State v. Williams

[Cite as State v. Williams, 2023-Ohio-4373.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY

STATE OF OHIO, CASE NO. 2023-T-0008

Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas

ANDRE R. WILLIAMS,
Trial Court No. 1988 CR 00365
Defendant-Appellant.

OPINION

Decided: December 4, 2023
Judgment: Affirmed in part and reversed in part; remanded

Dennis Watkins, Trumbull County Prosecutor; Ryan J. Sanders and Diane L. Barber,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481 (For Plaintiff-Appellee).

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

MARY JANE TRAPP, J.

{¶1} Defendant-appellant, Andre R. Williams (“Mr. Williams”), appeals the

December 29, 2022, judgment of the Trumbull County Court of Common Pleas denying

his petition for postconviction relief filed pursuant to Atkins v. Virginia, 536 U.S. 304, 122

S.Ct. 2242, 153 L.Ed.2d 335 (2002). Mr. 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. Mr. Williams also

appeals the trial court’s May 30, 2017, judgment denying his motion to strike the report
and testimony of Thomas Gazley, Ph.D. (“Dr. Gazley”), the trial court’s appointed expert

witness.

{¶2} Mr. Williams presents four assignments of error, contending the trial court

abused its discretion in finding he did not prove any of the three prongs of intellectual

disability and by denying his motion to strike Dr. Gazley’s testimony and report.

{¶3} After a careful review of the record and pertinent law, we find the following:

{¶4} (1) The trial court did not abuse its discretion in admitting Dr. Gazley’s

testimony and report. Dr. Gazley’s methods satisfy the threshold reliability standard to

admit his testimony and report. Any alleged shortcomings in Dr. Gazley’s methods relate

to the weight and credibility of his opinions. Thus, we affirm the trial court’s May 2017

judgment.

{¶5} (2) The trial court abused its discretion in determining Mr. Williams did not

prove intellectual-functioning deficits, significant adaptive deficits, and the onset of deficits

while he was a minor. In many instances, the trial court’s findings under each prong lack

evidentiary support and/or proper legal reasoning. In other instances, the trial court

excluded and/or failed to address evidence that supports a finding Mr. Williams is

intellectually disabled.

{¶6} We last sent this case back to the trial court with very specific instructions—

to re-analyze this case anew using the most recent governing law and clinical principles

of intellectual disability adopted by Ohio and federal precedent. While the trial court heard

the testimony of the “teaching expert” regarding the standards to be applied in analyzing

and arriving at conclusions on testing performed during Mr. Williams’ childhood, it appears

the trial court failed to heed the admonition of the Sixth Circuit in this case that a court’s

“wholesale exclusion of past evidence of intellectual disability from its Atkins analysis [is]
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contrary to clearly established Federal law.” Williams v. Mitchell, 792 F.3d 606, 619 (6th

Cir.2015).

{¶7} Thus, we have no choice but to reverse the trial court’s December 2022

judgment and remand for the trial court to expressly consider and weigh all of the

evidence in relation to each prong, not just evidence offered by the state, and issue

findings explaining its determinations that are consistent with the governing law and

supported by the evidentiary record.

Relevant Background

{¶8} In 1988, Mr. Williams and a co-defendant assaulted and robbed George and

Katherine Melnick after forcibly entering their home in Warren, Ohio. Mr. Williams beat

Mr. and Mrs. Melnick, killing him and leaving her for dead. He also attempted to rape

Mrs. Melnick. In 1989, a jury found Mr. Williams guilty of three counts of aggravated

felony-murder; four death penalty specifications for each of those counts; attempted

aggravated murder; aggravated burglary; aggravated robbery; and the lesser included

offense of attempted rape. The jury unanimously recommended a sentence of death.

The trial court sentenced Mr. Williams to the death penalty and prison terms.

{¶9} This court affirmed all but one of Mr. Williams’ convictions and his death

sentence. State v. Williams, 11th Dist. Trumbull No. 89-T-4210, 1995 WL 237092 (Mar.

24, 1995). The Supreme Court of Ohio upheld all of Mr. Williams’ convictions and his

death sentence. State v. Williams, 74 Ohio St.3d 569, 660 N.E.2d 724 (1996), certiorari

denied, Williams v. Ohio, 519 U.S. 835, 117 S.Ct. 109, 136 L.Ed.2d 62 (1996).

{¶10} During the pendency of Mr. Williams’ postconviction petition in federal court,

the Supreme Court of the United States decided Atkins, supra, holding that the execution

of intellectually disabled criminals is “cruel and unusual punishment” prohibited by the
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Eighth Amendment to the United States Constitution. The court provided some guidance

for determining whether an individual suffers from an intellectual disability, see id. at 308,

fn. 3, but ultimately it designated “the task of developing appropriate ways to enforce” the

Atkins holding to the states. Id. at 317. In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-

6625, 779 N.E.2d 1011, the Supreme Court of Ohio developed procedures and

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

penalty cases. It subsequently updated those standards in State v. Ford, 158 Ohio St.3d

139, 2019-Ohio-4539, 140 N.E.3d 616.

{¶11} In 2003, Mr. Williams filed an Atkins claim in the trial court via a petition for

postconviction relief. The trial court granted summary judgment to the state and

dismissed Mr. Williams’ petition without a hearing. This court reversed on procedural

grounds and remanded. State v. Williams, 165 Ohio App.3d 594, 2006-Ohio-617, 847

N.E.2d 495 (11th Dist.), appeal not accepted, 110 Ohio St.3d 1410, 2006-Ohio-3306, 850

N.E.2d 72. On remand, the trial court issued a revised entry granting summary judgment

to the state. This court affirmed the trial court’s judgment. State v. Williams, 11th Dist.

Trumbull No. 2007-T-0105, 2008-Ohio-3257. Mr. Williams appealed to the Supreme

Court of Ohio, which declined jurisdiction. State v. Williams, 120 Ohio St.3d 1453, 2008-

Ohio-6813, 898 N.E.2d 968.

{¶12} In 2009, Mr. Williams filed an Atkins claim in federal court via a petition for

a writ of habeas corpus, contending this court’s decision was contrary to clearly

established federal law. The district court denied Mr. Williams’ petition. Williams v.

Mitchell, N.D.Ohio No. 1:09 CV 2246, 2012 WL 4505774, *38 (Sept. 28, 2012). On

appeal, the Sixth Circuit Court of Appeals found that this court’s decision was contrary to

clearly established federal law in several respects. See Williams, 792 F.3d at 617-623.
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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 Mr. Williams, “conditioned upon

a fresh analysis by the Ohio courts as to whether Williams is intellectually disabled

pursuant to governing law.” Id. at 624.

{¶13} On remand, the district court ordered the state to initiate proceedings in the

trial court to reassess Mr. Williams’ Atkins claim pursuant to the Sixth Circuit’s decision.

Thereafter, the trial court held an evidentiary hearing on Mr. Williams’ Atkins claim over

several days in 2016 and 2017.

{¶14} Mr. Williams presented testimony from Cynthia Hartung, Ph.D. (“Dr.

Hartung”), his expert witness; Teddy Ricks, his cousin; Thomas Sullivan, Ph.D. (“Dr.

Sullivan”), another expert witness; and Tyrone Ballew, a fellow death row inmate. The

state presented testimony from Carla Dreyer, Psy.D. (“Dr. Dreyer”), its expert witness; Dr.

Gazley, the trial court’s expert witness; and three prison officials. Both sides also

submitted numerous exhibits, including Mr. Williams’ school and prison records, the

expert witnesses’ CVs and reports, and prior psychological reports.

{¶15} In a preliminary ruling before the hearing, the trial court denied Mr. Williams’

request to call Stephen Greenspan, Ph.D. (“Dr. Greenspan”), as an expert witness

because his testimony “would amount to needless presentation of cumulative evidence.”

State v. Williams, 2021-Ohio-241, 167 N.E.3d 527, ¶ 137 (11th Dist.), appeal not

accepted, 163 Ohio St.3d 1493, 2021-Ohio-2270, 169 N.E.3d 1276. During the hearing,

defense counsel proffered Dr. Greenspan’s summary of the scope and specific issues

upon which he would testify if permitted. Id. At the conclusion of the hearing, the trial

court again addressed Dr. Greenspan’s testimony, this time excluding it on the basis that

he was being called solely as a teaching expert rather than an evaluating expert. Id.
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 {¶16} During the hearing, Mr. Williams contended that Dr. Gazley was not

qualified as an expert in intellectual disability. The trial court accepted Dr. Gazley as an

expert in forensic psychology and referred ruling on his expertise in intellectual disability.

Following the hearing, Mr. Williams filed a motion to strike Dr. Gazley’s report and

testimony. On May 30, 2017, the trial court filed a judgment entry denying Mr. Williams’

motion.

{¶17} In April 2019, the trial court filed a 43-page judgment entry in which it

determined Mr. Williams failed to carry his burden to prove by a preponderance of the

evidence that he is intellectually disabled and denied his petition.

{¶18} Mr. Williams appealed to this court, raising five assignments of error,

including that “[t]he trial court abused its discretion when it refused to permit the relevant

testimony of Dr. Stephen Greenspan as a teaching expert.” Id. at ¶ 130. This court found

merit to the latter assignment of error, determining that the trial court abused its discretion

in excluding Dr. Greenspan’s testimony. Id. at ¶ 152. We reversed the trial court’s

judgment and remanded to permit Dr. Greenspan’s expert testimony in a teaching

capacity. Id. at ¶ 153. Consequently, we found Mr. Williams’ remaining assignments of

error were not ripe for review. Id.

{¶19} We also explained that in light of subsequent precedent from the Supreme

Courts of the United States and Ohio, the parties were permitted “to submit updated

evaluations and to supplement the experts’ testimony upon request to the trial court.” Id.

at ¶ 154. We instructed the trial court to “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, 140 N.E.3d 616.” Id.
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 {¶20} Following remand, Dr. Greenspan submitted an updated report. None of

the other experts amended their reports or performed any additional testing. At an

evidentiary hearing held in November 2022, Dr. Greenspan testified as a teaching expert.

{¶21} On December 29, 2022, the trial court filed a 50-page judgment entry in

which it again found that Mr. Williams failed to carry his burden to prove by a

preponderance of the evidence that he is intellectually disabled and denied his petition.

{¶22} Mr. Williams appealed and raises the following four assignments of error:

{¶23} “[1.] The trial court’s conclusion that Mr. Williams does not have significantly

subaverage intellectual functioning is an abuse of discretion as it is based upon arbitrary

and capricious factual findings and inconsistent with the best practices of the medical and

scientific communities.

{¶24} “[2.] The trial court abused its discretion in finding that Mr. Williams does

not meet the adaptive behavior deficits prong for being intellectually disabled by a

preponderance of the evidence.

{¶25} “[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.

{¶26} “[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.”

Legal Standards

{¶27} The Supreme Court of the United States has explained that “[t]he legal

determination of intellectual disability is distinct from a medical diagnosis, but it is
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informed by the medical community’s diagnostic framework. * * * [T]he professional

community’s teachings are of particular help * * * 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.” Hall v. Florida, 572 U.S.

701, 721-722, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014).

{¶28} The 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”); and the Diagnostic and Statistical Manual of Mental Disorders (5th

Ed.2013) (“DSM-5”) published by the American Psychiatric Association (“APA”) in 2013.

See, e.g., Hall; Moore v. Texas, 581 U.S. 1, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017)

(“Moore I”); Moore v. Texas, 586 U.S. ---, 139 S.Ct. 666, 203 L.Ed.2d 1 (2019) (“Moore

II”).

{¶29} The Supreme Court of Ohio has held that courts must consider the following

three core elements in determining whether an offender is intellectually disabled for

purposes of eligibility for the death penalty: “(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 standard error of measurement [“SEM”]), (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.” Ford,

supra, at ¶ 100. “The trial court may consider expert testimony and appoint experts if

necessary in deciding this issue.” Id.

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 {¶30} The trial court must also 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 (6th Cir.2017), fn. 1, quoting Ledford v. Head, N.D.Ga. No.

1:02-CV-1515-JEC, 2008 WL 754486, *7 (Mar. 19, 2008).

The Evidence

School Records

{¶31} Mr. Williams’ school records show he was required to repeat the first grade.

The first time, at age six, 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, and disorganized.

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

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

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

administer the Stanford-Binet Intelligence Scale (“Stanford-Binet”) two months later. Mr.

Williams scored 76, which was reported as being within the “educable mentally retarded”

(“EMR”) range of ability. He exhibited good ability in counting objects but was “extremely

weak” on any items requiring visual-motor coordination. Mr. Williams was also

administered the Wide Range Achievement Test (“WRAT”), which showed his fine motor

development was at a preschool level and all other skills were below his grade level. The

report described Mr. Williams as having poor listening skills, moving constantly, and

singing to himself, and as a pleasant child who is hyperactive and distractible. It was

recommended Mr. Williams join the EMR unit and receive tutoring from upper-grade
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students. The school psychologist found Mr. Williams qualified for the diagnostic reading

program, where he continued to experience difficulty.

{¶33} His second time in first grade, at age seven, Mr. Williams received a “D” in

both reading and arithmetic and “Cs” in language and writing. He was absent seven days.

His conduct was unsatisfactory: distracted, fidgety, and disorganized.

{¶34} In second and third grades, at ages eight and nine, respectively, Mr.

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 six days these two years.

{¶35} In fourth grade, at age ten, Mr. Williams was placed in 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. Mr. 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 five days.

{¶36} Mr. Williams’ teacher requested another psychological evaluation based on

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

the Stanford-Binet, on which Mr. 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

Mr. Williams functioned at a mental age of eight years and nine months.

{¶37} In fifth grade, Mr. 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 two days.
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 {¶38} In sixth grade, at age 12, Mr. 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. Mr. Williams received “Bs” in all his classes except for

a “C” in spelling. He was absent two days.

{¶39} In seventh grade, at age 13, Mr. Williams missed nine days. He participated

in the regular curriculum classes for art, music, and physical education. Mr. 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 IEP

identified many learning and academic deficits (attention span and reading

comprehension) as well as emotional challenges (self-control).

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

was absent less than six 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.

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

absent nine 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 Mr. Williams was disruptive in the classroom and did not socialize appropriately with

his classmates.

{¶42} Mr. Williams was administered the standardized Wechsler Intelligence

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

as within the developmentally handicapped range. He was also administered the

standardized Vineland Social Maturity Scale (“Vineland”) based upon direct observational
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reports of Mr. Williams’ teachers. Mr. Williams was assessed at a “social age” of only

nine years. 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, Mr. Williams scored 2. This was reported as an age equivalent

of eight years and seven months.

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

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

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

Program with the Warren City Schools.”

{¶44} In ninth grade, at age 16, Mr. Williams was absent three days. 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”.

{¶45} In tenth grade, at age 17, despite recommendations of school officials and

the developmentally handicapped team, Mr. Williams’ grandmother removed him from the

program at the high school. Mr. 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.

Dr. Eisenberg’s Report

{¶46} In 2003, James Eisenberg, Ph.D. (“Dr. Eisenberg”) administered the

Wechsler Adult Scale of Intelligence (3d Ed.) (“WAIS-III”) for purposes of Mr. Williams’

first Atkins petition, at which time Mr. Williams was 36 years old. Mr. Williams’ full scale

IQ score was 75, which Dr. Eisenberg reported placed him in the borderline range of

intelligence. Dr. Eisenberg concluded to a reasonable psychological certainty that Mr.

Williams is significantly impaired in all areas of intellectual functioning, both verbal and
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nonverbal, but that he did not meet the criteria of “mentally retarded” under the then-

current legal standard in Lott. Dr. Eisenberg did not testify at the hearing, but other

witnesses referenced his report.

Dr. Sullivan

{¶47} Dr. Sullivan is a member of the APA and a neuropsychologist. Mr. Williams

retained him in 2014 to conduct a neuropsychological evaluation to rule out any organic

brain injury. Dr. Sullivan has testified in over 100 cases, but this was his first Atkins case.

He performed a clinical evaluation, conducted multiple standardized tests, and reviewed

Mr. Williams’ school and prison records. His evaluation revealed, inter alia, impaired

abstract reasoning and problem-solving skills, illogical statements, and frequent and

atypical word substitution errors. Mr. Williams showed sufficient performance on the test

used to assess for malingering. Dr. Sullivan opined to a reasonable degree of

neuropsychological certainty that Mr. Williams does not show any evidence of brain

damage or injury and that Mr. Williams is “mildly mentally retarded.”

{¶48} For his report, Dr. Sullivan relied on the intellectual functioning and adaptive

behavior tests administered in 2009-2010 by Dr. Luc Lecavalier, who did not testify at the

hearing. Dr. Sullivan felt no need to administer his own tests because he found Dr.

Lecavalier’s standardized test results were valid, reliable, and consistent with his

neuropsychological assessment of Mr. Williams.

{¶49} Dr. Lecavalier scored Mr. Williams at 69 on the Stanford-Binet Intelligence

Scale (5th Ed.) (“Stanford Binet-V”). Accounting for the 95% confidence interval, which

is similar to the SEM, this scores in the range of 67-75. Dr. Lecavalier scored Mr. Williams

at 61 on the standardized Scales of Independent Behavior-Revised (“SIB-R”), with

significant limitations present in the categories of social/communication, personal living
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skills, and community living. Dr. Lecavalier interviewed Mr. Williams about his life before

incarceration and also conducted a retrospective assessment of Mr. Williams’ adaptive

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

incarceration. She reported Mr. 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 Mr. Williams met the diagnostic criteria for “mild mental retardation” and that

he met the criteria in the period of development.

{¶50} Dr. Sullivan calculated Mr. Williams’ score on the Vineland, which was

administered in 1983, by dividing the months of Mr. 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. Dr. Sullivan also testified that the school administered the Stanford

Binet L-M, which was created in 1943. Applying the Flynn Effect, he stated that 66 is a

more accurate score for the 1973 and 1978 IQ tests. Consistent with that assessment is

the fact that the school placed Mr. Williams in special education classes and that Mr.

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

concluded that Mr. Williams met the early onset criteria, referring in part to a 2009

statement from the school psychologist that Mr. Williams “continued to be mildly mentally

retarded” at age 15.

Dr. Hartung

{¶51} Dr. Hartung is a member of the AAIDD and an associate professor of

psychology and a clinical director at the University of Wyoming. Mr. Williams retained her

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 Mr. Williams in January 2016 at the
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Chillicothe Correctional Institution. She conducted a clinical interview, reviewed Mr.

Williams’ school and prison records, and administered the following standardized tests:

the Wechsler Adult Intelligence Scale (4th Ed.) (“WAIS-IV”), the Adaptive Behavior

Assessment System (3d Ed.) (“ABAS-3”), Test of Memory Malingering (“TOMM”), Gray

Oral Reading Test (5th Ed.) (“GORT-5”), and Wechsler Individual Achievement Test (3d

Ed.) (“WIAT-III”). Dr. Hartung produced a nine-page report, concluding with a high degree

of clinical certainty that Mr. Williams has a mild intellectual disability and has been

functioning at this level since childhood.

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

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

reported it was unclear which version of the Stanford Binet the school administered to

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

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

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

Hartung testified that 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.” According to Dr. Hartung, “[i]t 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 * * *.”

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

was malingering, i.e., “faking” his alleged intellectual disability. 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

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estimated IQ, but his writing ability is “somewhat stronger than predicted” and “is an

adaptive behavior he appears to have developed through practice.”

{¶54} Mr. 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

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

second percentile, meaning he scored lower than 98% of individuals his age. Dr. Hartung

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

if the standard subtests are “spoiled.”

{¶55} Dr. Hartung administered the ABAS-3, which consists of approximately 250

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

subtests. Mr. 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. Mr. Williams’ domain and subtest scores are summarized as follows:

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

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

“informants” who knew Mr. Williams before his incarceration in 1988: two cousins, Wanda

Vail-Nix and Cheri Moore, and Mr. Williams’ ex-girlfriend and mother of his child,

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Audreana Smith. Their global composite scores were 56, 54, and 53, respectively. Dr.

Hartung reported that the scores all indicate Mr. 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.

{¶57} Dr. Hartung explained 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”; “they usually tend to

overestimate their own abilities.” 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 before Mr. 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 Mr. Williams was

before his incarceration. Dr. Hartung also acknowledged that family and friend informants

may have the incentive to make the offender appear less capable than he or she really

is. However, she stated 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 Mr. Williams’ scores, both

past and present.

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

community, as Dr. Dreyer did, is an unstandardized administration of the ABAS-3 that

does not translate properly. She explained that when you place an intellectually disabled
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person in a structured setting, such as a 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 Mr. Williams remembers he needs his medication in

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

community setting.

{¶59} 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 not know how to interpret the raw data. 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. Dreyer

{¶60} Dr. Dreyer is a psychologist with the Court Clinic Forensic Services in

Cincinnati, Ohio, who conducts and supervises evaluations for intellectual disability. The

state retained Dr. Dreyer to conduct an Atkins assessment of Mr. Williams. She has

consulted on or performed six Atkins evaluations. In none of those cases did she find the

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

minutes with Mr. Williams at the prison in March 2016. She conducted a clinical interview;

reviewed Mr. Williams’ school, court, and prison records; and administered the TOMM

and ABAS-3 standardized tests. Dr. Dreyer produced a 31-page report, concluding Mr.

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Williams meets the criteria for borderline intellectual functioning but does not meet, and

has never met, the criteria for an intellectual disability.

{¶61} She testified that the Slossen administered to Mr. Williams in 1973 should

be reviewed with caution because it is a screening test, but Mr. Williams’ score of 82

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

with Mr. Williams’ 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 * * * reportedly going to school in an intoxicated state.”

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

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

WAIS-IV. She did raise a concern that because Mr. Williams indicated he had previously

abused cough and cold medication up to the day before meeting with Dr. Hartung, she

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 Mr. Williams

may have been high.

{¶63} Dr. Dreyer also administered the ABAS-3 to Mr. Williams, which is the same

adaptive behavior test Dr. Hartung used. 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 Mr. Williams before

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 Mr. Williams to relate some of the questions to
19

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functions actually performed in a prison environment. Dr. Dreyer acknowledged that

when Mr. Williams was first incarcerated, his grammar was not particularly good and his

handwriting was akin to that of a child younger than age 10.

{¶64} Dr. Dreyer scored Mr. Williams higher than Dr. Hartung, with a global

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

functioning. Mr. Williams’ domain and subtest scores are summarized as follows:

Communication 8
CONCEPTUAL (75) Functional Academics 7
Self-Direction 1
Leisure 7
SOCIAL (86)
Social 8
Community Use 7
Home Living 7
PRACTICAL (82)
Health & Safety 5
Self-Care 9

{¶65} Dr. Dreyer testified that, inconsistent with intellectual disability, Mr. Williams

has an 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 and safety—but

opined that the low scores may have been impacted by several 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.

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

to use the prison “JPAY” system and because he keeps a log of his outgoing emails and

responses. With respect to the practical domain, Dr. Dreyer testified regarding Mr.
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Williams’ abilities to use and retrieve medications, to request assistance from an officer

for needed repairs in his cell, and his obsessive cleanliness. Based on her testing and

observations, Dr. Dreyer testified that Mr. 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 the then-current legal standard in Lott.

{¶67} Dr. Dreyer further opined there is no proof Mr. Williams suffered from

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

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

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

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

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 Mr. 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 Mr. Williams reported drinking alcohol daily when he was in

high school. Unlike Mr. Williams’ experts, Dr. Dreyer declined 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.

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 Dr. Gazley

{¶68} Dr. Gazley is a forensic psychologist employed at the Forensic Psychiatric

Center of Northeast Ohio where he performs forensic evaluations for area courts and is

a former special education teacher. The trial court appointed him to conduct an

independent Atkins assessment of Mr. Williams. This case was his fourth Atkins

assessment.

{¶69} Dr. Gazley spent approximately two and a half hours with Mr. Williams at

the prison in March 2016. Dr. Gazley performed a clinical evaluation, which included a

conversation about Mr. Williams’ day-to-day routines at the prison and current events.

He submitted a 20-page report to the court. Dr. Gazley’s clinical assessment was that

Mr. Williams’ “[o]verall 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. Gazley’s informal assessment revealed to him that Mr. Williams

functions within his schedule, communicates adequately with other inmates and staff, can

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 while Mr. 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.

{¶70} He further reported that “[a]daptive 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.” In his opinion, any adaptive behavior
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measures utilized while Mr. 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 certain adaptive behaviors serve one well as an inmate on death row but are not

needed in the general community, and vice versa.

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

functioning testing, citing the “practice effect.” Instead, he administered the Wide Range

Achievement Test (4th Ed.) (“WRAT-IV”), which measures current academic functioning

and is scored similar to an IQ test. Mr. 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 Mr. Williams’ scores on the WRAT-IV are better than

one might predict given the scores on three 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.

{¶72} Dr. Gazley reported he found no evidence that Mr. 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.” With regard to age of onset, he

testified that “there needs to be a determination” of intellectual disability or an “established
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disability” before 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.

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

psychological certainty that Mr. Williams has borderline intellectual functioning and, due

to his adaptive behavior allowing adequate functioning within his environment and culture

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

Mr. Williams does not suffer from “mild mental retardation” as defined under the then-

current legal standard in Lott.

{¶74} Dr. Gazley also testified that a note Mr. 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 Mr. Williams has demonstrated the

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

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

intellectually disabled.

{¶75} Dr. Gazley testified that before interviewing Mr. 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 discussing program eligibility and

placement of gifted and learning-disabled children, not the assessment of intellectual

disability.

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 Dr. Greenspan

{¶76} Dr. Greenspan is a consulting psychologist who focuses on developmental

disorders, including intellectual disability. He has been published by the AAID, and the

organization has solicited him to contribute to chapters in their books. He testified in this

matter as a teaching expert, meaning he discussed general concepts but did not apply

them to the specific circumstances of Mr. Williams’ case.

{¶77} Dr. Greenspan described intellectual disability as a disorder of brain

development. In the case of people with intellectual disability, the brain never fully

develops, and it is a lifelong condition. Two manuals are primarily used by professionals

and referred to by the courts in assessing intellectual disability—the DSM-5 and the

AAIDD-11. The medical and scientific communities consider these texts and guidelines

to contain the best practices and clinical standards.

{¶78} Dr. Greenspan testified that the first prong of intellectual disability requires

significant deficits in intellectual functioning, which is typically defined by a full scale IQ

score on “a gold standard” IQ test such as the Wechsler Scales or Stanford Binet. Both

the AAIDD and DSM currently use 75 rather than 70 as the “cut score” for intellectual

disability, but he emphasized one must consider the whole person, including adaptive

behavior. The second prong considers the person’s adaptive behavior, which means how

a person functions in the “real world,” i.e., in the community. The third prong is called the

“developmental onset criterion,” which requires that deficits in prongs one and two must

manifest within the developmental period. Until recently, it was defined as between birth

and age 18. The AAIDD subsequently raised the age to 22.

{¶79} Dr. Greenspan stated that experts testifying in Atkins cases are expected

to abide by the established standards. Otherwise, they would be expressing an opinion
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that may not be “informed.” Simply because an individual has a license in psychology or

psychiatry does not mean he or she knows about the manuals or has meaningful training

or experience in intellectual disability. He agreed that “clinical judgment” is a term of art

limited to “being able to make judgments about the evidence and whether it’s important

or not important.” However, “[c]linical judgment” does not involve “gut feeling judgments,”

such as, “[W]ell, he doesn’t look retarded to me.”

{¶80} Dr. Greenspan testified that people with intellectual disability are not always

equally impaired in terms of severity. While intellectual disability may be apparent in

those with severe impairments, it may not be apparent in those with mild impairments. In

addition, while intellectual disability is a condition defined by deficits, it is not ruled out by

what may appear to be accomplishments. In the prison setting, tasks are “fairly few and

well defined,” and the person may get help.

{¶81} Dr. Greenspan also testified that “borderline intellectual disability” is no

longer a recognized concept. Rather, the term “borderline” primarily refers to an IQ score

between 70 and 85. Many individuals who are described as “borderline” qualify as

intellectually disabled.

{¶82} Dr. Greenspan opined that if a psychologist who is not aware of the AAIDD

or APA standards speaks to a client and performs no standardized testing, then his

estimate of IQ would not be considered a clinical evaluation. In addition, merely talking

to a patient without standardized testing is not a valid and reliable methodology to assess

intellectual disability. Dr. Greenspan acknowledged that because of the “practice effect,”

a psychologist would have a valid reason not to conduct standardized testing if such a

test was recently performed; however, there are other IQ tests that could be given, and

the “practice effect” only applies for a period of six months to a year.
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 {¶83} Dr. Greenspan stated that childhood examinations of intelligence do not

always correlate well with later intelligence. He described the “Matthew Effect,” which

means children who are “disadvantaged culturally or educationally” tend to experience a

decline in their intelligence from middle childhood and adolescent years. At that point,

their IQ scores become “clustered fairly closely together.”

{¶84} Dr. Greenspan described the concept of “malingering” as when someone is

“trying to look intellectually disabled.” The TOMM is actually an “effort” test that looks at

“whether somebody is putting forth an adequate effort when they’re given a cognitive

test.” Giving a TOMM is “standard practice,” but another “equally if not more valid”

practice is for an “experienced IQ administrator” to use his or her clinical judgment to

assess whether “somebody is making an effort” and “paying attention.” For example,

“giving wrong answers to very easy questions and then occasionally a correct answer to

a more difficult question” would be a “red flag.”

{¶85} Dr. Greenspan stated people with intellectual disability frequently have

other mental diagnoses; however, intellectual disability is not an “exclusionary diagnosis.”

He acknowledged a psychologist could make a personality disorder assessment without

standardized testing since typically there are no specific tests for such disorders.

{¶86} Regarding the concept of “convergent validity,” Dr. Greenspan stated,

“[T]he more data points we have that agree with each other, the more justified we are in

saying that that’s an accurate depiction of the individual.” There may be variability in IQ

scores due to an administrator’s lack of training or when someone is dishonest in

administering the test. This concept applies to IQ testing and to assessing adaptive skill

deficits.

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 {¶87} With respect to the ABAS, Dr. Greenspan acknowledged there may be a

concern about bias in informants; therefore, the administrator should have as many

informants as possible. He also acknowledged there may be disagreement among raters;

therefore, the best way to achieve reliability is by having several items in each domain.

Dr. Greenspan stated that “self-ratings” under the ABAS are not an appropriate basis for

diagnosing intellectual disability because individuals will overstate their abilities. In

addition, a person’s functioning in prison is not an adequate basis for determining

adaptive behavior because prison is a “special kind of setting” that does not “generalize

how someone can function in the community.” Also, one should not infer adaptive

functioning based on “crime facts,” such as whether someone could pull a trigger on a

gun. He further stated it is not appropriate to alter the questions on a standardized test

to make it more relevant to the individual’s situation. In that scenario, the test would not

be standardized.

{¶88} Dr. Greenspan stated it is not an “insurmountable challenge” to conduct a

“retrospective assessment” of a person who has been incarcerated for years, and it is a

concept the AAIDD and APA recognize. In addition, he stated raw data is not discernible

to lay individuals. Therefore, a lay individual would not be able to look at raw data and

make an assessment as to the validity of the test or the data itself.

{¶89} Dr. Greenspan testified that the AAIDD and DSM say the Flynn Effect

should be used, not merely considered. He does not consider the Flynn Effect to be

controversial. He stated that scientific literature strongly recognizes it as a “real

phenomenon” and that it is an “extremely well-respected finding that almost all experts in

intelligence testing value and believe in.” Any possible controversy involving the Flynn

Effect relates to the fact there is not complete agreement as to why the population trends
28

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towards improving on IQ testing. He stated that using the Flynn Effect in the context of a

40-year-old test would not be “a close call.”

{¶90} Dr. Greenspan stated that an individual is not precluded from being

intellectually disabled solely because the school system did not label them as such. If an

individual were placed in special education and family members saw him or her as being

intellectually disabled, it would be “extremely strong evidence” that the third prong is

satisfied.

Family Members

{¶91} As part of his Atkins petition, Mr. Williams submitted several affidavits and

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

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

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

should be able to perform.

{¶92} Wanda Vail-Nix, a cousin of Mr. Williams, related the following in her

affidavit: she never witnessed Mr. Williams doing school work, housework, 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; Mr. Williams did not

have a driver’s license; he would throw things when he became angry; she heard other

family members refer to Mr. Williams as “mentally retarded,” although she and her siblings

thought he was just “extremely bad”; she has never known him to live alone; and at age

20, Mr. Williams still behaved as if he was 15 years old, performing childlike pranks.

{¶93} Cheri Moore, another cousin of Mr. Williams, explained the following in her

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

further testing or provide tutoring; she never saw Mr. Williams play board games; Mr.
29

Case No. 2023-T-0008
Williams colored outside the lines when he was old enough to do better; Mr. 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; and he did

not have a driver’s license and could not drive.

{¶94} Ms. Ricks, a second cousin, testified to the following in her affidavit: Mr.

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

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

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

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

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

evidentiary hearing.

{¶95} Audreana Smith, Mr. Williams’ ex-girlfriend and the mother of his child,

stated in an unsworn document that she thought Mr. 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; Mr. Williams never wrote a love letter or poem; he never called her on

the telephone and only showed up at her house; Mr. Williams did not want to drive and

was not a good driver; she never saw Mr. 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 Mr. Williams count money or pay a bill when they went out

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

Prison Officials

{¶96} The state presented testimony from three prison officials who supervised

Mr. Williams during his incarceration. An investigator with Chillicothe Correctional

Institution explained the prison’s JPAY system. Inmates must set up an account,
30

Case No. 2023-T-0008
designate a password, and remember the password. They must also be able to operate

their own handheld device (which is similar to an electronic tablet), plug it into a central

kiosk, and log onto the system. The investigator presented video surveillance of Mr.

Williams using the JPAY kiosk and copies of emails sent by Mr. Williams and received by

him from individuals outside the prison. A case worker also testified to the video of Mr.

Williams using the JPAY kiosk, which shows him typing lengthy correspondence without

assistance from any other individuals. The correspondence was introduced, which shows

vast improvement in sentence structure, spelling, punctuation, typing, and handwriting

from the time Mr. Williams was first incarcerated.

{¶97} A unit manager at Mansfield Correctional Institution who knew Mr. Williams

for seven to eight years testified that Mr. Williams had a typewriter in his cell at that time,

and he watched Mr. Williams handwrite and type documents without assistance from

inmates or staff. He confirmed Mr. Williams’ self-reported abuse of cold medications for

recreational purposes. He did not find Mr. Williams gullible or easily led by others and

stated Mr. Williams always kept himself and his cell neat without assistance. He

described Mr. Williams as sociable and able to play games and stated he had witnessed

Mr. Williams reading law books in the prison library.

Mr. Ballew

{¶98} In rebuttal, Mr. Williams presented the testimony of Mr. Ballew, a fellow

death row inmate. Mr. Ballew testified he has been Mr. Williams’ formal and informal tutor

while they have been incarcerated together for the past approximately 25 years. He

estimated he spent over 100 hours teaching Mr. 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 Mr. Williams informally when they transferred to other
31

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institutions. Mr. Ballew testified that when they were incarcerated together at Mansfield

Correctional Institution, every death row inmate was required to have a job: his job was

tutor, and Mr. Williams’ job was student. Mr. Ballew testified Mr. Williams has improved

his academic skills but still receives help with reading and writing, sometimes on the JPAY

system.

{¶99} With the foregoing in mind, we reach the merits of Mr. Williams’ appeal.

Admission of Expert Witness

{¶100} We first consider Mr. Williams’ fourth assignment of error, where he

contends the trial court abused its discretion in admitting Dr. Gazley as an expert witness.

{¶101} “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, 875 N.E.2d 72, ¶ 16. An abuse of discretion is the trial court’s

“‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler,

2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11

(8th Ed.2004).

{¶102} “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, 694 N.E.2d 1332 (1998). Evid.R. 702 permits a witness to testify as an expert in the

following circumstances:

{¶103} “(A) The witness’ testimony either relates to matters beyond the knowledge

or experience possessed by lay persons or dispels a misconception common among lay

persons;

{¶104} “(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony;
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 {¶105} “(C) The witness’ testimony is based on reliable scientific, technical, or other

specialized information. To the extent that the testimony reports the result of a procedure,

test, or experiment, the testimony is reliable only if all of the following apply:

{¶106} “(1) The theory upon which the procedure, test, or experiment is based is

objectively verifiable or is validly derived from widely accepted knowledge, facts, or

principles;

{¶107} “(2) The design of the procedure, test, or experiment reliably implements

the theory;

{¶108} “(3) The particular procedure, test, or experiment was conducted in a way

that will yield an accurate result.”

{¶109} Mr. Williams argues that Dr. Gazley is not qualified as an expert in

assessing intellectual disability. See Evid.R. 702(B). According to Mr. Williams, Dr.

Gazley has no specialized knowledge, skills, training, or education regarding intellectual

disability, and he was unfamiliar with best clinical practices as determined by the AAIDD

and the APA.

{¶110} The Supreme Court of Ohio has held that “[n]either special education nor

certification is necessary to confer expert status on a witness.” State v. Hale, 119 Ohio

St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 54. In addition, “an expert need not have

a complete knowledge of the field in question, as long as the knowledge he or she has

will aid the trier of fact.” Id. Stated differently, “[t]o qualify as an expert, the witness need

not be the best witness on the subject.” Scott v. Yates, 71 Ohio St.3d 219, 221, 643

N.E.2d 105 (1994). Rather, “the expert must demonstrate some knowledge on the

particular subject superior to that possessed by an ordinary [fact finder].” Id.

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Case No. 2023-T-0008
 {¶111} Dr. Gazley is a psychologist who has been licensed to practice in Ohio since

1991, and he was formerly a special education teacher at the elementary and junior high

school levels. He testified that he specializes in forensic psychological evaluations for

courts and that this case was his fourth Atkins evaluation. He further testified he was

familiar with the three criteria for establishing intellectual disability under the then-current

legal standards in Atkins and Lott. In light of Dr. Gazley’s training and experience, the

trial court did not abuse its discretion in permitting him to testify.

{¶112} Mr. Williams also argues that Dr. Gazley’s opinion is not based on reliable

scientific information. See Evid.R. 702(C). According to Mr. Williams, Dr. Gazley did not

follow any valid or reliable methodology recognized by the scientific communities for

assessing intellectual disability. Rather, he conducted an “informal” assessment based

on a brief, “casual conversation.”

{¶113} “In determining whether the opinion of an expert is reliable under Evid.R.

702(C), a trial court examines whether the expert’s conclusion is based on scientifically

valid principles and methods.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561,

850 N.E.2d 683, ¶ 16. “A court should not focus on whether the expert opinion is correct

or whether the testimony satisfies the proponent’s burden of proof at trial.” Id. “Relevant

evidence based on valid principles will satisfy the threshold reliability standard for the

admission of expert testimony. The credibility to be afforded these principles and the

expert’s conclusions remain a matter for the trier of fact.” (Emphasis added.) Nemeth at

211.

{¶114} Dr. Gazley’s report was based on his review of Mr. Williams’ prior

evaluations and tests, school and prison records, the affidavits submitted in support of

Mr. Williams’ petition, prior court opinions, and his clinical judgment. He also interviewed
34

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Mr. Williams and administered the WRAT-IV, which is a standardized test. We conclude

that these methods satisfy the threshold reliability standard to admit Dr. Gazley’s

testimony and report. Any alleged shortcomings in Dr. Gazley’s methods relate to the

weight and credibility of his opinions. Accordingly, the trial court did not abuse its

discretion in admitting Dr. Gazley’s testimony and report.

{¶115} Mr. Williams’ fourth assignment of error is without merit. Accordingly, the

trial court’s May 2017 judgment is affirmed.

Intellectual Disability

{¶116} We next consider Mr. Williams’ first, second, and third assignments of error,

where he challenges the trial court’s determinations under each of the three prongs for

assessing intellectual disability: (1) intellectual-functioning deficits; (2) significant

adaptive deficits; and (3) onset of these deficits while the offender was a minor. See

Ford, supra, at ¶ 100.

{¶117} In considering an Atkins claim, the trial court shall conduct its own de novo

review of the evidence in determining whether the defendant is intellectually disabled.

Lott, supra, at ¶ 18. The petitioner raising an Atkins claim bears the burden of establishing

he or she is intellectually disabled by a preponderance of the evidence. Id. at ¶ 21.

“Preponderance of the evidence” means “evidence which is of a greater weight or more

convincing than the evidence which is offered in opposition to it.” State ex rel. Yost v.

Church of Troy, 2020-Ohio-4695, 159 N.E.3d 818, ¶ 74 (11th Dist.). “[I]t is that proof

which leads the trier of fact to find that the existence of the contested fact is more probable

than its nonexistence.” Id.

{¶118} “The trial court shall make written findings and set forth its rationale for

finding the defendant intellectually disabled or not intellectually disabled.” Ford at ¶ 100.
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The trial court’s decision should be upheld absent an abuse of discretion. See State v.

White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 45. The term abuse of

discretion implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Id. at ¶ 46. An abuse of discretion 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.

{¶119} A reviewing court should not overrule the trial court’s decision that is

supported by competent and credible evidence. White at ¶ 45. “Competent evidence” is

evidence that is admissible and relevant. See Black’s Law Dictionary, evidence (11th

Ed.2019). “Credible evidence” is “[e]vidence that is worthy of belief; trustworthy

evidence.” Id.

{¶120} “A trial court is not required to automatically accept expert opinions offered

from the witness stand, whether on [intellectual disability] or on any other subject.” White

at ¶ 71. “Nevertheless, expert opinion ‘may not be arbitrarily ignored, and some reason

must be objectively present for ignoring expert opinion testimony.’” (Emphasis sic.) Id.,

quoting United States v. Hall, 583 F.2d 1288, 1294 (5th Cir.1978). See also State v.

Weaver, 171 Ohio St.3d 429, 2022-Ohio-4371, 218 N.E.3d 806, ¶ 32-34.

{¶121} In addition, “[w]hile the trial court is the trier of fact, it may not disregard

credible and uncontradicted expert testimony in favor of either the perceptions of lay

witnesses or of the court’s own expectations of how a[n] [intellectually disabled] person

would behave. Doing so shows an arbitrary, unreasonable attitude toward the evidence

before the court and constitutes an abuse of discretion.” White at ¶ 74.

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 First Prong—Intellectual-Functioning Deficits

{¶122} In his first assignment of error, Mr. Williams challenges the trial court’s

determinations regarding the first prong of the intellectual disability assessment.

{¶123} Under the first prong, an offender must demonstrate intellectual-functioning

deficits, which are 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. See Ford at ¶

100. Mr. Williams’ IQ test scores are summarized as follows:

YEAR AGE SCORE TEST ADMINISTRATOR
1973 6 yrs., 7 mos. 76 Stanford Binet School psychologist
1978 11 yrs., 1 mo. 78 Stanford Binet School psychologist
1983 15 yrs., 1 mo. 67 WISC-R School psychologist
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

{¶124} The trial court concluded Mr. Williams’ IQ test scores were “borderline” and

did not definitively establish intellectual-functioning deficits.

1973 Stanford Binet

{¶125} The trial court declined to apply the Flynn Effect to Mr. Williams’ score of 76

on the Stanford Binet the school psychologist administered in 1973 because Dr. Hartung

was not certain which version of the test the school psychologist had administered and

because Dr. Sullivan testified that psychologists are ethically obligated to use the most

current versions of tests.

{¶126} While Dr. Hartung was not certain in this regard, Dr. Sullivan was certain.

He testified that in 1973 and 1978, the school administered the Stanford Binet L-M to

Mr. Williams, which is a test created in 1943. Applying the Flynn Effect to both scores,

Dr. Sullivan opined that Mr. Williams’ actual scores would be 66. Further, Dr.

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Greenspan testified that applying the Flynn Effect to a 40-year-old test would not be

“a close call.” While the trial court had discretion whether to include the Flynn Effect

as a factor in IQ test scores, see Ford at ¶ 92, the trial court did not expressly consider

any of the foregoing testimony in its decision.

2016 WAIS-IV

{¶127} The trial court rejected Mr. Williams’ score of 68 on the WAIS-IV that Dr.

Hartung administered in 2016 based on evidence that Mr. Williams “routinely” abused

over-the-counter cough and cold medicine in prison and Dr. Dreyer’s testimony that Mr.

Williams reported to her that he had abused cough and cold medication on the day before

meeting with Dr. Hartung. According to the trial court, this “raises concerns about how

[Mr. Williams’] substance use could have negatively impacted his test performance.” The

trial court also referenced Dr. Dreyer’s testimony that she was concerned about the

validity of Mr. Williams’ 2016 test score in light of his “motivations.” Specifically, Mr.

Williams told her he hoped to “get off on Atkins” and encourage the court to look at other

appellate issues he believed would exonerate him.

{¶128} While Dr. Dreyer expressed a “concern” about Mr. Williams’ substance

abuse, she also testified she had no “documentation” or “information” to substantiate that

Mr. Williams may have been “high” during Dr. Hartung’s test. In addition, in the

“behavioral observations” portion of her report, Dr. Hartung did not list any concerns that

Mr. Williams was cognitively impaired during the test. Rather, she testified that based on

her observations, Mr. Williams attempted to answer all of the test questions. Dr. Hartung

also testified regarding her administration of the TOMM to Mr. Williams, which Dr.

Greenspan described as assessing whether a person “is putting forth an adequate effort”

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in a cognitive test. The TOMM results indicate Mr. Williams had put forth an adequate

effort. The trial court did not expressly consider any of the foregoing evidence in

evaluating Mr. Williams’ 2016 test score.

Other IQ Test Scores

{¶129} The court made no express findings under the first prong regarding Mr.

Williams’ 1978 score of 78 on the Stanford Binet or whether the Flynn Effect should be

applied to that score; his 1983 score of 67 on the WISC-R; his 2010 score of 69 on the

Stanford Binet-V; or his 2003 score of 75 on the WAIS-III. All of these IQ test scores,

when adjusted for the SEM and/or the Flynn Effect, would fall within the clinically

established range for intellectual-functioning deficits. See, e.g., Brumfield v. Cain, 576

U.S. 305, 315, 135 S.Ct. 2269, 192 L.Ed.2d 356 (2015) (“Accounting for this margin of

error, [the petitioner’s] reported IQ test result of 75 was squarely in the range of potential

intellectual disability.”).

{¶130} The trial court’s failure to expressly consider evidence that supports a

finding that Mr. Williams is intellectually disabled is also contrary to law. The Sixth Circuit

previously held this court’s “wholesale exclusion of past evidence of intellectual disability

from its Atkins analysis was contrary to clearly established Federal law.” Williams, 792

F.3d at 619.

{¶131} In sum, the trial court abused its discretion in determining Mr. Williams did

not prove intellectual-functioning deficits. Mr. Williams’ first assignment of error is

sustained.

Second Prong—Significant Adaptive Deficits

{¶132} In his second assignment of error, Mr. Williams challenges the trial court’s

determinations regarding the second prong of the intellectual disability assessment.
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 {¶133} Under this prong, an offender must demonstrate significant adaptive deficits

in any of the three adaptive skill sets—conceptual, social, and practical. See Ford at ¶

100. The DSM-5 describes these adaptive skill sets as follows:

{¶134} “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.” Id. at 37.

{¶135} The AAIDD-11 states that “[s]ignificant limitations in adaptive behavior are

established through the use of standardized measures.” Id. at 47.

{¶136} Mr. Williams’ adaptive behavior test scores are summarized as follows:

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

{¶137} The trial court concluded Mr. Williams did not prove significant adaptive

deficits in any of the three adaptive skill sets by a ponderance of the evidence.

2016 ABAS-3

{¶138} The trial court identified several purported flaws in Dr. Hartung’s

administration of the ABAS-3 in 2016. For instance, the trial court equated Dr. Hartung’s
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use of informants with a reliance on “lay opinions” regarding intellectual disability.

According to the trial court, the Supreme Court of the United States viewed such evidence

with skepticism in Moore I.

{¶139} The trial court misconstrues Moore I. In that case, the Supreme Court

criticized the lower court’s “attachment” to seven evidentiary factors known as “the

Briseno factors” over clinical factors. Id. at 17; see Ex parte Briseno, 135 S.W.3d 1, 8

(Tex.App.2004). According to the Supreme Court, the Briseno factors invited “lay

perceptions of intellectual disability” and “lay stereotypes” to guide the assessment of

intellectual disability. Moore I at 18; Moore II at 669. “Briseno asks, for example, ‘Did

those who knew the person best during the developmental stage—his family, friends,

teachers, employers, authorities—think he was mentally retarded at that time, and, if so,

act in accordance with that determination?’” Moore I at 18, quoting Briseno at 8. The

Supreme Court explained that “the medical profession has endeavored to counter lay

stereotypes of the intellectually disabled” and that “[t]hose stereotypes, much more than

medical and clinical appraisals, should spark skepticism.” Id.

{¶140} By contrast, Dr. Greenspan testified that the ABAS—for which he was a

consultant—is a standardized test a psychologist or social worker administers to measure

a person’s adaptive skill deficits. The test has separate forms for “self-reporting” from the

individual and “other reporting” from a teacher, parent, or another adult. For “other

reporting,” the informant rates whether the individual can perform a particular task based

on a scale. The administrator then converts the raw data to standard scores. Thus, “other

reporting” is one component of a standardized test. It is not akin to the lay stereotypes

and assessments of intellectual disability criticized in Moore I and II.

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 {¶141} The trial court also concluded that Dr. Hartung’s administration of the ABAS-

3 is unreliable and, thus, inadmissible under Evid.R. 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Specifically, the trial court found (1) without Dr. Hartung’s raw data, it could not confirm

that the informants’ scores show “convergent validity”; (2) Mr. Williams most likely

“guessed” on questions regarding items that were not available to him when he was in

the community; and (3) Dr. Hartung’s unwillingness to testify regarding her raw data

“bolsters this Court’s suspicion that the test results are not reliable and inadmissible in

these circumstances.” Notably, the trial court did not order Dr. Dreyer to produce the raw

data for the ABAS-3 she administered to Mr. Williams. Consequently, it only excluded

Dr. Hartung’s test results.

{¶142} The trial court appears to confuse the concepts of admissibility and

credibility. As explained above, “[r]elevant evidence based on valid principles will satisfy

the threshold reliability standard for the admission of expert testimony,” while [t]he

credibility to be afforded these principles and the expert’s conclusions remain a matter for

the trier of fact.” Nemeth, supra, at 211. Dr. Hartung administered a standardized test

that is well-recognized in the scientific and medical communities for assessing adaptive

deficits. Any alleged shortcomings in her “retroactive” administration of the ABAS-3 relate

to the weight and credibility of her opinions, not to the test’s threshold reliability and

admissibility.

{¶143} The trial court’s focus on Dr. Hartung’s raw data is puzzling. Dr. Greenspan

testified that raw data is not discernible to persons who are not trained to administer the

tests and that it would be inappropriate for any person, “whatever [his or her] level of

training,” to look at individual items and make judgments about the test. The trial court
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acknowledged part of Dr. Greenspan’s testimony but did not reconsider its request.

Instead, the trial court justified its demand by citing Dr. Greenspan’s purported opinion

that it is not “unethical” for a psychologist to provide it.

{¶144} This is not what Dr. Greenspan said. In response to the trial court’s inquiry,

Dr. Greenspan stated, “[I]t might be [unethical]” if a psychologist informed the trial court

how the test was scored and which questions were obsolete; however, it “would not be

unethical” for the trial court. In any event, the trial court’s focus on ethical issues does

not address Dr. Greenspan’s major assertions: a layperson is not qualified to

meaningfully interpret raw data, and no person, trained or otherwise, should make

judgments about a test based on its individual items.

2009 SIB-R

{¶145} The trial court also concluded that Dr. Lecavalier’s administration of the SIB-

R in 2009 is unreliable and, thus, inadmissible under Evid.R. 702 and Daubert. The trial

court purportedly based its conclusion 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 Dr.

Hartung insists the APA and the AAIDD require—specifically that standardized adaptive

testing should not be performed in a prison community.”

{¶146} Once again, the trial court confuses the concepts of admissibility and

credibility. In addition, the cited testimony does not support the trial court’s conclusion.

{¶147} Dr. Hartung testified that “in the last few years” she switched to using the

ABAS because the SIB-R has not “updated their norms.” However, she testified that

when Dr. Lecavalier administered that test in 2009, “[i]t wasn’t as dated as it is now.” Dr.

Hartung further testified that while Dr. Lecavalier’s prison assessment could not be used
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“in lieu of the ABAS or the SIB-R,” it could be used as “supportive information” for

purposes of “convergent validity.” Dr. Hartung did not suggest that Dr. Lecavalier’s test

results should be entirely dismissed. In fact, Dr. Sullivan testified that he did not repeat

Dr. Lecavalier’s adaptive testing because “he had done a valid and reliable assessment

of adaptive behavior that was consistent with previous findings.”

1983 Vineland

{¶148} The trial court rejected the school psychologist’s administration of the

Vineland in 1983, finding the standard score is unclear based on Dr. Sullivan’s testimony;

there is no information regarding the informant; and the report does not attest to the test’s

validity.

{¶149} The trial court’s findings are not consistent with the record. Dr. Sullivan

testified that the 1983 Vineland indicated Mr. Williams’ adaptive behavior was

commensurate with that of a nine-year-old child, which is how that version of the test

reported results. Using Mr. Williams’ chronological and developmental ages, Dr. Sullivan

calculated a global score of 57, which he reiterated several times during his testimony.

Although he initially stated 55, it appears to have been a misstatement. In any event, the

trial court did not explain how scores of 57 and 55 are so meaningfully different that Dr.

Sullivan’s testimony must be entirely disregarded.

{¶150} While the identity of the informant for the 1983 Vineland was “not clear” to

Dr. Dreyer, it was clear to Dr. Sullivan. Dr. Sullivan testified that Mr. Williams’ teacher

was the informant for the 1983 Vineland. The trial court did not expressly acknowledge

this testimony.

{¶151} Regarding the absence of a statement of validity, Dr. Sullivan testified (in

relation to the 1983 WISC-R) that to comply with the ethics code, a clinician must include
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a statement indicating the results are valid. Although there is no such statement in the

1983 WISC-R, Dr. Sullivan stated that school psychologists have a slightly different ethics

code. Therefore, at most, Dr. Sullivan’s testimony suggests the school psychologist’s

failure to include a statement of validity may have constituted an ethical violation,

depending on what the applicable ethics code provided. However, Dr. Sullivan did not

suggest the school psychologist’s test results should be entirely dismissed.

{¶152} The trial court’s exclusion of the ABAS-3 and the Vineland is also contrary

to law. The Sixth Circuit previously held that this court’s application of a “categorical

exclusion only to evidence submitted by [Mr.] Williams” is “unconstitutionally arbitrary and

disproportionate.” Williams, 792 F.3d at 623.

Dr. Gazley’s Opinion

{¶153} The trial court concluded that Dr. Gazley’s opinion regarding Mr. Williams’

adaptive behavior “must be afforded more weight.” The court found that even though Dr.

Gazley did not administer a standardized test, he relied on his “clinical judgment” rather

than the lay opinions of informants. The trial court stated, “[A]lthough 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.” According to the trial

court, Dr. Gazley “referenced some instances of high functioning in prison,” but he “does

not appear to be relying solely” on Mr. Williams’ adaptive strengths in reaching his

conclusion.

{¶154} Once again, the trial court equates the informants’ responses on Dr.

Hartung’s ABAS-3 with improper “lay opinion,” which, as explained above, is erroneous.

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In addition, contrary to the trial court’s assertion, Dr. Gazley’s conclusion relies solely on

Mr. Williams’ perceived adaptive strengths in prison.

{¶155} The Supreme Court of the United States held in Moore I and reiterated in

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

“overemphasize” an offender’s “perceived adaptive strengths” as opposed to “adaptive

deficits,” Moore I at 15, such as the offender’s “capacity to communicate, read, and write

based in part on pro se papers [the offender] filed in court * * * without a determination

about whether [the offender] wrote the papers on his own,” Moore II at 671; or (2) to rely

“heavily upon adaptive improvements made in prison,” such as the offender’s “command

of elementary math” based on “trips to the prison commissary” and “commissary

purchases” and “correspondence written in prison.” Id.

{¶156} This is exactly what Dr. Gazley did. In the “clinical impression” portion of

his report, Dr. Gazley wrote, “There is no way to measure Mr. Williams’ current or past

adaptive behavior within the structure of typical adaptive behavior measures” because

Mr. Williams has been incarcerated since his early 20s. However, “[i]t is evident Mr.

Williams has adapted adequately to the culture and structure of death row” because “[h]e

is described by prison personnel as adapting effectively” and because “[h]e uses

technology,” “recognizes schedules,” “maintains hygiene and personal appearance,” and

“exercises tasks of daily living[,] such as requesting materials, writing letters, keeping pen

pals, using technology[,] and conversing about significant current events.” Thus, Dr.

Gazley opined Mr. Williams has “adaptive behavior allowing adequate functioning within

his environment and culture.”

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 {¶157} In sum, the trial court abused its discretion in determining Mr. Williams did

not prove significant adaptive deficits. Mr. Williams’ second assignment of error is

sustained.

Third Prong—Onset of Deficits While a Minor

{¶158} In his third assignment of error, Mr. Williams challenges the trial court’s

determinations regarding the third prong of the intellectual disability assessment.

{¶159} Under this prong, an offender must demonstrate that the onset of deficits in

intellectual functioning and adaptive behaviors occurred while he was a minor. See Ford

at ¶ 100. The Supreme Court of Ohio has explained, “The purpose of the ‘onset before

age 18’ requirement is to distinguish true [intellectual disability] from cognitive

impairments acquired later in life and caused by brain injuries or mental conditions. * * *

[A] person’s [intellectually disabled] status does not change over his lifetime. Hence, if

an adult is found to have intellectual and adaptive deficits not caused by a brain injury or

illness, it can be inferred that those deficits have existed since childhood.” White, supra,

at ¶ 84; see Williams, 792 F.3d at 621 (“[I]ntellectual disability manifests itself before

eighteen and remains consistent throughout a person’s life.”).

{¶160} The trial court concluded Mr. Williams did not prove by a ponderance of the

evidence that the onset of his purported deficits occurred while he was a minor.

IQ Test Scores

{¶161} The trial court found that even if it applied a five-point SEM to Mr. Williams’

three IQ test scores as a minor (i.e., his 1973 score of 76, his 1978 score of 78, and his

1983 score of 67), only the latter score places him in the range of intellectual disability.

This is incorrect. All three test scores would be in the range of intellectual disability if the

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trial court had applied the Flynn Effect to the two earliest tests. As stated, the court’s prior

analysis of the Flynn Effect was erroneous.

{¶162} The trial court next set forth various justifications for disregarding Mr.

Williams’ 1983 score of 67. For instance, the trial court found that this score is unreliable

because Mr. Williams was nearly 16 years old at the time and there was testimony

indicating he was drinking alcohol extensively, even at school, during this period. The

evidence does not support this finding. In 1983, Mr. Williams was repeating the eighth

grade. Dr. Dreyer testified there were “indications” that Mr. Williams told prison officials

he was drinking alcohol daily toward the end of high school before dropping out, i.e., in

1985.

{¶163} The court also found Mr. Williams’ 1983 score of 67 was unreliable because

the school psychologist’s report did not contain “any specifics” about his “efforts” at the

time the test was administered, nor did it contain a “summary of behavioral observations.”

The trial court’s conclusion appears to be based on Dr. Sullivan’s testimony. As stated,

Dr. Sullivan testified that to comply with the ethics code, a clinician must include a

statement indicating the results are valid, although Dr. Sullivan was unsure whether

school psychologists follow an identical ethics code. Contrary to the trial court’s assertion,

however, Dr. Sullivan testified that a clinician is not required to list specific observations,

nor did he suggest the 1983 test score should be entirely dismissed. And once again,

the trial court impermissibly imposed a rule that effectively excluded evidence supporting

a finding that Mr. Williams is intellectually disabled. See Williams, 792 F.3d at 617, 623.

{¶164} The trial court next found that Mr. Williams’ 1983 score of 67 is unreliable

because it represents a “significant” 11-point drop from his 1978 score. The court cited

Dr. Dreyer’s opinion that a person cannot “fake smart,” meaning Mr. Williams must have
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known the information to obtain a score of 78. The trial court dismissed Dr. Greenspan’s

testimony regarding the “Matthew Effect” because he did not reference its use in the

AAIDD-11 or the DSM-5. The trial court also noted that Mr. Williams characterized this

“precipitous drop” as being “suspect” in his postconviction brief to the Supreme Court of

Ohio.

{¶165} Mr. Williams referenced the 11-point drop in a postconviction petition filed

in 1998. Specifically, he argued that it may have been indicative of “organic brain

damage” and that his trial counsel was ineffective for failing to pursue it in mitigation for

sentencing. See Williams, 792 F.3d at 614. Those proceedings occurred before Atkins

was decided and before Mr. Williams obtained expert neurological and psychological

evaluations. Thus, their significance to the current proceedings is unclear.

{¶166} In addition, the trial court did not expressly consider Drs. Hartung’s and

Sullivan’s respective testimony on this issue. Dr. Hartung testified that the difference in

the 1978 and 1983 test scores is not statistically significant. Rather, a drop in score would

have to be “one and a half standard deviations,” i.e., “21 or 22 points,” to be considered

significant. She also noted that the Stanford Binet administered in 1978 is slightly different

from the WISC-R administered in 1983. Dr. Sullivan testified that the school was using

the Stanford Binet-LM in 1978—a test created in 1943. If the trial court had applied the

Flynn Effect to Mr. Williams’ 1978 score, as Drs. Hartung and Sullivan did, it would closely

align with his 1983 score.

{¶167} The trial court also cited Mr. Williams’ scores on Dr. Gazley’s 2016 WRAT-

IV (an achievement test) as indicating Mr. Williams’ “most recent IQ scores may be

somewhat depressed.” The trial court found this conclusion to be consistent with Dr.

Dreyer’s theory that “you can’t fake smart.”
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 {¶168} In essence, the trial court concluded Mr. Williams “faked dumb” on Dr.

Hartung’s 2016 WAIS-IV to obtain a score of 68. However, the trial court did not expressly

consider Dr. Hartung’s behavioral observations that Mr. Williams attempted to answer all

of the test questions; her administration of the TOMM, which indicated Mr. Williams had

put forth an adequate effort; or Mr. Ballew’s testimony, which indicated Mr. Williams had

received consistent tutoring in reading and spelling over the past 25 years. The trial court

also did not explain why Mr. Williams “faked dumb” for Dr. Hartung’s test but apparently

not for Dr. Gazley’s test.

Other Evidence

{¶169} The trial court stated there were “some indications” Mr. Williams had

adaptive deficits as an adolescent, citing the results of the 1983 Vineland. However, the

trial court did not expressly determine the weight of these results. Rather, the trial court

cited Dr. Sullivan’s testimony that he calculated the standard score to be 55 or 57 but

found Dr. Sullivan “did not testify how he arrived at that number.” This is incorrect. Dr.

Sullivan expressly explained to the trial court how he calculated a global score of 57 using

Mr. Williams’ chronological and developmental ages.

{¶170} Finally, the trial court noted that Mr. Williams was never formally diagnosed

as “mentally retarded” as a minor and that Dr. Gazley reported he discovered no record

of any local boards of developmental disability providing services to Mr. Williams.

However, neither clinical guidelines nor court precedent require an official diagnosis of

intellectual disability as a minor to meet this prong. For example, the petitioner in White

did not take an IQ or adaptive skills test as a minor. See id. at ¶ 78. The Supreme Court

of Ohio found the petitioner satisfied the age of onset criterion based on the expert

witness’ review of his academic records and interviews with family members that
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“corroborated the picture that emerges from [petitioner’s] records.” Id. at ¶ 77-82. Under

this prong, the trial court did not expressly consider or determine the weight of many of

Mr. Williams’ school records or his family members’ affidavits.

{¶171} In sum, the trial court abused its discretion in determining Mr. Williams did

not prove that the onset of his alleged deficits occurred while he was a minor. Mr.

Williams’ third assignment of error is sustained.

{¶172} The trial court’s December 2022 judgment is reversed. This matter is

remanded to the trial court to expressly consider and weigh all of the evidence in relation

to each prong and issue findings explaining its determinations that are consistent with the

governing law and supported by the evidentiary record.

{¶173} For the foregoing reasons, the trial court’s judgment of May 30, 2017, is

affirmed; the trial court’s judgment of December 29, 2022, is reversed; and this matter is

remanded for further proceedings consistent with this opinion.

MATT LYNCH, J.,

EUGENE A. LUCCI, J.,

concur.

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