State pivots to fight death row inmate Byron Black's disability claim

Byron Black's case keeps landing on the fringes.

It's rare for the state to allow a new avenue for reviewing criminal sentencing. It's rare for a judge to rule against a defendant when both the defense and the state agree. It's rare for the state attorney general to disagree with the choices of a local district attorney.

But all of this and more is on display in Black's push to get off death row.

Tuesday morning, Black asked Tennessee Court of Criminal Appeals Judges Camille R. McMullen, Robert H. Montgomery Jr. and Tom Greenholtz to send his case back down to the trial courts.

Previously:Death row inmate Byron Black pushes court to review new intellectual disability law

"We have a constitutional duty not to execute intellectually disabled individuals, right?" McMullen asked the state. "If we interpret the statute the way you've interpreted, we wouldn't be doing that, right?"

Case hinges on new law, legal technicality

Tennessee lawmakers last year created a rare chance for death row defendants to have their sentences reviewed, explicitly creating a pathway to raise a claim of intellectual disability that would make them ineligible for a death sentence.

Tennessee has long held that the state has no interest in executing intellectually disabled individuals.

Black, represented by a team from the Federal Public Defender's office led by longtime death row defense attorney Kelley Henry, believes that since his claim was not heard under a new standard, the pathway should apply to him.

But Senior Judge Walter Kurtz in Nashville tossed Black's case on a procedural technicality earlier this year.

Kurtz said a previous court decision on the facts of his intellectual disability — there have been two — ruled out a review under the new law, even if the previous were under unconstitutional standards.

As medical understanding of intellectual disability has changed and developed over the years, so too has the legal definition.

The Tennessee Supreme Court explicitly urged lawmakers to bring state law into compliance with federal rulings, and, in 2021, they did. The new law uses a broader understanding of intellectual disability by using a range of factors and not only a "bright-line" IQ score cutoff, although the tests remain a factor.

Defense attorneys and Nashville prosecutors, in unusual unity, agreed to find Black intellectually disabled. The ruling would have allowed the courts to reset his sentence to life in prison without the possibility of parole.

Black, 66, was convicted in Davidson County of murdering his girlfriend Angela Clay, 29, and her daughters Latoya, 9, and Lakesha, 6, at their home in April 1988.

State's interest in limiting endless appeals

Although Davidson County District Attorney Glenn Funk agreed with Black's team at the trial court level, the Tennessee attorney general's office is fighting their appeal.

The current appeal began under the advisement of now-former Tennessee Attorney General Herbert H. Slatery III who had previously tangled with Funk over death sentences. Tuesday's arguments hint current Attorney General Jonathan Skrmetti intends to continue the dispute.

The attorney general's office is not bound to agree with local prosecutors, but in practice it is rare for the state to take the opposite stance on appeal.

The panel of judges pressed Assistant Attorney General Katherine Decker throughout her arguments on Tuesday.

Courts and the state do have an interest in the idea that there is finality in the judicial process, when all appeals are exhausted and an ultimate ruling should stand. Appeals and post-conviction processes can act as error-correcting processes when there are questions about the validity or constitutionality of a previous ruling, but, the state argues, no one is supposed to get endless "bites at the apple," as the current case terms it.

The state argues the framing of the law was intended to be extremely limited and not to include anyone who has previously had an intellectual disability case decided on the merits — even if it was done under a standard now deemed unconstitutional.

Decker argued it was "nonsensical" to read it otherwise, and that lawmakers would not have intended all 49 defendants currently on death row to file the claims.

Henry argued not all of them would because they cannot all make the claim.

"You have to have evidence to get into court," she said.

Henry also argued to the judges that the state's inconsistency is inappropriate given Funk's stipulation in the lower court, disagreeing with Decker.

"The state is the state," Henry said. "That doesn't change because they got a new lawyer."

Black was scheduled to be executed in 2020, but COVID-19 related precautions twice delayed the date, the second time indefinitely. His execution date was recently reset to Aug. 18 before Gov. Bill Lee halted all 2022 executions over problems with the state's lethal injection protocols.

The appeals judges took the case under advisement and are expect to issue a written order.

This article originally appeared on Nashville Tennessean: Tennessee fights death row inmate Byron Black's disability claim