The replybrief in David Johnston

http://david-johnston.us/legal/Filed_05-20-2010_Reply_Brief.pdf

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

IN THE SUPREME COURT OF FLORIDA
CASE NO. SC10-356

DAVID EUGENE JOHNSTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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

SUPPLEMENTAL REPLY 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

TABLE OF CONTENTS

TABLE OF CONTENTS
............................................................... i
TABLE OF AUTHORITIES
.............................................................. ii
ARGUMENT IN REPLY
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.

............................................................... 1

CONCLUSION
............................................................... 6
CERTIFICATE OF SERVICE
............................................................... 6
CERTIFICATE OF FONT
............................................................... 7

TABLE OF AUTHORITIES

Atkins v. Virginia, 536 U.S. 304 (2002) ....................... 1
Cherry v. State, 959 So. 2d 702 (Fla. 2007) ................... 1
Johnston v. State, Case No. SC10-356 (Fla. March 4, 2010)...... 1

ARGUMENT IN REPLY

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)(emphasis added).

As Mr. Johnston has established, the newly discovered
evidence, the WAIS-IV, does in fact indicate that he is mentally
retarded. Appellee has produced no evidence to the contrary. In
fact, as Appellee acknowledges in its own statement of facts,
state expert Dr. “Prichard does not doubt the validity of the
WAIS-IV as an intelligence testing instrument and it is the most
valid, reliable test available today.” (Supplemental Answer at
31).

Given Appellee’s inability to refute the newly discovered

evidence which Mr. Johnston has produced, Appellee instead
attempts to fault Mr. Johnston for failing to challenge the
accuracy of the earlier IQ testing (Supplemental Answer at 37).
In doing so, Appellee fails to comprehend that when Mr. Johnston
provided thorough explanations from qualified experts as to the
validity of the newly discovered evidence, these explanations
also provided rational, objective and scientific reasoning which
logically explains the differences between the WAIS-IV and prior
tests (See e.g., Supp. PCR4 91, 92, 94, 124, 126, 152, 153, 156,
173, 174, 242, 247, 251). Appellee seemingly ignores the fact
that even its own expert, Dr. Prichard, admitted that the WAIS-IV
was a reconfiguration of the WAIS-III, in that it went from the
two-factor model to the four-factor model; and that some of the
subtests on the WAIS-III were dropped and not included on the
WAIS-IV, including the picture arrangement test wherein Mr.
Johnston had one of his highest scores (Supp. PCR4 344-46).1

Despite having failed to rebut Mr. Johnston’s newly
discovered evidence in any way, Appellee desperately clings to
the notion that Mr. Johnston’s score on the WAIS-IV is unworthy
of belief (Supplemental Answer at 38). Appellee asks this Court
to disregard Mr. Johnston’s score on the “most valid, reliable

1Further, Dr. Prichard also acknowledged that on everysingle IQ test, Mr. Johnston’s performance was higher than hisverbal; and that now, the performance part is only one of thefour factors to be considered (Supp. PCR4 346).

test available today”, because some of Mr. Johnston’s older
scores indicate IQ scores of over 70; and although some of Mr.
Johnston’s older scores indicate IQs under 70, Appellee submits
that those shouldn’t count (Supplemental Answer at 40).2
Appellee’s quibbling over which of Mr. Johnston’s many prior IQ
scores, ranging from 57-84, should count as evidence of whether
Mr. Johnston’s is mentally retarded, does nothing to negate the
fact that Mr. Johnston has presented unrebutted newly discovered
evidence establishing an IQ of 61. Contrary to Appellee’s
assertion (Supplemental Answer at 40), the reasons are clear as
to why the circuit court should have found that Mr. Johnston is
mentally retarded.

Still having failed to discredit the WAIS-IV or the score
which Mr. Johnston obtained on it, Appellee blindly asserts that
the circuit court properly reached the conclusion that the WAISIV
did not produce a valid score (Supplemental Answer at 45). As
Mr. Johnston previously demonstrated in his Supplemental Initial
Brief, the circuit court’s determination is not supported by
competent and substantial evidence. More to the point, the
circuit court’s determination is not supported by any evidence.

2It is disingenuous that Appellee wishes to discount Mr.
Johnston’s prior sub-70 IQ scores based upon the supposedconcerns of the test examiner, yet Appellee wholeheartedlyendorses Mr. Johnston’s 1974 score of 80, despite the testexaminer’s concerns of test-wiseness on the part of Mr. Johnston(Supp. PCR4 352-53).

Instead, the court relied upon the speculative conclusion of a
State expert who despite not having seen Mr. Johnston in five
years, stated that Mr. Johnston’s “presence on death row would
cause him to suffer depression, etc., which would depress his
performance on the WAIS-IV.” (Supp. PCR4 58). Clearly, the
circuit court’s reliance on such unfounded conjecture to dismiss

the WAIS-IV score is erroneous.3

Appellee also attempts to assert that the testimony of the
State’s experts regarding the correlation between the WAIS-III
and the WAIS-IV should be credited over the testimony of Mr.
Johnston’s experts (Supplemental Answer at 45). In doing so,
Appellee does not even attempt to offer any explanation, credible
or otherwise, as to why the Court should credit the testimony of
two witnesses with no expertise in this area over well-qualified
experts who were recognized by the circuit court as experts in
psychometric measurement and theory in the administration of the
intelligence instruments (Supp. PCR4 150-52, 236).4 Appellee had

3Appellee doesn’t even attempt to argue in favor of thecircuit court’s faulty reasoning. Rather, Appellee weaklymaintains that “[w]hatever may have caused the low score on theWAIS-IV, that score is not valid - - the circuit court properlyreached that conclusion.” (Supplemental Answer at 45).

4Dr. Prichard candidly acknowledged that he has neverpublished nor authored any articles relating to the WAIS-III orWAIS-IV, nor has he reviewed any articles about constructvalidity research as it relates to the WAIS-III and WAIS-IV(Supp. PCR4 346, 367). Further, Dr. Prichard admitted that hedid not know the theory of intelligence that the WAIS-IV is basedon or how that theory is utilized to obtain a full-scale IQ score

the opportunity at the remanded evidentiary hearing to present

expert testimony regarding the construct of the WAIS-IV in

comparison to the WAIS-III. For whatever reason, Appellee

instead chose to present witnesses whose sole expertise is in

psychology.5 Appellee’s attempt to now rely on witnesses with no

expertise in the critical areas at issue must be disregarded.6

Like Appellee’s argument, the circuit court’s determination,

which was also based on the speculation and conjecture of two

witnesses with no expertise in the area as opposed to the highly

other than just the fact that there’s four factors (Supp. PCR4361). Dr. Prichard also admitted that he isn’t qualified totestify as to this area, nor does he have any independent supportfor his position (Supp. PCR4 361, 368).

Likewise, Dr. Blandino acknowledged that he has done noresearch nor authored any articles as to any of the WAIS tests orthe differences between the two-factor model and the four-factor
model (Supp. PCR4 399-400). Moreover, Dr. Blandino acknowledgedthat he has not even read any articles addressing this issue(Supp. PCR4 400).

5This lack of expertise can be seen in Dr. Blandino’s, andsubsequently the circuit court’s, unfounded reliance on thecorrelation of 0.94 between the WAIS-III and the WAIS-IV. Dr.
Blandino testified that the two tests were almost identical.
This fact is relatively insignificant given that the correlationbetween the WAIS-III tests administered in 2000 and 2005 is 1.0,
yet they resulted in divergent scores, a 76 and an 84respectively. Moreover, the WISC taken three times by Mr.
Johnston as a child had a correlation of 1.0 yet resulted indivergent scores with a variance of 65 to 80. This Court should
disregard the unfounded correlation testimony as a “red herring.”

6Further, Appellee’s apparent frustration for failing tohaving presented the appropriate experts, and thus causingAppellee to lash out at Mr. Johnston’s “‘academic’ witnesses”
(Supplemental Answer at 45), is unwarranted.

qualified opinions of two experts, is not supported by competent
and substantial evidence.

On a final note, Appellee at several points during the
briefing as well as during the remanded evidentiary hearing
seemingly insinuates that Mr. Johnston was never sent to a school
for the mentally retarded. Such an insinuation is patently
false. There is no dispute that Mr. Johnston was sent to the
Leesville State School in Louisiana. According to the Statute of
Louisiana, Act 321 (1960), the Leesville State School was
established on March 30, 1964, and it was specifically for “the
training and rehabilitation of educable and/or trainable mentally
retarded children.”

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
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

20th day of May 2010.

CERTIFICATE OF FONT

This is to certify that this Supplemental Reply 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 Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181