Byron Lewis Black was convicted of murder after killing his girlfriend and her two daughters inside their Nashville home in 1988. After hearing the gruesome details of the shooting deaths of the two children, both under 10 years old, a jury sentenced Black to death.
But now, 25 years later, a federal judge in Nashville must decide whether or not Black should be on death row based on his mental status.
Kelley Henry, a seasoned federal public defender, argued before U.S. District Court Judge Todd Campbell earlier this month that Black is intellectually disabled under state law. People who are intellectually disabled can’t be executed, according to a state law passed in 2002.
Henry’s argument hinges on several recent state-level court decisions regarding interpretations of the state’s three-pronged approach to determining intellectual disability. The major issue revolves around the use of IQ test scores when judging mental capacity. State law maintains that a person must have an IQ score of less than 70 to be deemed “intellectually disabled.”
But the scores often aren’t cut and dry. Henry maintains that IQ tests “cannot and do not measure intelligence with absolute precision.” National experts have created formulas for determining margins of error that exist within IQ tests — and they also urge that those scores be adjusted downward within the margin to receive an accurate read.
In Black’s case, his IQ scores range from 57 to 97 over a period of four decades, according to court filings. His highest score was achieved as an 8-year-old. When adjusted downward for margin of error, some scores fall below the 70 threshold. The government, however, argues the opposite — that the scores could reasonably be adjusted upward because the tests were “culturally biased against minorities in the 1960s.” Black is African-American.
But Henry is leaning on a recent Tennessee Supreme Court decision in order to refute the government’s claims. In Michael Coleman vs. The State of Tennessee, the state’s highest court ruled in 2011 that the Tennessee law does not require raw scores on tests to be accepted at face value. Rather, “the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional IQ, or that the raw IQ. test score is artificially inflated or deflated,” the ruling said.
The Tennessee Supreme Court revisited the issue again last month when it issued a ruling in David Keen vs. State of Tennessee. Keen argued that a new IQ score proved his innocence. The Supreme Court struck down Keen’s appeal but clarified their position on test scores.
“We take the opportunity to reiterate that, in determining whether a defendant’s functional I.Q. is 70 or below, a trial court should consider all the evidence that is admissible under the rules for expert testimony,” the Keen opinion read.
One of the key pieces of expert testimony is called the “Flynn Effect” — a widely accepted theory that IQ scores increase by three points per decade. The American Association on Intellectual and Developmental Disabilities recognizes the phenomena.
When the Flynn Effect is factored into Black’s scores, along with deviation, most of the test scores fall below the state-required score of 70.
The state, however, argues that Coleman and Keen are “narrow” in nature — those rulings allow judges to consider the Flynn Effect, but certainly don’t require it.
“Consideration does not mean application,” assistant attorney general Eric Winter argued in court.
Aside from the test scores, Henry, who represented former death row inmate Gaile Owens, argued that Black’s mental disability is obvious, according to clinical observations. A scan of his brain revealed enlarged ventricles that doctors believe could be a result of fetal alcohol exposure.
“Brain damage doesn’t happen overnight,” Henry told Judge Campbell in court earlier this month. Black, who one former attorney said couldn’t even effectively communicate with him, wasn’t in attendance at the hearing.
Henry originally requested a jury trial to hear Black’s appeal, but instead, Judge Campbell is reviewing the case file and will make a determination about Black’s eligibility to be executed. Black, who has a clean prison record, could be moved into the general population at Riverbend Maximum Security Institution if he is found to be intellectually disabled. He would still serve a life sentence.
As of press time, Campbell hadn’t issued an opinion in the case.