Nashville DA Concedes Tennessee Death-Row Prisoner with August 2022 Death Warrant Is Intellectually Disabled and Ineligible for Execution

Davidson County District Attorney Glenn Funk is ask­ing a Tennessee tri­al court to vacate the death sen­tence imposed on Byron Black (pic­tured), agree­ing that the Nashville man, who is sched­uled to be exe­cut­ed in August 2022, is intel­lec­tu­al­ly dis­abled and there­fore inel­i­gi­ble to be executed. 

In a plead­ing filed in the Davidson County Criminal Court on March 9, 2022, Funk wrote that two men­tal health experts his­tor­i­cal­ly relied upon by Tennessee pros­e­cu­tors in death-penal­ty cas­es had con­clud­ed that Black met the clin­i­cal cri­te­ria for intel­lec­tu­al dis­abil­i­ty. Funk also agreed with Black’s lawyers that a pri­or rul­ing in 2004 that denied his claim of intel­lec­tu­al dis­abil­i­ty was not bind­ing in the cur­rent pro­ceed­ings because it applied an uncon­sti­tu­tion­al def­i­n­i­tion of intellectual disability.

In June 2021, Black’s lawyers filed a motion to declare Black intel­lec­tu­al­ly dis­abled, rely­ing upon a new state law enact­ed the month before that cre­at­ed a pro­ce­dure by which death-row pris­on­ers can obtain judi­cial review of claims that they are inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. The statute, how­ev­er, does not per­mit death-row pris­on­ers to relit­i­gate claims of intel­lec­tu­al dis­abil­i­ty that have already been final­ly adju­di­cat­ed. Though the defense and pros­e­cu­tion agree that Black is intel­lec­tu­al­ly dis­abled and has nev­er had that claim reviewed under accept­ed clin­i­cal def­i­n­i­tions of the dis­or­der, Senior Judge Walter Kurtz must for­mal­ly rule on the fil­ings in order for Black to be resen­tenced to life with­out parole and for his sched­uled August 18, 2022 exe­cu­tion date to be lifted.

In 2004, Black was eval­u­at­ed using the state’s out­dat­ed stan­dard for intel­lec­tu­al dis­abil­i­ty, which was lat­er held to be uncon­sti­tu­tion­al. Psychologist Dr. Susan Vaught, who served as a state expert wit­ness and pre­vi­ous­ly argued that Black did not meet the cri­te­ria for intel­lec­tu­al dis­abil­i­ty, said she had changed her opin­ion ​“based on new infor­ma­tion in his record, the abil­i­ty to review his per­for­mance at mul­ti­ple points in time across mul­ti­ple prac­ti­tion­ers, changes in sci­en­tif­ic knowl­edge and stan­dards of prac­tice, and changes in diagnostic criteria.”

Black’s lawyers also pre­sent­ed an eval­u­a­tion from a sec­ond men­tal health expert, Dr. Daniel Martell, who sub­mit­ted a 25-page report find­ing Black to be intel­lec­tu­al­ly dis­abled. Funk con­ced­ed in the prosecution’s response to Black’s motion that Dr. Martell, who is a foren­sic psy­chol­o­gist and neu­ropsy­chol­o­gist, ​“has rou­tine­ly been relied on by the State of Tennessee in var­i­ous stages of cap­i­tal pros­e­cu­tions to chal­lenge claims regard­ing com­pe­ten­cy and/​or intellectual disability.”

Tennessee’s new intel­lec­tu­al dis­abil­i­ty law was designed, in the words of Black’s defense attor­ney Kelley Henry, to ​“patch a hole in Tennessee law that pre­vent­ed peo­ple with intel­lec­tu­al dis­abil­i­ty from access­ing the courts to press their claim that their exe­cu­tion is barred by the Tennessee and United States con­sti­tu­tions.” The law was inspired by the case of Pervis Payne, who suc­cess­ful­ly filed an intel­lec­tu­al dis­abil­i­ty claim and was removed from death row in 2021. After the Shelby County District Attorney’s office con­ced­ed that Payne would be found intel­lec­tu­al­ly dis­abled, he was resen­tenced to two con­cur­rent life sen­tences on January 31, 2022.

The new law brings Tennessee’s cri­te­ria for deter­min­ing intel­lec­tu­al dis­abil­i­ty in line with stan­dard med­ical def­i­n­i­tions of the dis­or­der, defin­ing the con­di­tion by three prongs: ​“sig­nif­i­cant­ly sub­av­er­age gen­er­al intel­lec­tu­al func­tion­ing” and ​“deficits in adap­tive behav­ior” that ​“must have man­i­fest­ed dur­ing the devel­op­men­tal peri­od, or by eigh­teen (18) years of age.” Dr. Martell wrote in his med­ical report that the evi­dence was ​”clear and unequiv­o­cal” that Black meets those guide­lines. ​“There were indi­ca­tions of intel­lec­tu­al deficits quite ear­ly in Mr. Black’s life,” he wrote. ​“He strug­gled in school, and had to repeat the sec­ond grade — the first clear indi­ca­tion that he was impaired intel­lec­tu­al­ly and as a result strug­gled aca­d­e­m­i­cal­ly from a very young age.” In addi­tion to his tes­ti­mo­ny in numer­ous Tennessee death-penal­ty cas­es, Martell tes­ti­fied for the Commonwealth of Virginia against Daryl Atkins in the case in which the U.S. Supreme Court ruled that apply­ing the death penal­ty against indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty con­sti­tutes cru­el and unusual punishment.

Both Payne and Black were sched­uled for exe­cu­tion in 2020 and received reprieves only because of the COVID-19 pan­dem­ic. On February 22, 2022, Tennessee set three new exe­cu­tion dates: August 18 for Byron Black, October 6 for Gary Sutton, and December 8 for Donald Middlebrooks. As of March 15, 2022, Tennessee had five executions pending.

In addi­tion to his intel­lec­tu­al dis­abil­i­ty, Black suf­fers from brain dam­age and schiz­o­phre­nia, as a result of which, his lawyers argue, he can­not under­stand his exe­cu­tion or the rea­sons for it. These severe men­tal defects, Henry said when Black’s 2020 exe­cu­tion date was set, ​“make him incom­pe­tent to be exe­cut­ed.” Henry said Black also suf­fers from numer­ous med­ical ail­ments. ​“He is phys­i­cal­ly infirm, can bare­ly walk, is in need of two hip replace­ments, and suf­fers from con­ges­tive heart fail­ure. He gets around the prison by being pushed in an office chair with wheels,” she said. ​“The Eighth Amendment pro­hibits the exe­cu­tion of a pris­on­er, like Mr. Black, who has lost his sanity.”