Intellectual Disability

U.S. Supreme Court Again Reverses Texas Court’s Rejection of Intellectual Disability Claim

Overturning the Texas Court of Criminal Appeals for the second time, the United States Supreme Court ruled on February 19, 2019, that Texas death-row prisoner Bobby James Moore is intellectually disabled and may not be executed. In an unsigned opinion, the Supreme Court reversed the latest Texas appeals court decision that would have allowed Moore’s execution, saying the state court had relied on many of the same improper lay stereotypes and committed many of the same errors that had led the Justices two years ago to strike down Texas’s “outlier” approach to determining intellectual disability. The Court said that the Texas ruling, “when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.”

This decision marked the second time the Supreme Court had reversed a Court of Criminal Appeals denial of Moore’s intellectual disability claim. In 2014, a Texas trial court, applying prevailing clinical standards, found that Moore was intellectually disabled and therefore ineligible for the death penalty under the Supreme Court’s 2002 decision in Atkins v. Virginia. However, the Texas Court of Criminal Appeals (TCCA) overturned that decision, saying Moore had not satisfied a Texas-specific standard called the “Briseño factors” (named after the Texas court decision that announced them). In 2017, the U.S. Supreme Court unanimously rejected the use of these factors, calling them an unscientific “invention” of the TCCA that was “untied to any acknowledged source” and lacked support from “any authority, medical or judicial.” The Court criticized the TCCA’s reliance upon “lay stereotypes” about what people with intellectual disability can and cannot do and its misplaced focus on things Moore was able to do in a structured prison setting instead of considering his life history of impairments in daily adaptive functioning, and directed the TCCA to reconsider the issue applying appropriate diagnostic standards.

When the case returned to the state courts, numerous groups, including the American Psychological Association and the American Psychiatric Association, filed friend-of-the-court briefs asserting that Moore met the prevailing medical definitions of intellectual disability. The Harris County District Attorney’s Office agreed with Moore and conceded that his death sentence should be vacated. Nonetheless, over the sharp dissent of three judges, the TCCA again upheld Moore’s death sentence. With the backing of the mental health professional associations, Special Olympics Chairman Tim Shriver, and a group of prominent conservative leaders who described the TCCA’s flouting of the 2017 Supreme Court ruling as “inimical to the rule of law,” Moore again asked the Supreme Court to intervene. When Harris County prosecutors again agreed that Moore was entitled to relief, the Texas Attorney General’s office attempted to intervene in the case to defend the TCCA’s ruling. The Supreme Court reversed, writing: “We … agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.” Justice Alito, joined by Justices Thomas and Gorsuch, dissented, accusing the majority of improperly engaging in factfinding and failing to provide clarity to lower courts.

Cliff Sloan, a lawyer representing Moore, praised the ruling: “We greatly appreciate today’s important ruling from the Supreme Court, and we are very pleased that justice will be done for Bobby Moore.” Harris County District Attorney Kim Ogg also released a statement: “The Harris County District Attorney’s Office disagreed with our state’s highest court and the attorney general to stand for Justice in this case. The U.S. Supreme Court agreed."

Citing Evidence of Innocence, Race Discrimination, Georgia Court Grants New Trial to Former Death-Row Prisoner

A Georgia judge has granted a new trial to Johnny Lee Gates (pictured recently, right, and at the time of trial, left) based on new evidence that excludes him as the source of DNA on implements used by the killer during the 1976 rape and murder for which Gates was sentenced to death. DNA testing disclosed that Gates’s DNA was not found on a necktie and the bathrobe belt the prosecution said were used by the killer to bind Kathrina Wright, the 19-year-old wife of a soldier stationed at Fort Benning during the murder. In a January 10, 2019, decision overturning Gates’s conviction, Senior Muscogee County Superior Court Judge John Allen credited the analysis of defense DNA expert Mark Perlin that Gates’s DNA was not present on the evidence. Judge Allen noted that Perline had trained the two Georgia Bureau of Investigation scientists the prosecution relied upon in the most recent court proceedings in the case and that the testimony of the GBI witnesses supported Perlin's conclusions. Judge Allen wrote that “[t]he exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory” and entitled Gates to a new trial.

Gates, who is African American, was convicted and sentenced to death by an all-white jury in a racially charged case. His death sentence was overturned in 2003 based upon evidence that he is intellectually disabled, and he was resentenced to life. Heightening the racial tensions of a black man accused of raping and murdering a young white woman, prosecutors deliberately excluded African American jurors from the case. Lawyers from the Georgia Innocence Project and Southern Center for Human Rights filed a motion in March 2018 arguing that Columbus, Georgia prosecutors engaged in a pattern and practice of systematically striking black prospective jurors because of their race in Gates’s case and six other capital cases with black defendants, discriminatorily empanelling all- or nearly-all-white juries in those cases. The prosecutors’ jury selection notes in those seven capital trials showed that the state attorneys in his case had carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. A Georgia Tech mathematics professor provided expert testimony that the probability that black jurors were removed for race-neutral reasons was infinitesimally small – 0.000000000000000000000000000004 percent. In an opinion that excoriated local prosecutors for “undeniable ... systematic race discrimination during jury selection,” Judge Allen found that the prosecutors “identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.” However, the court said the race discrimination against Gates was not grounds to grant him a new trial because he had not shown that the lawyers who previously represented him did not have access to the evidence of systematic discrimination.

U.S. Supreme Court Reverses Kentucky Court in Intellectual Disability Case

The U.S. Supreme Court has reversed a Kentucky state court ruling that would have permitted the Commonwealth to execute death-row prisoner Larry Lamont White (pictured) without an evidentiary hearing on his claim that he is intellectually disabled. In a one-paragraph order issued on January 15, 2019, the Court granted White’s petition for review, vacated the Kentucky Supreme Court’s denial of his death-penalty appeal, and directed the state court to reconsider White’s eligibility for capital punishment in light of the standard for determining intellectual disability set forth in the justices’ 2017 decision in Moore v. Texas. Justices Alito, Thomas, and Gorsuch dissented.

White’s trial lawyers argued that he was ineligible for the death penalty because of intellectual disability, providing evidence from IQ testing conducted in 1971 when he was 12 years old. The trial court summarily denied relief and the Kentucky Supreme Court affirmed, based on a Kentucky statute that required a capitally-charged defendant to score 70 or below on an IQ test to be considered intellectually disabled. The court said White could not be considered intellectually disabled because his IQ score was 76. The court also relied upon White’s filing of motions without the assistance of counsel to conclude “that there is ample evidence of [White]'s mental acumen.” However, ten months after White’s appeal, the state court ruled that Kentucky’s statutory IQ cutoff violated Moore and the Eighth Amendment, holding that “any rule of law that states that a criminal defendant automatically cannot be ruled intellectually disabled and precluded from execution simply because he or she has an IQ of 71 or above, even after adjustment for statistical error, is unconstitutional.”

Justice Alito dissented, citing a previous dissent by the late Justice Antonin Scalia that the Supreme Court’s summary reversals for reconsideration should be reserved for cases in which an intervening factor is present. Here, Alito argued, the Court should not have intervened because the Moore decision “was handed down almost five months before the Supreme Court of Kentucky reached a decision in [White’s] case.” White’s lawyer, Kathleen Schmidt, praised the majority’s ruling, saying “[n]early 20 years ago, the Supreme Court struck down the death penalty for the intellectually disabled, in part out of concern that intellectually disabled defendants are more likely to be wrongfully convicted and sentenced to death for crimes they did not commit. We have similar concerns in this case, and we are grateful that the Supreme Court has remanded the case to ensure that all issues in the case are fully and properly litigated.”

Prominent, Diverse Voices Call for Supreme Court to Once Again Stop Bobby James Moore’s Execution

Twenty months after the Unites States Supreme Court unanimously struck down Texas’s non-scientific standard for evaluating intellectual disability in death penalty cases, the landmark case in which it made that decision is back before the Court. On December 7, 2018, the Court will conference Moore v. Texas, to decide if it will review whether the Texas Court of Criminal Appeals (CCA) once again unconstitutionally relied on lay stereotypes and non-clinical criteria in rejecting Bobby James Moore’s claim that he is not subject to the death penalty because he is intellectually disabled. A diverse group of prominent voices, including the district attorney’s office that originally prosecuted Moore, argue that Moore clearly satisfies the clinical definitions of intellectual disability and may not be executed.

Sentenced to death more than 38 years ago, Moore has a long history of intellectual and adaptive impairments that have been documented since his childhood, including IQ scores ranging from the low 50s to the low 70s. The American Psychological Association and American Bar Association filed briefs on November 7 supporting Moore’s claim and the urging the Supreme Court to again reverse the Texas court. They were joined by a group of prominent conservatives—including former Solicitor General Kenneth Starr, Congressman Bob Barr, conservative strategist Richard Viguerie, and David A. Keene, the longtime chair of the National Conservative Union, among others—whose brief, also filed November 7, described the Texas court’s decision as a threat to the integrity of the judicial process. They wrote: “Quoting a Supreme Court decision highlighting the errors made by the CCA in its previous review of this case, but proceeding to make those same errors on remand, is inimical to the rule of law.”

Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County, Texas trial court. Following contemporary medical diagnostic criteria, the court agreed that Moore was intellectual disabled and ruled that his death sentence should be vacated. However, the Texas Court of Criminal Appeals reversed, applying an idiosyncratic standard based on unscientific stereotypes, including the behavior of a fictional character from the novel Of Mice and Men. After the U.S. Supreme Court reversed and remanded for a new decision “informed by the medical community’s diagnostic framework,” the Harris County District Attorney’s office conceded that Moore qualified as intellectually disabled. Nonetheless, in a ruling three dissenters criticized as an “outlier,” a sharply divided (5-3) Texas Court of Criminal Appeals in June 2018 again upheld Moore’s death sentence.

In a November 28 op-ed in The Washington Post, Starr, who served as United States Solicitor General under President George H.W. Bush from 1989-1993, urged the Supreme Court to “save[] Bobby Moore from execution … again.” Starr wrote, “The job of a judge is to follow the law … [and] carefully apply the precedent of the Supreme Court. … If the system were working as it should, Moore’s case would have been a routine matter of the Texas court applying the Supreme Court’s decision and current medical standards as directed and prohibiting Moore’s execution.” Quoting then-U.S. appeals court Judge Brett M. Kavanaugh, Starr said: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions.”

Special Olympics Chairman Timothy Shriver also asked the Supreme Court to block Moore’s execution. In a November 19 op-ed in the Los Angeles Times, Shriver criticized the Texas court’s reasoning as “absurd, wrong and harmful.” “But most important,” Shriver wrote, the standard the court applied was “not how the medical community diagnoses intellectual disability…. Pervasive stereotypes about intellectual disability are inaccurate and harmful. In this Texas court case, they are a matter of life or death. Let’s finally recognize the complexity of people with intellectual disability,” Shriver said. “The world will be much richer for it.”

Amid Questions of Competency, South Dakota to Execute Special-Olympics Defendant Who Gave Up Appeals

The South Dakota Supreme Court has denied motions that sought to delay the October 29, 2018 execution of Rodney Berget (pictured). As the state prepared to execute Berget, the former public defender who represented him at trial took action to fight a prospective legal guardian’s efforts to keep the former Special Olympics participant from being put to death. On Friday, October 26, Juliet Yackel, a Chicago-based lawyer who had been retained in Berget’s state post-conviction proceedings as a mitigation investigator, filed a pleading called a petition for writ of prohibition that asked the South Dakota Supreme Court to halt Berget’s execution and to appoint her as his legal guardian “because he has an intellectual disability and [is] otherwise incompetent, rendering him ineligible to be executed.” Berget waived a jury trial and pled guilty to murder for his involvement in the death of a prison guard, and is currently attempting to waive his appeals. At the close of the trial, he told the sentencing judge, “I believe I deserve the death penalty for what I’ve done.” Yackel’s petition describes Berget as “intellectually disabled and suicidal.” The motion alleges Berget “is not able to protect his own interests and the attorneys assigned to do so have refused” to do so. On Saturday, October 27, Berget’s trial lawyer, Jeff Larson—whom the court removed from the case after he attempted to continue to represent Berget in appeal proceedings meant to raise issues of his possible ineffective assistance at trial—filed an affidavit from Berget opposing Yackel’s motion and reasserting the reasons why Berget says he wants to drop all appeals. On October 29, the South Dakota high court denied the petition.

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that individuals with intellectual disability—then known as mental retardation—may not be executed. Yackel’s petition includes a litany of evidence she says  “clearly demonstrates” Berget’s ineligibility for the death penalty: IQ tests administered during Berget’s childhood in which he scored under 70, public welfare records in which a psychologist noted that “the boy appears ... to be suffering from borderline mental retardation,” Berget’s assignment to special education classes and participation in Special Olympics, and a diagnosis of intellectual disability by several leading national mental health experts. The petition and an accompanying affidavit also set forth evidence that Berget has a “lengthy history of self-harm and suicidality.” “This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel told Liliana Segura, an investigative reporter for The Intercept. “There is no question here. This is not a close call.” 

With Larson describing his client as “very intelligent and quite competent,” Berget pled guilty and waived his right to a jury trial. After Larson was fired from the public defender’s office, he continued to represent Berget pro bono, and did not retain a mitigation investigator to research Berget’s background, upbringing, and mental health history. He presented what Segura describes as “an astonishingly weak defense.” After the court removed Larson from the case, Berget was represented by Eric Schulte, a civil lawyer with no capital case experience, who also failed to present evidence of Berget’s participation in Special Olympics. The trial court rejected the intellectual disability claim raised  by Schulte, relying on testimony from a prosecution psychologist who had employed scientifically unsupported methods for assessing intellectual disability that were similar to those the U.S. Supreme Court struck down in Moore v. Texas in 2017. According to Yackel’s petition, acting on “the advice of his personal spiritual advisor, [Schulte] disregarded the clear need for appellate review and refused to file a Notice of Appeal,” effectively waiving Berget’s right to appeal. Dr. Stephen Greenspan, one of the leading national experts on intellectual disability, called the trial court’s ruling “egregious” and the case “one of the most outrageous” he had seen. 

Texas Courts Rule for Two Death-Row Prisoners on Intellectual Disability, Junk-Science Claims

Two Texas prisoners took steps away from death row as state courts ruled in their favor on issues involving false or faulty scientific evidence and argument. On October 5, 2018, the Texas Court of Criminal Appeals (CCA) granted a stay of execution to Juan Segundo (pictured, left), directing a Tarrant County trial court to reconsider a claim of intellectual disability that the courts had previously rejected based on an unconstitutional, unscientific standard for measuring his functioning. Four days later, an El Paso trial judge found that prosecutors had “presented false and misleading evidence and argument” concerning the cause of death of a 19-month-old whom Rigoberto Robert Avila (pictured, right) had been convicted of killing, and recommended that the CCA grant Avila a new trial.

Texas had been set to execute Segundo on October 10. Segundo’s lawyers had long argued that he is intellectually disabled and therefore exempt from execution under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. However, the Texas courts had dismissed that claim, relying on a series of nonclinical factors—some based on the fictional character Lennie Smalls from Of Mice and Men—to say that Segundo was not intellectually disabled under Texas law. In 2017, in the case of Moore v. Texas, the U.S. Supreme Court ruled that intellectual disability determinations must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas’s approach, calling it an “outlier” that created “an unacceptable risk that persons with intellectual disability will be executed.” In Segundo’s case, the CCA wrote, “[i]n light of the Moore decision and the facts presented in applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court.”

The CCA stayed Avila’s January 2014 execution based on a new law giving prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. His was one of the first cases sent back to a lower court for reconsideration under the 2013 junk-science law. In his 2001 trial, prosecutors argued that Avila had killed his girlfriend’s infant son. “There’s no other way the kid could have died,” they told the jury. New evidence showed, however, that the infant could have died from injuries caused by his four-year-old brother. Judge Annabell Perez wrote that this new evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial. In a prepared statement, Avila’s lawyers wrote: “The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony. After spending 17 years on death rowand facing four serious execution datesfor a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.”

Law Review: Junk Mental Health Science and the Texas Death Penalty

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

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