PASSAGE OF THE DAY: "Although it is rare for a judge to rule against an agreement between prosecutors and defense attorneys, the decision will not be final until Senior Judge Walter Kurtz rules on the case. Federal public defenders Kelley Henry, Amy Harwell and Richard Tennent also filed a brief by Wednesday's deadline asking the judge to reset Black's conviction. "The factual record developed since 2004, but never considered by any court, is
overwhelming: Mr. Black is intellectually disabled," they wrote. Black's intellectual disability claim joins a separate push to find he is not competent to be executed, in the case the courts were to go ahead with the death sentence. But if Kurtz does find in favor of this agreed determination, his case won't get that close to execution."
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STORY: "Nashville DA says death row inmate should not face execution due to intellectual disability," by Reporter Mariah Timms, published by The Nashville Tennessean, on March 10, 2022.
GIST: "Tennessee death row inmate Byron Black is intellectually disabled under the definitions of a new state law and his death sentence should be commuted to life in prison, District Attorney Glenn Funk wrote in a filing submitted this week in the case.
Black, 65, was convicted in Davidson County of murdering his girlfriend Angela Clay, 29, and her daughters Latoya, 9, and Lakesha, 6, at their home in April 1988.
Prosecutors said he was in a jealous rage when he shot the three. At the time of the killings, Black was on work release while serving time for shooting and wounding Clay's estranged husband.
Funk filed the brief in response to an ongoing push by Black's defense attorneys to save him from death on the grounds he is significantly intellectually disabled — so much so he should not be eligible to receive the death penalty.
Although it is rare for a judge to rule against an agreement between prosecutors and defense attorneys, the decision will not be final until Senior Judge Walter Kurtz rules on the case.
Federal public defenders Kelley Henry, Amy Harwell and Richard Tennent also filed a brief by Wednesday's deadline asking the judge to reset Black's conviction.
"The factual record developed since 2004, but never considered by any court, is
overwhelming: Mr. Black is intellectually disabled," they wrote.
Black's intellectual disability claim joins a separate push to find he is not competent to be executed, in the case the courts were to go ahead with the death sentence.
But if Kurtz does find in favor of this agreed determination, his case won't get that close to execution.
Medical expert changes position under new standards:
The state's position largely rests on the medical testimony of two doctors, one who changed her opinion from the last time she testified in a case regarding Black's mental faculties.
Black was previously evaluated in 2004 under a now-outdated framework that was found unconstitutional and overturned by legislation passed last year to remedy the issue in Tennessee.
At the time, expert witness Dr. Susan Vaught said he did not meet the criteria under the then-standard.
Black does meet the criteria under the new 2021 law for a diagnosis of intellectual disability, Vaught now writes, as shown in the defense's brief.
"This represents a change in my 2003 opinion, based on new information in his record, the ability to review his performance at multiple points in time across multiple practitioners, changes in scientific knowledge and standards of practice, and changes in diagnostic criteria," she wrote.
The state noted the framework at the time used "outdated terminology" that was "at least a harbinger that the issue to be determined now — Petitioner's intellectual disability — is not the same issue decided by the 2004 order."
Black was scheduled to be executed in 2020, but COVID-19 related precautions twice delayed the date, the second time indefinitely.
In January, a hearing before Davidson County Criminal Court Judge Monte Watkins was delayed after Funk tested positive for COVID-19 and asked the court to reschedule.
Tennessee created path to appeal death sentence
Both the Tennessee Supreme Court and the U.S. Supreme Court have ruled against executing people with intellectual disabilities.
In April, Tennessee legislators created a law allowing death row inmates like Black to appeal their sentences on intellectual disability grounds.
Another medical expert submitted a report in August, and a supplemental report in December, that Black is intellectually disabled to a degree that makes him eligible for the review.
The law prongs to its definition of intellectual disability. Black's scores were "subaverage" in all of them, according to a medical report filed by his defense from Daniel A. Martell, a forensic psychologist and neuropsychologist.
Intellectual disability is defined under the law as “significantly subaverage general intellectual functioning,” “deficits in adaptive behavior” and “must have manifested during the developmental period, or by eighteen (18) years of age.”
It is "clear and unequivocal" that Black meets qualifications for all guidelines and that his intellectual disability manifested as a young child, Martell wrote.
"There were indications of intellectual deficits quite early in Mr. Black’s life," he wrote. "He struggled in school, and had to repeat the second grade — the first clear indication that he was impaired intellectually and as a result struggled academically from a very young age."
Defense attorneys for the death row inmate can petition the trial court to examine the inmate's mental competency, but prosecutors are allowed to appeal the decision.
A defendant is not allowed a second chance to plead the case on intellectual disability grounds if there is already a ruling over the matter.
Funk's brief this week also stipulates the 2021 law is so different from the one in effect in 2004 that the previous finding is irrelevant to the current question.
Martell is no stranger to execution competency evaluations. He's previously testified in the death penalty cases of Pervis Payne, Robert Glen Coe, Paul Dennis Reid and Brian Kelley in Tennessee.
In this week's filing, Funk noted his office met with the victims' family members and explained the new law and experts' findings.
They still wish the state to execute Black.
Executions restarted but delayed by pandemic
After a nearly two-year hiatus, Tennessee is set to resume capital punishment with five executions scheduled for this year and the first set to take place next month.
Oscar Franklin Smith, 71, is the next death row inmate scheduled to be executed.
Convicted in the 1989 triple slaying of his estranged wife and her two teenage sons, Smith is scheduled to die April 21.
The supreme court this month set three new execution dates for inmates in 2022, driving the total number of executions planned this year to five. They include Smith, Harold Wayne Nichols, Black, Gary Sutton and Donald Middlebrooks.
Tennessee has executed 139 people since 1916. The last occurred in February 2020, before the COVID-19 pandemic. The state resumed capital punishments in 2018 after a nine-year hiatus.
Black is expected to be the first Black man put to death in the state's most recent spate of executions. His execution is scheduled for Aug. 18.
Tennessee’s death row includes a disproportionate number of Black inmates. Twenty-five of the 48 inmates on death row are Black, according to the Tennessee Department of Correction. Tennessee’s population is only 17% Black, according to census data.
In previous statements to the Tennessean throughout the case, Henry said Black should not be eligible for execution because he had "lost his sanity," has an IQ of 67, brain damage and schizophrenia.
In Black's case, previous attempts to review his sentence hinged on the question of whether the undisputed brain damage he has suffered is to an extent that would render him unable to be executed.
His defense struggled to obtain updated medical neuroimaging scans due to limited access to prisons during the pandemic.
Physical ailments also factor into Black's ability to be evaluated. While in prison, Henry said, Black's injuries make it difficult to walk, and he "gets around the prison by being pushed in an office chair with wheels."
His defense has also noted the lack of access to him, other experts and family in accordance with social distancing guidelines added an obstacle to preparing a traditional clemency petition."
The entire story can be read at:
https://www.tennessean.com/story/news/crime/2022/03/11/nashville-district-attorney-death-row-intellectually-disabled-byron-black-should-not-face-execution/6989413001/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
