LEWIS

Petitioner’s Supplemental Brief

Cal.May 19, 2015

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME CouryFILER. May Inse: ) CAPITAL. CASE es 19205 } Case No, $117235 KA. Mog, ROBERTLEWIS,JR. ¥ sareinpaeeek J Related Automatic Appeal. P6B4-———__ ) Case No. $020670 On Habeas Corpus ) Los Angeles Superior Court ) Case No. A0227897 PRTITIONER’S SUPPLEMENTALBRIEF ON THE MERITS. SANGER SWYSEN & DUNKLE Allomeys at Law Robert M.Sanger, State Bar No. 58214 125 E. De La Guerra,Ste 102 Sanla Barbara, California 93101 Telephone:(805) 962-4887 Facsimile: (805) 963-731 1 Attomey for Petitioner ROBERT LEWIS,JR, DEATH PENALTY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CAPITAL CASE Case No. 8117235 In re: ROBERT LEWIS,JR., Case No. S020670 Los Angeles Superior Court Case No. A0227897 ) ) ) ) Related Automatic Appeal ) On Habeas Corpus ) ) PETITIONER’S SUPPLEMENTAL BRIEF ON THE MERITS SANGER SWYSEN & DUNKLE Attorneys at Law Robert M. Sanger, State Bar No. 58214 125 E. De La Guerra, Ste 102 Santa Barbara, California 93101 Telephone: (805) 962-4887 Facsimile: (805) 963-7311 Attorney for Petitioner ROBERT LEWIS, JR. TABLE OF AUTHORITIES FEDERAL CASES Atkins v. Virginia (2002) 536 U.S. 304 ... vec ceceeecuuueveeeeeeesobec eeeee. 2,4 Baakev. Regents ofthe University ofCalifornia (1978) 438 U.S. 265 ............... 9 Hall v. Florida (2014) 572 U.S. ,134S.Ct. 1986 oo.eee2, 3, 4 Hernandezv. Stephens (2014) 134 S.Ct. 1760 ................ hence we eees 3, 6, 7, 8 Washington v. Davis (1976) 426 U.S. 229 0.0.22. cece cece cece eee ce neennees 10 STATE CASES In re Champion (2014) 58 Cal.4th 965 0... ce ccc ce cee eee eee 2y 5, 7, 810 Inre Hawthorne(2005) 35 CalAth 40 20... ec ccc ce cee eee ene e eens 2 People v. Superior Court (Vidal) (2007) 40 Cal.4th 999 .............. 000.0 eee 2,4 Sargon v. University ofSouthern California (2012) 55 Cal.4th 747 ................ 10 il TABLE OF CONTENTS TABLE OF AUTHORITIES ............. 0. cece e eee eee ees ii INTRODUCTION .... 0... c ec ccc ce cee teen nees 2 I. HALL V. FLORIDA CONFIRMS THAT THE DEFINITION OFINTELLECTUAL DISABILITY IS NOT CONFINED TO RIGID CRITERIA OR DEFINITIONS OF PARTICULAR TEXTS FROZEN IN TIME ............ 3 IT. RACE BASED "ETHNIC CORRECTIONS" TO IQ SCORES ARE BOTH UNCONSTITUTIONAL AND UNSUPPORTED BY THE EVIDENCE ............... 5 CERTIFICATE OF WORD COUNT ........... 0.0.2.2 e cece ees 14 SANGER SWYSEN & DUNKLE Attorneys at Law Robert M.Sanger, State Bar No. 58214 125 E. De La Guerra, Ste 102 Santa Barbara, California 93101 Telephone: (805) 962-4887 Facsimile: (805) 963-7311 Attorney for Petitioner ROBERT LEWIS,JR. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CAPITAL CASE Case No. 8117235 In re: ROBERT LEWIS,JR., Case No. 8020670 Los Angeles Superior Court Case No. A0227897 ) ) ) ) Related Automatic Appeal ) On Habeas Corpus _) ) PETITIONER’S SUPPLEMENTAL BRIEF ON THE MERITS (Cal. Rule of Ct. 8.520(d)) Petitioner, Robert Lewis, Jr., submits this Supplemental Brief on the Merits in further support of the Petition for Writ ofHabeas Corpus pursuant to California Rules of Court 8.520(d)(1) on the grounds that there are new decisions and materials which were not available in timeto be included in the Brief on the Merits and Reply Brief filed in 2013. Hf H INTRODUCTION First, the United States Supreme Court delivered its opinion in Hall v. Florida (2014) 572 U.S. __,134 S.Ct. 1986 . In the present case, Respondent took exception to the Referee considering current medical resources and claimed that he was bound by a "definition" based on authorities cited in a footnote in Atkins v. Virginia (2002) 536 U.S. 304, 308 n.3. (Resp. Reply 28- 30) Petitioner cited In re Hawthorne (2005) 35 Cal.4th 40 and People v. Superior Court (Vidal) (2007) 40 Cal.4th 999 for the proposition that the definition was clinical and not rigid. (Pet. Reply 15-17) The United States Supreme Court in Hall now confirmed that it is proper to consult current medical authorities. Second, this Court delivered its opinion in Jn re Champion (2014) 58 | Cal.4th 965. In the present case, Respondent offered the testimony of Dr. Charles Hinkin that the IQ scores of Petitioner should be adjusted upward based on his race as a proxy for socioeconomic or other factors. (12 RHT 2011; Resp. Brief81; Reply 27) The Referee rejected the adjustment based on the lack of evidence and on the state of medical opinion on the subject. (Report 19) This Court in Championcited, without comment, the testimony of the same Dr. Hinkin regarding his purported "ethnic correction" to the scores of the “Black” defendant in that case. This Court reserved ruling on that issue. It appears to be a matter offirst impression.’ 1. HALL V. FLORIDA CONFIRMSTHAT THE DEFINITION OF INTELLECTUALDISABILITY IS NOT CONFINED TO RIGID CRITERIA OR DEFINITIONS OF PARTICULAR TEXTS FROZEN IN TIME Respondent took the position that it was error for the Referee to consider the American Association on Intellectual Development and Disability, Intellectual Disability: Definition, Classification, and Systems of Supports, (11th Ed. 2010) (hereinafter, AAIDD 11" ed.). (Resp. Brief 96-99; Resp. Reply 28) Petitioner’s expert at the hearing, Dr. Khasanov, based her assessment on theclinical definitions in the AAIDD 11" ed. as well as the prior editions. (9 RHTpassim) The Referee made referencein his Report to the AAIDD 11" ed.as the most current authority on the subject. (Report 6, n.3) The United States Supreme Court in Hall v. Florida (2014) 572 U.S. _,134 S.Ct. 1986 madeit clear that the definition of intellectual disability is 1 “Ethnic correction”is also a matter of first impression underthe federal Constitution. Last term, this same issue was presented to the United States Supreme Court in Hernandez v. Stephens (2014) 134 S.Ct. 1760, cert. den., (on petition from the unpublished decision of the Fifth Circuit, Hernandez v. Stephens (2013) 537 Fed.Appx. 531). In that case, the Texas court had allowed the Petitioner’s IQ scoresto be “adjusted” from somewherein the 50's to a “70" based on “Mexican norms.” The United States Supreme Court declined to hear the Petition and Mr. Hernandez was executed in April 2014. not rigid and that the Court will consult the current medical references. The Court quoted from the 2010 AAIDD 11th ed. as well as the American Psychiatric Association, Diagnostic andStatisticalManualV(Fifth Ed., 2013) (hereinafter, DSM-V)and other materials which were written subsequentto the opinion in Atkins v. Virginia (2002) 536 U.S. 304. InHall, the Court, concerned with the first prong of intellectual disability, said, “The question this case presents is how intellectual disability must be defined in order to implement these principles and the holding of Atkins. . . . [I]t is proper to consider the psychiatric and professional studies. -...” Hall v. Florida supra. at 134 S.Ct. 1993. The Court considered the AAIDD 11" ed., not earlier editions. Respondenthere additionally criticized Dr. Khasanov for making the statement that the DSM-IV-TR was “lagging behind.” (Resp. Brief 98) In Hall, the Supreme Court embraced the new version, the DSM V, not the IV- TR. As predicted, the DSM V adopted the same description of adaptive behavior as the AAIDD 11" ed. (Pet. Reply 30-34). Hall, therefore, putsto rest the claim that the Referee was boundby the citation in the Atkins footnote to prior editions of the AAIDD (formerly AAMR)or the DSM IV-TR manuals. This is consistent with this Court’s statement in People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1012 that intellectual disability “‘is not measured accordingto a fixed intelligence test score or a specific adaptive behavior deficiency, but rather constitutes an assessmentofthe individual's overall capacity based on a considerationofall the relevant evidence.’” The Referee’s use of current medical authorities was proper. II. RACE BASED "ETHNIC CORRECTIONS"TO IQ SCORES ARE BOTH UNCONSTITUTIONAL AND UNSUPPORTEDBY THE EVIDENCE Dr. Charles Hinkin, whotestified in the presentcase, alsotestified in In re Champion (2014) 58 Cal.4th 965 in which this Court summarized: ". . Dr. Hinkin disagreed with Dr. Riley's method of scoring the tests given. He explained that because Blacksordinarily perform more poorly than Whites on thosetests, it is preferable to use ethnically corrected norms when scoring the tests, which Dr. Riley did not do." Jd. at 988. This Court deferred ruling on the issue since it was not before the Court: "We need not resolve this dispute. We did not ask the referee to decide whetherpetitioner was neuropsychologically impaired at the time of his capital trial..." Jd. at 989. In light of this deferral, the Court may chooseto addressthe issue here.’ 2 Petitioner, of course, supports the Referee’s decision not to add points to Petitioner’s IQ score and wascontentnot to regard it as a serious issue 5 Here, the same Dr. Hinkin testified that “African Americans” generally score 15 points lower than “white individuals” on IQ tests although the gap narrowedin recent years to about a 10 point range. (12 RHT 2011). He said that race is a “proxy”for differences in “educational opportunities, occupational opportunities, the kinds ofthings that would — that would affect IQ test performance.” (12 RHT 2011-2012). Dr. Hinkin said that Petitioner was not from a “mainstream” group (12 RHT 2008-11) and speculated, without doing anytesting of his own,that his poor | performance might be duetoilliteracy rather than mental retardation (12 RHT 2000-2001) even though he admitted that the Wechsler tests did not involve reading. (12 RHT 1992).? First, conceptually, IQ scores are based on a comparison of the individual to the norm which is the average intelligence ofthe community as a whole.‘ Thereis no logical, legal or clinical basis to create subgroups based on the lack of evidence and the lack of medical authority. However, in light of this Court reserving the issue in Champion andin light of the United States Supreme Court declining to consider the issue in Hernandez, Petitioner respectfully seeks leave to address the issue morefully. 3 Even takingall ofthese concerns into account, Dr. Hinkin concluded:“I think that the I.Q. Subaverageintellect prong is probably closerto the mental retardation. I don't think that's it, but that one is certainly in the ballpark.” (12 RHT 2018) 4 “IQtests are norm based, which meansthat standard scores are based on the 6 and comparean individual to such subgroups. The Referee would have been correct in refusing to make such an adjustment on that basis alone. Second, Dr. Hinkin’suse ofthe race of the Petitioner (as a proxy or otherwise), both in this and the Championcase,to classify him for additional points is a violation of the equal protection under the United States Constitution.° The only place in Dr. Hinkin’s testimony in the present case where he made any attempt to quantify the addition of points was wherehesaid that “African Americans”test 15 (or more recently, 10) points lower than “white people.” (12 RHT 2011) In the Champion case, his position is summarized: “Blacks ordinarily perform more poorly than individual’s performance in comparisonto that of others of the same age used in the standardization sample. The normsare intendedto reflect the population of the larger society which, in the case of the Wechsler and | Stanford-Binettests, is the most recent census of the United States.” Stephen Greenspan and J. Gregory Olley, Variability of IO Test Scores, in Edward Polloway (Ed.) The Death Penalty and Intellectual Disability, American Association on Intellectual and Developmental Disabilities, AAIDD,(Washington, D.C., 2015) p.145. 5 Theissue ofracial classification was presented to the United States Supreme Court in the Hernandez case in the “Brief ofPublic Law Scholars as Amicus Curiae in Support of Petitioner” (January 2014), filed in Hernandez v. Stephens, Case Number 13-8004. Therefore, the issue of “ethnic correction” to IQ scores is a matteroffirst impression both for this Court and the United States Supreme Court. 7 Whites.” Champion at 988. In both cases, he is classifying the Petitioner for special consideration based on Petitioner’s race even if he says race is a “proxy.” It is true that the average scores ofpeople ofa particularrace® or other sub-groups may deviate on the average from the norm fora variety of reasons but those reasonsare race-neutral.’ Nevertheless, Petitioner’s race as “African American”is being used as somesort ofrough approximation to select him over a “white person” with a similar score for execution. In light of the fact that this Court deferred ruling on Dr. Hinkin’s “ethnic correction” testimony in Champion and because ofRespondent’s 6 The conceptofrace,itself, is not scientific and, therefore, problematic. "Raceis a socially constructed concept, not a biological one. It derives from people's desire to classify." Sternberg, Robert J; Grigorenko, Elena L; Kidd, Kenneth K, Intelligence, Race, and Genetics, 60 American Psychologist 46-59 (2005). Such efforts to classify are arbitrary and subjective not genetic. American Anthropological Association Statement on 'Race' and Intelligence, American Anthropological Association (December 1994). 7 Dr. Hinkin concedesthat the disparities in test scores are not inexorably linked to race. (12 RHT 2011) Researchers continue to study the race- neutral variables relating to intelligence. See, Richard E. Nisbett, Joshua Aronson, Clancy Blair, William Dickens, James Flynn, Diane F. Halpern and Eric Turkheimer, Intelligence: New Findings and Theoretical Developments, 67 American Psychologist 130-160 (2012). 8 reliance on his testimony regarding raceas a “proxy”in the present case,® this issue should be addressed for whatit is. Put bluntly, if'a “white person” _and an “African American” stand before the court with the sameIQ,ceteris paribus, “ethnic correction” meansthat the governmentcan kill the “African American”but not the “white person.” Classification by race for different treatment under the law for any significant right, let alone a question of life or death, is a violation of the equal protection under the Fifth and Fourteenth Amendment. Respondent’s claim here is a tortured twist on “invidious discrimination” based on statistical effect whichis traditionally invoked to protect the rights of minorities.’° Wherea statistical pattern of racial discrimination is demonstrated, with an appropriate factual showingthatit is “invidious,”| race might be usedto correct the injustice. 8 Andthe fact that the United States Supreme Court has yet to consider “ethnic corrections” per denial of certiorari in Hernandez, supra. 9 The “blunt”part ofthis characterizationis attributed to Dr. Michael Radelet, University of Colorado,in private conversation following an earlier article published on the subject by the undersigned. 10 This is not a “zero sum” gameasit is with a finite numberofcollege admissions, for instance, so the rights ofWhite death row inmatesare not implicated as in Baake v. Regents ofthe University ofCalifornia (1978) 438 U.S. 265. “Ethnic correction” here just makes African Americans more susceptible to death. Even in those cases where the purposeis benign, there mustbe evidence establishing actual discrimination, not just discriminatory effects. In Washington v. Davis (1976) 426 U.S. 229 the United States Supreme Court held that the mere evidence of average lowertest scores by members of a race did notentitle persons, by virtue ofbelonging to that race, to an adjustmentoftheir scores to gain eligibility for a job. Here, where the purposeis far from benign,the use of race to adjust scores for death violates equal protection. Third, assuming arguendothat the basis of the theory to adjust scores is "socioeconomicstatus" and not on race (contrary to Dr. Hinkin's reliance on race to classify the Petitioners both here and in Champion), there is nothing more than speculation to support the opinion. The Referee correctly decided,first, there was a lack of evidence to support an adjustment and, second, an adjustment was not supported by medical science: “It is impossible to know how much,if any, adjustment should be made in petitioner’s IQ scores for socioeconomic factors. In light of the AAIDD’srecent pronouncementthat adjustment of IQ scores for such factors should not be made, the referee declines to make any adjustment to the scores.” (Report p. 19) This Court, in Sargon v. University ofSouthern California (2012) 55 10 Cal.4th 747, held that scientific opinion cannot be based on mere speculation and must be based on an adequate factual and scientific foundation. As the Referee found, there was only speculation and no factual or scientific basis. Fourth, recent scientific research has further confirmed that Dr. Hinkin’s speculation was, in fact, wrong. Hesaid that, “when you are dealing with an individual who, for whatever reason, they’re dissimilar from the mainstream . . . the chancesare their IQ test score and their level ofintelligence differing increase.” (12 RHT 2009) This unsubstantiated claim really has a part “a” and a part “b” -- and he is wrong on both parts. In part “a” of that opinion, Dr. Hinkin refers to “for whatever reason” and then speculates. However, there was “reason” knownat the time of the experts’ testimony in 2011. Dr. Khasanov,testified that "the combination of biological, psychological, educational, and behavioral factors" including malnutrition, in utero alcohol exposure, neuronal pruning and possible exposure to toxins may cause actual neurological deficits in intellectual ability. (9 RHT 1423-1428) Since then, scientific knowledge expanded throughrecent studies in epigenetics'! which haveidentified actual gene 11 Min Zhao, Lei Kong, and Hong Qu, A systems biology approachto identify intelligence quotient score-related genomic regions, andpathways relevant to potential therapeutic treatments, 4 Scientific Reports 4176 (2014). 11 expression patterns that result from this type of deprivation.’ Part “b” of Dr. Hinkin’s opinion is that lower test scores “chances are” reflect a difference between IQ andactualintelligence. That is also based on speculation and is wrong. The evidence before the Referee, confirmed by the more recent research on epigenetics and gene expression, demonstrates that actualintelligence is impaired and that impairmentis measuredbythe IQ tests. It is not mere lack of motivation or some other behavioral shortcoming,it is a neurological impairment. Ironically, people (regardless of race) who are subjected to theselife experiencesare just the people who reduce the average for whatever group in which they are included (racial or otherwise). The further irony is that the very people whoare,in fact, intellectually impaired by these adverse influencesare the ones whom Respondent seeks to make moreeligible for execution. The Referee was correct andit is time for this Court to reject “ethnic corrections”or “race as a proxy” as unconstitutional and adjustments as unfounded by evidenceor science. 12 Anne Schafer, Alexander Tarakhovsky and Paul Greengard, Epigenetic Mechanisms ofMental Retardation, in S.M. GasserandE.Li (eds.), Progress in Drug Research (2011); Rachael Yehuda (Ed.) Molecular Biology ofPost Traumatic Stress Disorder, in 30 Disease Markers 61 (2011). 12 Dated: May 4, 2015 Respectfully Submitted, | SANGER SWYSEN & DY BK4aM.saad, Attorney for _ Petitioner Robert Lewis, Jr. 13 CERTIFICATE OF WORD COUNT I have run the “word count” function in WordPerfect and hereby certify that this brief contains 2790 words, including footnotes. Dated: May4, 2015 i“ f By:4 RobértM. Sanger, Attorney for J titioner Robert Lewis, Jr. 14 PROOF OF SERVICE I, the undersigned declare: I am overthe age of 18 years and not a party to the within action. I am employedin the County of Santa Barbara. My business address is 125 E. De La GuerraStreet, Suite 102, Santa Barbara, California, 93101. On May 4, 2015, I served the foregoing document entitled: PETITIONER’S SUPPLEMENTAL BRIEF ON THE MERITSon the interested parties in this action by depositing a true copy thereof as follows: SEE ATTACHED SERVICELIST _X_ BY U.S. MAILE-I am readily familiar with the firm’s practice for collection of mail and processing of correspondence for mailing with the United States Postal Service. Such correspondenceis deposited daily with the United States Postal Service in a sealed envelope with postage thereon fully prepaid and deposited during the ordinary course of business. Service made pursuantto this paragraph, upon motion ofa party, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is moree than one day after the date of deposit. __ BYFACSIMILE-Icausedthe above-referenced document(s) to be transmitted via facsimile to the interested parties at BY ELECTRONIC MAIL.I caused the documentto delivered by electronic mail to the interested party at the email address indicated above. BY HAND- I caused the document to be hand delivered in a sealed envelope to the interested parties at the address above. XX STATE-I[ declare under penalty ofperjury underthe laws ofthe State of California that the aboveis true and correct. FEDERAL I declare that I am employedin the office ofa memberofthe Bar ofthis Court at whose direction the service was made. Executed this May 4, 2015 at Santa Barbara, €alifornia. [a Jacdb WsSwanson SERVICE LIST Brian R. Kelberg ‘Deputy District Attorney 320 West Temple Street, Suite 540 Los Angeles, CA 90012 Margaret E. Maxwell Supervising Deputy Attorney General Office of the Attorney General 300 S. Spring Street, Suite 500 Los Angeles, California 90013 The Honorable Robert J. Perry Los Angeles Superior Court Dept. 104 210 West Temple Street Los Angeles, CA 90012 Steve Parnes California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Robert Lewis, Jr. B-45344-IEB-63 San Quentin State Prison San Quentin, California 94967