Whether a state can add a causal connection requirement to the definition of intellectual disability, ignoring Atkins and its progeny

QUESTIONS PRESENTED The State of Missouri is set to execute an individual whom every evaluating expert following clinical diagnostic requirements has concluded meets the criteria for intellectual disability. The Missouri Supreme Court failed to understand and apply current medical standards in assessing intellectual disability, in direct contradiction of the Eighth Amendment and this Court’s precedent as set forth in Moore v. Texas, 137 S. Ct. 1039 (2017) (Moore D, and Moore v. Texas, 139 S. Ct. 666 (2019) (Moore ID. 1. May a state add a diagnostic criterion to the definition of intellectual disability requiring a causal connection between subaverage intellectual functioning and adaptive deficits thereby ignoring Atkins and its progeny? 2. After Moore I and Moore IT rejected the Briseno factors for assessing adaptive deficits as relying on unscientific, layperson stereotypes of intellectual disability rather than on clinical criteria, and overemphasizing adaptive strengths when the inquiry solely demands evidence of adaptive deficits, may a state rely on evidence of perceived adaptive strengths to deny the subaverage intellectual functioning prong? Since before the Birth of our Nation, juries have held a favored role in cases where death is the possible sentence. It is well-settled that a jury must unanimously find every factor that exposes a defendant to heightened punishment, such as the possibility of a death sentence in a capital case. Contrary to this well-settled principle, Missouri procedures for determining intellectual disability permit a single juror to overrule eleven others to expose the defendant to the death penalty. Nonetheless, in denying Mr. Johnson’s most recent petition for habeas corpus, the Missouri Supreme Court recognized for purposes of Missouri law that the Atkins determination is an eligibility question. This presents the following question: 1. Under the Sixth and Eighth Amendments, may a single hold-out juror subvert the will of the jury on an eligibility question such as intellectual disability and render someone subject to the death penalty? i 2. Is an intellectual disability determination in a capital case where the jury is instructed it must find unanimously that a defendant is not eligible for the death penalty, where the jury rendered no verdict and was not polled but simply instructed to move on to the sentencing question, sufficiently reliable under the Eighth Amendment to subject a defendant whom all evaluating and testifying experts agree meets the criteria for intellectual disability to preclude execution? ii PROCEEDINGS DIRECTLY RELATED TO THIS CASE State v. Johnson, Thirteenth Circuit Court of Missouri, Boone County, Div. I, Case No. 13RO19441558-01. Judgment entered June 21, 2006. State v. Johnson (Johnson I), 968 S.W.2d 686 (Mo. banc 1998). Docket No. 78282. Judgment entered May 26, 1998. State v. Johnson (Johnson I), 22 S.W.3d 183 (Mo. banc 2000). Docket No. SC 81596. Judgment entered August 1, 2000. Johnson v. State (Johnson IT), 102 S.W.3d 535, 537 (Mo. banc 2003). Docket No. SC 84502. Judgment entered April 22, 2003. State v. Johnson (Johnson IV), 244 S.W.3d 144, 155-56 (Mo. banc 2008). Docket No. SC 87825. Judgment entered February 19, 2008. Johnson v. Steele, No. 11-08001-CV-W-DGK, 2013 WL 625318 (W.D. Mo. 2018). Docket No. 11-08001-CV-W-DGK. Judgment entered February 20, 2013. State ex rel. Johnson v. Blair, No. SC 99176, 2021 WL 3887574 (Mo. banc Aug. 31, 2021). Docket No. SC 99176. Judgment entered October 1, 2021. iii