# Reply Brief — Hall v. Thaler

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2297%3A5

## Record

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

## Text

“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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2297%3A5. Public record. Not legal advice.