Saturday, December 3, 2016

Texas' Intellectual Disability Idiocy - Oral Argument Edition

Intellectual disability (ID) is important to anyone with intimate knowledge or responsibility for the intellectually disabled. Life experiences tend to mold how we view the world, and it has mine. My 12 year old son is ID, so I have more insight than most in the sub-set of lawyers who have tried an Atkins claim to both judge and jury. In other words, I have both standing and an understanding of ID and why it matters.

Moore v. Texas, an ID death penalty case was argued before the Supreme Court of the United States on Tuesday, November 29, 2016. CCA Judge Elsa Alcala - who dissented at the CCA in Moore - tweeted she was sitting next to former New York Governor Elliot Spitzer. I may not have been amongst the luminaries in attendance for oral argument, but I was there in spirit. The audio of the argument, with written transcript can be found here.

I came away with three major impressions discussed below as they were fleshed out by questions from the Court. First is Justice Kennedy, the swing vote. He was straight to the point on the Briseno factors central to a decision in the case:
JUSTICE KENNEDY: Are you saying that the Briseno factors capture all individuals with intellectual disability?
KELLER: The Briseno factors -- there could be other circumstances or other facts in the record that would bear on the adaptive deficits prong, and that's why the CCA said these are discretionary. These are different ways of phrasing how you do the conceptual, social, and practical --
JUTICE KENNEDY: But the theme is -- of -- of the -- the Petitioner's brief, that the Briseno factors are intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus.
KELLER: And the CCA has never said that the purpose of these factors is to screen out individuals and deny them relief.
KENNEDY: But isn't that the effect? 
KELLER: No. Van Alstyne granted relief by looking at the Briseno factors.The four cases I just mentioned, these are cited at page 422. 
KENNEDY: Well, of course, General, there are going to be cases in which the Briseno factors will show disabled, but that's not the question. The question is can they be an exhaustive list. 
KELLER: The Briseno factors are not an exhaustive list, and the CCA has never treated them like that.
The argument the Briseno factors are discretionary? Just baloney. My evidence? Ask a criminal District Court Judge in Texas. Ask them should they decide the Briseno factors should be excluded as part of their Atkins claim determination, whether they think the CCA would treat them as discretionary in the way Keller represents. Heck, just ask the habeas trial judge in Moore - who the CCA decided was wrong - how that went for him.

Keller just flat out prevaricated on Kennedy's main question - whether Briseno carves out a sub-set of the otherwise ID population in order to make them eligible for the death penalty. The answer is yes, it does. The more fundamental issue is whether this is constitutionally acceptable. This mantle was taken up minutes later by Justice Breyer. The critical exchange started when Justice Ginsberg asked Keller why Texas tracks the current consensus clinical definition for statutory ID classification for public school special services and juvenile offenders but not in death penalty cases.
KELLER: [But] as the DSM-5 itself noted, there is an imperfect fit between a determination of -- a legal determination of culpability for Eighth Amendment purposes and a medical diagnosis. I think that this case does present that issue. And since you have those different purposes, it is valid for a State to have a different definition of when someone is morally culpable under the Eighth Amendment versus when someone should be able to get social-services benefit.
Keller's answer here draws an intellectually consistent distinction between the legal purposes served by different definitional descriptions of ID. Thus, the definition for ID for educational support at school for my son does not automatically mean the same definition is required to assess ID in a brutally committed capital crime. The real question is whether this is constitutionally defensible. This went to the heart of the legal issue for Justice Breyer:
JUSTICE BREYER: Well, that's the point. That's exactly the point...That the whole point of Briseno is really to answer the question that you said -- probably should say, no, it isn't really there -- it's to help determine which persons suffering borderline cases of mental disability ought to be executed, or should not be because they are less morally culpable...And then the question is, is it what the purpose of Atkins and the other case Hall was, was it to give each State the right to decide in borderline cases whom or whom not to execute in light of their feelings about capital punishment? I thought it had a different purpose -- unusual in the law -- but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled. That's a real issue.  But I think that this case does present that issue.
KELLER: And what Atkins and Hall said was there's a critical role for the States.
And while States don't have unfettered discretion, they do have some discretion.
Keller is attempting here to thread the legal needle. He cannot say that Texas basically blows off clinical standards in favor of their own set of non-clinical adaptive behaviors that make it less likely that a capital murderer with borderline ID will avoid the death penalty. What he can, and did, argue is that Texas hews to the constitutional requirements that the death penalty ID exclusion decision be "informed by the medical community's diagnostic framework" - whatever the heck that means.

 As oral arguments illustrated, it is a difficult needle to thread.

Finally, an even more fundamental question was asked by Justice Breyer in  his questions earlier to Clifford Sloan, Moore's lawyer.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that the law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases.
SLOAN: Yes, Your Honor. 
JUSTICE BREYER: My suspicion is that there is no such thing, but that's why I asked the question. I want to be sure. [And] if you want my true motive, I don't think there is a way to apply this kind of standard uniformly across the country, and therefore, there will be disparities, and uncertainties, and different people treated alike, and -- and people who are alike treated differently.
Translation? This whole ID exclusion from the death penalty conundrum illustrates the arbitrariness of the death penalty. A Constitutionally based, categorical exemption of the ID from the death penalty should to be uniform. Why should a hypothetically identical defendant committing the identical capital crime be determined to be ID and therefore constitutionally exempt from the death penalty in California, but not in Texas? Bringing the example closer to home, why exempt this capital defendant if the crime was committed in Clayton, New Mexico but not exempt them if the crime was committed across the Texas state line in Dalhart?

Bobby Moore likely has the votes to win. If so, how far will the majority opinion go? Conventional wisdom seems to look for Justice Kennedy to write a watered down majority opinion. He wrote for the majority in Hall v, Florida, which dealt with similar issues. Perhaps as the swing vote in both Hall, and likely here, Justice Kennedy - along with the rest of the wing of the Supreme Court voting with him - has grown weary of the states like Texas and Florida thumbing their collective noses at SCOTUS death penalty restrictions and will go further. I would love for Justice Kagan, who was very engaged in oral arguments, to write, but this is wishful thinking of my part. I believe Justice Breyer will write separately and riff off his Glossip dissent regarding arbitrariness and the death penalty, except in Moore it will be as a concurrence.

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