

885 N.E.2a@ 905 (Ohio 2006) nice 14

Tennard v. Dretke,

542 U.S. 274 (2000 nna ee 17

U.S. v. Cisneros,

385 F. Supp. 2d 567 (E.D. Va. 2005) ............-...... 16

CO

a

V

Van Tran. v. State,

No. W200501334CCAR3PD, 2006 WL 3327828

(Tenn. Crim. App. Nov. 9, 2006).......................08 24

Wiley v. State,

890 So.2d 892, 897 (Miss. 2004), aff'd,

Wiley v. Epps, No. 2:00CV130-P-A, 2007

WL 405041 (N.D. Miss. Feb. 2, 2007)............ 12,18

Williams v. Dretke ,

No. Civ. Action H-04-2945, 2005 U.S. Dist.

LEXIS 34438, at *18-*19 (S.D. Tex. July 15,

2005), affd in part, remanded in part, 293 F.

App’x 298 (5th Cir. 2008)293 F. App'x 298

ecu sscsncessavscnessecscosccesoassccecesans 18

Williams v. Quarterman,

293 F. App'x 298 (5th Cir. 2008).................... 13, 24

CONSTITUTIONAL PROVISIONS AND STATUTES

SE SASMIOTIC], WAI1..............0.0cccccccecccosesseseses 2,14

Trex. HEALTH & SAFETY CODE § 591.003(138)............ 21

OTHER AUTHORITIES

American Ass'n on Intellectual and

Developmental Disabilities, Intellectual

Disability: Definition, Classification, and

Systems of Supports (11th ed. 2010) .......... passim

American Ass'n on Mental Retardation, Mental

Retardation: Definition, Classification, and

Systems of Supports (10th ed. 2002) ............ passim

vl

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders

(2a OG, TORE cacssccnestienee eee 10-11

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders

(4B @Gk. COME FOV; DOD oicvcciccsdessansecceciortccerc te a

American Psychological Association, Manual

of Diagnosis and Professional Practice in

Mental Retardation (John W. Jacobson

and James A. Mulick eds., 1996).............. 6,11,18

Rick F. Heber, A Manual on Terminology and

Classification in Mental Retardation: A

Monograph Supplement to the American

Journal on Mental Deficiency (1959)...............002. 11]

2 Kaplan & Sadock’s Comprehensive Textbook

of Psychiatry (Benjamin J. Sadock &

Virginia A. Sadock eds., 7th ed. 2000) .............0.... 5

Ruth Luckasson et al., Mental Retardation:

Definition, Classification, and Systems of

SaeOTES CHC. OG. LIE vi iscennsaskacdedeccansissnrsteccrenens 10

Robert L. Schalock & Ruth Luckasson,

Clinical Judgment (AAMR, 2005) ............0........ 6, 7

R. C. Scheerenberger, A History of Mental

Retardation: A Quarter Century of Progress

SP iinascctuskucotarsen oe ase ee 1]

1

INTERESTS OF THE AMICI CURIAE!

The American Association on Intellectual

and Developmental Disabilities (AAIDD)

(formerly The American Association on Mental

Retardation, AAMR), founded in 1876, is the

Nation’s oldest and _ largest organization of

professionals in the field of mental retardation. '

AAIDD has longstanding concerns about

constitutional and statutory protections for people

with mental disabilities—and mental retardation in

particular—in the criminal justice system. AAIDD

(as the AAMR) has appeared as amicus curiae before

this Court in numerous cases, including Atkins v.

Virginia, 536 U.S. 304 (2002).

AAIDD is also the organization that has

formulated the clinical definition of mental

retardation that is used by medical professionals in

every state. AAIDD’s§ definition of mental

retardation has been used by this Court in resolving

legal issues that affect people with mental

retardation. See, e.g., Atkins v. Virginia, 536 U.S. at

308 n.3; Heller v. Doe, 509 U.S. 312, 322 (1993);

Penry v. Lynaugh, 492 U.S. 302, 308 n.1 (1989); City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

442 n.9 (1985). Both as the formulator of the clinical

definition of mental retardation and as. an

' This brief was written entirely by counsel for amici, as

listed on the cover, and not by counsel for any party. No

outside monetary contributions were made to the preparation

or submission of this brief. The parties were notified ten (10)

days prior to the due date of this brief of the intention to file.

All parties have given written consent to the filing of this brief.

7

ee

organization vitally concerned about maintaining

appropriate professional standards in the diagnosis

of mental retardation, AAIDD has a strong interest

in the manner in which Atkins claims are evaluated

by the courts.

The Arc of the United States (“The Arc’) is

the world's largest community based organization of

and for people with intellectual and developmental

disabilities. The Arc advocates for the rights and

full participation of all children and adults with

intellectual and developmental disabilities. It

provides an array of services and support for families

and individuals and includes over 140,000 members

affiliated through 730 state and local chapters across

the nation. The Arc is devoted to ensuring the civil

rights of and promoting and improving supports and

services for all people with intellectual and

developmental disabilities.

SUMMARY OF ARGUMENT

This Court has made clear that the Eighth

Amendment prohibits the execution of individuals

who have mental retardation. The lmuited task of

crafting the procedures under which courts will

determine whether a_ defendant has mental

retardation has been left, in the first instance, to the

states. The majority of the states have had

relatively little difficulty in establishing procedures

that are designed to assure even-handed evaluation

3

of individual claims based on clinical diagnoses and

expert testimony.

A few states, however, in addition to selecting

implementing procedures, have crafted their own

substantive definitions of mental retardation that

are incompatible with scientific and _ clinical

understanding. The result is that many individuals

who clearly meet the accepted clinical definition of

mental retardation are at risk of being sentenced to

death and executed. Texas is such a state.

States that adopt non-clinical definitions of

mental retardation (usually based solely on lay

observations) are abusing the _ responsibility

entrusted to them in Atkins and defying a clear

constitutional mandate. Amici agree with Petitioner

that Texas employs standards and procedures for

evaluating Atkins claims that are inconsistent with

the established scientific understanding of mental

retardation. This procedure departs from clinical

standards both by employing irrelevant questions to

gauge adaptive limitations and by using so-called

“environmental factors” to present a false dichotomy

in diagnosing mental retardation. Under-protection

pursuant to Atkins is a growing problem, as other

states have departed from the clinical standards for

diagnosing mental retardation.

This case provides the Court with an appropriate

vehicle to remind lower courts that fidelity to the

holding of Atkins requires even-handed application

of the definition Atkins embraced, and requires

adherence to the clinical understanding of mental

retardation that is its foundation. More importantly,

4

this case provides the Court the opportunity to

confirm that Atkins did not give states license to

narrow the class of persons who fall within the

constitutional prohibition and to exclude some who,

in fact, have mental retardation. Unless the Court

acts to affirm Atkins’s meaning, persons whom any

reasonable clinician would deem to have mental

retardation will be erroneously and

unconstitutionally determined to be death eligible.

REASONS THE WRIT SHOULD BE GRANTED

I. COURTS SHOULD UNDERSTAND AND

APPLY THE CLINICAL DEFINTION OF

MENTAL RETARDATION.

The broadly-accepted AAIDD definition of

mental retardation is the starting point for any

discussion of appropriate diagnosis or classification.

AAIDD’s definition provides: “[Mental Retardation]

is characterized by significant limitations both in

intellectual functioning and in adaptive behavior as

expressed in conceptual, social, and_ practical

adaptive skills. This disability originates before age

18.” AAID, Jntellectual Disability: Definition,

Classification, and Systems of Supports 6 (11th ed.

2010) [hereinafter AAID 2010}.?

2 In the 11th edition of Jntellectual Disability: Definition,

Classification, and Systems of Support, AAIDD uses the term

intellectual disability throughout to replace the previously used

term mental retardation. The two terms are identical, and the

meaning of mental retardation has not changed.

(continued onto next page)

5

A. The Three Prongs of Mental Retardation

Under the AAIDD Definition.

A diagnosis of mental retardation requires the

evaluation of three separate criteria, or prongs. The

first prong ‘involves a “significant limitation” in

intellectual functioning, which requires that the

measured intelligence of the individual fall

approximately two standard deviations below the

mean.? The measurement of intellectual functioning

The term intellectual disability is now preferred by mental

disability professionals, advocates, and others for a number of

reasons. But given that the Court’s decision in Atkins uses the

term mental retardation, amici continue to use that term in

this brief.

3. Atkins noted that “an IQ between 70 and 75 or lower. . .

is typically considered the cutoff IQ score for the intellectual

function prong of the mental retardation definition.” 536 U.S.

at 309 n.5 (citing 2 Kaplan & Sadock’s Comprehensive Textbook

of Psychiatry 2952 (Benjamin J. Sadock & Virginia A. Sadock

eds., 7th ed. 2000)). It is consistent with the requirements of

the American Psychiatric Association’s diagnostic manual:

Significantly subaverage intellectual

functioning is defined as an IQ of about 70 or

below. . . . It should be noted that there is a

measurement error of approximately 5 points in

assessing IQ, although this may vary from

instrument to instrument (e.g., a Wechsler IQ of

70 is considered to represent a range of 65-75).

Thus, it is possible to diagnose Mental

Retardation in individuals with IQs between 70

and 75 who exhibit significant deficits in

adaptive behavior.

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 41-42 (4th ed. text rev. 2000)

(hereinafter DSM-IV-TR].

6

is evaluated through careful assessment of the

individual’s scores on IQ tests. These psychometric

instruments allow an experienced clinician to assess

whether the individual meets the requirements of

the definition’s first prong. As discussed in more

detail infra, because there are minor differences in

scoring among the IQ tests employed, and because

other factors can affect the reliability of the raw IQ

score, the clinical judgment of an experienced mental

retardation professional is essential in assuring

accuracy in the interpretation of test results. Robert

L. Schalock & Ruth Luckasson, Clinical Judgment 5-

6 (AAMR, 2005).

The second prong of the AAIDD definition

requires that an individual must have significant

hmitations in adaptive behavior to be diagnosed

with mental retardation. This requirement is

designed to make sure that the individual’s IQ score

is a reflection of a real-world disability, and not

merely a testing anomaly. The focus of the clinical

inquiry regarding this second prong is to determine

whether there are significant things that the

individual being evaiuated cannot do that someone

without his disability can do. Adaptive behavior is

evaluated against a standardized measure that is

“normed” on the general population including people

with and without mental retardation.

The concept of adaptive skills implies an array of

competencies and provides foundation for three key

points: (a) the assessment of adaptive behavior is

based on the person’s typical (not maximum)

performance; (b) adaptive skill limitations often

coexist with strengths; and (c) the person’s

7

limitations in adaptive skills should be documented

within the context of community and cultural

environments typical of the person’s age peers. As

with measuring intellectual functioning, assessing

an individual's adaptive skills requires a clinical

review by an experienced mental retardation

professional, as a comprehensive assessment. will

likely include a systematic review of the person’s

family history, medical history, school records,

»mployment records, other relevant information, and

clinical interviews with a person or persons who

know the individual well.

The third prong of the definition requires that

the disability manifest before the ave of 18.

Application of the third prong is not at issue in this

case.

This Court has observed that diagnosing

whether an individual has mental retardation is less

complex than the diagnosis of many forms of mental

illness. Heller, 509 U.S. at 321-22. Moreover, there

are objective measures of intellectual functioning (IQ

tests), as well as a history of performance, behavior,

and observations by others regarding deficits in

adaptive skills. Individual assessment, however, still

requires careful clinical judgment. Schalock &

Luckasson, ante, at 5-6. Consequently, it 1s crucial to

prevent stereotypes about people who have mental

retardation from clouding or distorting individual

assessment.

|

B. The Etiology of Mental Retardation

Indicates that the Condition Often

Originates on a Postnatal Basis After

Environmental Events Occur.

While many lay persons are under the

impression that the etiology of mental retardation is

solely a pvenetic condition, genetics cannot explain

the cause of mental retardation in every case

Individuals may be born with perfectly normal DNA

and still develop mental retardation due to such

factors as birth injury, malnutrition, child abuse, or

extreme social deprivation. Understanding the

cause of mental retardation in these cases requires

consideration of social, behavioral, and educational

risk factors.

Because the various lower courts in this case

implicitly rehed on evidence invoking these post-

birth risk factors social, behavioral, and

educational (labeled “environmental factors”) in

determining Petitioner was not due Atkins

protection for mental retardation, an understanding

of how these environmental factors are often the root

cause of mental retardation is critical.

The impairment of functioning that is present

when an individual meets the criteria for a diagnosis

of mental retardation often reflects the presence of

several risk factors that interact over time.

Therefore, in evaluating the etiology of mental

retardation, the risk factors must be evaluated

contextually at different times of the individual's

life: prenatal, perinatal, and postnatal. It is

important to note, as well, that those individuals

10

clinical definition of and etiological bases for mental

retardation on their collective heads.

Any determination that an individual is not

entitled to Atkins protection because the person’s low

IQ and adaptive deficiencies may have been due to

postnatal “environmental factors” improperly

ignores etiological considerations that have long

been an important part of the psychological and

medical consensus in diagnosing mental retardation.

C. The History and Current Uniformity of

the Definition and Clinical

Understanding of Mental Retardation.

An analysis of the definitions of mental

retardation used over the last fifty or more years

demonstrates that the three essential elements of

mental retardation—limitations in intellectual

functioning, behavioral limitations in adapting to

environmental demands, and early age of onset-

have essentially remained unchanged. See e.g., Ruth

Luckasson et al., Mental Retardation: Definition,

Classification, and Systems of Supports 1 (9th ed.

1992) (“Mental retardation refers to substantial

limitations in_ present functioning. It is

characterized by significantly subaverage

intellectual functioning, existing concurrently with

related limitations in two or more of the following

applicable adaptive skill areas: communication, self-

care, home living, social skills, community use, self-

direction, health and safety, functional academics,

leisure and work. Mental retardation manifests

before age 18.”); American Psychiatric Association,

Diagnostic and _ Statistical Manual of Mental

ig

Disorders 14 (2d ed. 1968) (“Mental retardation

refers to subnormal general intellectual functioning

that originates during the developmental period and

is associated with impairment of either learning and

social adjustment or maturation, or both.”); Rick F.

Heber, A Manual on Terminology and Classification

in Mental Retardation: A Monograph Supplement to

the American Journal on Mental Deficiency 3 (1959)

(“Mental retardation refers to subaverage general

intellectual functioning that originates during the

development period and is_ associated with

impairment in one or more of the following: (1)

maturation, (2) learning, (8) social adjustment.”).

These historical definitions exemplify the

consistency of the modern definition of mental

retardation that the Court adopted in Atkins.

Consistency and consensus are also reflected in

the clinical definition of mental retardation, and the

major elements common to the current definition

have been used by professionals in the United States

for over 100 years. See generally R.C.

Scheerenberger, A History of Mental Retardation: A

Quarter Century of Progress (1988). Additionally,

this Court recognized the consensus in statutory

definitions of mental retardation which “generally

conform to the clinical definitions” of the

AAIDD/AAMR and the American Psychiatric

Association. Atkins, 536 U.S. at 317. n. 22.

Despite this uniformity in clinical communities

and throughout many states (and their courts) that

have adopted the clinical definition of mental

retardation, some lower courts, like those in Texas,

have rejected clinical understandings of mental

12

retardation. In doing so, these courts have

erroneously denied Atkins claims, either relying on

archaic stereotypes about the abilities of people with

mental retardation, or misinterpreting the presence

of mental retardation because of the contribution of

“environmental factors.” For example, in Ex parte

Briseno, 1385 S.W.3d 1 (Tex. Crim. App. 2004),

discussed in detail post at 22-26, the Texas Court of

Criminal Appeals cited the clinical definition of

mental retardation but then departed from a clinical

assessment or diagnosis, especially as it related to

evaluating the adaptive behavior criteria. Likewise,

in another Texas case, courts denied Atkins relief

because “evidence of a strength in a particular area

of adaptive functioning necessarily shows that the

defendant does not have a weakness in that

particular area.” Clark v. Quarterman, 457 F.3d

441, 447 (5th Cir. 2006).

A Florida court also found that a mental

retardation diagnosis “was contradictory to the

evidence that Brown was engaged in a five-year

intimate relationship prior to the crime, that he had

his driver's license and drove a car, and that he was

employed in numerous jobs including as a

mechanic.” Brown vu. State, 959 So.2d 146, 150 (Fla.

2007). And in Mississippi, Atkins rehef was denied

based on what the defendant could do, rather than

what he could not. Wiley v. State, 890 So.2d 892, 897

(Miss. 2004) (“These reports, affidavits and

testimonies do not paint the picture of a retarded

person.”), affd, Wiley v. Epps, No. 2:00CV130-P-A,

2007 WL 405041, at *34-40 (N.D. Miss. Feb. 2,

2007).

13

furthermore, several Texas cases follow the

clinically disavowed view that mental retardation

and personality disorders are mutually exclusive,

See, e.g., Williams v. Quarterman, 293 F. App’x 298,

312 (5th Cir. 2008); Neal v. State, 256 S.W.3d 264,

274-75 (Tex. Crim. App. 2008), cert denied,

__US._, 129 S. Ct. 1037 (2009). <A 2008

Louisiana case takes the same erroneous approach.

Brumsfield v. Cain, No. 04-787-JJB-CN, 2008 WL

2600140 (M.D. La. June 30, 2008) (affirming

reasonableness of trial court determination where

evidence “indicated that a= significant part of

Brumfield’s difficulties actually stem from his

attention deficit disorder ... which, while it results

in an inability to focus, is not equivalent to mental

retardation’).

These cases demonstrate not only the confusion

among some courts about the clinical

understandings of mental retardation (despite the

historical clinical consensus) but also the necessity of

this Court to affirm the holding of Atkins and to

correct lower courts that have taken this Court’s

instruction to devise appropriate procedures as tacit

permission to improvise non-clinical substantive

standards more to their liking.

II. STATES MUST FOLLOW THE ATKINS

Vv. VIRGINIA FRAMEWORK THAT

ADOPTS A CLINICAL DEFINITION OF

MENTAL RETARDATION.

In Atkins, this Court held that the consistent

wave of state legislative action after Penry ov.

14

Lynaugh, 492 U.S. 302 (1989) (“Penry I’), established

a national consensus against executions of persons

with mental retardation. Atkins, 5386 U.S. at 313-16.

Under Atkins, the Eighth Amendment protects those

individuals who meet the AAIDD/AAMR criteria, or

the virtually identical criteria of the Diagnostic and

Statistical Manual of Mental Disorders. See DSM-IV-

TR at 41.

Most states and federal courts have faithfully

applied Atkins, and their decisions correctly reflect

the clinical understanding of adaptive functioning

deficits. Some have even explicitly rejected the kind

of errors made by the Texas courts. For example, the

Ohio Supreme Court reversed a lower court

determination that the defendant did not have

mental retardation where that finding had been

based on stereotypes about what an individual with

the disability could not do and what he might look

like. State v. White, 885 N..2d 905, 915 (Ohio 2008)

(“There was no evidence that bizarre behavior is a

necessary attribute of the mentally retarded.”); id.

(“Especially relevant here is .. . [the], observation

that retarded individuals ‘may look relatively normal

in some areas and have significant limitations in

other areas.’ ”) (emphasis in original).

In Alabama, a federal district court reversed: a

state court finding of no mental retardation, faulting

the prosecution’s expert for “look[ing] upon

inappropriate conduct as something separate from

mental retardation, rather than as indicating a lack

of support which has impeded adaptation.” Holladay

v. Campbell, 463 F. Supp. 2d 1324, 1344 (N.D. Ala.

2006), affd, 535 F.3d 1346 (11th Cir. 2009); see id. at

1d

1345 (“This court rejects the argument that willful

and anti-social behavior excludes a_ mental

retardation determination. To the contrary, it sug-

gests that a person whose IQ tests strongly indicate

mental retardation has not adapted.”).

Similarly, in Oklahoma, the Court of Criminal

Appeals held that because evidence concerning

mental disorders did not offset the alleged adaptive

behavior limitations, it was irrelevant to the mental

retardation determination. Lambert v. State, 126

P.3d 646, 659 (Okla. Crim. App. 2005) (“Mental

retardation and mental illness are separate issues. It

is possible to be mentally retarded and mentally

ill.”); id. at 651 (“Unless a defendant’s evidence of

particular limitations is specifically contradicted by

evidence that he does not have those limitations,

then the defendant’s burden is met no matter what

evidence the State might offer that he has no deficits

in other skill areas.”).

As discussed ante at 13-14, however, other courts

have departed from a faithful application of Atkins

which requires this Court to reaffirm the principles

of Atkins.

A. Atkins Grants States the Limited Task of

Implementing Ways to Evaluate Atkins

Claims Pursuant to the Clinical

Definition of Mental Retardation.

Since Atkins, most jurisdictions have adopted

and apphed the appropriate clinical definitions

pursuant to this Court’s mandate. As the Sixth

Circuit noted, “|W]hen discussing retardation in

16

Atkins, the Supreme Court cited with approval

psychologists’ and psychiatrists’ ‘clinical definitions

of mental retardation, and presumably expected

that states will adhere to these clinically accepted

definitions when evaluating an individual’s claim to

be retarded.” Hill v. Anderson, 300 F.3d 679, 682

(6th Cir. 2002) (citing Atkins, 536 U.S. at 309, n. 3).

Indeed, courts recognize that this Court limited the

states to adopting a definition of mental retardation

and the corresponding procedures for evaluating

Atkins claims embraced by the national consensus.‘

A few states, however, have taken Atkins’s

statement that lower courts and state legislatures

may adopt their own procedures for “enforc[ing] the

constitutional restriction,” Atkins, 536 U.S. at 317

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

as license to embrace definitions of mental

retardation that deviate from, and are more

restrictive than, accepted clinical definitions and

practices. Yet nowhere in Atkins did the Court grant

states the right to restrict or narrow the substantive

definition of mental retardation, of which there is a

clear clinical consensus.

4 See, e.g., U.S. v. Cisneros, 385 F. Supp. 2d 567, 569-70

(E.D. Va. 2005) (“The Court’s decision in Atkins makes clear,

however, that the prohibition on execution applies to all

defendants that ‘fall within the range of mentally retarded

offenders about whom there is a_ national consensus.’

Accordingly, when adopting a statutory definition of mental

retardation, states cannot adopt a definition that fails to

protect any individuals who have mental retardation under a

definition embraced by a _ national consensus.”) (internal

citations omitted).

17

Indeed, it was in Ford, upon which the Court in

Atkins analogized, where the Court limited the

implementation of procedures for ensuring

constitutional safeguards by the very substance of

those safeguards. Ford, 477 U.S. at 405. Inviting

departure from the substance of those safeguards in

implementing procedures to diagnose mental

retardation was not and could not be the intention of

this Court. These gross deviations from the clinical

understanding of mental retardation have had the

effect of excluding some individuals who clearly fall

within the class protected by Atkins. The reluctance

of Texas courts to follow this Court’s mandate in

Atkins echoes their decade-long resistance to this

Court’s clear teachings in Penry I. See, e.g., Tennard

uv. Dretke, 542 U.S. 274 (2004); Penry v. Johnson, 532

U.S. 782 (2001) (“Penry IT’).

B. Reliance on Clinical Judgment of

Trained Mental Retardation Experts

Promotes Accurate and Just Assessments

of Atkins Claims.

Under Atkins, criminal defendants are not

subject to the death penalty if they have mental

retardation. This elevates the question of whether a

defendant has mental retardation not just to a

constitutional question but to a life or death issue.

Courts have recognized, however, that making an

accurate judicial assessment of mental retardation

claims is not a simple task.

Some states rightly require expert testimony in

Atkins hearings. See e.g., State v. Dunn, 831 So. 2d

862, 887 (La. 2002) (remanding for Atkins hearing

18

“during which the court will be guided by evaluation

and diagnosis made by those with expertise in

diagnosing mental retardation.”); Wiley v. State, 890

So. 2d at 895 (Miss. 2004) (Mississippi law requires

Atkins claimant to submit expert testimony that he

or she has mental retardation under AAMR or APA

definitions); see also Ake v. Oklahoma, 470 U.S. 68,

82 (1985) (indigent defendant entitled to assistance

of psychiatrist because, “without the assistance of a

psychiatrist to conduct a professional examination

on issues relevant to the defense, to help determine

whether the insanity defense is viable, to present

testimony, and to assist in preparing the cross-

examination of a State’s psychiatric witnesses, the

risk of an inaccurate resolution of sanity issues is

extremely high. With such assistance, the defendant

is fairly able to present at least enough information

to the jury, in a meaningful manner, as to permit it

to make a sensible determination.”).

At least one court in Texas has recognized the

importance of clinical judgment in Atkins inquiries.

See Williams v. Dretke, Civ. Action No. H-04-2945,

2005 U.S. Dist. LEXIS 34438, at *18-*19 (S.D. Tex.

July 15, 2005), affd in part, remanded in part, 293

F. App’x 298 (5th Cir. 2008) (providing “funding for

expert assistance” to inmate with colorable Atkins

claim). This case, however, is the exception that

proves the Texas rule that, based on Briseno,

discussed infra, and the case at bar, ‘Texas does not

require and, indeed, departs from clinical judgment

in Atkins inquiries.

19

I. Properly Trained Clinicians Provide the

Most Reliable Evidence for Fact-Finder’s

Determination of Mental Retardation.

Proper diagnosis of mental retardation requires

a complex scientific analysis of cognitive ability,

adaptive functioning, and personal history. No

element of the definition predominates. The

application of clinical judgment is crucial because

the definition of mental retardation requires a multi-

faceted scientific analysis of an individual’s cognitive

abilities and adaptive skills and deficits observed in

a variety of typical environments.®

Clinical experts typically measure cognitive

ability and adaptive behavior by administering tests.

Importantly, using clinical judgment, trained clinical

experts also compile and evaluate a detailed history

of the defendant’s adaptive skills and deficits across

a spectrum of typical environments. This history is

based on available academic, medical or other

records, and interviews of the defendant and non-

experts who have observed the defendant. Clinical

judgment is the reason lay observation can assist a

clinical professional in informing his judgment about

an individual's adaptive deficits or skills, even

® The issue of mental retardation is fundamentally

different from the issue of competency to stand trial, in which

trial courts can use common sense and their own observations

(along with expert opinions) to assess whether the defendant

can assist in his or her own defense. In contrast, mental

retardation is not susceptible to evaluation by non-experts, and

the disability can be assessed only through scientific tests

administered by experienced professionals in the field using

their training, experience, and clinical judgment.

20

though the same observation, standing alone, has

little probative value. Clinical judgment allows

complex, sometimes seemingly contradictory

information to be put in the proper perspective to

determine if an individual has mental retardation

2. The Dangers and Unreliability of Lay

Persons’ Assessments Regarding an

Individual’s Diagnosis of Mental

Retardation.

Non-expert witnesses who lack the necessary

clinical background in mental retardation are just as

likely to confuse the fact-finder as to assist it.

Despite the fact that mental retardation is a

permanent condition, isolated adaptive skills and

deficits can change over time through hfe experience

and learning, or by virtue of personalized supports

Lay observations should be limited to factual history

since isolated observations of adaptive behaviors are

of no probative value with respect to diagnosis. The

non-expert lacks an understanding of the continuum

of skills and deficits that an individual may exhibit

across different aspects of everyday life. Non-expert

recollections about a defendant’s adaptive behavior

also may be inaccurate or biased. Non-experts

frequently have limited opportunities to observe the

defendant, or have multiple observations of the

defendant in a single setting, which are of lhmited

value.

An expert clinician, on the other hand,

understands that “limitations in adaptive skills

should be documented within the context of ordinary

community environments typical of the person’s age

2)

he

peers[.]” AAID 2010 at 16. Expert analysis of

observations across multiple environments and time

periods, and the application of clinical judgment,

filters potential inaccuracies and biases of non-

experts and leads to a more complete and accurate

picture of the defendant’s adaptive deficits.

Ultimately, fact-finders are more likely to assess

an individual's mental retardation accurately if they

rely on evidence provided by properly trained

experts. Reliance on non-expert opinions and

evidence should be carefully circumscribed.

C. Texas's Departure from the Clinical

Standard for Assessing and Diagnosing

Mental Retardation Results in Under-

Protection of Atkins Rights.

I. The Texas Court of Criminal Appeals’

Briseno Decision.

In 2004, the Texas Court of Criminal Appeals

decided Briseno, the currently controlling authority

in ‘Texas for Atkins cases. In that singular case, the

Texas Court of Criminal Appeals set a course for

Atkins jurisprudence that would impact the case at

bar as well as many other cases where Atkins

inquiries are at issue.

In Briseno, the Court of Criminal Appeals

recognized both the clinical definition of mental

retardation of the AAIDD/AAMR and the definition

under ‘Thx. HEALTH & SAFETY CODE § 591.003(13).

Briseno, 135 S.W.3d at 7 (“Under the AAMR

definition, mental retardation is a_ disability

ya

4 et

characterized by: (1) “significantly subaverape’”

general intellectual functioning; (2) accompanied by

“related” limitations in adaptive functioning; (3) the

onset of which occurs prior to the age of 1%.

|T'|he definition under the Texas Health and Safety

Code is” similar: ‘mental retardation’ means

significantly subaverage general intellectual

functioning that is concurrent with deficits in

adaptive behavior and originates during the

developmental period.”) (internal quotations

omitted) (emphasis in original). Because the Texas

Legislature had yet to define mental retardation

specifically for Atkins purposes, the Texas Court of

Criminal appeals accepted cither definition — in

determining Atkins claims. /d. at &

However, from there, the ‘Texas Court of

Criminal Appeals departed from a chmeal

assessment or diagnosis, especially as it related to

evaluating the adaptive behavior criteria. Indeed,

the court stated, “The adaptive behavior criteria are

exceedingly subjective, and undoubtedly experts will

be found to offer opinions on both sides of the issue

in most cases.” /d. at & The court continued and

listed several “factors” to resolve questions about

adaptive behavior. /d. at 8-9. ‘These so-called

“evidentiary factors” took the form of a list of

questions including:

“* Did those who knew the person best

during the developmental stave his

family, friends, teachers, employers,

authorities think he was” mentally

retarded at that time, and, if so, aet in

accordance with that determination?

* Has the person formulated plans and

carmed them through or is) his) conduet

impulsive?

* Does his conduct show leadership or doe

we

it show that he is led around by others

* Is his conduct in response to external

stimuh rational and appropriate

reyardless of whether it) is socially

acceptable?

* Does he respond coherently, rationally,

and on point to oral or written questions or

do his responses wander from subject to

subject?

* Can the person hide facts or he

effectively in bis own or others' miterests’?

* Putting aside any hemmousness or

vyrucsomeness surrounding the capital

offense, did the commission of that offense

require forethought, planning, and complex

“

execution of purpose

Id. ‘This list of “factors” identified by the TPexa:

Court of Criminal Appeals has no basis of support in

the chineal literature or in the understanding of

mental retardation by experienced professionals in

the field, but nonetheless is being cited by other

courts. Indeed, the opinion of the Texas Court of

Criminal Appeals in Briseno, perhaps because of this

so-called list of “factors,” has even caupht the

24

attention of courts in other states. See, e.g., Van

Tran v. State, No. W200501334CCAR3PD, 2006 WL

3327828, at *23-24 (Tenn. Crim. App. Nov. 9, 2006).

Despite the lack of support for the use of these

“factors” in diagnosing mental retardation, Texas

and a few federal courts continue to erroneously rely

on them in judging whether an individual should be

afforded protection under Atkins. See, e.g., Williams

v. Quarterman, 293 F. App’x 298, 311-12 (5th Cir.

2008) (relying on Briseno’s so-called “evidentiary

factors” in deciding whether evidence suggested

mental retardation); Maldonado v. Thaler, 662 F.

Supp. 2d 684, 729-30 (S.D. Tex. 2009) (affirming the

state court's use of and its own interpretation of the

lay person's assessments of defendant’s mental

retardation and the evidentiary factors that

ultimately guided the court’s review under Atkins);

Ex parte Van Alstyne, 239 S.W.3d 815, 820 (Tex.

Crim. App. 2007) (referring to state factors set forth

in Briseno for determining Atkins claims as “non-

diagnostic criteria’). Briseno has planted a seed that

legal principles can be built out of preconceived

notions of what mental retardation looks lke to the

lay person and that their conclusions will be followed

even if they are flatly contrary to science.

Briseno’s holding is demonstrative of the growing

problem in Texas and elsewhere of permitting non-

expert assessments of mental retardation to have

independent and significant weight in the diagnosis

of mental retardation under Atkins. Though the

district court in this case did not explicitly rely on

Briseno in rendering its erroneous decision, it

mimicked Briseno’s methodology. Briseno’s reliance

95

snd (

on these “evidentiary factors” that have no basis in

the clinical diagnosis of mental retardation is

infectious and has the potential to render the

protections afforded by Atkins meaningless. Because

the legal standard under Atkins is the diagnosis

itself, an Atkins determination should not be based

on a list of jury charge-style questions with no

clinical foundation whatsoever.

2. In the Case at Bar, the Lower Courts

Failed to Follow the Correct Clinical

Definition of Mental Retardation.

Petitioner rightly concludes that a split exists

among the states on whether sub-70 IQ scores and

adaptive deficiencies that are attributable, at least

in part, to “environmental factors” satisfy Atkins.

But it is Texas’ position that they do not satisfy

Atkins that is erroneous. Indeed, the holdings by the

lower courts in this case are part of a growing

problem where a few courts’ attempts to avoid Atkins

protection are causing confusion in what should be

settled law. As discussed ante at 25, since Briseno,

Texas courts (along with courts in other states) have

been failing to follow the correct clinical definition of

mental retardation, which necessarily involves a

clinical diagnosis or assessment of mental

retardation by an expert.

Rather than follow the clinical definition of

mental retardation, the lower courts in this case

relied on conclusions against the clinical consensus

in diagnosing mental retardation. For example, the

lower courts embraced the notion that

“environmental factors” could exclude someone from

26

Atkins protection by asserting that his or her

adaptive deficiencies were not due to mental

retardation. These same postnatal “environmental

factors,’ could have also, the courts reasoned,

contributed to a lower 1Q score. The lower courts’

line of reasoning demonstrates the disconnect in the

courts between the condition of mental retardation

itself and the etiology of the condition. If the lower

courts in Texas and elsewhere continue to present a

false dichotomy to deny protection under Atkins, the

very constitutional hmitations recognized by this

Court will be eviscerated under the guise of

implementing Atkins-mandated procedures.

The courts below clearly misunderstood the

definition of mental retardation and _ wrongly

beheved that Petitioner was not entitled to relief

under Atkins because his low IQ score and adaptive

deficiencies were caused, possibly, by postnatal

“environmental factors.” Such a conclusion is

unsupported by the clinical literature and, if allowed

to stand, will render a_ significant number of

individuals with mental retardation at risk of being

wrongfully sentenced to death and executed. If

Atkins is to have meaning, this Court should grant

certiorari to correct this fundamental and

impermissible misunderstanding of the clinical

definition of mental retardation.

CONCLUSION

The petition for a writ of certiorari sh

granted

Danny 8S. Ashby

y@kli gate

Counsel of Record

LOUTLSCL OF; icc. Ur d

danny.ashby

Christopher D. Kratoy

Casey P. Kaplan*

K&L GATES LLP

1717 Main Street

Suite 2800

Dallas, Texas

(214) GR9-5500

$/ an} . j

Admitted onl 1€Xas.