Capital Seminar by TCDLA

CAPITAL DEFENSE SEMINAR INFORMATION Date Location Course Director Total CLE Hours:

February 4, 2022 Holiday Inn Austin Midtown |6000 Middle Fiskville Road Austin, Texas Rick Wardroup 7.0 Ethics: 0

Friday, February 4, 2022 Time

CLE

Daily CLE Hours: 7.0 Topic

Speaker

8:00 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Rick Wardroup

8:30 am

1.0

The Constitutional Method Of Voir Dire: An Overview of The Method

Ray Keith

9:30 am

1.0

Stripping: Why? How? Where It Fits in The Big Picture

Ray Keith

10:30 am 10:45 am

Break 1.0

11:45 am 12:00 pm

Atkins Claims in Texas after Petetan – What Now?

Lane Thibodeaux

Lunch Line 1.0

1:00 pm

Lunch Presentation: Creative Ways to Get Your NGRI in a Capital Case

Lisa Greenberg

Break

1:15 pm

1.0

Identifying & Rating Prospective Jurors

Keri Mallon

2:15 pm

1.0

Insulating the Lifegivers and Isolating & Teaching Respect to the Killers

Keri Mallon

3:15 pm 3:30 pm 4:30 pm

Ethics: 0

Break 1.0

Challenges For Cause & Making & Meeting Objections

Ray Keith

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Capital Austin Table of Contents

Speaker

Topic February 4, 2022

Lane Thibodeaux Lisa Greenberg

Topic Atkins Claims in Texas after Petetan – What Now? Creative Ways to Get Your NGRI in a Capital Case

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

ATKINS CLAIMS IN TEXAS AFTER PETETAN: WHAT NOW?

Intellectual Disability in the Texas Death Penalty Scheme – Trial and Appellate Considerations after Petetan Texas Criminal Defense Lawyers Association Capital Mitigation Seminar February 4, 2022 Author: Lane Thibodeaux1 Phone: 979.775.5700 Email: lane1@msn.com Twitter: @lanethibodeaux1

The author wishes to acknowledge the assistance of Raoul Schonemann and Thea J. Posel with the University of Texas Capital Punishment Clinic, Jared Tyler, Senior Counsel with the Texas Defender Service (“TDS”), Naomi Fenwick, formerly of TDS and currently part of the Federal Habeas Unit with the Federal Public Defender’s Office in Dallas, and Richard “Rick’ Wetzel of Austin.

Lane Thibodeaux is Board Certified in Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization. He was a member of the Committee for the Selection of Qualified Death Penalty Counsel for the Second Administrative District of Texas from 2013 to 2019. He is a member of the Texas Criminal Defense Lawyers Association, the Brazos County Criminal Defense Lawyers Association, and the Harris County Criminal Lawyers Association. Mr. Thibodeaux’s short fiction about crime victim and perpetrator, Bouquet by Numbers, was the winner of the 2012 Texas Bar Journal Short Story contest. Red Headed Catcher, based on an experience with his intellectually disabled son, was recently published on the flash fiction website Thirty Second Friendships.

“I dint know mice were so smart.” Flowers for Algernon by Daniel Keyes 1. Scope of paper This paper assumes qualified death penalty counsel has a working knowledge of the diagnostic criteria for intellectual disability (“ID”). It also assumes knowledge of the Court of Criminal Appeals (“CCA”) history of review of Atkins claims. This would include the CCA’s embrace of non-clinical Briseno factors and their repudiation – twice – by the Supreme Court of the United States (“SCOTUS”). What follows provides an analysis of the CCA’s decision in Petetan and how the case impacts Atkins claims in Texas. It also considers trial and future legal issues to be preserved for direct and collateral review. Petetan makes Texas one of the few jurisdictions litigating Atkins claims as a punishment issue to a jury.2 Appended to this paper is a table with a survey of the statutory and judicial treatment other jurisdictions litigate Atkins claims. Those cases and state statutes hopefully provide access to data to make easier the daunting task of preserving potential error for future attack on the way Petetan does not align with SCOTUS treatment of the categorical exemption of ID in the decision on death. 2. Essential diagnostic texts and interpretive cases on Atkins categorical exclusion of intellectual disability from the death penalty • American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM-5”) pgs. 31-41; • American Association of Intellectual and Developmental Disability Manual, (11th ed. 2012) (“AAIDD-11”); • Atkins v. Maryland, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002);

Seventy-three percent (73%) of jurisdictions with the death penalty litigate Atkins claims pre-trial by statute or judicial decision. Ninety-five percent (95%) of those same jurisdictions require or authorize the Atkins claim factfinder to be the trial judge. See Appendix One for a survey of State Atkins claim procedure.

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• Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004); • Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1966, 188 L.Ed.2d 1007 (2014); • Brumfield v. Cain, 576 U.S. 305, 135 S.Ct. 2269, 2278, 192 L.Ed.2d 356 (2015); • Moore v. Texas (Moore I), 581 U.S. __, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017); • Moore v. Texas (Moore II), 587 U.S. ___, 139 S.Ct. 666, 203 L.Ed.2d 1 (2019); • Petetan v. State, 622 S.W.3d 321 (Tex. Crim. App. 2021). 3. The CCA’s Petetan decisions and opinions 3.1

On original submission

The underlying facts of the crime as described by the CCA in their first phase legal sufficiency review involved Petetan shooting his estranged wife, Kimberly, and kidnapping her daughter in September 2012. Petetan at *1-5 (original submission). Among the direct appeal issues was legal and factual sufficiency of the evidence of Petetan’s Atkins claims at the punishment phase. Petetan also preserved appellate complaint that his Atkins claim should have been litigated pre-trial. The CCA, relying in part on the Briseno factors, found the evidence sufficient to uphold the jury’s verdict finding Petetan was not ID (referred to as mental retardation in on original submission). Id. at *5-29. Noting the fully developed record, and the procedural posture on direct appeal, the CCA held no constitutional requirement of a pre-trial determination of ID and such a determination would be premature. Id. at *44-45 (abrogating In re: Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015) (mandamus proceeding). Judge Alcala based on her dissent on Ex parte Moore, 470 S.W.3d 481, 529-543 (Tex. Crim. App. 2015), reversed, 581 U.S, __, 137 S.Ct. 1039 (2017). Judge Alcala was the sole dissenting judge. Id. at 49. -2-

Following the SCOTUS decision in Moore I, the CCA, on their own initiative, granted a rehearing on October 18, 2017 on the issues of legal and factual sufficiency on the Atkins claim and pre-trial determination of such claims. 3.2

On rehearing

Three and half years later, on May 12, 2021, the CCA handed down their new opinion in the case. The opinion’s holding on each of the grounds is analyzed below. 3.3

The DSM-5 and not the AAIDD-11 is the standard for Atkins claims

The CCA decided the DSM-5 is the standard for the categorical exemption, not the AAIDD-11. According to the CCA, the DSM-5 better reflects the “reduced culpability” for the underlying the categorical exemption of intellectual disability from the death penalty. Id. at 332 (“To the extent that the clinical diagnosis of intellectual developmental disorder can be harmonized with a reviewing court's legal inquiry under Atkins and its progeny, the approach taken by the DSM-5 hews closer to the original justification set out by the Supreme Court than the AAIDD-11. And that is the approach we take.”) For death penalty trial counsel, appellate, and writ counsel this holding is problematic. The DSM-5 ID clinical criteria contains a loose cause and effect relationship (termed “relatedness” in the DSM-5) between sub-average adaptive functioning and sub-average intellectual function. The AAIDD-11 does not require relatedness for a clinical diagnosis of ID. The requirement of proving cause and effect, however tenuous, is a capital defendant’s burden. Texas procedure, according to the Petetan opinion, requires litigation of Atkins claims as part of the sentencing. Thus, Atkins claims, at least in Texas, cannot not be litigated pre-trial. This part of the Petetan opinion is detailed and analyzed below. The heart of the problem is that in tying adaptive functioning to intellectual functioning, the CCA invites evidence and argument of adaptive strengths. The CCA attempted to address this problem by writing: Neither do we suggest that this ‘relatedness’ inquiry is unlimited. [SCOTUS] did clarify in Moore I that relatedness cannot be a backdoor for reliance upon lay stereotypes or evidence of adaptive strengths -3-

to undermine an otherwise clinical diagnosis…So while the relational requirement found in the DSM-5 is currently a necessary legal requirement under Atkins, it is not a vehicle to undermine an otherwise clinical diagnosis through consideration of lay stereotypes, adaptive strengths, and alternative disorders. Id. at 332-333 (emphasis added). Despite this language, the CCA relied on adaptive strengths in their legal sufficiency review of the evidence supporting the jury’s rejection of Petetan’s intellectual disability. 3.4

No pre-trial determination of Atkins claims in Texas

The CCA’s decision in Petetan that Atkins claims in Texas do not require pretrial determination under the Eighth and Fourteenth Amendments of the United States Constitution cannot by overemphasized. This holding makes Texas a continued procedural outlier among jurisdictions litigating Atkins claims. See, Appendix One. The CCA began their reasons by observing that SCOTUS has not required Atkins claims be divorced from sentencing determinations in otherwise constitutional death penalty schemes: Atkins and its progeny did not hold that an intellectual-disability determination was something other than a sentencing issue, and they do not require a pretrial determination. Nor do the cases (in spite of the Court's rejection of the Briseno factors say details of the offense can't be considered at all; rather, the cases just state that the focus should be on adaptive deficits and that adaptive strengths should not be overemphasized. Id. at 334 (citations omitted). The CCA footnoted the last sentence in the above passage with citation to the Moore I dissent. The Moore I dissent citation by the CCA was not a mistake. It was instead the foundation of how the CCA justified just the kind of “back door” evidence of adaptive strengths – at least in legal sufficiency review – the CCA disavowed earlier in the majority decision.

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The footnoted passage from the CCA majority opinion from the Moore I dissent recognized the shortcoming of the Moore I majority decision in failing to draw an adaptive deficit bright line for deficit evidence: The [majority opinion] faults the CCA for ‘overemphasiz[ing]’ strengths and ‘stress[ing]’ Moore's conduct in prison suggesting that some—but not too much—consideration of strengths and prison functioning is acceptable. The Court's only guidance on when “some” becomes “too much”? Citations to clinical guides. But if courts do have “flexibility” in enforcing the guarantee of Atkins and need not ‘adhere[ ]’ to these guides in every instance or particular then clinical texts, standing alone, cannot answer the question of why the CCA placed too much weight on adaptive strengths and prison conduct. The line between the permissibleconsideration, maybe even emphasis-and the forbidden ‘overemphasis’-is not only thin, but totally undefined by today's decision. It is not at all clear when a State's deviation from medical consensus becomes so great as to “diminish the force” of that consensus and thereby violate the Constitution. Moore I at 1058-59 (Roberts, CJ, dissenting) (internal citations omitted) (emphasis added). The “overemphasis” language in the Moore I majority opinion, criticized by Chief Justice Roberts in dissent, read as follows: In concluding that Moore did not suffer significant adaptive deficits, the CCA overemphasized Moore's perceived adaptive strengths. The CCA recited the strengths it perceived, among them, Moore lived on the streets, mowed lawns, and played pool for money. Moore's adaptive strengths, in the CCA's view, constituted evidence adequate to overcome the considerable objective evidence of Moore's adaptive deficits, But the medical community focuses the adaptive-functioning inquiry on adaptive deficits. E.g., AAIDD–11, at 47 (“significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills”); DSM–5, at 33, 38 (inquiry should focus on “[d]eficits in adaptive functioning”; deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits)[.] Moore I at 1050 (legal citations omitted) (emphasis added). -5-

Thus, though the Briseno factors were repudiated by SCOTUS, adaptive strength evidence is nevertheless admissible and probative in Atkins claim litigation, at least according to the CCA in Petetan: [G]iven the relational requirement under the DSM–5, consideration of the details of the offense (and extraneous offenses) may be necessary when evaluating the strength and reliability of an expert's opinion regarding intellectual disability. This is true even if the details do not provide an independent basis for determining the existence of an intellectual disability. Therefore, under existing Supreme Court case law, and in light of the lack of state legislation, we re-affirm our holding that intellectual disability is a sentencing issue. And sentencing issues are generally not ripe for review before a finding of guilt. Petetan at 334 (emphasis added).3 The CCA then disposed of Petetan’s argument that a pre-trial determination of ID was a threshold issue similar in nature to the constitutional procedural due process requirement of competency proceedings. Id. at 335-336. The CCA observed the threshold issue in competency proceedings must occur before conviction, “It is the conviction itself that violates an incompetent defendant’s constitutional rights. This makes pretrial incompetency determination ripe for review.” Id. at 336. Thus, as a matter of constitutional due process, because the categorical exemption comes into play only after Petetan was convicted of the underlying capital murder, the analogy fails. Id. In similar fashion, the CCA found Petetan’s analogy to pre-trial determination to juvenile proceedings categorical exemption of juveniles unpersuasive, observing that juveniles must be subjected first to transfer proceedings, and that in such a transfer proceeding, a juvenile’s age would be readily ascertainable. “Therefore, the defendant’s age must be necessarily be determined at that time, making it ripe for review.” Id. The CCA disposed of the argument that Texas Atkins procedure is an

The relevance of some level of adaptive strengths was reenforced by the SCOTUS majority in Moore II: “Instead, the [CCA] emphasized Moore's capacity to communicate, read, and write based in part on pro se papers Moore filed in court. That evidence is relevant, but it lacks convincing strength without a determination about whether Moore wrote the papers on his own, a finding that the court of appeals declined to make. Moore II, at 670-71 (citing the CCA decision on remand) (emphasis added).

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outlier4 in two short sentences, “While that may be true, Atkins and its progeny do not require it. Neither does Texas law.” Id. at 335. In sum, the CCA held “We therefore conclude that Atkins and its progeny do not require a pre-trial determination of intellectual disability as a matter of federal constitutional law.” Id. at 337. What was not discussed by the CCA was how ID can be effectively litigated at the death penalty stage of trial following conviction for capital murder. Potential trial and appellate considerations of this part of the Petetan decision on this legal issue are discussed below. 3.5

Legal and factual sufficiency

The CCA opened their sufficiency review by characterizing ID as a “punishment-mitigation issue” 5 in the “nature of an affirmative defense.” Id. at 337 (citing Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2008). Affirmative defenses in Texas are subject to review for legal and factual sufficiency. See, Matlock v. State, 392 S.W.3d 662, 669-70 (Tex. Crim. App. 2013). 3.51 The intellectual functioning evidence • February 1991, at age fifteen, Texas Juvenile Justice Commission records showed a full score IQ score of 61 and a verbal score of 67. The intellectual functioning diagnostic tool administered and the identity of the evaluator were not disclosed in the opinion. Petetan at 325-26; • November 1991, at an undisclosed juvenile justice facility Petetan was diagnosed as having a “mild [intellectual disability] versus borderline intellectual disability.” This diagnosis was a result of a records review with no additional testing by a known evaluator. Petetan at 326; • April 1992, at age of sixteen a child and adult intelligence functioning test was administered by juvenile services in Jefferson County and yielded a full scale score on the “child” test of 64. The “adult” test yielded full scale score of 74. The identity of the evaluator was disclosed in the opinion. The diagnostic tool

See, Appendix One.

It is noteworthy the CCA used the phrase “mitigation-punishment issue” rather than observing ID is a categorical exclusion to the death penalty under Atkins.

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used for testing was not disclosed. A diagnosis of mild intellectual disability was made by the evaluator. Id.; • When entering the Texas Department of Criminal Justice (“TDCJ”) as an adult – date not disclosed – Petetan was administered the TDCJ screening IQ test. The yielded score was 69, and Petetan was administered a secondary test based on that score. However, that result was undisclosed and not part of the evidentiary record. The identity of the evaluator for the initial screen was known. Id.; • In 2012, as part of a Social Security disability assessment Petetan was administered the WAIS-III diagnostic intelligence functioning test. The evaluator was known. The WAIS-III testing yielded a full scale IQ of 55. The evaluator diagnosed Petetan with mild intellectual disability. Id.; • As part of Petetan’s Atkins claim, the defense hired an identified neuropsychologist, Joan Mayfield (“Mayfield”) to administer the WAIS-IV. The date of testing was not disclosed. The WAIS-IV yielded a full scale IQ of 52. 3.52 Adaptive functioning deficits – expert evidence Mayfield concluded Petetan “[P]resents with global delays, global delays in intellectual ability and academic and attention and executive functioning and problem solving, memory, language, motor, and visual perception. There was global delays across all domains.” Id. at 326. The defense hired a psychologist, Ellis Craig, Ph.D. (“Craig”) who conducted the standardized test Adaptive Behavior Assessment System II (“ABAS-II”), a normed peer reviewed test for the domains of adaptive behavior (“AB”) functioning under the clinical standards of the DSM-5. Id. at 340. The ABAS-II is not normed for the retrospective evaluation conducted in Petetan’s case – and Petetan, like many, if not most, capital defendants had been incarcerated for many years. Id. at 340. AB inventories such as the ABAS-II rely on informants – individuals familiar with the subject and the subject’s ability to perform specific tasks within the domain subject of the inventory. The listed items on the inventory relevant to the domain are scored on a scale of 0-3 by the informant. Petetan had not been subject of AB inventories before Ellis conducted the ABAS-II. Id. Craig used Petetan, his mother, an older brother, an older sister, and an uncle as informants. Id. The scores from highest to lowest were: brother, 53; uncle, 47; -8-

sister, 47; Appellant, 42; mother, 40. The norm for the population on the ABAS–II is between 85 to 115, and the lowest possible score is 40. Craig did not use Petetan’s self-report as part of the scoring. Nor did Craig use the reporting of Petetan’s mother. According to Craig, self-reports are disfavored because subjects will answer the inventory in a way that presents themselves as more neuro-typical. Id. at 341. Craig also did not use Petetan’s mother’s inventory because her answers to inventory questions were internally inconsistent. Id. Craig’s assessment revealed among the inventoried AB domains, except for the uncle, Petetan’s highest AB domain score was in the social skills, then conceptual, and practical skills the lowest. Id. Craig discounted the uncle’s inventory due to a lack of exposure to Petetan before he was eighteen. Id. Craig, according to the opinion. thought Petetan’s brother and sister provided the most accurate inventories on Petetan’s day-to-day functioning. Id. Craig opined based on the inventories that Petetan fell in the moderate intellectual disability range. Id. The CCA did not include, and the evidence does not reflect that the State had any expert evidence to refute either the Mayfield or Ellis conclusions that Petetan met the criteria for ID. 3.6

The CCA legal sufficiency analysis

As part of the sufficiency review, the CCA sifted the evidence in each of the applicable DSM-5 adaptive functioning domains, conceptual, social, and practical. The Court sifted the evidence but did not limit that review to the evidence of adaptive deficits. The CCA justified this under the standard of review applicable to criminal affirmative defenses: “reviewing courts should first assay the record for a scintilla of evidence favorable to the factfinder’s finding and disregard all evidence to the contrary unless a reasonable factfinder could not.” Id. at 337 (citing Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). Essentially, under this standard, legal sufficiency was a foregone conclusion. The CCA legal sufficiency analysis was summarized in each of the DSM-5 adaptive functioning domains. In the conceptual domain, the CCA detailed Petetan’s testimony they characterized under the auspices of the legal sufficiency standard “the jury was able to gauge for itself Appellant's ability to consistently remember various historical details on both direct examination and cross examination.” Id. at 349. -9-

In the social domain, the court detailed letters written by Petetan and statements made by him in those letters. Finally, the jury could credit Petetan’s own statements made in letters to his girlfriend that “[I]ndicated a history of playing baseball, bowling, boxing, working out with weights, and watching sports on television. As a result, the jurors did not have to rely on lay stereotypes about the intellectually disabled to reject Dr. Craig's testimony, or that of Appellant's own family.” Id. at 350. In the practical domain, the CCA wrote, “The jury could have doubted the efficacy of the ABAS-II given Dr. Craig's circumscribed pool of “informants.” Dr. Craig testified that he assumes the informants give him the correct information. [All] of the family members had an obvious vested interest in the outcome of their interviews with Dr. Craig: saving Appellant from a possible death penalty. Id. at 355. The CCA concluded for legal sufficiency analysis that “a rational jury could have rejected Appellant's claims that he possessed adaptive deficits suggesting intellectual disability in light of all the evidence before it.” Id. at 356. 3.7

The CCA factual sufficiency analysis

The CCA did an abrupt about face on adaptive strength evidence, co-existing conditions, and evidence relied on by testifying experts in their factual sufficiency review. The majority opinion relied on the different standard of review requiring review of the evidence supporting the verdict in a neutral light in justifying their different treatment of the evidence. Id. at 357 (citing Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013). In their factual sufficiency review the CCA focused again on Moore I’s “overemphasis” language on adaptive deficits, and SCOTUS’s smack down in Moore II on the issue when it remanded after Moore I. Id. at 358. (“In Moore II, the Supreme Court summarily reversed this Court's reliance upon evidence of adaptive strengths when that evidence was used to undermine the credibility of a clinician's diagnosis.”). The key in the CCA’s factual sufficiency review was the testimony of clinicians and forensic experts that Petetan met the DSM-5 first and second criteria for ID and the lack of State sponsored evidence controverting their conclusions on the issue: In this case, viewing the evidence in a neutral light, the rational resolution of evidentiary conflicts surrounding the adaptive deficits testimony fails to fully account for the great weight and preponderance of diagnostic evidence establishing subaverage intelligence. Though the jury could - 10 -

rationally reject evidence showing adaptive deficits in isolation, failing to consider that evidence in conjunction with the evidence of subaverage intelligence runs afoul of Hall. Under a proper diagnostic framework, intellectual disability is determined by considering all three diagnostic criteria together rather than each one in isolation. Allowing the rejection of one diagnostic criterium (sic) when clinicians would consider criteria together creates an unconstitutional risk that an individual with an intellectual disability will be executed. Id. at 358. [E]mphasizing Appellant's adaptive strengths to undermine reliance upon an expert diagnosis repeats the problem identified by the Supreme Court in Moore I and Moore II. Though clinicians may rely upon evidence of adaptive strengths when making an intellectual disability diagnosis, allowing the jury to reject such a diagnosis by overemphasizing that evidence places the focus upon adaptive strengths rather than adaptive deficits. Further, it encourages the jury to rely upon lay stereotypes regarding intellectual disabilities to reject a clinical diagnosis. Id. at 358-359 (citing Moore I). The CCA then listed the expert testimony supporting a finding of ID that was contained in the evidentiary record: Expert after expert diagnosed Appellant with mild intellectual disability: Dr. Harold Scott (“mild [intellectually disability] versus borderline intellectual functioning”); Dr. Coxe (“mildly [intellectually disabled]”; Dr. Correia (“mild intellectual disability”); Dr. Mayfield, (“global delays across all domains”); Dr. Craig (adaptive assessment scores fell within the range for moderate intellectual disability). Id. at 359.

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The CCA provided the prosecutors a roadmap to meet factual insufficiency in future Atkins claims: the need for controverting expert rather than lay testimony: We have said that jurors are free to reject expert testimony if the testimony fails to comport with the jurors’ concepts of sound logic. In choosing to disregard expert testimony, the jury is constrained only by the requirement that any action taken must be pursued in a nonarbitrary manner. *

In this case, the medical community was of one mind. We cannot hold the evidence supporting the adverse finding factually sufficient because there was no competing medical evidence. Had there been, we might be assured that the jury's rejection of the evidence of intellectual disability did not run afoul of Supreme Court precedent. After Moore I and Moore II, a factfinder cannot substitute its opinion for that of all of the examining doctors. Id. at 360. 4. What now? The CCA’s decision in Petetan renders death penalty counsel’s task to divorce evidence of intellectual and adaptive function deficits from aggravating evidence on mitigation and future dangerousness especially problematic. Petetan’s holding that evidence of adaptive strengths is fair game unless overemphasized makes the task more daunting. Much of what makes the task daunting is the Texas unique death penalty scheme. Texas two (three if the theory is as a party) issue jury submission is unique among jurisdictions with the death penalty on the books. See, e.g., Jurek v. Texas, 428 U.S. 262, 270-272, 96 S.Ct. 2950, 2955-2956 (1976). The issue confronting trial counsel is how to use the limited tools available after Petetan to segregate and limit adaptive strength evidence, how to communicate and emphasize adaptive deficit evidence and to federalize and preserve the ways Petetan does not align with SCOTUS treatment of the categorical exemption in Atkins, Hall, and Moore I and II.

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4.1

General evidentiary considerations

Flowers for Algernon won a Hugo award as the best science fiction short story of 1959. The later re-published novella is familiar to many from secondary school required reading. Flowers is structured as a series of self-progress reports. Charlie Gordon – a man with mild intellectual disability attains, by experimental surgery, genius level functioning. Later he return to intellectual disability. Charlie’s first person account drives reader empathy. The real genius of Flowers is Charlie’s changing perception of the world around him and, in turn, the way he is perceived by the those around him. Flowers illustrates trial counsel’s task of forcing Texas juries to view the world form a mild ID defendant’s point of view. This means overcoming stereotypes and cognitive bias of intellectual disability. Severe intellectual disability renders an individual functionally incapable of the act of murder. Mild ID with limited or absent supports can cause individuals to deteriorate into frustration, drug use, and acting out that mirror the world surrounding them. 4.2

Sentencing phase issues for Atkins ID claims after Petetan 4.21 Jury charge special question

Atkins claim special issue submission is non-statutory. This allows trial counsel creativity in drafting and preserving error with the special issue and supporting instructions. Even if overruled, by preserving error, trial counsel provides direct appeal counsel the benefit of the more forgiving Almanza charge analysis in addition to the requisite constitutional standards of harm. The Atkins claim question is a categorical exemption to the death penalty. It should be the first question the jury answers. Trial counsel needs to fight for this. If the first answer is “Yes,” sentencing is over. The noun “disability,” in the author’s view, better works to make the question clinically based. It is the term used in the clinical diagnosis of the DSM-5 and the AAIDD-11. Additionally, because of the Texas death penalty scheme structure, admission of testimony on victim impact, aggravating circumstances, and future dangerousness, anger and fear of the defendant drive the prosecution’s punishment case. The adjective “disabled” works against a defendant in this environment. Use of the DSM-5 clinical term also serves to divorce the evidence of ID from mitigation, State evidence of aggravation, and future dangerousness. - 13 -

Special Issue Number One From a preponderance of the evidence does [defendant’s name] have an intellectual disability? Answer “Yes” or “No”: __________ 4.22

Jury charge instructions supporting the Atkins special issue

The instructions given should repeat “deficits” as many times the grammatical structure of the instruction permits. Petetan emphasizes the DSM-5, so use it. The proposed instruction below highlights the “deficits” each time it is used. This allows trial counsel to emphasize the court’s deficit instruction – and lack of the phrase “adaptive strengths” in the court instructions in closing argument. Cutting against this strategy: alert prosecutors will ask for an instruction that adaptive deficits are required to be related. The DSM-5 wording is “directly related” to intellectual functioning deficits. The instructions below contain some non-diagnostic criteria language from the DSM-5. However, because of Moore I and II’s emphasis on clinical and medical standards in the ID diagnosis, they should arguably be included in the instructions. Instructions specific to Special Issue Number One You are instructed the term “intellectual disability” means (a) deficits in intellectual functioning; (b) deficits in adaptive functioning, and; (c) onset of intellectual and adaptive deficits during the developmental period. You are further instructed the term “deficits in intellectual functioning” does not include coexisting conditions, if any, that may, or may not, affect deficits in intellectual functioning. You are further instructed that the presence of sources of imprecision in administering the test to a particular individual cannot narrow the test-specific Standard Error of Measurement (SEM) of deficits in intellectual functioning. You are further instructed the term “deficits in adaptive functioning” refers to deficits in conceptual, social, or practical domains and require adaptive deficits in at least one of those three domains. You are further instructed adaptive functioning in a controlled setting, if any, - 14 -

should not be considered in whether deficits in adaptive functioning, if any, exist. 4.23

Segregating ID from Mitigation and Future Dangerousness

At the risk of repeating the point, Atkins claims procedures in Texas, regardless of Petetan, allow creativity. For example, formal request to bifurcate the punishment phase is Petetan-consistent. The Atkins claim would be the first fact issue submitted to the jury, with second phase mitigation and future danger evidence. The State will object, and the trial court will deny it, but argument that bifurcating the proceeding wastes jury time and court resources is false. Bifurcation focuses the jury’s attention on the clinical criteria and avoids confusion of issues and burdens of proof. Most important, if the jury answers the special issue in the affirmative, there is no need for a second punishment phase on mitigation and future dangerousness. In the death penalty phase unitary proceeding litigating an Atkins claim, the prosecution’s usual playbook in death penalty punishment is to put on aggravating and future danger evidence, rest on the merits. The prosecution then waits for the defendant to put on their Atkins claim evidence, saving for rebuttal any expert testimony the prosecution may have. This procedure allows trial counsel to call the State’s expert adversely and do a cross-examination much in the way plaintiff counsel routinely does in a civil trial. Competent trial counsel can use the State’s expert to help prove their case, and it forces the State into a defensive position. The jury hears the State’s expert first through trial counsel’s filter. 4.24

Limiting instruction and objection to prosecution jury argument

A unitary punishment proceeding will include prosecution aggravating and future dangerousness evidence. Trial counsel must attempt to limit such evidence to those issues. This evidence is the most likely way adaptive strength evidence would be “back doored” into an Atkins claim. Petetan recognized the seven Briseno factors were repudiated by SCOTUS in Moore I and II. Evidence of formulation of plans, the hiding of facts, effectiveness of lying or whether the commission of underlying offense required planning, complex execution or purpose may be admissible as aggravating evidence on the mitigation and future dangerousness issues, but not the Atkins claim. If limiting instructions are given, trial counsel must object early and often during closing arguments if the prosecution tries to argue this type of evidence as adaptive strengths. By objecting – even if overruled – trial counsel is giving direct - 15 -

appeal and writ counsel tools to argue that segregating Atkins claims from mitigation and future danger issues is constitutionally impossible. 4.25

Appellate and collateral writ issues for future review

Absent future Texas legislative action on Atkins procedure in Texas, trial, direct appeal, and collateral writ counsel must develop the ways that Texas Atkins procedure after Petetan violate constitutional guarantees of due process and protection against cruel and unusual punishments This begins with the ways Petetan does not follow SCOTUS directives from Moore I and II. Below are specific passages from those two opinions that isolate language from Moore I and II on deficits in intellectual and adaptive functioning. These passages are included to assist in drafting challenges to Texas Atkins claim procedure. 4.251 Intellectual function language from Moore I The CCA's conclusion that Moore's IQ scores established that he is not intellectually disabled is irreconcilable with Hall. Hall instructs that, where an IQ score is close to, but above, 70, courts must account for the test's “standard error of measurement.” See [citing Hall], 134 S.Ct., at 1995, 2001. See also Brumfield v. Cain, 576 U.S. [305], 135 S.Ct. 2269, 2278, 192 L.Ed.2d 356 (2015) (relying on Hall to find unreasonable a state court's conclusion that a score of 75 precluded an intellectual-disability finding). Moore I at 1049. Rather, in line with Hall, we require that courts continue the inquiry and consider other evidence of intellectual disability where an individual's IQ score, adjusted for the test's standard error, falls within the clinically established range for intellectual-functioning deficits. Moore I at 1050. 4.252 Adaptive functioning language from Moore I and II Clinicians, however, caution against reliance on adaptive strengths developed “in a controlled setting,” as a prison surely is. DSM–5, at 38 (“Adaptive functioning may be difficult to assess in a controlled setting (e.g., prisons, detention centers); if possible, corroborative information reflecting functioning outside those settings should be obtained.”); see - 16 -

AAIDD–11 User's Guide 20 (counseling against reliance on “behavior in jail or prison”). Moore I at 1050. But the medical community focuses the adaptive-functioning inquiry on adaptive deficits. E.g., AAIDD–11, at 47 (“significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills”); DSM–5, at 33, 38 (inquiry should focus on “[d]eficits in adaptive functioning”; deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits); see Brumfield, 576 U.S., at [305], 135 S.Ct., at 2281 (“[I]ntellectually disabled persons may have ‘strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.’ ” (quoting AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 8 (10th ed. 2002)). Moore I at 1050. Those traumatic experiences, however, count in the medical community as “risk factors” for intellectual disability. AAIDD-11, at 59-60 (emphasis added). Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination. See id., at 60 (“[A]t least one or more of the risk factors [described in the manual] will be found in every case of” intellectual disability.). Moore I at 1051. As mental-health professionals recognize, however, many intellectually disabled people also have other mental or physical impairments, for example, attention-deficit/hyperactivity disorder, depressive and bipolar disorders, and autism. DSM-5, at 40 (“[c]o-occurring mental, neurodevelopmental, medical, and physical conditions are frequent in intellectual disability, with rates of some conditions (e.g., mental disorders, cerebral palsy, and epilepsy) three to four times higher than in the general population”); see AAIDD-11, at 58-63. Coexisting conditions frequently encountered in intellectually disabled individuals have been described in clinical literature as “[c]omorbidit[ies].” DSM-5, at 40. See also Brief for AAIDD et al. as Amici Curiae 20, and n. 25. - 17 -

Moore I at 1051. [In] our last review [Moore I], we said that the court of appeals had “departed from clinical practice” when it required Moore to prove that his “problems in kindergarten” stemmed from his intellectual disability, rather than “ ‘emotional problems.’ ” Moore, 581 U.S. at ___, 137 S.Ct., at 1051 (quoting Ex parte Moore I, 470 S.W.3d at 488, 526). And we pointed to an amicus brief in which the APA explained that a personality disorder or mental-health issue is “not evidence that a person does not also have intellectual disability.” 581 U.S. at ___, 137 S.Ct. at 1051 (quoting Brief for APA et al. as Amici Curiae in No. 15–797, at 19). Moore II at 671. Of course, clinicians also ask questions to which the court of appeals' statements might be relevant. See AAIDD-11, at 44 (noting that how a person “follows rules” and “obeys laws” can bear on assessment of her social skills). But the similarity of language and content between Briseno's factors and the court of appeals' statements suggests that Briseno continues to “pervasively infec[t] the [the appeals courts'] analysis.” Moore, 581 U.S. at ___, 137 S.Ct. at 1053. Moore II at 672. We conclude that the appeals court's opinion, 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. And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court. Moore II at 672.

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5. SCOTUS case to watch for possible certiorari grants Young v. Georgia, No. 21-782 (docketed November 24, 2021) Georgia is the only death penalty jurisdiction in the country that requires an Atkins claim defendant prove ID beyond a reasonable doubt. A SCOTUS grant would open another window yet again, on State procedures that are Atkins outliers. Andrus v. Texas, No. 21,6001 (Andrus II) (docketed October 19, 2021) Andrus II is another case of CCA resistance to SCOTUS directives. Andrus I was decided by SCOTUS after initial state habeas review of a death penalty case based on trial counsel IAC. Andrus v. Texas, __ U.S. __, 140 S.Ct. 1875, 1881 (2020) (per curium). SCOTUS reversed on deficient performance and remanded to the CCA for prejudice analysis. However, SCOTUS was unambiguous in the opinion about harm resulting from the deficient performance Id. at 1887. On remand, in an opinion decided a week after Petetan, the CCA found lack of prejudice. Ex parte Andrus, 622 S.W.3d 892 (2021). Keller, PJ, authored the CCA opinion, with Newell, J and three judges dissenting. The same dynamics as Moore I and II are in play in Andrus II. 6. Conclusion Petetan makes trial counsel’s task in litigating Atkins claims even more difficult in Texas by not allowing that claim to be determined pre-trial. Use of the DSM-5 as the standard, adaptive strength evidence will be admissible in litigating these claims. However, use of the clinical diagnostic criteria that limits jury consideration to adaptive function deficits provides tools to death penalty counsel. This limitation should be used aggressively in the prosecution’s admission of evidence on that claim. This approach also has the benefit of highlighting in later direct and collateral appeals the way that Petetan’s procedural holdings and the Texas death penalty scheme do not align with SCOTUS directives in Moore I and II.

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Appendix One Survey of States with pre-trial procedures for Atkins claim litigation Of the thirty-one states that retain capital punishment, twenty-one states have enacted statutory procedures for determining intellectual disability. Fourteen of those twenty-one states (67%) either provide for or mandate a pre-trial determination by statute: The fourteen death penalty states with statutory procedures providing for a pre-trial determination are: (1) Arizona (Ariz. Rev. Stat. § 13-753(G) (allowing for a pre-trial determination)); (2) Arkansas (Ark. Code Ann. § 5-4-618); (3) California (Cal. Pen. § 1376(c) (allowing for a pre-trial determination)); (4) Colorado (Colo. Rev. Stat. Ann. § 18-1.3-1102); (5) Idaho (Idaho Code Ann. § 19-2515A); (6) Indiana (Ind. Code § 35-36-9-5); (7) Kentucky (Ky. Rev. Stat. § 532.135); (8) Louisiana (La. Code Crim. Proc. Ann. art. 905.5.1(c) (allowing for a pre-trial determination upon agreement); (9) Missouri (Mo. Ann. Stat. § 565.030(5) (allowing for a pre-trial determination upon agreement); (10) Nevada (Nev. Rev. Stat. § 174.098); (11) Oklahoma (Okla. Stat. Ann. tit. 21 § 701.10(B)); (12) South Dakota (S. D. Codified Laws § 23A-27A-26.3); (13) Tennessee (Tenn. Code Ann. § 39-13-203(3)(c) (allowing for a pre-trial determination)); and (14) Utah (Utah Code Ann. 1953 § 7715a-104). Ten states, including Texas, have yet to legislate a statutory procedure for determining intellectual disability, five of those ten states allow or require a pre-trial procedure under decisional law. The five death penalty states that provide for a pretrial determination by judicial decision are: (1) Alabama (see Morrow v. State, 928 So.2d 315, 324 (Ala. Crim. App. 2004) (“[W]e encourage defendants to raise, and trial courts to resolve, mentalretardation issues before trial if at all possible in order to avoid the burden and expense of a bifurcated capital trial.”)); (2) Mississippi (see Chase v. State, 873 So.2d 1013, 1029 (Miss. 2004) (describing procedure for pre-trial determination upon motion of the defendant)); (3) Ohio (see State v. Lott, 97 Ohio St.3d 303, 306 (Ohio 2002) (holding that a pre-trial judicial proceeding analogous to a competency determination is proper)); (4) Pennsylvania (see Commonwealth v. Sanchez, 36 A.3d 34, 67 (Penn. 2011) (allowing for a pre-trial determination if both parties waive jury finding on the issue)); and (5) South Carolina (see Franklin v. Maynard, 588 S.E.2d 604, 606 (S.C. 2003)(announcing pre-trial determination requirement after Atkins)). - 20 -

Four states – Montana, New Hampshire, Oregon, and Wyoming – have no established procedure for determining Atkins ineligibility. In sum, nineteen of twentysix death penalty states (73%) expressly mandate or provide for a pre-trial determination of intellectual disability either by statute or judicial decision. The overwhelming majority of states with statutory procedures for determination of intellectual disability – twenty of twenty-one states (95%) – require or authorize the judge to be the fact-finder in intellectual disability determinations: (1) Arizona (Ariz. Rev. Stat. Ann. § 13-753 (2011)); (2) Arkansas (Ark. Code Ann. § 5-4-618 (West 2016)); (3) California (Cal. Penal Code § 1376 (West 2013)); (4) Colorado (Colo. Rev. Stat. Ann § 18-1.3-1102 (West 2012)); (5) Delaware (Del. Code Ann. tit. 11, § 4209 (West 2013)); (6) Florida (Fla. R. Crim. P. 3.203); (7) Georgia (Ga. Code Ann. § 17-7-131 (West 2013)); (8) Idaho (Idaho Code Ann. § 192515A (West 2006)); (9) Indiana (Ind. Code Ann. § 35-36-9-4 & 5 (LexisNexis 2015)); (10) Kansas (Kan. Stat. Ann. § 21-6622 (West 2012)); (11) Kentucky (Ky. Rev. Stat. Ann. § 532.135 (West 2012)); (12) Louisiana (La. Code Crim. Proc. Ann. art. 905.5.1 (2014)); (13) Missouri (Mo. Ann. Stat. § 565.030 (West 2016)); (14) Nebraska (Neb. Rev. Stat. Ann. § 28-105.01 (West 2013)); (15) Nevada (Nev. Rev. Stat. Ann. § 174.098 (West 2015)); (16) North Carolina (N.C. Gen. Stat. Ann. § 15A-2005 (West 2015)); (17) South Dakota (S.D. Codified Laws § 23A-27A-26.3 (2000)); (18) Tennessee (Tenn. Code Ann. § 39-13-203 (West 2014)); (19) Utah (Utah Code Ann. § 77-15a-104 (West 2015)); (20) Washington (Wash. Rev. Code Ann. § 10.05.030(2) (West 2016)).

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Appendix Two

(Author’s sample form of Atkins special issue and jury instructions) CAUSE NO. ___________ STATE OF TEXAS

§ § § § §

V. ____________________

IN THE DISTRICT COURT OF ________ COUNTY, TEXAS ____ JUDICIAL DISTRICT

DEFENDANT [NAME] PROPOSED SPECIAL ISSUE NUMBER ONE FOR JURY CHARGE ON INTELLECTUAL DISABILITY SUBMISSION (ATKINS CLAIM) IN PUNISHMENT PHASE OF A CASE THE STATE SEEKS THE DEATH PENALTY Special Issue Number One From a preponderance of the evidence does [Defendant’s name] have an intellectual disability? Answer “Yes” or “No”: __________ RESPECTFULLY SUBMITTED, LAW OFFICE OF LANE D. THIBODEAUX P.O. Box 523 308 North Washington Bryan, Texas 77806 Telephone: (979)775-5700 Facsimile: (979)822-1979 Email: lanet1@msn.com

BY:

/s/ LANE D. THIBODEAUX LANE D. THIBODEAUX State Bar No. 19834000 Attorney for Defendant - 22 -

CERTIFICATE OF SERVICE I certify a true and correct copy of the foregoing was forwarded to counsel of record listed below on the ____ day of _________, 2022: Via Electronic Filing Prosecutor ______ County District Attorney’s Office 123 Main Street, Suite 100 Anytown, Texas 77777

/s/ LANE D. THIBODEAUX LANE D. THIBODEAUX

CAUSE NO. ___________ STATE OF TEXAS V. ____________________

§ § § § §

IN THE DISTRICT COURT OF ________ COUNTY, TEXAS ____ JUDICIAL DISTRICT

DEFENDANT [NAME[ PROPOSED JURY CHARGE INSTRUCTION ON INTELLECTUAL DISABILITY SUBMISSION (ATKINS CLAIM) IN PUNISHMENT PHASE OF A CASE THAT THE STATE SEEKS THE DEATH PENALTY You are instructed the term “intellectual disability” means (a) deficits in intellectual functioning, (b) deficits in adaptive functioning, and (c) onset of intellectual and adaptive deficits during the developmental period. GRANTED: _______

DENIED: ________

You are further instructed the term “deficits in intellectual functioning” does not include coexisting conditions, if any, that may, or may not, affect intellectual - 23 -

functioning. You are further instructed that the presence of sources of imprecision in administering the test to a particular individual cannot narrow the test-specific Standard Error of Measurement of intellectual functioning. GRANTED: _______

DENIED: ________

You are further instructed the term “deficits in adaptive functioning” refers to deficits in conceptual, social, or practical domains and require adaptive deficits in at least one of those three domains. You are further instructed adaptive functioning in a controlled setting, if any, should not be considered in whether deficits in adaptive functioning, if any, exist. GRANTED: _______

DENIED: ________

RESPECTFULLY SUBMITTED, LAW OFFICE OF LANE D. THIBODEAUX P.O. Box 523 308 North Washington Bryan, Texas 77806 Telephone: (979)775-5700 Facsimile: (979)822-1979 Email: lanet1@msn.com

BY:

/s/ LANE D. THIBODEAUX LANE D. THIBODEAUX State Bar No. 19834000 Attorney for Defendant

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/s/ LANE D. THIBODEAUX LANE D. THIBODEAUX

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