Sixth Circuit Upholds Death Penalty on Basis of One IQ Finding of 71

O’Neal v. Bagley, 728 F.3d 552 (6th Cir. 2013)

In deferring to the findings of the state trial court relying primarily on a single IQ score of 71, the Sixth Circuit Court of Appeals denied habeas corpus relief to an inmate convicted of killing his wife and sentenced to death. One dissenting judge on the three-judge panel disagreed writing that the state court’s opinion was so far outside the mainstream of scientific opinion that it was not entitled to deference.

In September 1993, James O’Neal and his wife moved into a house in Cincinnati, Ohio, with four children from his wife’s prior relationships, and his two children from his prior relationships. In December 1993, an altercation broke out between O’Neal and his wife and she threw O’Neal and his children out of the house. As a result, O’Neal “took to the streets” and it was not clear where the children went. On December 11th, O’Neal returned to the house to “teach his wife a lesson,” breaking down the door and following her to an upstairs bedroom, where he fired three shots at her, one of which was fatal. Her son Ricardo testified that O’Neal tried to shoot him but gave up when his gun jammed.

A jury convicted O’Neal of aggravated murder and recommended the death penalty, which was upheld on direct appeal. Following the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), O’Neal sought post-conviction relief, filing eighteen claims for relief, one of which alleged he was mentally retarded. The district court rejected the claims based on either procedural default or on the merits of each claim. Four claims were certified as appealable to the Sixth Circuit.

On August 26, 2013, the Sixth Circuit rejected each of the claims, most notably O’Neal’s claim of mental retardation. Under the Antiterrorism and Effective Death Penalty Act, the Court held that O’Neal is entitled to relief only if he can establish that the state appellate court unreasonably determined the facts in light of the evidence presented. O’Neal failed to rebut the presumption raised by an over-70 IQ score by clear and convincing evidence.

In Atkins, the United States Supreme Court held that the execution of individuals with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. The Court left it to the states to define mental retardation. The Ohio Supreme Court adopted the definitions of the American Association of Mental Retardation and American Psychiatric Association in State v. Lott, 779 N.E.2d 1011 (Ohio 2002), holding that an individual is mentally retarded if he has: “(1) significantly sub-average intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and selfdirection, and (3) onset before the age of 18.” Unlike Florida, it added that there is a rebuttable presumption that an individual is not mentally retarded if his IQ is above 70.

In upholding the finding of the trial court, the state appellate court determined that O’Neal was not mentally retarded because he did not suffer from significantly sub-average intellectual function based on an IQ score of over 70 and did not have limitations in two or more adaptive skills. In separately administered IQ tests, O’Neal scored below 70 on three occasions between 1968 and 2004, and only once scored 71 in 1994. O’Neal’s expert clinical psychologist testified that he suffered from mild cerebral dysfunction which contributed to his low intellectual function and thus had a significant limitation in academic skills. His expert also testified that O’Neal had little ability to consider alternative modes of dealing with stressful situations or situations he found threatening, demonstrating significant limitations in social skills. Based on these findings, O’Neal’s expert diagnosed him as suffering from mild to borderline mental retardation.

The Sixth Circuit determined based on all the evidence that reasonable minds could differ on whether O’Neal was mentally retarded or not, and as a result he did not carry his burden of undermining the state court’s factual findings by clear and convincing evidence. The Court reasoned that three sub-70 IQ scores were insufficient alone to prove O’Neal had significant subaverage intellectual functioning. Another clinical psychologist who evaluated O’Neal prior to trial and a third who reviewed the evaluations and other records at the State’s request but never met O’Neal face-to-face, both concluded that O’Neal functions at a higher level than his IQ scores suggest. The third psychologist noted that O’Neal functions in at least the borderline range of practical adaptive skills, but attributed his social limitations to drug abuse and personality disorder rather than specific intellectual/adaptive behavior deficits.

One judge on the three-judge panel dissented writing that reliance on one IQ scored over 70 alone was not supported by scientific literature or the Supreme Court decision in Atkins. That Court determined that a single IQ test of 71 could not be a proper basis for finding normality, pointing out that the literature considers that between 1% and 3% of the population has an IQ score between 70 and 75 or lower. The dissent points out that O’Neal’s IQ scores were all below 70 except one. O’Neal’s expert testified that the 71 score was the result of an old Wechsler test which turned out to be 67 when the test was re-administered. The dissent states that this one-test methodology does not comply with standards established by modern scientific opinion or the Supreme Court in Atkins.

The dissent further points out that the state court relied on the opinions of two psychologists who did not testify at the mental retardation hearing, and one of whom never evaluated O’Neal regarding his adaptive skills. The state court relied on the fact that O’Neal worked as a dishwasher, briefly had custody of his children, and served as a marine to demonstrate that his social adaptive functioning was normal. The dissent disagreed stating that many individuals with intellectual disability maintain employment but O’Neal’s work history was riddled with absenteeism and tardiness. O’Neal also was AWOL from the marines and dishonorably discharged. O’Neal also admitted to police that he did not know where his children were living when he killed his wife. For these reasons, the dissenting judge determined that the findings of the state appellate court were not entitled to deference.

Found in DMHL Volume 32 Issue 4