State v. Williams

2021 Ohio 241, 167 N.E.3d 527

• Court: Ohio Court of Appeals
• Decided: January 29, 2021
• Docket: 2019-T-0028
• Status: Published

Opinion

[Cite as State v. Williams, 2021-Ohio-241.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2019-T-0028 - vs - :

ANDRE R. WILLIAMS, :

Defendant-Appellant. :

Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 1988 CR 00365.

Judgment: Reversed and remanded.

Dennis Watkins, Trumbull County Prosecutor; Diane Barber & Ashleigh Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

Stephen C. Newman, Federal Public Defender; Alan C. Rossman & Jillian S. Davis, Office of the Federal Public Defender, Capital Habeas Unit, Skylight Office Tower, 1660 West Second Street, Suite 750, Cleveland, OH 44113 (For Defendant-Appellant).

TIMOTHY P. CANNON, J.

{¶1} Andre R. Williams, an offender on Ohio’s death row, appeals from the April

11, 2019 judgment of the Trumbull County Court of Common Pleas, denying Williams’

petition for postconviction relief. Pursuant to Atkins v. Virginia, 536 U.S. 304 (2002),

Williams claims he is intellectually disabled and challenges imposition of the death penalty

against him as cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The judgment is reversed, and the matter is remanded for

further proceedings consistent with this opinion.

Relevant Procedural History

{¶2} Williams and a co-defendant were charged with the home invasion and

murder of George Melnick and the attempted murder of Katherine Melnick. Williams was

additionally charged with the rape of Katherine Melnick. In 1989, a jury found Williams

guilty of three counts of aggravated murder and four death penalty specifications for each

count; attempted aggravated murder; aggravated burglary; aggravated robbery; and the

lesser included offense of attempted rape. During the penalty phase, the prosecution

moved to dismiss two of the aggravated murder charges. The jury unanimously

recommended a sentence of death on the remaining count of aggravated murder based

on the underlying felony of aggravated burglary. The Trumbull County Court of Common

Pleas sentenced Williams to the death penalty and prison terms. The Supreme Court of

Ohio upheld Williams’ convictions and death sentence in State v. Williams, 74 Ohio St.3d

569 (1996).

{¶3} Williams’ initial claim for habeas relief from the federal courts was filed in

1999. Subsequent to the denial of his habeas petition, the United States Supreme Court

decided Atkins v. Virginia, 536 U.S. 304 (2002). Atkins stands for the proposition that the

execution of an intellectually disabled criminal is “cruel and unusual punishment”

prohibited by the Eighth Amendment to the United States Constitution. Id. at syllabus.

{¶4} Following Atkins, the Supreme Court of Ohio developed procedures and

substantive standards for resolving claims of intellectual disability in the context of death

penalty cases (“Atkins claims”). State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625. The

2 Court set forth a three-part test for intellectual disability (the “Lott Test”): (1) significantly

subaverage intellectual functioning; (2) significant limitations in two or more adaptive

skills, such as communication, self-care, and self-direction; and (3) onset before the age

of 18. Id. at ¶12. The Lott Court further held that IQ tests alone “are not sufficient to

make a final determination” on the issue and that “there is a rebuttable presumption that

a defendant is not [intellectually disabled]1 if his or her IQ is above 70.” Id.

{¶5} In 2003, Williams filed an Atkins claim with the Trumbull County Court of

Common Pleas via a petition for postconviction relief. On October 19, 2004, the trial court

granted summary judgment to the state of Ohio and dismissed Williams’ petition without

hearing. The trial court found Williams failed to meet his burden to submit evidentiary

documents containing sufficient operative facts to demonstrate intellectual disability

because (1) his expert witness had reported Williams obtained a full scale IQ of 75, which

did not meet the criteria based upon the Lott definition; and (2) the evidence revealed no

deficiencies in adaptive skills. On appeal, this court reversed the trial court’s judgment

and remanded the matter for the trial court to address the issues of dismissal and

summary judgment separately and to enter a new judgment on Williams’ petition. State

v. Williams, 165 Ohio App.3d 594, 2006-Ohio-617, ¶21 (11th Dist.), appeal not accepted,

110 Ohio St.3d 1410 (2006).

{¶6} On remand, the trial court issued a revised entry granting summary

judgment to the state without holding a hearing and without any new testing of Williams.

This court affirmed the trial court’s judgment. We held that “[t]he only criterion for which

Williams met his burden [to raise a genuine issue of material fact] is the third criterion.

1. Until relatively recently, “intellectual disability” was nominally referred to as “mental retardation.”

3 The evidence before the court does demonstrate that Williams had indications of

[intellectual disability] before the age of 18.” State v. Williams, 11th Dist. Trumbull No.

2007-T-0105, 2008-Ohio-3257, ¶34, appeal not accepted, 120 Ohio St.3d 1453 (2008).

Unlike the trial court, we credited Williams’ school and psychological records, which

included the school psychologists’ description of “educable mentally retarded”; a full scale

IQ score of 67 from the age of nearly 16; and an evaluation that determined Williams’

adaptive behavior functioning was several years behind his actual age in areas of

communication and self-direction. Id. We rejected this evidence, however, in assessing

whether Williams satisfied the first two Lott factors because it did “not constitute

competent evidence from which inferences may be made regarding his present mental

capacity.” Id. at ¶37 (emphasis added).

{¶7} In 2009, Williams filed an Atkins claim in the federal district court via a

petition for habeas corpus. The district court held that, because we had determined

Williams satisfied the “age of onset” criterion, it needed only review our factual

determinations regarding the other two criteria. The district court held our factual

determinations that Williams failed to demonstrate “significant subaverage intellectual

functioning” and “adaptive skills deficits” was not unreasonable in light of the evidence

presented. Williams v. Mitchell, N.D.Ohio No. 1:09 CV 2246, 2012 WL 4505774, *38

(Sept. 28, 2012).

{¶8} The U.S. Sixth Circuit Court of Appeals vacated the district court’s decision,

finding this court’s decision was contrary to clearly established federal law for a number

of reasons. Williams v. Mitchell, 792 F.3d 606 (6th Cir.2015).

4 {¶9} First, the Sixth Circuit criticized our “wholesale exclusion” of past evidence

of intellectual disability in determining whether Williams has significantly subaverage

mental functioning and adaptive skills limitations as “opposite” and “directly contrary” to

clearly established Federal law set forth in Atkins: “notwithstanding the Lott court holding

that past evidence of intellectual functioning (e.g., past IQ scores, evidence of adaptive

limitations from ‘early-life’) was relevant to the three Atkins factors, the court of appeals

rejected outright any pre-1989 evidence from its analysis of Williams’s intellectual

functioning and adaptive skills, despite finding this same evidence showed that Williams

was intellectually disabled before he turned eighteen.” Id. at 617. “[T]here is no basis for

the Ohio Court of Appeals to have assumed, as it apparently did, that most low childhood

IQ scores (or, to be precise, age-fifteen IQ scores) are the result of developmental

delays.” Id. at 618. “[B]ecause intellectual disability manifests itself during childhood and

remains static throughout life, evidence of intellectual disability from one point in life is

relevant to an examination of intellectual disability in another.” Id. at 619, citing State v.

White, 118 Ohio St.3d 12 (2008) and State v. Lorraine, 11th Dist. Trumbull No. 2006-T-

0100, 2007-Ohio-6724.

{¶10} Second, the Sixth Circuit held that our ruling was “contrary to the

established definition of intellectual disability as set forth in clearly established Supreme

Court precedent” by categorically excluding “substantial and weighty evidence” from our

analysis and ignoring the medical community’s determination that intellectual disability

manifests before the age of 18. Id. at 619, 621. “Importantly, the clinical definitions cited

with approval by Atkins and adopted by Lott do not treat present functioning and early

onset as unrelated parts of a disconnected three-part test. To the contrary, a plain reading

5 of these clinical definitions makes clear that if an individual is indeed presently

intellectually disabled, as the term is understood, the disability would have manifested

itself before the individual turned eighteen.” Id. at 619-620, citing Heller v. Doe, 509 U.S.

312, 323 (1993) (intellectual disability “is a permanent, relatively static condition”) and

Hall v. Florida, 572 U.S. 701, 724 (a petitioner must be able to present evidence regarding

“deficits in adaptive functioning over his lifetime”).

{¶11} Finally, the Sixth Circuit found our decision “applied an arbitrary and

disproportionate evidentiary rule to exclude the pre-1989 evidence at issue,” thereby

abridging Williams’ due process right to present evidence. The Sixth Circuit noted that

this arbitrary “cutoff” resulted in a categorical exclusion only to evidence that was

submitted by Williams. Id. at 622-623, citing United States v. Scheffer, 523 U.S. 303, 308

(1998) and Holmes v. S. Carolina, 547 U.S. 319, 326 (2006) (“the Constitution thus

prohibits the exclusion of defense evidence under rules that serve no legitimate purpose

or that are disproportionate to the ends that they are asserted to promote”).

{¶12} The Sixth Circuit issued a remand order for the district court to grant a writ

of habeas corpus prohibiting imposition of the death penalty against Williams,

“conditioned upon a fresh analysis by the Ohio courts as to whether Williams is

intellectually disabled pursuant to governing law.” Id. at 624 (citations omitted).

In remanding, we note that clearly established Federal law, as set forth above, requires courts to consider all relevant evidence bearing on an individual’s intellectual functioning and to apply clinical principles of intellectual disability adopted by federal precedent. Indeed, the most recent evidence in the record is well over ten years old, so this could include presentation of new evidence from both Williams and the State relevant to Williams’s functioning. But whether to grant an evidentiary hearing after considering all relevant evidence and applying the applicable law is for the state court to decide in the first instance.

6 Id. (internal citations omitted).

{¶13} On remand, the district court ordered the state of Ohio to initiate

proceedings in the Trumbull County Court of Common Pleas to reassess Williams’ Atkins

claim in his 2003 petition for postconviction relief, pursuant to the Sixth Circuit’s opinion.

{¶14} The trial court held an evidentiary hearing on Williams’ Atkins claim over

multiple days in 2016 and 2017. Ultimately, on April 11, 2019, the trial court issued a 43-

page judgment entry, concluding Williams failed to carry his burden under Atkins and Lott.

The trial court concluded:

Under the first prong, because Defendant’s IQ scores were borderline and did not definitively show that Defendant is intellectually disabled, this Court followed the mandate of Hall and assessed Defendant’s adaptive functioning. This Court has determined that Defendant has not proven that he has significant limitations in adaptive functioning. Finally, under the third prong, Defendant has failed to prove onset before the age of 18. For all the reasons stated above, the Court finds that Petitioner failed to carry his burden.

{¶15} Williams’ petition for postconviction relief was again denied. Williams

noticed the instant appeal from this denial.

Subsequent Judicial Precedent

{¶16} Subsequent to filing his notice of appeal with this court, the Supreme Court

of Ohio decided State v. Ford, announcing the “Lott Test” was outdated. The Court set

forth an updated three-part test for intellectual disability (“the Ford Test”) and held that

the rebuttable presumption that a defendant is not intellectually disabled if his or her IQ

score is above 70 is no longer valid. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539,

¶100. In reaching this decision, the Ohio Supreme Court analyzed the relatively recent

United States Supreme Court decisions of Hall v. Florida, 572 U.S. 701 (2014) and Moore

7 v. Texas, 581 U.S. ___, 137 S.Ct. 1039 (2017) (“Moore I”), which struck down state-court

decisions on intellectual disability by applying updated medical diagnostic standards.

Ford, supra, at ¶46-55.

{¶17} Even without the benefit of the Ford decision, the trial court relied on the

recent United States Supreme Court precedents in concluding that Williams did not meet

his burden to prove any part of his Atkins claim. Accordingly, we proceed to the merits of

Williams’ appeal.

Legal Standards for Assessing Intellectual Disability

United States Supreme Court

{¶18} In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court of the

United States held that, in light of our “evolving standards of decency,” the execution of

intellectually disabled individuals violates the Eighth Amendment’s ban on cruel and

unusual punishments. The Court explained,

[Intellectually disabled] persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but 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. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.

Id. at 318. The Atkins Court also found that intellectually disabled offenders in the

aggregate are at “special risk of wrongful execution” due to the possibility of false

confessions, difficulty with providing meaningful assistance to counsel and persuasively

8 showing mitigation, and a demeanor that may create an unwarranted impression of lack

of remorse. Id. at 320-321.

{¶19} Because of disagreement and difficulty in determining which offenders are

in fact intellectually disabled, the United States Supreme Court left to the states the task

of developing appropriate procedures to enforce this constitutional restriction on capital

punishment. Id. at 317, citing Ford v. Wainwright, 477 U.S. 399, 416-417 (1986).

{¶20} The Court in Atkins referred to then current clinical manuals of the American

Association on Mental Retardation (“AAMR”) and the American Psychiatric Association

(“APA”). These definitions required (1) significantly subaverage intellectual functioning;

(2) significant limitations in two or more adaptive skill areas, such as communication, self-

care, and self-direction, etc., and (3) onset before the age of 18. Atkins, supra, at 308,

fn. 3. Thus, while “the States play a critical role in advancing protections and providing

the Court with information that contributes to an understanding of how intellectual

disability should be measured and assessed, * * * Atkins did not give the States unfettered

discretion to define the full scope of the constitutional protection.” Hall, supra, at 719.

{¶21} The United States Supreme Court has since applied updated medical

diagnostic standards in striking down state-court decisions on intellectual disability:

namely, the Intellectual Disability: Definition, Classification, and Systems of Supports

(“AAIDD-11”), a clinical manual published in 2010 by the American Association on

Intellectual and Developmental Disabilities (“AAIDD”) (f.k.a. the AAMR); and the

Diagnostic and Statistical Manual of Mental Disorders (5th Ed.2013) (“DSM-5”) published

in 2013 by the APA. See id. at 704-705, 713, 722-723.

9 {¶22} In 2014, the United States Supreme Court declared courts must consider

the standard error of measurement (“SEM”) when evaluating an offender’s IQ score. Id.

at 722-723. The United States Supreme Court therefore modified Atkins’ first prong by

declaring that, “when a defendant’s IQ test score falls within the test’s acknowledged and

inherent margin of error, the defendant must be able to present additional evidence of

intellectual disability, including testimony regarding adaptive deficits.” Id. at 723.

{¶23} Each IQ test has a SEM, and the SEM for each test is different. “A test’s

SEM is a statistical fact, a reflection of the inherent imprecision of the test itself.” Id. at

713-714 (citations omitted). “An individual’s IQ test score on any given exam may

fluctuate for a variety of reasons,” such as the subject’s health, the examiner’s demeanor,

the practice effect, environment or location, subjective scoring of certain questions, and

even guessing. Id. at 713, citing the AAIDD-11 User’s Guide (2012). “The SEM reflects

the reality that an individual’s intellectual functioning cannot be reduced to a single

numerical score. For purposes of most IQ tests, the SEM means that an individual’s

score is best understood as a range of scores on either side of the recorded score [e.g.,

five points on either side] * * * within which one may say an individual’s true IQ score lies.”

Id.

{¶24} The Hall Court further explained: “The legal determination of intellectual

disability is distinct from a medical diagnosis, but it is informed by the medical

community’s diagnostic framework. * * *[This] is of particular help here, where no

alternative definition of intellectual disability is presented and where this Court and the

States have placed substantial reliance on the expertise of the medical profession.” Id.

at 721-722.

10 {¶25} The next year, applying its decision in Hall, the United States Supreme

Court found unreasonable a state court’s finding that a defendant’s IQ score of 75 was

inconsistent with subaverage intelligence when, accounting for the SEM, the score was

“squarely in the range of potential intellectual disability.” Brumfield v. Cain, 576 U.S. 305,

314-316 (2015).

{¶26} In 2017, the United States Supreme Court held that, “[i]n determining the

significance of adaptive deficits, clinicians look to whether an individual’s adaptive

performance falls two or more standard deviations below the mean in any of the three

adaptive skill sets (conceptual, social, and practical).” Moore I, supra, at 1046, citing

AAIDD-11 at 43 and DSM-5 at 33, 38 (“deficits in only one of the three adaptive-skills

domains suffice to show adaptive deficits”) (emphases added). This is a modification of

Atkins’ second prong, which required significant limitations in at least two adaptive skill

areas. Two years later, the Supreme Court again emphasized the need for judicial

scrutiny of the adaptive behavior prong in accordance with clinical guidelines and

recommendations. Moore v. Texas, 586 U.S. ___, 139 S.Ct. 666 (2019) (“Moore II”).

{¶27} Thus, the updated definition of intellectual disability from the United States

Supreme Court contains three core elements: (1) “intellectual-functioning deficits

(indicated by an IQ score ‘approximately two standard deviations below the mean,’—i.e.,

a score of roughly 70—adjusted for ‘the standard error of measurement’),” (2) significant

adaptive deficits (indicated by “performance that falls two or more standard deviations

below the mean”) in any of the three adaptive skill set domains (conceptual, social,

practical), and (3) the onset of these deficits while still a minor. Moore I at 1045-1046,

citing Hall at 709-710 and AAIDD-11 at 27, 43, supra.

11 Supreme Court of Ohio

{¶28} Applying these updates in Ford, the Supreme Court of Ohio held that the

Lott Test is outdated to the extent it (1) required a finding of significant limitations in two

or more adaptive skills and (2) applied a rebuttable presumption that an offender is not

intellectually disabled if his or her IQ score is above 70. Ford, supra, at ¶97, citing Lott,

supra, at ¶12. “IQ scores are imprecise and ‘should be read not as a single fixed number

but as a range.’” Id., quoting Hall, supra, at 712.

{¶29} The Ford Court further held that a trial court should consider evidence

presented on the “Flynn Effect,” which is a “‘generally recognized phenomenon’ in which

the average IQ scores produced by any given IQ test tend to rise over time, often by

approximately three points per ten years from the date the IQ test is initially standardized.”

Id. at ¶87, quoting Black v. Carpenter, 866 F.3d 734, 738, fn. 1 (6th Cir.2017) (internal

quotations omitted). The Flynn Effect is distinct from the SEM. Id. “The AAIDD

recommends that in ‘cases in which a test with aging norms is used as part of a diagnosis

of [intellectual disability], a corrected Full Scale IQ upward of 3 points per decade for age

of the norms is warranted.’” Id. at ¶90, quoting AAIDD-11 at 23. Because it was not

discussed in Hall or Moore I, however, the Ford Court held that it is within the trial court’s

discretion whether to include the Flynn Effect as a factor in the IQ scores. Id. at ¶92.

{¶30} The Ohio Supreme Court concluded Ford with an updated definition for

state courts to apply when determining whether an offender is intellectually disabled for

purposes of the death penalty. Courts must consider the following three core elements:

(1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower when adjusted for the [SEM]);

12 (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical); and

(3) the onset of these deficits while the defendant was a minor.

Id. at ¶100.

Standard of Review

{¶31} The procedures for postconviction relief outlined in R.C. 2953.21 et seq.

provide the statutory framework for reviewing an Atkins claim. The petitioner raising an

Atkins claim bears the burden of establishing that he or she is intellectually disabled by a

preponderance of the evidence. Lott, supra, at ¶13, ¶21 (citations omitted).

{¶32} In considering an Atkins claim, the trial court shall conduct a de novo review

of the evidence in determining whether the petitioner is intellectually disabled. “The trial

court may consider expert testimony and appoint experts if necessary in deciding this

issue. The trial court shall make written findings and set forth its rationale for finding the

defendant intellectually disabled or not intellectually disabled.” Ford, supra, at ¶100.

{¶33} The trial court’s decision on a postconviction Atkins claim should be upheld

absent an abuse of discretion. A reviewing court should not overrule the trial court’s

finding on a petition for postconviction relief that is supported by competent and credible

evidence. State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, ¶45, citing State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶58. “‘The term “abuse of discretion” * * *

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” Id. at ¶46,

quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980) (citations omitted). It also

“connotes that a court’s judgment lacks reason or runs contrary to the record.” State v.

Benchea, 11th Dist. Trumbull No. 2015-T-0054, 2016-Ohio-1369, ¶29 (citation omitted).

In the context of an Atkins claim, “States have some flexibility, but not ‘unfettered

13 discretion.’” Moore I, supra, at 1052, quoting Hall, supra, at 718. “[T]he medical

community’s current standards, reflecting improved understanding over time, constrain

States’ leeway in this area.” Id. at paragraph (d) of the syllabus. Courts must, therefore,

“adequately inform itself of the ‘medical community’s diagnostic framework.’” Id., quoting

Hall, supra, at 721.

Williams’ Atkins Claim

School Records

{¶34} Williams’ school records show that he was held back in the first grade and

the eighth grade. At the age of six he was designated for “educable mentally retarded”

classes and continued in special education/adjusted curriculum until the tenth grade. At

that point, Williams’ was removed from the special education program by his

grandmother, and soon after he dropped out of high school. The following is a more

detailed, but not exhaustive, summary of Williams’ Permanent Record Card:

First Grade

{¶35} Williams was required to repeat the first grade. The first time through, at

age 6, he received an “F” in Reading, a “D” in Arithmetic, and a “C” in language and

writing. He was absent 17 days. His teachers observed his behavior was consistent with

a learning disability: distractible, immature, disorganized.

{¶36} The school psychologist administered the Slossen Intelligence Test

(“Slossen”), which is not an IQ test, but rather a screening tool used to determine whether

further testing was needed. Williams scored 82, which prompted the school psychologist

to administer the Stanford-Binet Intelligence Scale two months later. Williams scored 76,

which was reported as within the “educable mentally retarded” (“EMR”) range of ability.

14 He exhibited good ability in counting objects but was “extremely weak” on any items

requiring visual-motor coordination. Williams was also administered the Wide Range

Achievement Test (“WRAT”), which showed his fine motor development was at a pre-

school level and all other skills were below his grade level. The report described Williams

as having poor listening skills, moving constantly, singing to himself, a pleasant child who

is hyperactive and distractible. It was recommended Williams join the EMR unit and

receive tutoring from upper-grade students. The school psychologist found Williams

qualified for the Diagnostic Reading Program, where he continued to experience difficulty.

{¶37} The second time through the first grade, at age 7, he received a “D” in both

reading and arithmetic, and “Cs” in language and writing. He was absent 7 days. His

conduct was unsatisfactory: distracted, fidgety, disorganized.

Second and Third Grade

{¶38} At age 8 and 9, Williams received “Cs” in spelling and reading, which was

taught to him at a grade level behind. His other grades, where indicated, were “Ds” and

“Fs”. He was absent a combined total of 6 days these two years.

Fourth Grade

{¶39} At age 10, Williams was placed in the Adjusted Curriculum classes, or

“special education,” where he remained for the rest of his time in school. He was also

assigned an Individual Education Plan (“IEP”), which continued throughout his time in

school. Williams received “Cs” in spelling and reading, which were taught to him at the

lower grade level; and “Ds” where the other grades were indicated. He was absent less

than 5 days.

15 {¶40} Williams’ teacher requested another psychological evaluation based on his

immature and impulsive behavior. At age 11, the school psychologist administered the

Stanford-Binet Intelligence Scale, Form L-M test (“Stanford Binet L-M”), on which Williams

scored 78. This placed him within the “adjusted curriculum or slow learner range, which

usually includes IQs of between 51 and 80.” He was also administered the WRAT, which

noted multiple deficiencies. It was reported that Williams functioned at a mental age of 8

years, 9 months.

Fifth Grade

{¶41} Williams was taught at the fourth-grade level in all classes and attained “Bs”

in science and geography/history; all other grades were “Ds”. His IEP plan goals included

being able to “write his name clean.” He was absent 2 days.

Sixth Grade

{¶42} At age 12, Williams transferred to another location in the school system for

additional Independent Adjusted Curriculum support. He was taught at a third-grade level

in reading, language, spelling, science, and geography/history; and at a fourth-grade level

in arithmetic. Williams received “Bs” in all his classes except for a “C” in spelling. He was

absent 2 days.

Seventh Grade

{¶43} At age 13, Williams missed 9 days of his first year at the junior high school.

He participated in the regular curriculum classes for art, music, and physical education.

Williams received a grade of “1” (Below Average) in English, geography, science, math,

physical education, and art; “2” (Average) in music; and “3” (Good) in practical arts. His

16 IEP identified many learning and academic deficits (e.g., attention span and reading

comprehension) as well as emotional challenges (e.g., self-control).

Eighth Grade

{¶44} At age 14, Williams completed the eighth grade for the first time. He was

absent less than 6 days. He achieved grades of “0” (Unsatisfactory) in history and math;

“1” (Below Average) in English, science, and physical education; “2” (Average) in art; “3”

(Good) in practical arts; and “4” (Excellent) in music.

{¶45} At age 15, Williams was required to repeat the eighth grade. He was absent

9 days. He received grades of “1” (Below Average) in all classes except for a “2”

(Average) in art and “3” (Good) in music and practical arts. His teachers observed that

Williams was disruptive in the classroom and did not socialize appropriately with his

classmates.

{¶46} Williams was administered the standardized Wechsler Intelligence Scale for

Children, Revised (“WISC-R”), on which he scored a 67. His score was reported as within

the Developmentally Handicapped range. He was also administered the standardized

Vineland Social Maturity Scale, which is based upon direct observational reports of

Williams’ teachers. Williams was assessed at a “social age” of only 9 years, 0 months.

He exhibited deficiencies in communication, occupation, locomotion, and self-direction.

On a developmental test of visual-motor integration, with a mean of 10 and standard

deviation of 3, Williams scored a 2. This was reported as an age equivalent of 8 years, 7

months.

{¶47} A “Team Evaluation” conducted by the principal, counselor, psychologist,

and developmentally handicapped teacher reported: “At that time the members of the

17 team determined that [he] continues to qualify for the Developmentally Handicapped

Program with the Warren City Schools.”

Ninth Grade

{¶48} At age 16, Williams was absent 3 days of his first year in the high school.

He attended regular classes for art, music, physical education, and practical arts, and

developmentally handicapped classes in the remaining subjects. He received grades of

“0”, “1”, and “2”.

Tenth Grade

{¶49} At age 17, despite recommendations of school officials and the

developmentally handicapped team, Williams’ grandmother removed him from the

Developmentally Handicapped Program at the high school. Williams was placed in the

regular curriculum and received “0s” in every subject. He was absent a total of 59 days

before dropping out of high school.

Test Scores

{¶50} Williams’ intelligence functioning (IQ) test scores are summarized as

follows:

YEAR AGE SCORE TEST ADMINISTRATOR 6 yrs, 5 mos. 82 Slossen (screen) 1973 6 yrs, 7 mos. 76 Stanford Binet School psychologist 1978 11 yrs., 1 mo. 78 Stanford Binet L-M 1983 15 yrs., 11 mo. 67 WISC-R 2003 36 yrs. 75 WAIS-III Dr. Eisenberg 2009 43 yrs. 69 Stanford Binet-V Dr. Lecavalier 2016 49 yrs. 68 WAIS-IV Dr. Hartung

{¶51} The four oldest tests were administered when Williams was under the age

of 18 and a student in the Warren City School System. In 1973, at the age of 6 years, he

scored 82 on the Slossen, a screening test, and two months later scored 76 on the

18 Stanford-Binet Intelligence Scale. The latter score was reported as an “educable mentally

retarded” range of ability. In 1978, at the age of 11 years, Williams scored 78 on the

Stanford-Binet L-M. In 1983, at nearly 16 years of age, Williams scored 67 on the WISC-

R.

{¶52} The three most recent tests were administered by psychologists while

Williams was incarcerated. In 2003, at the age of 36 years, Dr. James Eisenberg, Ph.D.,

administered the Wechsler Adult Scale of Intelligence (3d Ed.) (“WAIS-III”) for purposes

of Williams’ first Atkins petition. Williams’ full scale IQ score was 75, which the court-

ordered psychologist reported placed him in the borderline range of intelligence. Dr.

Eisenberg concluded to a reasonable psychological certainty that Williams is significantly

impaired in all areas of intellectual functioning, both verbal and nonverbal, but did not

meet the criteria of “mentally retarded” under the now-outdated rebuttable presumption in

the Lott Test.

{¶53} In 2009, at age 43, Williams scored 69 on the Stanford-Binet Intelligence

Scale, Fifth Edition (“Stanford Binet-V”), which was administered by Dr. Luc Lecavalier.

{¶54} Finally, in 2016, at age 49, Williams’ current defense expert administered

the Wechsler Adult Intelligence Scale, 4th Edition (“WAIS-IV”) for purposes of the

evidentiary hearing before the trial court. Williams’ full scale IQ score was 68.

{¶55} The other three expert witnesses, one for the defense and two for the state,

declined to administer a standardized IQ test, citing either a trust in the validity of

previously administered tests and/or the “practice effect,” which is the accepted theory

that one is likely to “learn” and do slightly better on a test that is administered repeatedly.

{¶56} Williams’ adaptive behavior test scores are summarized as follows:

19 YEAR AGE SCORE TEST ADMINISTRATOR age 9 yrs 1983 15 yrs., 11 mo. Vineland School psychologist (“57”) 2009 43 yrs. 61 SIB-R Dr. Lecavalier 65 ABAS-3 Dr. Hartung 2016 49 yrs. 79 ABAS-3 Dr. Dreyer

{¶57} In 1983, at nearly 16 years of age, the school psychologist administered the

standardized Vineland Social Maturity Scale (“Vineland”), based upon direct

observational reports of Williams’ teachers. The test was not numerically scored, but

Williams was assessed at a “social age” of only 9 years, zero months old. At the hearing,

a defense expert testified that he calculated Williams’ global score to be approximately

57.

{¶58} In 2009, at age 43, Dr. Lecavalier administered the standardized Scales of

Independent Behavior-Revised (“SIB-R”), on which Williams scored 61.

{¶59} In 2016, at age 49, Williams was administered the Adaptive Behavior

Assessment System, 3rd Edition (“ABAS-3”) by his defense expert and by the state’s

expert. With the former, he scored 65; with the latter, he scored 79.

Expert Witnesses for Williams

Dr. Thomas Sullivan

{¶60} Dr. Thomas Sullivan, Ph.D., a member of the APA and a neuropsychologist,

was employed by Williams in 2014 to conduct a neuropsychological evaluation in order

to rule out any organic brain injury. Dr. Sullivan has testified in over 100 cases, but this

was his first Aktins case. He performed a clinical evaluation, conducted multiple

standardized tests, and reviewed Williams’ educational and prison records. His

evaluation revealed, inter alia, impaired abstract reasoning and problem-solving skills;

illogical statements; and frequent and atypical word substitution errors. Williams showed

20 sufficient performance on the test used to assess for malingering. Dr. Sullivan opined to

a reasonable degree of neuropsychological certainty that Williams does not show any

evidence of brain damage or injury and that Williams is “mildly mentally retarded.”

{¶61} For purposes of his report, Dr. Sullivan relied on the intellectual functioning

and adaptive behavior tests administered in 2009-2010 by Dr. Luc Lecavalier, Ph.D., who

did not testify at the hearing. Dr. Sullivan felt no need to administer his own tests because

he found Dr. Lecavlier’s standardized test results were valid, reliable, and consistent with

his neuropsychological assessment of Williams.

{¶62} Dr. Lecavalier scored Williams at 69 on the Stanford-Binet-V IQ test.

Accounting for the 95% confidence interval, which is similar to the SEM, this scores in the

range of 67-75. Dr. Lecavalier scored Williams at 61 on the SIB-R adaptive behavior test,

with significant limitations present in the categories of social/communication, personal

living skills, and community living. Dr. Lecavalier interviewed Williams about his life

before incarceration and also conducted a retrospective assessment of Williams’ adaptive

behavior by interviewing his cousin, Wanda Vail-Nix, about his adaptive skills before

incarceration. She reported Williams could not hold a job, could not cook, and never had

a driver’s license. Dr. Lecavalier opined to a reasonable degree of psychological certainty

that Williams currently meets diagnostic criteria for “mild mental retardation” and that he

met that criteria in the period of development.

{¶63} At the evidentiary hearing, Dr. Sullivan calculated Williams’ score on the

Vineland Social Maturity Scale, administered in 1983, by dividing the months of Williams’

social age (108) (referred to as “109” at the hearing) by the months of his chronological

age (191) and arrived at a global score of 57.

21 {¶64} Dr. Sullivan also testified that the school administered the Stanford Binet L-

M, which was created in 1943. Applying the Flynn Effect, he stated the more accurate

scores for the 1973 and 1978 IQ tests is 66. Consistent with that assessment is the fact

that the school placed Williams in special education classes. Also consistent is the fact

that Williams scored a 67 on the 1983 IQ test, which was currently normed.

{¶65} He further concluded that Williams met the early onset criteria, referring in

part to a 2009 statement from the school psychologist that Williams “continued to be mildly

mentally retarded” at age 15.

Dr. Cynthia Hartung

{¶66} Dr. Cynthia Hartung, Ph.D., is a member of the AAIDD and an associate

professor of psychology and clinic director at the University of Wyoming. She was

employed by Williams to conduct an Atkins assessment. Dr. Hartung has participated in

six other Atkins cases, making a finding of intellectual disability on behalf of the petitioner

in four of them. Dr. Hartung spent approximately five hours with Williams on January 19,

2016, at the Chillicothe Correctional Institution. She conducted a clinical interview,

reviewed Williams’ educational and prison records, and administered the following

standardized tests: WAIS-IV IQ test, ABAS-3 adaptive behavior test, Test of Memory

Malingering (“TOMM”), Gray Oral Reading Test–Fifth Edition (“GORT-5”), and Wechsler

Individual Achievement Test–Third Edition (“WIAT-III”). Dr. Hartung produced a nine-

page report, concluding with a high degree of clinical certainty that Williams has a mild

intellectual disability and has been functioning at this level since childhood.

{¶67} Dr. Hartung testified to a reasonable degree of psychological certainty that

Williams’ school records are evidence that he met the age of onset criterion. She reported

22 it was unclear which version of the Stanford Binet the school administered to Williams in

1973, but testified it was her “best guess” that it was the Stanford-Binet II, which would

have been 36 years past norming. She therefore used the Flynn Effect to down-score

Williams’ score of 76 on that test to an adjusted score of 65. Additionally, Dr. Hartung

testified the 1983 test was different than what was administered the first two times, and

that an 11-point drop is not statistically significant when considering the SEM, “which can

be five or six points in either direction”: “it would have to be one and a half standard

deviations for it to be considered statistically significant, so it would have to be 21 or 22

points[.]”

{¶68} Williams’ scores on the TOMM did not suggest to Dr. Hartung that he was

malingering. The results of the GORT-5 indicate a reading ability similar to that of an

average 8- to 9-year old. The WIAT-III subtests of individual achievement reflect a

reading and spelling ability consistent with his estimated IQ, but that his writing ability is

“somewhat stronger than predicted” and “is an adaptive behavior he appears to have

developed through practice.”

{¶69} Williams obtained a full scale IQ score of 68 on the WAIS-IV IQ test.

Considering the 95% “confidence interval,” which is similar to the SEM, his true score is

in the range of 65 to 73, which falls in the category of Extremely Low to Very Low and

places Williams in the mild intellectual disability range. His overall performance was in

the 2nd percentile, meaning he scored lower than 96% of individuals his age. She

testified that she did not administer the optional subtests because they are only

administered if the standard subtests are “spoiled.”

23 {¶70} Dr. Hartung administered the ABAS-3, which consists of approximately 300

questions covering the three skill set domains of adaptive behavior, each with their own

subtests. Williams earned a global composite score of 65. Each response is scored 0 to

3 to calculate a composite score in each domain and subtest scores in each of the three

domains. For reference, subtest scores have a mean of 10 with a standard deviation of

3. Below is a summary of Williams’ domain and subtest scores:

CONCEPTUAL (65) Communication 7 Functional Academics 1 Self-Direction 1 SOCIAL (70) Leisure 4 Social 4 PRACTICAL (67) Community Use 2 Home Living 3 Health & Safety 1 Self-Care 7

{¶71} Dr. Hartung administered the test directly to Williams and also to three

“informants.” Here, the informants were all individuals who knew Williams prior to his

incarceration in 1988: two cousins, Wanda Vail-Nix and Cheri Moore, and Williams’ ex-

girlfriend and mother of his child, Audreana Smith. Their global composite scores were

56, 54, and 53, respectively. Dr. Hartung reported that the scores all indicate Williams’

adaptive skills are lower than 99.0 to 99.9% of adults and have been severely limited

since childhood. His scores place him in the mild intellectual disability range.

{¶72} At the evidentiary hearing, Dr. Hartung explained that she used the

informants because the AAIDD recommends administering the test to multiple people

who knew the subject in the general community and because “people with intellectual

disabilities, and also children, are not particularly good reporters of their own adaptive

functioning and they usually tend to overestimate their own abilities.”

24 {¶73} Dr. Hartung acknowledged there are concerns in the field with using the

ABAS-3 retrospectively. It is not designed to be used in a prison setting and the test

instructions mandate that the informants have frequent, recent, and prolonged contact

with the test subject. However, because the interviews were confined to the period of

time prior to Williams’ incarceration, none of the informants had recent observations to

report. Further, because they did not testify at the evidentiary hearing, there is no

indication as to how frequent or prolonged their contact with Williams was prior to his

incarceration. Dr. Hartung also acknowledged that family and friend informants may have

incentive to make the offender appear less capable then he or she really is. She further

testified, however, that using the informants can diminish the risk of a retrospective

valuation because they can provide “convergent validity,” as they did here, where all of

the informants’ scores were consistent with each other and with Williams’ scores, both

past and present.

{¶74} Dr. Hartung testified that assessing adaptive behavior within the prison

community, as the state’s expert did, is an unstandardized administration of the ABAS-3

that does not translate properly. She explained that when you place an intellectually

disabled person in a structured setting, such as prison, they function much higher than

they would in the general community. Thus, the fact that an individual is functioning better

in prison than in the general community actually supports a diagnosis of intellectual

disability. For instance, the fact that Williams remembers he needs his medication in the

prison does not mean he is capable of remembering to take it every day on his own in the

community setting.

25 {¶75} The trial court expressed concern with the ABAS-3 because the two

evaluating experts received different scores. The court stated it wanted to review the raw

data, including the questions and answers. Dr. Hartung explained to the court that it

would be unethical for her to report the raw data in a psychological report because it is

not meaningful without converting the data to standard scores. In other words, the trial

court would now know how to interpret the raw data.

{¶76} Following the hearing, the trial court ordered Dr. Hartung to produce the raw

data of her ABAS-3 testing. Dr. Hartung declined to release the data to the court, citing

professional, ethical, and legal constraints.

Dr. Stephen Greenspan

{¶77} In a preliminary ruling prior to the hearing, the trial court denied Williams’

request to call Dr. Stephen Greenspan, Ph.D., as an expert witness because his

testimony “would amount to needless presentation of cumulative evidence.” At the

hearing, defense counsel proffered Dr. Greenspan’s 19-page summary (“Declaration”) of

the scope and specific issues upon which he would testify if permitted. At the conclusion

of the hearing, the trial court again addressed the testimony of Dr. Greenspan, this time

excluding it on the basis that he was being called solely as a teaching expert, rather than

an evaluating expert.

Lay Witnesses for Williams

Affidavits of Family Members

{¶78} With his Atkins petition, Williams submitted several affidavits and

declarations of family members, including the ABAS-3 informants, who averred to

significant intellectual weaknesses evident throughout his life. They all were of the

26 opinion that Williams was “slow” and unable to perform many tasks other people his age

should be able to perform.

{¶79} Wanda Vail-Nix, a cousin of Williams, related the following in her affidavit:

she never witnessed Williams doing school work, house work, cooking, or doing laundry;

she never heard him have an intelligent conversation with anyone; she never saw him

read a book or newspaper or heard him tell a story; Williams did not have a driver’s

license; he would throw things when he became angry; she heard other family members

refer to Williams as “mentally retarded,” though she and her siblings thought he was just

“extremely bad”; she has never known him to live alone; at age 20, Williams still behaved

as if he was 15 years old, performing childlike pranks.

{¶80} Cheri Moore, another cousin of Williams, explained the following in her

affidavit: “everyone” knew Williams was “slow,” but his grandmother would not allow

further testing or provide tutoring; she never saw Williams play board games; Williams

colored outside the lines when he was old enough to do better; Williams could not really

do any chores, so his grandmother always helped him; his speech and language were

“off”; he would write and use words where they did not belong; he did not have a driver’s

license and could not drive.

{¶81} Teddy Ricks, a second cousin, testified to the following in her affidavit:

Williams never seemed “normal” to her; he did not know the rules of kickball; she was

embarrassed by Williams because he would “be so dumb about things”; when Williams

was sent to the store, he would come back with the wrong items and no change; she

could “see his slight retarded-ness in his facial expressions, the way he talked, and held

27 his lips, and how he talked like a little girl.” Ms. Ricks also testified at the evidentiary

hearing.

{¶82} Audreana Smith, Williams’ ex-girlfriend and the mother of his child, stated

the following in an unsworn document, titled “Declaration”: she thought Williams was

younger than he was when they first met—he was 18 and she was 14—because they

were able to converse on the same level; Williams never wrote a love letter or poem; he

never called her on the telephone, he only showed up to her house; Williams did not want

to drive and was not a good driver; she never saw Williams read a book or newspaper;

she did see him look at football magazines but was never sure if he read the articles or

just looked at the pictures; she never saw Williams count money or pay a bill when they

went out to eat; when he got upset, he would react like a child.

Rebuttal Witness

{¶83} In rebuttal to the state’s witnesses, Williams also presented testimony of

Tyrone Ballew, a fellow death row inmate. Ballew testified that he has been a tutor to

Williams, both formally and informally, while incarcerated together for the past

approximately 25 years. He approximated that he spent over 100 hours teaching Williams

to read, write, and do basic math at Lucasville Correctional Institution. This formal tutoring

lasted around two years, and he continued to work with Williams informally when they

transferred to other institutions. Ballew testified that when they were incarcerated

together at Mansfield Correctional Institution, every death row inmate had to have a job:

his job was tutor, and Williams’ job was student. Ballew testified that Williams has

increased his academic skills, but still receives help with reading and writing, sometimes

on the JPAY system.

28 State’s Evidence

Expert Witness for the State

Dr. Carla Dreyer

{¶84} The state countered with the expert report and testimony of Dr. Carla

Dreyer, Psy.D., a psychologist with the Court Clinic Forensic Services in Cincinnati. She

conducts and supervises evaluations for intellectual disability. Dr. Dreyer was employed

by the state to conduct an Atkins assessment of Williams. She has consulted on or

performed six Atkins evaluations. In none of those cases had she found the petitioner

intellectually disabled. Dr. Dreyer spent approximately three hours and fifteen minutes

with Williams on March 15, 2016, at the Chillicothe Correctional Institution. She

conducted a clinical interview; reviewed Williams’ educational, court, and prison records;

and administered the TOMM and ABAS-3 standardized tests. Dr. Dreyer produced a 31-

page report, concluding Williams meets the criteria for Borderline Intellectual Functioning

but that he does not meet, and has never met, the criteria for an intellectual disability.

{¶85} She testified that the Slossen, which was administered in 1973, should be

reviewed with caution because it is a screening test, but that Williams’ score of 82 placed

him in the low average range of intellectual functioning. She also noted concern with the

score of 67 on the WISC-R and with the results of the Vineland, which were administered

in 1983, “because if you look at the other data from the prison and Mr. Williams’ own self-

report, this testing was completed at a time when he was using alcohol on almost a daily

basis and going to, reportedly going to school in an intoxicated state.”

{¶86} Dr. Dreyer chose not to administer an IQ test, citing the “practice effect.”

She did not question Dr. Hartung’s decision to not administer the optional subtests on the

29 WAIS-IV. She did raise a concern, however, because Williams indicated he had

previously abused cough and cold medication up to the day before meeting with Dr.

Hartung, so Dr. Dreyer was “not sure of how either having or not having that available to

him on that day with the testing would have impacted the score.” She acknowledged,

however, that she had no information to substantiate whether the test results were invalid

because Williams may have been high.

{¶87} Dr. Dreyer also administered the ABAS-3 to Williams, the same adaptive

behavior test used by Dr. Hartung. She did not administer the test to any informants,

however, citing concerns with bias, unreliability of remote memories, and questions

relating to the use of technology that was unavailable to Williams prior to his incarceration

and that is now unavailable in prison. Dr. Dreyer also testified that roughly one-third of

the tasks surveyed in the test are not available to an inmate in a prison setting. As such,

she worked with Williams to relate some of the questions to functions actually performed

in a prison environment. Dr. Dreyer acknowledged that when Williams was first

incarcerated, his grammar was not particularly good, and his handwriting was akin to that

of a child younger than the age of 10.

{¶88} Dr. Dreyer scored Williams higher than Dr. Hartung had, with a global

composite score of 79. This score, similar to an IQ test, indicates borderline low average

functioning. Below is a summary of his domain and subtest scores:

Communication 8 CONCEPTUAL (75) Functional Academics 7 Self-Direction 1 Leisure 7 SOCIAL (86) Social 8 Community Use 7 PRACTICAL (82) Home Living 7 Health & Safety 5

30 Self-Care 9

{¶89} Dr. Dreyer testified that, inconsistent with intellectual disability, Williams has

impressive knowledge of current events and the procedural history of his court case and

uses multiple forms of communication with others. She recognized indications of

significant limitations in two adaptive skills—self-direction and health & safety—but it was

her opinion that the low scores may have been impacted by a number of variables,

including a lack of motivation, impulsiveness, and perceived antisocial personality. She

acknowledged that her diagnosis of antisocial personality disorder was not based on any

standardized assessment. Dr. Dreyer further testified that an antisocial personality may

lower adaptive functioning scores but agreed the clinical consensus is that comorbid

disorders do not rule out the possibility of intellectual disability.

{¶90} Dr. Dreyer scored Williams higher in the social domain due to his ability to

use the JPAY system and because he keeps a log of his outgoing emails and responses.

With respect to the practical domain, Dr. Dreyer testified to Williams’ ability to use and

retrieve medications; request assistance from an officer for needed repairs in his cell; and

obsessive cleanliness. Based on her testing and observations, Dr. Dreyer testified that

Williams does not meet the adaptive functioning prong of intellectual disability, as he does

not demonstrate significant limitations in two or more adaptive skills as referenced in Lott.

{¶91} Dr. Dreyer further opined that there is no proof Williams suffered from

intellectual disability as a minor. She found no diagnosis of mental retardation anywhere

in Williams’ childhood records. Further, she testified that the school’s designation of

Williams as “educable mentally retarded” and placement in special education courses is

evidence of learning difficulties but does not necessarily equate to an intellectual disability

31 diagnosis. Dr. Dreyer testified that the 1973 and 1978 Stanford-Binet scores of 76 and

78 would not have resulted in a diagnosis of mental retardation, and that the 1978 report

states Williams “is one of the higher functioning adjusted curriculum students.” She

testified that his 1983 WISC-R score of 67 would have placed him in the range of mental

retardation but opined that the significant and sudden decline suggested three possible

explanations: brain injury, lack of motivation, or alcohol abuse. Dr. Dreyer also

questioned the reliability of the 1983 Vineland adaptive functioning test because the

informant was unknown, and Williams reported drinking alcohol on a daily basis when he

was in high school. Unlike Williams’ experts, Dr. Dreyer refused to use the Flynn Effect

to down-score any of his earlier IQ scores. She testified that post hoc rescoring is not

generally done in clinical practice and, in her experience, use of the Flynn Effect only

seems to occur during Atkins evaluations.

Court-Appointed Expert Witness

Dr. Thomas Gazley

{¶92} Finally, Dr. Thomas Gazley, Ph.D., is a forensic psychologist and former

special education teacher. He was appointed by the trial court to conduct an independent

Atkins assessment of Williams. Dr. Gazley is currently employed at the Forensic

Psychiatric Center of Northeast Ohio, performing forensic evaluations for area courts.

This case was his fourth Atkins assessment.

{¶93} Dr. Gazley spent approximately two and one-half hours with Williams on

March 21, 2016, at the Chillicothe Correctional Institution. Dr. Gazley performed a clinical

evaluation, which included a conversation about Williams’ day-to-day routines at the

prison and current events. He submitted a 20-page report to the court. Dr. Gazley’s

32 clinical assessment was that “Overall general intelligence based on language and

vocabulary use today is estimated to be within the borderline range. Congruent with this

impression is Williams’ casual conversation, his attempt to use humor, and his

descriptions of how he gets along on death row.” Dr. Gazely’s informal assessment

revealed to him that Williams functions within his schedule; communicates adequately

with other inmates and staff; has the ability to make his needs known; compulsively

maintains a clean environment; takes care of his hygiene and daily self-care; writes “kites”

and commissary lists; uses a dictionary; makes rational conversation; knows of current

events; interacts socially; and plays games. At the hearing, he agreed the assessment

was speculative and that, while Williams’ showed an ability to adapt to life on death row,

none of those traits were sophisticated enough to exclude him from being intellectually

disabled.

{¶94} He further reported that “adaptive behavior of long term death row inmates

is extremely difficult to measure, given the inmate’s limited access to the day in and day

out activities of the general community population.” It is his opinion that any adaptive

behavior measures utilized while Williams is in prison provide an “inadequate assessment

of adaptive behavior as intended for use in diagnosing mental retardation” because they

cannot “be administered in a standardized and reliable manner.” Dr. Gazley testified that

adaptive skill deficits should be assessed within the community in which the person

presently lives but that there are no standardized tests normed for death row. He further

noted there are certain adaptive behaviors that serve one well as an inmate on death row

but are not needed in the general community, and vice versa.

33 {¶95} Dr. Gazley did not perform any standardized intelligence testing or adaptive

functioning testing, citing the “practice effect.” He did administer the Wide Range

Achievement Test, Fourth Edition (“WRAT-IV”), which measures current academic

functioning. The WRAT-IV academic functioning test is scored similar to an IQ test.

Williams scored 65 in sentence comprehension, 76 in arithmetic computation, 85 in

spelling, 68 in reading composite, and 75 in word reading. Dr. Gazley reported that

Williams’ scores on the WRAT-IV are better than one might predict given the scores on

three out of his last four IQ tests (67, 68, and 69). Dr. Gazley testified that measuring

academic achievement is a different process than measuring intellectual functioning

because the former does not directly address intellectual potential or cognitive abilities.

He further acknowledged that neither the AAIDD nor the APA would rate the WRAT-IV as

a standardized IQ test.

{¶96} Dr. Gazley reported that he found no evidence that Williams was diagnosed

with mental retardation as a minor or that he was enrolled in community services that

would have been available to a minor with that diagnosis. He reported that the school’s

designation of “educable mentally retarded” was a category of academic placement and

did not equate to a diagnosis of “mental retardation.” His testimony was that with regard

to age of onset, “there needs to be a determination” of intellectual disability or an

“established disability” prior to the age of 18. Dr. Gazley also did not use the Flynn Effect

to down-score older IQ scores, referring to the practice as controversial in the field.

{¶97} After reviewing all the available data, Dr. Gazley opined with reasonable

psychological certainty that Williams has Borderline intellectual functioning and, due to

his adaptive behavior allowing adequate functioning within his environment and culture

34 and the fact he was never diagnosed with “mild mental retardation” prior to the age of 18,

Williams does not suffer from “mild mental retardation” as defined in Lott.

{¶98} Dr. Gazley also testified that a note Williams wrote to the prison warden to

waive his appearance at the evidentiary hearing was more sophisticated than someone

with an IQ of 67 or 68 would write. He testified that Williams has demonstrated the

capacity to learn and understand more than one would think given the IQ scores and

concluded that Williams’ intellectual functioning falls within the borderline range, not

intellectually disabled.

{¶99} Dr. Gazley testified that prior to interviewing Williams and writing his report,

he did not use or consult any of the APA’s most recent manuals, including the DSM-5 and

the DSM-IV, and he had never used the AAIDD-11. He was not familiar with any of the

AAIDD’s tests. He acknowledged, however, that these were the basic texts establishing

the best clinical practices for assessing intellectual disability. He further acknowledged

that portions of his report dealing with the SEM and confidence intervals were taken from

a technical assistance paper that discussed program eligibility and placement of gifted

and learning disabled children, not the assessment of intellectual disability.

{¶100} Williams’ filed a motion for an order to strike the report and testimony of Dr.

Gazley, which the state opposed, and the trial court denied by judgment entry.

Lay Witnesses for the State

{¶101} The state presented testimony of three lay witnesses who have supervised

Williams within the prison system.

{¶102} An investigator with Chillicothe Correctional Institution was presented, who

explained the JPAY system. Inmates must set up an account, designate a password,

35 and remember the password. They must also be able to operate their own handheld

device—similar to an electronic tablet—plug it into a central kiosk, and log onto the

system. The Investigator presented video surveillance of Williams using the JPAY kiosk

and copies of emails sent by Williams and received by him from individuals outside the

prison. A case worker also testified to the video of Williams using the JPAY kiosk, which

shows him typing lengthy correspondence without assistance from any other individuals.

The correspondence was introduced, which show vast improvement in sentence

structure, spelling, punctuation, typing, and handwriting from the time period Williams was

first incarcerated.

{¶103} A Unit Manager at Mansfield Correctional Institution who knew Williams for

seven to eight years while employed as a corrections officer on death row was also

introduced. He testified that Williams had a typewriter in his cell at that time, and he

watched Williams handwrite and type documents without assistance from inmates or staff.

He confirmed Williams’ self-reported abuse of cold medications for recreational purposes.

He did not find Williams gullible or easily led by others and stated Williams always kept

himself and his cell neat without assistance. He described Williams as sociable and able

to play games and stated he had witnessed Williams reading law books in the prison

library.

Judgment of the Trial Court

Intellectual Functioning

{¶104} Intellectual functioning is assessed using an individually administered

standardized IQ test with current normative data. An offender must demonstrate

intellectual functioning deficits by a preponderance of the evidence. This is indicated by

36 an IQ score approximately two standard deviations below the mean—i.e., a score of

roughly 70 or lower when adjusted for the SEM. The trial court must also consider any

evidence presented as to the Flynn Effect, although it has discretion whether to ultimately

apply the deviation to an IQ score.

{¶105} The trial court considered evidence presented on the Flynn Effect but

declined to recognize it as a factor with respect to Williams’ 1973 Stanford-Binet score of

76 because Dr. Hartung’s testimony as to which version was administered was

“speculative.” The trial court stated, “It is not known with certainty that the Stanford-Binet

administered to Williams was a test with outdated norming so as to justify the application

of the Flynn Effect.”

{¶106} The court made no finding as to Williams’ 1978 Stanford-Binet L-M score of

78.

{¶107} Assumably with regard to Williams’ 1983 score of 67 on the WISC-R, the

trial court mentioned testimony of school representatives, given at the sentencing phase

of Williams’ trial, that a lack of effort and apathy could have accounted for Williams’

decreased scores.

{¶108} The court made no finding as to Williams’ 2003 score of 75 on the WAIS-III

or his 2010 score of 69 on the Stanford Binet-V.

{¶109} With respect to the WAIS-IV administered by Dr. Hartung in 2016, the trial

court noted Dr. Dreyer’s testimony that Williams reported to her that he had abused cough

and cold medication on the day before meeting with Dr. Hartung. This “raised concerns”

with the trial court “about how his substance use could have negatively impacted his test

performance at that point.” The court further referenced Dr. Dreyer’s testimony that she

37 was concerned about the validity of Williams’ test scores in light of his motivations, based

on an indication to her that he hoped to “get off on Atkins” and then be able to encourage

the Court to look at other appellate issues he believed would exonerate him.

{¶110} Based on these findings and observations, the trial court concluded

Williams’ IQ scores were borderline and did not definitively show that he is intellectually

disabled. Thus, the court followed the mandate of Hall and Moore I, and assessed

Williams’ adaptive behavior.

Adaptive Behavior

{¶111} Adaptive behavior functioning is assessed in two ways: clinical evaluations

and individualized psychometric measures. An offender must demonstrate significant

adaptive behavior deficits in any of the three skill set domains: “conceptual,” “social,” and

“practical.” These skill set domains are explained in the DSM-5 at 37:

The conceptual (academic) domain involves competence in memory, language, reading, writing, math reasoning, acquisition of practical knowledge, problem solving, and judgment in novel situations, among others.

The social domain involves awareness of others’ thoughts, feelings, and experiences; empathy; interpersonal communication skills; friendship abilities; and social judgment, among others.

The practical domain involves learning and self-management across life settings, including personal care, job responsibilities, money management, recreation, self-management of behavior, and school and work task organization, among others.

The relevant and often-tested subsets of these domains are communication, self-care,

home living, social skills, community use, self-direction, health and safety, functional

academics, leisure, and work. Atkins, supra, at 308, fn. 3, citing AAMR and APA

guidelines.

38 {¶112} By definition, intellectually disabled offenders “have diminished capacities

to understand and process information, to communicate, to abstract from mistakes and

learn from experience, to engage in logical reasoning, to control impulses, and to

understand the reactions of others.” Id. at 318.

{¶113} In Moore I and Moore II, the United States Supreme Court repeatedly

accentuated that when evaluating adaptive behavior, it is error for a court to (1)

overemphasize and rely more upon an offender’s perceived adaptive strengths as

opposed to his adaptive deficits; (2) rely upon an offender’s adaptive strengths or

improvements developed while in prison; (3) require an offender to prove that certain

deficits are related to an intellectual disability rather than a personality disorder or other

mental-health issue, as they can exist simultaneously; and (4) relying on factors that do

not correspond with clinical definitions of intellectual disability and suggest “lay

stereotypes.”

{¶114} Here, the trial court questioned whether it could consider the affidavits of

Williams’ family members, given the United States Supreme Court’s caution against

relying on lay perceptions of intellectual disability. Moore I, supra, at 1052 (“But the

medical profession has endeavored to counter lay stereotypes of the intellectually

disabled. Those stereotypes, much more than medical and clinical appraisals, should

spark skepticism.”).

{¶115} The court further noted that while each of the experts agreed that assessing

adaptive behavior with a standardized measure while in a prison environment presented

a challenge, they disagreed that there was consensus on how to administer the ABAS-3,

and each expert evaluated adaptive deficits in different ways.

39 {¶116} The trial court acknowledged that the AAIDD cautions against assessing

adaptive functioning in a prison setting and recommends the ABAS-3 be administered to

informants retrospectively—i.e., addressing the subject’s adaptive functioning prior to

incarceration. The trial court noted general concerns with the ABAS-3, such as: it does

not take into account the subject’s motivation, or lack thereof; a comorbid diagnosis of

personality disorders can have an effect on the results of a self-reporting test; and

discrepancies exist in the scoring between evaluators.

{¶117} The court addressed specific concerns it had with Dr. Hartung’s

administration of the test; to wit: administering the test retrospectively presents issues

with memory and bias on the part of the informants, as well as obsolescence of the

questions; the inapplicability of some questions to life in prison or cultural background;

and the difficulty of assessing the adaptive functioning of an individual who has been in a

non-community setting for so many years. The trial court was also of the belief that

administering the test to informants was the equivalent of relying on lay opinions, and that

Moore I viewed the latter with skepticism.

{¶118} The court also addressed specific concerns it had with Dr. Dreyer’s

administration of the test; to wit: the test is not normed for the prison community, and the

AAIDD cautions against assessing adaptive functioning in a prison setting.

{¶119} The court then noted concerns with the admissibility of the ABAS-3 results

as applied to these particular proceedings under Evid.R. 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). This was due to the lack of consensus

regarding whether to and how to conduct the ABAS-3 in this situation; the fact that the

ABAS-3 was not designed for forensic proceedings in which the offender is so far

40 removed from the typical community setting; there is insufficient research regarding the

reliability of adaptive behavior instruments when used retrospectively; and the reliability

of ratings that are not based on personal observation of typical behavior must be

evaluated cautiously.

{¶120} With respect to Dr. Hartung’s administration of the ABAS-3, the trial court

concluded that without access to her raw data, it could not find she conducted the test in

such a way that will yield an accurate result under the standards of Evid.R. 702 and

Daubert. Specifically, the trial court found: (1) without access to the raw data, it could not

confirm that the informants’ scores show “convergent validity”; (2) without access to the

raw data, it could not determine whether Williams “guessed” on questions related to items

that were not available to him at the time he was in the community; and (3) Dr. Hartung’s

unwillingness to testify [as to the raw data] “bolsters this Court’s suspicion that the test

results are not reliable and inadmissible in these circumstances.”

{¶121} With respect to Dr. Lecavalier’s administration of the SIB-R in 2009, the trial

court concluded it cannot find the testing meets the standards of Evid.R. 702 and Daubert

based on Dr. Hartung’s testimony that she stopped using the test “because they haven’t

updated their norms,” and “because it appears that Dr. Lecavalier did not administer the

SIB-R in accordance with the ethics guidelines that Hartung insists the APA and the

AAIDD require—specifically that standardized adaptive testing should not be performed

in a prison community.”

{¶122} With respect to the school psychologist’s administration of the Vineland

Social Maturity Scale in 1983, the trial court found it is unclear what the standard score

41 is, there is no information regarding the informant, and the report does not attest to the

validity of the test.

{¶123} In rejecting Williams’ contention that State v. White, 118 Ohio St.3d 12

(2008) stands for the proposition that the court must credit standardized adaptive

functioning measures in spite of the flaws of the test, the trial court distinguished White

based on the fact that the two testifying experts in that case agreed the defendant was

intellectually disabled. See White, supra, at ¶49-57 (criticizing the trial court’s rejection of

SIB-R results based on its finding that “a number of flaws” in the test compromised the

probative value of the test score, despite the fact that both experts agreed the SIB-R is a

valid and well standardized tool for measuring adaptive skills).

{¶124} The trial court concluded that Dr. Gazley’s opinion as to adaptive deficits

must be afforded more weight even though he did not administer a standardized test,

because it was based on his clinical appraisal of Williams rather than lay opinions of

informants. The court found, with respect to Dr. Gazley, that “although the AAIDD

cautions against assessing adaptive behavior in a structured setting such as a prison, it

also states that as a professional responsibility in the diagnosis and assessment of

adaptive behavior that a clinician must use direct observations of adaptive behavior.”

{¶125} Finally, the trial court found that the “anecdotal evidence” presented in the

family members’ affidavits was insufficient to establish that Williams exhibits significant

limitations in two or more adaptive skills and that some of it “harkens back to the

stereotypes that the Moore Court condemned.”

42 {¶126} Based on all of the above, the trial court ultimately concluded that Williams

did not prove by a preponderance of the evidence that he has significant limitations in two

or more adaptive skills under the framework set forth in Lott.

Age of Onset

{¶127} An offender must demonstrate the onset of intellectual functioning and

adaptive behavior deficits prior to the age of 18 by a preponderance of the evidence.

Neither clinical guidelines nor court precedent require an official diagnosis of intellectual

disability as a minor in order to meet the “age of onset” criterion. See, e.g., White, supra,

at ¶77-85 (finding the petitioner satisfied the age of onset criterion based solely on

academic records).

{¶128} The court declined to follow this court’s holding in Williams’ previous appeal

that he had met his burden with regard to the age of onset because of the difference in

Williams’ burden on summary judgment (to raise a genuine issue of material fact) as

compared to a full evidentiary hearing (to prove by a preponderance of the evidence).

{¶129} Here, the trial court concluded Williams failed to establish onset of

intellectual disability as a minor based on multiple findings, a summary of which is as

 Even applying a five-point SEM, only one IQ score out of the three tests administered prior to age 18 places him in the range of intellectual disability, that being the 1983 score of 67 on the WISC-R.

o We note that if the Flynn Effect was applied to the earlier Stanford- Binet tests, all three test scores would be in the range of intellectual disability.

 The 1973 score of 76 on the Stanford-Binet includes a report that Williams had poor listening skills, was moving constantly, and sang to himself during most of the session.

43  The 1978 score of 78 on the Stanford-Binet is not reliable because the report did not include a statement whether the test results were valid or as to Williams’ behavior at the time of the test.

 The 1983 score of 67 on the WISC-R is not reliable because: (1) it was administered when Williams was 16 years old and there was testimony that he was drinking alcohol extensively, even at school, during this period; (2) the report did not contain any specifics as to Williams’ efforts at the time or any statement whether the test results were valid; an 11-point drop from the earlier IQ scores could be accounted for by lack of motivation; Williams’ petition even argues the 11-point drop is “suspect”; and Williams’ scores on the academic achievement test administered by Dr. Gazley are better than one would expect given his most recent IQ scores.

o We note that this test was administered when Williams was in eighth grade, and the testimony was that Williams was drinking alcohol extensively towards the end of his school career, which was the tenth grade.

o We also note that Williams’ argument that the 11-point drop is “suspect” was for the purpose of arguing ineffective assistance of counsel for failing to pursue the possibility of brain injury during the sentencing phase of his trial.

 There were some indications of limitations in adaptive functioning as an adolescent, including the Vineland Social Maturity Scale, which assessed Williams with a social age similar to a nine-year-old, with deficiencies in communication, locomotion, occupation, and self-direction.

 Williams was never given a formal diagnosis of mental retardation prior to reaching the age of 18.

 At the time Williams was a student, the requirements for being categorized as “educable mentally retarded” included IQ functioning below 80.

Assignments of Error

{¶130} The trial court concluded Williams failed to carry his burden to prove by a

preponderance of the evidence any of the three prongs of intellectual disability as defined

above. From this judgment, Williams raises five assignments of error for our review:

[1.] The trial court’s conclusion that Williams does not have significantly subaverage intellectual functioning is an abuse of

44 discretion as it is based upon arbitrary and capricious factual findings.

[2.] The trial court abused its discretion in finding that Williams does not meet the adaptive behavior deficits prong for being intellectually disabled by a preponderance of the evidence.

[3.] The trial court’s conclusion that there is insufficient evidence to show by a preponderance of the evidence that symptoms of intellectual disability did not manifest prior to the age of 18 is an abuse of discretion as it is based upon arbitrary and capricious factual findings.

[4.] The trial court abused its discretion in qualifying its own chosen witness, Dr. Thomas Gazley, as an expert for purposes of assessing intellectual disability.

[5.] The trial court abused its discretion when it refused to permit the relevant testimony of Dr. Stephen Greenspan as a teaching expert.

{¶131} An amicus brief was filed in support of Williams by Disability Rights Ohio

and The Arc of Ohio. The brief describes Disability Rights Ohio as a not-for-profit

organization designated by the Governor of Ohio as the protection and advocacy system

under federal law for people in Ohio with disabilities, and The Arc of Ohio as the state

affiliate of The Arc of the United States with the mission to advocate for the fundamental

moral, civil, and constitutional rights of people with intellectual and developmental

disabilities.

{¶132} Williams also provided to this court as supplemental authority the May 20,

2020 decision and judgment of the Sixth Circuit Court of Appeals in Hill v. Anderson, 960

F.3d 260 (6th Cir.2020). In Hill, the Sixth Circuit held that “the Ohio courts avoided giving

serious consideration to past evidence of Hill’s intellectual disability. Doing so amounted

to an unreasonable determination of the facts and an unreasonable application of even

the general Atkins standard.” Id. at 265. The Sixth Circuit instructed the district court to

45 issue a writ of habeas corpus with respect to the inmate’s death sentence. Id. As of July

15, 2020, however, a majority of the judges of the Sixth Circuit voted for rehearing en

banc of the case. Accordingly, the previous decision and judgment of the court was

vacated, the mandate was stayed, and the case was restored to the docket as a pending

appeal. Hill v. Anderson, 964 F.3d 590 (Mem.) (6th Cir.2020).

{¶133} On appeal, Williams generally argues the trial court demanded proof far

beyond the legal requirement of a preponderance of the evidence; misapplied the U.S.

Supreme Court’s precedent of Atkins, Hall, and Moore; made erroneous findings of fact;

erred in rulings regarding expert witnesses; and thereby abused its discretion in

concluding that Williams proved none of the three criteria for intellectual disability.

Fifth Assignment of Error – Refusal to Permit Teaching Expert Testimony

{¶134} Williams’ fifth assignment of error challenges the trial court’s denial of his

motion to allow and admit the testimony of Dr. Stephen Greenspan as cumulative and

based on the fact that he was a teaching expert, not an evaluating expert.

{¶135} “Trial courts have broad discretion in determining the admissibility of expert

testimony, subject to review for an abuse of discretion.” Terry v. Caputo, 115 Ohio St.3d

351, 2007-Ohio-5023, ¶16, citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152

(1999). “‘The term “abuse of discretion” * * * implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” White, supra, at ¶46, quoting State v.

Adams, 62 Ohio St.2d 151, 157 (1980) (citations omitted). It also “connotes that a court’s

judgment lacks reason or runs contrary to the record.” Benchea, supra, at ¶29 (citation

omitted). In the context of an Atkins claim, “States have some flexibility, but not

‘unfettered discretion.’” Moore I, supra, at 1052, quoting Hall, supra, at 718. “[T]he

46 medical community’s current standards, reflecting improved understanding over time,

constrain States’ leeway in this area.” Id. at paragraph (d) of the syllabus. Courts must,

therefore, “adequately inform itself of the ‘medical community’s diagnostic framework.’”

Id., quoting Hall, supra, at 721.

{¶136} “Under Evid.R. 702(B), an expert witness must be ‘qualified as an expert by

specialized knowledge, skill, experience, training, or education regarding the subject

matter of the testimony.’” State v. Poling, 11th Dist. Ashtabula No. 2008-A-0071, 2010-

Ohio-1155, ¶40. Although an expert may be qualified and the testimony relevant, it “may

be excluded if its probative value is substantially outweighed by considerations of undue

delay, or needless presentation of cumulative evidence,” i.e., if it is “additional evidence

of the same kind to the same point” that would not further assist the trier of fact. Evid.R.

403(B); Kroger v. Ryan, 83 Ohio St. 299 (1911), syllabus; Bostic v. Connor, 37 Ohio St.3d

144 (1988), paragraph three of the syllabus. Nevertheless, the Supreme Court of Ohio

iterates that “Courts should favor the admissibility of expert testimony whenever it is

relevant and the criteria of Evid.R. 702 are met.” State v. Nemeth, 82 Ohio St.3d 202,

207 (1998), citing State v. Williams, 4 Ohio St.3d 53, 57-58 (1983); Caputo, supra, at ¶26,

quoting Daubert, supra, at 597 (expert testimony should be admitted when “‘relevant to

the task at hand’” and it “logically advances a material aspect of the proposing party’s

case”).

{¶137} In a preliminary ruling prior to the hearing, the trial court denied Williams’

request to call Dr. Greenspan as an expert witness because his testimony “would amount

to needless presentation of cumulative evidence.” At the hearing, defense counsel

proffered Dr. Greenspan’s 19-page Declaration of his qualifications and the scope and

47 specific issues upon which he would testify if permitted. The first page of his Declaration

states he was “specifically asked not to pass judgment on reports or testimony by other

experts (either for the defense or the government), and also to not explore any aspect of

the circumstances surrounding the crime for which Mr. Williams has been convicted.”

(Emphasis sic.) Rather, he was

hired as a so-called ‘teaching expert,’ with the task of informing the court about the nature of intellectual disability, the best practices to be followed in determining if someone has intellectual disability within a forensic setting, and the common misconceptions about intellectual disability which are sometimes held by experts who may lack sufficient training or knowledge about intellectual disability.

The trial court accepted the proffered Declaration for the record but declared it would not

consider the document when rendering its decision.

{¶138} At the conclusion of the hearing, the trial court again addressed the

testimony of Dr. Greenspan, this time excluding it on the basis that he was being called

solely as a teaching expert to educate the trial court judge, who felt he did not need that.

{¶139} Defense counsel informed the trial court that Dr. Greenspan was the most

cited authority in the intellectual disability section of the DSM-5 and had authored four

chapters in a book published by the AAIDD, The Death Penalty and Intellectual Disability

(2014), more than any other contributor. Counsel cited three examples of issues that

were contested in the hearing that are arguably determined by AAIDD and APA principles,

to which Dr. Greenspan could and would testify: (1) the extent to which adaptive behavior

deficits are properly assessed with the prison context, (2) whether evidence of qualifying

IQs and adaptive skill deficits should be rejected or discounted because of a comorbid

personality disorder, and (3) the application of the Flynn Effect to Williams’ IQ test scores

48 from early childhood. The trial court denied reconsideration of its previous ruling and

excluded Dr. Greenspan’s teaching testimony.

{¶140} On appeal, Williams first argues that the trial court abused its discretion in

excluding any and all testimony from Dr. Greenspan because it was not cumulative and

was clearly relevant to the trial court’s determination as to whether Williams is

intellectually disabled, a determination that must be made consistent with the scientific

and clinical practices as currently reflected in the AAIDD and the APA. In addition to the

three above-stated issues mentioned to the trial court, Williams notes that, perhaps most

importantly, Dr. Greenspan would also have testified as to the evolved and currently

recognized standards of both the AAIDD and the APA specific to retrospectively

assessing intellectual disability. Williams submits that Dr. Greenspan’s participation in

authoring and addressing both the AAIDD and the APA standards “eminently qualified”

him to testify and clarify the court’s understanding of whether the competing assessments

by the evaluating experts were consistent with those standards.

{¶141} The state responds that the trial court’s determination is controlled by the

standards “spelled out” in the Supreme Court of Ohio’s case law, not by the AAIDD and

the APA. This argument, however, glosses over the United States Supreme Court’s

instruction that, while leaving it to the states to develop procedures for determining

whether a defendant is intellectually disabled, a court’s determination must be “informed

by the medical community’s diagnostic framework.” Hall, supra, at 721-722; see also Van

Tran v. Colson, 764 F.3d 594, 612 (6th Cir.2014) (“In Hall, the Court reasoned that the

Constitution requires the courts and legislatures to follow clinical practices in defining

intellectual disability.”). Atkins and its progeny, both federal and state, have consistently

49 cited to and relied upon the current definitions, standards, and guidelines of the AAIDD

and the APA.

{¶142} Further, the state’s own statement of the issue in this assignment of error

belies its argument that Dr. Greenspan’s testimony was cumulative; to wit: “Does a trial

court abuse its discretion when it denies a defendant’s request for a teaching expert

where three other experts had testified in regards to the defendant’s intellectual abilities?”

Dr. Greenspan was not called to testify as to Williams’ specific intellectual functioning; to

the contrary, he was called to testify and educate the court as to the AAIDD and APA

guidelines and best practices to be followed, and the nature of and common

misconceptions about intellectual disability.

{¶143} Williams further argues the trial court abused its discretion because Dr.

Greenspan would have been able to address the trial court’s apparent concerns and

confusion with administration of the ABAS-3 to an inmate and the trial court’s suggestion

that it was capable itself of assessing whether the ABAS-3 was a reliable and valid

standardized test. The state responds that “it is clear that the trial court needed no

additional ‘aid’ in understanding the AAIDD or APA guidelines” because they were cited

several times in the court’s 43-page opinion and the court noted that it had considered

the entirety of these references. We believe this again misses the point of Dr.

Greenspan’s proffered testimony, which was not to direct the court to those references,

but to assist the court with understanding how they are interpreted and applied by experts

in the field. The argument is further contradicted by many of the trial court’s own

statements in the record of the evidentiary hearing.

50 {¶144} The trial court examined Dr. Hartung at length about her administration of

the ABAS-3. The court questioned how the questions answered by the informants were

initially scored by hand, how those scored results generate raw scores from various

subtests, and how those scores were then interpreted into standard scores. The trial

court then asked Dr. Hartung for her raw data. Dr. Hartung informed the court it is

unethical to report raw data scores in a psychological report because the raw data scores

“wouldn’t be meaningful without converting them to standard scores.” The court

responded, “So if I get this, I’m just going to have some raw data that I won’t know what

to do with?” Dr. Hartung agreed with that statement but said she could explain it to the

court.

{¶145} The court later reiterated that it wanted the raw data “because if I have to

base this [decision] on some data, I want to make sure the data is something that I want

to base it on.” An exchange occurred between the trial court judge, Dr. Hartung, and

defense counsel, which indicates the trial court’s frustration, confusion, and concerns with

the ABAS-3, its standardization and administration, the evaluators’ differing scores, and

whether the court is “duty bound” to follow Dr. Hartung’s ethical constraints with respect

to the raw data. The court sensed that many of the questions were “designed to illicit

immaturity” and questioned the test’s ability to assess intellectual disability. At that point,

defense counsel again suggested there was a need for Dr. Greenspan’s teaching expert

testimony, as he could address the trial court’s questions and concerns about the test.

The trial court repeated, however, that it did not need that.

{¶146} In further discussion, the trial court indicated it could not make an

assessment until he accessed the raw data, stating “there are [some ABAS-3 questions]

51 right now I don’t think [are] a very good measure of intellectual disability. I think they have

to do with maturity more than anything else and so I may make that call.” The court also

remarked that the Supreme Court has not even had the raw data on one of these tests to

rule on it. The state responded that the AAIDD guidelines do not necessarily control the

court in what it considers relevant and valid information and that the standard was set

forth in Lott. Defense counsel responded that the ABAS-3 was a standardized instrument

used for assessing intellectual disability.

{¶147} Williams further argues it was an abuse of discretion to refuse to permit Dr.

Greenspan to testify on the basis that he was a teaching expert, rather than an evaluating

or diagnostic psychologist in the case.

{¶148} There is no requirement in Evid.R. 702 that the expert have personally

evaluated or treated the subject about whom the hearing is focused. See, e.g., Shilling

v. Mobile Analytical Serv., Inc., 65 Ohio St.3d 252 (1992), syllabus (“A witness who is not

a physician, but who qualifies as an expert under Evid.R. 702, may give evidence that

would be relevant to diagnosis of a medical condition if the testimony is within the

expertise of the witness.”). Additionally, “general information” from a psychologist specific

to a subject matter that has “been well documented and universally noted in the

psychiatric and medical community” may be admissible under Evid.R. 702. See Nemeth,

supra, at 207 (allowing an expert psychologist to testify generally about the DSM-IV and

battered child syndrome because it would “tend to enhance” the trier of fact’s ability to

assess the credibility of a child witness); see also State v. Stowers, 81 Ohio St.3d 260,

262 (1998) (citation omitted) (a psychological expert’s testimony based on “specialized

knowledge” is admissible so long as “a person has information which has been acquired

52 by experience, training or education which would assist the trier of fact in understanding

the evidence or a fact in issue and the information is beyond common experience”).

{¶149} Further, while factually distinguishable, the Supreme Court of Ohio has

recognized the need for and the relevance and admissibility of a teaching expert in the

Atkins context. In White, both the defense and state experts administered the SIB-R to

assess the defendant’s adaptive behavior skill deficits, and both found the defendant was

intellectually disabled. The trial court itself sought out a teaching expert witness, not to

evaluate the defendant, but to explain how the SIB-R was developed and how it is used

to diagnose intellectual disability. White, supra, at ¶30. The trial court disregarded the

results of both administered tests and found the defendant was not intellectually disabled.

Id. at ¶34-38. The Supreme Court reversed the lower court based in large part upon the

teaching expert’s testimony, concluding the record lent no support to the trial court’s belief

that using the defendant as a self-reporter for the SIB-R compromised the validity of the

evaluating experts’ diagnosis. Id. at ¶49-57.

{¶150} Here, the record indicates that a need existed for the record to include

further education and understanding at least with regard to adaptive behavior deficits and

the ABAS-3, which was administered by both the defense expert and the state expert.

The trial court attempted to remedy this situation by requesting the raw data from the

defense expert, who explained it was unethical for her to include it in her report. Although

the trial court reversed its decision to require the raw data during the hearing, the trial

court later issued a written order for the defense expert to turn over the raw data, which

she refused to do. The same order was not issued to the state expert, who had

administered the same test. It is apparent the trial court felt more information was

53 necessary to fully comprehend the administration of the test and the scores Williams

received. When it became clear the raw data was inaccessible, the trial court should

have then permitted Williams to call the teaching expert to testify and attempt to resolve

certain concerns the trial court had, at the very least with regard to the ABAS-3.

{¶151} Atkins claims necessarily involve an overwhelming need to educate the

factfinder in each case. Clinical guidelines and best practices in the medical and scientific

community are not static and are not common nomenclature in a courtroom. The

conclusion that Dr. Greenspan’s testimony was “cumulative” or “needless” is not

demanded by the record, and, when presented with the question of whether capital

punishment is cruel and unusual as applied, it would be cavalier for this court to conclude

that the probative value of this testimony is substantially outweighed by a concern of it

being cumulative. Rendered in the context of federal habeas review of an Atkins claim,

we note the pronouncement that “‘deference does not imply abandonment or abdication

of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield, supra, at 314,

quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

{¶152} To conclude, the trial court’s decision to exclude the testimony of Dr.

Greenspan was an abuse of discretion. This is not to say that a teaching expert is

required or necessary in the review of every Atkins claim. In this case, based on the

potential, and in fact, need for clarification of conflicting conclusions, we cannot say

exclusion of this testimony was proper. Here, the record supports a need such that the

refusal to permit the testimony amounted to an abuse of discretion.

Disposition

54 {¶153} Finding merit with Williams’ final assignment of error, the judgment of the

Trumbull County Court of Common Pleas is hereby reversed. The matter is remanded

for the purpose of permitting the additional testimony of an expert in a teaching capacity.

As a result, Williams’ first, second, third, and fourth assignments of error are not ripe for

review at this time.

{¶154} Additionally, in light of the new standard set forth in Ford, and the decisions

in Moore I and Moore II, all of which were decided subsequent to the experts’ evaluations

and testimony in this matter, the parties are permitted to submit updated evaluations and

to supplement the experts’ testimony upon request to the trial court. The trial court shall

consider Williams’ Atkins petition, any updated evaluations, and any supplemental

testimony of the experts and determine whether Williams is intellectually disabled

pursuant to the governing law as set forth in State v. Ford, 158 Ohio St.3d 139, 2019-

Ohio-4539. See Williams, 792 F.3d at 624 (instructing the state courts to give this matter

“a fresh analysis * * * as to whether Williams is intellectually disabled pursuant to

governing law” and “to apply clinical principles of intellectual disability adopted by federal

precedent”).

MATT LYNCH, J., concurs,

MARY JANE TRAPP, P.J., concurs with a Concurring Opinion.

____________________

55 {¶155} I concur, but write separately to emphasize that Mr. Williams’s Atkins

petition should be considered in light of the Supreme Court of Ohio’s standard set forth in

State v. Ford, 2019-Ohio-4539, the intervening federal precedents in Moore I and Moore

II, the admonitions of federal precedent in this case, and the state of the evidence.

{¶156} Endeavoring to review the substantive merits of a trial court’s determination

of intellectual disability reached under an overruled standard by parceling out the court’s

reasoning to conform it to the new standard in order to analyze that very reasoning would

be, quite simply, an illogical exercise. Without the proper procedure, there is nothing

substantive for an appellate court to decide. “No court -- not a trial court, not an appellate

court, nor even a supreme court -- has the authority, within its discretion, to commit an

error of law.” State v. Beechler, 2nd Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶70. An

improper standard is an error of law, and thus, an abuse of discretion.

{¶157} Given the history of this case, and particularly the rebuke from the Sixth

Circuit Court of Appeals, we should be scrupulous in sending this case back to the trial

court with the mandate to hear the testimony of the excluded expert and consider updated

evaluations and supplemented testimony of the experts, who should use the most current

standards to ensure a complete review performed using the most current legal and

diagnostic standards. Williams, 792 F.3d 606, 624 (2015).

{¶158} The evidentiary hearing in this matter was held in 2016 and 2017; Moore I

and Moore II were released before the trial court’s decision issued, but after the

evidentiary hearings and expert assessments. Ford was just recently released. Thus, no

expert in this case had the benefit of the decisions and new standards set forth in Moore

I, Moore II, or Ford when performing their evaluations and rendering their opinions.

56 {¶159} While the trial court attempted to apply Hall and Moore I within the

framework of the Lott test, it did not have the full benefit of Moore II’s clarifications based

upon advancements in the diagnostic standards, and thus, made some conclusions,

particularly as to adaptive strengths, not contemplated at the time of Lott but recognized

by Ford. In addition, it appears the state’s experts may not have analyzed Mr. Williams’

adaptive functioning pursuant to the clinical standards of the American Psychological

Association (“APA”) and the American Association on Intellectual and Developmental

Disabilities (“AAIDD”), which the new Ford test implements, and as previously noted,

none of the experts had the benefit of Moore I and Moore II.

{¶160} It is simply not enough that the trial court went beyond the Lott rebuttable

presumption of a 70 IQ, considered the standard error of measurement, discussed the

Flynn effect, and then analyzed Mr. Williams’ adaptive functioning and age of onset under

Lott. The trial court was looking for “significant limitations in two or more adaptive skills,”

rather than “significant adaptive skill deficits in one or more activities.” Lott at ¶12; Ford

at ¶46. Based on Ford, the trial court erroneously focused its analysis on Mr. Williams’

adaptive functioning in the prison setting, his adaptive strengths rather than his adaptive

deficits, and did not focus on whether any deficits were presented prior to the age of 18,

all of which the United States Supreme Court cautioned against in Moore II.

{¶161} As the Supreme Court of Ohio aptly stated in Ford, “[t]he concurring-

dissenting opinion seeks to tweak Lott rather than overrule what is an improper standard

for assessing intellectual disability. The opinion says that the evidence reflected the

experts’ application of the current standards and that any problem with Lott was not

57 prejudicial to Ford. * * * In the context of a capital case, we decline to glean this finding

from the record.” (Emphasis added.) Id. at ¶96.

{¶162} In a recent case, State v. Jackson, 8th Dist. Cuyahoga No. 108558, 2020-

Ohio-4914, the Eighth District reversed and remanded under similar circumstances (albeit

Ford was released while the case was pending briefing on appeal), explaining: “[w]hen

the Ohio Supreme Court decided Ford, it did not address the merits of Ford’s Atkins claim

under the Lott standard. It recognized that the Lott criteria and definitions were outdated

and needed to be reevaluated considering recent United States Supreme Court cases

and updated diagnostic standards. After it established the new standard for Atkins

hearings, the Supreme Court remanded the case to the trial court to consider whether

Ford was intellectually disabled using the new framework; it did not apply the new

standard to the evidence and testimony in the record.

{¶163} “This court’s review is for an abuse of discretion, not de novo; accordingly,

it would be inappropriate for this court to review the record as a whole and render an

opinion utilizing a standard that the trial court did not consider.” Id. at ¶70 -71.

{¶164} Thus, I concur with the decision to reverse and remand.