IN THE SUPREME COURT OF FLORIDA CASE NO CLARENCE JAMES JONES, Appellant, STATE OF FLORIDA, Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO CLARENCE JAMES JONES, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, STATE OF FLORIDA SUPPLEMENTAL INITIAL BRIEF OF APPELLANT TERRI L. BACKHUS Fla. Bar No Post Office Box So. Westland Ave. Tampa, FL (813) COUNSEL FOR APPELLANT

2 PRELIMINARY STATEMENT This proceeding involves the appeal of the circuit court's denial of Mr. Jones mental retardation claim after an evidentiary hearing. The following symbols will be used to designate references to the record in this appeal: "R." -- record on direct appeal to this Court; 1PC-R. -- record on first Rule appeal to this Court; "2PC-R." -- record on second appeal to this Court; RJ-R. -- record on appeal from relinquishment of jurisdiction; T. -- transcript of evidentiary hearing held June 23, 2005; Supp. transcript of March 8, 2005 hearing.

3 REQUEST FOR ORAL ARGUMENT Mr. Jones has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Jones, through counsel, accordingly urges that the Court permit oral argument. ii

4 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... i REQUEST FOR ORAL ARGUMENT... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv SUPPLEMENTAL STATEMENT OF THE CASE... 1 SUPPLEMENTAL STATEMENT OF THE FACTS... 1 SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I THE DEATH SENTENCE IMPOSED UPON MR. JONES, A MENTALLY RETARDED PERSON, VIOLATES THE FLORIDA AND UNITED STATES CONSTITUTIONS ARGUMENT II MR. JONES WAS DENIED A FULL AND FAIR HEARING CONCLUSION CERTIFICATE OF FONT iii

5 TABLE OF AUTHORITIES Page Atkins v. Virginia, 122 S. Ct (2002) , 19, 20 Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 (1985). 20 Ford v. Wainwright, 477 U.S. 399 (1986)... 19, 20 Fla. R. Crim. P Gaskin v. State, 737 So. 2d 509 (Fla. 1999) Holland v. State, 503 So. 2d 1250 (Fla. 1987) Jones v. State, Fla. Sup. Ct. No. SC03-37 (Fla. Nov. 12, 2004)... 1 Parker v. Dugger, 498 U.S. 308 (1991) Ring v. Arizona, 122 S. Ct (2002) Speiser v. Randall, 357 U.S. 513 (1958) State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001) Stephens v. State, 748 So. 2d 1028 (Fla. 1999) iv

6 SUPPLEMENTAL STATEMENT OF THE CASE AND FACTS On November 12, 2004, this Court relinquished jurisdiction to the circuit court in order for that court make a determination of mental retardation, as that term is defined in rule Jones v. State, Fla. Sup. Ct. No. SC03-37 (Fla. Nov. 12, 2004). In the circuit court, Mr. Jones filed a Motion To Establish Mental Retardation As A Bar To Execution, raising factual and legal arguments supporting his mental retardation claim (RJ-R. 1-28). On March 8, 2005, the hearing court conducted a pre-hearing case management conference in which the court set the procedures to be followed at the evidentiary hearing. At this hearing, defense counsel objected to being limited to calling only one mental health expert. The circuit court held an evidentiary hearing on June 23, 2005, and issued its Order Denying Motion To Bar Execution Due To Mental Retardation on June 24, 2005 (RJ-R ). Mr. Jones timely filed a notice of appeal (RJ-R ). Mr. Jones relies upon the facts presented in his Initial and Reply Briefs and supplements those facts with the evidence presented at the June 23, 2005, evidentiary hearing. Mr. Jones called Denis William Keyes, Ph.D., an associate professor of special education at the College of Charleston in 1

7 South Carolina, with a specialty in mental retardation (T. 8-9). 1 The court accepted Dr. Keyes as an expert on mental retardation (T. 12). Dr. Keyes defined mental retardation as:... people who are significantly subaverage in their intellectual functioning that puts them in the lowest 2.27 percent of the population functioningwise intellect. And it exists concurrently with severe deficits in at least two areas of adaptive skills.... [I]t has to occur prior to age 18 (T. 13). Mental retardation is diagnosed both by conducting an IQ test and by looking at adaptive skills (T. 16). When evaluating a person who is in his 40s, the determination of 1 Dr. Keyes is certified in school psychology and mental retardation education. He has published articles on the execution of people with mental retardation and on mental retardation in the criminal justice system, and has provided consultation regarding mental retardation and its relationship to the criminal justice system and the death penalty (T. 9-10). He has made a presentation to the Florida Association of Prosecuting Attorneys regarding how to understand mental retardation in the criminal justice system (T. 10). Dr. Keyes has been qualified as an expert in mental retardation about twenty times in various states, including Florida, and in a couple of federal courts (T. 11). 2

8 whether the person s deficits occurred before age 18 is primarily made from previous records (T. 22). Dr. Keyes testified that Mr. Jones records showed he took the Stanford- Binet intelligence test when he was 9 years old (T. 19). Mr. Jones achieved an IQ of 67, which put him well within the range of mild mental retardation under the then-existing scoring system (T. 19; Def. Ex. 2). Mr. Jones school records also contain a record saying special curriculum, which means typically that the person has been placed in an adjusted curriculum for special edu.cation (T ; Def. Ex. 3). Dr. Keyes assessed Mr. Jones on May 28, 2005 (T. 25). He reviewed records regarding Mr. Jones history and met with Mr. Jones family and former girlfriend (T ). The records indicated that at the time that he was young that he was retarded, that he did have special needs, and that he had an incredibly violent background, both in his family and in his own behavior (T. 26). The records also showed that when Mr. Jones was in highly-structured environments, he tended to do a lot better. The higher the structure, the more he was able to communicate and behave (T. 26). Mr. Jones early IQ score of 67 and his placement in special education as a child established the onset of mental retardation before age 18 (T. 3

9 31). In addition to the testing showing Mr. Jones IQ was 67 when he was 9 years old, other testing reflected Mr. Jones IQ over time (T ). Dr. Jethro Toomer administered a revised BETA to Mr. Jones twice, with Mr. Jones achieving a 71 IQ in 1994 and a 67 IQ in 1995 (T. 27). In 1989, Dr. Anis administered the Wechsler on which Mr. Jones achieved an IQ of 72 (T. 27; Def. Exs. 4, 5). These scores are significant because they are within nine points of each other over a period of four years (T. 30). Dr. Keyes administered the newest Stanford-Binet intelligence test and the Woodcock-Johnson Achievement Test to Mr. Jones (T. 32). On the Stanford-Binet, Mr. Jones achieved a full-scale IQ of 79 (T. 32). However, the Woodcock-Johnson showed that Mr. Jones functions academically roughly where you would expect a third or fourth or fifth grader to function (T. 32). Together, the two tests indicated that over a long period of time his intelligence ability has seemed to increase. And that his academic ability is still roughly that associated with a child (T. 32). Some areas of Mr. Jones Stanford-Binet testing were indicative of mental retardation, as were some areas of the testing conducted by the State s expert, who administered the Wechsler Adult 4

10 Intelligence Scale (T ). Dr. Keyes explained that all intelligence tests have a standard error of measure because every test has built-in error (T. 35). On both the Wechsler and the new Stanford- Binet, the standard error of measure is plus or minus five points (T ). Dr. Keyes emphasized, The standard error of measure is absolutely vital. You have to use that (T. 53). Dr. Keyes testified that a person s IQ can rise based upon life experiences, the Flynn effect 2 and an increased structure in the person s environment (T. 37). The amount of structure in the environment greatly impacts the behavior and performance of a mentally retarded person (T ). A person s mental retardation status is not static (T ). Dr. Keyes assessed Mr. Jones adaptive skills from interviews with Mr. Jones sister, niece and former girlfriend (T. 32). Dr. Keyes used the Adaptive Behavior Assessment System to evaluate the information provided by these three people (T. 43). For each person interviewed, this survey provides a general adaptive composite score, as well as scores 2 The Flynn effect is a phenomenon that occurs when IQs naturally rise over time (T ). Such a rise is not a question of a person s individual intellect, it is a question of the test exposure over time (T. 25). For every year of age of a test, a person s IQ score increases by.3 points (T. 25). 5

11 specifically related to the definition of mental retardation (T. 43). The composite scores are based on a mean of 100 and a standard deviation of 15, very much like the IQ (T. 43). Dr. Keyes found that the scores from all three interviewees were remarkably consistent (T. 43). Mr. Jones general adaptive composite scores for the three interviewees were 53, 56 and 57 (T. 44). Mr. Jones adaptive skills are very seriously defective (T ). Characteristics of Mr. Jones behavior were consistent with mental retardation at an early age (T , 47, 48-49, 52). Dr. Keyes discussed the fact that Mr. Jones obtained a GED while he was in prison (T. 46). Dr. Keyes pointed out that Dr. Anis had concluded that the skill levels required for a GED and Mr. Jones actual skill levels did not line up (T. 46). Dr. Keyes agreed with this conclusion (T. 46). Mr. Jones did not specifically remember the GED test, but told Dr. Keyes that someone else probably took the test for him (T ). Based upon his complete evaluation of Mr. Jones, Dr. Keyes testified, it is very likely he was mentally retarded at the time of the crime in July, 1988 (T. 50). The fact that Mr. Jones test scores have improved in the last 15 years does not mean he was not mentally retarded at the time of the crime 6

12 because of the structure and the environment that he has had since then (T. 51). On cross-examination, Dr. Keyes testified that on the new Stanford-Binet, Mr. Jones scored a nonverbal IQ of 81, a verbal IQ of 80 and a full scale IQ of 79 (T. 55). These scores take Mr. Jones out of the range of mental retardation (T. 55). The State showed Dr. Keyes numerous inmate request forms from Mr. Jones prison file, which included requests for medical assistance (T ). The State asked Dr. Keyes if he considered these requests when assessing Mr. Jones adaptive skills (T. 60). Dr. Keyes testified that the focus of his adaptive skills interviews was on Mr. Jones abilities at age 17 or 18 (T. 60). Dr. Keyes testified that the old Stanford-Binet, the test given to Mr. Jones when he was a child, reported lower IQ scores for minority children and that the reliability of Mr. Jones score of 67 on that test was somewhat in question (T ). Dr. Keyes also testified that the BETA, which Dr. Toomer administered to Mr. Jones twice, was not the standard in intelligence tests, but is used as a screening tool (T. 70). Sometimes the BETA underestimates IQ and sometimes it overestimates IQ (T. 70). In response to questions from the court, Dr. Keyes testified that for both the WAIS and the Stanford-Binet, two standard 7

13 deviations below the mean would be an IQ score of 70 (T ). Dr. Keyes added that the ultimate IQ score would be the number on the WAIS or Stanford-Binet plus or minus five points (T. 72). On redirect examination, Dr. Keyes testified that in assessing whether or not a person was mentally retarded, the examiner does not look at just one prong of the definition of mental retardation (T. 75). All three prongs relate to each other (T. 76). Dr. Keyes testified that at the time of Mr. Jones trial, Dr. Anis administered the WAIS to Mr. Jones (T. 77). That was closer to the time of the crime than Dr. Keyes evaluation (T. 77). The WAIS is the gold standard of intelligence tests (T. 77). Dr. Keyes explained that two standard deviations below the mean on the WAIS was a score of 70 (T. 78). Dr. Keyes testified that the definition of mental retardation has evolved (T ). Under current standards of the American Association on Mental Retardation, the idea has been to define this not so much with a fine-tooth comb, but to do it from a clinical diagnostic perspective that does not rely on any one area, such as adaptive skills or intellect or age of onset (T. 79). Despite the questions about the old tests given to Mr. 8

14 Jones, Dr. Keyes testified, it was important that his scores and the information from family and records was [v]ery consistent. The consistency over time is what you really look for (T. 81). For example, Mr. Jones school records show that he dropped out of school in the 4th quarter of the 8th grade when Mr. Jones was 16 years old (T. 81). The school records, as well as the family members reports on Mr. Jones development, were thus consistent with the IQ scores Mr. Jones achieved over time (T ). Mr. Jones 67 IQ score as a child was consistent with the 72 IQ score Mr. Jones achieved on the WAIS in 1989 and with his adaptive behaviors (T. 84). Dr. Keyes testified that he could only express an opinion that Mr. Jones was probably mentally retarded at the time of the crime because he did not evaluate Mr. Jones at that time (T. 84). The person in a better position to determine Mr. Jones mental retardation at that time would have been Dr. Anis, who found a 72 IQ score (T ). This score of 72 is within the range of mental retardation (T. 85). Dr. Keyes also pointed out that Dr. Anis not only tested Mr. Jones intellect but also tested his academic achievement with the Wide Range Achievement Test (T. 85). After this testing, Dr. Anis felt very strongly that something was wrong about the fact that Mr. Jones had obtained a GED (T. 85). Based on 9

15 his own testing, Dr. Keyes also was concerned that something was not quite right either for somebody who was supposed to have a GED (T. 85). Regarding the inmate request forms, Dr. Keyes testified that--assuming that Mr. Jones had written them--the forms were from 1996 to 1999 (T. 86). Thus, at the time the forms were written, Mr. Jones had been in the structured environment of prison for seven to ten years (T. 86). Even assuming Mr. Jones had written the forms, Dr. Keyes did not know whether Mr. Jones had copied them from something someone else had written (T. 88). The level of writing on the forms was not consistent with Mr. Jones testing scores, but was definitely higher that what I would expect, both intellectually and achievement wise (T. 89). On recross, Dr. Keyes testified that in 1989, Dr. Anis testified at the penalty phase that Mr. Jones IQ was between 70 and 75 (T. 93). The State presented the testimony of Greg Prichard, Ph.D., a clinical psychologist (T. 96). Dr. Prichard had worked with mentally retarded persons at Florida State Hospital for several years, conducted evaluations for Developmental Disabilities, and was currently in private practice (T ). The court accepted Dr. Prichard as an 10

16 expert in mental retardation and forensics (T. 98). Dr. Prichard evaluated Mr. Jones on February 24, 2005 (T. 98). He did a brief interview and administered the Wechsler Adult Intelligence Scale, the Wide Range Achievement Test, and the test of memory malingering (T ). He reviewed records before and after the evaluation (T ). On the Wechsler, Mr. Jones achieved a verbal IQ score of 77, a performance IQ score of 77, and a full scale IQ score of 75 (T. 99). Dr. Prichard s opinion was that Mr. Jones is not mentally retarded, as defined by Florida statutes (T. 100, 117). Dr. Prichard did not conduct an evaluation of Mr. Jones adaptive functioning because Mr. Jones IQ did not fall into the mentally retarded range (T. 100). According to Dr. Prichard, since mental retardation has three prongs, the absence of one prong means the person is not mentally retarded (T. 100). Mental retardation requires a Wechsler score below 70 (T. 101). The final score must account for the standard error of measure (T. 101). On the WAIS-III, which Dr. Prichard administered, the standard error of measure is four points (T. 101). Thus, as to Mr. Jones, there is a 95 percent probability that his IQ falls between 71 and 79" (T. 101). 11

17 Dr. Prichard testified that reasons other then mental retardation could explain Mr. Jones lack of adaptive skills (T ). Dr. Prichard found nothing in Mr. Jones records reflecting a diagnosis of mental retardation before age 18 (T. 107). Studies regarding the Stanford-Binet on which Mr. Jones received a 67 IQ score as a child showed that it was biased against the black population (T. 111, 113). Dr. Prichard would not consider Mr. Jones score on that test in reaching any conclusions (T , 114). Dr. Prichard testified that the BETA test underestimates IQ by eight to eleven points (T. 108). Dr. Prichard discussed the 72 IQ score which Dr. Anis found in 1989 (T. 109). Taking into account the standard error of measure of five points on the test Dr. Anis used, Mr. Jones IQ fell between 67 and 77 (T. 110). Dr. Anis diagnosed Mr. Jones with a borderline IQ (T. 110). On cross-examination, Dr. Prichard testified that in 1989, the WAIS which Dr. Anis administered was the gold standard (T ). Dr. Prichard had no reason to dispute the 1989 results (T. 118). On the achievement test which Dr. Prichard administered, Mr. Jones scored in the fourth grade level (T. 120). Dr. Prichard diagnosed Mr. Jones with a 12

18 borderline IQ (T. 121). Assuming such a person had attended school regularly and tried to learn, Dr. Prichard testified, their academic achievement is likely going to be a lot higher, but Mr. Jones had serious problems with academics (T. 121). Dr. Prichard testified that Mr. Jones was placed in special classes, but did not know the reason for that placement (T. 121). Applying the standard error of measure, there is a chance that Mr. Jones IQ is 71 or 79 (T. 123). Dr. Prichard testified he did not do adaptive functioning testing because a 71 IQ is not mentally retarded (T. 123). On numerous subtests of the WAIS which Dr. Prichard administered, Mr. Jones showed a pattern which can show up in a mentally retarded person or a person with a borderline IQ or a person with brain damage (T ). Applying the standard error of measure to the testing done by Dr. Anis in 1989, Mr. Jones IQ range was 67 to 77 (T. 124). That range represented the possibility that Mr. Jones fell into the mentally retarded range (T. 125). Dr. Anis stated that his testing was a valid representation of Mr. Jones IQ at that time(t. 125). Dr. Prichard testified that a person s IQ does not stay the same throughout the person s life (T. 126). A person can gain IQ points, particularly when you are on the cusp... 13

19 between say mentally retarded and borderline (T. 126). A person can advance from mentally retarded to borderline IQ (T. 126). Dr. Prichard accepted the DSM-IV-TR as authoritative in his field (T. 127). Dr. Prichard testified that the DSM-IV-TR says, when you are talking about mental retardation and you are considering the standard error of measurement, it is possible that the IQ range in terms of numerical score can go up to 75" (T. 127). Mr. Jones counsel asked Dr. Prichard about some quotations from the DSM-IV-TR: Q Let me just read you -- this is from the DSM-IV- TR, Page 48: Borderline intellectual functioning describes an IQ range that is higher than that for mental retardation. As discussed earlier, an IQ score may involve a measurement of error of approximately five points depending on the testing instrument. Thus, it is possible to diagnose mental retardation in individuals with IQ scores between 71 and 75 if they have significant deficits in adaptive behavior that meet the require -- meet the criteria for mental retardation. A Yes. Q Differentiating mild mental retardation from borderline intellectual functioning requires careful consideration of all available information. A Yes. Q Do you agree with that? A Absolutely. (T ). 14

20 When he assesses a person for mental retardation, Dr. Prichard looks at their present functioning (T. 134). He believed it was highly unlikely that Mr. Jones was mentally retarded in the past (T. 135). The trial court issued an order denying Mr. Jones claim (RJ-R ). The trial court found that Mr. Jones failed to present a prima facie case of mental retardation and that the State expert convinces this Court beyond a reasonable doubt that Defendant does not meet the statutory definition of mental retardation (RJ- R. 122). The court found that on the intelligence tests administered by Dr. Keyes and Dr. Prichard, the two standard deviations below the mean required for a person to fall into the mentally retarded range was an IQ score of 70 (Id.). Considering the standard error of measure, the court concluded that each test result was 71 or above (Id.). Because of these test scores, the court did not consider the adaptive functioning prong (RJ-R. 123). The court disagreed with Mr. Jones argument it should determine whether Mr. Jones was mentally retarded at the time of trial (RJ-R. 123). Alternatively, the court found beyond a reasonable doubt that Defendant still failed to meet the IQ prong as determined at the 15

21 time of trial (Id.). The court found that the IQ score of 67 when Mr. Jones was a child should be ignored (Id.). The court found that although Dr. Anis administered an approved test in 1989 and found an IQ of 72, this score is still above the 70 cut-off (Id.). The court rejected Mr. Jones 1994 and 1995 BETA scores because it was not an approved test (RJ-R. 123). The court found no evidence that Mr. Jones GED was obtained fraudulently or that the DOC documents were not written by Mr. Jones (Id.). The court concluded, [T]he State has proved beyond a reasonable doubt that Defendant does not meet criteria for mental retardation, either currently or at the time of trial (RJ-R. 124). SUMMARY OF ARGUMENT Mr. Jones is mentally retarded and his death sentence violates the Eighth Amendment to the United States Constitution. Atkins v. Virginia, 122 S. Ct (2002). The trial court s conclusions are contrary to the record, contrary to standards of the psychological profession, and contrary to Florida and constitutional law. Mr. Jones was denied a full and fair evidentiary hearing when the trial court limited him to only one 16

22 expert witness to carry his burden of proof and insisted that one witness assess Mr. Jones current mental status instead of his mental condition at the time of trial. STANDARD OF REVIEW The claim discussed here is a constitutional issue involving mixed questions of law and fact and are reviewed on appeal de novo, giving deference only to the trial court s factfindings. Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999); State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001). ARGUMENT I THE DEATH SENTENCE IMPOSED UPON MR. JONES, A MENTALLY RETARDED PERSON, VIOLATES THE FLORIDA AND UNITED STATES CONSTITUTIONS. Mr. Jones is mentally retarded and, therefore, his death sentence violates the Eighth Amendment. Atkins v. Virginia, 122 S. Ct (2002). Mr. Jones here presents arguments arising from the evidentiary hearing and lower court s order, but also continues to rely upon all arguments presented in his initial and reply briefs. The lower court erred in concluding that Mr. Jones had not made a prima facie showing of mental retardation. This Court already made that determination in remanding for an evidentiary hearing on Mr. 17

23 Jones claim. In order to receive an evidentiary hearing, the defendant must present a prima facie showing that he is entitled to relief. Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999). The lower court s conclusion is unsupported by the record. Even the State s expert testified that the 72 IQ score Mr. Jones received in 1989 represented the possibility that Mr. Jones fell into the mentally retarded range (T. 125). The lower court erred in finding an IQ score of 70 as an absolute cut-off for establishing mental retardation. Although the court s ultimate conclusions rely on the State s expert, the court ignored that expert s own testimony that the standards of his profession, the DSM-IV-TR, provide for finding mental retardation for IQ scores up to 75. In fact, the Atkins Court cited these DSM-IV-TR definitions with approval. 122 S.Ct. at 2245, n. 3. Atkins recognized that an IQ score of 75 places a person in the mentally retarded range: It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). Atkins, 122 S. Ct. at 2245 n.5. The DSM-IV-TR requires that if a person receives an IQ 18

24 score between 71 and 75, the examiner conduct further analysis of adaptive functioning to make a final determination of mental retardation. The State expert found an IQ score of 75, but he refused to assess the other prongs of the definition of mental retardation. In 1989, Dr. Anis found an IQ score of 72. The lower court rejected this finding simply because it was above 70. This was error under the psychological profession s definition of mental retardation. Dr. Keyes and Dr. Prichard both agreed that the standard error of measure must be applied to the results of an IQ test. Rejecting a score of 72 simply because it is above 70 does not take into account the full definition of mental retardation as reflected in the DSM-IV-TR. Dr. Prichard rejected Dr. Anis s testing as showing mental retardation because, according to Dr. Prichard, Dr. Anis diagnosed Mr. Jones as having borderline intelligence. At the penalty phase, Dr. Anis testified that the IQ test which he gave Mr. Jones in 1989 resulted in an IQ of 72 (R. 3447). This meant Mr. Jones was less bright than about 97 percent of the population of his age (R. 3448). In his written report, Dr. Anis stated that on the WAIS-R, Mr. Jones achieved levels fell in the Mentally Retarded to Low Average range. 19

25 Dr. Anis testimony and report support Mr. Jones claim. Sec , Fla. Stat. explains that significantly subaverage general intellectual functioning... means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Department of Children and Family Services. The Senate Staff Analysis explained that the legislation did not set forth a specific IQ as necessary to establish mental retardation, but that on nationally recognized IQ tests such as the WAIS, Two standard deviations from these tests is approximately a 70 IQ, although it can be extended up to 75. The effect in practical terms will be that a person that has an IQ of around 70 or less will likely establish an exemption from the death penalty. (Emphasis added). The staff analysis later repeated, In practice, two or more standard deviations from these tests means that the person has an IQ of 70 or less, although it can be extended up to 75. Thus, in 1989, on the WAIS--a test endorsed by Department of Children and Family Services--Mr. Jones received an IQ score in the range suggested by Sec , Fla. Stat. The trial court erred in rejecting Mr. Jones argument that the court should determine whether Mr. Jones was mentally retarded at the time of the crime. Atkins held that the 20

26 Eighth Amendment bars execution of the mentally retarded because our society views mentally retarded offenders as categorically less culpable than the average criminal. 122 S. Ct. at The societal consensus against executing the mentally retarded reflects widespread judgment about the relative culpability of mentally retarded offenders. Id. at Culpability refers to a person s level of responsibility for the crime, and must be determined at the time of the crime. Further, the court erred in rejecting the 72 IQ score found by Dr. Anis in 1989 simply because the score was above 70. The court did not consider the DSM-IV-TR definition of mental retardation and did not consider the application of the standard error of measure to this score. Applying the standard error of measure, Dr. Anis s results mean that Mr. Jones IQ falls between 67 and 77, which is within the range of mental retardation. The court s rejection of Dr. Anis s results is unsupported by the record and contrary to standards of the psychological profession and Sec , Fla. Stat. The court s summary rejection of Dr. Anis s findings violates Due Process and the Eighth Amendment. Parker v. Dugger, 498 U.S. 308 (1991); Ford v. Wainwright, 477 U.S. 399 (1986). The court applied a varying standard and burden of proof 21

27 to Mr. Jones claims. The court twice stated it found the State had proved beyond a reasonable doubt that Mr. Jones was not mentally retarded (RJ-R. 122, 124). The court also stated that it found beyond a reasonable doubt that Defendant still failed to meet the IQ prong as determined at the time of trial (RJ-R. 123). The court s inconsistent allocation of the standard and burden of proof violated Due Process and the Eighth Amendment. 3 Finally, Mr. Jones renews all of the arguments presented in Section C of his Initial and Reply Briefs. Mental retardation is an eligibility issue under Atkins and Ring v. Arizona, 122 S. Ct (2002). Under Ring, an eligibility issue must be determined by a jury, and eligibility must be established by the State based upon proof beyond a reasonable doubt. In capital proceedings, the Supreme Court held, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. Ford, 477 U.S. at 411. ARGUMENT II MR. JONES WAS DENIED A FULL AND FAIR HEARING On March 8, 2005, the hearing court held a pre-hearing management conference and set the procedures to be followed at 3 Ring v. Arizona, 122 S. Ct (2002); Ford v. Wainwright, 477 U.S. at 417; Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); Speiser v. Randall, 357 U.S. 513, (1958). 22

28 the evidentiary hearing. At this hearing, defense counsel objected to being limited to only calling one mental health expert at the evidentiary hearing and to the court s decision to allow only one expert per side to testify (Supp. 29). The lower court ordered each party to name a mental health expert prior to the hearing and that expert was to assess Mr. Jones current mental state. Mr. Jones objected to this procedure, arguing that his mental state in 2005 was irrelevant and that records beyond the date of the trial would also be irrelevant (RJ-R. 146; Supp. 29). Mr. Jones interpreted the court s ruling as limiting his ability to carry the burden of proving his claims. He was not allowed to call Dr. Anis, who evaluated and tested Mr. Jones mental status at the time of trial or Dr. Toomer, who tested Mr. Jones closer to the time of trial. At the 2005 evidentiary hearing, Mr. Jones objected to the lower court s analysis of his current mental abilities instead of at the time of trial (Supp. 29). Had Rule been in existence at the time of his trial, the entire mental retardation hearing would have occurred pre-trial. See, Fla. R. Crim. P At the time of trial, Mr. Jones had not been confined for several years, and was more apt to exhibit the true effects of 23

29 his mental retardation. Instead, the lower court assessed Mr. Jones mental status after he spent years on death row in a strictly-controlled environment. Because of the lower court s limitations on what could be presented at the evidentiary hearing, Mr. Jones was unable to present witnesses who could have testified about his adaptive skills outside prison. Dr. Keyes testified that he spoke with Mr. Jones family members and that his adaptive behavior testing scored well within the mental retardation range. Dr. Prichard failed to even conduct an adaptive skills evaluation because the IQ scores were not in line with what he considered mentally retarded. The DSM-IV specifically condemns such lopsided evaluations. Additionally, the lower court failed to consider that Mr. Jones had the burden of proving his Rule motion. Without the ability to bring forth doctors Anis and Toomer, there was no evidence to show how these doctors arrived at the IQ scores they obtained. Both doctors obtained IQ scores that were well within the level for mental retardation. Both doctors evaluated Mr. Jones nearer the time of the crime than either Dr. Keyes or Dr. Prichard. Mr. Jones was unable to call these doctors to rebut the State s impeachment that the tests given to him prior to age 18 and at the time of trial 24

30 were invalid. The lower court relied on Dr. Prichard s skewed evidence to find that Mr. Jones was not mentally retarded and went so far as to discount the earlier testing given by doctors Anis and Toomer, even though neither had testified (RJ-R ). This was not a full and fair hearing nor a fair assessment of whether Mr. Jones was mentally retarded at the time of trial. Post-conviction litigation is governed by principles of due process. See Holland v. State, 503 So 2d 1250 (Fla. 1987). A new evidentiary hearing is warranted. CONCLUSION Mr. Jones respectfully urges the Court to reverse the lower court, remand for constitutional proceedings, and/or vacate his unconstitutional death sentence. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished by US Mail delivery to Cassandra Dolgin, Assistant Attorney General, Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida on September 13, /s/terri L. Backhus TERRI L. BACKHUS Fla. Bar No Backhus & Izakowitz, PA N. Dale Mabry, Ste

31 Tampa, FL (813)

32 CERTIFICATE OF FONT This brief is typed in Courier 12 point not proportionately spaced. /S/ Terri L. Backhus TERRI L. BACKHUS 27