Nov. 16
TEXAS:
The Supreme Court Asks What It Means To Have An Intellectual
Disability----Researchers say that Texas has invented a nonscientific diagnosis
based on a crude stereotype in order to execute people with an intellectual
disability.
In April 1980, 20-year-old Bobby James Moore and two other men attempted to rob
the Birdsall Super Market in Houston. Moore carried a shotgun, and one of his
accomplices had a pistol. As an accomplice opened a bag to fill with money,
Moore, wearing a wig and sunglasses, pointed his gun at 2 store clerks. When
one of the clerks shouted, Moore shot the other in the head, killing him
instantly.
Moore has been on death row for 36 years. His guilt is not in question, but his
lawyers say he does not have the mental capacity to justify executing him for
his crime.
In 2002, the Supreme Court ruled that executing someone with an intellectual
disability is a "cruel and unusual punishment," prohibited by the Eighth
Amendment. Now, in the court's new term, Moore's case will require the justices
to consider how to define intellectual disability.
Psychologists typically diagnose intellectual disability with tests of a
person's IQ and "adaptive behavior," meaning the interpersonal and practical
skills needed for everyday life. The tests examine a broad range of abilities,
including whether the person can clothe and feed themselves, handle money, read
and write, and whether they are gullible and easily led. But in Moore's case,
the state of Texas instead relied in part on a stereotype based - literally -
on a tragic character from John Steinbeck's Of Mice and Men.
Leading medical and scientific organizations claim that Texas conjured up this
bizarre literary standard to prevent people on death row from being deemed to
have a disability. But 16 other states that use the death penalty have lined up
in support of Texas, arguing that this issue should not be ceded to "a small
professional elite" - that is, doctors and scientists specializing in
intellectual disability - who may be motivated by their opposition to the death
penalty.
The stakes are high, and not only because Texas - responsible for more than 40%
of the 841 executions in the United States since 2000 - has the most active
death row in the nation.
"There are other states that deviate from the clinical consensus of what
intellectual disability is," John Blume, a legal scholar who heads the Cornell
Death Penalty Project, told BuzzFeed News. So if the court takes a firm line on
how adaptive behavior should be measured, the decision could reverberate beyond
the Lone Star State, forcing all states to align their assessments with
scientific standards.
This isn't the 1st time that the Supreme Court has been asked to define
intellectual disability. In 2014, in an opinion written by Justice Anthony
Kennedy, the court ruled that Florida was wrong to use a rigid cutoff of 70 IQ
points or less. Today's IQ tests, which are set so that 100 points is the
average score, have a measurement error of 3 points or more. This means that
any score should be considered as a range, not an absolute value. After that
court decision, Florida reduced the sentence of convicted killer Freddie Lee
Hall, who had scored 71 on one IQ test, from death to life in prison.
Moore's case is expected to hinge not on IQ, but on the trickier measures of
adaptive behavior. Although standardized tests for adaptive behavior give
scores similar to IQ, they are not always used, and different states measure
adaptive behavior in different ways.
In 2004, when ruling on the case of Jose Garcia Briseno, convicted of murdering
a sheriff, the Texas Court of Criminal Appeals took inspiration from a
character in Of Mice and Men: Lennie Small, a lumbering migrant worker who
understands neither the world around him nor his own strength, and ends up
killing a woman who flirts with him.
"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of
his lack of reasoning ability and adaptive skills, be exempt," Judge Cathy
Cochran wrote in her opinion. But she questioned whether the scientific
definitions of "mental retardation" should apply to the death penalty.
Calling the measurement of adaptive behavior "exceedingly subjective," Cochran
proposed seven questions, now called the "Briseno factors," to help judge
whether a convicted killer has the intellectual capacity to justify facing the
death penalty. She did not specify exactly how they should be used.
The Briseno factors use specific abilities - such as whether the person can
lie, and whether their crime required planning - to judge whether someone has a
disability, rather than assessing every aspect of their adaptive behavior.
Experts say the Brise???o factors do not reflect modern clinical standards of
disability.
"It's not how adaptive behavior is measured by anyone, anywhere, and it sets an
unreasonable standard," Margaret Nygren, executive director of the American
Association on Intellectual and Developmental Disabilities (AAIDD), told
BuzzFeed News.
One big problem, Nygren added, is that the Briseno factors turn the diagnosis
of intellectual disability into a series of trade-offs, in which behavioral
deficits are countered by abilities such as a facility for lying.
"It's absolutely normal for people with intellectual disability to have
strengths and weaknesses," she said. "Those don't balance each other out."
In a brief submitted to the Supreme Court in the Moore case, Texas Attorney
General Ken Paxton downplayed the importance of the Briseno factors, describing
them as "entirely optional" considerations.
Still, the brief stresses specific abilities that the state's forensic
psychologist, Kristi Compton, noted when she examined Moore in 2014, including
that he "played pool for money, and mowed lawns." Her report also argued that
Moore's decisions to wear a wig when robbing the store, to conceal his gun in a
plastic bag, and to flee to Louisiana, where he was later arrested, showed that
he was capable of "abstract thought."
According to Blume, several other states - including Alabama, where
death-penalty sentencing has faced a wider constitutional challenge - similarly
focus on convicted killers' abilities, rather than their behavioral impairment,
when judging whether they are eligible for the death penalty.
Researchers also worry that the Briseno factors, based on a fictional character
with a severe disability, don't represent the reality of intellectual
disability on death row.
"They're driven by stereotypes and misconceptions," Marc Tasse, a clinical
psychologist at Ohio State University in Columbus, told BuzzFeed News. "There
is no Lennie in real life."
In fact, most people who have successfully challenged their death sentences
with disability claims have more subtle intellectual impairments. "They're
generally in the mild range," Keith Widaman, a specialist in intellectual
disability at the University of California, Riverside, told BuzzFeed News. "A
lot of them are identified for the first time when they interact with the
criminal justice system."
Between the 2002 Supreme Court ruling and the end of 2013, 147 cases in which
death row inmates claimed they had an intellectual disability were decided in
court on their merits, according to a study led by Blume. The average IQ score
of the 81 inmates who succeeded in overturning their death sentence was 68 -
just 2 points lower than the generally accepted threshold for "normal"
intelligence.
Similarly, when a case hinges on adaptive behavior, the inmate is usually near
the boundary of "normal," and so may not fit a stereotypic view of a person
with a disability.
"There is a strong impulse to conjure up our own image of what people with
intellectual disability are like, and then to evaluate individuals by how
closely they seem to resemble that preconceived image of 'a mentally retarded
person,'" argues a brief submitted to the Supreme Court in the Moore case by
the AAIDD.
Rather than falling back on stereotypes, scientists argue that adaptive
behavior should be assessed using validated tests, such as the Vineland
Adaptive Behavior Scales and the Adaptive Behavior Assessment System (ABAS).
These tests consist of structured interviews in which someone who knows the
person well, such as a parent or caregiver, is asked a series of questions
about their specific abilities, such as counting change, following a work
schedule, or wiping up after spilling a drink.
On an ABAS test, a score of 0 means the subject cannot perform the skill, 1
means they almost never perform it, 2 means they can sometimes perform it, and
3 means they always or almost always do. ABAS divides adaptive behavior into 3
domains - conceptual skills including reading and numeracy, social skills, and
practical living skills - and makes a diagnosis of impairment if the person
falls outside the normal range for any 1 of the 3.
Moore was never tested with either the Vineland or the ABAS scales. In her 2014
assessment, Compton, the Texas forensic psychologist, administered another
test, called the Texas Functional Living Scale, that is often used to judge
whether people with dementia need help with daily living. Although Moore scored
outside of the normal range, Compton concluded that his score was "not an
accurate reflection of his abilities" because Moore lacked experience with 2 of
the tasks - operating a microwave oven and writing a check.
While the Vineland and ABAS tests are considered the current gold standard for
assessing adaptive behavior, Tasse says they have one drawback when it comes to
death-penalty cases: These tests were designed to assess the full range of
abilities across the entire population, rather than to make precise
distinctions at the border between normal and impaired behavior. Tasse and
Widaman are finalizing a new test, called the Diagnostic Adaptive Behavior
Scale, to give better assessments near this threshold.
The fact that the science of measuring adaptive behavior is still a work in
progress helps explain why 16 other death-penalty states are supporting Texas
in the Moore case. In their brief, submitted by the attorney general of
Arizona, these states argue that they shouldn???t have to amend their rules
every time a scientific body publishes new diagnostic guidelines.
In 2013, the American Psychiatric Association (APA) - which, with other
professional bodies, has filed a brief supporting Moore - overhauled its
diagnostic manual. One of the changes was to replace "mental retardation,"
which judged the condition's severity by IQ test scores, with a diagnosis of
intellectual disability focusing mainly on adaptive behavior. That brought the
APA's definition broadly into line with the AAIDD's - which was last overhauled
in 2010. Yet just 4 states have specifically adopted either organization's
latest diagnostic guidelines in death-penalty cases.
In its brief, Texas noted that Moore himself denied that he had an intellectual
disability in the penalty phase of his retrial in 2001, a year before the
Supreme Court ruled that intellectual disability should protect a convicted
killer from execution.
Some inmates say they would rather be executed than called "retarded."
But Tasse, who has testified as an expert witness for about 20 death-row
inmates (not including Moore), has found that some still say they would rather
be executed than called "retarded." The stigma against intellectual disability
is particularly powerful in prison, Tasse said, because of threats of violence
from other inmates: "If you're weak or perceived as weak, you'll be
victimized."
When the Supreme Court hears arguments on the Moore case on Nov. 29, the
justices are expected to get conflicting accounts of Moore's trajectory to
murderer. Texas's brief depicts him as a street-smart drug abuser whose mental
abilities reflected his failure to regularly attend school, rather than a
disability. "He financed his drug habit with proceeds from stealing cars,
burglarizing houses, and hustling pool," the brief says.
The brief submitted by Moore's lawyers, in contrast, describes his struggles to
keep up at school, an abusive father who called him "stupid," and an incident
when 12-year-old Moore was hit in the head with a chain and a brick during
violent protests against the racial integration of Texas's schools.
Whatever the justices make of Moore's life story, in the end they must rule on
whether Texas has adopted a definition of intellectual disability that allows
unconstitutional executions.
In the 2014 Florida case, the court ruled that the state's failure to treat IQ
scores as a range "disregards established medical practice." But legal experts
are unsure whether the court will be similarly aggressive about the trickier
measurements of adaptive behavior.
"I'm skeptical that they're going to say the Briseno factors are OK," Cornell's
Blume said. "But how much they're going to wade in beyond that remains to be
seen."
(source: BuzzFeedNews)
VIRGINIA:
Mental health expert to evaluate Henrico man accused of killing his parents on
Easter
A mental health expert has been appointed to evaluate William Roy Brissette, a
Henrico County man accused of fatally shooting his parents on Easter Sunday
last March.
Brissette, 23, is charged with two counts each of capital murder and use of a
firearm in the deaths of Henry J. Brissette III, 59, and Martha B. Brissette,
56. The punishment for a capital conviction is life in prison or death. Henrico
Commonwealth's Attorney Shannon Taylor has said that she intends to seek the
death penalty in the case.
Evan Nelson was appointed ahead of a hearing on Tuesday where William
Brissette's defense team asked for evidence from prosecutors that might shed
light on a family history of mental illness, violence or abuse, and ties to
drug use or trade. Nelson will "conduct a statutorily required forensic
psychological mitigation evaluation" on behalf of the defense, according to
capital defender Doug Ramseur.
This is different from an evaluation of Brissette's competency to stand trial
or his sanity at the time of the offense, neither of which has been requested
by either the defense or prosecution.
"Mr. Brissette's mental status and psychological aspects of his history,
character, background and development are of crucial importance," Ramseur wrote
in his motion. "These issues will play a substantial role in the case,
particularly in the event of a penalty phase following a conviction of capital
murder where the issue for the jury would be whether to impose a sentence of
death or life in prison."
Brissette chuckled silently to himself throughout the short hearing Tuesday.
Typically while in court, he keeps his head bowed and eyes focused on the table
in front him. On Tuesday, his gaze roamed from front to back of the courtroom.
The evidence Ramseur and his legal team requested is part of a legal procedure
known as the Brady rule. Brady material is evidence the prosecutor is required
to disclose that might be favorable to the accused - it could negate the guilt
of a defendant, reduce a potential sentence or impeach the credibility of
government witnesses.
They requested any evidence of a history of violence or abuse in the family,
and drug buying. Ramseur said a detective in the case discovered that Martha
Brissette had purchased marijuana for her son. Taylor said it was for medicinal
purposes and objected to many of the requests.
Taylor said it appeared the defense was dictating how the prosecution should
conduct its investigation.
Ramseur also subpoenaed the medical records of both parents, looking for any
signs of mental health treatment. He said there was a history of mental illness
in Martha Brissette's family.
(source: Richmond Times-Dispatch)
GEORGIA----impending execution
Georgia inmate forgoes appeals ahead of execution for 2001 murder
A Georgia man scheduled to be executed on Wednesday for the 2001 choking death
of his ex-girlfriend is not pursuing appeals and refuses to discuss his legal
options, his lawyer said in an interview.
Steven Spears, 54, could halt his lethal injection if he decided to file state
and federal appeals still available to him, according to his lawyer, Allyn
Stockton.
But the death row inmate has not communicated with Stockton in about a year and
refused to accept the last letter Stockton sent him in prison, leading the
lawyer to believe his client has lost the will to live.
"That's the only way I can think of this," Stockton said.
The execution is scheduled for 7 p.m. ET (0000 GMT) at the state prison in
Jackson, about 50 miles (80 km) south of Atlanta.
If carried out, Spears would be the 18th person put to death this year in the
United States and the eighth in Georgia, the most of any state, according to
the nonprofit Death Penalty Information Center.
Spears told police he killed Sherri Holland, 34, because he suspected she was
dating someone else, according to court records.
He said he hid in her son's bedroom until the early hours of Aug. 25, 2001, and
then attacked Holland, binding her hands and feet with duct tape while he
choked her.
"Last thing she said was she loved me," Spears told police. "Swear to God,
that's the last thing she said. Last words came out of her mouth."
Spears, who was arrested after hiding out in the woods for 10 days, also said
"If I had to do it again, I???d do it," according to the court synopsis.
He was convicted and sentenced to death in 2007. The Georgia Supreme Court
affirmed the death sentence in 2015 after an automatic appeal.
On Tuesday, Spears' lawyer asked Georgia's pardons and paroles board to stop
the execution, arguing the inmate possesses "some good human qualities"
including kindness and intelligence.
Spears' ex-wife, Gwen Thompson, said in a court petition on Monday that mental
illness rather than rational decision-making had caused Spears to abandon his
appeals.
(soruce: Reuters)
******************
Georgia set to execute man who killed his ex-girlfriend
Georgia plans to execute a man who killed his ex-girlfriend in August 2001.
Steven Frederick Spears is to be put to death Wednesday evening by injection of
the barbiturate pentobarbital. The 54-year-old was convicted in the slaying of
Sherri Holland at her home in Dahlonega.
A Georgia Supreme Court summary of the case says Spears killed Holland because
he suspected she'd become romantically involved with someone else. It says
Spears choked her, wrapped tape around her mouth and face and put a plastic bag
over her head.
Spears would be the 8th inmate executed in Georgia this year, the most in a
calendar year in the state since the death penalty was reinstated in 1976. If
the execution happens, Georgia will have executed more inmates this year than
any other state.
(source: Associated Press)
FLORIDA:
State Argues That Death Penalty Case Should Proceed
Attorney General Pam Bondi's office is arguing that a Pinellas County judge
should be allowed to move forward in a death penalty case, even though the
Florida Supreme Court ruled that a state capital-sentencing law is
unconstitutional because it does not require unanimous jury verdicts for the
sentence to be imposed.
Late last month, a majority of the Supreme Court granted a request by lawyers
for convicted murderer Patrick Albert Evans to stop Circuit Judge Joseph Bulone
from moving forward with a trial that had been slated to begin Oct. 31.
Justices Charles Canady and Ricky Polston dissented without comment.
The Supreme Court's halting of the Evans case was the strongest indicator yet
that Florida's death penalty remains in flux in the aftermath of a pair of
opinions issued by the high court on Oct. 14. Those decisions found that a
statute passed in March in response to a U.S. Supreme Court ruling in a case
known as Hurst v. Florida was unconstitutional "because it requires that only
10 jurors recommend death as opposed to the constitutionally required
unanimous, 12-member jury."
In Evans' case, Bulone issued an order saying he would begin to empanel a
death-qualified jury and, if Evans is found guilty of 1st-degree murder,
"proceed to a penalty phase consistent with" the Oct. 14 Supreme Court
decisions. But, arguing that judges shouldn't be allowed to rewrite the
statute, lawyers for Evans immediately asked the high court to intervene,
warning of a "jurisprudential quagmire" if the court allowed the case to go
forward "without appropriate guidance."
In a 17-page response filed Monday, Assistant Attorney General Christina
Pacheco said the circuit judge should be allowed to proceed, as long as he
instructs the jury that a unanimous recommendation is required for a death
sentence. "This procedural process falls within the trial judge's inherent
ability to adopt appropriate mechanisms that are necessary to apply the law in
a constitutional manner," Pacheco wrote.
(source: WLRN news)
OHIO:
Death penalty phase of barbershop slayings trial to begin
The jury that convicted a 21-year-old man of aggravated murder and other
charges in a triple homicide at a suburban Cleveland barbershop is set to hear
arguments about whether he should receive the death penalty.
The sentencing phase of Douglas Shine Jr.'s murder trial is scheduled to get
underway Wednesday with defense attorneys laying out their case for why Shine
should not die by lethal injection.
If jurors recommend the death penalty, a Cuyahoga County Common Pleas judge
will decide whether to impose that sentence or give Shine life in prison with
no chance of parole.
Shine was convicted this month of opening fire inside a Warrensville Heights
barber shop in 2015, killing the owner, an employee and a customer. The jury
also convicted Shine of conspiring to kill a witness.
(source: Associated Press)
INDIANA:
Judge denies claims Indiana death penalty unconstitutional
Following previous rulings in Indiana death penalty cases, a Lake County judge
on Tuesday denied local claims arguing that the state's death penalty statute
is unconstitutional.
Defense attorneys representing two Lake County inmates made motions in recent
months questioning the law's constitutionality after prosecutors decided to
pursue the death penalty in the two unrelated cases of Darren Vann and Carl
Blount. Vann, of Gary, is charged in connection with the deaths of seven women,
while Blount, also of Gary, is accused of the fatal shooting of Gary police
Patrolman Jeffrey Westerfield.
To back up their claims that the death penalty is unconstitutional, the
attorneys echoed arguments made in death penalty cases that came before them in
the state, focusing on a few points: how a jury is supposed to weigh factors
that could influence a death sentence, allowing a judge to determine a
defendant's death sentence when the jury can't and that the statute violates
the 8th Amendment prohibition on cruel and unusual punishment.
Judge Samuel Cappas went through their main points in his written decision
before finally denying their motions to declare the statute unconstitutional.
Cappas noted that Indiana's higher courts have upheld the constitutionality of
the death penalty, and the statute complies with major death penalty rulings
across the country.
Cappas also referenced rulings in cases that came before Vann and Blount.
Another man facing the death penalty in Lake County, Kevin Charles Isom, also
questioned the factors a jury is supposed to weigh before sentencing someone to
death, but the state's Supreme Court ruled against him in 2015.
The defense teams pointed in their motions to flaws other states found in their
own death penalty laws, but Cappas determined those didn't apply locally and,
"Indiana's death penalty statute does not share the fatal flaw found in
Florida's and Alabama's statutes."
Cappas' decision comes a couple of weeks before the deadline he set for himself
in September when the attorneys presented their arguments in his courtroom.
With gag orders imposed in both cases, neither Vann's or Blount's attorneys nor
the Lake County prosecutor's office could comment on the ruling.
Andrea Lyon, dean of Valparaiso University Law School, said the decision did
not come as a shock based on the death penalty cases she has looked at in the
state.
"I'm not surprised at the ruling at all," Lyon said.
The precedent set in Indiana death penalty cases indicated how the decision in
Vann's and Blount's cases would turn out, she said. Plus, lower courts tend to
go with the precedent and what has been set by the law unless there is
something "blatantly" off in a case, she said.
Even though the odds were stacked against Blount and Vann, their attorneys
still had to make the motions, she said. There is a chance a motion could be at
least partially granted in a defendant's favor, she said, as each case is
different.
The topic could still come again later in their cases, she said. If a defendant
facing the death penalty is convicted, they could appeal their sentence, and
questioning the constitutionality of the death penalty now could play into
their appeals process later, she said.
Blount has a hearing Thursday in Lake County court to check in on his case, and
he's scheduled to go to trial at the end of January. Meanwhile, Vann's next
hearing is scheduled for Dec. 2.
(source: Post-Tribune)
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