Florida Issues: The initial brief filed by defense lawyer Todd Doss in David Johnston

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC10-356

DAVID EUGENE JOHNSTON,

Petitioner,

STATE OF FLORIDA,

Respondent.

http://david-johnston.us/legal/inibrieffiled.htm

ON APPEAL FROM THE CIRCUIT COURT
OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, STATE OF FLORIDA

SUPPLEMENTAL INITIAL BRIEF OF APPELLANT

D. Todd Doss
Florida Bar No. 0910384
725 Southeast Baya DriveSuite 102
Lake City, FL 32025

(386) 755-9119

COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court’s
“Order Finding Defendant Is Not Mentally Retarded” relative to
Mr. Johnston’s newly discovered evidence of mental retardation.
The following symbols will be used to designate references to the
record in this appeal:

“R.” – record on direct appeal to this Court;
“PCR.” - record on appeal after original postconvictionsummary denial.
“PCR2.” - record on appeal after fourth and fifthpostconviction motion summary denial.
“PCR3.” - record on appeal after sixth postconvictionmotion summary denial.
“PCR4.” - record on appeal after remand for evidentiaryhearing on mental retardation issue;
“Supp.
PCR4” - transcript of evidentiary hearing after remandfor evidentiary hearing on mental retardationissue.
REQUEST FOR ORAL ARGUMENT

Mr. Johnston is presently under a death warrant with a stay
of execution ordered by this Court pending these proceedings.
This Court has not hesitated to allow oral argument in other
warrant cases in a similar procedural posture. A full
opportunity to air the issues through oral argument would be more
than appropriate in this case, given the seriousness of the
claims involved, as well as Mr. Johnston’s pending death warrant.

Mr. Johnston, through counsel, urges that the Court permit oral
argument.
TABLE OF CONTENTS
Preliminary Statement
........................................................... i
Request for Oral Argument
........................................................... i
Table of Contents
........................................................... ii
Table of Authorities
........................................................... iii
Statement of the Case and Facts
........................................................... 1
Summary of Argument
........................................................... 5
Standard of Review
........................................................... 5
Statement of Facts
........................................................... 29

Argument I

NEWLY DISCOVERED EVIDENCE OF MENTAL RETARDATION
DEMONSTRATES MR. JOHNSTON’S DEATH SENTENCE VIOLATES
THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION AND FLORIDA’S CONSTITUTIONAL
PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

........................................................... 29

A. Mr. Johnston has significantly subaverage generalintellectual functioning.

........................................................... 31

B. Mr. Johnston has concurrent deficits in adaptivefunctioning.

........................................................... 38

C. Mr. Johnston’s mental retardation manifested itself
during the period from conception to the age of 18.

........................................................... 41

CONCLUSION
........................................................... 47
CERTIFICATE OF SERVICE
........................................................... 48
CERTIFICATE OF FONT
........................................................... 48

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ............ 3,4,14,30

Cherry v. State, 959 So. 2d 702 (Fla. 2007)........... 4,30,31
Johnston v. Dugger, 583 So.2d 657 (Fla. 1991) ............ 1,2
Johnston v. Moore, 789 So.2d 262 (Fla. 2001)............... 3
Johnston v. Singletary, 162 F.3d 630 (11th Cir. 1998) ...... 2
Johnston v. State, 497 So. 2d 863 (Fla. 1986) ............. 3
Johnston v. State, 708 So. 2d 590 (Fla. 1998).............. 2
Johnston v. State, 960 So.2d 757 (Fla. 2006) .............. 3
Johnston v. State, No. SC09-839 (Fla. January 21, 2010) ... 3
Johnston v. State, No. SC10-356 (Fla. March 4, 2010)...... 30
State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001)........... 29
Stephens v. State, 748 So. 2d 1028 (Fla. 1999)............ 29

Statutes

§921.137, Florida Statutes (2009) ...................... 5,30

Articles

G. Taub, A confirmatory analysis of the Wechsler Adult
Intelligence Scale, Third Edition: Is the
verbal/performance discrepancy justified?

PRACTICAL ASSESSMENT, RESEARCH & EVALUATION, v.7, n.22, 2001
................................................. 20,35

STATEMENT OF THE CASE

Mr. Johnston was indicted on December 12, 1983 by an Orange
County grand jury for the first-degree murder of Mary Hammond.
Following a trial, Mr. Johnston was found guilty as charged by a
jury. A penalty phase was conducted on May 29, 1984, during
which the jury recommended a death sentence by an eight to four
vote. On June 1, 1984, the trial court imposed a death sentence,
finding three aggravating circumstances. Although the court
found mitigating factors,1 it found the aggravating circumstances
outweighed the mitigating circumstances and sentenced
Mr. Johnston to death (R. 2412-2415). On direct appeal to this
Court, Mr. Johnston’s conviction and sentence was affirmed.
Johnston v. State, 497 So. 2d 863 (Fla. 1986).

On October 28, 1988, a death warrant was signed, the
execution of which was ultimately stayed subsequent to the filing
of Mr. Johnston’s first motion to vacate judgment and sentence in
state court. After an evidentiary hearing, the circuit court
denied all relief. The denial was appealed to this Court, which
affirmed the circuit court’s decision. Johnston v. Dugger, 583
So. 2d 657 (Fla. 1991).

1 The trial court found Mr. Johnston was the product of abroken home; he was abused; he was neglected and rejected by hisnatural mother; he was physically abused by his father; he wasgreatly affected by his father’s death; he has a very low I.Q.
and did not do well in school; and he was mentally disturbed (R.
2412-2415).

Mr. Johnston next filed a federal habeas petition and on
September 16, 1993 the federal district court granted
Mr. Johnston habeas corpus relief and ordered the State of
Florida to either (1) impose a life sentence; (2) conduct a new
penalty phase proceeding before a newly empaneled jury; or (3)
obtain an appellate re-weighing or harmless-error analysis. On
remand, this Court conducted a harmless-error analysis and
thereafter reimposed a death sentence. Johnston v. Singletary,
640 So. 2d 1102 (Fla. 1994). The federal habeas court
subsequently denied all relief.

In the interim, Mr. Johnston filed his first successive
motion to vacate judgment and sentence in the circuit court. The
circuit court denied relief, finding the claims time-barred and,
alternatively, an abuse of process. On appeal, this Court
thereafter affirmed the circuit court and also denied Mr.
Johnston’s state habeas petition. Johnston v. State, 708 So. 2d
590 (Fla. 1998).

The Eleventh Circuit Court of Appeals subsequently ruled on
Mr. Johnston’s appeal from the denial of his habeas petition in
federal district court and denied all relief. Johnston v.
Singletary, 162 F.3d 630 (11th Cir. 1998).

Mr. Johnston subsequently filed a successive state habeas
petition wherein he claimed that this Court applied an incorrect
standard of review in its 1991 opinion (Johnston v. Dugger, 583

So.2d 657 (Fla. 1991)). This Court denied relief. Johnston v.
Moore, 789 So. 2d 262 (Fla. 2001).

Thereafter, Mr. Johnston filed his third motion to vacate
judgment and sentence wherein he claimed the Florida capital
sentencing scheme was unconstitutional under Ring v. Arizona, and
that the State of Florida was barred from executing him under
Atkins v. Virginia due to his mental retardation. Following the
denial of relief by the circuit court, this Court affirmed.
Johnston v. State, 960 So. 2d 757 (Fla. 2006).

On April 20, 2009, Florida Governor Crist signed a warrant
for Mr. Johnston and set his execution date for May 27, 2009.
Subsequently, Mr. Johnston filed his fourth successive motion to
vacate his judgment and sentence. While the motion was summarily
denied by the circuit court, on appeal this Court issued an order
relinquishing jurisdiction and remanding to the circuit court for
ninety days to conduct DNA testing.

Subsequent to the DNA testing, Mr. Johnston filed his fifth
successive motion to vacate his judgment and sentence claiming
that newly discovered evidence that blood was not found on Mr.
Johnston’s clothes warranted a new trial. The circuit court
denied both the fourth and fifth successive motions to vacate the
judgment and sentence. On January 21, 2010, this Court affirmed
the denial of relief. Johnston v. State, No. SC09-839, Slip Op.
(Fla. January 21, 2010). On that same date, this Court lifted

Mr. Johnston’s stay of execution.

On February 8, 2010, Mr. Johnston filed his sixth successive
motion to vacate judgment and sentence claiming that newly
discovered evidence obtained through the WAIS-IV IQ test revealed
that Mr. Johnston was mentally retarded and thus the State of
Florida is barred from executing him under Atkins v. Virginia,
536 U.S. 304 (2002). The circuit court held a case management
conference and heard argument of counsel on February 19, 2010.
The circuit court then took the matter under advisement. On that
same day, subsequent to the parties’ argument, Governor Crist
reset Mr. Johnston’s execution date for March 9, 2010, at 6:00

p.m.

The circuit court held a second case management conference
on February 23, 2010. The court orally denied the motion at the
case management conference and provided a detailed written order
after 5:00 p.m. the same day.

On appeal, subsequent to briefing and oral argument, this
Court stayed the execution and relinquished jurisdiction to the
circuit court for an evidentiary hearing on the issue of whether
newly discovered evidence indicates that Mr. Johnston is mentally
retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002),
section 921.137, Florida Statutes (2009), and Cherry v. State,
959 So. 2d 702 (Fla. 2007).

Following an evidentiary hearing upon remand, the circuit

court determined that Mr. Johnston is not mentally retarded by
order rendered April 5, 2010. This appeal follows.

SUMMARY OF THE ARGUMENT

Newly discovered evidence of mental retardation demonstrates
that Mr. Johnston’s death sentence violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Florida’s constitutional prohibition against cruel and unusual
punishment.

STATEMENT OF FACTS

During the evidentiary hearing following this Court’s
remand, collateral counsel called four witnesses to testify as to
the newly discovered evidence of Mr. Johnston’s mental
retardation. These witnesses included not only experts in
psychology and mental retardation, but also individuals with
expertise in psychometric theory/measurement and theory in the
administration of intelligence instruments.

Dr. Eisenstein, a clinical psychologist, testified that he
conducted an evaluation of Mr. Johnston on May 5, 2009 and July
20, 2009 (Supp. PCR4 68). Dr. Eisenstein administered a number
of tests, including the Wechsler Adult Intelligence Scale, Fourth
Edition (WAIS-IV) (Supp. PCR4 68).2 In addition, Dr. Eisenstein

2Dr. Eisenstein also administered the Expressive VocabularyTest, the MMPI, the Peabody Picture Vocabulary Test, the ReyOstrich Complex Figure, the Test of Memory Malingering, the Wide-
Range Achievement Test, the Wisconsin Card Sorting Test, theHalstead Category Test and the Kaufman FAST Test (Supp. PCR4 68).

reviewed numerous records and reports, including reports from
Drs. Blandino, Fleming and Prichard, as well as records from the
Monroe Regional Mental Health Center, the Louisiana Northeast
Special Education Center, the Ouchita Parish School Board, a
social investigation report from the assistant chief juvenile
officer and a Florida Department of Corrections adaptive behavior
checklist (Supp. PCR4 69). Moreover, Dr. Eisenstein conducted a
telephone interview with Mr. Johnston’s brother, Clifford
Johnston, as well as with Mr. Johnston’s stepmother, Careen
Johnston (Supp. PCR4 69).

In discussing Mr. Johnston’s educational records, Dr.
Eisenstein noted that starting with grade one in 1967, Mr.
Johnston received unsatisfactory grades in all subjects (Supp.
PCR4 75). Mr. Johnston was in regular first grade for the first
three months before being placed in a special education class
(Supp. PCR4 75). A report card from 1971 established that Mr.
Johnston was still in special education (Supp. PCR4 75). And for
part of the next year (1972), Mr. Johnston continued to attend
special education (Supp. PCR4 75). However, in the latter part
of that school year, which was a third grade class, Mr. Johnston
quit school and was sent to Leesville to a school for the
retarded for four years; he then returned and was placed in a
special education class for one year (Supp. PCR4 76).

Dr. Eisenstein reviewed a later social investigation report

authored by D.W. Channault, wherein it was indicated by Mr.
Johnston’s father that his son was unable to stay out of trouble
and was retarded (Supp. PCR4 73, 76). D.W. Channault also stated
in the report, “We have a 16-year-old-boy who is badly retarded.”
(Supp. PCR4 76). Additionally, Dr. Eisenstein reviewed a
psychiatric evaluation conducted by John P. Burton, MD (Supp.
PCR4 76). Dr. Eisenstein found the following statement by Dr.
Burton to be significant, “My impression is unsocialized
aggressive reaction of childhood and adolesscent, mental
retardation mild, institution placement is strongly recommended.”
(Supp. PCR4 76).

With regard to his own testing, Dr. Eisenstein testified
that he administered the Test of Memory Malingering (TOMM), which
evaluates one’s ability to answer questions in a truthful and
honest manner (Supp. PCR4 76-77).3 He also administered the
Peabody, which tests one’s ability to understand spoken language
(Supp. PCR4 77). Mr. Johnston received a standard score of 40,
which is a percentile ranking of less than .1, and an age
equivalent of six years, six months (Supp. PCR4 77).

Mr. Johnston scored poorly on a number of other tests. On
the Trail Making Test, which measures one’s ability to sustain
attention and perform a simple task, Mr. Johnston scored in the

3The TOMM showed no indication of malingering (Supp. PCR4

111).

profound range of impairment (Supp. PCR4 77-78). On the Halstead
Category Test, which measures executive functioning, Mr. Johnston
had trouble understanding the test and became increasingly
frustrated (Supp. PCR4 79-80). Again, Mr. Johnston scored in the
profoundly impaired range (Supp. PCR4 80).

As part of his analysis, Dr. Eisenstein also reviewed an
adaptive behavior checklist from the Department of Corrections
which was completed in 2002:

Q What did you find significant within thatreport?

A The sum of ratings was 33 on this checklistof 12 different functions. The scale goes from zero,
which is extremely severe impairment, three to four,
which is adequate or within the normal limits. So
there’s - - this is a range between four to zero. One
is severe, two is moderate and three is mild. The
overall sum on these 12 different functions of adaptivefunctioning, adaptive behavior was 33. The 33 placesMr. Johnston at the low end of the marginal level ofadaptive functioning.

(Supp. PCR4 81-82).

In his interview with Careen Johnston, Dr. Eisenstein noted
that she reported that Mr. Johnston had trouble comprehending; he
often slobbered very badly while eating; he couldn’t dress
himself well; he couldn’t hold thoughts in his mind; he had no
driver’s license or bank account; he had odd jobs that he
couldn’t hold on to; he couldn’t fill out a job application; his
reading wasn’t good; his communication skills were impaired; he
had mental health issues and took Thorazine and other

psychotropic medications; he received Social Security disability
when he was 16 or 17 years old; and he went to a school for the

mentally retarded (Supp. PCR4 84-85).4

In terms of mental retardation, Dr. Eisenstein first
discussed subaverage intellectual functioning (Supp. PCR4 89).
Mr. Johnston had a number of IQ tests in his records (Supp. PCR4
89). In 1967, at age seven, he was administered the Stanford-
Binet and obtained a score of 57 (Supp. PCR4 89). In 1972, at
twelve years old, Mr. Johnston was administered the Wechsler
Adult Intelligence Scale for Children (WISC), and he obtained a
full-scale score of 65 (Supp. PCR4 89-90). In 1974, Mr. Johnston
obtained a full-scale score of 80 on the WISC (Supp. PCR4 90).5
In 1988, Mr. Johnston was administered the Wechsler Adult
Intelligence Scale-Revised (WAIS-R), and he obtained a verbal IQ
score of 75 and a performance IQ score of 101 (Supp. PCR4 90).
The full-scale IQ score was not reported (Supp. PCR4 90). In
2000, Mr. Johnston was administered the WAIS-III, and he obtained
a full-scale score of 76 (Supp. PCR4 90). And in 2005, Mr.
Johnston was again administered the WAIS-III, and he obtained a

4Clifford Johnston related similar information in his
interview with Dr. Eisenstein (Supp. PCR4 86).

5However, there was no actual report for this score; it wasjust reported in other documents (Supp. PCR4 119).

full-scale score of 84 (Supp. PCR4 89-90).6

In July of 2009, Dr. Eisenstein administered the WAIS-IV

(Supp. PCR4 91). Mr. Johnston obtained a verbal comprehension

score of 61 (.5 percentile), a perceptual reasoning score of 82

(twelfth percentile), a working memory score of 63 (first

percentile), processing speed of 56 (.2 percentile), and a full-

scale IQ score of 61 (.5 percentile)(Supp. PCR4 91-93). Mr.

Johnston scored at two and almost two-thirds standard deviations

below the mean (Supp. PCR4 94).

In his testimony, Dr. Eisenstein explained the differences

between the WAIS-IV and the previous tests:

The way that the IQ score is constructed is basedon research data that has a normative sample, and thenormative sample, the scores form the factor analysisof the various different subtests. That analysisbasically is a breakdown of the various differentsubtests into different categories. Those index scores
is what the new IQ has now incorporated, unlike theprevious IQ where there was just verbal and there was aperformance, which then yielded the full-scale IQscore. The factor scores are the breakdown into
various different subtests that create various
different indexes. The indexes are a greaterunderstanding of different functions that theindividual is performing on. So the breakdown is far
greater and certainly more definitive, so it’s really -
it’s really a new formulation of the test in terms ofindex scores, unlike the previous traditional verbaland performance IQ scores. And those index scores then
are the breakdown of the various different subtests.
So the WAIS-IV is constructed based on the statistical
analysis that has been going on with the test for quitea while and moving away from what has always been

6Dr. Eisenstein noted that there is a practice effect, thusscores do increase (Supp. PCR4 119).

though as the traditional verbal and performance IQscores. And now we have index scores which is reallymore definitive and more correct, precise assessment ofan individual’s skill levels.

(Supp. PCR4 91-92). Dr. Eisenstein testified that the WAIS-IV is

the instrument that is now considered to be the standard of

practice, the one that research now has validated as being the

definitive instrument for assessing intellectual function (Supp.

PCR4 94). The IQ from the WAIS-IV is certainly a more accurate

reflection of true IQ values (Supp. PCR4 126). As Dr. Eisenstein

further explained:

[T]he WAIS-IV reconfigures the way we think about IQ.
And it’s not a reconfiguration of the old but it’ssomething that is really brand new. The brand new
evaluation is perhaps landmark in the sense that wedon’t look anymore at the way we’ve though about IQ forseveral decades as being verbal/performance plus thosetwo which will equal the full-scale IQ score.

* * *

And it is now in the WAIS-IV we have the new way of

looking at what IQ is all about in terms of these

different factor analysis and pulling things apart.

There is some interesting things to talk about theWAIS-IV. There’s - - as you can see, there’s certainskills that are extremely low and certain skills stillremain higher. For example, the PRI, the PerceptualReasoning Index, equals 82. Now, 82, in and of itself,
is not obviously below 70. So we - - and we take a
look at the pattern of results. The pattern of resultsthat’s been consistent throughout all the different IQscores is that his verbal skills have been lower and
the perceptual, nonverbal have been higher. The splithas been consistent throughout his entire, you know,
his entire life, basically.

So when I talk about - - also about not fakingbad, you see there’s not faking bad even on the WAIS-IVbecause, again, there are skill levels, there is a

discrepancy of 21 points between the verbal index of 21points between the verbal index of 61, the perceptualindex of 82. But what happens is, there’s a loading onthe other skills that includes processing skills andworking memory, and those skills are consistent withthe much lower verbal IQ scores, and then because ofthis reconfiguration of the way this finally - - the IQis scored, the whole score then drops.

(Supp. PCR4 124-26).

Addressing onset before age 18, Dr. Eisenstein noted that

two IQ tests reflected scores below 70 (Supp. PCR4 95).7

Further, the psychiatric evaluation from the Monroe Regional

Mental Health Center in 1973 classified Mr. Johnston as “mental

retardation mild.” (Supp. PCR4 99). And, Mr. Johnston had been

admitted to the Leesville School for the Mentally Retarded (Supp.

PCR4 100). Based on the WAIS-IV, the previous testing, Mr.

Johnston’s history and documentation, and on record review, Dr.

Eisenstein concluded that Mr. Johnston meets the criteria for an

individual who has subaverage general intelectual functioning

that manifested before the age of 18 (Supp. PCR4 100).

As to Mr. Johnston’s adaptive functioning, Dr. Eisenstein

concluded that he meets the criteria for at least two areas that

7Dr. Eisenstein further noted that the examiner felt that
this was a depressed intellectual assessment due to the manyproblems that Mr. Johnston was experiencing, including emotionalproblems, evidence of moderate to severe levels of perceptualproblems and/or brain damage, schizophrenia and multiple otherpsychiatric diagnoses (Supp. PCR4 95-96, 121). Dr. Eisenstein
characterized this as comorbidity, which is the phenomena wheremore than one impairment coexists at the same time (Supp. PCR496-97). This, however, does not disqualify someone as beingmentally retarded (Supp. PCR4 97).

were significantly below levels of impairment that would
constitute significant adaptive functioning impairment (Supp.
PCR4 101). The first area is communication, where Mr. Johnston
reads at the first grade level and his understanding of the
spoken language is the equivalent of six years, six months (Supp.
PCR4 101). Mr. Johnston’s ability to articulate language was the
age equivalent of 11 years (Supp. PCR4 101). These findings are
further corroborated by the Florida Department of Corrections
checklist (Supp. PCR4 101-02).

Mr. Johnston also did not have a stable work history and he
has a deficit in adaptive functioning as it relates to social
interpersonal skills (Supp. PCR4 102). He was a loner, he
preferred to be around older people, and he would holler at
children and didn’t want them nearby (Supp. PCR4 102). And as
noted on the DOC checklist completed by a psychologist
specialist, the categories of socialization, interpersonal
skills, group skills and interview behavior were found to be
moderately impaired (Supp. PCR4 102-03).

Dr. Eisenstein concluded that Mr. Jonston meets the
definition for mild mental retardation (Supp. PCR4 104).

Dr. Frank Gresham is a professor of psychology as Louisiana
State University as well as the director of the school psychology
program at that institution (Supp. PCR4 143). He has been a
professor of psychology since 1979 (Supp. PCR4 143). He

currently teaches a course in psychometric theory, which is the
theory that governs how tests are developed, what their technical
characteristics are, and how they are validated (Supp. PCR4 144).
He also has a specialization in mild mental retardation (Supp.
PCR4 149). Additionally, Dr. Gresham has received federal
research funding grants from the Department of Education looking
at issues surrounding individuals with mental retardation and
learning disabilities (Supp. PCR4 145). Much of the research
funding dealt with the population of individuals having mental
retardation (Supp. PCR4 149).

Dr. Gresham has published over 175 journal articles,
including one titled “Applied Neuropsychology and Intellectual
Assessment in Atkins cases” (Supp. PCR4 147). As to the
psychometric theory, as part of his work Dr. Gresham has studied
the WAIS testing series, including the WAIS-IV (Supp. PCR4 148).

After being accepted by the court in the area of psychology,
mental retardation and psychometric theory, Dr. Gresham explained
the history of the WAIS series and the distinctions between the
WAIS-IV and the previous WAIS tests (Supp. PCR4 150-52). Dr.
Gresham testified that the previous WAIS tests maintained a
verbal IQ/performance IQ distinction, and then added those two
together to form the full-scale IQ (Supp. PCR4 152, 156). The
WAIS-IV is dramatically different because it went away from the
verbal/performance IQ structure and now reports four index

scores, which are verbal comprehension, working memory,
perceptual reasoning and processing speed (Supp. PCR4 152, 156).
The WAIS-IV is a dramatically different structure than was
available for the WAIS-III (Supp. PCR4 152-53). The WAIS-IV is a
total reconfiguration of the scale, not just a refinement (Supp.
PCR4 173).

Dr. Gresham also explained that every IQ test is a norm
referenced test, which signifies that the test scores have no
meaning in and of themselves unless they are compared to a
normative sample of people of the same age (Supp. PCR4 153). As
for the WAIS series, the normative samples are recalibrated based
on the revision of the test because they become outdated (Supp.
PCR4 153-54). The 1967 Stanford-Binet given to Mr. Johnston was
normed in 1958; the 1972 WISC was normed in 1947, the 1988 WAIS-R
was normed around 1979, and the 2000 and 2005 WAIS-III tests were
normed in 1995 (Supp. PCR4 155).

According to the WAIS-IV Manual, the WAIS-IV was developed
in light of research and cognitive psychology, developmental
psychology and psychometric theory to yield a more accurate
estimate of an individual’s intelligence (Supp. PCR4 158-59).
Further, the manual mentions the need for providing updated norms
for the Wechsler test (Supp. PCR4 159). Dr. Gresham reiterated
that the WAIS-IV is a more accurate indication of Mr. Johnston’s
IQ than the other listed scores (Supp. PCR4 173). It is a better

scale in terms of the psychometrics of it, and it has more

updated norms, from 2006 (Supp. PCR4 174).8

Dr. Harry Krop, a psychologist, evaluated Mr. Johnston on
May 1, 2009 (Supp. PCR4 186). This was a clinical interview
focusing on an evaluation for competency and mitigating factors
not addressed earlier (Supp. PCR4 187). It was from that
interview that Dr. Krop expressed concerns to collateral counsel
that there may be an issue of mental retardation (Supp. PCR4
187). Dr. Krop recommended that the WAIS-IV be administered
(Supp. PCR4 187). Research and literature showed that the WAISIV
was probably the most reliable and accurate assessment of
intellectual functioning (Supp. PCR4 187). It is also Dr. Krop’s
opinion that the WAIS-IV is a better test in terms of current
measurements and is a more valid and reliable test of a person’s
intellectual functioning (Supp. PCR4 213).

After Dr. Eisenstein administered the WAIS-IV, Dr. Krop
consulted with him and received the raw data (Supp. PCR4 188).
After reviewing it and consulting with Dr. Eisensetin, Dr. Krop
did not see any reason to think that the test was not valid
(Supp. PCR4 188-89). Further, Mr. Johnston’s scoring on the
WAIS-IV reflected the same variability on all the other tests

8The normative sample is based on the U.S. Census Bureau ofStatistics stratified by race, age, socioeconomic status,
mother’s level of education and geographic regions (Supp. PCR4177-78).

where the nonverbal areas were much better than the verbal areas
(Supp. PCR4 201-02). Moreover, Dr. Krop submitted that the
testing certainly could have reflected Mr. Johnston’s brain
damage which numerous evaluators have suggested exists with Mr.
Johnston (Supp. PCR4 201-02). Because of the reconfiguration of
the WAIS-IV, Mr. Johnston ended up with a much lower score as
opposed to the prior versions of the WAIS (Supp. PCR4 202).

Dr. Krop proceeded to determine the adaptive functioning
level of Mr. Johnston (Supp. PCR4 189). Dr. Krop explained that
you do three things when doing an adaptive assessment: Interview
the client, review as much collateral material as possible,9 and
do a formal adaptive assessment measure using independent
informants who are familiar with the defendant (Supp. PCR4 18990).

In this case, Dr. Krop utilized the Adaptive Behavior
Assessment System (ABAS), which is a questionnaire to be filled
out with the individuals familiar with the defendant (Supp. PCR4
190-91). Dr. Krop made contact with three of Mr. Johnston’s
family members, Careen Johnston, Clifford Johnston and Deborah
Johnston (Supp. PCR4 191). Careen and Clifford Johnston
completed the ABAS, the results of which demonstrated that Mr.
Johnston was significantly deficient or limited in adaptive

9Dr. Krop noted that Mr. Johnston had voluminous records interms of psychiatric history and evaluations (Supp. PCR4 190).

functioning (Supp. PCR4 192).

In reviewing the collateral records in this case, Dr. Krop
observed that the Florida Department of Corrections in 2002
performed an adaptive behavior checklist, which concluded that
Mr. Johnston had a marginal adjustment to even a highly
structured prison setting; and in some of the specific areas, he
was considered to be severely impaired (Supp. PCR4 193). Another
document from Larned State Hospital in 1981 described Mr.
Johnston’s level of adaptive functioning as very poor (Supp. PCR4
193). And in those same records, a Dr. Blake described Mr.
Johnston’s communication skills also as poor (Supp. PCR4 193-94).

In a 1975 report from Leesville State School, Mr. Johnston
was described as having an adaptive behavioral level of three,
which is low (Supp. PCR4 194). The prognosis for independence
and productivity was poor, and Mr. Johnston had significant
deficiencies in interpersonal relations, responsiveness and
cultural conformity (Supp. PCR4 194).

(Supp. PCR4 194).10 Dr. Krop concluded that in almost every
capacity and in almost every environment that Mr. Johnston has
been in, he has had difficulty adjusting or adapting (Supp. PCR4
195).

With regard to the two sub 70 IQ scores where the examiner
suggested that the scores might be an underestimate of Mr.
Johnston’s true intellectual functioning, Dr. Krop noted that the
same person made both comments (Supp. PCR4 197). And these
comments were based, in part, because of significant scatter and
uneven performance in the tests (Supp. PCR4 197).11 Dr. Krop
believes that while this presumption was common back then, more
advanced research shows that it is not unusual for persons with
lower IQs to have more variability than an individual who scores
at a higher IQ range (Supp. PCR4 197-98). Moreover, the same
examiner also reported in January of 1968 and May of 1972 that
Mr. Johnston continued to function within the mentally retarded
educable range (Supp. PCR4 200). Dr. Krop believes that the
issue here is that Mr. Johnston was functioning at the mentally
retarded range from many sources to the point where he was placed

10Dr. Krop also noted that Mr. Johnston has been eligiblefor social security and was receiving disability funds for amental disability (Supp. PCR4 195).

11The examiner also suggested that the scores were anunderestimate because of Mr. Johnston’s emotional problems (Supp.
PCR4 199).

in a program for the mentally retarded (Supp. PCR4 200).12

It is Dr. Krop’s opinion that Mr. Johnston is mentally
retarded using the definition that is in the Diagnostic and
Statistical Manual as well as the American Psychiatric
Association (Supp. PCR4 202).

Dr. Gordon Taub is an associate professor of school
psychology at the University of Central Florida (Supp. PCR4 233).
Amongst other subjects, Dr. Taub teaches intelligence theory
measurement, which instructs students how to administer, score
and interpret test intelligence (Supp. PCR4 234). Dr. Taub also
has work and research experience regarding psychometric
measurement and theory, including having published approximately
17 peer-reviewed articles (Supp. PCR4 234-36). Dr. Taub was
accepted by the court as an expert in psychometric measurement
and theory in the administration of the intelligence instruments
(Supp. PCR4 236).

Dr. Taub authored an article in 2001 titled A confirmatory

analysis of the Wechsler Adult Intelligence Scale, Third Edition:

Is the verbal/performance discrepancy justified? (Supp. PCR4 236,
241; D-Ex. 4). Dr. Taub was interested in the fact that although
the WAIS-III was developed with the idea of a four-factor model

12Moreover, Dr. Krop submitted that the testing certainlycould have reflected Mr. Johnston’s brain damage which numerousevaluators have suggested exist with Mr. Johnston (Supp. PCR4198).

(processing speed, perceptual reasoning, working memory and
verbal comprehension), the actual scoring of the instrument was a
two-factor verbal/performance dichotomy (Supp. PCR4 237). Thus,
there was no opportunity to calculate IQ using the four-factor
model (Supp. PCR4 238). Dr. Taub wanted to know if the WAIS-III
was providing an accurate measure of intelligence or if there was
an alternative scoring system that would have been better (Supp.
PCR4 233, 238). Performing a study utilizing structural equation
modeling, Dr. Taub attempted to determine whether the
verbal/performance dichotomy fit the data or correlation among
all the subtests, or was there another scoring method that would
have been better to fit the data (Supp. PCR4 239-40). Dr. Taub
determined that the best way to score the WAIS-III was the four
factor model consisting of verbal comprehension, perceptual
organization, working memory and processing speed, the theory
implied by the WAIS manufacturers but not used to score the
instrument (Supp. PCR4 241). This theory, which was implied in
the WAIS-III, is the current scoring system for the WAIS-IV
(Supp. PCR4 241).13 In sum, Dr. Taub stated that the cause for
the differentiation in the scoring is the application being
explicit in the WAIS-IV and implicit in the WAIS-III (Supp. PCR4
242).

13Thus, the WAIS-IV conforms to the model that Dr. Taub hadproposed (Supp. PCR4 241).

Dr. Taub authored another article in 2004 regarding the
factor structure on the WAIS-III (Supp. PCR4 244; D-Ex. 5). This
article also examined whether the WAIS-III was truly providing a
good measure of intelligence (Supp. PCR4 245). Dr. Taub
concluded that if the four-factor model had been utilized in the
WAIS-III, it would have been a stable instrument across time,
across all the age ranges within the normative sample (Supp. PCR4
245-46).

Dr. Taub concluded that the four-factor model utilized in
the WAIS-IV constitutes a major revision from the WAIS-III (Supp.
PCR4 247). Further, he stated that while the WAIS-IV is scoring
the instrument according to the factor structure described in the
manual, the WAIS-III is not, and thus the scoring method is
flawed at the verbal/performance factor determination (Supp. PCR4
251). Dr. Taub stated that extreme caution needs to be used when
interpreting these scores (Supp. PCR4 265).

In response to questions regarding the range of IQ scores
received by Mr. Johnston, Dr. Taub stated that when a test
administration takes place, the score that is received is the
true score as of that point in time (Supp. PCR4 250-51; 258).14

14The State moved to strike Dr. Taub’s testimony on thebasis of Frye, in that Dr. Taub had not shown that his theory hadgained general acceptance in the scientific community (Supp. PCR4266-67). The court granted the motion to strike (Supp. PCR4270). After the court’s ruling collateral counsel subsequentlymoved the court to reconsider on the basis that Dr. Taub’s two
articles had been cited to 34 times in peer-review materials, a

Following the presentation of witnesses by Mr. Johnston, the
State called two witnesses, Drs. Prichard and Blandino, to
testify to their opinion that Mr. Johnston is not mentally
retarded.

Dr. Prichard is a clinical psychologist who was asked by the
State Attorney’s office to do a mental retardation assessment of
Mr. Johnston in May 2005 (Supp. PCR4 318). Dr. Prichard
testified that he reviewed numerous background records and court
transcripts (Supp. PCR4 318-19). In 2005, Dr. Prichard concluded
that Mr. Johnston clearly did not meet the criteria for mental
retardation (Supp. PCR4 318).

Recently, Dr. Prichard was again asked to review information
regarding Mr. Johnston (Supp. PCR4 319). Dr. Prichard reviewed
information provided by Dr. Krop, Dr. Eisenstein and collateral
counsel (Supp. PCR4 319-20). Dr. Prichard again concluded that
Mr. Johnston is not mentally retarded (Supp. PCR4 320).

In arriving at this determination, Dr. Prichard relied on
the previous IQ testing and the comments on the sub 70 scores
that while Mr. Johnston was testing in the educable mentally
retarded range, that did not appear to be reflective of his

process which ensures the scientific integrity of whateverinformation or data is being presented in the paper (Supp. PCR4281-284). The court reserved ruling on the issue (Supp. PCR4314). Subsequently, in its order denying relief, the court foundDr. Taub’s testimony to be admissible (PCR4 55).

optimal performance (Supp. PCR4 321).15 Dr. Prichard considers
these tests to be invalid (Supp. PCR4 331). Dr. Prichard
testified that regardless of the score generated, whether it be
high or low, he would disregard it if there is an indication from
the examiner that the score may not reflect one’s true ability
due to emotional problems (Supp. PCR4 348-49). Yet, when Dr.
Prichard conducted the WAIS-III in 2005, he noted in his comments
that Mr. Johnston was rambling, that he had auditory
hallucinations and was anxious, that he had poor sleep and
appetite patterns, that he would lose focus, that he believed his
food was being poisoned, and that his emotional presentation was
unstable (Supp. PCR4 350-51).16 And in the 1974 score, which Dr.
Prichard indicated was the most valid of the ones prior to the
age of 18, the test examiner stated that there were some
indications of test-wiseness, especially on the performance

section (Supp. PCR4 352-53).17

When asked about the extreme disparity between the 2005

15However, as was pointed out to Dr. Prichard, subsequent tothe two sub 70 IQ tests being rendered, the psychiatric directorof the institution labeled Mr. Johnston as “mental retardation,
mild.” (Supp. PCR4 360).

16According to Dr. Prichard’s WAIS-III testing in 2005, Mr.
Johnston scored a 76 on the verbal, a 95 on the performance, andhad a full-scale score of 84 (Supp. PCR4 325). Dr. Prichard has
since discovered a one point error in the scoring, and hence Mr.
Johnston actually had a full-scale IQ of 83 (Supp. PCR4 325).

17This was Mr. Johnston’s third IQ test in seven years(Supp. PCR4 353).

score on the WAIS-III and the 2009 score on the WAIS-IV, Dr.
Prichard opined that it was not the product of the testing
instruments (Supp. PCR4 325).18 Dr. Prichard did acknowledge,
however, that he has never published or authored any articles
relating to the WAIS-III or WAIS-IV, nor has he reviewed any
articles about construct validity research as it relates to the
WAIS-III and WAIS-IV (Supp. PCR4 346, 367). Further, Dr.
Prichard admitted that he did not know the theory of intelligence
that the WAIS-IV is based on or how that theory is utilized to
obtain a full-scale IQ score other than just the fact that
there’s four factors (Supp. PCR4 361). Dr. Prichard also
admitted that he isn’t qualified to testify as to this area, nor
does he have any independent support for his position (Supp. PCR4
361, 368).

Dr. Prichard further acknowledged that the WAIS-IV is the
most valid, reliable test available right now and that its
important to update the norms (Supp. PCR4 338, 355). He also
acknowledged that the WAIS-IV was a reconfiguration of the WAISIII,
in that it went from the two-factor model to the four-factor
model (Supp. PCR4 344). Moreover, Dr. Prichard agreed that some
of the subtests on the WAIS-III were dropped and not included on

18Instead, Dr. Prichard suggested that the disparity couldbe due to anxiety, motivation or a poor testing environment(Supp. PCR4 326-27).

the WAIS-IV (Supp. PCR4 345).19 And, Dr. Prichard also
acknowledged that on every single IQ test Mr. Johnston’s
performance was higher than his verbal; and that now, the
performance part is only one of the four factors to be considered
(Supp. PCR4 346).

Because Dr. Prichard was of the opinion that Mr. Johnston
didn’t meet the first prong for mental retardation, Dr. Prichard
didn’t do any adaptive functioning testing (Supp. PCR4 341-42).
However, Dr. Prichard did note that he reviewed a 2005 court
transcript wherein Mr. Johnston spoke to the court (Supp. PCR4
337-38). Dr. Prichard thought the transcript was compelling
because Mr. Johnston expressed himself well, not like someone who
is mentally retarded (Supp. PCR4 338). Also, Dr. Prichard
reviewed some letters in 2005 that Mr. Johnston denied were
written by him (Supp. PCR4 338). According to Dr. Prichard, the
writings in the letters exceeded the ability of a mentally
retarded person (Supp. PCR4 338). And, Dr. Prichard testified
that he had been made aware of the fact that Mr. Johnston has
legal books and transcripts in his cell (Supp. PCR4 339). Dr.
Prichard opined that these legal materials seemed “pretty
extensive” for a mentally retarded person (Supp. PCR4 339).

Dr. Salvatore Blandino is a licensed psychologist who was

19For instance, the picture arrangement on the WAIS-III,
wherein Mr. Johnston had one of his highest scores, was notincluded in the WAIS-IV (Supp. PCR4 345).

accepted by the court as an expert in the area of clinical
psychology (Supp. PCR4 371-73). Dr. Blandino previously examined
Mr. Johnston in 2005 and was reappointed to evaluate Mr. Johnston
for the present proceedings (Supp. PCR4 374). Dr. Blandino
reviewed records and transcripts in preparation for the case
(Supp. PCR4 374-75). Dr. Blandino’s opinion, as it was in 2005,
is that Mr. Johnston is not mentally retarded (Supp. PCR4 375).

Dr. Blandino proceeded to go through the history of Mr.
Johnston’s IQ scores, starting with the three IQ tests
administered prior to the age of 18. Dr. Blandino noted the
cautionary language that Mr. Johnston’s sub 70 scores on his
first two IQ tests may have been influenced by evidence of
moderate to severe levels of perceptual problems, brain damage, a
detrimental familial environment and high levels of anxiety
(Supp. PCR4 377-80).20 Dr. Blandino did give credit to Mr.
Johnston’s third IQ test which had a full-scale IQ score of 80
(Supp. PCR4 383). Dr. Blandino felt that the most important
thing with this score was that there was no cautionary statement
(Supp. PCR4 384). Dr. Blandino disagreed with the notion that
the examiner’s caution of test-wiseness, especially on the

20Dr. Blandino did acknowledge that brain damage doesn’trule out mental retardation; there can be a comorbidity (Supp.
PCR4 400). Further, he acknowledged that brain damage can be acause of mental retardation (Supp. PCR4 402). But given Dr.
Blandino’s view of the IQ scores, he couldn’t see how Mr.
Johnston is mentally retarded (Supp. PCR4 402).

performance section, was a cautionary statement (Supp. PCR4 403).

Dr. Blandino opined that the subsequent test scores
reflected a consistent pattern of performance (Supp. PCR4 384).
Thus, according to Dr. Blandino, there is a consistent pattern if
you eliminate the first two scores as invalid and consider the
2009 score to be an outlier (Supp. PCR4 410-12).

In addressing the 2009 test score, Dr. Blandino acknowledged
that this was the most recent measure (Supp. PCR4 389). But he
claimed that the results are only as good as the information
given to get the results (Supp. PCR4 389-90). Dr. Blandino
attributed the lower WAIS-IV score to stress, emotional
difficulties and behavioral problems as a result of being under
an active death warrant (Supp. PCR4 392).

Dr. Blandino was of the opinion that the WAIS-III and WAISIV
had an almost perfect correlation (.94), thus the scoring
differences weren’t due to reconfiguration (Supp. PCR4 390-91).
According to Dr. Blandino, while three of the subtests from the
WAIS-III were removed and another one was added to the WAIS IV,
ultimately, you still get a full-scale IQ score (Supp. PCR4 398).
After making this statement, Dr. Blandino did acknowledge that by
definition, every single IQ test does that (Supp. PCR4 398). And
he also acknowledged that the factors that go into obtaining that
IQ score are completely different (Supp. PCR4 398).

Dr. Blandino further acknowledged that he has done no

research nor authored any articles as to any of the WAIS tests or
the differences between the two-factor model and the four-factor
model (Supp. PCR4 399-400). Moreover, Dr. Blandino acknowledged
that he has not reviewed any articles addressing this issue
(Supp. PCR4 400).

Dr. Blandino testified that he didn’t formally assess the
adaptive functioning issue (Supp. PCR4 393). But he was critical
of Dr. Krop’s adaptive functioning assessment because Dr. Krop
relied on people who hadn’t seen Mr. Johnston in years (Supp.
PCR4 395). And Dr. Blandino was also critical of the fact that
Mr. Johnston purportedly wrote a 12-page letter to a pen pal in
Germany (Supp. PCR4 395-96).

STANDARD OF REVIEW

The claims presented in this appeal are constitutional
issues involving mixed questions of law and fact and are reviewed
de novo, giving deference only to the trial court’s factfindings.
Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999); State v.
Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001).

ARGUMENT I

NEWLY DISCOVERED EVIDENCE OF MENTAL RETARDATION
DEMONSTRATES MR. JOHNSTON’S DEATH SENTENCE VIOLATES THE
EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND FLORIDA’S CONSTITUTIONAL PROHIBITION
AGAINST CRUEL AND UNUSUAL PUNISHMENT.

In remanding Mr. Johnston’s case, this Court stated, “Having
reviewed the record in this case, including prior proceedings, we

reverse the summary denial of Johnston’s newly discovered
evidence claim relating to mental retardation and temporarily
relinquish jurisdiction to the circuit court for thirty days for
an evidentiary hearing to be held on the issue of whether newly
discovered evidence indicates that Johnston is mentally retarded
pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), section
921.137, Florida Statutes (2009), and Cherry v. State, 959 So. 2d
702 (Fla. 2007).” Johnston v. State, Case No. SC10-356 (Fla.
March 4, 2010).

During the evidentiary hearing Mr. Johnston presented expert
testimony establishing that he recently obtained an IQ score of
61 utilizing the newly promulgated WAIS-IV test. Mr. Johnston
also established that the WAIS-IV is the most current and
accurate test available. Mr. Johnston further presented
rational, objective, and scientific reasoning which logically
explains the disparity between the score Mr. Johnston obtained on
the WAIS-IV and the score which Mr. Johnston obtained on the 2005
WAIS-III.

In opposition to Mr. Johnston’s evidence, the State failed
to discredit the WAIS-IV21 or the score which Mr. Johnston
obtained on it. Rather than addressing, as this Court ordered,
whether the newly discovered evidence indicates that Mr. Johnston

21In fact, Dr. Prichard, one of the State’s experts,
acknowledged that the WAIS-IV is the most valid, reliable testavailable right now (Supp. PCR4 338, 355).

is mentally retarded, the State focused on previous testing
showing Mr. Johnston’s IQ score to be above 70.

The circuit court, in its order denying relief, adapted the
State’s faulty argument and denied relief. As will be shown
below upon an examination of each prong of the mental retardation
standard, the circuit court’s determination was erroneous.

A. Mr. Johnston has significantly subaverage generalintellectual functioning.

Dr. Eisenstein administered Mr. Johnston the WAIS-IV IQ test
on July 20, 2009. Mr. Johnston’s IQ score was a 61, well below
the bright-line cutoff score of 70 required under this Court’s
decision in Cherry. Both Drs. Eisenstein and Krop recognized the
test as valid and properly administered (Supp. PCR4 188-89).
Neither of the State’s experts disputed these facts; rather, they
simply disregarded them and instead continued to rely on
selective prior testing showing IQ scores above 70 to conclude
that Mr. Johnston is not mentally retarded.22

In its order finding that Mr. Johnston does not have
significantly subaverage intellectual functioning, the circuit
court stated, “[T]he Court finds the testimony of the State’s
witnesses to be more detailed and to provide more credible

22For instance, in arriving at his determination that Mr.
Johnston is not mentally retarded, Dr. Prichard relied on theprevious IQ testing and the comments on the sub 70 scores thatwhile Mr. Johnston was testing in the educable mentally retardedrange, that did not appear to be reflective of his optimalperformance (Supp. PCR4 321).

explanations for the disparities in Defendant’s test scores in

the seven IQ tests” (Supp. PCR4 57). Specifically, with regard

to the actual issue as to whether the WAIS-IV constitutes newly

discovered evidence indicating that Mr. Johnston is mentally

retarded, the circuit court stated,

Additionally the Court finds that Dr. Blandino’stestimony that the correlation between the WAIS-III andthe WAIS-IV, which Dr. Prichard testified was .94,
essentially means that the two tests are almostidentical, is credible. The Court also finds that Dr.
Blandino’s statement that Defendant’s presence on deathrow would cause him to suffer depression, etc., whichwould depress his performance on the WAIS-IV, iscredible.

(Supp. PCR4 58).

The circuit court’s order is erroneous and is not supported

by competent and substantial evidence. The fact is the State

presented two witnesses whose sole area of expertise relates to

psychology. When asked about the extreme disparity between the

2005 score on the WAIS-III and the 2009 score on the WAIS-IV, Dr.

Prichard opined that it was not the product of the testing

instruments (Supp. PCR4 325).23 Instead, despite not having

23Dr. Prichard espoused this opinion despite acknowledgmentthat the WAIS-IV was a reconfiguration of the WAIS-III, in thatit went from the two-factor model to the four-factor model (Supp.
PCR4 344). Moreover, Dr. Prichard agreed that some of thesubtests on the WAIS-III were dropped and not included on theWAIS-IV (Supp. PCR4 345). For instance, the picture arrangementon the WAIS-III, wherein Mr. Johnston had one of his highestscores, was not included in the WAIS-IV (Supp. PCR4 345). And,
Dr. Prichard also acknowledged that on every single IQ test Mr.
Johnston’s performance was higher than his verbal; and that now,
the performance part is only one of the four factors to be

evaluated nor observed Mr. Johnston since 2005, Dr. Prichard
suggested that the disparity could be due to anxiety, motivation
or a poor testing environment (Supp. PCR4 326-27).

Dr. Prichard candidly acknowledged, however, that he has
never published or authored any articles relating to the WAIS-III
or WAIS-IV, nor has he reviewed any articles about construct
validity research as it relates to the WAIS-III and WAIS-IV
(Supp. PCR4 346, 367). Further, Dr. Prichard admitted that he
did not know the theory of intelligence that the WAIS-IV is based
on or how that theory is utilized to obtain a full-scale IQ score
other than just the fact that there’s four factors (Supp. PCR4
361). Dr. Prichard also admitted that he isn’t qualified to
testify as to this area, nor does he have any independent support
for his position (Supp. PCR4 361, 368).

Likewise, Dr. Blandino acknowledged that he has done no
research nor authored any articles as to any of the WAIS tests or
the differences between the two-factor model and the four-factor
model (Supp. PCR4 399-400).24 Moreover, Dr. Blandino
acknowledged that he has not even read any articles addressing

considered (Supp. PCR4 346).

24While speculating that the WAIS-III and WAIS-IV are almostidentical, Dr. Blandino subsequently admitted that three of thesubtests from the WAIS-III were removed and another one was added
to the WAIS-IV (Supp. PCR4 398). Dr. Blandino then proceeded todemonstrate his complete lack of expertise in the area when hedismissed the distinctions, stating that ultimately, you stillget a full-scale IQ score (Supp. PCR4 398).

this issue (Supp. PCR4 400). And while Dr. Blandino attributed
the lower WAIS-IV score to stress, emotional difficulties and
behavioral problems as a result of being under an active death
warrant, this opinion is certainly suspect in that he too he had
not evaluated nor observed Mr. Johnston since 2005.

Clearly, the circuit court’s reliance on the speculative
conclusion of two witnesses with no expertise in the area is
erroneous. This is even more so in light of the fact that Mr.
Johnston presented specialized expert testimony as to this issue,
testimony which the circuit court simply ignored.

Drs. Taub and Gresham each testified extensively regarding
the difference in scoring that was caused by a reconfiguration of
the WAIS. Both doctors were well-qualified to render these
opinions as both are professors, have taught undergraduate and
graduate classes in the area (Supp. PCR4 144, 234-36); and, Dr.
Taub25 has conducted research regarding the scoring methods used
in the WAIS series of tests (Supp. PCR4 236, 244). Notably, Dr.
Taub was accepted by the circuit court as an expert in
psychometric measurement and theory in the administration of the
intelligence instruments (Supp. PCR4 236); and Dr. Gresham was
accepted by the circuit court in the area of psychology, mental

25Dr. Taub was the coordinator for the PsychologicalCorporation, the maker of the WAIS and WISC series of tests, forthe child pilot and standardization of the WISC-IV. The WISC issimply the WAIS for children (Supp. PCR4 234-35).

retardation and psychometric theory (Supp. PCR4 150-52).

Dr. Taub authored an article in 2001 titled “A confirmatory
analysis of the Wechsler Adult Intelligence Scale, Third Edition:
Is the verbal/performance discrepancy justified?” (Supp. PCR4
236, 241; D-Ex. 4). Dr. Taub was interested in the fact that
although the WAIS-III was developed with the idea of a four-
factor model (processing speed, perceptual reasoning, working
memory and verbal comprehension), the actual scoring of the
instrument was a two-factor verbal/performance dichotomy (Supp.
PCR4 237). Thus, there was no opportunity to calculate IQ using
the four-factor model (Supp. PCR4 238). Dr. Taub wanted to know
if the WAIS-III was providing an accurate measure of intelligence
or if there was an alternative scoring system that would have
been better (Supp. PCR4 233, 238). Performing a study utilizing
structural equation modeling, Dr. Taub attempted to determine
whether the verbal/performance dichotomy fit the data or
correlation among all the subtests, or was there another scoring
method that would have been better to fit the data (Supp. PCR4
239-40). Dr. Taub determined that the best way to score the
WAIS-III was the four factor model consisting of verbal
comprehension, perceptual organization, working memory and
processing speed, the theory implied by the WAIS manufacturers
but not used to score the instrument (Supp. PCR4 241). This
theory, which was implied in the WAIS-III, is the current scoring

system for the WAIS-IV (Supp. PCR4 241).26 In sum, Dr. Taub
stated that the cause for the differentiation in the scoring is
the application being explicit in the WAIS-IV and implicit in the

WAIS-III (Supp. PCR4 242).27

Similarly, Dr. Gresham explained the history of the WAIS
series and the distinctions between the WAIS-IV and the previous
WAIS tests (Supp. PCR4 150-52). Dr. Gresham testified that the

26Thus, the WAIS-IV conforms to the model that Dr. Taub hadproposed (Supp. PCR4 241).

27Dr. Taub authored another article in 2004 regarding thefactor structure on the WAIS-III (Supp. PCR4 244; D-Ex. 5). This
article also examined whether the WAIS-III was truly providing agood measure of intelligence (Supp. PCR4 245). Dr. Taub
concluded that if the four-factor model had been utilized in the
WAIS-III, it would have been a stable instrument across time andacross all the age ranges within the normative sample (Supp. PCR4245-46).

28In response to questions regarding the range of IQ scoresreceived by Mr. Johnston, Dr. Taub stated that when a testadministration takes place, the score that is received is thetrue score as of that point in time (Supp. PCR4 250-51; 258).

previous WAIS tests maintained a verbal IQ/performance IQ
distinction, and then added those two together to form the full-
scale IQ (Supp. PCR4 152, 156). The WAIS-IV is dramatically
different because it went away from the verbal/performance IQ
structure and now reports four index scores, which are verbal
comprehension, working memory, perceptual reasoning and
processing speed (Supp. PCR4 152, 156). The WAIS-IV is a
dramatically different structure than was available for the WAISIII
(Supp. PCR4 152-53). The WAIS-IV is a total reconfiguration
of the scale, not just a refinement (Supp. PCR4 173).

Contrary to Dr. Taub and Gresham, Drs. Prichard and Blandino
were never able to render an opinion as to these scoring matters
as they had no knowledge of them. The circuit court’s
determination, which was based on the speculation and conjecture

of two witnesses with no expertise in the area as opposed to the
highly qualified opinions of two experts, clearly is not
supported by competent and substantial evidence. Mr. Johnston
submits the newly discovered evidence establishes that he has
subaverage intellectual functioning.

B. Mr. Johnston has concurrent deficits in adaptivefunctioning.

During the evidentiary hearing, both of the State’s experts
testified that they didn’t do any adaptive functioning testing
(Supp. PCR4 341-42, 393). However, Drs. Eisenstein and Krop each
assessed this issue and determined that Mr. Johnston has
concurrent deficits in adaptive behavior (Supp. PCR4 101-03, 19294)

In the face of unrebutted testimony, the circuit court still
somehow managed to determine that Mr. Johnston didn’t meet his
burden:

Moreover, Defendant did not meet his burden ofestablishing the second prong of the test for mentalretardation, wherein even though Dr. Eisensteintestified that both his communication and comprehensionskills were low, no interviews were conducted withDepartment of Correction personnel assessing hisadaptive performance there, and the affidavit fromand/or interviews with Defendant’s stepmother andbrother provided far too little information and weretoo distant in time to have any probative value.

(Supp PCR4 58).
The circuit court’s determination is not supported by
competent and substantial evidence. The circuit court’s finding

ignores the significant evidence produced through Dr. Krop, who
was the primary doctor assessing adaptive functioning; and it
also ignores the adaptive functioning checklist completed by the
psychology specialist who was a DOC employee.

In concluding that the information provided by Mr.
Johnston’s step-mother and brother was too sparse the court
failed to consider that Dr. Krop utilized the Adaptive Behavior
Assessment System (ABAS).29 The ABAS is a questionnaire to be
filled out with the individuals familiar with the defendant
(Supp. PCR4 190-91). Careen and Clifford Johnston completed the
ABAS, the results of which demonstrate that Mr. Johnston is
significantly deficient or limited in adaptive functioning (Supp.
PCR4 192).

More importantly, the circuit court somehow omitted from
consideration the fact that in reviewing the collateral records
in this case, Dr. Krop observed that the Florida Department of
Corrections in 2002 performed an adaptive behavior checklist,

29Moreover, the court obviously ignored the information fromCareen and Clifford Johnston demonstrating that their informationwas anything but sparse, but rather establishing that Mr.
Johnston had trouble comprehending; he often slobbered very badlywhile eating; he couldn’t dress himself well; he couldn’t holdthoughts in his mind; he had no driver’s license or bank account;
he had odd jobs that he couldn’t hold on to; he couldn’t fill outa job application; his reading wasn’t good; his communicationskills were impaired; he had mental health issues and tookThorazine and other psychotropic medications; he received SocialSecurity disability when he was 16 or 17 years old; and he wentto a school for the mentally retarded (Supp. PCR4 84-85).

which concluded that Mr. Johnston had a marginal adjustment to
even a highly structured prison setting; and in some of the
specific areas, he was considered to be severely impaired (Supp.
PCR4 193).30 The circuit court did not consider that another
document from Larned State Hospital in 1981 described Mr.
Johnston’s level of adaptive functioning as very poor (Supp. PCR4
193). And in those same records, a Dr. Blake described Mr.
Johnston’s communication skills also as poor (Supp. PCR4 193-94).

30Likewise, Dr. Eisenstein also reviewed the adaptivebehavior checklist from the Department of Corrections which wascompleted in 2002:

Q What did you find significant within thatreport?

(Supp. PCR4 81-82).

cultural conformity (Supp. PCR4 194).

Mr. Johnston’s school records demonstrated an inability to
conform to classroom situations (Supp. PCR4 194). And Mr.
Johnston’s vocational history shows that he had three jobs in his
lifetime, the longest of which was working at a carnival for two
months (Supp. PCR4 194). Mr. Johnston was fired from these jobs
(Supp. PCR4 194).31 Dr. Krop concluded that in almost every
capacity and in almost every environment that Mr. Johnston has
been in, he has had difficulty adjusting or adapting (Supp. PCR4
195).

Mr. Johnston submits that based on the foregoing, the
circuit court’s finding is in error and Mr. Johnston has
adequately established that he suffers from concurrent deficits
in adaptive functioning.

C. Mr. Johnston’s mental retardation manifested itself
during the period from conception to the age of 18.

In its order denying relief, the circuit court’s analysis of
this issue comprised of the following sentence, “Lastly, it was
not established that there was onset of mental retardation prior
to the age of 18 wherein Defendant’s first two test scores were
discounted and his IQ score at age 14 was too high to place him
in the mental retardation range.” (Supp. PCR4 58).

31Dr. Krop also noted that Mr. Johnston has been eligiblefor social security and was receiving disability funds for amental disability (Supp. PCR4 195).

The court’s analysis amounts to nothing more than cherry
picking. Mr. Johnston had two sub 70 IQ scores prior to the age
of 18, the 1967 Stanford-Binet that was a 57, and the WISC score
of 65 obtained in 1972 (Supp. PCR4 89-90). The very doctors that
administered those tests diagnosed Mr. Johnston as mentally
retarded and this diagnosis then resulted in Mr. Johnston being
taken from his parents home and placed in the Leesville State
School for the Mentally Retarded. The fact that a diagnosis of
mental retardation was rendered and Mr. Johnston was placed as a
result of that diagnosis in a school for the mentally retarded
conclusively establishes that the onset of mental retardation
occurred before the age of 18.

Clearly, this is not a situation where the court was forced
to rely upon a random IQ score in the school records. Mr.
Johnston’s retardation and mental health issues kept him in
virtually constant contact with the social services system within
the State of Louisiana. Dr. Krop observed during his testimony
that:

. . . Mr. Johnston has been involved for so long withmental health professionals there, there werevoluminous records in this case, maybe more than mostof the other cases that I’ve dealt with in terms of
psychiatric records, evaluations and so forth. So therewere certainly a lot of evaluations to review. Some ofthese were preconviction (sic) and some of thempostconviction.

(Supp. PCR4 190).
And Dr. Krop perceptively observed later in his testimony:

If I could just add one more thing. In juststaying on the topic of those first two IQ tests, theperson who - - who reported in her opinion she thoughtthat the scores were an underestimate because of
emotional problems, despite that, she reported to themother in January of 1968, in her report she said thatthe mother was told that David’s functioning is at thementally retarded level, although, again, she believedthat is due to emotional problems.

In May of 1972, which was the same person at thesame program, despite her belief that heunderestimates, the report says, quote, David formallycontinues to function within the educable retarded
range. So again, I think the issue here is a fact thatthis person was functioning at the mentally retardedrange from many sources to the point where he wasplaced in a program for the mentally retarded.

(Supp. PCR4 199-200).

Despite being diagnosed as being mentally retarded prior to
the age of 18, and despite being placed in a school for the
mentally retarded prior to the age of 18, the circuit court
solely based its decision relative to onset of mental retardation
upon the fact that the State’s doctors discounted the scores of
57 and 65 and relied upon the 1974 score of 80. The court’s
determination is contrary to competent and substantial evidence.
Such a determination ignores the aforementioned evidence as well
as the fact that the testimony from the State’s experts was
completely contradictory and fatally flawed.

The two State experts discounted the two sub 70 IQ scores on
the basis that the comment by the examiner completely
disqualified the validity of the tests. However, neither expert
was willing to accept the validity of the comment from the 1974

test that warned of indications of test-wiseness, especially in

the performance section. Interestingly, the performance score on

the 1974 test increased more than a full standard deviation from

the WISC that was given approximately eighteen months earlier.

Dr. Prichard agreed that test-wiseness would mean something

akin to practice effect (Supp. PCR4 353). Dr. Blandino, however,

attempted to play semantical games regarding the comment about

test-wiseness relative to the 1974 test in the following exchange

on cross-examination:

Mr. Doss: But at the same time, you didn’t - - youdidn’t put any caveat on the January 1974 test of an 80where the examiner said that it appeared that heexhibited test-wiseness and that it affected the
performance score?

Dr. Blandino: To me, when I hear test-wiseness,
that doesn’t translate into practice effect. And he didnot use that word or that phraseology in the report.32
Wiseness, to me, means that it’s somebody that’s beentested before, they are aware they are going to betested, they know what to expect, that they’re gonna beasked questions, that they’re taking an IQ test, butthat does not translate into practice effect. Nowhereis that mentioned in that qualitative description.

Mr. Doss: But it is mentioned that the examiner

thought that it elevated the performance score,

correct?

Dr. Blandino: That’s not my reading of it.

Mr. Doss: You reviewed Dr. Prichard’s report,
right?

32There was no actual report associated with the 1974 IQ

test. It was just reported in other documents with no indication

of who examined Mr. Johnston (Supp. PCR4 119-120).

Dr. Blandino: Yes, I did.
Mr. Doss: I believe he quotes directly from it. Do

you have Dr. Prichard’s report there?
Dr. Blandino: No, I don’t. No.
Mr. Doss: I’ll let - - I’m gonna quote from this

and then I’ll let you - - I’ll let you look at it.

Dr. Prichard quoted from the examiner, said it

was - - it was conveyed, quote, there was some

indication of test-wiseness, especially on the

performance section, but he did appear to be

functioning in the dull normal range. Isn’t that

indicating that that test-wiseness is affecting the

score possibly?
Dr. Blandino: Can I see that, please?
Mr. Doss: Yes.
Dr. Blandino: There was some indication of test

wiseness, especially on the performance section.

Again, test-wiseness. Me, my interpretation is

awareness. It’s not saying because of this, the

performance is being affected. It’s not saying there is

a practice effect. Again, to me, wiseness is - - is

he’s conveying that there’s a level of awareness.
(Supp. PCR4 403-04). Clearly, Dr. Blandino simply made a post-
hoc rationalization for not realizing that this comment was
present in Dr. Prichard’s report. A warning about test-wiseness
was pointedly given by the examiner and not so coincidentally the
performance section was indeed more than a full standard
deviation above the performance score from the same test given
eighteen months earlier. The 1972 score on the performance
section was 72 and eighteen months later it was 90. Yet, Dr.
Blandino attempted to portray the comment and the result as

insignificant. Mr. Johnston submits that this attempt

demonstrates a lack of credibility as to his opinion and reveals

an anchoring bias present in his testimony.

Drs. Prichard and Blandino’s over-reliance on the cautionary

statement from the examiner that administered the 1967 and 1972

IQ tests was further exposed when Dr. Krop cogently and more

specifically33 explained the context of the statement as follows:

The first two testings that were done, which arereferenced both in my report, I believe, and also Dr.
Prichard and Dr. Blandino’s reports, which I alsoreviewed, is the first time he was tested, and that waswith the Stanford-Binet, he had an IQ of 57. He wastested five years later with the WISC, which was thefirst children’s version of the Wechsler and he had a
full-scale IQ of 65.

So the two tests that were done early in hiscareer or early in his life were both clearly in therange of mental retardation. They were done by the sameindividual who in both of - - I believe it’s a female.
Both of her reports suggested that she thought that onthe basis of his test performance that these may be anunderestimate of his true intellectual functioning. Shesaid that, in part, she felt that because of thesignificant scatter, and she used both the inter testand intra test scatter. And what that means is that
between the different tests, there were strengths andweaknesses and within each test there were some
variability. She hypothesized that the reason for the

-that she believed that the scores were not a true
estimate of his functioning was because of thisscatter, and perhaps uneven performance, reflected hisanxiety level and, therefore, she felt that hisemotional functioning or poor emotional functioningsomehow had an impact on his true intellectual

33Contrary to the circuit court’s findings, Dr. Krop’s

explanation regarding the first two IQ scores are much more

specific and detailed than Drs. Prichard and Blandino, as well as

being more plausible.

functioning.

I think she was in error in making that assumptionmainly because - - and I do recall back then34 we
thought that intra tests and inter tests scatter didreflect possibly some emotional disorder and also couldreflect a person who has brain damage.

I think the more advanced the research has become

and the literature that is now out on testing, number

one, shows that it is not unusual for persons with

lower IQ, that is in the retardation range, to have

more variability than a person who scores at a higher

IQ range. So it’s basically fairly typical,

particularly in the mild mental retardation, which is

Mr. Johnston’s case, it is not unusual to have the kind

of scatter he had in those first two tests.

Also, the testing certainly could have reflectedMr. Johnston’s brain damage which numerous evaluatorshave suggested exists with Mr. Johnston. And you can goback to reports when he was seven and eight years oldand there were suggestions that he suffered from sometype of brain damage and so therefore -

(Supp. PCR4 196-98).

Mr. Johnston submits that based on the foregoing, the

circuit court’s finding is in error and Mr. Johnston has

adequately established that his mental retardation manifested

itself prior to the age of eighteen.

CONCLUSION

Mr. Johnston submits that he has demonstrated his

entitlement to relief based on the fact that newly discovered

evidence establishes that he is mentally retarded. Based upon

the record and his arguments, Mr. Johnston respectfully urges the

34Dr. Krop was practicing in 1972 in contrast Drs. Prichardand Blandino, who did not begin practicing until the 1990’s.

Court to reverse the lower court and impose a sentence of life
imprisonment.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been
furnished by electronic transmission and U.S. mail, postage
prepaid, to Kenneth S. Nunnelley, Office of the Attorney General,
444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118 on this
27th day of April, 2010

CERTIFICATE OF FONT

This is to certify that this Initial Brief has been produced
in a 12 point Courier type, a font that is not proportionately
spaced.

D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya DriveSuite 102
Lake City, FL 32025-6092Telephone (386) 755-9119Facsimile (386) 755-3181

Florida Issues

Sunday, May 2, 2010

The initial brief filed by defense lawyer Todd Doss in David Johnston

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