FILED
COMMONWEALTH OF KENTUCKY KENTON CIRCUIT/AISTRICT COURT
KENTON CIRCUIT COURT 2A 2010
FIRST DIVISION
CASE NO. 87-CR-00166 JOH C/MIDDLETON
» (BY D.C.
COMMONWEALTH OF KENTUCKY rire
VS. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
PROHIBIT IMPOSITION OF THE DEATH PENALTY
GREGORY WILSON DEFENDANT
RRR RR
The defendant, Gregory Wilson, requests relief pursuant to the Eighth and Fourteenth
Amendments to the United States Constitution, Sections 2, 3, 11 and 17 of the Kentucky
Constitution, Atkins v. Virginia, 536 U.S. 304 (2002), Bowling v. Commonwealth, 163 S.W.3d
361 (Ky. 2005)', and KRS 532.130-532.140.
L This Court has jurisdiction to enter an order prohibiting the execution of Mr.
Wilson.
In Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005), the Kentucky Supreme Court
found that a motion filed in the sentencing court pursuant to KRS 532.130-532.140 and Atkins,
supra, was a proper vehicle by which a condemned prisoner could seek to establish ineligibilty
for the death penalty. Because Bowling’s trial had occurred after the enactment of KRS 532.130-
532.140, which required a pretrial determination of mental retardation, the court had to
determine if Bowling had waived his right to assert ineligibility.”
' Bowling is authority for the Proposition that Mr. Wilson’s motion is timely and this Court has jurisdiction to
address the merits of Mr. Wilson’s motion. The remainder of the Bowling opinion consists of dicta. In this
memorandum, Mr. Wilson will point out where what the court stated as dicta is wrong, constitutionally or
procedurally.
~ KRS 532.130-532.140 were enacted in 1990. The statutes were effective as of July 13, 1990, and Bowling’s trial
took place beginning on December 10, 1990. Bowling v. Commonwealth, 163 S.W.3d at 371-372.
The Supreme Court decided that Bowling’s motion was properly filed under CR 60.03,
but Bowling had defaulted his claim because he did not follow KRS 532.130-532.140 by filing a
pretrial motion. Bowling, supra, 163 S.W.3d at 366, 371. In doing so, the Supreme Court said:
[If a condemned mentally retarded offender had been tried prior to the effective
date of the Kentucky statutes, Atkins would exempt that offender from the death
penalty.
Bowling, supra, 163 S.W.3d at 371. Mr. Wilson’s trial took place on September 1, 1988, through
September 28, 1988, and he was sentenced to death on October 25, 1988. Mr. Wilson was denied
relief on his RCr 11.42 post-conviction action on March 5, 1997, five years before Atkins was
decided. Therefore, Mr. Wilson’s motion is properly before this Court.
II. Mr. Wilson’s death sentence must be vacated because executing him violates the
Eighth and Fourteenth Amendment substantive restriction against executing the
mentally retarded.
A. Mr. Wilson is mentally retarded, and thus executing him is illegal.
On June 20, 2002, the Supreme Court held that “the Constitution places a substantive
restriction on the State’s power to take the life of a mentally retarded offender.”* In other words,
the Court held that the Eighth Amendment’s ban on excessive, cruel, and unusual punishments
prohibits the execution of individuals with mental retardation.
B. The definition of mental retardation
In Bowling, the Kentucky Supreme Court held that the Kentucky definition of mental
retardation, which requires an I.Q. of 70 or below,’ is equivalent to the two national definitions
currently in use: one promulgated by the American Association on Mental Retardation
* Atkins v. Virginia, 536 U.S. 304 (2002) (internal quotation marks omitted).
* K.R.S. 532.130 defines serious mental retardation as “significant subaverage intellectual functioning existing
concurrently with substantial deficits in adaptive behavior and manifested during the developmental period.”
Significantly subaverage intellectual functioning is defined as “an intelligent quotient (1.Q.) of seventy (70) or
below.”
Bx
(“AAMR”) and the other by the American Psychiatric Association (“APA”) - - both of which
were cited favorably in Atkins.
The APA defines mental retardation as:
Significantly subaverage general intellectual functioning (Criterion A); significant
limitations in adaptive functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure,
health, and safety (Criterion B); and, that the onset must occur before age 18 years
(Criterion C).°
The AAMR detines the diagnostic criteria for mental retardation as:
1) the person has significantly sub-average intellectual functioning;
2) significant deficits in adaptive skills (defined as a significant deficit in
conceptual, social or practical adaptive behaviors); and,
3) that the condition manifested before the age of 18.°
1. Significantly subaverage intellectual functioning
Mr. Wilson’s IQ score of 62 from the test administered at age 14 is conclusive evidence
of “significant subaverage intellectual functioning.” In addition, a school record dated April 5,
1971, when Mr. Wilson was 14, states that he is “mildly retarded,” immature and dependent.
(Appendix, pp. 3, 7). Academically, he was performing “1 and a grade work.” (Appendix, p.
6).
2. Significant limitations in adaptive behavior
Deficits in adaptive skills, the second part of the definition of mental retardation, fall into
three general categories: deficits in conceptual, practical, and social skills.’ According to the
AAMR, symptoms of deficits in these areas include: 1) poor grooming; 2) inability to use money
> APA, Diagnostic and Statistical Manual of Mental Disorders at 41 (4th ed. 2000).
° AAMR, Mental Retardation: Definition, Classification, and Systems of Supports at | (10th ed. 2002).
” AAMR, Mental Retardation: Definition, Classification, and Systems of Supports at \ (10th ed. 2002).
-3-
correctly; 3) getting lost; 4) following others; 5) lack of self direction; 6) few friends; and, 7)
gullibility.®
3. Onset during the developmental period
Although the symptoms of mental retardation can be caused by many things, mental
retardation is a life-long affliction that manifests during the developmental period. Thus, to
differentiate between the sudden onset of similar symptoms and a person who is “truly” mentally
retarded, the definition of mental retardation requires the symptoms to manifest themselves prior
to the end of the developmental period, before age 18.
Ill. Mr. Wilson is mentally retarded under the current definitions.
A. Facts showing Mr. Wilson’s mental retardation
When Mr. Wilson was 14 years of age, an I.Q. test was administered. He scored 622
Counsel for Mr. Wilson has obtained copies or originals of all available school records for Mr.
Wilson. The test administered at age 14 is the only test score that has been found relating to Mr.
Wilson’s IQ during the “developmental period” of Mr. Wilson’s life (prior to age 18). The
“Motion to Prohibit Imposition of Death Penalty,” to which this Memorandum is addressed, sets
out the factual basis for Mr. Wilson’s claim of exemption.
B. Mr. Wilson suffers from significant subaverage intellectual functioning,
“Intelligence is a general mental ability that includes reasoning, planning, solving
problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning
from experience.” Thus, academic records, in addition to I.Q. scores, are relevant to a
determination of mental retardation. Both of these areas, as exemplified by the AAMR
* 4 User's Guide for AAMR’s 2002 Definition, Classification and Systems of ‘Supports: Applications for Clinicians
Educators, Disability Program Managers, and Policy Makers at 28 (AAMR Oct. 2005).
8 Appendix, p. 3.
Id. at 6.
guidelines, establish that Mr. Wilson suffers from significantly subaverage intellectual
functioning. His [Q score was 62. He was reading at a third grade level and he was producing
“1 and 2" grade work.” (Appendix, pp. 1, 3, 6).
Cc. Mr. Wilson suffers from substantial deficits in adaptive behavior.
Adaptive behavior is broken down into conceptual, practical, and social skills.''
Conceptual skills involve language, reading, and writing.'? Because conceptual skills overlap
the intellectual impairment prong, Mr. Wilson’s difficulties in school support a finding that he
suffers from deficits in the area of conceptual skills.
The same school record that reported the IQ score of 62 also stated that 14-year-old
Gregory was “immature, naive and easily influenced by delinquent peers.” (Appendix, p. 3). His
promotion to the 8" grade was a “social promotion,” that is, it was based upon his age rather than
academic merit. (Appendix, p. 8). The school records also reflect deficits in social skills,
reporting that Gregory was “easily influenced by delinquent peers.” (Appendix, p. 3). These facts
establish that Mr. Wilson suffers from significant deficits in adaptive skills.
D. Mr. Wilson’s significantly subaverage intellectual functioning and
substantial deficits in adaptive behavior manifested during the
developmental period.
Mr. Wilson has established that his significant subaverage intellectual functioning and
substantial deficits in adaptive behavior manifested during the developmental period. His IQ
score of 62 was obtained when he was fourteen years of age. He was classifed as mildly retarded.
The deficits in adaptive behavior occurred during the developmental period. Therefore, Mr.
Wilson has established that he met both the adaptive deficits prong and the intellectual
impairment prong of mental retardation during the developmental period.
: AAMR, Mental Retardation: Definition, Classification, and Systems of Supports at | (10th ed. 2002).
* Id. at 83.
IV. Kentucky’s recently established procedures for adjudicating (thins claims do not
comply with due process.
The procedures Kentucky adopted in 1990 are insufficient to protect and guard against
the execution of a mentally retarded offender, and thus violate due process and the United States
Supreme Court’s edict in Atkins. Essentially, the prohibition against executing the mentally
retarded creates two independent constitutional issues: 1) is the person mentally retarded; and 2)
does a particular state’s procedures for determining a person’s mental retardation comport with
due process and the Eighth Amendment?!
In Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005), the Supreme Court, in dicta,
addressed several issues relating to KRS 532.130-532.140. The Court talked about: 1) the
relevant time frame of evidence of mental retardation (holding that for the prohibition against
executing the mentally retarded to apply, evidence of mental retardation at the time of the
offense must exist); 2) whether a judge or jury must make the mental retardation determination
(holding that it is a judge determination); 3) who holds the burden of proof (defendant); and, 4)
what standard of proof is required (holding that a preponderance of the evidence standard applies
to mental retardation claims as a bar to execution).'*
Despite the statements in the statutory and medical definitions of mental retardation
requiring that the onset of mental retardation must be during the developmental period and
despite United States Supreme Court case law holding that “nothing in [Atkins] suggested that a
mentally retarded individual must establish a nexus between her mental capacity and her crime
'? See Schriro v. Smith, 126 S.Ct. 7 (2005) (noting that states’ procedures for implementing Atkins “might, in their
application, be subject to constitutional challenge”); Medina v. California, 505 U.S. 437, 453 (1992) (addressing the
constitutionality of California's procedures for determining competency to stand trial); Ford v. Wainwright, 477
U.S. 399 (1986) (holding that the Eighth Amendment forbids the execution of the insane and then addressing
whether Florida’s procedures for determining whether a person was competent to be executed was adequate to
protect that right).
3 Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005).
=6=
before the Eighth Amendment prohibition on executing her is triggered,”'°
the Kentucky
Supreme Court suggested that a condemned prisoner must present proof of mental retardation
from around the time of the crime. Bowling v. Commonwealth, 163 S.W.3d at 376-377. But by
definition, the onset of mental retardation must be prior to age 18. The Bowling dicta stating that
the time frame near the occurrence of the crime is relevant is contrary to Atkins and contrary to
KRS 532.130-532.140.
Bowling’s statements about the burden of proof and that the defendant has the duty to
prove mental retardation by a preponderence of evidence is nothing more than the Supreme
Court engaging in legislating rather than interpreting the law. Since mental retardation is a
condition that renders a defendant ineligible for the death penalty, the Commonwealth should
have the burden to prove eligibility, and the burden should be beyond a reasonable doubt. Mr.
Atkins, the petitioner in Atkins v. Virginia, 536 U.S. 304 (2002), was afforded a jury
determination of mental retardation upon the remand of his case by the United States Supreme
Court to the Virginia courts. See Atkins v. Commonwealth, 272 Va. 144, 631 S.E.2d 93 (Va.
2006).
Vv. Mr. Wilson is entitled to a new sentencing hearing where a jury can give full effect
to Mr. Wilson’s symptoms of mental retardation that increased in mitigating value
when the United States Supreme Court held that executing the mentally retarded
violates the Eighth Amendment to the United States Constitution.
The mitigating value of functioning at the level of mental retardation is greater now that
the Eighth Amendment prohibits the execution of the mentally retarded. As a result, Mr. Wilson
is entitled to a new sentencing hearing where the jury can give effect to its increased mitigating
value. The heightened importance Azkins places on intellectual impairments and adaptive deficits
'S Tennard v. Dretke 124 8.Ct. 2562 (2004).
requires a new sentencing hearing before a jury.'° At the time of Mr. Wilson’s trial, mental
retardation was a valid mitigating circumstance because “defendants who commit criminal acts
that are attributable . . . to emotional problems, may be less culpable than defendants who have
no such excuse.”'” But even though impaired intellectual functioning was already “inherently
mitigating” at the time of Mr. Wilson’s trial,'* the mitigating value of impaired intellectual
functioning has now substantially increased as a result of Atkins.
Mentally retarded individuals like Mr. Wilson defy the stereotypical image of people
with mental retardation because they do not appear disabled to a layperson and are able to
accomplish things that most people believe a mentally retarded person would be incapable of.
As a result, impairments that trigger evaluation for mental retardation often only become
apparent when the defendant is also mentally ill or acts in a bizarre or disruptive fashion. '9 The
jury that sentenced Mr. Wilson to death never considered any mitigating evidence and certainly
was not aware that Mr. Wilson suffered from mental retardation. Lack of this knowledge
increased the likelihood of a death verdict.
In holding that executing the mentally retarded is cruel and unusual punishment, the
Atkins Court recognized that the “lesser ability of mentally retarded defendants to make a
persuasive showing of mitigation in the face of prosecutorial evidence of one or more
aggravating factors” causes mentally retarded defendants to face a special risk that a death
sentence will be imposed despite factors calling for a lesser sentence.” An individual “right on
'S See State v. Canez, 74 P.3d 932 (Ariz. 2003) (en banc) (despite a pre-Arkins statute barring the execution of the
mentally retarded, remanding for a mental retardation hearing and a new sentencing hearing even if the appellant is
not mentally retarded because the mitigating value of borderline mental retardation substantially increased in light of
Atkins).
"7 Penry v. Lynaugh, 492 U.S. 302, 319 (1989).
' Tennard v. Dretke, 124 S.Ct. 2562 (2004).
8 Conely, Luckasson, & Bouthilet, eds. The Criminal Justice System and Mental Retardation, 55, 98 (1992).
” Atkins, 536 U.S. at 320.
oe
the edge” of mental retardation suffers some of the same limitations of reasoning, understanding
and impulse control as those person described by the Supreme Court in Atkins.”?' Thus, even if
the defendant is not quite mentally retarded, one or more jurors may well decide that the
defendant’s diminished intellectual capacity and deficits in adaptive skills are sufficiently
mitigating to warrant a life sentence. Knowing that mental retardation makes the defendant
ineligible for the death penalty, which a post-Atkins jury would know by the time it begins its
final sentencing deliberations on the appropriateness of the death penalty, necessarily heightens
the mitigating effect of a decision that the defendant falls just over the line into the “borderline”
range of intellectual functioning.” In other words, even though one or more post-Atkins jurors
may conclude that the defendant is not mentally retarded, the juror could still conclude that the
death penalty is not the appropriate punishment. The Eighth Amendment requires that such a
juror must be given an avenue to give effect to this mitigating evidence.” The only way to do
this is to give Mr. Wilson a new sentencing hearing where he can present to the jurors evidence
of his intellectual limitations and deficits in adaptive behavior and argue the importance of that
evidence in the post-Atkins world.
In addition, because the principle underlying the Court’s Eighth Amendment death
penalty jurisprudence is that “only the most deserving of execution are put to death,’”* death-
sentenced prisoners currently in post-conviction proceedings must receive the same opportunity
to prove to the jury that death is not the appropriate sentence as individuals currently facing a
potential death sentence. Atkins mandates a new sentencing hearing for Mr. Wilson, where the
*| Brownlee v. Haley, 306 F.3d 1043, 1073 (11th Cir. 2003).
” See e.g., Brownlee, 306 F.3d at 1073 (finding counsel ineffective, in light of Atkins, for failing to present evidence
of borderline mental retardation because an individual “right on the edge” of mental retardation suffers some of the
same limitations of reasoning, understanding, and impulse control as those persons described by the Supreme Court
in Atkins).
® Penry, 492 U.S. at 319.
** sttkins, 336 U.S. at 319.
jury can give proper consideration to whether Atkins heightened mitigating value of Mr.
Wilson’s intellectual impairments and deficits in adaptive behavior means the death penalty is
not the appropriate sentence for Mr. Wilson.
CONCLUSION
For the foregoing reasons, the defendant Gregory Wilson, respectfully requests that this
court enter an order prohibiting his execution. Alternatively, he requests that this Court order a
new sentencing hearing.
f “fo Lk (tf
“Seed ) Thole,
BRUCE P. HACKETT
CHIEF APPELLATE DEFENDER
LOUISVILLE METRO PUBLIC DEFENDER
ADVOCACY PLAZA
719 WEST JEFFERSON STREET
LOUISVILLE, KY 40202
(502) 574-3800
COUNSEL FOR GREGORY WILSON
KBA #27705
-10-
DANIEL T. GOYETTE 10)
CHIEF PUBLIC DEFENDER
LOUISVILLE METRO PUBLIC DEFENDER
ADVOCACY PLAZA
719 WEST JEFFERSON STREET
LOUISVILLE, KY 40202
(502) 574-3800
COUNSEL FOR GREGORY WILSON
KBA #26335
fueB® KO
LEO G. SMITH
DEPUTY CHIEF DEFENDER
LOUISVILLE METRO PUBLIC DEFENDER
ADVOCACY PLAZA
719 WEST JEFFERSON STREET
LOUISVILLE, KY 40202
(502) 574-3800
COUNSEL FOR GREGORY WILSON
KBA #65620
CERTIFICATE
This is to certify that a copy of the foregoing memorandum was mailed/delivered to the
office of Hon. Rob Sanders, Commonwealth’s Attorney, Kenton County Building, 303 Court
Street, Room 605, Covington, Kentucky 41011, and mailed, first-class postage prepaid, to Hon.
Jack Conway, Attorney General, Office of the Attorney General, 700 Capitol Avenue, Suite 118,
Frankfort, KY 40601, on this the 22 tay of April 2010.
S Seg he bl
BRUCE P. HACKETT
In Copyright - Educational Use Permitted