[Deathpenalty] death penalty news----TEXAS, VA., GA., FLA., IND.

[Rick Halperin]

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)