April 7, 2017 No. 16-7685 IN THE SUPREME COURT OF THE UNITED STATES TAURUS CARROLL, Petitioner, V. STATE OF ALABAMA, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE ALABAMA SUPREME COURT REPLY BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI BENJAMIN W. MAXYMUK 379 Felder Avenue Montgomery, AL 36104 PH: (334) 652-2531 benj amin.maxymuk@gmail.com Counsel ofRecordfor Petitioner Taurus Carroll TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITED AUTHORITIES ii ARGUMENT 2 I. MR. CARROLL IS ENTITLED TO RELIEF PURSUANT TO MOORE V. TEXAS 2 A. The Use of a Strict IQ Cutoff Score Con?icts With Current Medical Standards 2 B. Overernphasizing Adaptive Violates Current Medical Standards 4 C. The Adaptive De?cits That Mr. Carroll Suffers From Manifested During His Formative Years 6 CONCLUSION 8 TABLE OF CITED AUTHORITIES CASES Atkins v. Virginia, 536 U.S. 304 (2002) 1 Carroll V. State, No. 2015 WL 4876584 (Ala. Crim. App. Aug. 14,2015) 1,2,5 Ex parte Briseno, 135 1 (Tex. Crim. App. 2004) 4,5 Ex parte Perkins, 851 So. 2d 453 (Ala. 2002) 1,2,3 Hall v. Florida, 134 S. Ct. 1986 (2014) 3 Moore v. Texas, No. 15?797, 2017 WL 1136278 (US. Mar. 28, 2017) passim STATUTES Sup. Ct. R. 10 1 ii REPLY BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI Since the ?ling of Mr. Carroll?s initial Petition for Certiorari and the State of Alabama?s Brief in Opposition, this Court issued its decision in Moore v. Texas, reaf?rming that ?adjudications of intellectual disability should be ?informed by views of medical experts,? Moore V. Texas, No. 15-797, 2017 WL 1136278, at *4 (US. Mar. 28, 2017), and holding that the Texas court?s application of outdated medical standards in determining that the defendant was not intellectually disabled, and therefore exempt from execution, violated the Eighth Amendment protections established in Atkins v. Virginia, 536 US. 304 (2002). As in Moore, here, both the circuit court and the Alabama Court of Criminal Appeals relied on the Alabama Supreme Court?s Opinion in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), and applied outdated medical standards to determine that Mr. Carroll is not intellectually disabled. Carroll v. State, No. CR-12-0599, 2015 WL 4876584 (Ala. Crim. App. Aug. 14, 2015). To ensure that the lower courts? ?unfettered discretion? does not render ?lgin_s a ?nullity,? m, 2017 WL 1136278, at 14, it is appropriate for this Court to grant certiorari pursuant to Supreme Court Rule 10(0) and remand this case back to the lower court for further consideration in light of Moore v. Texas. See Sup. Ct. R. 10(c) (listing, as basis for granting certiorari review, that ?a state court . . . has decided an important question federal question in a way that con?icts with relevant decisions of this 1 Court?). ARGUMENT 1. MR. CARROLL IS ENTITLED TO RELIEF PURSUANT TO MOORE V. TEXAS. In Moore v. Texas, this Court determined that the factors the Texas Court of Criminal Appeals applied to evaluate the defendant?s Atkins claim of intellectual disability, based on superseded medical standards, created an unacceptable risk that a person with intellectual disabilities would be executed in violation of the Eighth Amendment. Moore V. Texas, No. 15?797, 2017 WL 1136278, at *2 (US. Mar. 28, 2017). As in Moore, in the present case, the lower courts relied on similarly outdated medical standards in employing a strict IQ cutoff score and ?overemphasiz[ing]? Mr. Carroll?s ?perceived adaptive Moore, 2017 WL 1136278, at *1 1, instead of appropriately considering the significant evidence of Mr. Carroll?s adaptive de?cits. Given the signi?cant evidence that Mr. Carroll is intellectually disabled, and therefore exempt from execution, it is apprOpriate for this Court to grant Mr. Carroll?s petition for writ of certiorari, vacate and remand to the lower courts for further consideration pursuant to this Court?s recent opinion in Moore v. Texas. A. The Use of a Strict IQ Cutoff Score Con?icts With Current Medical Standards. In this case, the lower court relied on Ex Parte Perkins, 851 So. 2d 453 (Ala. 2002), to hold that ?Carroll?s full scale IQ score of 71 places him outside of the Alabama Supreme Court?s de?nition of mentally retarded.? Carroll v. State, No. 2015 WL 4876584, at *8 (Ala. Crim. App. Aug. 14, 2015); w, Resp?t?s Br. Opp?n 15 capital offender must prove that he or she satis?es all three elements of the intellectual disability that the Supreme Court of Alabama announced in to establish that he or she is intellectually disabled?). In Moore, however, this Court reaf?rmed its earlier directive in Hall v. Florida, 134 S. Ct. 1986 (2014), that where, as here, the IQ score is ?close to, but above, 70, courts must account for the test?s ?standard error of measurement.? m, 2017 WL 1136278, at Instead of accounting for the standard error of measurement by placing the IQ score within a range of scores, the lower courts in this case instead required Mr. Carroll to ?establish that he was at the lower end of the range,? a position the State of Alabama now asserts in this Court. SQ Resp?t?s Br. Opp?n 22 (?Carroll did not meet his burden to establish that it is more likely than not that his IQ score is 70 or below based on the mere possibility that his true IQ falls at the low end of the standard error of measurement?). But as this Court noted in Hall, ?the professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single ?xed number but as a range,? ?all,134 S. Ct. at 1995; see also Moore, 2017 WL 1136278, at 10 test?s ?standard error of measurement ?re?ects the reality that an individual?s intellectual functioning cannot be reduced to a single numerical ?ajl,134 S. Ct. at 2001 disability is a condition, not a As such, the lower courts? determination to the contrary con?icts with current medical standards and this Court?s decisions in Moore and Hall. B. Overemphasizing Adaptive Violates Current Medical Standards. As in Moore, the consideration below of Mr. Carroll?s adaptive functioning ?deviate[s] from prevailing clinical standards,? by ?overemphasiz[ing] Mr. [Carroll]?s perceived adaptive Moore, 2017 WL 1136278, at *11. In this Court, the State similarly relies on these perceived which in many ways mirror the Briseno factors rejected by this Court in to argue that ?Carroll cannot prove the second prong of the mental retardation de?nition.? Resp?t?s Br. Opp?n 23. For example, the State argues that Mr. Carroll ?has no problem communicating with others and has no problems following directions? as evidence of an adaptive strength. Resp?t?s Br. Opp?n 23. This mirrors the Briseno factor about whether a defendant can ?respond coherently, rationally, and on point to oral or written questions.? Moore, 2017 WL 1136278, at n.6. Similarly, the State of Alabama argues that Mr. Carroll?s ?behavior ?In contrast to the lower courts? opinions, and the State?s argument to this Court, current medical standards support the application of the effect? to describe ?overly high scores due to out-of-date test norms.? American Association, THE DIAGNOSTIC AND STATISTICALMANUAL OFMENTAL DISORDERS, 37 (Am. Ass?n 5th ed. 2013) (DSM-V). In this case, Dr. Shaffer testi?ed that the Effect? reduced Mr. Carroll?s 1Q Score to an IQ score of 69.5. (R. 123.) before the crime is not consistent with intellectual disability because of the planning aspect of the crime and because his actions after the crime are not consistent with mental retardation,? and cites Mr. Carroll?s decision to leave the scene of the crime, discard the knife he used, and wash the blood off of his hands. Resp?t?s Br. Opp?n 23. This factor aligns closely with another Briseno factor this Court highlighted in Moore regarding whether an individual could ?hide facts or lie effectively in his own or others? interests.? Moore, 2017 WL 1136278, at n6. Finally, the State argues that evidence of adaptive functioning includes Mr. Carroll?s ability to ?make decisions and to follow through on the decisions he makes.? Resp?t?s Br. Opp?n 23. Again, this tracks closely with the second Briseno factor cited in Moore: whether an individual has ?formulated plans and carried them through or is his conduct impulsive?? Moore, 2017 WL 1136278, at n.6.2 Moore makes clear that by relying on such evidence, the lower courts and the State have ?deviated from prevailing clinical standards,? Moore, 2017 WL 1136278, at *11, because they overemphasized Mr. Carroll?s perceived adaptive ?when the medical community focuses the adaptive functioning inquiry on adaptive deficits.? 1d. As with the ?wholly nonclinical Briseno factors,? Moore, 20 17 WL 1 136278, at 14, the State?s evidence 2Additionally, the State and the lower court routinely looked to behaviors Mr. Carroll has exhibited while incarcerated as evidence that he lacks the adaptive de?cits necessary to ?nd him intellectually disabled. For instance, both the State and the lower court emphasized Mr. Carroll?s reputation as a good kitchen worker as evidence that he was not intellectually disabled. See Carroll, 2015 WL 4876584, at Resp?t?s Br. Opp?n 23. However, this Court in Moore warned against placing too much emphasis on the defendant?s ?improved behavior in prison? because ?clinicians caution against reliance on adaptive developed in controlled settings.? Moore, 2017 WL 1136278, at *11. only serves to ?advance lay perceptions of intellectual disability,? m, 2017 WL 1 136278, at 13, stereotypes which the medical community has ?endeavored to counter.? I_d. Indeed, the evidence of Mr. Carroll?s adaptive de?cits is signi?cant. Dr. Shaffer testi?ed that he conducted the Halstead Reitan Test Battery and Mr. Carroll scored in the impaired range on nine of the fourteen measures on this exam, and was below average on all the other measures but one, for which he scored average. (R. 111.) Additionally, Mr. Carroll scored in the impaired range on four other neurological tests. (R. 12.) Additionally, when Dr. Shaffer administered the Vineland Adaptive Behavior Scales (Vineland-Z) and the Adaptive Behavior Assessment System (ABAS-Z) on Mr. Carroll, he scored in the lowest percentile on both the Vineland-2 and ABAS-2. (R. 1 19.) Speci?cally, Mr. Carroll had serious adaptive functioning de?ciencies in communication, self-care, home living, social/interpersonal skills, self?direction, functional academic skills, and health and safety, or seven out of the ten areas evaluated. (R. 119-20.) Mr. Carroll scored in the ?rst percentile in those seven de?cient areas; 99 out of 100 adults living in the US. would score better than he did. (R. 119, 789: seven-year-old child would have the same level of independent skills, independent functioning in preparing food, keeping track of his clothing, keeping up with himself, and that kind of thing?). C. The Adaptive Deficits That Mr. Carroll Suffers From Manifested During His Formative Years. While acknowledging that the evidence ?showed that Carroll suffered from signi?cant de?cits in adaptive functioning during the developmental period,? the State nevertheless 6 relies on IQ tests given to Mr. Carroll when he was 7 and 10 years old to argue that ?these scores place Carroll well above intellectually disabled.? Resp?t?s Br. Opp?n 26. However, the record indicates these tests were administered to Mr. Carroll in a group setting. (R. 896.) Current medical standards make clear that invalid scores often result from tests given in a group setting. at 37. Furthermore, both of these IQ scores were obtained prior to Mr. Carroll suffering serious head trauma as a result of an incident when he was 14, an injury that ?changed [Mr. Carroll] in a very big way.? (R. 869-70.) Indeed, the trauma that Mr. Carroll survived throughout his youth provides ample evidence that he suffered from adaptive de?cits prior to turning 18 years old. As this Court noted in more, a ?record of academic failure, along with the childhood abuse and suffering,? are ?traumatic experiences? that ?count in the medical community as ?risk factors? for intellectual disability.? Moore, 2017 WL 1136278, at 12. These same risk factors existed for Mr. Carroll during his formative years. For instance, the evidence establishes that Mr. Carroll was anally raped when he was two years old. (R. 59.) Mr. Carroll was also beaten so severely by his mother with belts and extension cords that he often chose not to go to school out of embarrassment. (R. 58, R. 795.) Additionally, Mr. Carroll struggled in school during his youth. He twice failed both the ?rst and eighth grades. (R. 56.) He was placed in special education and given one-on-one teachers who tried to help, but he still had great trouble learning. (R. 56.) CONCLUSION For the foregoing reasons, Petitioner prays that this Court grant certiorari, vacate and remand Mr. Carroll?s case to the Alabama Court of Criminal Appeals for further consideration in light of Moore V. Texas. April 7, 2017 Respectfully submitted WM 379 Felder Avenue Montgomery, AL 36104 PH: (334) 652-2531 benj amin.maxymuk@gmail.com Counsel of Record for Petitioner Taurus Carroll No. 16-7685 IN THE SUPREME COURT OF THE UNITED STATES TAURUS CARROLL, Petitioner, v. STATE OF ALABAMA, Respondent. PROOF OF SERVICE I, Benjamin Maxymuk, a member of the Bar of this Court, declare that on April 7, 2017, as required by Supreme Court Rule 29, I served the enclosed Reply Brief in Support of Petition For Writ of Certiorari on the Alabama Attorney General by depositing an envelope containing the above document in the United States mail with ?rst-class postage prepaid and properly addressed to: Steven Marshall Beth Jackson Hughes Of?ce of the Attorney General 501 Washington Ave. Montgomery, AL 36130 Respectfully submitted, u/ ?6 Ber?i?i?? w. Wk 379 Felder Avenue Montgomery, AL 36104 PH: (334) 652-2531 benjamin.maxymuk@gmai1.com April 7, 2017 Counsel of Record for Petitioner Taurus Carroll