# Amicus Curiae Brief — Hall v. Thaler

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2297%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 981

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2297%3A3. Public record. Not legal advice.