Amicus Curiae Brief — Hall v. Thaler

AUG 5 - 2010

No. 10-37 CERICE Ur THE CLERK

Supreme Court of the Hnited States

MICHAEL HALL, as

Petitioner,

7

RICK THALER,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

BRIEF OF TEXAS STATE SENATOR

RODNEY ELLIS; TEXAS STATE

REPRESENTATIVE ELLIOTT NAISHTAT:

CAPACITY FOR JUSTICE, INC.;

ADVOCACY, INC.; TEXAS APPLESEED;

& THE ARC OF TEXAS AS AMICT CURIAE

IN SUPPORT OF PETITIONER

Lawrence M. Doss

Counsel of Record

Melissa Morgan

MULLIN HOARD & BROWN, L.L.P.

1500 Broadway, Suite 700,

Lubbock, Texas 79401

(806) 765-7491

Email: ldoss@mhba.com

TABLE OF CONTENTS

Ps CE FRE MRE 1 sca veenivsevnevsstovnencncadonane ill

INTEREST OF THE AMICI CURIAE...........0000..... 1

SUMMARY OF THE ARGUMENT.........00...0...0000..... 4

REASONS THE WRIT SHOULD BE

I. THE STATE OF TEXAS HAS

BEEN UNABLE OR UNWILLING

TO ENACT LEGISLATION TO

COMPLY WITH THIS COURT'S

DRPIDUAIORE Te IN PAT MR II asc ceinisssicansnsccessdecoveses 5

Il. TEXAS’ COMMON LAW DEFINI-

TION OF MENTAL RETARDA-

TION FOR CAPITAL CASES

PERMITS FACT-FINDERS TO

CAPRICIOUSLY DEVIATE FROM

THE CLINICAL STANDARDS

ARTICULATED IN ATKINS, AND

EFFECTIVELY DEPRIVES

CAPITAL DEFENDANTS OF

MEANINGFUL JUDICIAL

DUNO osc vrarsdi hiv se pavissanccmcneceiers eekecomlvann .11

TE a bs ce scswadu sven sapsteduisevant deatsecns mw aneapneiee 27

il

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 536 U.S. 304

rere Ee cal as Ne aS passim

City of Cleburne v. Cleburne Living

Oe yy. Ba ae Sek.) neni 11

Ex parte Briseno, 135 S.W.3d (Tex.

Is PEN IE oe ovccesscctsuncisosascaescaenves passim

Ex parte Van Alstyne, 239 S.W.3d

815 (Tex. Crim. App. 2007) .................00..000.. 19

Ford v. Wainwright, 477 U.S. 399

SU oe eee reek ee a a 4

Furman v. Georgia, 408 U.S. 238

bo: ee are EARLS IN AAR SMC 4

Gregg v. Georgia, 428 U.S. 153 (1976)............... 4

Holladay v. Campbell, 555 F.3d 1346

Er 24

Lambert v. State, 126 P.3d 646 (Okla.

eM oe cguana liars 24

Lizcano v. State, No. AP-75879, 2010

WL 1817772 *1 (Tex. Crim. App.

sc aiden 25-26

il]

TABLE OF AUTHORITIES — Continued

Page

Neal v. State, 256 S.W.3d 264 (Tex.

Nes I, I oicsacieseaccianesteccacniovkebtanndeas 24

CONSTITUTIONAL PROVISIONS

TEXAS CONSTITUTION, ART. 3, Sec. 5 ...............005 6

U.S. CONSTITUTION, AMENDMENT VIII..... passim

STATUTES

TEX. HEALTH & SAFETY CODE §&

591.003 (Vernon 2010) .................ccccsssecceeeeee 14

OTHER AUTHORITIES

AMERICAN ASSOCIATION ON _ IN-

TELLECTUAL AND DEVELOPMENTAL

DISABILITIES (AAIDD), _ INTEL-

LECTUAL DISABILITY: DEFINITION,

CLASSIFICATION AND SYSTEMS OF

SUPPORT (11th ed. 2010)..0........ccece cece eeeeeeeeee 13

AMERICAN ASSOCIATION ON _ IN-

TELLECTUAL AND DEVELOPMENTAL

DISABILITIES (AAIDD), _INTEL-

LECTUAL DISABILITY: DEFINITION,

CLASSIFICATION AND SYSTEMS OF

SUPPORT (9th ed. 1992)...............cccccsssccsssecees 13

1V

TABLE OF AUTHORITIES — Continued

Page

Blume, John H., et a/., Of Atkins and

Men: Deviations From Clinical

Definitions of Mental Retardation

in Death Penalty Cases, 18

CORNELL J.L & PUB. POL’Y 689

CI wii svasvonsvecsetscdeiesteccstesiumieseeics tee 20

Bonnie, Richard J. & Katherine

Gustafson, The Challenge of

Implementing Atkins v. Virginia:

How Legislatures and Courts Can

Promote Accurate Assessments and

Adjudications of Mental

Retardation in Death FPenalty

Cases, 41 U. RICH. L. REv. 811

(QOIF) sa cossunssevccsuhsdesterentseteeeerciaon eee 20

Budd, Edward C., et al, Exploring

the Outer Limits of Response Bias,

14 SOCIOLOGICAL FOCUS 297, 305-

OB CIQBRY 6. sessdscissrsecrcsersussereentone a eae 21

Ellis, James W. & Ruth A. Luckasson,

Mentally Retarded Defendants, 53

GEO. WASH. L. REV. 414 (1988) .............. 21. =

KAPLAN & SADOCK’S COMPREHENSIVE

TEXTBOOK OF PSYCHIATRY (7th ed.

| | aR Deore m ROU x5 sete 13

V

TABLE OF AUTHORITIES — Continued

Page

Sigelman, Carol, et al, The

Responsiveness of Mentally

Retarded Persons to Questions, 17

Epuc. & ‘TRAINING MENTALLY

RETARDED 120, 123 (1982) .........ssscsessooees 20-21

Sorgen, Michael S., The Classification

Process and its Consequences, 1N

THE MENTALLY RETARDED CITIZEN

AND THE LAW (Michael Kindred et

Ne co sopbavensansaceccessvdpevoss 17

Wehmeyer, Michael L. & Susan B.

Palmer, Adu/t Outcomes (for

Students with Cognitive

Disabilities Three-Years After

High School: The Impact of Self

Determination, 38 EDU. & TRAIN.

IN DEV. DISABILITIES 131-44 (2009).............. 24

WEHMEYER, MICHAEL L., £7 AL.,

TEACHING SELF-DETERMINATION TO

STUDENTS WITH DISABILITIES: BASIC

SKILLS FOR SUCCESSFUL

) 24

Zywein, Stephanie, Executing the

Insane- A Look at the Death

Penalty Schemes in Arkansas,

Georgia, and Texas, 12 SUFFOLK Jd.

TRIAL & App. ADVOC. 93 (2007) ............000006+. 19

INTEREST OF THE AMICI CURIAE:

Texas State Senator Rodney Ellis (Ellis) was

elected to the Texas Senate in 1990. Senator Ellis is

the current Chairman of the Senate Committee on

Government Organization, and serves on the Senate

State Affairs, Criminal Justice, and Transportation

and Homeland Security Committees. During his

tenure, Senator Ellis has introduced six bills that

sought constitutional compliance for assessing

mental retardation in capital cases.

Texas State Representative Elliott Naishtat

(Naishtat) was elected to the Texas House of

Representatives in 1990. He has been re-elected nine

times and serves as a member of the Human

Services Committee and Vice Chair of the Public

Health Committee. In ten sessions, Rep. Naishtat

has passed over 200 bills, including bills that

expanded protective services for elderly and disabled

people, created a statewide guardianship program,

and enhanced crime victims’ rights. In addition, he

co-sponsored bills that protect patients in managed

care organizations and psychiatric, substance abuse

and rehabilitation facilities.

1 The parties were notified prior to the due date of this

brief of the intention to file. The parties have consented to the

filing of this brief.

Funding of $200.00 for the printing of this brief was

provided by Harry Whittington, of Austin, Texas. All other

expenses and fees for the preparation and submission of the

brief were borne by the amici curiae. No counsel for any party

authored this brief.

2

Capacity for Justice (C4J) was founded in 1995

with a mission to increase the objectivity and

validity of psycho-legal elements in juvenile and

criminal forensic evaluations. C4J’s work focuses on

respondents and defendants with mental illness,

intellectual disability or concurrent mental and

substance use disorders. C4J conducts research,

training, and compiles a registry of professionals

whose credentials are consistent with the Texas

statutory requirements for evaluating incompetency

to stand trial and the insanity defense.

Advocacy, Inc. is a nonprofit corporation funded

by the United States Congress to protect and

advocate for the legal rights of people with

disabilities in Texas. It is not a part of state or loca]

government. It has offices throughout Texas and a

Board of Directors appointed mainly by disability

organizations. The mission of Advocacy, Inc. is to

advocate for, protect, and advance the legal, human,

and service rights of people with disabilities,

including those suffering from intellectual disability.

Texas Appleseed is a 501(c)(3) public interest

law center whose mission is to promote social and

economic justice for all Texans by leveraging the

skills and resources of volunteer lawyers to identify

practical solutions to difficult systemic problems. It

has been a leader in the effort to assure that persons

who have a mental illness or an_ intellectual

disability receive fair, appropriate treatment in the

Texas criminal justice system. It has published a

handbook for attorneys, OPENING THE DOOR: JUSTICE

FOR DEFENDANTS WITH MENTAL RETARDATION, that

has been replicated in several other states.

,

The Arc of Texas is the oldest and largest

nonprofit, volunteer organization in the state

committed to creating opportunities for people with

intellectual and developmental disabilities to be

included in their communities and to make the

choices which affect their lives. Since its founding in

1950, The Arc has been instrumental in the creation

of virtually every program, service, right, and benefit

now available to the hundreds of thousands of

Texans with intellectual and other developmental!

disabilities

4

SUMMARY OF THE ARGUMENT

Nearly forty years ago, this Court held that

imposition of the death penalty violates) an

individual's protections under the Kighth

Amendment to the United States Constitution when

sentencing juries do not receive meaningful guidance

to channel their discretion. Gregg v. Georgia, 428

U.S. 153, 189, 195 (1976); Furman v. Georgia, 408

U.S. 238, 248, 253 (1972) (Douglas, J., concurring).

History demonstrates that when juries are not

guided with proper evaluative criteria for assessing

evidence, the death sentence is imposed in a

“freakish” manner. Gregg, 428 U.S. at 189.

This essential constitutional principle guides the

present appeal. When this Court held that execution

is not a suitable punishment for an offender with

mental retardation,’ it left the responsibility with

the States to implement substantive and procedural

mechanisms to ensure that these individuals would

not be executed. Atkins v. Virginia, 5386 U.S. 304.

317 (2002) (citing Ford v. Wainwright, A477 U.S. 399.

416-17 (1986)). Since Atkins, though, the Legislature

of the State of Texas has been either unable or

unwilling to enact any legislation that respond:

Court's mandate.

Consistent with more modern definitions that have

replaced the use of the term “mental retardation,” amucy prefer

use of the term “intellectual disability.” However, given that

the Courts decision in Atkins uses the term mental

retardation, a77ici use that term 1n tnis bDriel

~

2

The Texas Court of Criminal Appeals, the

highest court in Texas for matters of criminal law,

therefore “creatled] law” to fill the legislative lacuna.

Ex Parte Briseno, 135 S.W.3d 1, 4-5 (Tex. Crim. App.

2004). These standards and procedures deviate from

a well-established clinical understanding of what

constitutes mental retardation, and more critically,

inject consideration of “other evidentiary factors”

that serve no meaningful guidance in a fact-finder’s

determination of whether an individual shall be

entitled to the Eighth Amendment protections

mandated in Atkins. Absent meaningful guidance

and effective judicial review, the Texas-imposed

standards for ascertaining mental retardation create

a constitutionally impermissible risk of arbitrary

and capricious imposition of the death penalty.

REASONS THE WRIT SHOULD BE GRANTED

I. THE STATE OF TEXAS HAS BEEN

UNABLE OR UNWILLING TO ENACT

LEGISLATION TO COMPLY WITH THIS

COURT'S MANDATE IN ATKINS.

At the time this Court decided Atkins, the Texas

Legislature had enacted a law? prohibiting the

execution of offenders with mental retardation. This

law was vetoed by the State’s governor.* Since that

time, little has changed in the Texas Legislature to

ensure that the rights of individuals with mental

3 H.B. 236, 77th Leg., Reg. Sess. (Tex. 2001).

4 Atkins, 506 U.S. at 315; Ex Parte Briseno, 135 S.W.3d

1, 6-7 (Tex. Crim. App. 2004).

6

retardation are protected. After Atkins, the Texas

Legislature has met at least 12 times® and

considered 13 bills addressing procedures for

assessing whether a capital defendant suffers from

mental retardation.® Every bill has failed.

In 2003, a bill by State Representative Terry

Keel, a former sheriff and prosecutor, proceeded the

furthest through the Texas legislative process of any

Atkins related bill. House Bill 614,’ along with

companion Senate Bill 332, filed by State Senator

Todd Staples, sought a process for assessing a

capital defendant’s mental retardation in the

punishment phase of a capital trial by asking jurors

5 The Texas Legislature meets for its regular session

every other year, and during special sessions as may be

convened by the governor. TEX. CONST. ART. 3, Sec. 5. There

have been four regular sessions and eight special sessions since

the passage of Atkins. After the 78% regular session of the

Texas Legislature, there were four special sessions of the 78%

Texas Legislature. After the 79% regular session of the Texas

Legislature, there were three special sessions. There were no

special sessions of the 80** Texas Legislature and only one

special session of the 81*t Texas Legislature, so far. The 81*

Texas Legislature ends when the new session is convened in

January 2011.

6 H.B. 614, 78th Leg., Reg. Sess. (Tex. 2003); H.B. 664,

78th Leg., Reg. Sess. (Tex. 2003); S.B. 163, 78th Leg., Reg.

Sess. (Tex. 2003); S.B. 332, 78th Leg., Reg. Sess. (Tex.

2003);S.B. 389, 78th Leg., Reg. Sess. (Tex. 2003); H.B. 419,

79th Leg., Reg. Sess. (Tex. 2005); S.B. 65, 79th Leg., Reg. Sess.

(Tex. 2005); S.B. 85, 79th Leg., Reg. Sess. (Tex. 2005): S.B. 231,

79th Leg., Reg. Sess. (Tex. 2005); S.B. 249, 80th Leg., Reg.

Sess. (Tex. 2007); H.B. 1152, 81st Leg., Reg. Sess. (Tex. 2009);

H.B. 4466, 81st Leg., Reg. Sess. (Tex. 2009); S.B. 167, 81st Leg.,

Reg. Sess. (Tex. 2009).

7 H.B. 614, 78th Leg., Reg. Sess. (Tex. 2003).

7

whether the defendant is a person with mental

retardation. The proposed law required the

defendant to present objective evidence of potential

mental retardation at least sixty days before the

beginning of vorr dire.

A representative of the Polk County Criminal

District Attorney's Office, several individuals and a

representative of “Justice for All,” a pro-death

penalty and victim’s rights group,® testified in

support of H.B. 614. Opposed to the bill included a

representative of the Texas Criminal Defense

Lawyers Association; representatives of several

advocacy organizations for mentally’ disabled

persons;? a member of the Board of Directors of the

National Academy of Neuropsychology; a

representative of the Texas Psychological

Association; and several others. House Bill 614

received a favorable vote in committee and was

passed by the house, but S.B. 332 was never

assigned to a committee in the senate.

There were three other bills filed in 2003 that

sought to comply with Atkins. State Representative

Pete Gallego authored House Bill 664.19 Senator

8 Justice for All, http://jfa.net/index.html (last visited

July 26, 2010).

8 The Arc of Texas, http://www.thearcoftexas.org/ (last

visited July 26, 2010); Justice for Defendants With Mental

Impairments, http://www.texasappleseed.net/ (follow hyperlink

for “Justice for Defendants With Mental Impairments”) (last

visited July 26, 2010); Texa Advocates,

http://www.thearcoftexas.org/ta/ (last visiteu -y 26, 2010).

10 H.B. 664, 78th Leg., Reg. Sess. (Tex. 2003).

8

Ellis filed Senate Bills 1631! and 389.12 All three bills

included additional due process provisions for capital

defendants, including the requirement that

disinterested, experienced, and qualified experts be

appointed to assess the mental retardation of the

defendant. None of the bills received action by the

legislative committees to which they were referred.!4

In 2004 and 2005, four bills addressing Atkins’

mandates were filed. House Bill 41914 by State

Representative Keel, along with companion bill, S.B.

6515 by State Senator Todd Staples, contained

similar substance with the bills filed by these

legislators during the 78» Legislature. Senator Ellis

also authored two bills: S.B. 8516 and S.B. 231.17

11 §.B. 163, 78th Leg., Reg. Sess. (Tex. 2003).

12 §.B. 389, 78th Leg., Reg. Sess. (Tex. 2003).

13 Committee action is the first crucial step in the process

by which a bill becomes a law in Texas. Guide to Texas

Legislative Information: Process for a Bill, “The role of

committees,” http://www.tlc.state.tx.us/gtli/legproc/process_-

role.htm!] (last visited July 26, 2010). Once a bill is filed, it is

referred by the speaker of the house or lieutenant governor to a

committee. Guide to Texas Legislative Information: Process for

a Bill, “Referral to a commitcee,” http‘//www.tle.state.tx.us-

/gtli/legproc/process_referral.html (last visited July 26, 2010).

After a bill is referred to a committee, it may fail simply

because the committee chooses to take no action. Guide to

Texas Legislative Information: Process for a Bill, “Committee

reports,” http://www.tlc.state.tx.us/gtli/legproc/process_com-

report.html (last visited July 26, 2010).

14 H.B. 419, 79th Leg., Reg. Sess. (Tex. 2005).

15 §.B. 65, 79th Leg., Reg. Sess. (Tex. 2005).

16 §.B. 85, 79th Leg., Reg. Sess. (Tex. 2005).

17 §.B. 231, 79th Leg., Reg. Sess. (Tex. 2005).

Senate Bill 85 was intended to implement a pre-trial

process for assessing whether a capital defendant

suffers from mental retardation. Senate Bull 231

sought to assess whether certain convicted and

sentenced capital offenders with mental retardation.

All four bills failed to receive committee hearings.

In 2007, Senator Ellis authored Senate Bill 24918

in an effort to implement a pre-trial process to assess

the intellectual disability of a capital defendant

before the guilt-innocence phase of a capital trial,

and to assess capital offenders post-conviction. Like

the prior efforts to comply with Atkins, Senate Bill

249 did not receive support in committee.

During the most recent regular legislative

session, three bills to implement Atkins were filed.

House Bill 1152,!9 by State Representative Senfronia

Thompson, along with companion S.B. 16729 by

Senator Ellis, sought to ensure a pre-trial hearing

for assessing the mental retardation, if any, of a

capital offender. The House Committee on Criminal

Jurisprudence heard live testimony in support of

H.B. 1152 from one _ individual and_ three

organizations. In addition, at least seven

organizations and religious entities provided written

testimony in support of H.B. 1152.

The committee also heard testimony opposed to

H.B. 1152 from various district attorneys offices and

one individual. House Bill 1152 received a favorable

vote in committee, but was never scheduled for a

18 §.B. 249, 80th Leg., Reg. Sess. (Tex. 2007).

18 H.B. 1152, 81st Leg., Reg. Sess. (Tex. 2009).

20 §.B. 167, 81st Leg., Reg. Sess. (Tex. 2009).

10

vote of the full house.2} Senate Bill 167 received no

hearing in its committee.

During the same legislative session,

Representative Gallego authored House Bill 4466.22

The bill, among other things, proposed a _ post-

sentencing hearing wherein the court would receive

testimony from two disinterested and qualified

experts regarding whether the capital offender

suffered from mental retardation. House Bill 4466

bill never received a committee vote.

The State of Texas’ ineffective attempts to

legislatively implement this Court’s holding in

Atkins shows why the Court should grant the

petition for certiorari. States that desire to continue

their practices of capital punishment should not be

permitted to neglect their Eighth Amendment

responsibilities by failing or refusing to enact

legislation that adopts a consistent clinical definition

of mental retardation. As shown below, an

evaluative framework that deviates from the

established clinical definition encourages speculation

by the finder of fact is contrary to the evolving

standard of decency in the United States.

21 After a house committee hears testimony on a bill, the

bil! must be placed on a calendar before the full house may

consider it. Guide to Texas Legislative Information:

http://www.tlc.state.tx.us/gtli/legproc/process_comreport.html

(last visited July 26, 2010). “Calendars committees are given

wide discretion in scheduling bills for floor consideration.” Jd.

If a bill is not timely placed on the calendar for full house

consideration, the bill wili never become law. /d.

22 H.B. 4466, 81st Leg., Reg. Sess. (Tex. 2009).

1]

I. TEXAS’ COMMON LAW DEFINITION OF

MENTAL RETARDATION FOR CAPITAL

CASES PERMITS FACT-FINDERS TO

CAPRICIOUSLY DEVIATE FROM THE

CLINICAL STANDARDS ARTICULATED IN

ATKINS, AND EFFECTIVELY DEPRIVES

CAPITAL DEFENDANTS OF MEANINGFUL

JUDICIAL REVIEW.

In the midst of the Texas Legislature’s inability

to fashion a statutory framework to ensure —

consistent with Atkins — that capital defendants

with mental retardation are not executed, the courts

in Texas have struggled to find their own answer.

This conflict has been particularly felt in the Texas

Court of Criminal Appeals, the highest court in

Texas for matters of criminal law. Recognizing the

need for a judicial patch until the legislature could

enact law that complies with Atkins, the court of

criminal appeals “creat[ed] law” to provide the bench

and bar with “temporary” judicial guidelines in

addressing Atkins claims. #riseno, 135 S.W.3d at 4-

5.

A. The Definition of Mental Retardation Was

Articulated in M&riseno, which Originally

Purported to Apply the Atkins Diagnostic

Criteria, Plus Other “Evidentiary Factors.”

In 2004, the Texas Court of Criminal Appeals

acknowledged this Court’s mandates in Atkins and

attempted to fashion a constitutional remedy to fill

the legislative gap. Jd. After it observed that “the

mentally retarded are not ‘all cut from the same

12

pattern”23 and that it does not possess the

legislative knowledge sufficient to determine

whether any consensus exists in Texas about the

level and degree of mental retardation that should

exempt a capital defendant from execution,”4

however, the court declined to announce a bright line

definition.

23. ~Briseno, 135 S.W.3d at 5 (quoting City of Cleburne v.

Cleburne Living Ctr.,.473 U.S. 432, 442 (1985)); Atkins, 536

U.S. at 317).

24 The Briseno court queried:

Most Texas citizens might agree that

Steinbeck’s Lennie should, by virtue of his lack

of reasoning ability and adaptive skills, be

exempt. But, does a consensus of Texas citizens

agree that all persons who might legitimately

qualify for assistance under the social services

definition of mental retardation be exempt from

an otherwise constitutional penalty? Put

another way, is there a national] or Texas

consensus that all of those persons whom the

mental health profession might diagnose as

meeting the criteria for mental retardation are

automatically less morally culpable than those

who just barely miss meeting those criteria? Is

there, and should there be, a “mental

retardation” bright-line exemption from our

state’s maximum statutory punishment? As a

court dealing with individual cases and

litigants, we decline to answer that normative

question without significantly greater

assistance from the citizenry acting through its

Legislature.

135 S.W.3d at 6 (citing JOHN STEINBECK, OF MICE AND MEN

(1937)).

13

Instead, the court fashioned its own hybrid

remedy. The court in #riseno originally parrots the

clinical definitions of mental retardation as

expressly recognized in Atkins and set out by the

American Association on Mental Retardation?5 and

25 The American Association on Mental Retardation

(AAMR) is now known as the American Association on

Intellectual and Developmental Disabilities (AAIDD). The

organization’s widely-accepted definition of mental retardation

contains three factors:

[Mental Retardation] is characterized by

[1] significant limitations both in __ intellectual

functioning and [2] in adaptive behavior as expressed

in conceptual, social, and practical adaptive skills.

[3] This disability originates before age 18.

AAID, INTELLECTUAL DISABILITY: DEFINITION, CLASSIFICATION,

AND SYSTEMS OF SUPPORTS 6 (11th ed. 2010).

This Court observed that the first factor is typically

assessed through an intelligence test: “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 (B. Sadock &

V. Sadock eds., 7th ed. 2000).

Mental retardation’s second assessment factor requires a

limitation in two or more adaptive skill areas:

communication, self-care, home living, social skills,

community use, self-direction, health and safety,

functional academics, leisure, and work.

Atkins, 536 U.S. at 309 n3 (citing AAIDD, MENTAL

RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF

SuPPoRTS 5 (9th ed. 1992)). These criteria are virtually

identical to those proposed by the American Psychological

Association’s assessment of adaptive functioning for defining

mental retardation:

(continued on next page)

14

the Texas Health & Safety Code.26 The court then

foisted upon the clinical test a list of seven

“evidentiary factors” that factfinders “migh?’ also

use to weigh evidence regarding whether a capital

defendant suffers from mental retardation:

1. “Did those who knew the person best

during the developmental stage-his family,

friends, teachers, employers, authorities-

think he was mentally retarded at that

time, and, if so, act in accordance with that

determination?

2. “Has the person formulated plans and

carried them through or is his conduct

impulsive?

communication, self-care, home living,

social/interpersonal skills, use of community

resources, self-direction, functional academic skills,

work, leisure, health, and safety.

Id.

26 Section 591.003(13) of the Texas Health and Safety

Code defines mental retardation to mean:

significantly subaverage general intellectual

functioning that is concurrent with deficits in

adaptive behavior and originates during the

developmental period.

Under the code, adaptive behavior means “the effectiveness

with or degree to which a person meets the standards of

personal independence and social responsibility expected of the

person’s age and cultural group.” TEx. HEALTH & SAFETY CODE

§ 591.003(1) (Vernon 2010).

15

3. “Does his conduct show leadership or

does it show that he is led around by

others?”

4. “Is his conduct in response to external

stimuli rational and appropriate,

regardless of whether it is_ socially

acceptable?”

5. “Does he respond coherently, rationally,

and on point to oral or written questions or

do his responses wander from subject to

subject?”

6. “Can the person hide facts or lhe

effectively in his own or others’ interests?”

7. “Putting aside any heinousness or

gruesomeness' surrounding the _ capital

offense, did the commission of that offense

require forethought, planning, and complex

execution of purpose?”

135 S.W.3d at *8. ividence to assist the finder-of-

fact in answering these questions may be presented

through testimony of both lay and expert witnesses.

Jd. Ultimately, the #riseno court denied habeas

relief because it agreed that ample evidence existed

to support the trial court’s findings that the

applicant failed to show by a preponderance of the

evidence “that he has such ‘limitations in adaptive

functioning’ as would meet that prong of the

diagnostic criteria for mental retardation.” Id. at 18

(emphasis added).

16

Although the Texas Court of Criminal Appeals’

holding in Briseno attempted to meld the additional

factors into the diagnostic criteria recognized in

Atkins, the court has failed to show how these

additional factors find actual support in the clinical

definition of mental retardation or are otherwise

determinative by experienced professionals in the

field. The court appears to have adopted the test

because it beheves the clinical criteria used by

professionals “are exceedingly subjective, las]

undoubtedly experts will be found to offer opinions

on both sides of the issue in most cases.” /d. at 8

(alteration added). By fashioning a test that may be

answered through non-experienced witnesses and is

irrelevant to any clinically-adopted definition of

mental] retardation, these “Briseno factors” result in

a far more subjective determination of mental

retardation and undermine the constitutional

guarantee that a capital defendant’s life or death

will be decided by factfinders who are subject to

consistent standards that guide their discretion,

1. Permitting witnesses to speculate about

whether a defendant suffers from mental

retardation improperly creates “evidence”

based on little other than assumptions and

stereotypes.

The first Briseno factor demonstrates the

enhanced subjectivity that undermines — the

constitutional protections guaranteed by the Eighth

Amendment: lay witnesses who personally know the

defendant are permitted to speculate whether they

hbeheved the defendant was mentally retarded during

the developmental! period

17

The Texas Court of Criminal Appeals offers no

explanation of how permitting lay witnesses to opine

whether a defendant was “mentally retarded” or

“normal” provides any meaningful information § to

assist a factfinder in reaching its critical life-or

death decision. Individuals with mental retardation

suffer a lengthy history of unfounded stereotypes

and discrimination.*? Most lay witnesses possess no

training or understanding of mental retardation

other than notions and assumptions. This cannot be

a proper criterion for classifying mental retardation,

especially in a capital case.

In addition, a factfinéing process that secks

testimonial assumptions about mental retardation

eviscerates any meaningful process for judicial

review. What is the evaluative lens for reviewing a

finding of no mental retardation when the evidence

consists of testimony from a lay witness that the

defendant looked “normal” to them?” Should a court

give weight if the witness’ conclusion was based only

on his experience with Down's syndrome patients, as

occurred in the present case? Seeking conclusory

testimony to serve as “evidence” from the witness

box provides no more constitutional protection than

if factfinders were permitted to speculate about the

same question from the jury box.

*? See Michael S. Sorgen, The Classification Process and

its Consequences, in THE MENTALLY RETARDED CITIZEN AND

THE LAW 215-16 (Michael Kindred et al., eds., 1976).

* In Briseno, the court found it “highly significant” to its

habeas corpus analysis that no lay witness thought the

applicant might be mentally retarded. 145 S.W.3d at 17

18

2. Evidence of leadership skills is irrelevant to

a meaningful Atkins analysis.

The third Sriseno factor - whether the

defendant’s conduct shows “leadership” or is led by

others — suffers a similar evaluative malady. The

unarticulated assumption from the court of criminal

appeals appears to be that evidence of leadership

suggests a defendant is mentally retarded. This

factor is not consistent with this Court’s holding in

Atkins or in the clinically-reviewed adaptive

functioning criteria adopted by this’ Court.

Assuming, arguendo, however, that leadership (or

being led) plays any role in determining whether an

individual suffers from mental retardation, then the

evidence must accompany an assessment of the

person being led. A person should not be

characterized as less mentally retarded simply

because he has a follower. Without an evaluative

test that considers evidence of all parties and a

clinical relationship to the individual's adaptive

functioning, speculation about leadership skills

serves no place in a mental retardation analysis in

capital cases.

3. Evidence of any “rational and appropriate”

response to stimuli is inconsistent with the

factors in Atkins and confounds elements of

mental illness.

The fourth “evidentiary factor” articulated in the

additional Briseno analysis examines whether the

defendant’s response to external stimuli reaches the

level of “rational and appropriate [conduct],”

regardless of whether it would be “socially

19

acceptable.” Significant fundamental problems exist

with this “non-diagnostic” factor.?9

First, focus on a simple reference to “rational and

appropriate” stimulus responses is inconsistent with

the clinical tests adopted in Atkins, which find an

individual shows limited adaptive functioning if he

demonstrates limitations in at least two of the ten

adaptive skill areas. Atkins, 536 U.S. at 309 n.3.3°

The #riseno test guides jurors that individual who

rationally and appropriately responds to stimuli in a

single area may support a non-finding of mental

retardation. Accordingly, the factor flatly misstates

the relevant clinical testing criteria.

Second, a_ test questioning whether’ the

defendant’s actions are “rational and appropriate”

confounds mental retardation with mental iliness.*

29

See Ex parte Van A/styne, 239 S.W.3d 815, 820 (Tex.

Crim. App. 2007) (depicting its earlier Br7seno factors as “non-

diagnostic” criteria).

30 Two of the adaptive skill areas adopted by this Court —

home living and self-care — are ignored in the Briseno analysis

altogether. The Texas test thus fails to consider adaptive

functioning from any meaningful or comprehensive perspective:

it merely picks-and-chooses a subjective list of matters that

would permit a factfinder to replace established clinical data

and the opinion of trained professionals with unsupported

speculation from lay witnesses.

31 Mental illness has been defined as “any of various

conditions characterized by impairment of an individual's

normal cognitive, emotional, or behavioral functioning, and

caused by social, psychological, biochemical, genetic or other

factors.” Stephanie Zywein, Executing the Insane: A Look at

the Death Penalty Schemes in Arkansas, Georgia, and Texas,

12 SUFFOLK J. TRIAL & APP. ADVOC. 93, 113 (2007).

20

There is no support for the conclusion that

individuals with mental retardation are incapable of

responding to life’s situations rationally. While

these individuals may also have mental disorders,2

there is no support for the court of criminal appeals’

unsupported suggestion tnat a finding of rational

activity should permit the factfinder to rule-out a

finding of mental retardation. This poorly-devised

evidentiary construct requires correction.

4. Consideration of a defendant’s response to

oral or written questions is an ineffective

means to rule out mental retardatian.

Equally ineffective in assessing whether a capita]

defendant is mentally retarded is the fifth factor of

Briseno inquiring whether’ the defendant

“respondls] coherently, rationally, and on point to

oral or written questions or [whether] his responses

wander from subject to subject.” The test is defective

because it fails to take into account the form of the

question: yes-no questions are by-and-large much

easier to address than those asking for a narrative

answer or the expression of an opinion.

82. See John H. Blume, Sheri Lynn Johnson & Christopher

Seeds, Of Atkins and Men: Deviations From Clinical

Definitions of Menta! Retardation in Death Penalty Cases, 18

CORNELL J.L. & PUB. POL’Y 689 (2009): Richard J. Bonnie &

Katherine Gustafson, The Challenge of Implementing Atkins v.

Virginia: How Legis/atures and Courts Can Promote Accurate

Assessments and Adjudications of Mental Retardation in Death

Penalty Cases, 41 U. RICH. L. REV. 811 (2007).

33 Carol K. Sigelman, et a/, The Responsiveness of

Mentally Retarded Persons to Questions, 17 EDuc. & TRAINING

(continued on next page)

21

In a related vein is the problem of “biased

responding’: individuals with mental retardation

often provide answers they believe another wants to

hear.* The failure to ascertain whether the answer

to a question is actually correct is further troubling.

At least one psychological study demonstrates that

individuals with mental retardation often possess

the ability to provide an answer that is coherent,

rational, and on-point, but is simply incorrect.%

Because a focus on the ability to efficiently provide

clear answers to questions provides no meaningful

assessment, this Ariseno factor is wholly deficient.

The Court should grant certiorari to ensure

consistent application of the Eighth Amendment in

capital cases involving the individuals with mental

retardation.

MENTALLY RETARDED 120, 123 (1982); Edward C. Budd, Caro]

K. Sigelman & Lee Sigelman, Exploring the Outer Limits of

Response Bias, 14 SOCIOLOGICAL FOCUS 297, 305-06 (1981).

34 James W. Ellis & Ruth A. Luckasson, Mental/y

Retarded Defendants, 53 GEO. WASH. L. REV. 414, 428 (1988)

(citing M. Rosen, L. Floor & L. Zisfein, /nvestigating the

Phenomenon of Acquiescence in the Mentally Handicapped. 1

Theoretical Model, Test Development and Normative Data, 20

BriT. J. MENTAL SUBNORMALITY 58, 58-68 (1974); Sigdman,

Budd, Stankel & Schoenrock, When in Doubt, Say Yes:

Acquiescence in Interviews with Mentally Retarded Persons, 19

MENTAL RETARDATION 53 (1980)).

35 Ellis & Luckasson, supra at 34 (citing Kernan &

Sabsay, Getting There: Directions Given by Mildly Retarded

and Nonretarded Adults, in LIVES IN PROCESS: MILDLY

RETARDED ADULTS IN A LARGE CITY (R. Edgerton ed. 1984))

(discussing a study in which more than half of mentally

retarded persons provided complete directions to their homes,

but that the directions were incorrect).

22

5. Examining the capacity to tell a lie reveals

no meaningful insight into mental

retardation, and its application in capital

cases Is short-circuiting.

The sixth Briseno factor — “[cJan the person hide

facts or he effectively in his own or others’

interests” — does not provide any meaningful indicia

for determining whether an individual is mentally

retarded. The most obvious flaw in the Sriseno

analysis is the fact that — like many people without a

disability — individuals with mental retardation

often respond in manners that will place them in the

best light with their peers.%

Further, simple application of the factor

demonstrates the manner in which its underlying

assumptions short-circuit. Applying a capability-to:

lie analysis, in-court testimony that no hes have

© Ellis & Luckasson, supra at 34. Moreover, Ellis and

Luckasson observed:

It is not uncommon for individuals with mental

retardation to overrate their own skills, either out of a

genuine misreading of their own abilities or out of

defensiveness about their handicap. This tendency is

evident in estimates by retarded people of their

academic achievement, physical skill, and intellectual

level. It is therefore not surprising when a mentally

retarded person brags about how tough he is or how he

outsmarted a victim, when in fact, he accomplished

neither feat. Overrating is probably closely tied to

desperate attempts to reject the stigma of mental

retardation. Many mentally retarded individuals

expend considerable energy attempting to avoid this

stigma.

Td. at 430 (internal footnotes omitted).

ae

been discovered could simultaneously serve as

evidence that the defendant (1) is mentally retarded,

or (2) elects to tell the truth, or (3) is actually very

effective at lying. M#riseno provides no instructions,

and the factfinder is left to guess whether an

individual’s propensity to tell a lie weighs in favor

of — or against — a finding of mental retardation.

6. Considerations of forethought, planning,

and execution are unnecessarily duplicative,

and are irrelevant to a determination of

mental retardation.

The final factor articulated in S#riseno actually

comprises two virtually identical tests:

2. “Has the person formulated plans and

carried them through or is his conduct

impulsive?” and,

7. “Putting aside amy heinousness' or

gruesomeness surrounding the capital offense,

did the commission of that offense require

forethought, planning, and complex execution

of purpose?”

Briseno, 135 S.W.3d at *8. Because the Texas Court

of Criminal Appeals has not restricted use of any

factor, testimony about a defendant’s criminal

“plans” effectively permits the State to double-dip

two of its seven factors.

Since #riseno, the Texas Court of Criminal

Appeals has reaffirmed these plan formulation tests

by holding that a defendant presents no adaptive

behavior deficits when his criminal acts show “that

he was capable of planning elaborate criminal

ventures and attempting, albeit unsuccessfully, to

24

conceal the evidence.”3? Given that Atkinsrelated

issues necessarily involve individuals with mental

retardation and convicted of capital offenses, the

State of Texas’ formulation risks trumping any

finding of mental retardation merely by showing the

defendant’s involvement. The Eighth Amendment

does not contain such a hollow purpose.

Further,, research shows that with training,

adults with mental retardation possess the capacity

to set goals, carry out plans, maintain jobs, hold

bank accounts, and make decisions about finances

and other life situations.** Consistent with the

clinical research, other courts in the United States

have flatly rejected Sriseno’s assumptions that

planning to commit a crime should rule-out a finding

that the individual is mentally retarded. Holladay v.

Campbell, 555 F.3d 1346, 1364 (11th Cir. 2009);

Lambert v. State, 126 P.3d 646, 659 (Okla. Crim.

App. 2005). Because planning and execution are not

mutually exclusive with mental retardation, the

assertion that evidence of forethought and planning

disqualifies mental retardation is constitutionally

and rationally infirm.

7 Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App.

2008).

38 Michael L. Wehmeyer & Susan B. Palmer, ADULT

Outcomes for Students with Cognitive Disabilities Three-Years

After High School’ The Impact of Self-Determination, 38 EDU.

& TRAIN. IN DEV. DISABILITIES 131-44 (2003); Michael L.

Wehmeyer, Martin Agran, & Carolyn Hughes, TEACHING SELF-

DETERMINATION TO STUDENTS WITH DISABILITIES: BASIC SKILLS

FOR SUCCESSFUL TRANSITION (1998).

25

B. Since Ariseno, Texas has _ Severed Its

Evidentiary Factors from the Diagnostic

Critieria Adopted in Atkins.

To the extent that any question existed about

the evidentiary weight of Briseno’s judicially-created

test, these seven factors recently lost any moorings

held to the clinical data that supports the Court’s

Eighth Amendment jurisprudence. In Lizcano v.

State, No. AP-75879, 2010 WL 1817772 *1 (Tex.

Crim. App. May 5, 2010), the Texas Court of

Criminal Appeals affirmed via an unpublished

opinion the death sentence of Juan Lizcano, despite

the fact that the evidence conclusively proved the

clinical factors adopted in Atkins. The State did not

even elicit testimony from an expert regarding

Lizcano’s mental retardation. Nevertheless, the

court of criminal appeals observed that the jury

could have considered other evidence, including the

Briseno factors; it deferred to the finding that

Lizcano was not mentally retarded. Jd. at *15.

Absent in the opinion was any review of the clinical

criteria; the jury was permitted to reject the clinical

evidence and choose the Sriseno test instead.

Lizcano’s petition for certiorari is due in September.

Judge Price, who previously voted for adoption of

the S#riseno evidentiary factors, wrote a dissent

joined by two other judges. Jd. at *32. He criticized

the majority’s application of a test that is contrary to

Atkins, and which permits factfinders to deny a

finding of mental retardation on account of their

subjective viewpoints. As Judge Price pointed out:

26

In failing thus to anchor the fact-finder’s

decision on the specific diagnostic criteria, we

seem to have granted a certain amorphous

latitude to judges and juries in Texas to

supply the normative judgment-to say, in

essence, what mental retardation means in

Texas (and, indeed, in the individual case) for

Eighth Amendment purposes.

... It would be anomalous to allow the fiat of a

fact-finder to undermine the _ essentially

diagnostic character of the inquiry. We should

not sanction incomplete jury instructions that

would permit a jury, in the guise of. “fact-

finder,” capriciously to deviate from the

specific diagnostic criteria in order to conform

to its own normative, necessarily subjective,

and certainly unscientific judgment regarding

who deserves the death penalty. I would hold

that the hypothetically correct jury charge,

against which we measure the weight and

preponderance of the evidence with respect to

mental retardation, should incorporate the

diagnostic criteria. In this case, the difference

really matters.

Id. at *35.

The problems inherent in application of the

Briseno test demonstrate why this Court should

grant certiorari. While failing or refusing to enact

appropriate statutory implementation of Atkins, the

State of Texas has instead formulated a common law

stopgap that paves an alternative path to denying

mental retardation, regardless of what the clinical

criteria says.

27

Despite Briseno’s lip service to the diagnostic

criteria adopted in Atkins, the State’s application of

“evidentiary factors” permit findings that confirm

long-held stereotypes, deviate from definitions

consistently supported by clinical mental health

data, and effectively deprive individuals from being

permitted to successfully prove their mental

retardation with data and learned expert testimony.

In the end, the judge or jury is left with virtually

unfettered discretion to apply the Briseno test in any

desired manner, even to the exclusion of all other

considerations. Because the Eighth Amendment

requires more, certiorari should be granted, and the

Court should instruct the lower courts to clearly

review the clinical definitions of mental retardation

that were announced in Atkins.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Lawrence M. Doss

Counsel of Record

Melissa Morgan

MULLIN HOARD & BROWN, L.L.P.

1500 Broadway, Suite 700,

P.O. Box 2585

Lubbock, Texas 79408

(806) 765-7491