Filing # 56680786 E-Filed 05/19/2017 01:10:22 PM

IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR BRADFORD COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff, CASE NO: 04-2011-CF-498-B

vs. DIVISION: FELONY

WILLIAM WELLS,

Defendant.
__________________________/

DEFENDANTS MOTION TO EXCLUDE THE DEATH PENALTY

DUE TO DEFENDANTS SERIOUS MENTAL ILLNESS

Defendant respectfully requests that this Court exclude the death penalty as a sentencing

option in this case for the reasons set forth in the accompanying memorandum in support.

STATEMENT OF FACTS

1. William Wells is currently facing one count of first-degree murder and is facing potential

death sentence.

2. Mr. Wells is currently serving six life sentences, five of which originate out of Duval

County for his involvement in the 2003 murder of his wife and four other individuals.

3. In 2004, Mr. Wells entered in a plea of guilty for this five homicides in exchange for the

State of Florida dropping the death penalty.

4. Duval County has the highest per capita rate for inmates on death row for any county in

the United States.

5. Mr. Wellss significant and well documented history of mental illness was undoubtedly a

factor in the Office of the State Attorneys decision not to seek the death penalty.
6. William Wells was born in 1975, the product of an affair between his alcoholic father

Wild Bill and an alcoholic prostitute named Dorothea.

7. As a newborn, Mr. Wells was taken by his father to live in Texas with him and his wife

Selma. Until adolescence, Mr. Wells was unaware that Selma was not his biological

mother.

8. During childhood Mr. Wells was exposed to extremely violent fights between his step

mother and father and has reported to experts that he first experienced anxiety attacks at

six-years of age.

9. Not only would Wild Bill take out his frustrations on Selma, but Mr. Wells bore the brunt

of much of that abuse. When Mr. Wells would wet the bed as a child, Wild Bill would

burn Mr. Wells with cigarettes.

10. Perhaps one of the most traumatic moments for Mr. Wells was when he was on a shrimp

boat with his father around the age of nine. His father had been drinking Wild Turkey all

day when he told Mr. Wells to hold a beer can between his legs and started firing a .22

caliber pistol at him. Mr. Wells was so terrified that he urinated on himself. This

enraged his father who kept shooting until he accidentally shot Mr. Wells in the foot.

11. Mr. Wells began drinking around this age as it was encouraged by his father. By the

time Mr. Wells was thirteen his father forced him to have sex with a prostitute so he

wouldnt be a f****t.

12. Throughout high school Mr. Wells drank heavily and when he was 17 he suffered his first

documented anxiety attack. Wild Bill had been diagnosed with cancer and was slowly

dying. About a month before his death, Wild Bill was taken to the hospital. Mr. Wells,
 upon learning the news, began screaming and running around the house until he fell and

hit his head in a bathtub. The doctors that saw Mr. Wells diagnosed him with anxiety.

13. After his father passed, Mr. Wells began to abuse drugs; marijuana, LSD, and cocaine.

14. Although Mr. Wells suffered a traumatic childhood he managed to become a successful

shrimper and made his living that way until his arrest.

15. When Mr. Wells was twenty-four he married Irene and they had a child together.

16. Unsurprisingly, Mr. Wells and Irene had a dysfunctional relationship that was

exacerbated by Mr. Wellss mental health issues and substance abuse.

17. On April 10, 2002, Mr. Wells was Baker Acted after trying to cut his wrist. A neighbor

saw him walking around bleeding and called 911. He was treated at Mental Health

Resource Centers Crisis Stabilization Unit for suicidality, fear of being in large crowds,

anxiety and poor sleep. Mr. Wells was diagnosed with and given medication for a

Depressive Disorder, with orders to follow up with counseling. However, he was dropped

by his insurance company after the hospitalization and could not afford care or

medication.

18. That following September Mr. Wells was once again Baker Acted for again cutting his

wrists.

19. Mr. Wells continued on a downward spiral abusing cocaine and alcohol until May of

2003 when he was arrested for the homicide of his wife and four others, after a several

day standoff with police.

20. The Public Defenders office had Mr. Wells evaluated by Dr. Bordini and Dr. Krop, both

of whom wrote reports describing the mental health issues suffered by Mr. Wells since

childhood and opined that significant mitigation against the death penalty existed.
21. This was presented to the Office of the State Attorney in Duval County and ultimately

Mr. Wells entered into a plea of guilty in exchange for a life sentence.

22. Upon being transferred to the Department of Corrections, Mr. Wells has been under the

constant care of psychiatrists.

23. Mr. Wells has been diagnosed by DOC psychiatrists with various mental health illnesses

over the years, including Schizoaffective Disorder, Bipolar Disorder, and PTSD.

24. Mr. Wells mental illness was so severe that in 2007 a psychiatrist put in a drug exemption

request for Propanol, a drug used to treat PTSD in war veterans. This request was

ultimately denied.

25. Mr. Wells has suffered from consistently and continuously from hallucinations,

delusions, panic attacks, blackouts and suicidal ideations throughout his incarceration.

MEMORANDUM IN SUPPORT

A. Atkins and Simmons principles apply equally to serious mental illness.

Defendants serious mental illness renders the death penalty an unconstitutional sentence.

Defendant would deserve a harsh punishment if lawfully convicted of an otherwise death-eligible

offense. But just as those with mental retardation and those under eighteen are exempt from the

death penalty, so too those suffering from a serious mental illness should be excluded from

societys ultimate sanction. See Roper v. Simmons, 543 U.S. 551 (2005) (excluding juveniles)

and Atkins v. Virginia, 536 U.S. 304 (2002) (excluding those with retardation). Atkins and

Simmons discerned Eighth Amendment principles requiring that juveniles and those with mental

retardation be excluded as classes from the death penalty. The Courts rationale in those cases

applies with equal force to those afflicted with a serious mental illness.
 Those afflicted with a serious mental illness share characteristics that (1) minimize their

moral culpability for criminal acts; (2) undercut societys justification for capital punishment

(deterrence and retribution); and, (3) reduce the reliability of trial outcomes. Atkins and

Simmons gave constitutional status to these factors. By extension, those with a serious mental

illness must be excluded from the death penalty.

An examination of the death-exclusion rationale in Atkins and Simmons, plus a summary

of the disabling traits of Defendants mental illness, yields the conclusion that the Eighth

Amendment requires this Court to remove the death-penalty option from consideration.

B. Atkins principles.

Atkins excluded those with mental retardation from the reach of the death penalty due to

class traits that set them so far apart from the norm of death-eligible offenders that it made it

cruel and unusual to expose them to the death penalty. The Court identified several key

characteristics requiring death-exclusions for those with mental retardation. Reasoning,

judgment, and impulse control disabilities mean that persons with mental retardation do not act

with the level of moral culpability that characterizes the most serious adult criminal conduct.

Atkins, 536 U.S. at 306. Those with mental retardation also have less capacity to understand

and process information, to communicate, to abstract from mistakes and learn from experience,

to engage in logical reasoning, to control impulses, and to understand the reactions of others.

Id. at 318. Moreover, often those with mental retardation are less able to give meaningful

assistance to their counsel and are typically poor witnesses, and their demeanor may create an

unwarranted impression of lack of remorse for their crimes. Id. at 320-21.

These impairments undermine the penological justifications of the death penalty for those

with mental retardation. Gregg v. Georgia, 428 U.S. 153, 183 (1976), identified retribution and
deterrence of capital crimes by prospective offenders as the social purposes served by the death

penalty. Decreased moral culpability removes retribution as a valid justification for imposing the

death penalty. With respect to deterrence, the Atkins Court found that deterrence is predicated

upon the notion that the increased severity of the punishment will inhibit criminal actors from

carrying out murderous conduct. Id. at 320. The Court went on to note that the same

impairments suffered by mentally retarded defendants make these defendants less morally

culpable . . . that also make it less likely that they can process the information of the possibility

of execution as a penalty and, as a result, control their conduct based upon that information.

Further, the Court found no evidence that exempting mentally retarded persons from the death

penalty would decrease the deterrent effect of the death penalty for those without mental

retardation. Id.

C. Simmons principles.

Relying on, and extending, the principles enunciated in Atkins, Simmons prohibited the

execution of juveniles (executing those under 16 was banned by Thompson v. Oklahoma, 487

U.S. 815 (1988) (plurality opinion)). Simmons excludes juveniles because their moral

culpability is diminished by (1) their lack of maturity; (2) their susceptibility to peer pressure;

and, (3) their unformed character and personality traits. 543 U.S. at 569. Because of these

categorical ways in which juveniles differ from average adults, the penological justifications for

the death penalty apply to them with lesser force than to adults. Id. at 571 (explaining why

deterrence and retribution provide inadequate justification for imposing the death penalty on

juvenile offenders).

D. Defendants debilitating, intractable mental illness carries traits that render him
ineligible for the death penalty.
 Defendant suffers from Schizoaffective Disorder, Bipolar Disorder, and PTSD. He

stands as far away from the adult norm as juveniles and those with mental retardation. His

disabling traits render him less morally culpable, and derail the penological purposes of

retribution and deterrence. He should be excluded from the death penalty based on the same

Eighth Amendment principles at work in Atkins and Simmons.

Those afflicted with this serious mental illness are no more responsible for their mental

illness and upbringing than those born with mental retardation, or those who have yet to come of

age. People, like Defendant, who suffer from this debilitating mental illness live a life vastly

different from the rest of us.

Defendant does not live a normal life. Like a juvenile, his character and personality traits

will never come close to the adult barometer Simmons employed. Nor will Defendant ever be

deemed mature as understood in Simmons. Like those with mental retardation, Defendants

disease warps reasoning, judgment, impulse control, comprehension, communication, and ability

to learn from experience. Combined, Defendants disabilities eviscerate the penological

justifications for the death penalty.

Defendants abnormality merits death-exclusion because he falls far outside the range of

those normal adults for whom the extreme sanction of death is constitutionally permitted.

E. Eighth Amendment relief.

The most basic principle marking the modern era of capital jurisprudence is the edict that

death is not an appropriate sentence for all convicted murderers. Death must be reserved to

punish only the worst of the worst murderers who commit the most serious homicide offenses.

See Gregg v. Georgia, 428 U.S. 153 (1976). Defendants affliction separates him from the

worst of the worst offenders, and excludes him from the death penalty. Because the death
penalty is the most severe punishment, the Eighth Amendment applies to it with special force.

Simmons, 543 U.S. at 566. Atkins and Simmons discerned constitutional principles that

logically extend to those afflicted with Defendants serious mental illness. Making Defendant

face the death penalty violates those constitutional principles.

Defendants argument easily survives the fact that courts have affirmed death sentences

for those with serious mental illnesses. The same thing happened for many years when courts

affirmed death sentences for juveniles and for those with mental retardation until Atkins and

Simmons came down. The law changed. See e.g., Penry v. Lynaugh, 492 U.S. 302 (1989) revd

on other grounds Penry v. Johnson, 532 U.S. 782 (2001) (held that death can be imposed on

those with mental retardation; reversed by Atkins); Stanford v. Kentucky, 492 U.S. 361 (1989)

revd Simmons, 543 U.S. 551 (holding that death can be imposed on 16 and 17 year old

juveniles). The constitutional principles of Atkins and Simmons require a change in the law for

those afflicted with Defendants serious mental illness.

Failing to extend the principles of Atkins and Simmons to exclude death as a punishment

for those like Defendant who are afflicted with a serious mental illness would violate

Defendants constitutional rights to be free from cruel and unusual punishment, to the equal

protection of law, and to procedural and substantive due process. U.S. Const. amends. VIII and

XIV; Ohio Const. art. I, 2, 9, and 16.

F. Equal Protection relief.

Just like Atkins and Simmons excluded all juveniles and those with mental retardation, so

too must all those suffering from Defendants serious mental illness be excluded from the death

penalty. Neither Atkins nor Simmons shaded their holdings with gradations of the conditions

that required death-exclusion. Those holdings exclude all persons with mental retardation and all
juveniles, no matter whether individuals within those classes manifest all of the deficits pointed

to in Atkins and Simmons.

Simmons alone proves this point. If ever there were a juvenile who seemed capable of

acting like an adult in ways that deserved death, it was Simmons. But despite his premeditated

murder, the Court quashed his death penalty. Likewise, there are some high-functioning persons

with mental retardation who (contrary to some of the factors addressed in Atkins) may be

capable of acting alone to commit premeditated murder, who might be able to resist pressures to

falsely confess, who can communicate with their lawyers, and who can present a friendly,

sympathetic demeanor during trial. Nonetheless, a diagnosis of mental retardation categorically

excludes them from the death penalty.

So too, this Court must draw a bright line to exclude Defendant from the death penalty no

matter whether he manifests all the debilitating characteristics associated with his disease.

Conclusion.

Defendants mental illness does not work as a get out of jail free card. With death off

the table, he could be sentenced to life in prison. This Court should grant Defendants motion to

exclude the death penalty or in the alternative allow for an evidentiary hearing on Mr. Wellss

mental health status. The denial of this motion would deprive the defendant's rights to effective

assistance of counsel, freedom from cruel and unusual punishment, and due process and equal

protection under State and Federal Constitutions. U.S. CONST. amend. VI, VIII, & XIV; FLA.

CONST. art, 2,9,16, & 17.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing motion has been electronically served to the

Office of the State Attorney this 19th day of May, 2017.

Respectfully Submitted,

s/Tania Z. Alavi s/Terence M. Lenamon

Tania Z. Alavi, Esq. Terence M. Lenamon, Esq.
Alavi, Bird, & Pozzuto, P.A. Lenamon Law, PLLC
Florida Bar No. 0937680 Florida Bar No. 970476
108 North Magnolia Ave. 245 SE 1st St.
Suite 600 Suite 404
Ocala, FL 34475 Miami, FL 33131
p. 352-732-9191 p. 305-373-9911
f. 352-732-4892 f. 305-503-6973
Attorney for the Defendant Attorney for the Defendant