Oral arg. – Miss.S.Ct. – Oct. 6, 2014

At 1:30 p.m., Monday, October 6, 2014, the Court will hear argument in Sherwood Brown v. State.

Brown is on death row for  killing a thirteen-year-old girl in 1993.  His conviction was affirmed on direct appeal.  Brown v. State, 690 So.2d 276 (Miss. 1996).   In 2003, the Miss.S.Ct. allowed Brown to proceed on his claim that he was too intellectually incapacitated to be put to death under the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002).  The trial court conducted a hearing in early 2013 after which the court ruled that Brown did not meet the standards enunciated in Atkins and Chase v. State, 873 So.2d 1013 (Miss. 2004).  Brown has appealed.

Brown’s brief.

State’s brief.

Brown’s reply brief.

The argument can be viewed here at 1:30.

(Judging from the briefs, the term “mentally retarded” can still be used in the legal arena even if no where else.)

SInce this is a death penalty case, it is being heard en banc. There are seven chairs.  We’re missing Justices Lamar and King.

John Lane from Texas is arguing for Brown.

JL: Brown tested at 75 in 2007 and 2012. That;’s the upper cutoff

Chandler: was he tested before 18?

JL: No,

Randolph:  But the standard deviation means it might be higher?

JL:  Atkins says 75 or below qualifies

Randolph: Qualifies for a hearing?

JL: That’s not my understanding.  Brown is mildly MR and the experts testified that mild MR persons have the ability to do things.  So the focus at the Atkins hearing should not be on Brown’s abilities but rather his disabilities.

Waller:  I think where you are going is to address the major adaptive function deficits.  I suggest you move toward that. WHat  is his strongest deficit.

JL: work.  His social security records were admitted.  He came from a poor family and there was not a lot of evidence esp. since the hearing was many years after he was incarcerated.

Waller: he had 16 or 17 jobs.  Drove trucks for Budweiser.

JL:  he drove for a distributor.  If he had worlked for Budweiser, Hunt is a large company.  They would have had records.

Chandler: are you disputing that he drove for J B Hunt?

JL:  The state doctors got that evidence from Brown himself but there’s a phenomenon of a cloak of confidence.

Chandler: anything else he might have misled them on.

JL: there’s no record of Brown having a commercial drivers licence.

Coleman (?  I think.  Having to id by voice):  Why wasn’t anyone who knew him before he was 18 interviewed.

JL: his wife was the only one interviewed and she met him in his 20s. But she knew about him before.

Waller: Why would she know what he was like before he was 18.

JL: they lived with Brown’s mother and father. SO she gleaned evidence of what he was like before he was 18. THey interviewed people who knew him before 18.  Like his father but his father has mental health issues.  That runs in teh family.  His brother has been in Whitfield for 20 years.

Randolph: what did the father and coach say?

JL: his father said he drove a truck.  But we believe that the father was trying to protect his son, deny that he was retarded.  Brown’s mother died in 2005.  Atkins was decided well after Brown was incarcerated, so the evidence was hard to come by.

Randolph: what are you saying specifically the trial court got wrong?

JL: It focused on his abilities.  That was improper because mildly mr people have abilities.

Randolph: Doesn’t Atkins call for significant problems?

JL: it would depend on the circumstances.  We believe the trial court should have focused on the deficits. The social sec. records show 17 jobs over ten years.  MAde very little money.  He told the state’s experts that he was fired from his jobs because he didn’t have the skills even though these were not highly skilled jobs.

Pierce: was there any evidence of drugs?

JL: he said he got drink at Budweiser but was  not fired for that.

Randolph:  ARe you saying that because he had 17 jobs, that proves it?

JL:  Under a preponderance of the evidence standard, yes.  That shows a significant deficit in the area of work.

Chandler: it does indicate that his adaptive functioning is such that he is capable of getting these positions.  I can’t imagine a person who is MR being able to complete the application and get a job at J B Hunt.

JL: 80% of MR people are mildly MR and most function at a fairly high level and have jobs.

Coleman:  Drug use?

JL: there was drug use but no evidence that impaired his work.  The state’s expert and the court found that he was fired from all from all his jobs because of drugs.  But the expert had to recant that at trial. Also. look at his school records.  He failed first grade.  In third he got all Ns and Us.  In sixth he had the designation “learning disability” on his records.  After that he was in special ed.

Waller: What about the WRAT showing he read just below the 9th grade level.

JL: Mildly MR people can learn things,.  The focus, though, should be what happened at the time of the crimes.

Waller:  You agree the military writes everything at the 9th grade level?

JL: I don’t know.  I’ll accept that.  We don’t know to what extent his abilities have improved since incarceration.  But if you look at the standardized testing.  In 5th grade his math was at 2d grade.   WHen he should have been in 7th, he had a 4th grade reading level.

Kitchens: You’re saying the trial court correctly applied our case law, but based on the Cornell Law Rev Article, the focus should have been on what Brown could not do. And our case law is wrong in that regard.

JL: I don’t think the caselaw is wrong; it just hasn’t addressed this.

Kictchens; Has any court in the country adopted that?

JL: I don’t know.

The State:

Pierce: what;s in the record to refute Brown’s argument?

State: the tests showed that he was moving forward.  His grade level was increasing each year.

Dickinson:  In fifth grade he had 2d grade skills and he improved from that.  That’s what yiu are tellingus.

State:  Yes.  He was

Dickinson: are you saying that MR persons have no chance of improving?

State: no.

Dickinson:  Why isn’t that evidence of an adaptive functioning problem?  He made some progress but he was way behind.

State:  he continued to be promoted and got passing

Dickinson: the evidence was that he was promoted bbecause of hsi size?

State: that was one teacher’s opinion.

Dickinson: We should disregard that and assume he was promoted based on merit?

State:  SHe was his teacher for one year.  The WRAT showed that his abilities were on the 7th grade level.

Dickinson: but his teacher stated that the reason he did better on tests was because he got easier tests?

State: that was her opinion. And she was equivocal.  SHe believed that he was taking easier tests.  He failed the first grade but afterthat he was promoted.

Chandler: what age did he leave school?

State: I believe he finsihed h.S. not sure what age.

Chandler:  Was there any focus on the short form test of academic aptitude (maybe 5th grade).  We have his school records.

STate:  You have the records. We didn’t have testimony on the short form.

Dickinson: One problem I have is that the court said he could not conclude that Brown suffered from a disability that met the criteria of MR.  That seems circular.  I thought the academic record was part of the test.  The judge seemed to put a standard on how severe the academic deficits had to be to qualify for MR.

State: The judge had a well reasoned opinion.  The record showed Brown had some academic issues but did not rise to  . . . Chandler:  His coach was interviewed.   What coaches?

State: one was a jr high coach.  And another coach from high school.  They only pointed to a difficulty of telling left from right. The h.s. coach testified about Brown’s drug use.   Simply because Brown could not keep a job for long, that’s not an indicator of MR.

Dickinson:  As I read the trial judge’s order, he seemed to have an opinion about the expected pattern of drug abusers.  This is how they are.  I don’t know that there was any evidence in the record of the expected behavior of drug abusers.  He said in his order that the evidence fits the expected pattern of a drug abuser.  Do you think that’s appropriate?

State:  The trial judge has to weigh the testimony.

Dickinson: But what testimony was there about the expected pattern of drug abusers. If there was no evidence of that, how could the judge insist that the evidence was indicative of drug abuse instead of deficient functioning  when there was no evidence of how drug users behave.

State: there was no evidence of how drug users behave.  There was eviudence of drug use.  It’s certainly not error.

Kitchens.  But that’s not  something the court can take judicial notice of.

Dickinson:  The judge chalked up Brown’s behavior to what you would expect from a drug abuser.  And I find that is not appropriate given that there was no expert testimony on that. How many instances of drug use are there in the record.

State: Don’t have an exact number.

Kitchens: Had he been adjudicated delinquent in Y.C.

State: I think they had a problem getting those records?

Kitchens: any other evidence.  Convictions, treatment, etc.

State: no.

Kitchens: so we don’t know what type of drugs either?

State: no.

Dickinson: There are 4 factors under Chase. Does the state concede IQ of 75 or less and that he is not malingering.

State: yes.  But 75 takes you to the next prong where you look at adaptive functioning. 75 is not two deviations below the mean. That would be 70.

Dickinson:  Are you saying we should consider whether the 75 is sufficient.

State: The 75 gets him to the next step.  Thorson v. State.

Dickinson:  This issue is closed, isn’t it?

State: yes. And he’s not malingering.

Dickinson: we’re looking at 3) adaptive deficits and 4) onset prior to 18.

Waller:  So what else would support the judge’s opinion if you discount drugs.

State: Brown had an anger issue.  He got into arguments at his jobs that got him fired.  The mere fact that he had multiple jobs was not evidence of impairment. As J. Chandler pointed out, he could get jobs.

Dickinson: what about communication? Zimmerman testified that he had considerable deficits in communication. In that test (Vineland) there were substantial deficits and the trial court did not address it.

State: we dispute any of Zimmerman’s testimony.  The Vineland was administered to someone who didn’t know Brown prior to age 18.  The scores were contradicted by the evidence.  It goes to weight.

Dickinson: I’m  more concerned that it was never addressed by the trial court.

State: I thought the judge addressed the Vineland.

Dickinson:  I could not find where the judge addressed communication.

State:  the judge addressed all the categories.  The WRAT showed scores that  he had a year 10 ability to read.

Waller: was there any testimony that scores go up when you are in prison.

State: No.

Dickinson.  Your brief says that the Vineland was noted in the trial court’s order.

State: he mentioned that it was administered.

Lane for Brown:

JL: Dr Storer conceded at trial that it was improper to test on the subjects themselves.

Waller: he did not say that with regard to the WRAT

JL: no.

Kitchens:  WHat reason?

JL: I don’t think he explained it.  But Goodin came out and talked about administering a test many years later.  When these persons enter a structured environment, their scores change.   When he was a kid, Brown was directed to Communicare and that person said she could not even treat him. The judge here used the right criteria. he just applied them in the wrong way. Brown dropped out in the ninth grade.

Justice Waller thanks the attorneys for working pro bono.

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