Tuesday, October 11, 2016

The Elephant in Our Echo Chamber

Much of what is written in this blog relates to the criminal justice system I live and work in daily. The other system I live in daily is that of my youngest child, Zane. He is 12 years old, non-verbal with cognitive and physical limitations. One of his legs is significantly shorter than the other, causing gait and fall issues. This is compounded by both seizures and the autistic compulsion to contort himself into awkward positions. He is also symptomatic of scoliosis.

I may be a lawyer, but I also wear the hat of small business owner. I have one full time employee and 2 part time employees. I am the sole source of medical insurance for Zane, my dependents and my full time employee. My medical insurer is Blue Cross Blue Shield of Texas (BCBS) and has been for 18 years.

Since Zane's birth in 2003, BCBS has hiked my insurance premium every year - often the maximum allowable under my plan. I will not bore with why I am effectively tied to BCBS, but I am.

Yet I am lucky. I have health insurance. This does not obscure the larger problem of which I write. This past Sunday the Houston Chronicle ran a story by Jenny Deam (warning: some links may be behind a pay wall). The lede to the story:
As Texas' largest insurer [BCBS] eliminated hundreds of thousands of coverage plans for some of the state's sickest patients and asked for double-digit rate increases last year, its Chicago-based nonprofit parent company rewarded 10 top executives with a combined $48 million in bonuses.
This post is not, necessarily, an attempt to bash executives with the BCBS parent company, Health Care Services Corporation (HCSC). There is more from the story by Ms. Deam that leads to my point further down.
When 2016 arrived, Blue Cross and Blue Shield of Texas, HCSC's second-largest division, raised rates 20 percent and eliminated 367,000 plans, including 88,000 in Houston, that gave in-network access to many of the state's top-tier hospitals and specialists. The company said the benefit had become 'unsustainable.' 
Now, with just weeks to go before enrollment opens for 2017, HCSC's five Blue Cross and Blue Shield companies have asked state regulators for another round of rate increases, some as high as 82 percent, for ACA [Affordable Care Act] individual plans.
HCSC is a non-profit corporation.

We have a health care affordability crisis in the United States. It is the elephant in our room. This is a public policy issue that must be argued about on the merits or it, along with other policy issues percolating without discussion or real resolution, will result in our driving ourselves off a societal cliff.

That's right. Affordable health care. In an presidential election year in which personalities are at the fore, the silence of debate - and policy proposals - is deafening. In the 2 presidential debates thus far held, health care has been asked about once with no substantive policy discussions about what can realistically threaten all but the most affluent with possible bankruptcy.

I count my blessings. Others are not as fortunate. From another story by Ms. Deam, dated June, 2016 in the Chronicle:
The boy and his dad sit in the glow of the nursery lamp, their shadows wide as they rock together in the big chair. Bedtime is coming. But first there is the machine. 
A switch is flipped, and the medical contraption roars to life with an insistent whine. It looks like a Shop-Vac whose ribbed hose snaps into a special vest slipped over footie pajamas. The power of the machine makes every inch of 11-month-old Jack Faught shake in the hope of loosening mucus in his airways.
I can relate to these folks and their daily experience.
Since last spring, first-time parents Austin and Kyra Faught have stumbled, fallen and risen again after learning their child has cystic fibrosis, a lifelong disease that damages the lungs and pancreas. Left untreated, it could kill their son. If poorly treated, his life could be shortened. Their vision of parenthood forever changed, they threw themselves into battle against his sickness. 
Here is their problem:
Three weeks ago, a new fight landed at their doorstep, one that came with just as many tears and sleepless nights, waged not with medicine but phone calls and fax machines. It was with their insurance company as they begged to let Jack stay at Texas Children's Hospital, home to Houston's only accredited cystic fibrosis center and the team of specialists who were helping to keep him alive. 
Their story is part of a larger one being played out across Houston and the nation as the insurance industry reacts to its changing landscape by moving customers into narrower plans. At a time when millions of lower-income Americans are enjoying insurance coverage, some for the first time, an untold number of middle-class families are discovering that the kind of health care they want and need is slipping from their grasp. 
On the final day of 2015, tens of thousands of Blue Cross Blue Shield of Texas health insurance customers, including the Faughts, saw previous plans expire. Those with serious illnesses had been fretting for weeks over what such a change would mean, especially as word seeped out that the city's top hospitals would no longer be covered. 
How about those who have special needs children and unable to afford health insurance? Sorry, they are SOL. From a September story in the  Dallas Morning News, with a link to a longer story in the Austin American-Statesman.
Texas can proceed with millions of dollars in cuts toward the state's Medicaid program that provides therapy to disabled children. The Texas Supreme Court announced Friday that it declined to review a lower court ruling that would have allowed the cuts to move forward, the Austin American-Statesman first reported.  
Last year, the [Texas] Legislature approved $350 million in Medicaid cuts, mostly toward therapy providers for disabled children. Opponents of the cuts warned that they would disrupt care for tens of thousands of disabled children, especially in rural areas of Texas.
I am not banging on the Supreme Court of Texas for their decision. That recourse to the courts was sought exposes the problem. The problem is at root one of the state legislature's making. This is a policy issue to be fought at either the state of federal level. That is part of the debate we ought to be having - should health care coverage even be a state level issue.

My father has been a practicing obstetrician in the Houston area from more than 50 years. He sometimes says he has delivered half of Houston's population since 1964 - and he is only half joking. He sees the problems from the health care provider standpoint as it has worsened over those years. I see it from the end user standpoint. He and I disagree remarkably about the policy solution, but we both understand it is crippling regardless of whether it is the consumer or the provider. We must engage.

And thank you Jenny Deam for doggedly persisting in your reporting. Journalists like Ms. Deam and the Chronicle are grappling with reduced resources and the ability to report on important issues such as this. It is another problem we as a community must confront.

Another elephant in our echo chamber.

Monday, October 10, 2016

UPDATED WITH SCHEDULED ORAL ARGUMENT Texas' Intellectual Disability Idiocy - Part III

UPDATED 10/22/2016: SCOTUS released the remainder of November and December oral argument schedule following their weekly Friday conference on October 22, 2016. Moore v. Texas has been scheduled for oral argument on Tuesday, November 29, 2016. It is the only case scheduled for argument that day.

ORIGINAL POST: This is the third in a series of posts on Moore v. Texas, currently pending before the United States Supreme Court (SCOTUS). The case presents a legal challenge to the Texas death penalty scheme - how Texas defines and analyzes what are called Atkins claims. Atkins claim proceedings determine whether an otherwise death penalty eligible defendant is intellectually disabled (ID) and therefore ineligible for the ultimate state punishment.

The legal issue before SCOTUS is the use of factors named after the case in which they first appeared, Ex parte Briseno. Moore and his supporters in SCOTUS (amici), the Association of Psychiatric Association (APA), and the American Association of Intellectual and Developmental Disabilities (AAIDD), argue these Briseno factors, and, more generally, the Texas Court of Criminal Appeals (CCA) approach in reviewing Atkins claims, violate SCOTUS's exclusion of the ID from the death penalty. In a nutshell, Moore, the AAIDD and the APA argue the CCA has so disregarded clinical definitions of ID that Texas has violated the prohibition of excluding the ID from the death penalty.

Most of what appears in this post requires some understanding about the clinical criteria for ID and a working knowledge of the primary legal issues in Moore. I would encourage a review of the first two posts here (Part I), and here (Part II). The legal importance is not just the immediate case. If SCOTUS finds Moore's arguments correct it could mean almost fifteen years of Atkins claim litigation in Texas will have to be redone.

Moore's Reply Brief (Reply Brief) to the State of Texas Merit's Brief (State's Brief) was filed on October 6, 2016. The Reply Brief hammers on three issues: First, Moore argues the Briseno factors, contrary to the State's assertions, are not optional in Texas; second, that the Briseno factors, and by extension, the CCA, improperly weigh a defendant's adaptive deficits against adaptive strengths in review of a trial court's ID determination; and third, that medical science does not require a strict causation relationship between intellectual deficits and adaptive behavior deficits. In other words, Moore, the APA and the AAIDD argue there can be more than one cause (called co-morbidity) to the adaptive deficits found to exist in an individual.

In my second post, I attempted to analyze the State's Brief, but deferred a discussion of the fact intensive evidentiary record cited until the Reply Brief was filed. Moore opted for a more concise discussion of the evidentiary record than the State Brief. Nonetheless, it was effective:
At age 13, Moore still lacked a basic understanding of the days of the week, the seasons of the year, and telling time. He spent his days at school often drawing pictures because he was unable to read, write, or keep up with lessons. As the trial court concluded—applying the medical community’s current diagnostic framework—Moore has significantly subaverage general intellectual functioning (as reflected in his numerous IQ test scores under 75, including one relied upon by the CCA); significant and related limitations in adaptive functioning (as evidenced by, inter alia, his abysmal school records and test scores; the fact that he failed first grade and received only social promotions every year thereafter; his withdrawn social behavior; his limited communication skills; and his score of 2.5 standard deviations below the mean on the State expert’s adaptive-behavior test); and all of these characteristics manifested during childhood. It was only by rejecting the medical community’s diagnostic framework, and instead analyzing [Moore's] intellectual-disability claim under its fundamentally flawed Briseno framework—in which the low end of the IQ range was erroneously dismissed, purported strengths were given primacy, the non-clinical Briseno factors were 'weigh[ed] heavily' and an insurmountable and clinically unsound causation requirement was imposed—that the CCA was able to conclude otherwise.
The Reply Brief's final broadside before concluding:
In sum, the CCA reviews Atkins claims to ensure relief is granted only to those individuals whom it perceives as having 'that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.' [citing Briseno] Its distorted (and often arbitrary) approach to analyzing claims of intellectual disability is irreconcilable with the medical community’s diagnostic framework. No other State prohibits consideration of the current diagnostic framework or interprets the three-prong definition of intellectual disability in a similar manner—nor does Texas itself in any context other than the death penalty. 
The briefing in this case is now finished and the case is ready to be set for oral argument. I expect that to be scheduled in spring, 2017.

Wednesday, October 5, 2016


10/11/2016 UPDATE: Oral Arguments were held on October 11, 2016 in Pena-Rodriguez v, Colorado. A transcript of the argument can be found here. Amy Howe from SCOTUSblog summarized the argument, and can be read here. Audio from the argument will be available Friday October 14, 2016 after the weekly SCOTUS conference. It can be listened to online here.

I could not help but smile a couple of times reading Howe's blog post and comparing it against the transcript. For example:
Some justices also appeared skeptical of the argument, made by both Colorado and the federal government, that attorneys can guard against racial bias infecting juror deliberations by asking potential jurors about it during the process of selecting the jury. Sotomayor, for example, suggested that the argument assumes that jurors would be truthful about their racial biases, while Ginsburg observed that many lawyers might not want to ask about racial biases because they don’t want to be responsible for putting the issue into jurors’ minds. When [Colorado Solicitor General] Yarger tried to reassure the court that things don’t actually work that way, Roberts countered, “How do you know that?” One of the problems here, Roberts indicated, is that asking about racial bias when screening potential jurors might alert other jurors who are biased that they should not reveal their biases.
"How do you know that?" Chief Justice Roberts asked the Colorado Solicitor General. "Based on my extensive experience picking juries" replied no Solicitor General, ever.

Sorry, I only jest.

The truth is except for members of racial supremacy groups, jury panel members will not disclose racial bias in front of a room of strangers during jury selection. More likely, this kind of panel member has rationalized their racial bias, just to have it exposed in a heated deliberation when facts and jurors are exhausted and racial stereotyping rears its ugly head to fill the void.

If this happens, it is an affront to the administration of justice. Exposing race based deliberations and jury verdicts must be elevated over otherwise valid policy arguments shielding jury deliberations. Based on the arguments I believe both the swing votes of Justices Breyer and Kennedy are going with the liberal wing. If so, this will change post verdict practice in Texas.

ORIGINAL POST: Today, October 5, 2016, the Supreme Court of the United States hears oral arguments in Buck v. Davis, a death penalty case that has received much media attention. The media hook in Buck is the injection of race during his trial. Nevertheless, those waiting for extended oral arguments about the United States Constitution and race in criminal jury trials may be disappointed. The threshold legal issue in Buck actually turns on a rather technical procedural rule of procedure.

Return, if you will, to SCOTUS on Tuesday, October 11, 2016 for oral arguments about race, criminal jury trials and the Constitution. The case is Pena-Rodriguez v. Colorado and has some real world application to what happens in criminal courtrooms around the country.

Pena-Rodriguez was accused of what amounts to felony sexual assault after allegedly groping two teenage girls at a Colorado race track. At trial Pena-Rodriguez argued misidentification and presented an alibi defense. After a contentious deliberation, the jury sent a note to the trial judge that they were deadlocked. The judge sent a response with an instruction that in Texas is called an "Allen instruction," or, more descriptively, a "dynamite charge." Colorado must have a very similar instruction. The instruction is meant to light a fire under a jury, and it did. The jury eventually returned a verdict convicting Pena-Rodriguez on misdemeanor charges related to the allegations, but acquitted him of the felony charge.

Pena-Rodriguez was not satisfied with the felony acquittal and the misdemeanor convictions. His lawyers contacted jurors after trial. They found two jurors who said another jury member - "Juror H.C." - told the jury during deliberations that, from his experience in law enforcement, Pena-Rodriguez must be guilty “because he’s Mexican and Mexican men take whatever they want.” They told about four other racist statements, including one in which H.C. said the alibi witness, also Latino, was an “illegal,” who must be lying. Testimony showed this witness to be a lawful immigrant.

Pena-Rodriguez's filed a motion for new trial arguing Juror H.C.'s comments constituted juror misconduct. This motion was denied, and the Supreme Court of Colorado agreed. The reason? Like Texas (and most jurisdictions) Colorado has a rule that bars anything related to actual jury deliberations from use in post convictions proceedings. In other words, even if Juror H.C. said the awful, racist things attributed to him, it could not be be used to establish juror misconduct.

This rule barring evidence of juror misconduct is based on policy reasons. Jury verdicts need finality, and jurors should be protected from potential harassment from lawyers scouring about for something to complain about after trial. Jurors should also be able to take comfort during deliberations and after verdict from the fear of having to testify about their deliberations in open court. It promotes open and frank deliberations.

Pena-Rodriguez's counter argument is pretty simple: These policy reasons must yield to the Sixth Amendment of the Constitution promising every criminal defendant an impartial trial. The overt, racist statements attributed to Juror H.C. go to the heart of a criminal jury's sworn responsibility (every Texas criminal juror promises to "[A] true verdict render according to the law and the evidence, so help [them] God"). Juror H.C.'s statements go to the very essence of a juror's promise to decide a criminal defendant's fate based upon these two things.

SCOTUS has been pretty much immune from finding Constitutionally dimensioned exceptions to this rule rendering inadmissible statements made during jury deliberations. In the 1980's in an appeal from Florida (where else?) SCOTUS decided the rule barred post conviction evidence of jury misconduct concerning drug and alcohol parties during trial that led to juror hangover and sleeping during the taking of evidence. This was not enough to overcome the policy reasons behind the rule of inadmissibility. SCOTUS held that juror bias is best rooted out during the jury selection process. This argument has obvious shortcomings in real world criminal practice - especially in a racial bias context.

In another more recent case involving juror misconduct SCOTUS wrote “There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” If Pena-Rodriguez is that case, it could impact post conviction practice significantly - especially in death penalty or life with out possibility of parole settings.

So for those of you waiting for sweeping arguments about race, criminal trials and the Constitution? See you next week.

Tuesday, September 27, 2016

UPDATED WITH CORRECTION: If The State Wins, It Loses: John Thuesen Edition

UPDATED WITH CORRECTION: I have tried in the almost two years this blog has been active to be accurate. When I am not, it requires correction. It has been brought to my attention that the CCA raised the issue of what I referred to as the "unrecusal" in my original blog post on their own motion. To the extent the original post contends the Brazos County DA's office laid behind the log on the issue, they did not.

ORIGINAL POST: On September 21, 2016 the Court of Criminal Appeals (CCA) remanded the latest Brazos County Death Penalty post conviction fiasco, Ex parte John Thuesen for additional fact findings. Based on my reading of the CCA order, no matter how the current issue plays out, the result is a longer, more expensive process that if the State of Texas wins, it loses.

Thuesen was convicted and sentenced to die back in 2010 for the brutal killing of a woman and her brother in their College Station home. On post conviction state habeas appeal (post conviction proceedings) the State Office of Capital Writs (OCW) pressed Ineffective Assistance of Counsel (IAC) claims against Thuesen's trial counsel. These claims centered on alleged failure to properly develop and present Post Traumatic Stress Disorder (PTSD) mitigation evidence related to Thuesen's military service at the punishment stage of his trial.

After finding an evidentiary hearing on the IAC claims was necessary, the Trial Judge took a voluntary recusal. Read the above linked order if curious about why. The Presiding Judge of the Second Administrative Judicial Region (Administrative Judge) then assigned a Visiting Judge to the case. The Trial Judge later changed his mind, deciding to "un-recuse" himself. The State of Texas, after initially opposing the un-recusal, reversed field, sending the following email to all interested parties, including the Administrative Judge:
The State of Texas no longer has any objections relating to [Trial Judge] presiding
over the John Thuesen writ. Based on further research and contact with a
number of experts in the area of federal writs, the statements and assurances
made by the Office of Capital Writs in the telephone hearing yesterday,
March 17, 2014, are sufficient to alleviate our concerns about their motives
for having you preside. With those issues resolved, our original desire to
have you preside can now be realized without any apprehension of future
legal ramifications.
The problem? According to the State, the Administrative Judge never took action to vacate the appointment of the Visiting Judge. Of course the State never said a word about this until the trial judge made findings on the post conviction hearing siding with Thuesen. Then the State said "never mind" and claimed error about the Trial Judge un-recusing himself despite agreeing to allow him to continue to preside and not bringing up this issue with either the Trial Judge or Administrative Judge.

Now, after more than a year with the case, the CCA has decided kick the can back down the appellate ladder with the following observations and instructions:
The record before us includes no written order signed by [Administrative Judge], no
letter order issued by [the Administrative Judge] and placed among the papers of the cause, and further no oral order announced by [Administrative Judge] on the record in open court, which purports to remove [Visiting Judge] and reinstate [Trial Judge]. Therefore, we now order [Administrative Judge] to conduct a review of the filings, records, and transcripts of the proceedings in this habeas case to locate any record of an order rendered by [Administrative Judge] removing [Visiting Judge] and reinstating [Trial Judge], if any such order exists.
Translation? The CCA is playing for time. Lots and lots of time.

What is the endgame for the State of Texas? Assume they "win" and the CCA ultimately upholds their legal position? What then? Most likely, the post conviction proceedings will be remanded back to the trial court for a new evidentiary proceeding on the original grounds of IAC the OCW advanced. If that happens, the OCW will likely withdraw from representing Thuesen because it failed to have the Administrative Judge sign the un-recusal order - and the prejudice to Thuesen is obvious. They will likely not want to further add to potential IAC claims against them by continuing to represent Thuesen.

If so, new post conviction lawyers will need to be appointed. These new lawyers will need time to get up to speed, and decide if an amended post conviction state habeas writ alleging IAC claims against the OCW should be asserted at this stage of proceedings. Given the tenuous status of the Death Penalty in this country, they will be in no hurry. The Trial Judge also may throw up his hands and recuse himself, this time for good - just to avoid the appearance of impropriety. Either way it will likely further proceedings for, literally, years. Oh yeah, and the taxpayer pays additional freight if a private lawyer is appointed because the OCW can no longer represent Thuesen.

Additionally, even if the State wins on the merits and the CCA, after a new evidentiary hearing, decides trial counsel was not IAC, yet another issue is added to the future federal post conviction proceedings. More than six years have elapsed since Thuesen was sentenced to die. The best case is probably another decade before the first round of state and federal post conviction proceedings are exhausted.

This could have been avoided had the State brought up what it now says was error before the evidentiary hearing on the OCW's post conviction appeal. Like when they agreed to let the Trial Judge continue to preside over the post conviction proceedings. The State's strategy also throws two sitting District Judges under the bus - a Trial Judge they appear before daily and the Presiding Judge for the largest judicial region in Texas.

Like I said, even if the State wins, they lose.

Saturday, September 24, 2016

Death, Plus Four

Four years can be - often is - a lifetime, and with us it easily could have been. In the universe of possible life experiences, standing next to a person being publicly sentenced to death cannot be a large sampling. Even smaller, then, is embracing the same person for the first time four years later, and knowing in that embrace the legal sentence of death will never be carried out.

Four years before that embrace I had awkwardly said goodbye. What do you say when minutes before society tells one of their number they were unfit to continue living? Do you apologize because your advocacy was not good enough? That even after years of sifting through the records and talking to the people that define a life, you came up short? Try and explain how you just could not stop the gears of state sponsored death from engaging?

Immersion in the details of a life is like jumping down a rabbit hole into some shared Wonderland. In the end it binds people like chewing gum to August asphalt. That bond is forged over years of shared work and discoveries large and small, and in my case, in small steps. It happens in the voice of a ninety year old man re-living in a slow drawl fifty years of teaching those he called educable mentally retarded. The success. The failures. The frustration. These small things bind you because not only do you learn about the best and worst of them, but also yourself.

Yet the victim also lived in that immersion. Life taken is as important as a life worth saving. So it was that many months before that public judgement of death and years before that embrace I stood in a row crop field in a far away state, eyes closed forcing myself into the horror of consciousness disappearing into a terrifying spasm of violence. I felt it because bracing terror lived in that field. Terror as real as that I tried to imagine.

We have the wrong conversation about the death penalty. Yes it is flawed public policy. Yes it has wrongfully condemned the innocent and continues to disproportionately impact communities of color. Yet even states like California with direct ballot initiatives are having difficulty taking it off their books. In the abstract it seems a fair trade. Like a elegant but flawed algebraic formula, the death penalty seems to balance both sides of a symbol for equal. Such thinking will continue until we engage on the most fundamental level on the death penalty: That as a community we are worse off because we kill. Until this is embraced by a majority of those who live among our civilized society, we are doomed right along with it.

Tuesday, September 13, 2016

Hypocrisy About Marijuana - Arizona Edition

The lede from The Intercept story by Lee Fang tells the story:
Pharmaceutical executives who recently made a major donation to an anti-marijuana legalization campaign claimed they were doing so out of concern for the safety of children — but their investor filings reveal that pot poses a direct threat to their plans to cash in on a synthetic cannabis product they have developed.
Arizona has Prop 205 on the November ballot to legalize possession and consumption of marijuana for those 21 years of age and older. Polling done on August 6, 2016 showed approval of the measure up 10%. With this polling in the public domain, on August 31, 2016 the pharmaceutical company Insys gave $500,000 to a group called "Arizonans for Responsible Drug Policy" which opposes approval of Prop 205. By so doing Insys became their single largest contributor.

Not coincidentally, Insys manufactures the drug Subsys, marketed to physicians as cancer pain reliever. Fentanyl is an synthetic opioid analgesic that is similar to morphine but is 50 to 100 times more potent, according to the National Institute of Drug Abuse. Fentanyl is the painkiller on which Prince overdosed.

All of this information has been widely reported.

The story The Intercept and Lee Fang broke is more interesting. It turns out Insys has another product in their developmental pipeline:
Insys is currently developing a product called the Dronabinol Oral Solution, a drug that uses a synthetic version of tetrahydrocannabinol (THC) to alleviate chemotherapy-caused nausea and vomiting. In an early filing related to the dronabinol drug, assessing market concerns and competition, Insys filed a disclosure statement with the Securities and Exchange Commission stating plainly that legal marijuana is a direct threat to their product line:  
'Legalization of marijuana or non-synthetic cannabinoids in the United States could significantly limit the commercial success of any dronabinol product candidate. … If marijuana or non-synthetic cannabinoids were legalized in the United States, the market for dronabinol product sales would likely be significantly reduced and our ability to generate revenue and our business prospects would be materially adversely affected.'
The truth is Insys wants to defeat Prop 205 for competitive reasons. The whole charade is rich with dark irony. Big Pharma is now funding anti-marijuana campaigns to market competing drugs with the same active ingredient in marijuana - THC, or in fentayl's case, opium. What Big Pharma wants is to continue a virtual monopoly, charging prices with impunity rather than compete in a regulated market. This lays bare the fallacy that marijuana is somehow more dangerous than widely prescribed drugs.

In Texas, as I have written before, here, here and here, arrest and criminal prosecution of possession of a small amount of marijuana can result in life altering consequences. De-criminalization, or simply using laws currently on the Texas books, could change this. Big Pharama recognizes the challenge to this emerging market and is overtly challenging de-criminalization for money reasons, not public health reasons.

Are you paying attention Texas?

Saturday, September 10, 2016

Texas' Intellectual Disability Idiocy - Part II

This is second in a series of posts related to Moore v. Texas. currently pending before the United States Supreme Court (SCOTUS).

The State of Texas has filed their Merits Brief in Moore. At issue is how Texas defines intellectual disability (ID) for purposes of exclusion from eligibility for the Death Penalty. Such claims are called Atkins claims - named after the case in which the SCOTUS decided this category of Defendant is ineligible for the death penalty.

Moore is significant for many reasons. A decision against the State of Texas would impact prosecutors who increasingly wrestle with doubts about the use of the Death Penalty, and a subtle, but growing number of taxpayers becoming more vocal in their desire to limit Death Penalty prosecutions. Decreased use of the Death Penalty buttresses the argument that a national consensus exists for abolishment under the 8th Amendment as fewer states are utilizing it, and within those states, use is restricted to a handful of counties.

A defeat for the State of Texas in Moore would further this push. Why? If the State of Texas loses, every Texas Death Penalty case with an ID claim decided since 2002 will potentially be found to have been decided under an erroneous legal standard. Evidence of the effect SCOTUS consideration of Moore has already had in Texas can be found in the fact that since the grant of certiorari the Texas Court of Criminal Appeals (CCA) has granted stays for every execution scheduled.

In addition to Moore's Merits Brief, discussed in Part I, of this series, amici Briefs in favor of Moore's position have been filed by the two most important organizations that diagnosis ID and by legal organizations such as the American Bar Association and the American Civil Liberties Union (ACLU), among others.

How the State of Texas argued their Merits Brief in SCOTUS has been therefore highly anticipated. The Brief was filed September 6, 2016. The State's Merits Brief opened aggressively. From the "Summary of Argument":
Neither the Eighth Amendment nor this Court’s decisions in Atkins and Hall [v. Florida] require States to adhere precisely to a particular organization’s clinical definition of intellectual disability. Atkins gave States latitude to develop substantive standards implementing the prohibition on executing persons with intellectual disability. Hall explained that States must consider the views of medical experts so that their Atkins standards are 'informed by the medical community’s diagnostic framework.' But neither case directed States to strictly follow a particular clinical definition of intellectual disability. To the contrary, the Court confirmed in Hall that those definitions 'do not dictate' the Atkins analysis, and '[t]he legal definition of intellectual disability is distinct from a medical diagnosis.' (citations omitted).
Hall v. Florida held the Florida ID Death Penalty scheme unconstitutional because of the use of a strict cutoff of 70 for the first of the three accepted clinical definitions of ID - intellectual functioning. Both the leading authorities on ID, the American Psychological Association (APA) and the American Association for the Intellectual and Developmentally Disabled (AAIDD) incorporate a Standard Error of Measurement (SEM) into intellectual functioning (commonly called IQ) testing. Florida did not, and SCOTUS held in Hall this failure doomed their Atkins claim procedure.

The State of Texas briefing points out that SEM is incorporated as part of Texas' Atkins claims. It is the second ID clinical prong inquiring into whether an individual's adaptive behavior deficits meet certain clinical standards, where the legal issue before SCOTUS exists. The most difficult argument for Texas to overcome is that deviation from clinically accepted standards regarding adaptive behaviors - use of the so called Briseno factors - is logically the same constitutional defect present in Hall. This argument is straightforward: Like Florida's non-constitutional use of a strict cut off in intellectual functioning testing, Texas' standard uses non-medically accepted standards in assessing adaptive behaviors.

Adaptive behaviors standards assess whether an individual has an inability (deficits) to adapt aspects of their behavior - called "domains" clinically - to the community that surrounds them. The strongest argument Moore and the amici make is that the Briseno factors improperly weigh adaptive strengths against adaptive deficits instead of considering deficits alone. This argument hammers that this non-medically accepted standard renders all but the most severely ID eligible for the Death Penalty in Texas, rendering the substantive promise that all ID are ineligible for the Death Penalty meaningless.

Texas's Brief rebuts this argument as follows:
The CCA also correctly noted that Texas’s requirement that adaptive deficits be 'related' to intellectual impairments 'is consistent with the APA’s current position on this issue.' Thus, although the AAIDD 11th definition omits that requirement, the CCA chose to retain it. After noting those definitional consistencies, the CCA relied on both the AAIDD 11th and the DSM-5 to explain specific clinical concepts relating to its analysis of petitioner’s evidence. Having thus 'consider[ed]' various clinical definitions of intellectual disability and “consult[ed]” them where it deemed appropriate, the CCA complied with Hall. The CCA’s informed decision not to go further and adopt either the AAIDD 11th or DSM-5 wholesale as Texas’s legal standard presents no error. (citations omitted).
The State also mined the evidentiary record to make what amounts to a legal sufficiency argument - that the evidence adduced at Moore's evidentiary hearing established Moore did NOT meet even the clinical definitions of ID under either the DSM-5 or the AAIDD 11th. Before going into that detailed fact based argument, I will wait for Moore's Reply Brief to see how it addresses this issue. It is noteworthy, however, that the habeas judge that heard the evidence regurgitated by the State in their Merits Brief decided Moore met the clinical definition of ID.

Finally the State addressed what has made the CCA's decision in Briseno media ready for ridicule. The CCA, unfortunately, referenced John Steinbeck's intellectually compromised Lennie Small in the novel Of Mice and Men in Briseno.
In all events, any assessment of the optional Briseno factors—or Texas’s separate three-part test for intellectual disability—should not be tainted by then strained efforts of petitioner and amicus ACLU to link them to Briseno’s fleeting mention of the character 'Lennie' from the novel Of Mice and Men. That lone literary reference has never been part of Texas’s Atkins standard....[The] “Lennie” comment should be understood for what it actually was: an aside. If redacted, the meaning of the paragraph would be unchanged—the CCA did not want to adopt an Atkins standard without consulting guidance from the Legislature. The remark has nothing to do with the pre-existing definitions of intellectual disability that the CCA endorsed, nor does it inform the optional Briseno evidentiary factors that the court described later in the opinion. (citations omitted).
As strong as I feel about the idiocy of the Briseno factors, the State of Texas is correct here. Although it probably was a bad idea to reference the fictional character, the reference was, in fact, an aside in Briseno. The APA and the AAIDD's amici briefs wisely stay away from the reference, hewing instead to the problems in the science. The same cannot be said of the ACLU's amicus brief. The Briseno factors (which have never been treated as "optional" by trial or appellate courts) are scientifically flawed. Attempting to leverage this unfortunate literary reference only diminishes the intellectual integrity of exposing those flaws.