Reply Brief — Hall v. Thaler

“1 ‘L | SEP 28 20it

INTEL

Supreme Ql ourt of the United States

Mice LWALI

Qn Petition for a Writ of Certiorar)

to the United States Court of Appeals

for the Fifth Circuit

PETITIONER'S REPLY BRIEF

‘YC BENS IUILAI P(,000,1)

MULL HeENKICKS ILI MIATA |

21 W. ¢ ro VATU } Jot

Suite 960 PiEINNUE SI Jo VR

Austin, Texas 4% JENNER & BLOCK LEV

(',12)-494-8O94 O99 New Yor Verte NV

Viashinyvtor | )¢ C)O)0) |

DAVID VP. SHELDO (YOY) 649 6000

Counsel of hecord

LAW OFFICE OF

DAVIN P. SHELDON, VIL

512% &th Street I

Washington. DC Zoo

(202) DAG 997 o

aqdavid heldon “yyvgdibiar (heehee col

Peplember - L010)

]

TABLE OF CONTENTS

TAD OF AUTHORITIEG.........000cccccccrccvnsecsssesseverace 1]

Se EP IRE I depo ck nvacdialavessesacthsaiassstcerstsendesegtisween | |

I. THE INTERPRETATION OF ATKINS

ADOPTED BELOW IS INCORRECT AND

CONTRIBUTES TO LOWER COURT

Seg rhea sca avd vvonicavaveosasnsvesonsnesseraeeneoevectecs 2

Il. RESPONDENT'S ARGUMENTS

REGARDING BRISENO HIGHLIGHT THE

PU MRRER BOIEC BRIG V LOGY. oivessecssnssserevcncicrdsvivsncsssavenee 1]

Rm Mee NIT secs obc ak skcniaa usa dey aces bdene esasaeseoncometeees 12

8

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia, 536 U.S. 304 (2002) ......... 1, 7,8

ix Parte Briseno, 135 S.W.3d 1 (Vex. Crim.

PU NE res caees oni ees ce ee 1]

Doss v. State, 19 So. 3d 690 (Miss. 2009)............. LO

Ford v. Wainwright, 477 U.S. 399 (1986) ............. 3

Morrow v. State, 928 So. 2d 318 (Ala. Crim.

MN I Sass cana cae ado huneicah on wahaceiietnss sc cteeielee 10

Penry v. Lynaugh, 492 U.S. 302 (1989) .0.... ee. re

Porter v. McCollum, 130 S. Ct. 447 (2009)............. 3

Wiggins v. Smit, 539 U.S. 510 (2003)................... 3

Wilhams v. Taylor, 529 U.S. 362 (2000) ................ =

OTHER AUTHORITIES

American <Ass’n- on _ Intellectual and

Developmental Disabilities, Jntellectua/

Disability’ Definition, Classification, and

Systems of Supports (11th ed. 2010)...2-3, 5, 7, 8

James W. Ellis & Ruth A. Luckasson,

Mentally Retarded Criminal Defendants,

53 GEO. WASH. L. REV. 414 (1985).......... eee. 5

CAPITAL CASE

INTRODUCTION

As Petitioner and its supporting amici have

explained, there has been a wealth of confusion in

the lower courts about how to implement this Court’s

decision in Atkins v. Virginia, 536 U.S. 304 (2002).

Pet. at 21-23; Amicus Br. of AAIDD at 13-15. The

decision below concerns the particularly extreme and

incorrect interpretation of Atkins that the state and

federal courts in Texas have adopted. Under Texas's

approach, a defendant cannot claim the protection of

Atkins where a court concludes that an otherwise

sufficient showing of a low IQ and accompanying

adaptive deficits “could have” resulted = from

environmental factors, such as a_ traumatic

childhood, rather than from low intelligence. Pet.

App. 103a-05a.

Texas’s interpretation of Atkins is wrong because

the clinical definition of mental retardation

recognizes that the condition has multiple etiologies,

including environmental influences relating to family

interactions and upbringing. To ask whether a 67 1Q

score like Hall’s was caused by low intelligence or

years of an abusive childhood is simply the wrong

inquiry under clinical standards. And to ask, as the

lower courts did here, whether environmental factors

“could have” contributed to a facial showing of

mental retardation is to ensure that Atkins’s

protections will be unavailable in essentially every

case given the ubiquity of such factors.

Apparently recognizing the illegitimacy of the

reasoning employed below, Respondent strains to

)

recast the lower courts’ determinations as embracing

the very clinical standards that the opinions reject.

As we explain, Respondent’s reformulation neither

accurately states the rule of law followed below nor is

an intelligible interpretation of Atkins in its own

right. Respondent also cannot explain away the

substantial disagreements the lower courts have

reached in answering these questions. This Court’s

review is warranted to put an end to that confusion,

and, in particular, to correct Texas's failure to

implement Atkins meaningfully.

I. THE INTERPRETATION OF # £ATKINS

ADOPTED BELOW IS INCORRECT AND

CONTRIBUTES TO LOWER COURT

CONFUSION.

3 Respondent makes no effort to defend the

reasoning the lower courts actually employed to

discount Hall’s low IQ score. Dr. Mark Cunningham

tested Hall in 2000, the time of the crime and trial,

and found Hall’s measured full-scale IQ score to be

67. Pet. App. at 17a, 82a. The federal habeas court

discounted this score based on “evidence that Hall’s

home and social environments and his emotional

state could have artificially lowered some of Hall’s IQ

scores.” Jd. at 1038a (emphasis added). As Hall

explains in his Petition, the court erred because the

clinical definitions of mental retardation contemplate

multiple etiologies, including environmental factors

such as family poverty, domestic violence, and

insufficient educational opportunities—precisely the

situations about which evidence was introduced in

this case. Pet. at 27; see also Am. Ass’n on

Intellectual and Developmental Disabilities,

3

Intellectual Disability’ Definition, Classification, and

Systems of Supports (11th ed. 2010) (““AAJDD 2010

Definition’); Amicus Br. AAIDD at 8-10.

The lower courts’ approach is not only wrong as a

matter of clinical understanding, but also pernicious.

It turns Atkins on its head, taking the indicia that

are clinically recognized causes of low IQ and instead

viewing them as_ disqualifications. Because

environmental factors like those in Hall's upbringing

are commonly found in capital cases and are often

presented as mitigation evidence, the lower courts’

approach would make it near impossible for many

capital defendants to support an Atkins claim. See,

Wiggins v. Smith, 539 U.S. 510, 535 (2003); see also

Yorter v. McCollum, 130 S. Ct. 447, 449 (2009):

Williams v. Taylor, 529 U.S. 362, 395 (2000); Penry

v. Lynaugh, 492 U.S. 302, 309 (1989) While this

Court left to states the task to implement Afkzns,

536 U.S. at 317, an “implementation” that vitiates

the protections described there is surely invalid.

Ford v. Wainwright, 477 U.S. 399, 405, 416-17

(1986).

Apparently recognizing that the lower courts’

reasoning is indefensible, Respondent substitutes

new reasoning of his own. On Respondent’s account,

although environmental factors can sometimes be a

legitimate cause of low IQ, at other times, they

merely “lead to a low score not related to low

intelhgence.” Opp. at 29. Here, Respondent argues,

the district court made just such a finding,

determining that environmental factors lowered “not

Hall's intelligence but his test scores,” making those

scores unreliable. /d.

A

This line of reasoning appears nowhere in the

lower courts’ opinions, which gave no

acknowledgment that environmental factors could

ever be a cause of mental retardation, and never

made any finding that in this case such factors had

caused Hall to perform on the test in a way that led

to an unreliable score. In fact, in this case, the

state’s expert, Dr. Price, testified that the IQ score of

67 was the best indication of Hall’s measured IQ at

the time of the crime and trial, Pet. App. at 334a;

that Dr. Cunningham had properly administered and

scored that IQ test, Fed. Habeas Hr’g Tr. at 237:4-

1031 and that on ae test of adaptive skills

administered by Dr. Price two weeks after the IQ

test, Hall had been cooperative and had put forth

good effort, 7d at 238:11-24. In short, the lower

courts did not find that environmental factors could

cause a low IQ, but here instead somehow led to an

unreliable score. Rather, they summarily dismissed

a low IQ score as unreliable based on the supposition

that environmental factors might somehow have led

to a lower score than Hall might have achieved had

he not been exposed to those factors.

In any event, even if it bore any relevance to the

analysis here, Respondent’s new approach is no

better than the one actually employed by the lower

courts, because Respondent’s proffered distinction

between a “low [IQ] score and low intelligence,” Opp.

at 29, is untenable. Such a distinction necessarily

posits some form of actual intelligence apart from

Petitioner’s Petition mistakenly cited the Petitioner's

Appendix for this portion of the hearing transcript, which in

fact does not appear in the Appendix.

5

what is reflected on a properly administered IQ test.

This distinction is contrary to clinical definitions of

mental retardation, which explicitly incorporate 1Q

scores. Atkins, 536 U.S. at 308 n.3. “Although far

from perfect, intellectual functioning is currently

best represented by IQ scores when they are

obtained from appropriate, standardized and

individually administered assessment instruments.”

AAIDD 2010 Definition at 31. Indeed, “[gleneral

intellectual functioning is a phenomenon measured,

and thus defined, by intelligence tests. It is,

therefore, quantifiable as an intelligence quotient

(1Q) score.” James W. Ellis & Ruth A. Luckasson,

Mentally Retarded Criminal Defendants, 53 GEO.

WASH. L. REV. 414, 422 (1985) (emphasis added).

Moreover, such a distinction would be completely

unworkable as part of a clinical diagnosis, much less

a legal standard. If the legal standard described in

Atkins is not grounded in objective 1Q scores, it will

be quickly drained of any substance.2. See, e.g,

AAIDD 2010 Definition at 32-34 (describing debate

over meaning of intelligence). And again, given that

so many defendants facing the death penalty have

had traumatic upbringings, few defendants will be

able to take advantage of Atkins’s protections if

courts may dismiss IQ scores based simply on a

showing of troubling environmental factors.

To be sure, not all IQ tests are _ properly

administered. If a score is unreliable because, for

2 As amici point out, IQ scores anchor, but do not exhaust, the

inquiry into general intellectual functioning—clinical judgment

is still essential. Ammucus Br. AAIDD at 5-6.

6

example, the clinician is not qualified or showed bias

in testing or scoring, that score may not offer

probative evidence of mental retardation. Likewise,

where there is evidence that a_ test subject

malingered or was acutely ill or depressed in a

manner that would detract from his or her ability to

perform on the test, that score would likewise be

questionable. But where, as here, there is no

allegation of improper administration, or evidence of

malingering or acute factors that affected the

subject’s ability, a court has no reason to depart from

an objective IQ score based on speculations about the

subject’s “true” intelligence.

2. Respondent’s argument about adaptive

limitation suffers from analogous flaws. As with the

IQ inquiry, the lower court discounted evidence of

adaptive deficiencies because of the possibility that

they were due to environmental factors. This leads

to the same pernicious result—that environmental

factors put forward as mitigating evidence, and

present in many capital cases, make it impossible to

raise an Atkins defense.

Respondent contends that the lower courts were

correct to hold that adaptive deficits caused by

environmental factors do not count, but the claim

does not bear scrutiny. Respondent concedes that

environmental factors may lead to mental

retardation. See supra. And, indeed, the adaptive

deficit analysis is relevant only for those defendants

who have an IQ score that is within the mentally

retarded range. Among those defendants with low

IQ, Respondent would have courts somehow

distinguish between environmental factors that lead

7

to mental retardation manifested in adaptive

deficits, and environmental factors that lead to

adaptive deficits unrelated to mental retardation.

Unsurprisingly, this is an impossible task. As the

State’s expert conceded in response to the district

court’s inquiry, he “knew of no way to distinguish

between adaptive deficits caused by low intelligence

and those caused by the environment.” Opp. at 17;

see also Pet. App. at 335a (state’s expert testifying

that Hall had “adaptive behavior deficits . . . related

to both his low intelligence and his adjustment

problems” and that from a “scientific point,” he knew

of no way to separate out the causes); rd. at 337a

(state’s expert testifying that “I don’t know a way to

separate ... out” the “causes” of Hall’s adaptive

deficits).

Likewise, clinical standards do not require the

nexus that the Respondent proposes, precisely

because there is no meaningful way to separate out

the causes of adaptive deficits, especially when an

individual has limited intellectual functioning and

when environmental factors are present. See AAJDD

2010 Definition at 58-61. Consequently, neither of

the clinical definitions cited in Atkins requires a

showing that adaptive deficits “arise” from

subaverage intelligence rather than from other

sources. The APA defines mental retardation as

“significantly subaverage intellectual functioning .. .

accompanied by significant limitations in adaptive

functioning,” all occurring before the age of 18.

Atkins, 536 U.S. at 308 n.3 (emphasis added)

(internal quotation marks omitted). Similarly, the

AAIDD defines mental retardation as “significant

8

limitations both in intellectual functioning and in

adaptive behavior.” AAJDD 2010 Definition at 6.°

Given that there is no way to separate out the

causes of adaptive deficits, Respondent’s argument—

that Hall seeks to “shift the burden of proof,” Opp. at

31, in arguing that he is not required to prove that

his adaptive deficits were caused by intellectual

impairments—is simply disingenuous. When there

is no clinically accepted method of determining

whether adaptive deficits are caused by low

intelligence, the rule applied by the lower courts

erects an insurmountable burden of proof for an

entire category of individuals, like Hall, who suffer

from a traumatic upbringing as well as_ low

intelligence. Notably, Respondent mischaracterizes

what the lower courts actually did here—they did not

merely require that Hall demonstrate that his

adaptive deficits were related to his low intelligence,

see id., but rather required Hall to demonstrate that

low intelligence was the sole cause of his adaptive

deficits. See Pet. App. at 104a-05a (“There is a

possibility that Hall has adaptive functioning deficits

that are related to low intelligence, but the court is

unable to find from the evidence the degree to which

that is so as distinguished from the degree to which

whatever deficits Hall might have are related to

”

fenvironmental factors].”).

3 The predecessor to the AAIDD, the American Association on

Mental Retardation, defined mental] retardation as

“significantly subaverage intellectual functioning, existing

concurrently with related limitations.” Atkins, 536 U.S. at 308

n.3 (emphasis added) (internal quotation marks omitted).

9

Where, as here, Hall has established limitations in

intellectual functioning as well as adaptive deficits,

there is simply no dispute that he meets the clinical

definition of mental retardation. Respondent’s

argument to the contrary is not only inconsistent

with that definition, but also would require

defendants to come forward with proof of a causal

relationship that cannot be proven.

3. Contrary to Respondent’s assertions, there

is substantial disagreement in the lower courts on

these very issues. Respondent contends that the

lower courts uniformly subscribe to the principle that

“mental retardation can arise from environmental

factors.” Opp. at 33. That claim is false, and

obviously so. First, as already demonstrated in this

case, Texas does not adhere to that view and instead

finds that the presence of environmental factors

foreclose Atkins. Second, as discussed in the

Petition, several other jurisdictions reject that

reasoning, just as they reject the slightly recast form

that Respondent now offers. See also Amicus Br. of

AAIDD at 13-15 (discussing jurisdictions have

departed from aé clinical definition of mental

retardation). Respondent’s own description of the

cases proves the point. Kor example, citing

Oklahoma’s~ decision in Lambert v. State,

Respondent acknowledges that case held that an

“individual's adaptive deficits need not arise from or

be related to his intellectual deficits.” Opp. at 31

(citing 126 P.3d 646, 651 (Okla. Crim. App. 2005)).

That is the opposite of Respondent’s position that

“Texas law requirels] that the adaptive deficits arise

from the intellectual impairment.” Opp. at 28.

LQ)

Likewise, Respondent cannot explain away the

Eleventh Cuircuit’s decision in Holladay v. Allan.

which it acknowledges rejected expert testimony that

the defendant’s IQ was low “for reasons other than

mental retardation—1.e., a learning disability and a

poor home environment.” Opp. at 32 (citing 555 F.3d

346 1358 (11th Cir. 2009)). In this case. the lower

courts and Respondent contended that Hall’s low IQ

did not count for precisely the same types of reasons

See Pet. App. at 103a; see also Morrow v. State, 92%

So. 2d 318, 320 (Ala. Crim. App. 2004) (recognizing

that adaptive deficits can be caused by both low

intelhgence and home environment). And on the

other side of the ledger, Mississippi joins Texas as a

jurisdiction that does discount evidence of adaptive

deficits when these deficits may have been caused by

environmental factors. Doss v. State, 19 So. 3d 690,

710 (Miss. 2009) (relying on testimony that

defendant's adaptive deficits were “better explained

by his chaotic upbringing than by intellectual

deficits” in affirming trial court’s determination that

defendant was not mentally retarded)

The differences in how these jurisdictions apply

Atkins cannot be reconciled by Respondent’s claim

that they all subscribe to the view that mental

retardation can be caused by environmental factors

Were that the case, Texas, like the Kleventh Circuit,

would not have found that the presence’ of

environmental factors such as a traumatic home life

cut against crediting a sub-70 IQ score. And Texas,

hke Oklahoma, would not have concluded that

Atkins requires the defendant to prove that his

adaptive deficits relate to low intelligence. Only this

(Court cal »puthoritative! mare tnese ii]

dispositive interpretations of Atkin

[] RESPONDENT'S ARGUMENTS REGARDING

BRISENO HIGHLIGHT THE NEED FOR

REVIEW

Kx parte Briseno, 135 S.W.3d Ch Crim. App

004), under which Hall federal ise W il gecrdaea

depart bperms 1) Irom» tne clinica tanday

mandated by 14Ain Respondent offer thre

arguments that the Court should neverthels rt

certiorar). None is compelli

lirst ke pondent ievue Lnat AS, dor ot

require tate luw to uecord with clinical definition

Opp. at 33-34 Mut Atkins require precisely that

Pet. at 24-25, and there a irrray in lower court

the issu id. at Dede dl Respondent iIyvument

therefore serves only to highlivht the need for tl

Court to offer clarity

ccond Ite pondent mepruse Lhyeat NTI fri

doe not track the approach ot the VAMER or the

VPA exactly it neverthele yrounded

clinical understandiny (Opp it 34 Her LOO

Re pondent Is wrong, Pet. at 28°31, as demonstrated

by the considerable criticism leveled ayvainst /riseno

lor it relhance on lay testimony to answer questior

focused on stereotypes about mental retardation that

have nothiny to do with a clinical asse ment, 7d at

34°35; see also AAIDD Amicus Briel at 21°26. Avain

Respondent's argument underlines the need for thi

(Court to asse Whether BKBriseno imperm ib

compromiss iéAins’s protection

12

Finally, Respondent argues that the Braseno

factors “played no part” an the lower courts

decisions. Opp. at 34°45 However, the federal

habeas court was required to evaluate Halls Atkins

claim under state law, and it expheitly stated that

Hall had not shown subaverage mental funetion or

adaptive deficrencies as contemplated under “Texas:

Atkins test for mental retardation.” Pet. App. at

1028, 108a. That statement was made in a decision

issued after a remand by the Fifth Cireuit, which

directed the district court to test Hall's claim that he

was “retarded under ‘Texas’ Atkins test for mental

retardation announced in ky Marte Briseno”’ Id. at

11 7a. further, the district court) evaluated lay

testimony related to Halls adaptive strengths,

rather than focusing on climeal diagnoses of adaptive

deficiencies, which is) precisely the danger when

»F

courts apply the /riseno framework, Pet. at dled3

CONCLUSION

The petition for a writ) of certiorari should be

yranted

September 28, 2010

BRYCE BENJET

HULL HENRICKS LLP

221 W. 6 Street,

Suite 960

Austin, Texas 78701

(512)-494-8097

DAVID P. SHELDON

Counsel of Record

LAW OFFICE OF

DAVID P. SHELDON, PLLC

512 8th Street, SE

Washington, DC 20003

(202) 546-9575

davidsheldon@militarvdefenss

Respectfully submitted,

ELAINE J. GOLDENBERG

MATTHEW S. HELLMAN

MATTHEW J. DUNNE

JENNIFER V. YEH

JENNER & BLOCK LLP

1099 New York Avenue NW

Washington, DC 2000]

(202) 639-6000