1.                  The Definition Of Mental Retardation

Although the definitions have varied slightly, in the psychiatric and mental health communities, and under law, Amental retardation@ has been defined as: (1) significant sub average mental functioning; (2) accompanied by deficits in so-called adaptive behavior; and (3) onset before age 18.  Such has been the general definition of retardation employed by the American Psychiatric Association (A.P.A.) in its Diagnostic and Statistical Manual-Fourth Edition (DSM-IV);³ by the A.P.A. in its Diagnostic And Statistical Manual, Third Edition, Revised (DSM-III-R);⁴ by the American Association of Mental Retardation (A.A.M.R.);⁵ and the definition of retardation found in Tennessee law,⁶ which is predicated on the definitions from the A.P.A. and A.A.M.R.

It is important to note that Asignificant sub-average intellectual functioning@ has generally been defined as an I.Q. of 70, but this actually represents a range between 65 and 75. 70 is not some bright-line score which differentiates a retarded person from one who is not retarded.

As Dr. Daniel Grant explains:

General intellectual functioning is defined as an intelligence quotient (I.Q.) obtained by assessment with one or more individually administered general intelligence tests, such as the WAIS-III or Stanford-Binet or the Comprehensive Test of Nonverbal Intelligence (CTONI). Significantly sub-average general intellectual functioning is defined by the A.A.M.R. and the DSMIV-TR as an I.Q. of approximately 70-75 or below on a standardized, individually administered test of general intellectual functioning. Since any measure is fallible, an I.Q. score is generally thought to involve an error of measurement of approximately five points; hence an I.Q. of 70 is considered to represent a band or zone of 65 to 75. Treating the I.Q. with . . . flexibility permits the inclusion of people with I.Q.=s somewhat higher than 70 who exhibit significant deficits in adaptive behavior.

 Exhibit 5, p. 3, &6 (Declaration of Dr. Daniel Grant). Indeed, the A.P.A. has made clear since 1980 that 70 actually represents a range of I.Q. scores from 65-75.  DSM-III explains that an I.Q. score of 70 actually represents any true score within the range of 65-75:

General intellectual functioning is defined as an intelligence quotient (I.Q.) obtained by assessment with one or more individually administered general intelligence tests. Significantly sub-average intellectual functioning is defined as an I.Q. of 70 or below on an individually administered I.Q. test. Since any measurement is fallible, an I.Q. score is generally thought to involve an error of measurement of approximately five points; hence, an I.Q. of 70 is considered to represent a band or zone of 65 to 75. Treating the I.Q. with some flexibility permits the inclusion in the Mental Retardation category of individuals with I.Q.s somewhat higher than 70 who truly need special education or other programs.

DSM-III (American Psychiatric Association: Washington, D.C., 1980), pp. 36-37.

Similarly DSM-III-R (published in 1987) once again emphasized that a 70 was not some magic number for mental retardation, but that persons with retardation may fall anywhere within the 65-75 range:

Significantly sub-average intellectual functioning is defined as an I.Q. of 70 or below on an individually administered I.Q. test.  Since any measurement is fallible, an I.Q. score is generally thought to involve an error of measurement of approximately five points; hence, an I.Q. of 70 is considered to represent a band or zone of 65 to 75.

Treating the I.Q. with some flexibility permits the inclusion in the Mental Retardation category of people with I.Q.s somewhat higher than 70 who exhibit significant deficits in adaptive behavior.

DSM-III-R, p. 28.⁷

As for deficits in adaptive behavior, such deficits refer to limitations in practical and social intelligence, and a person must exhibit deficits in at least two spheres of functioning:

Deficits in adaptive behavior (also known as >adaptive functioning= or >adaptive skills=) refer to limitations in practical and social intelligence. Practical  intelligence  refers to the ability to maintain oneself as an independent person in managing the ordinary activities of daily living, and is important for adaptive abilities like functional academics, work, leisure, self-direction, and self-care. Social intelligence refers to the ability to understand social expectations and the behavior of other persons and to judge appropriately how to conduct oneself in social situations, and is central to such adaptive abilities as social skills, communication, work, leisure, home living, functional academic skills and use of the community. It is a measure of an individual=s ability to function effectively in society, and refers to the person=s effectiveness in areas such as social skills, communication and daily living skills, and how well the person meets the standards of personal independence and social responsibility expected of his or her age by his or her cultural group. Specific adaptive limitations often coexist with strengths in other adaptive or personal capabilities. In order to qualify for a diagnosis of mental retardation, an individual must possess deficits in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health, and safety.

Exhibit 5, pp. 3-4, &7 (Declaration of Dr. Daniel Grant). The A.A.M.R. specifically notes that, so long as a person suffers adaptive deficits, a person may be found to have mental retardation even though he or she may possess adaptive skills in other areas: ASpecific adaptive limitations often co-exist with strengths in other adaptive skills or other personal capabilities.@

As will be shown, under these standards, Byron Black is mentally retarded.

2.         Dr. Daniel Grant Finds That Byron Black Is Mentally Retarded

Dr. Daniel Grant, Ed.D. is a licensed psychologist with training in psychological and neuropsychological evaluation. Exhibit 5, p.1 (Declaration of Daniel Grant). For almost fifteen years, he was the consulting psychologist for the diagnostic unit of the Coastal Correctional Institution in Garden City, Georgia, where he assessed approximately 2500 inmates, the majority of whom had I.Q.s below 80. Id. He has conducted a comprehensive evaluation of Byron Black, and has concluded that Byron Black is mentally retarded, given Byron Black=s intellectual functioning and deficits in adaptive behavior.

While he relied on extensive background information about Byron Black (Id., p. 2), Dr. Grant has reviewed Byron=s school records and the results of previously administered I.Q. tests (Id.), and he has performed a comprehensive battery of tests on Byron Black (Id., pp. 1-2) including the Stanford-Binet Intelligence Scale -- Fourth Edition, and Comprehensive Test Of Nonverbal Intelligence (CTONI). Id., p. 1.

Byron Black=s test scores clearly place him within the mentally retarded range of intellectual functioning. Byron Black=s I.Q. on the Stanford-Binet Intelligence Scale test was 57. Exhibit 5, p. 4, &10 (Declaration of Daniel Grant). This overall score included subtest scores showing extreme deficits in verbal reasoning (Byron Black=s score was 56), short-term memory (56), and quantitative reasoning (61). Id. On the Comprehensive Test Of Nonverbal Intelligence B which measures nonverbal planning, nonverbal reasoning, organizational skills, and higher level spatial ability B Byron Black again scored in the mentally retarded range, with a Nonverbal I.Q. of 64, Pictorial Nonverbal I.Q. of 66, and Geometric Nonverbal I.Q. of 68. Id., pp. 4-5, &11. 

Byron Black=s scores on these intelligence tests establish the significantly subaverage intelligence of one who is mentally retarded:

All of Mr. Black=s scores were within the mildly mentally retarded range. It is my opinion, to a reasonable degree of psychological certainty, that Mr. Black=s performance on these two measures of intelligence placed his intellectual abilities within the mildly mentally retarded range of intelligence.

Exhibit 5, p. 5, &12 (Declaration of Daniel Grant).

Byron Black also manifests specific deficits in adaptive behavior. His performance on academic tests reveals significant deficits in functional academic skills. Id, p. 6, &19. His performance on the Independent Living Scale concerning the managing of money, managing of home and transportation, and health and safety were low. Id., p. 7, &22.  There is also evidence that Byron Black never lived independently, failed to take care of his son, and had others who took care of him. Id., p. 7, &23.

Dr. Grant concludes that Byron Black is mentally retarded based on his test scores:

Byron Black is mentally retarded. His performance on the WAIS-III administered by Dr. Patti van Eys yielded a Full Scale IQ of 69, His corrected Full Scale IQ on the WAIS-R administered by Dr. Gillian Blair was 70 or less and his corrected Full Scale IQ score on the WAIS-R administered by Dr. Pamela Auble was 70 or 71. His performance on the Stanford-Binet-Fourth Edition yielded a Test Compostie (standard score of 57. His performance on the Comprehensive Test of Nonverbal Intelligence yielded a Nonverbal IQ of 64.  All of these scores meet the criteria for significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (IQ) of 70 or below especially when the standard error of measurement is considered.

Id., pp. 7-8, &25. He also has Asignificant deficits in adaptive behavior,@ including significant deficits in communication and functional academic abilities. Id., p. 8, &26.  Further, his retardation manifested itself during the developmental period. Id., p. 8, &27.

Thus summed up: AMr. Black is mentally retarded.@ Id., p. 7.

3.         The WAIS-III Test Administered By Patti van Eys, Ph.D., Places Byron Black=s Intelligence Quotient (I.Q.) In The Mentally Retarded Range

As referenced by Dr. Grant in his report (Exhibit 5, p. 5, &13), Dr. van Eys, of Peabody College at Vanderbilt University, has tested Byron Black and found his I.Q. score to place him within the retarded range. Dr.van Eys administered the Wechsler Adult Intelligence Scale III (WAIS-III) to Byron Black. On the WAIS-III, Byron Black has a Full-Scale Intelligence Quotient of 69, including a Verbal I.Q. score of 67, which places him within the mentally retarded range. See Exhibit 4 (Report of Patti van Eys, Ph.D.). Dr. van Eys explains these results:

The discrete score of 69 places him at approximately the 2^nd percentile of all persons his age and falling in the Extremely Low range. Persons falling in this category of intellectual functioning will have difficulty with anything that involves complex concepts, as persons in this category of functioning tend to experience the world quite concretely. Persons with this level of intellectual functioning have histories consistent with difficulties in school or lack of education . . . and are typically employed in simple jobs, quite often with supervision. These persons may or may not live independently. Persons with I.Q. scores of 69 meet the intelligence level criterion, as laid out in the DSM-IV, for being labeled >Mildly Mentally Retarded.=

 See Exhibit 4, p. 3.

4.         Dr. Globus Confirms That Byron Black Is Mentally Retarded

Dr. Globus= findings also establish mental retardation.  Dr. Globus= conclusion is that AByron Black is, in my opinion, mentally retarded and disabled in regard to social judgment.@ Exhibit 2, (Report of Dr. Albert Globus, M.D.).  Dr. Globus bases his conclusion of retardation on several factors.  First, the results of various tests confirm the diagnosis and Aare consistent with neurological impairment and mental retardation.@ Id., p. 5 (discussing test results of Patti van Eys, Ph.D.) Second, evaluation of Byron Black=s behavior is consistent Awith poor perception, memory defect, low intelligence in the range I.Q. of 70 or below, and the effects of long standing organic disorder of the brain.@ Id., p. 8.

C.        BYRON BLACK HAS SUBSTANTIAL DEFICITS IN LEARNING, REMEMBERING, RETRIEVING, AND USING NEW OR COMPLEX INFORMATION

 The effects of Byron Black=s brain damage and retardation are profound. As a result of these deficits, Byron Black lacks mental flexibility, and very critically, he has deep problems with learning, remembering, retrieving, and using new or complex information.

Dr. Grant=s testing has revealed substantial functional deficits in numerous other areas, including memory, listening, receptive language skills, oral expression, retrieving information or words. For instance, AHis performance on the OWLS [Oral and Written Language Scales] indicates significant deficits with  Mr. Black=s Listening Comprehension and Oral Expression.@ Exhibit 5, p. 6, &18. AMr. Black=s performance [on the Peabody Picture Vocabulary Test-Third Edition] reveals a significant deficit in his listening and receptive language skills.@ Id.

He has a Asignificant deficit@ in expressive vocabulary skills, and his ability to name common objects was Aseverely defective.@ Id. Test results also Aindicate a deficit in word retrieval and/or retrieval deficits in general.@ Id. Byron Black=s performance on academic achievement tests place him at a grade equivalent of 4.6-4.7, and Aindicate significant deficits in his functional academic skills.@ Id., p. 6, &19.

As for memory, Byron Black has moderate impairment in the field of verbal memory. Id., p. 7 &20. He Aexhibits much difficulty with the acquisition and encoding of new information.@ Id.  According to Dr. Grant, Byron Black=s Amemory deficits are related to encoding difficulties.@ Id., p. 7, &21.

Dr. Patti van Eys has similarly recognized Byron Black=s severe memory problems. Byron Black=s memory scores on the WAIS-III indicate a substantial deficit in mental flexibility and the ability to remember information. AHe scored a 61 on the factor of Working Memory, a factor comprised of subtests requiring mental flexibility. This score falls solidly in the Extremely Low range (confidence interval 61-70). This factor, representing mental flexibility characterized by the ability to hold short bursts of information in short term memory, and sometimes manipulating the information in the head in order to come out with a solution, is a cognitive function that cannot happen when thinking is too concrete.@ Exhibit 4, pp. 3-4 (Report of Patti van Eys, Ph.D.). Byron Black=s memory scores were identical to those on tests given by Dr. Gillian Blair in 1993. See Exhibit 6, p. 1 (Oct. 7, 1993 Report of Dr. Gillian Blair, Ph.D.)(AMemory functions were generally consistent with low intellectual functioning. His general memory index was 61.@)

Byron Black=s inability to remember and manipulate information has significant implications not only for his ability to gauge the implications of his behavior, but also for his ability to comprehend and understand the court process:

The weakest part of Mr. Black=s profile is his Working Memory Index (61) that falls in the Extremely Low range (.5%ile) and reflects his clear deficit in mental flexibility. He has a basic deficit in holding information in short-term memory, and an even more difficult time mentally manipulating more than three pieces of even simple information. Such a deficit, along with severely low verbal reasoning, would likely create a serious challenge in the ability to think through future actions and consequences. These shortcomings, combined with Mr. Black=s observed and/or documented lack of judgment, insight, and his naive, psychologically defended style (e.g., religiosity and denial) would predictably make it quite difficult to understand the true complexities of his current situation.

Exhibit 4, p. 5 (Report of Patti van Eys, Ph.D.)(emphasis supplied).

In a broader sense, Dr. van Eys further notes that each of Byron Black=s subtest scores demonstrates that his overall mental functioning is subnormal. Each of his subtest scores was sub average, falling within the extremely low or borderline ranges, indicating that even on a good day, Byron Black is still functioning well below the level of the average person:

In terms of strengths, it is important to note that Mr. Black scored only in the Extremely Low to Borderline ranges.  He did not score within the Average range on any subtest, and there is only one subtest (Arithmetic (2)) that is a statistical standout (weaker) from his overall pattern. His highest subtest scores continue to fall at least one standard deviation from the average of others his age (7), however, these relatively better subtests fell in the Processing Speed Index category (Digit Symbol and Symbol Search) in which he had to simply copy concrete symbols or decide if a visual pattern matched another or not. These are very rote tasks, requiring very little thinking, but requiring visual and motor acuity. He also scored a 7 on the Block Design Subtest. This puzzle type of subtest provides the examinee with a concrete model to copy as well as a bit of training. On all other tests, with no concrete model provided, Mr. Black scored in the Extremely Low range.  The very lowest subtests were those requiring verbal reasoning in the area of Vocabulary and Arithmetic. The Vocabulary score may reflect a problem with word finding (as found earlier by Dr. Auble in a neuropsychological evaluation) while the Arithmetic and Digit Span scores reflect serious problems with short term working memory (also consistent with Dr. Auble=s findings).

Exhibit 4, p. 4 (Report of Dr. Patti van Eys, Ph.D.).

Pamela Auble, Ph.D. reached a similar conclusion in 1997.  As she explained, Byron Black=s A[a]bility to learn new material fell within the mildly impaired range on the Wechsler Memory Scale- Revised.@ Exhibit 3, p. 2 (Report of Dr. Pamela Auble, Ph.D.). AMr. Black=s memory for relatively simple material was between the 10^th and 14^th percentile for some one his age right after the material was presented to him. Following a half hour delay, his retention fell slightly but not significantly (6^th percentile for his age group.)@ Id.

Dr. Auble further noted Byron Black=s inability to remember information after a time delay, especially when new information had been provided in the meantime:

For more complex material, Mr. Black had significant difficulty imposing a structure that allowed him to remember the information effectively over time. On the California Verbal Learning Test, his recall of a categorized word list was mildly impaired on immediate recall. On this test, the patient is then given a second word list to remember. Then, he is asked to recall the first list again. On this second recall of the first list, Mr. Black=s retention dropped to the severely impaired range.

Exhibit 3, p. 2 (Report of Pamela Auble, Ph.D.). Dr. Auble concluded: AHis memory was mildly impaired for relatively simple material, and it was moderately impaired when he was given more complex information that required him to use organizational strategies to retain it effectively.@ Exhibit 3, p. 4 (Report of Pamela Auble, Ph.D.). AMr. Black had trouble learning new information. On more complex tests he had more difficulty. Mr. Black had a lot of difficulty imposing an organization or structure on information that let him remember it well over time.@P.C.Tr. 450-451 (Pamela Auble, Ph.D.).

            Dr. Auble also noted Byron Black=s mental rigidity and inability to independently organize any sort of complex material:

Ability to shift between different concepts was adequate on the Wisconsin Card Sort, but it was impaired on three other tasks measuring mental flexibility. On the Wisconsin Card Sort, he could sort cards to different categories based upon feedback  as to which was the correct category. However, on a complicated task involving systematic hypothesis testing and concept formation, Mr. Black=s performance was poor (Booklet Category Test, second percentile for his age and education). He was also slow at alternating between counting and reciting the alphabet on Trails B.

 Exhibit 3, p. 2 (Report of Dr. Pamela Auble, Ph.D.). AHe was rigid and he had trouble testing hypotheses and forming concepts.@ P.C.Tr. 451 (Pamela Auble, Ph.D.)

D.        BYRON BLACK SUFFERS MENTAL ILLNESS

Wrapped up in the entire picture of Byron Black=s functioning is mental illness. Over the years, he has been found to suffer mental illness.  While precise description of Byron Black=s mental illness has differed over the years, the presence of such illness is clear.

1.         Dr. Albert Globus

As noted supra, Dr. Globus believes that Byron Black apparently suffers from an organic brain syndrome; Athe fundamental effects of his organic disorder are apparent at this time.@ Exhibit 2, p. 2 (Report of Dr. Albert Globus, M.D.). Dr. Globus explains the extent of mental disturbance he observed in his mental status examination of Byron Black.  Dr. Globus describes Byron Black=s delusional and distorted view of the world:

My mental status examination showed many abnormalities. I noticed that the circumference of his cranium seemed mildly out of proportion to the size of his head and his forehead sloped. Whether these findings are of any significance awaits magnetic scan of his brain. His self image, especially in regard to attractiveness, bordered on the delusional. He firmly believes his former wife awaits his return. He has an immensely distorted view of the world, it is simply full of flowers, love, and Godliness as are his letters. He holds these views while holding a discordant view represented by almost pathological suspiciousness and having a loner life style devoid of even the limited companionship available to him in his incarceration.

Id., p. 7. Dr. Globus further describes Byron Black=s inappropriate affect and his distorted thinking about much of his world:

He stands very close, not respecting our culturally accept[ed] interpersonal distance.  His eye contact is intense and inappropriate socially. He wears a constant smile suggesting either a delusional state or a flattened and abnormally elevated affect. His speech is slow and soft. His anxiety level is very low given his circumstances. His affect is inappropriate, almost euphoric. He loves everybody and is simultaneously consumed by paranoid suspicions. He seems delusional about his appearance, his attractiveness, his academic abilities, his medical history, the role of the staff in the loss of clothes sent by his mother, his importance and most importantly for competence about his social and legal circumstances. Immediate recall and registration is poor. His thinking is circumstantial, marked by religiosity, perpetual mourning, and concrete. . . .

Id. Dr. Globus also recounts that witnesses who have observed Byron Black=s behavior have noticed the very signs of such mental illness, including his inappropriate affect and delusional thinking. Id., p. 4.  And, as noted supra, Dr. Globus traces Byron Black=s mental illness to the extensive brain damage found by Dr. Gur and others:

In my opinion, the most creditable psychiatric and psychological evaluations point to sufficient brain damage to explicate much of his abnormal behavior, thought and feeling.

Id., p. 4

2.         Dr. William Bernet, M.D.

In post-conviction proceedings, Dr. William Bernet, provided extensive evidence establishing Byron Black=s psychological and psychiatric impairments. See P.C.Tr. 530 et seq. A graduate of Harvard Medical School, Dr. Bernet is a faculty member and medical director of the psychiatric hospital at Vanderbilt University Medical Center. P.C.Tr. 530-531. He is board certified in adult psychiatry, child psychiatry, and forensic psychiatry. P.C.Tr. 532.

Dr. Bernet agreed with the assessment made by defense counsel Ross Alderman, namely that Aif one talks to [Byron Black] briefly or in a somewhat superficial way, you get the impression that he knows what he=s talking about. But if you talk to him longer or over multiple interviews, you understand that there are real gaps in his understanding.@ P.C.Tr. 537. Dr. Bernet described Byron=s understanding as having a Asignificant limit.@ P.C.Tr. 537.⁸

Dr. Bernet testified that Byron Black suffers from a serious mental disorder: AI can say with a reasonable degree of medical certainty that Mr. Black has some kind of serious mental disorder. And the information that I=ve collected and the evaluation . . . I=ve done makes me think that this mental disorder is almost certainly some kind of amnesia.@ P.C.Tr. 549.

According to Dr. Bernet, Byron Black=s mental illness Ais one that interferes with his ability to cooperate with his attorneys in formulating his defense and cooperating in his defense.@ P.C.Tr. 549.  Byron Black=s mental disorder Awould have interfered with his competency@ at the time of trial. P.C.Tr. 549; 553. Dr. Bernet noted that Byron Black=s mental illness might result from Asome kind of neurological disorder that causes him to have memory problems.@ P.C.Tr. 550.  As Dr. Bernet explained, Byron can=t remember things from one day to the next: A[Y]ou can have a conversation with Mr. Black and two weeks later he doesn=t remember that conversation.@ P.C. Tr. 554. Dr. Bernet concluded that, as a result of mental disease or defect, at the time of trial, Byron Black was unable to assist his attorneys in preparing his defense. P.C.Tr. 550-551.

Dr. Bernet further explained that Byron Black=s mental illness contributes to his making inconsistent or contradictory statements over time:

[H]e gives a lot of conflicting answers, contradictory answers to questions that have been posed to him. Because I think he has trouble remembering what happened originally and then when he gets interviewed, he sort of makes up an answer which he has to make it up because he doesn=t actually remember what happen[ed] and then later in a subsequent interview he doesn=t remember what he says in the first interview. And so he makes up a different answer. I think that=s probably the reason why he says so many different contradictory things.

And so this process interferes not only with remembering what happened on a specific day but it also interferes with his being able to use new information and process it and make sense out of it.

 P.C.Tr. 554. Byron Black also makes up answers B or confabulates B to try to be cooperative with those who question him. P.C.Tr. 556. Byron Black=s mental disturbance would help explain to a jury the reasons why he might give contradictory accounts of events. P.C.Tr. 557.

3.         Dr. Gur, Dr. Auble, and Dr. Blair Confirm The Presence Of Mental Illness

While Dr. Globus and Dr. Bernet have found Byron Black to suffer mental illness, others who have evaluated Byron Black have made findings that support such a conclusion. In 1997, Dr. Auble found indications of schizophrenia. AThe Rorschach that I obtained had a significantly elevated Schizophrenia Index.@ Exhibit 3, p. 4 (Report of Dr. Pamela Auble, Ph.D.). Earlier, Dr. Blair remarked that Asuspiciousness remains almost delusional.@ Exhibit 7, p. 1 (Sept. 6, 1993 Report of Dr. Gillian Blair, Ph.D.). Like Dr. Auble, she noted that with Byron Black Aschizoid processes might occur.@ Exhibit 7, p. 2 (Report of Dr. Gillian Blair, Ph.D.). She found that Byron Black suffers severe mental disorganization under stress, as evidenced by his bizarre responses to various questions:

Mr. Black presented himself as a conventional, God-fearing blemish-free individual. However, the content of some responses revealed Mr. Black=s vulnerability to disorganization when under stress. For example, >This place may grace be yours, may peace be yours=; >When I was a child a treasure of memories is a very special happiness=; >The happiest time even when I fail, you are still the same God=.

 Exhibit 7, p. 2 (Sept. 6, 1993 Report of Dr. Gillian Blair, Ph.D.).

Dr. Gur has further observed that Byron Black manifests numerous symptoms indicating mental illness:

Byron also demonstrates a symptom complex associated with serious psychiatric disorders.  The symptoms include paranoid and delusional beliefs, as well as negative symptoms of schizophrenia.  These symptoms produce attentional problems as well as misinterpretations of environmental stimuli, such as courtroom proceedings.  These psychiatric symptoms coupled with frontal, temporal and limbic system impairment compounds his inability to understand and appreciate reality.  He is unable to distinguish between reality and his delusions and is unaware that he suffers from psychiatric illness.

 Exhibit 1, & 15 (Declaration of Ruben Gur, Ph.D.)

E.         BYRON BLACK HAS SUFFERED NUMEROUS NEUROLOGICAL INSULTS, ANY ONE OF WHICH CAN CAUSE MENTAL RETARDATION AND/OR MENTAL ILLNESS

 As both Dr. Globus and Dr. Gur observed, there are multiple etiologies for Byron Black=s severe mental impairments.  Dr. Globus and Dr. Gur have discussed those etiologies in their reports. This section will discuss some of those factors in more detail.

1.         Exposure to Alcohol in Utero

As indicated earlier, there are indications that Byron Black=s mother was drinking during her pregnancy with Byron. P.C.Tr. 442 (Pamela Auble, Ph.D.). Byron Black=s mother, Julia Mai, admitted that she drank and smoked while she was pregnant with Byron. Exhibit 8 (Memorandum of Libby Moore). According to Finis Black (Byron Black=s uncle and the brother of Julia Mai (who is now deceased)), Julia Mai drank heavily on the weekends, and her preferred drink was scotch. P.C.Tr. 512, 519 (Finis Black). Finis= wife, Mary, confirmed that Julia Mai drank quite a bit on the weekends. P.C.Tr. 523 (Mary Black). See also P.C.Tr. 527-528 (Alberta Crawford: discussing Julia Mai=s drinking). According to Finis, Julia Mai did not stop drinking when she was pregnant with Byron. P.C.Tr. 520. She would have nursed Byron as a child, but Finis did not believe that she stopped drinking at that time either. P.C.Tr. 520.

Dan Black also confirmed that Byron=s mother drank through her pregnancy with Byron. See Exhibit 8, p. 3 (Memorandum of Libby Moore: describing Julia Mai=s promiscuous behavior and stating that during pregnancies, Ashe continued to drink.@). Dan Black was not able to attend the post-conviction hearing, because he had been injured in an automobile accident (P.C.Tr. 529). Dr. William Bernet, M.D., however, relied on information from Dan Black concerning Julia Mae=s drinking while pregnant. P.C.Tr. 561-562. Dr. Bernet explained that a mother=s drinking during pregnancy can cause brain damage to her child. P.C.Tr. 562. A[I]t can cause brain dysfunction called fetal alcohol effect or fetal alcohol syndrome [which] cause[s] people to have a variety of organic, mental handicaps. And that could have contributed to Mr. Black=s handicap.@ P.C.Tr. 562.

2.         Affliction with Rubeola and Anemia as an Infant, and Additional Indications of Mental Disturbance as a Child

 Byron Black was born in March 1956. When Byron Black was an infant, he was afflicted with rubeola (measles) and pneumonia, and was found to be anemic because of deficient intake of iron. He had rubeola in the fall of 1957. See Exhibit 9 (Sept. 16, 1958 Vanderbilt University medical records: Ahad rubeola last fall@; Sept. 9, 1957 notation of pneumonia). This may have contributed to Byron Black=s mental dysfunction, as rubeola may cause encephalitis. See e.g., Nelson Textbook of Pediatrics. 1996. 15th Edition, Berhman, R.E., Kliegman, R.M., and Arvin, A.M. Eds. In June 1957, he was found to be anemic. See Exhibit 9 (Vanderbilt University medical records, June 4, 1957). This, too, is significant, as anemia may be a sign of lead poisoning. Further, there are indications that, at age four (4), Byron were described as Atalking out of his head@ when he had a fever. See Exhibit 9 (Vanderbilt University medical records, July 7, 1960). In another incident when he was a child, he believed that snakes were crawling all over him. See e.g., Exhibit 28, Interview with Arleta Black Swanson. 

3.         Byron Black Continues To Suffer Hallucinations, Delusions, Paranoia, And Other Mental Disturbance 

 Since being incarcerated, there have been continued manifestations of Byron Black=s mental illness. In 1991, Byron Black was described as Afeel[ing] a machine is monitoring his thoughts,@ Exhibit 10 (1991 prison record). He has apparently suffered hallucinations, thinking that his mother was calling to him. Exhibit 11 (1991 prison notation describing how AI thought my mother was dying and she was calling to me.@). His behavior was described as Aunusual.@ Exhibit 12 (Memorandum From Cheryl Donaldson). 

At one point, he was obsessed with the thought that someone had stolen from the mail a package intended for him. Exhibit 13 (Contact Notes Nov. 23, 1993). He was Adepressed and paranoid.@ Exhibit 14 (Mental Health Services Referral, Nov. 23, 1993). AHe appears irrational and depressed and almost paranoid. [He] feels it is a conspiracy against him@ Exhibit 15 (Nov. 23, 1993 Contact Notes). His behavior was described as Adelusional.@ Exhibit 16 (Prison AContact Notes@ from Dec. 2, 1993).

In 1994, he was described by a prison mental health evaluator as Airrational and a bit delusional.@ Exhibit 17 (Dec. 22, 1994 Mental Health Services Referral Form, signed by Howard Brandon). His affect was described as Asomewhat >giddy.=@ Exhibit 18 (Dec. 29, 1994 Progress Record). In 1995, he was described as Aobsessed and paranoid@ given his belief that prison officials had taken a package of his. Exhibit 19 (Mental Health Referral Form); Exhibit 20 (Jan. 12, 1995 Mental Health Referral Form signed by Case Manager Cheryl Donaldson). At that time, psychological examiner Joe Mount stated that he believed that Byron Black Amay be experiencing paranoid ideation, but it is difficult to determine . . . .@ Exhibit 21 (Progress Record, Jan. 12, 1995).

F.         CONCLUSION: BYRON BLACK SUFFERS NUMEROUS COGNITIVE AND PSYCHIATRIC DEFICITS THAT PROFOUNDLY AFFECT HIS ABILITY TO FUNCTION

In sum, therefore, substantial evidence establishes that Byron Black suffers from numerous interrelated cognitive, psychiatric, and functional deficits which adversely affect every aspect of his life, and which adversely affected the court proceedings against him.  As will be more fully discussed infra, those numerous deficits B including the failure of the jury to hear about the extent of these deficits B had a profound impact upon the fairness of the proceedings against him. 

IV.       RESPONDENT IS NOT ENTITLED TO SUMMARY JUDGMENT

A.        BYRON BLACK WAS INCOMPETENT TO STAND TRIAL (Petition &6)

Byron Black was incompetent to stand trial on the charges of first-degree murder because he suffers from: (1) brain damage; (2) mental functioning in the retarded range; (3) inability to acquire, retain, process, and analyze new information; and (4) an inability to communicate. Because Byron Black was incompetent to stand trial, he is entitled to habeas corpus relief under the standards set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788 (1960), which requires that a defendant have Asufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and a rational as well as factual understanding of the proceedings against him.@

When the state courts decided the issue of competency, however, they were not privy to much critical information establishing in competency, because neither the trial court=s expert, the prosecution=s experts, nor the defense expert conducted a thorough evaluation of Byron Black=s social history, nor his psychological, neurological, and/or neuropsychological impairments. Notably, no one B including the trial court=s expert B performed neuropsychological/neurological testing to establish the existence of brain damage (described supra) and Byron=s impaired ability to learn, remember, and process new information. Nor did anyone conduct a comprehensive evaluation of his mental functioning to establish his mental retardation. As a result, though Byron was incompetent, the state courts failed to find him incompetent. 

In this section, Byron Black will: (1) Discuss the standard for a competent mental health evaluation; (2) Outline the evidence as presented during the state court competency hearing, explaining the deficiencies in the prosecution=s and court=s evaluations at that time; (3) Discuss how Byron Black=s brain damage, mental illness, and mental retardation made him incompetent to stand trial; and (4) Discuss Petitioner=s entitlement to relief and/or further proceedings on his competency claims.

1.         The Standard Of Care For Competent Mental Health Evaluations

 The evidence introduced during the trial court competency hearing was wholly unreliable.  Before proceeding to a discussion of the evidence introduced at trial, it is important have an understanding of the components of a competent forensic mental health evaluation. By comparing the evaluations conducted by the state court doctors to the standard of care for a competent forensic evaluation, the inadequacies of the evaluations and utter unreliability of the evidence introduced by the state is revealed.

The due process and equal protection components of the Fourteenth Amendment require that appointed psychiatrists render that level of care, skill and treatment that is recognized by reasonably prudent health care professionals as being acceptable under similar circumstances.  In the context of diagnosis, exercise of the proper level of care, skill and treatment requires adherence to the procedures that are deemed necessary to render an accurate diagnosis.  On the basis of generally-agreed upon principles, the standard of care for both general and forensic psychiatric examination requires careful assessment of medical and organic factors contributing to or causing psychiatric or psychological dysfunction.  See H. Kaplan and B. Sadock, Comprehensive Textbook of Psychiatry, 543 (4th ed. 1985).  The recognized method of assessment, therefore, must include the following steps:

a.         An Accurate Medical And Social History Must Be Obtained

Because "[it] is often only from the details in the history that organic disease may be accurately differentiated from functional disorders or from atypical lifelong patterns of behavior," R. Straub & F. Black, Organic Brain Syndromes 42 (1981), an accurate and complete medical and social history has often been called the "single most valuable element to help the clinician reach an accurate diagnosis."  Kaplan & Sadock at 837.                

 b.         Historical Data Must Be Obtained Not Only From The Patient, But From Sources Independent Of The Patient.

It is well recognized that the patient is often an unreliable and incomplete data source for his own medical and social history.  "The past personal history is somewhat distorted by the patient's memory of events and by knowledge that the patient obtained from family members."  Kaplan & Sadock at 488.  Accordingly, "retrospective falsification, in which the patient changes the reporting of past events or is selective in what is able to be remembered, is a constant hazard of which the psychiatrist must be aware."  Id.  Because of this phenomenon,

[i]t is impossible to base a reliable constructive or predictive opinion solely on an interview with the subject.  The thorough forensic clinician seeks out additional information on the alleged offense and data on the subject's previous antisocial behavior, together with general "historical" information on the defendant, relevant medical and psychiatric history, and pertinent information in the clinical and criminological literature.  To verify what the defendant tells him about these subjects and to obtain information unknown to the defendant, the clinician must consult, and rely upon, sources other than the defendant.

Kaplan & Sadock at 550; American Psychiatric Association, "Report of the Task Force on the Role of Psychiatry in the Sentencing Process," Issues in Forensic Psychiatry 202 (1984); Pollack, Psychiatric Consultation for the Court, 1 Bull. Am. Acad. Psych. & L. 267, 274 (1974); H. Davison, Forensic Psychiatry 38-39 (2d ed. 1965).

 c.         A Thorough Physical Examination (Including Neurological Examination) Must Be Conducted

Similarly, a thorough physical exam is necessary. See, e.g., Kaplan & Sadock at 544, 837-38 & 964.  Although psychiatrists may choose to have other physicians conduct the physical examination, psychiatrists:

 [s]till should be expected to obtain detailed medical history and to use fully their visual, auditory and olfactory senses.  Loss of skill in palpation, percussion, and auscultation may be justified, but loss of skill in observation cannot be.  If the detection of nonverbal psychological cues is a cardinal part of the psychiatrists' function, the detection of indications of somatic illness, subtle as well as striking, should also be part of their function.

Kaplan & Sadock at 544. 

          In further describing the psychiatrist's duty to observe the patient s/he is evaluating, Kaplan and Sadock note in particular that "[t]he patient's face and head should be scanned for evidence of disease. . . . [W]eakness of one side of the face, as manifested in speaking, smiling, and grimacing, may be the result of focal dysfunction of the contralateral cerebral hemisphere."  Id. at 545-46. 

d.         Appropriate Diagnostic Studies Must Be Undertaken In Light Of The History And Physical Examination

The psychiatric profession recognizes that psychological tests, CT scans, electroencephalograms, and other diagnostic procedures may be critical to determining the presence or absence of organic damage.  In cases where a thorough history and neurological examination still leave doubt as to whether psychiatric dysfunction is organic in origin, psychological testing is clearly necessary.  See Kaplan & Sadock at 547-48; Pollack at 273.  Moreover, among the available diagnostic instruments for detecting organic disorders, neuropsychological test batteries have proven to be critical, as they are the most valid and reliable diagnostic instruments available.  See Filskov & Goldstein, Diagnostic Validity of the Halstead-Reitan Neuropsychological Battery, 42 J. of Consulting & Clinical Psych. 382 (1974); Schreiber, Goldman, Kleinman, Goldfader, & Snow, The Relationship Between Independent Neuropsychological and Neurological Detection and Localization of Cerebral Impairment, 162 J. of Nervous and Mental Disease 360 (1976).

e.         The Standard Mental Status Examination Cannot Be Relied Upon In Isolation As A Diagnostic Tool In Assessing The Presence Or Absence Of Organic Impairment

As Kaplan and Sadock have explained, "[C]ognitive loss is generally and correctly conceded to be the hallmark of organic disease," and such loss can be characterized as "(1) impairment of orientations; (2) impairment of memory; (3) impairment of all intellectual functions, such as comprehension, calculation, knowledge, and learning; and (4) impairment of judgment."  Id. at 835.  While the standard mental status examination (MSE) is generally used to detect and measure cognitive loss, the standard MSE  (in isolation from other evaluative procedures) has proved to be very unreliable in detecting cognitive loss associated with organic impairment.  Kaplan and Sadock have explained why:

When cognitive impairment is of such magnitude that it can be identified with certainty by a brief MSE, the competent psychiatrist should not have required the MSE for its detection.  When cognitive loss is so mild or circumscribed that an exhaustive MSE is required for its recognition then it is likely that it could have been detected more effectively and efficiently by the psychiatrist's paying attention to other aspects of the psychiatric interview.

 In order to detect cognitive loss of small degree early in its course, the psychiatrist must learn to attend more to the style of the patient's communication than to its substance.  In interviews, these patients often demonstrate a lack of exactness and clarity in their descriptions, some degree of circumstantiality, a tendency to perseverate, word-finding problems or occasional paraphasia, a paucity of exact detail about recent circumstances and events (and often a lack of concern about these limitations), or sometimes an excessive concern with petty detail, manifested by keeping lists or committing everything to paper.  The standard MSE may reveal few if any abnormalities in these instances, although abnormalities will usually be uncovered with the lengthy MSE protocols.

The standard MSE is not, therefore, a very sensitive device for detecting incipient organic problems, and the psychiatrist must listen carefully for different cues.

Id. at 835.  Accordingly, "[c]ognitive impairment, as revealed through the MSE, should never be considered in isolation, but always should be weighed in the context of the patient's overall clinical presentation--past history, present illness, lengthy psychiatric interview, and detailed observations of behavior.  It is only in such a complex context that a reasonable decision can be made as to whether the cognitive impairment revealed by MSE should be ascribed to a organic disorder or not."  Id. at 836.

In sum, the standard of care within the psychiatric profession which must be exercised in order to diagnose is most concisely stated in Arieti's American Handbook of Psychiatry:

Before describing the psychiatric examination itself, we wish to emphasize the importance of placing it within a comprehensive examination of the whole patient.  This should include a careful history of the patient's physical health together with a physical examination and all indicated laboratory tests.  The interrelationships of psychiatric disorders and physical ones are often subtle and easily overlooked.  Each type of disorder may mimic or conceal one of the other type. . . . A large number of brain tumors and other diseases of the brain may present as >obvious= psychiatric syndromes and their proper treatment may be overlooked in the absence of careful assessment of the patient leading him to the diagnosis of physical illness. Indeed, patients with psychiatric disorders often deny the presence of major physical illnesses that other persons would have complained about and sought treatment for much earlier.

Id. at 1161.

f.          The Evaluations At The Time Of Trial Were Not Competent And Are Unreliable

     The actual competency evaluations conducted at the time of trial will be discussed infra.  In light of the standards just enunciated, it is clear that all of the opinions from the prosecution=s witnesses (as well as the court=s expert) claiming that Byron Black was competent were not accurate, for they were not premised on proper and/or complete evaluations.

2.         The State Court Competency Proceedings    

During the state court competency proceedings (conducted February 16 & 21, 1989), the court heard testimony from defense expert Dr. Kenneth Anchor, Ph.D.; defense counsel Ross Alderman; prosecution witnesses Leonard Morgan, Brad Diner, and Calvilyn Allmon; and court expert Dr. William Kenner, M.D. Their testimony was as follows:

a.         Kenneth Anchor Testified That Byron Black Was Incompetent

Dr. Kenneth Anchor has a Ph.D. from the University of Connecticut, was a faculty member at Vanderbilt, and licensed to practice in both Tennessee and Alabama. Comp.Tr. 3, 4. He conducted a psychological evaluation of Byron Black on January 17, 1989. Comp.Tr. 5. Dr. Anchor interviewed Byron Black and spent 32 hours administering tests, including the Minnesota Multiphasic Personality Inventory (MMPI), Shipley-Hartford Institute of Living Scale, Incomplete Sentences, Rogers Criminal Responsibility Scale, Cober Moral Dilemma Scales, Beliefs Inventory.  Comp.Tr. 7. See Comp.Ex. 1, p. 1; Exhibit 22 (Report of Dr. Kenneth Anchor, Ph.D.)

Based on his evaluation, Dr. Anchor testified that Byron Black was not competent to stand trial: AI feel that he was not competent to stand trial at the time that I saw him on January 17^th of this year.@ Comp.Tr. 10-11. Pertinent findings from Dr. Anchor=s report include:

Though he appears to be mentally alert, Mr. Black may suffer from impaired reasoning, logic, and judgment and problem solving (Report, p. 3)

               Planning abilities seemed deficient (Report, p. 3)

 Mr. Black shows clinical signs of being emotionally repressed and rigid. He demonstrated evidence of paranoid ideation and immaturity. Functionally based physical complaints may develop during periods of chronic stress. Emotional turmoil was in evidence. There was some indication of emotional blockage. (Report, p. 3)

 Mr. Black seems to understand the charges against him. He could not explain what plea bargaining was nor what the role of the district attorney is and he confused the judge and the jury. His competence to stand trial at this time was difficult to establish. (Report, p. 4)

 See also Comp. Tr. 2.

In explaining his ultimate conclusion that Byron Black was not competent, Dr. Anchor explained the some of the effects of Byron=s mental limitations: A[T]here was a shallowness that ran though nearly all of his answers.@ Comp. Tr. 12. In addition, A[H]e doesn=t understand some of the words that he uses.@ Comp.Tr. 2.

According to Dr. Anchor, Byron also did not have any meaningful comprehension of the judicial process: AThough I believe he had been in court on one previous occasion that he had described to me, he didn=t have a meaningful comprehension for the judicial process; that is, how the various units come together and relate to one another. There was a very tenuous, mechanical grasp of what some of the elements were about. But he didn=t really put together a complete picture.@ Comp.Tr. 11. In particular, Byron did not comprehend the consequences of the trial which he faced:

In fact, he had a gross misperception of possible outcomes, which were not at all options available to him. And he just was not able to give even reasonably coherent or cogent definitions of some of the roles. And I specifically picked out one of the more obvious errors that he made when he was unable to distinguish the jury=s role as opposed to the judge=s role, but this was just an example. As we went through the various competency areas, he just didn=t seem to fully understand what it was all about and how it could affect him.

 Comp.Tr. 12. Based on his evaluation, Dr. Anchor concluded: A[I]t was not at all persuasive or convincing to me that this man was competent to assist meaningfully and substantively in his own defense.@ Comp.Tr. 13.

When asked about the charges against him, Byron Black Awas not responsive to the question in an accurate and coherent and lucid manner.@ Comp. Tr. 28. When asked about the possible consequences of the charges, Ahe hadn=t the vaguest notion of what the possible consequences could be.@ Comp.Tr. 29.  A[H]e was not being responsive to the questions, and did not even seem to understand what I was trying to get at.@ Comp.Tr. 30.  Byron Black=s view of the case Awas like a broken record that he kept conveying to me that there was a big mistake.@ Comp. Tr. 30. AHe did not understand what a jury=s role would be.@ Comp. Tr. 31. He did not understand the role of witnesses in the court proceedings. Comp. Tr. 32. He did not understand the role of the District Attorney. Comp. Tr. 32.  He was unable to answer various other questions. Comp. Tr. 33-34.

Further, Byron had Ainappropriate expectations,@ viz. that Ahis attorney is going to come in with the key and let him out any minute, and he was literally looking at the door waiting for someone to come in to correct this great mistake.@ Comp. Tr. 35-36. He could not explain plea-bargaining, but instead made a guess that it had Ato do with praying, some religious function, and obviously not indicative of a true understanding.@ Comp. Tr. 36-37.

When asked by the Court whether Byron Black=s answers were appropriate, Dr. Anchor stated AThey were not responsive, so to that extent, they were not appropriate. I would ask a question and he would answer another kind of question, so they weren=t appropriate in that way.@ Comp. Tr. 46. Dr. Anchor noted that Byron was like a Abroken record.@ Comp. Tr. 47. He agreed that it would be difficult to have a meaningful conversation with Byron about the case. Comp. Tr. 47-48.

In addition to Byron Black=s lack of comprehension of the court process, Dr. Anchor emphasized that the combination of Byron=s limitations and the effects of the court process would compromise his ability to function at trial: A[W]hen one considers the personality test findings that he=s a blocked, rigid, repressed individual, this is one of the situations in which he is least likely to function satisfactorily. He is just not flexible, adaptable, resourceful enough to deal with the stresses and the demands which would be placed upon him during the course of a court proceeding.@ Comp. Tr. 13. He continued: AAs far as his mental condition, the mistrust, the paranoia, the tremendous apprehension and social anxiety that he feels, . . . will further aggravate his discomfort and distress in a proceeding that circles around him.@ Comp. Tr. 14-15.

Dr. Anchor specifically discussed what he found to be Byron=s various mental limitations:A[H]e seems to suffer from what I term impaired reasoning, logic, judgment and problem solving difficulties.@ Comp. Tr. 15.  Byron cannot think ahead: A[H]is planning abilities seem very deficient; that is, I don=t think he can look ahead much, beyond the next five, or ten, or fifteen minutes.@ Comp. Tr. 15. A[H]e=s not planful, he=s rigid, he=s mistrustful, very confused, a lot of shallowness to the quality of his responses.@ Comp. Tr. 37.  Likewise, Byron Black=s ability to use abstract thinking is Aan area of great deficiency for him.@ Comp. Tr. 16.

In concluding that Byron Black was incompetent, Dr. Anchor stated: AIn my opinion, the responses that he gave and my overall sense that there was no dishonesty or manipulativeness on his part led me to feel quite confident that this is an accurate conclusion.@ Comp. Tr. 18.  Even so, Dr. Anchor emphasized that Byron Black is not an accurate historian of his own life: A I would be disinclined to find his information reliable.@ Comp. Tr. 39.

b.         Defense Counsel Ross Alderman Testified about Byron Black=s Inability to Meaningfully Understand the Court Process and To Assist in the Defense

     Defense counsel Ross Alderman, who had spent numerous hours with Byron Black, also testified at the competency hearing, describing his ongoing interactions with Byron Black.

Alderman informed the court that in September 1988, AMr. Black was not able to deal with reality, that he was just completely misunderstanding his situation and misunderstanding what the procedure that was going on around him actually involved.@ Comp. Tr. 53. Alderman explained that Byron Black did not understand that he had in fact been charged with murder: AI don=t believe he still understands it, that he=s actually been indicted, as opposed . . .to his now just waiting to be charged at some point.@ Comp. Tr. 55. Byron persisted in asking when he was going to the grand jury. Comp. Tr. 55. When asked whether Byron Black understood the possibility of being sentenced to life in prison or death, Alderman stated: AI am not convinced that he understands that.@ Comp. Tr. 65.

Alderman explained that, based on his experience, it was apparent that Byron Black did not meaningfully understand the situation: AI supposed that I=m able to recognize when somebody does not understand what the system involves and is unable to provide me with the information I need or the assistance I need to effectively represent them@ Comp. Tr. 56-57.

As for Byron=s ability to work with counsel, Alderman explained: AIt=s like he and I were talking about apples and oranges. . . .[W]e simply were not talking about the same things.@ Comp. Tr. 61. A[H]e=s not assisting me in any way,@ he emphasized. Comp. Tr. 61-62. AHe doesn=t understand my questions and can=t give answers which are of any value to me.@ Comp. Tr. 62. 

Alderman also viewed Byron Black=s inability to deal with the situation as delusional. As to Byron Black=s understanding of the possible consequences of a trial, Alderman stated: AHe tells me that God will make sure that he=s not convicted.@ Comp. Tr. 62; See Comp. Tr. 64 (Byron Black said things that appeared delusional). Alderman plainly stated his beliefs about what he perceived to be Byron Black=s delusional thinking:

I believe that what Mr. Black is telling me is the product of delusion, that he is . . . not intentionally fabricating anything that he tells me that turns out not to be correct, but that he is deluded as to . . . both what his situation is right now and as to certain information he=s providing, that he appears to believe it=s correct, but that it=s all delusional.

 Comp. Tr. 66.⁹

c.         Three Witnesses Called By The Prosecution Testified That They Believed Byron Black Was Competent, After Conducting Brief Interviews With Byron Black

         The prosecution called three witnesses who opined that Byron Black was competent.  As will be shown, however, their evaluations were incompetent, incomplete, and a violation of the standard of care for a forensic psychiatric evaluation. They included absolutely no testing of Byron Black. They also were based upon a woefully inadequate and incomplete social history and medical investigation of Byron=s life.  Further, they were based upon the incorrect assumption that Byron Black was not retarded, and they were based upon incomplete information B the prosecution=s experts were not aware of Byron Black=s brain damage, neuropsychological impairments, and complete medical history.

1)         Leonard Morgan

Leonard Morgan, a clinical psychologist from the DeDe Wallace Mental Health Center, opined that Byron Black was competent. Comp.Tr. 67 et seq.  Morgan spent only a little over an hour with Byron Black. Morgan first met Byron Black on September 13, 1988, and a second time on February 16, 1989. Morgan=s September 13, 1988 meeting lasted but an hour. Comp. Tr. 78-79.  Morgan=s second meeting with Byron lasted about five minutes. Comp. Tr. 82.  As a result of that first one-hour meeting, Morgan wrote a brief one-page report. See Comp.Ex. 2. Morgan administered no tests, choosing to rely solely on his brief clinical interview. He gave Byron Black no tests whatsoever, because AI saw no reason to.@ Comp. Tr. 74.

2)         Brad Diner

Brad Diner, a psychiatric resident at Vanderbilt Hospital, also testified. Comp. Tr. 85 et seq.  At the time, Diner had been performing competency exams for only nine months. Comp. Tr. 86.  His forensic training in the area had merely involved a two-day workshop. Comp. Tr. 86-87. Prior to his testimony for the prosecution in this case, he had never testified in court concerning competency. Comp.Tr. 88. Diner=s evaluation of Byron Black was even more cursory than that of Morgan. In September 1988, Diner spent a mere forty-five (45) minutes with Byron Black. Comp. Tr. 90. Diner spent another ten (10) minutes with Byron in February, 1989. Comp.Tr. 101.

Like Morgan, Diner gave Byron no tests whatsoever. Comp. Tr. 98. Diner admitted on cross-examination that he did not have any specific recollection about what Byron said concerning the possible consequences of a trial, but insisted, AI think he understood the nature and the range of the possible consequences.@ Comp.Tr. 98-99.  Diner admitted that a delusional belief by Byron that God would rescue him can affect competence. Comp. Tr. 99.  Diner candidly admitted that Aif he was delusional, yes, he would be incompetent.@ Comp.Tr. 100.  Diner also admitted that Byron said that he was innocent and claimed that there was an organized plot against him by the police department. Comp.Tr. 93.

3)         Calvilyn Allmon

The prosecution also presented the testimony of Calvilyn Allmon, who was a social worker with the DeDe Wallace Mental Health Center. Comp. Tr. 102-103. Although she is not a psychologist or psychiatrist, Ms. Allmon stated that she too had evaluated Byron Black in September 1988. Comp.Tr. 105.¹⁰ Like Diner, Allmon spent a mere forty-five (45) minutes with Byron. Comp.Tr. 115.  Her social history report is not even 12 pages long. See Comp.Ex. 5 (Allmon report). Though she purportedly used a ACompetency Assessment Instrument@ when interviewing Byron Black, the instrument itself introduced at the competency hearing contains no markings whatsoever. See Comp.Ex. 4 (Blank Assessment Instrument).

According to Allmon, Byron Black related to her what supposedly had happened to the victims. Comp. Tr. 106. When asked about the possible consequences of a trial, Byron=s response was initially nonresponsive, but, according to Allmon, he understood the possible consequences of a trial. Comp.Tr. 107.

When she asked Byron about his childhood, Allmon found his answers Ainteresting.@ AI thought it was very interesting that he said he just had a marvelous childhood, that they never had any problems whatsoever in the family, that he got everything he wanted when he was growing up.@ Comp.Tr. 108.  Byron also told Allmon that he had not been married. Comp.Tr. 108. Byron also stated that he had no children. Comp.Tr. 108. Although Allmon Adoubted that he was telling me the truth,@ Comp.Tr. 114, she did nothing to verify the accuracy of Byron=s statements, because AI had no reason to.@ Comp.Tr. 114.  She never checked on Byron=s statements that he had never been married, had no children, and graduated from high school. Comp.Tr. 115.¹¹

The information Allmon received was either from Byron or in the information contained in the request for evaluation provided to her or had been provided by a social worker at the Criminal Justice Center. Comp.Tr. 108-109. Allmon interviewed no independent sources to obtain information about Byron=s background. Comp. Tr. 108-109. When asked again whether she verified any information provided by Byron, Allmon stated: ANo I didn=t. All I have to do is just state what he tells me,@ whether it was truthful or not. Comp.Tr. 116.

When asked about the roles of the various actors in the court process, Byron responded by providing what Allmon considered Asatisfactory analogies to who those people were in the courtroom.@Comp.Tr. 110. Allmon did not get the impression that there was anything going on in Byron=s mind that might interfere with his ability to understand her. Comp.Tr. 111. Allmon gave her opinion that Byron Black was competent to stand trial. Comp.Tr. 112.¹²

d.         The Trial Judge Appointed William Kenner To Provide An Opinion

Upon the conclusion of the cited proof, the judge was skeptical about Byron being mentally ill, because APeople don=t usually come upon serious mental illness all of a sudden at the age of thirty-two.@ Comp.Tr. 120.  The judge was also surprised that Dr. Anchor found that Byron Adoes so well in school.@ Comp.Tr. 121.

Defense counsel Ross Alderman addressed the judge=s concerns:

Number one, there isn=t any proof that in fact Mr. Black graduated from high school, or that he did well. We know what he said, but we also know that at least as to some facts, he clearly has misled somebody because he told Dr. Anchor that he had been married and had children.  He told Ms. Allmon that he had not been married and had no children. Ms. Allmon believed that at least as to other information and possibly even as to that, that he was just making it up for whatever reason.

I think that Dr. Anchor made it clear that intellectual capacity and incompetence for psychological reasons are not mutually exclusive. And that because someone apparently graduated from public schools in Davidson County in 1975 doesn=t mean that fourteen years later they cannot have degenerated because of some traumatic emotional experience, which I would submit to the Court Mr. Black has clearly experienced regardless of his culpability in this offense, that that can cause him to degenerate. . . .

So to say that it=s inconsistent for him to have graduated from high school, which there=s no proof he did B but even if he did, that fourteen years later he cannot have degenerated, I would submit is not something that can be said based on the evidence before the Court today.

 Comp.Tr. 122-123.¹³ The Court appointed Dr. William Kenner to provide an opinion about competency, and provided him all of the exhibits presented to the court to that point. Comp.Tr. 131.

e.         William Kenner         

Dr. Kenner reviewed the following materials: Dr. Anchor=s evaluation; Dr. Diner=s assessment from DeDeWallace; the page-and-a half social history by Allmon and her opinion; Dr. Morgan=s assessment; and MMPI results. Comp.Tr. 138, 147. Dr. Kenner also reviewed articles regarding the role of the defendant in a death penalty case. Comp.Tr. 145.  Dr. Kenner=s interaction with Byron Black was (like that of Morgan, Diner, and Allmon) quite brief.  Dr. Kenner spent approximately 12 hours with Byron over the course of two different days. Comp.Tr. 135. Like the prosecution=s witnesses, he conducted no testing and instead relied on the interview.

Although Kenner opined that Byron Black was competent, he noted what he believed to be Aminor impairment in reasoning, logic, judgment and problem solving simply from anxiety.@  Comp.Tr. 139.  Dr. Kenner described the impairment as Asomething that is reasonable and expectable under the circumstances.@ Comp.Tr. 139. Dr. Kenner believed that such impairments would not worsen as the trial approached. Comp.Tr. 139.

On cross-examination, Dr. Kenner recounted some of the statements made by Byron Black during his interview (Comp.Tr. 142) and admitted that he had not discussed with Byron the two stages of a capital murder trial. Comp.Tr. 143. Dr. Kenner and Byron did not discuss the legal aspects of the a sentencing phase of trial. Comp.Tr. 143-144. Byron did not demonstrate any understanding of such issues. Comp.Tr. 146.

Like Calvilyn Allmon, Dr. Kenner brushed off any discrepancies between what Byron might have said about his history and the truth, explaining that Ahe was probably polishing his apples a bit.@ Comp.Tr. 148. Dr. Kenner did admit, however, that a defendant who could not provide accurate information to defense counsel would pose a difficulty for defense counsel preparing a defense for the sentencing phase of a capital trial. Comp.Tr. 148.¹⁴

f.          The Court Hears Argument And Declares Byron Black Competent

Following the proof, Ross Alderman explained that the very limited interactions between the prosecution=s witnesses, Dr. Kenner, and Byron Black were insufficient to reveal the depth of Byron=s mental problems and limitations:

[I]t was my opinion, based on my experience in this case, that you can=t simply interview Mr. Black for a few hours and never have the opportunity to check anything that he tells you in terms of his background or his history, and say, okay, that=s fine, he=s competent, he understands what=s going on around him, because I think that even what Dr. Kenner said today establishes that he doesn=t understand what=s going on around him. He doesn=t understand B when asked what defense issues did he talk about, he talked about the fact that he felt like he=d been held without being indicted, he felt like he=d been held over long in maximum security. Those are not defense issues, please the court.

He discussed the fact that he believed that there was a relatively elaborate conspiracy to convict him of a crime he did not commit.

 Comp.Tr. 153.

Again, the judge was uncertain about why Byron Black didn=t seem to have a history of mental illness:

With no history of mental illness, with no indication of B although an indication of some low intelligence, no indication of mental retardation, a history that he could function in high school.  So I mean, with all due respect, I mean, this comes out of the blue. I mean, it=s different. If what you say is true, it=s different from any case I=ve ever seen . . . .

Comp.Tr. 154.¹⁵

Again, Ross Alderman noted that the evaluations by the various prosecution and court experts were not thorough: AI=d have to say that . . . an hour and a half of interview doesn=t pay the dues compared to a significant number of months of contact with a client.@ Comp.Tr. 155. A[T]o think that he still doesn=t understand, after being told time and again by counsel, that he has been indicted, and to think that he perceives a defense issue as the fact that he was held in maximum security over long, would tend to indicate that, while he may have some minimal capacity, that that capacity is not sufficient in this case to make him competent.@ Comp.Tr. 157. The trial court declared Byron Black to be competent to stand trial. Comp. Tr. 159-160.

3.         The Evidence Credited by the Trial Court Was Unreliable Because the Expert Witnesses Failed in Their Duty to Exercise the Customary Standard of Care Which is Required by Their Profession.

         On their face, the competency evaluations done by the prosecution=s experts and court expert were inadequate. As Dr. Globus has aptly noted:

Experts in the past who have found [Byron Black] competent failed to take sufficient history, performed very short interviews, did not use the collateral data base that is available, and seemed to suffer from the pre-conceived view of his status. They did not examine the role of disturbed and pathological affect (relation between his thinking and his mood) so abundant in his findings.

Exhibit 2, p. 8 (Report of Dr. Albert Globus, M.D.). 

4.         The Evidence Establishes That Byron Black Was Incompetent, And That The Determination Of Competency By The State Courts Was Based On Erroneous Conclusions Reached After Incomplete Evaluations 

a.         The Evidence Establishes That Byron Black Was Actually Incompetent  

As discussed supra, the evidence establishes that Byron Black is brain-damaged, mentally retarded, and mentally ill. Given the combination of these disabilities, as well as descriptions and testimony concerning Byron Black=s actual interactions with his attorneys before and during the trial (See infra), Byron Black was incompetent to stand trial.

Dr. Globus= evaluation establishes that Byron Black was incompetent:

[T]he clinical history reveals evidence of early onset brain damage secondary to alcohol ingestion by his mother. It was sufficient to produce an I.Q. lower than all but two or three per cent of the population. His verbal ability, learning, disability, memory defects, and poor perception of reality have induced a mental state resembling delusional. It has rendered him so defective in understanding that he can not ably and reasonably assist his attorney in his defense. 

Exhibit 2, p. 8 (Declaration of Dr. Albert Globus, M.D.).  Dr. Gur concurs that Byron Black would have been functioning at a level of incompetence:

[Byron Black=s] impairments affect all aspects of his ability to problem solve and process information. His impairment would seriously interfere with his ability to keep pace with courtroom proceedings 

Exhibit 1 &13 (Declaration of Ruben Gur, Ph.D.); See also Id. &12.  

Further, Ross Alderman considered Byron to be incompetent. This assessment is confirmed by the fact that, after the sentencing proceeding had concluded, Byron Black thought he would then get to testify. See Exhibit 25, p. 1 (Declaration of Ross Alderman: AAn example of just how out of touch Byron was with what was going on in the trial is when after the jury went out to deliberate on the issue of sentence, Byron asked me, >Do I get to testify now?= It was clear to me that Byron had not understood what had occurred in the proceedings.@). Pat McNally considered Byron Black incompetent. Dr. Bernet has declared that Byron Black was not competent because of his mental disabilities. P.C.Tr. 549-553. See pp. 22-23, supra.  Dr. Auble has likewise expressed her serious reservations about Byron Black=s competency.¹⁶

Consequently, given Byron Black=s numerous intellectual and neurological deficits, he was incompetent at the time of trial, and he is entitled to relief.¹⁷

b.         Byron Black Is Entitled To Plenary Review Of His Substantive Competency Claim, Respondent Is Not Entitled To Summary Judgment, And This Court Must Conduct A Full And Fair Hearing On Competency

Because a state cannot subject an incompetent person to trial, Drope v. Missouri, 410 U.S. 162, 171, 95 S.Ct. 896 (1975), the conviction of an incompetent person is void ab initio, a nullity. A criminal judgment against an incompetent person therefore has no legal effect whatsoever. As the Tennessee Supreme Court has stated, when a defendant is incompetent, Ano trial or judgment could be held against him,@ Athe proceeding is absolutely void,@ and consequently A[t]here is nothing . . . that could give such a judgment vitality.@ Bell v. State, 423 S.W.2d 482, 486 (Tenn. 1968).  See also Silverstein v. Henderson, 706 F.2d 361, 369 (2d Cir. 1983)(guilty plea void where made by incompetent person).

Because a judgment convicting an incompetent person by definition has no vitality, the state cannot enforce such a judgment by arguing that such a claim of incompetency is subject to procedural defenses such as procedural default. This is so, because society has no interest in imposing a criminal sanction in the complete absence of any power to do so. See Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953 (1989)(AThere is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.@)

Thus, the lower courts have recognized that Aa substantive competency claim . . . is not subject to waiver.@ Clayton v. Gibson, 199 F.3d 1162, 1170 n. 3 (10^th Cir. 1999). See Rogers v. Gibson, 173 F.3d 1278, 1290 (10^th Cir. 1999)(AA procedural competency claim may be procedurally barred, but a substantive mental competency claim may not.@).  Simply stated, A[C]ompetency cannot be waived or foreclosed by procedural default.@ Thomas v. Wainwright, 788 F.2d 684, 688 (11^th Cir. 1986). See also Vogt v. United States, 88 F.3d 587, 590 (8^th Cir. 1996); Adams v. Wainwright, 764 F.2d 1356, 1359 (11^th Cir. 1985); Medina v. Singletary, 59 F.3d 1095, 1107 (11^th Cir. 1995)(AThe Sykes procedural default rule does not . . . preclude review on the merits of a post conviction incompetency claim, even if the claim was not raised on direct appeal.@)

As a result, contrary to Respondent=s assertions of procedural default, there is no procedural impediment to this Court granting Byron Black habeas relief because Byron Black was actually incompetent to stand trial. Indeed, the burden was on the state to establish by a preponderance of the evidence that Byron Black was actually competent. Jordan v. State, 124 Tenn. 81, 89, 135 S.W. 327, 329 (1911), cited in Cooper v. Oklahoma, 517 U.S. 348, 359, 361 & n. 17, 116 S.Ct. 1373, 1379, 1380 & n. 17 (1996). Given the entire breadth of evidence concerning that issue B including the evidence presented at the time of trial and evidence revealed after the trial B the state has not satisfied that burden. See pp. 4-27, 34-39, 47, supra.

It is true that the state courts concluded that Byron Black was competent, but as noted supra (1) the state court conclusion was based upon lack of information and evaluations which were neither thorough nor accurate; (2) there is substantial evidence demonstrating that Byron Black was actually incompetent. Thus, any state court determination of competency is entitled to no deference in this court, as there is voluminous, clear and convincing evidence that the state court=s conclusion was factually incorrect. See 28 U.S.C. '2254(e)(1).

Consequently, Respondent is not entitled to summary judgment. Byron Black=s substantive competency claim is not defaulted.  There also remains a dispute over the material question whether Byron Black was incompetent. The motion for summary judgment must be denied.

B.         BYRON BLACK IS MENTALLY RETARDED (Petition &14) 

Byron Black is entitled to habeas relief and/or further proceedings, because he is mentally retarded, and, contrary to Respondent=s assertions, his claims are not procedurally defaulted. Accordingly, Respondent=s motion for summary judgment must be denied.

1.         Byron Black Is Mentally Retarded

As carefully described supra, Byron Black satisfies the criteria for being mentally retarded, as expressed by the DSM-III-R, and DSM-IV. Given this extensive evidence establishing that he is mentally retarded, Respondent cannot be entitled to summary judgment because, at a minimum, there remain disputed factual issues concerning Byron Black=s retardation. Respondent=s motion must therefore be denied.

2.         Byron Black=s Meritorious Constitutional Claim Is Not Barred From Federal Review 

There is also no procedural impediment to granting Byron Black habeas relief on his mental retardation claim. First, given his mental retardation, Byron Black is categorically ineligible for the death penalty under Tennessee law. Therefore, his claim cannot be procedurally defaulted, because to execute such a judgment against one who is ineligible for the sentence is a classic fundamental miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514 (1992)(miscarriage of justice results when petitioner not eligible for death penalty under state law); See also Thompson v. Calderon, 151 F.3d 918 (9^th Cir. 1998)(in successive habeas petition, capital habeas petitioner entitled to review of claims making him ineligible for the death penalty).

Second, exactly as the Supreme Court explained in Penry v. Lynaugh, 492 U.S. 302 (1989), any determination that Byron Black is mentally retarded and therefore ineligible for the death penalty under the Eighth and Fourteenth Amendments necessarily would be a rule of law which is retroactively applicable to Byron Black. The Supreme Court is now considering the constitutionality of executing the mentally retarded in Atkins v. Virginia, U.S.No. 00-8452, cert. granted 534 U.S. ___ (2001). Should Atkins be resolved favorably such that the Eighth Amendment is found to exclude the execution of the retarded, Byron Black would, for that additional reason, be entitled to the witness and affecting the weight of his testimony.@  Wilkerson, 233 F.3d at 890, (quoting United States v. Landerman, 109 F.3d 1053, 1062 (5^th Cir. 1997), quoting Davis, 415 U.S. at 316)).