David Raley Trial - Prosecutor's Trial Brief by BayAreaNewsGroup


									JEFFREY F. ROSEN (Bar No. 163589)
MATTHEW BRAKER (Bar No. 160906)
70 West Hedding Street, West Wing
San Jose, CA 95110
Telephone: (408) 792-2531

Attorneys for the People


                      IN AND FOR THE COUNTY OF SANTA CLARA

                                                     )   Santa Clara Case No.: 99021
In re                                                )   California Supreme Court No.:S18573666
                DAVID A. RALEY,                      )
                            Petitioner,              )
                On Habeas Corpus                     )   TRIAL BRIEF
                                                     )   Date:      September 9, 2013
                                                     )   Time:      9:00 AM
                                                     )   Dept.:     31

        Twenty six years after being sentenced to death, after all his appeals and writs have run,

Petitioner now, for the first time in his life, claims pursuant to Atkins v. Virginia 536 U.S. 304

(2002) that he is Intellectually Disabled (ID) (formerly referred to as mentally retarded) thereby

requiring his death sentence be negated. Petitioner is 51 years old thus requiring a 33 year

retrospective diagnosis. (ID requires onset before age 18.) In 1987, Petitioner was convicted

of the kidnap, attempted oral copulation by force (overturned on appeal) and first degree

murder of Jeanine G. He was also convicted of the kidnap, oral copulation by force and

attempted murder of Laurie M. The jury found two special circumstances in relation to the

murder of Jeanine G to be true: (1) murder in the commission of a kidnap, and (2) torture

murder. The jury also found that Petitioner used a deadly or dangerous weapon in murdering

Jeanine G. and he used such a weapon and inflicted great bodily injury upon Laurie M. The

details of this gruesome murder are recited in the Supreme Court's decision denying Petitioner's

direct appeal. (Exhibit A). The first penalty jury deadlocked. A second penalty jury heard

considerably more evidence, including prior sexual molestations committed by Petitioner, and

sentenced him to death.

       Petitioner was born and raised in San Jose, California. He attended and graduated

from Andrew Hill High School. Though his grades were not impressive he graduated in the

top 80% of his class. His class ranking was 252/ 320. With the exception of kindergarten,

which Petitioner entered at too young an age, Petitioner never repeated a grade. There is no

evidence he was ever referred to or enrolled in special education classes. No teacher is

reported to have expressed concerns that Petitioner was mentally retarded. No counselor is

reported to have expressed concerns that Petitioner was mentally retarded. In a 1987 interview

with the Public Defender's Office, Ralph Raley, Petitioner' father, stated that Petitioner

"learned more quickly at school than Kathy." Petitioner's sister, Kathy Raley Gamboa

described him as a "normal average kid" during a 1985 interview with the Public Defender's

Office. Prior to this claim, no previous psychologist or psychiatrist has ever diagnosed

Petitioner with mental retardation let alone characterized him as so impaired as to fall within

the range of mentally retarded offenders about whom there is a national consensus, the group

to whom the Atkins decision was targeted. In 1978, Petitioner saw a "psychiatrist" briefly

when he was approximately 17 years old after his parents learned he had sexually molested a 7

year old neighbor. There is no evidence to suggest that this "psychiatrist" diagnosed him as

mentally retarded. In 1986, in preparation for his defense at the trial in this case, Petitioner's

trial counsel, Bryan Schechmeister, consulted three mental health experts: Drs. Alfred French,

David Spiegel, and James Livingston. Each expert interviewed Petitioner. None diagnosed

him with mental retardation. In 2003, at the habeas hearing in District Court, Dr. Vernon

Foster testified on behalf of Petitioner. He did not diagnose Petitioner with mental retardation.

Also testifying on behalf of Petitioner was Diane Scalla Billas, a marriage family therapist

with a background of clinical psychology. Ms. Billas did not opine that Petitioner was

mentally retarded.

       In 1985, at the time of this crime, Petitioner was living at home with his father and his

older sister, Kathy. He possessed a driver's license. He was employed as security guard. He

attended classes to better himself as security guard and increase the likelihood of becoming a

police officer. He had passed a gun handling course. He had friends and an active social life.

Petitioner's good friend Robert Soper testified at the penalty phase trial that Petitioner "wasn't

special in any way, [he] was a normal person." Petitioner has never tested in the mental

retardation range on an IQ test. Petitioner acted alone in committing these horrible crimes and

the facts elicited at the trial show evidence of premeditation, cunning and problem solving, all

characteristics inconsistent with a diagnosis of Intellectual Disability.

       In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002) the United States Supreme

Court found that the execution of a mentally retarded person violated the Eighth Amendment to

the Constitution. Aided by seasoned foresight, the Supreme Court cautioned:

               To the extent there is serious disagreement about the execution
               of mentally retarded offenders, it is in determining which
               offenders are in fact retarded…..Not all people who claim to
               be mentally retarded will be so impaired as to fall within
               the range of mentally retarded offenders about whom
               there is a national consensus. As was our approach in Ford
               v. Wainright, 477 U.S. 399 (1986), with regard to sanity, "we
               leave to the States[s] the task of developing appropriate ways
               to enforce the constitutional restriction upon [their] execution
               of sentences." Id., at 405, 416-417. (emphasis added)
       The California Legislature responded by enacting section 1376, applicable in “any case

in which the prosecution seeks the death penalty.” (§ 1376, subd. (b)(1).) The current statute

defines “intellectual disability" as follows:

               (a)… a condition of significantly subaverage general
               intellectual functioning existing concurrently with deficits in
               adaptive behavior and manifested before 18 years of age.
               (emphasis added)

       At the hearing, the defendant bears the burden of proof by a preponderance of the

evidence. (§ 1376, subd. (b)(3).)

       Accordingly, there are three hurdles Petitioner must overcome: (1) significant

subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and

(3) onset before the age of 18. As will be shown, Petitioner fails to meet this burden on each

of the three prongs.

       In Atkins, the Supreme Court referenced two clinical definitions, the AAMR -American

Association on Mental Retardation, currently referred to as the AAIDD - American Association

on Intellectual and Developmental Disabilities and the APA - American Psychiatric

Association. These definitions were the foundation upon which Penal Code section 1376 was

formulated. As such, the Court may, but is not mandated to, rely upon them in determining the

meaning of significant subaverage general intellectual functioning and concurrent deficits in

adaptive behavior.

       The defense team should be mindful of the type of individuals to whom the Atkins

decision was targeted: those about whom there is a "national consensus." In Atkins the Court

stated, "its is estimated that between 1 and 3 percent of the population has an IQ between 70

and 75 or lower, which is typically considered the cutoff IQ for intellectual function prong of

the mental retardation definition. (Atkins at fn. 5) The DSM V, published this year, states that

"intellectual disability has an overall general population prevalence of approximately 1%."

Accordingly, Petition must prove to this Court that his intellectual functioning falls within the

bottom 1% of our population. The Atkins 249 court noted that mentally retarded individuals

have diminished capacities to process information, to communicate, to learn from experience,

to reason, to control impulses, and to understand the reactions of others. ( Id. at p. 318, 122

S.Ct. 2242, fn. omitted.) It also acknowledged evidence that “they often act on impulse rather

than pursuant to a premeditated plan, and that in group settings they are followers.” ( Ibid., fn.

omitted.) The court in Atkins concluded that these deficiencies diminish [the] personal

culpability of such defendants. ( Ibid.) In light of these deficiencies, the court identified two

reasons for excluding mentally retarded individuals from imposition of the death penalty: (1)

the justifications for the death penalty—retribution and deterrence—are not served by

executing the mentally retarded, and (2) the risk of wrongful execution is enhanced by various

factors, including the possibility of false confessions and their lesser ability to present evidence

in mitigation and to assist counsel. ( Id. at pp. 318–321, 122 S.Ct. 2242.)

       The Atkins court also stated, "there is abundant evidence that they often act on impulse

rather than pursuant to a premeditated plan, and that in group settings they are followers rather

than leaders." By contrast, here, there is evidence of premeditated actions and Petitioner acted

alone in carrying out these horrific crimes.


       Consistent with the Supreme Court's charge in Atkins that a death sentence should not

be imposed upon individuals who are so "impaired as to fall within the range of mentally

retarded offenders about whom there is a national consensus" California has rejected a fixed IQ

cut off score. Nonetheless, an IQ test score is an important and useful measure of intellectual

functioning that cannot be ignored. The DSM V states,

               Intellectual functioning is typically measured with individually
               administered and psychometrically valid, comprehensive,

                culturally appropriate, psychometrically sound tests of
                intelligence. Individuals with intellectual disability have
                scores of approximately two standard deviations or more
                below the population mean, including a margin of
                measurement error (generally +/- 5 points). On tests with a
                standard deviation of 15 and a mean of 100, this involves a
                score of 65-75 (70 +/- 5). Clinical training and judgment are
                required to interpret test results and assess intellectual

        Petitioner has never tested in the intellectual disability range. Below is a chart

illustrating IQ tests administered to the Petitioner and their results.

Year        Test                       Scores                   Normed After
1961        N/A                                             N/A    N/A    N/A
1979        None                                            N/A           N/A    N/A
(age 18)
1986        WAIS-R                                          83            1981     81
(age 25)
            Subtests                    Verbal             78
                                        Processing         94
2009        Woodcock Johnson III                           89
(age 48)    General Abilities Index
            (analogous to a Full
            Scale IQ using age-
            based norms)
2012        WAIS-IV                                        92             2008     91
(age 51)
                                        Verbal         93
            Subtests                    Comprehension
                                        Perceptual    102
                                        Working        83
                                        Processing     94

(A) VIDAL is distinguishable

       People v. Superior Court of Tulare County (2007) 40 Cal.4th 999 (Exhibit B) involved a

defendant, Jorge Vidal, who was charged with other defendants of committing murder with

special circumstances, torture, forcible sexual penetration and other crimes. Vidal moved under

Atkins and section 1376 to preclude imposition of a death sentence because of his mental

retardation. An Atkins hearing was held before a jury had been sworn or selected.

       The trial court concluded that Vidal was mentally retarded despite his Full Scale IQ

scores, which generally lay above the range considered to show mental retardation. The trial

court relied on expert testimony that "where testing showed an "extraordinarily wide

divergence between Performance and Verbal IQ scores, the Full Scale measure was not a fully

reliable measure." (Superior Court of Tulare County (2007) 40 Cal.4th           at p.1012-1013)

(hereafter Vidal) (emphasis added). In addition, the trial court relied on results of the Peabody

Picture Vocabulary Test which placed Vidal in the lowest percentile of the population. On

Appeal, the People urged the Court to hold as a matter of law that trial courts use the Full Scale

IQ Score. The Supreme Court declined and held "the trial court was not required to give

primary consideration to defendant's Full Scale IQ scores." (emphasis added)           The Court

reiterated that "mental retardation, as a question of fact, 'is not measured according to a fixed

intelligence test score or a specific behavior deficiency, but rather constitutes an assessment of

the individual's overall capacity based on a consideration of all the relevant evidence." This is

consistent with the court's decision in Hawthorne where the court stated, "experts also agree

that an IQ score below 70 may be anomalous as to an individual's intellectual functioning and

not indicative of mental impairment." (Hawthorne, Supra, 35 Cal. 4th at p. 48.)

       Petitioner will attempt to liken himself to Vidal for the argument that reliance on a full

scale IQ score can be misleading for autistic persons who score exceptionally well in one of the

subtests, which then raises the overall score to create the appearance of average intelligence.

However, the comparisons are not apt in this case. Vidal took the Wechsler five times between

1980 and 2003. In every test his score on the Verbal subtest placed him in the Mental

Retardation range, and the average spread between his Verbal and Performance subtests was 45

points. Here, Petitioner has never scored on any subtest in the Mental Retardation range, his

spread between the subtests in 1986 was only 16 points, and under the newly formatted version

of the test in 2012, the greatest spread between any of the subtests was 19 points.

       In addition, the characteristics of mentally retarded people, as described in Atkins, that

warrant excluding them from the death penalty apply to Vidal, but not to Raley. For example,

Vidal acted as part of a group. The Atkins court raised a specific concern about the fact that

mentally retarded people often follow others in a group setting and this fact undermines one of

the justifications for the death penalty. Unlike Vidal, Raley acted alone, thus that concern does

not apply.

(B) The Flynn Effect should not be applied

       Petitioner is likely to ask the court to "shave points" off his full scale IQ score using

the "Flynn Effect." The Flynn Effect posits that, over time, the IQ scores of a population rise

without corresponding increases in intelligence. Dr. James R. Flynn, who first put forth this

theory, concluded that the average increase in IQ is approximately three points per decade, or

0.33 points per year. Thus, Petitioner will argue that his IQ scores need to be reduced 0.33

points for each year from the date the test was normed to the date the test was administered to

Petitioner. While it is true that DSM V references the Flynn Effect and it was applied in Vidal,

as discussed below, great controversy surrounds the Flynn Effect and whether, if it exists at all,

it should properly be applied in the context of Atkins hearings.

       First, it is expected that even Petitioner's experts will acknowledge the Flynn Effect

is not routinely applied in clinical settings as a matter of professional practice.

       Second, a brief foray on Westlaw unearthed a host of published opinions

acknowledging the controversial nature of the Flynn Effect. The following is a sampling of

persuasive decisions in which the Flynn Effect was rejected in the past two years. With the

Court’s indulgence, the People will quote at length in order that the issues and analyses will be

fully and fairly presented.

       In Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012), the Tenth Circuit carefully

examined the claims of the Flynn Effect and concluded its theory remained controversial and

its application was not required:

               However, neither Murphy nor its progeny requires an
               adjustment for the Flynn Effect, see Murphy, 54 P.3d at

567–68; see also Smith, 245 P.3d at 1237 n. 6 (“[U]nder the
Oklahoma statutory scheme, the Flynn Effect, whatever
its validity, is not a relevant consideration in the mental
retardation determination for capital defendants.”), and the
OCCA did not address its relevance on direct appeal. It
mentioned it briefly on collateral review, stating that “some
experts noted Hooks's reliable score of 72 could have been
slightly inflated [due to the Flynn Effect].” Hooks Atkins
Collateral, slip op. at 8–9. The only Flynn Effect evidence
presented to the Atkins jury came from the testimony of Dr.
Gelbort, who noted that the Flynn Effect is a “well-researched
and published” phenomenon, and suggested that “people who
talk about the Flynn Effect would argue” that certain of Mr.
Hooks's IQ scores are “a little higher than [they] ought to be,”
due to the non-current population samples that were used to
normalize (i.e., derive a population mean for) his scores. Mr.
Hooks argues that the OCCA's failure to account for and apply
the Flynn Effect was “contrary to Atkins because it fails to deal
with the real [IQ] scores.”

The OCCA's failure to account for and apply the Flynn Effect
was not “contrary to” or “an unreasonable application of”
clearly established federal law, 28 U.S.C. § 2254(d)(1),
because the threshold requirement—the existence of clearly
established federal law—is not met here. See House, 527 F.3d
at 1015. Atkins does not mandate an adjustment for the
Flynn Effect. Moreover, there is no scientific consensus on
its validity. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir.
2010) (“[T]he Flynn effect is a statistically-proven
phenomenon, although no medical association recognizes its
validity.”); Frank M. Gresham & Daniel J. Reschly, Standard
of Practice and Flynn Effect Testimony in Death Penalty
Cases, 49 Intell. & Developmental Disabilities 131, 131, 136–
37 (2011) (arguing that the Flynn Effect is “a well-established
psychometric fact” that should be accounted for in IQ testing,
but noting the lack of a consensus in the clinical community
on its use). In addition, federal and state courts are divided
over the use of the Flynn Effect, and “there is no uniform
consensus regarding the application of the Flynn effect in
determining a capital offender's intellectual functioning.”
Thomas, 607 F.3d at 757–58 (collecting cases); see also

               Maldonado v. Thaler, 625 F.3d 229, 238 (5th Cir. 2010)
               (“[N]either this court nor the [Texas Court of Criminal
               Appeals] has recognized the Flynn Effect as scientifically

689 F.3d at 1169-70 (record citations omitted; emphasis provided).

       Similarly, in the habeas case of Maldonado v. Thaler, 625 F.3d 229 (5th Cir. 2010),

the Fifth Circuit rejected a claim of error in a death penalty case based on a refusal to apply

the Flynn Effect, writing:

               [Defendant] Maldonado also argues that this court should not
               credit Dr. Denkowski'stestimony because he failed to take
               account of the “Flynn Effect,” which “posits that, over time
               the IQ scores of a population rise without corresponding
               increases in intelligence and thus the test must be re-
               normalized over time.” In re Mathis, 483 F.3d
               395, 398 n. 1 (5th Cir. 2007). As the district and state habeas
               courts recognized, however, neither this court nor the TCCA
               has recognized the Flynn Effect as scientifically valid. See
               id.; see also In re Salazar, 443 F.3d 430, 433 n. 1 (5th Cir.
               2006); Neal v. State, 256 S.W.3d 264, 273 (Tex.Crim.App.
               2008) (“We have previously
               refrained from applying the Flynn effect ..., noting that it is an
               ‘unexamined scientific concept’ that does not provide a
               reliable basis for concluding that an appellant has
               significant sub-average general intellectual functioning.”)
               (quoting Ex parte Blue, 230 S.W.3d 151, 166 (Tex.Crim.App.
               2007)). Maldonado's arguments do not show that the state
               habeas court unreasonably applied federal law, nor do they
               rebut the presumption of correctness that attaches to the state
               habeas court's decision to credit the raw score.

625 F.3d at 238 (emphasis provided.)

       There is no dearth of articles and psychology journals disputing the validity of

the Flynn Effect. (See Leigh D. Hagan, Eric Y Drogin and Thomas J. Guilmette, IQ Scores

Should Not Be Adjusted fro the Flynn Effect in Capital Punishment Cases, JOURNAL OF

PSYCHOEDUCATIONAL ASSESMENT (2010); George C. Denkoski and Kathryn M.

Denkoski, WAIS-III IQs of Criminal Defendants with Mental Retardation Claims Should Not


(2007); Alan S. Kaufman, In What Way are Apples and Oranges Alike? A Critiqe of Flynn's


(2010); Michael Shayer and Denise Ginsburg, Thirty Years On A Large Anti-Flynn Effect?,


       Finally, there is no support for applying the Flynn Effect to the Woodcock Johnson

exam. The studies conducted by Flynn involved the WAIS and Stanford Binet IQ tests.

       Hence, based on the briefest of surveys, it is clear that the Flynn Effect remains questionable

in its theory and highly controversial in its application to the Atkins setting.


       In addition to significantly subaverage general intellectual functioning California

Penal Code section 1376 requires concurrent deficits in adaptive behavior. The phrase

adaptive behavior is not defined in the Penal Code. Calcrim 775 defines adaptive behavior as

"the set of learned skills that people generally need to function in their everyday lives. Those

skills include communication, self-care, home-living, social/interpersonal skills, use of

community resources, self-direction, functional academic skills, work, leisure, health and

safety." The jury instruction requires "deficits in two or more areas of adaptive behavior." This

definition and the requirement of a deficit in two or more areas was derived from the DSM and

AAMR (currently AAIDD).

       This year, the DSM V changed the definition of adaptive deficits. Adaptive behavior

now is divided into three domains: conceptual, social and practical. The DSM V criteria for a

diagnosis is described as follows:

               Deficits in adaptive functioning that result in failure to meet
               developmental and sociocultural standards for personal
               independence and social responsibility. Without ongoing
               support the deficits limit functioning in one or more activities
               of daily life, such as communication, social participation, and
               independent living, across multiple environments, such as
               home, school, work and community.
               (DSM V, Intellectual Disability, Diagnostic Criteria)

       This criteria "is met when at least one domain of adaptive functioning -- conceptual,

social, or practical -- is sufficiently impaired that ongoing support is needed in order for the

person to perform adequately in one more or more life settings at school, at work, at home, or

in the community." (DSM V, Intellectual Disability, Diagnostic Features)

       Most importantly, "[t]o meet diagnostic criteria for intellectual disability, the deficits in

adaptive functioning must be directly related to the intellectual impairments described in

criterion A." (Emphasis added.)

        Therefore, to satisfy prong two of an intellectual disability as defined in California

Penal Code section 1376, Petitioner must prove the following: (1) the existence of adaptive

deficits, (2) those deficits are so significant that on going support is needed to avoid limitations

in functioning in one or more activities of daily life, and (3) the adaptive deficits are the result

of intellectual impairments not some other condition such as autism or a learning disability.

        To meet his burden, Petitioner is left with the daunting task of conducting a

retrospective analysis of his abilities thirty three years prior. His efforts fall well short of those

needed to satisfy his burden. In fact, Petitioner not only fails to show the necessary link

between intellectual impairment and adaptive deficits but instead provides an alternate

explanation for his alleged adaptive deficits: autism.

        Petitioner employed two methods to show the existence of adaptive deficits thirty three

years prior. First, he relies on anecdotal evidence in the form of declarations of individuals who

"knew" Petitioner in varying degrees three, four and sometimes five decades prior. The

reliability of these declarations will be the subject of scrutiny at the impending hearing.

Second, Petitioner's retained exert, Dr. B.J. Freeman administered two adaptive skills tests,

Vineland II and ABAS II, to a variety of individuals in an effort to have those individuals

provide an assessment of Petitioner before he reached age 18. These individuals, called

"raters", were asked 100s of very specific questions attempting to detail Petitioner's abilities

decades prior. Not surprisingly, many were incapable of completing the tests in full and the

basis for the information they provided is unknown and subject to interpretation. As a result of

the inherent difficulties of a thirty three year old retrospective analysis of the defendant's

abilities, the numerical values that Dr. Freeman derives from the ABAS and Vineland testing

lacks any precision or validity. Accordingly, the weight to be given to these testing results and

the anecdotal evidence is minimal and does not rise to level needed to meet their burden.


        As discussed above, an Intellectual Disability diagnosis under Penal Code Section 1376

requires proof that the condition existed prior to age 18. Without an IQ test occurring prior to

age 18 or any valid independent evidence showing an intellectual deficit prior to age 18,

Petitioner fails to satisfy this prong as well.


        The challenge laid down by the Supreme Court in Atkins was for the States and the

Courts to discern and apply established clinical practice in order to identity the “approximately

one percent of the population” that is legitimately afflicted by the “relatively rare” phenomenon

of intellectual disability and “about whom there is a national consensus.” The Supreme Court’s

decision in Atkins was not an invitation to distort, manipulate, and/or adulterate existing clinical

standards and practices in order to obtain specific outcomes or results in death penalty cases.

                                                  Respectfully submitted,

                                                  Matthew Braker
                                                  Deputy District Attorney



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