Tennessee Death-Row Prisoner Appeals Ruling Denying Him Relief Despite Agreement by District Attorney that He is Intellectually Disabled

A Tennessee death-row pris­on­er who coun­ty pros­e­cu­tors agree is intel­lec­tu­al­ly dis­abled is appeal­ing a tri­al judge’s refusal to vacate his death sen­tence under a law designed to pro­vide con­demned pris­on­ers a mech­a­nism to enforce the con­sti­tu­tion­al pro­hi­bi­tion against exe­cut­ing indi­vid­u­als with intellectual disability.

On June 1, 2022, lawyers for Byron Black (pic­tured) filed an appeal with the Tennessee Court of Criminal Appeals chal­leng­ing Senior Judge Walter Kurtz’s rul­ing that Black could not take advan­tage of an April 2021 state law that closed a pro­ce­dur­al loop­hole that had pre­vent­ed pris­on­ers from pre­sent­ing evi­dence that they are inel­i­gi­ble for the death penal­ty because of intellectually disability. 

In a state­ment issued in con­junc­tion with the fil­ing, Black’s lead coun­sel, assis­tant fed­er­al defend­er Kelley Henry, crit­i­cized the low­er court’s rul­ing. “[T]he tri­al court’s refusal to let [Black] prove [his intel­lec­tu­al dis­abil­i­ty] under cur­rent law, if allowed to stand, would per­mit the State to know­ing­ly and will­ful­ly vio­late the law by exe­cut­ing some­one who is intel­lec­tu­al­ly dis­abled,” she said.

Black’s lawyers and the Davidson County District Attorney’s Office agree that Black is intel­lec­tu­al­ly dis­abled. However, when Black filed his unop­posed peti­tion to vacate his death sen­tence, Kurtz dis­missed it on pro­ce­dur­al grounds not raised by pros­e­cu­tors, rul­ing that Black could not seek relief under the new law because his pri­or claim of intel­lec­tu­al dis­abil­i­ty had been denied in 2004. Black argued — and coun­ty pros­e­cu­tors agreed — that this pri­or claim was not prop­er­ly adju­di­cat­ed because it was reviewed on an inad­e­quate evi­den­tiary record and decid­ed under stan­dards for deter­min­ing intel­lec­tu­al dis­abil­i­ty that the U.S. Supreme Court lat­er struck down as unconstitutionally restrictive.

Black’s brief argues that the Tennessee leg­is­la­ture nev­er intend­ed for courts to deny death-row pris­on­ers con­sti­tu­tion­al­ly appro­pri­ate review of their intel­lec­tu­al dis­abil­i­ty claims on the grounds that they had pre­vi­ous­ly been pro­vid­ed con­sti­tu­tion­al­ly inap­pro­pri­ate review. “[T]he leg­is­la­ture cre­at­ed the new cause of action to place all death row defen­dants on the same legal play­ing field as those defen­dants cur­rent­ly fac­ing cap­i­tal charges,” the brief says. ​“Everyone gets one fair bite at the apple – one that com­plies with con­sti­tu­tion­al man­dates. It can­not be that the leg­is­la­ture intend­ed to pun­ish dili­gent death row defen­dants who were denied a con­sti­tu­tion­al adju­di­ca­tion of their claim because they act­ed too ear­ly. Such would be the very def­i­n­i­tion of arbi­trary and capricious.”

Further, Black argues, coun­ty pros­e­cu­tors have acknowl­edged that Black’s intel­lec­tu­al dis­abil­i­ty claim was lit­i­gat­ed in 2004 on a mate­ri­al­ly defi­cient evi­den­tiary record. Henry not­ed that pros­e­cu­tion expert wit­ness, Dr. Susan Vaught, who pre­vi­ous­ly tes­ti­fied that Black did not meet the cri­te­ria for intel­lec­tu­al dis­abil­i­ty, changed her opin­ion and now agreed that Black is intel­lec­tu­al­ly dis­abled ​“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 notes that Davidson County pros­e­cu­tors stip­u­lat­ed that he ​“would be found intel­lec­tu­al­ly dis­abled were a hear­ing to be con­duct­ed” and con­ced­ed that his death sen­tence should be reformed to life impris­on­ment, even after the tri­al court raised the issue of whether the pri­or court rul­ing on intel­lec­tu­al dis­abil­i­ty barred Black from seek­ing relief under the new law. The pros­e­cu­tion ​“know­ing­ly and intel­li­gent­ly waived” any pro­ce­dur­al defens­es, Black argues, and the tri­al court’s inde­pen­dent asser­tion of a defense that was explic­it­ly waived vio­lat­ed due process.

Although Davidson County District Attorney Glenn Funk does not oppose Black’s intel­lec­tu­al dis­abil­i­ty claim, the state attor­ney general’s office and not local pros­e­cu­tors will han­dle the appeal. Tennessee Attorney General Herbert Slatery has repeat­ed­ly butted heads with Funk in the past, and Slatery called for leg­is­la­tion, since adopt­ed, that would allow the attor­ney gen­er­al to seek to replace a dis­trict attor­ney in a case if he believes that the local­ly elect­ed dis­trict attor­ney is refus­ing to enforce the law.

On September 20, 2019, Slatery asked the Tennessee Supreme Court to set exe­cu­tion dates for an unprece­dent­ed nine death-row pris­on­ers, includ­ing Black and three oth­ers from Davidson County. That same day, he filed a motion in the appeals court to inval­i­date a court-approved plea deal between Funk and for­mer death-row pris­on­er Abu-Ali Abdur’Rahman and to reac­ti­vate a war­rant for Abdur’Rahman’s execution. 

Black’s exe­cu­tion was sched­uled for October 8, 2020, but was stayed by the Tennessee Supreme Court on June 12, 2020 because of the COVID-19 pan­dem­ic and resched­uled for April 8, 2021. On December 3, 2020, the court again stayed Black’s exe­cu­tion because of the pan­dem­ic. He was again sched­uled to be exe­cut­ed on August 18, 2022 but Governor Bill Lee halt­ed all exe­cu­tions in Tennessee in May 2022 after learn­ing of irreg­u­lar­i­ties in the state’s lethal injection procedures. 

It is not clear what posi­tion Slatery will take on Black’s appeal.