Intellectual disability; execution

Moore v. Texas, 137 S.Ct. 1039 (2017)

U.S. Supreme Court reverses the ruling of the Texas Court of Criminal Appeals that defendant convicted of a capital crime was not intellectually disabled. The Supreme Court found that the state court deviated from the consensus of the medical community and relied on lay stereotypes of intellectual disability rather than accepted clinical standards.

Found in DMHL Volume 36, Issue 2

Intellectual Disability, Death penalty

State v. Russell, 238 So.3d 1105 (Miss. 2017)

The Supreme Court of Mississippi found that the trial court was incorrect in denying a State motion to evaluate a defendant on his claim of intellectual disability when considering the death penalty because testing completed for a previous charge was insufficient for State expert to form opinion.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

State v. Morrison, 236 So.3d 204 (Fla. 2017)

The Supreme Court of Florida denied a new evidentiary hearing for intellectual disability, granted a new penalty phase where counsel was ineffective in its penalty phase investigation, and withheld a new guilt phase because counsel was not ineffective in its guilt phase investigation.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

Reeves v. Alabama, 138 S. Ct. 22 (2017)

The Supreme Court of the United States denied certiorari to hear a case involving ineffective assistance of counsel based on not obtaining psychological evaluation for intellectual disability. Of relevance here is the opinion of the dissenting Justices, who found that the Alabama Court of Criminal Appeals incorrectly imposed a rule requiring trial counsel to testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim.

Found in DMHL Volume 37, Issue 1


Conviction of Mentally Retarded Defendant of Malicious Wounding for Injuries Suffered by Infant from "Shaken Baby Syndrome" Upheld

Funk v. Commonwealth, No. 1821- 02-4, 2003 WL 21524686 (Va. Ct. App. July 8, 2003); 18(8) Virginia Lawyers Weekly 185-86 (July 28, 2003)

Although the defendant was mentally retarded with an IQ of 65 and his lawyer argued he did not understand the fragility of his six-week-old son, the Virginia Court of Appeals ruled the defendant was properly convicted of malicious wounding for the permanent injuries suffered by the child from "shaken baby syndrome." The court noted these injuries left the child severely retarded, the child was under the sole care of the defendant, and he eventually admitted he shook the victim three times and may have been too rough.  The court determined the jury could reasonably infer from the violence necessary to cause such severe and extensive injury that the defendant intended that which resulted...

Found in DMHL Volume 23 Issue 1

Reversal of Capital Conviction Because Counsel Failed to Request Diminished Capacity Jury Instruction to Reflect Defendant's "Explosive Dyscontrol" from Chronic Drug Use Not Disturbed

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002), cert. denied, Morgan v. Pirtle, 123 S. Ct. 2286 (2003); 71(47) U.S. Law Week 3756 (June 10, 2003)

Perhaps presaging its decision in Wiggins (described above), the Supreme Court declined to review a ruling of the Ninth Circuit that overturned a first-degree murder convic­tion for ineffective assistance of counsel in violation of the Sixth Amendment because defendant's attorney failed to request a dimin­ished capacity jury instruction. At trial, the defendant testified he ingested methamphet­amines, cocaine, and marijuana the night before the murder but was "coming down" three hours before the murder. Despite this evidence the drugs he used were wearing off three hours before the murder, defense counsel requested an intoxication instruction...

Found in DMHL Volume 23 Issue 1

Defendant Facing Capital Punishment Can Argue That "Flynn Effect" and Standard Error of Measurement Should Be Taken Into Account When Determining Whether IQ Score Established He Is Mentally Retarded

Walker v. True, 399 F.3d 315 (4th Cir. 2005)

The U.S. Supreme Court ruled in Atkins v. Virginia (2002) that it is unconstitutional to impose the death penalty on a defendant who is mentally retarded.  However, the Supreme Court left it to the states to define what constitutes mental retardation in this context. Virginia responded by enacting legislation that requires the defendant to establish that the disability originated before the age of 18, that it is characterized by a score two standard deviations below the mean on an approved standardized test, and significant limitations exist in the defendant's adaptive behavior. VA. CODE § 19.2-264.3: 1.1....

Found in DMHL Volume 24 Issue 2

Mentally Retarded Defendant Incompetent to Waive Miranda Rights and Confess to Murders; Ruling Not Disturbed

Illinois v. Braggs, 810 N.E.2d 472 (Ill. 2004)

The Illinois Supreme Court reversed the conviction of a criminal defendant who was mentally retarded after it found that she was incompetent to waive her Miranda rights.  As a result, the confessions she had given the police were suppressed and a new trial was required if the state wished to continue to prosecute her for a pair of murders that occurred in a Chicago apartment where she was present...

Found in DMHL Volume 24 Issue 2

NM Permits Defendant to Assert at Pretrial Hearing That Mental Retardation Precludes Death Penalty; If Not Established at This Hearing, Defendant Can Introduce Related Evidence During Sentencing Phase

State v. Flores, 93 P.3d 1264 (2004)

State courts continue to wrestle with the implementation of the U.S. Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which established that a mentally retarded defendant cannot receive the death penalty under the Constitution....

Found in DMHL Volume 24 Issue 1

Medicaid-Eligible Adults Who Are Mentally Retarded Can Sue State for Failure to Provide Community-Based Intermediate Care Facilities

Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004)

The Medicaid Act furnishes funds to the states to help them provide medical assistance to eligible low-income individuals.  Although states are not required to participate in such programs, if they accept federal funding they must comply with the Medicaid Act and related federal regulations...

Found in DMHL Volume 24 Issue 1

Downward Departure in Sentencing Under Federal Sentencing Guidelines for Defendant with Diminished Mental Capacity Prohibited When Possibility Exists That Defendant May Discontinue Medication

United States v. Riggs, 370 F.3d 382 (4th Cir. 2004)

Under the federal sentencing guidelines as they currently exist, a federal judge can reduce a sentence below the applicable guideline range "if the defendant committed the offense while suffering from a significantly reduced mental capacity."   However, this reduction may not occur if (1) the reduced mental capacity was caused by the voluntary use of drugs or other intoxicants, (2) "the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence," or (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public...

Found in DMHL Volume 24 Issue 1

All Defendants Sentenced to Death Entitled to Have a Jury Determine Non-Frivolous Claims That They Are Mentally Retarded

Burns v. Warden of Sussex I State Prison, 597 S.E.2d 195 (Va. 2004)

In response to the U.S. Supreme Court ruling in Atkins v. Virginia (2002) that bans sentencing a mentally retarded individual to death, the Virginia General Assembly in 2003 established procedures for determining mental retardation in capital murder trials.  This legislation established separate procedures for defendants whose trials occurred after the effective date of this legislation (i.e., new trials) and for defendants whose trials had previously been concluded.  For new trials, it is clear that this legislation allows a jury to decide whether a capital murder defendant is mentally retarded.  For defendants whose trials were completed prior to the effective date of the legislation, it was unclear whether those who raise a non-frivolous claim are entitled to have a jury decide the issue...

Found in DMHL Volume 24 Issue 1

Low IQ Score a Relevant Mitigating Factor at Capital Sentencing, Even If It Is Not Directly Connected to the Crime and No Other Evidence of Impairment Is Presented

Tennard v. Dretke, 124 S. Ct. 2562 (2004)

In Penry v. Lynaugh, 492 U.S. 302 (1989), the U.S. Supreme Court established that a defendant's mental retardation is a potential mitigating factor at capital sentencing.  Under Texas law, however, a finding of mental retardation was limited to where there is subaverage general intellectual functioning, concurrent deficits in adaptive behavior, and onset during the early development period...

Found in DMHL Volume 24 Issue 1

Indiana Supreme Court Rules Defendants Cannot Be Required to Show Mental Retardation by Clear and Convincing Evidence in Death Penalty Cases; Evidence Can Include Tests/Manifestations After Age 21

Pruitt v. State, 834 N.E.2d 90 (Ind. 2005)

In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court ruled that a death penalty cannot be assigned to criminal defendants who are mentally retarded, but did not define mental retardation nor establish the procedures to be used in making this determination. The Indiana Supreme Court answered a number of related questions in applying Indiana's definition of a "mentally retarded individual" as being "an individual who, before becoming twenty-two years of age, manifests: (1) significantly subaverage intellectual functioning; and (2) substantial impairment of adaptive behavior."...

Found in DMHL Volume 25 Issue 2

Guardian Ad Litems, Social Workers Given Immunity for Efforts to Protect Individuals Lacking Decision-Making Capacity; Ruling Not Disturbed

Dalenko v. Wake County, N.C., Dep't of Human Servs., 578 S.E.2d 599 (N.C. Ct. App. 2003), cert. denied, 124 S. Ct. 1411 (2004)

Every state has a mechanism that enables a state or local agency to intervene to protect vulnerable individuals when the care they are receiving is deemed inadequate.  This protection is typically afforded children, elder persons, and adults who lack decision-making capacity.  Among the interventions this agency may pursue are periodically monitoring the care being provided, obtaining a protective order, removing the person from the custody of the current care giver, or initiating guardianship proceedings.  When guardianship proceedings are initiated, a guardian ad litem will often be appointed to insure the person at risk is represented and has a spokesperson in the proceedings.  The current care provider may contest the actions taken, assert they are unwarranted and improper, and file a lawsuit for damages that resulted.  The Court of Appeals of North Carolina has established that it will be rare in North Carolina that such cases can be successfully  pursued...

Found in DMHL Volume 25 Issue 1

Death Sentence Overturned Because Defendant's Lawyers Did Not Examine Case File from an Earlier Conviction That Would Have Indicated Defendant's Diminished Mental Capacity

Rompilla v. Beard, 125 S. Ct. 2456 (2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates  the defendant's diminished capacity and reduced criminal responsibility. The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase.  In Wiggins v. Smith, 539 U.S. 51O (2003), the Court indicated that this right required the defendant's attorney to diligently explore potentially mitigating mental health evidence...

Found in DMHL Volume 25 Issue 1

Privilege against Self-Incrimination Waived in Second Trial When Defendant Presented Mental Capacity Defense at First Trial

Commonwealth v. Rosen, 2012 Pa. LEXIS 965 (April 25, 2012)

The Pennsylvania Supreme Court has upheld the decision of the Superior Court that a defendant who voluntarily waived his 5th Amendment right against self-incrimination by presenting a mental capacity defense at his first trial opened the door to the Commonwealth’s introduction of inculpatory statements at retrial, even though the defendant did not utilize the defense at his retrial.

The defendant was charged with first degree murder in the stabbing death of his wife and sentenced to life in prison. The defendant’s wife had been stabbed to death in the early morning hours of June 30, 2001. The defendant initially claimed that two intruders in ski masks and parkas committed the murder. He later gave multiple explanations for the murder and ultimately admitted killing his wife, stating they were arguing and each had a knife. He said his wife swung the knife at him, he stabbed her in the chest, and she then plunged the knife into her own neck. At his jury trial in 2002, the defendant relied on the defense of diminished capacity. His expert psychiatrist testified that the defendant suffered from manic-depressive illness accompanied by psychotic features and paranoia. He testified that the defendant was psychotic and incapable of forming the intent to kill his wife. The Commonwealth’s expert testified that the defendant had no mental disorder that would impair his capacity to form intent to kill his wife, relying on the fact that the wife planned to divorce him, that he delayed an hour in calling police and that he initially fabricated events. The jury convicted the defendant of first degree murder and the trial court sentence him to life in prison. The Pennsylvania Superior Court upheld the conviction and the Pennsylvania Supreme Court declined review.

The defendant then filed a post-conviction petition for relief alleging ineffective assistance of counsel for failure to call character witnesses that would have established that his mental instability prompted his actions and that he neither planned nor intended to kill his wife. The trial court conducted a hearing and dismissed his petition. The Superior Court reviewed the petition on appeal, reversed and remanded the case for a new trial. At retrial, the Commonwealth sought to introduce evidence of his mental stability presented by its expert at the original trial. The trial court ruled that since the defendant was not presenting mental infirmity as a defense on retrial, the Commonwealth could not present its expert psychiatric testimony as substantive evidence in its case in chief, but if the defendant testified on his own behalf, the Commonwealth could use the admissions of guilt contained in its expert’s testimony as rebuttal evidence. The defendant waived his right to a jury trial and proceeded with a bench trial. The Court found him guilty and again sentenced him to life in prison.

The Superior Court affirmed the trial court. On appeal from the Superior Court, the Pennsylvania Supreme Court relied on the decision in Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995) in which the court held that the defendant’s waiver of the psychiatric-patient privilege carries over to his retrial and on Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982), holding that if a defendant waives his 5th amendment privilege against self-incrimination and testifies at his first trial, his testimony is admissible at retrial even if he does not take the stand in the second trial. The Pennsylvania Supreme Court held that the two cases taken together support the admission of psychiatric testimony at the second trial. Once the privilege is waived, it is always waived, and no distinction need be made between the defense expert and Commonwealth’s expert. Either side may therefore introduce substantive evidence admitted in the first trial in the second trial.

Found in DMHL Volume 31 Issue 4

Tenth Circuit Finds Right to Counsel in Post-Conviction Proceeding to Determine Whether Mental Retardation Bars Imposition of Death Penalty; Rejects Use of Flynn Effect in Determining IQ

Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012)

Although there is no right to counsel in post-conviction proceedings, the Tenth Circuit has held that a capital defendant has a Sixth Amendment right to counsel in a post-conviction (Atkins) hearing conducted after his original conviction to determine whether he is mentally retarded (intellectually disabled). Such a finding would bar imposition of the death penalty. The Court then proceeded to review each of the defendant’s claims of ineffective assistance of counsel, rejecting all of them except one, but finding no cumulative evidence or prejudice on that claim to warrant overturning the jury verdict. On review of the jury’s finding that the defendant was not mentally retarded, the Court found that the results of the defendant’s numerous IQ tests fell within a “gray” area, but the scores were not entitled to be adjusted downward due to the “Flynn” effect. Because there is no scientific consensus on its validity, failure to apply it is not “contrary to clearly established federal law.” Finally, the Court found that defendant’s trial counsel in the original trial was grossly ineffective during the sentencing phase, overturned the death sentence, and remanded the case to the Oklahoma courts for a new sentencing hearing.

Victor Hooks was convicted in 1989 of first degree murder of his common law wife and of first degree manslaughter of her unborn child. Hooks and his common law wife had lived together for four years and were the parents of a one-year-old daughter. His wife was also 24 weeks pregnant with their second child. After originally claiming that she had been beaten and raped while on a walk, Hooks confessed to police that they had been fighting, she slapped him, and he then struck her, knocked her to the ground and kicked her in the stomach and face. Subsequently he removed her clothing, put her in the bathtub, and shaved a portion of her head. Hooks then cleaned up the apartment and also removed blood from his one-year-old daughter who had been splattered in the course of her mother’s beating.

Hooks was represented at trial by a private attorney hired by his mother. His attorney decided not to pursue an insanity defense believing there was an insufficient factual basis for it, but focused on obtaining a conviction for a lesser-included offense of second degree murder or first degree manslaughter, arguing that Hooks acted in the heat of passion and not with malice aforethought. There was some information that Hooks had been hit by an 18-wheel truck as a child and suffered a traumatic brain injury, and also suffered from chronic psychosis. The evidence also showed that Hooks had abused his wife on prior occasions and was convicted of armed robbery of a liquor store several years earlier. The trial court refused to instruct the jury on the lesser included offenses and the jury then found the defendant guilty of first degree murder, imposing the death penalty, and first degree manslaughter in the death of the unborn child, sentencing him to 500 years imprisonment on that charge.

Hooks challenged his convictions both on direct appeal and through post-conviction petitions for writs of habeas corpus. In 2002, 13 years after Hooks’ conviction, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321 (2002) that, in light of a national consensus, the execution of a person with mental retardation is cruel and unusual punishment prohibited by the Eighth Amendment. Hooks then filed a second post-conviction petition alleging that he is mentally retarded. In 2004, after a six-day trial, a jury found him not to be mentally retarded. The Oklahoma Court of Criminal Appeals upheld the determination on both direct appeal and collateral review.

In deciding Atkins, the Supreme Court declined to establish a definition of mental retardation, but left it to the states to do so. In response to Atkins, the Oklahoma Court of Criminal Appeals established the following definition in case law:

A person is “mentally retarded” (1) [i]f he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) [t]he mental retardation manifested itself before the age of eighteen (18); and (3) the [m]ental retardation is accompanied by significant limitations in adaptive functioning in at least two …skill areas….However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002). A defendant has the burden of proving his mental retardation by a preponderance of the evidence.

Hooks had been administered IQ tests through the years and nine of these test results were presented to the jury with scores ranging from 53 to 80. The experts agreed that this range of scores put Hooks in a “gray area.” Tests of 70 or below, however, all reflected some degree of lack of cooperation on Hooks’ part. The experts agreed that the most reliable scores were those conducted by two of the experts of 72 and 76, neither of which met the 70 or below requirement. Hooks argued that these scores should be adjusted downward to reflect the “Flynn Effect.” The “Flynn Effect” is a phenomenon named for James R. Flynn who discovered that the population’s mean IQ score rises over time by approximately 0.3 points per year. If an individual’s test score is measured against a mean of a population sample from prior years, then his score will be inflated and will not provide an accurate picture of his IQ.

The Tenth Circuit rejected this argument finding that Oklahoma law does not require an adjustment for the “Flynn Effect,” nor did it find any scientific consensus on its validity. The Court held therefore that failure to apply the “Flynn Effect” was not “contrary to or an unreasonable application of clearly established federal law,” the standard required to overturn a final state court determination on collateral review. Based upon all of the evidence presented, including other evidence related to Hooks’ functional capacity and his adaptive skills, the jury’s finding that he was not mentally retarded was not clearly erroneous.

Hooks also claimed that his counsel at his Atkins trial was ineffective on a number of legal grounds. The State argued that there is no right to counsel in post-conviction proceedings and therefore there is no basis for a claim of ineffective assistance of counsel in post-conviction Atkins hearings. The Tenth Circuit recognized that the United States Supreme Court has never held that there is a Sixth Amendment right to counsel in an Atkins hearing. It reasoned, however, that the Sixth Amendment guarantees the right to have counsel present at all critical stages of criminal proceedings. Although Hooks was convicted years before the Atkins decision and his trial to determine whether he is mentally retarded was necessarily a post-conviction proceeding, this hearing was the first proceeding at which he could raise this claim. The Court held that the Atkins trial is therefore part of the criminal proceeding and is inextricably intertwined with sentencing. It is thus not civil in nature, as post-conviction proceedings normally are. The right to counsel therefore “flows directly from, and is a necessary corollary to the clearly established law of Atkins.”

The Court then examined Hooks’ claims that his counsel was ineffective on the merits. Hooks argued that the standard articulated in United States v. Cronic, 466 U.S. 648 (1984), where counsel’s representation fell so far short of that expected of defense counsel that prejudice was presumed, should be applied in his case. In Cronic, the Supreme Court found that some actions of counsel are so likely to prejudice the defendant that the cost of litigating their effect is unjustified and prejudice will be presumed. The Court found, however, that his counsel actively and zealously participated in all phases of the proceedings and therefore held that the standard in Strickland v. Washington, 466 U.S. 668 (1984), applied instead. In Strickland, a review of counsel’s performance is a highly deferential one and counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Although counsel failed in one aspect of representation, the Court found that failure was not cumulative or prejudicial to the hearing’s outcome.

The Court next reviewed the effectiveness of counsel at his original trial and found that Hooks counsel at trial in the conviction phase exercised a tactical decision not to raise an insanity defense because it lacked a factual basis. In the sentencing phase, however, the Court found counsel’s representation grossly deficient in his failure to conduct a through investigation or to produce any evidence in mitigation. He failed to challenge the prosecution’s aggravation evidence or to present evidence that revealed Hooks was raised in an abusive and chaotic family, suffered from a brain injury and suffered from chronic psychotic mental health problems, all of which could have elicited sympathy from a juror and mitigated his sentence. Moreover, counsel made his own statements to the jury related to Hooks’ violent tendencies and permitted his own expert to make prejudicial statements related to his violence. The Court therefore vacated the death sentence and remanded the case to the Oklahoma courts for a new sentencing hearing.

Found in DMHL Volume 32 Issue 1

Eighth Circuit Upholds Dismissal of Civil Suit Alleging Violation of the Constitution and ADA for Interrogation of Suspect with Intellectual Disabilities

Folkerts v. City of Waverly, Iowa, 707 F.3d 975, (8th Cir. 2013), rehearing denied 2013 U.S. App. LEXIS 7279 (8th Cir. April 10, 2013)

The Eighth Circuit Court of Appeals has upheld the district court’s grant of summary judgment dismissing a civil case filed on behalf of a 30-year old man with intellectual disabilities against the City of Waverly, Iowa, and the investigating officer, finding no violation of his constitutional rights, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, as a result of his interrogation and subsequent charges of sexual assault.

The plaintiffs Melvin and Idella Folkerts are the legal guardians of their adult son Travis Folkerts who has an IQ of 50. In May 2008, Travis lived alone in a supervised apartment when a neighbor reported that Travis had engaged in inappropriate conduct with her minor son. A patrol officer who knew Travis had a disability spoke with the complainant and then contacted Troy Schneider, an investigator with the police department and now a defendant in this case. The patrol officer then spoke with Travis who was alone and read him his Miranda rights, asking Travis if he understood them. Travis indicated he did and then provided the officer with the phone number of his caseworker upon request.

The next day Schneider went to Travis’ apartment where he was alone and read him his Miranda rights and more fully explained them so he could better understand them. Schneider believed Travis understood them. He then took Travis to the police station where he continued the interrogation in a conference room that Schneider believed was less intimidating than the regular, smaller interrogation room. He also asked Travis non-leading open-ended questions because he thought it would be easy to get him to say something he did not do if he was asked leading, direct questions.

At Travis’ request, Schneider called Travis’ mother who spoke with Travis by phone. Travis told her he was nervous. Schneider told Mrs. Folkerts she could come down to the police station if she wanted, but she said she thought Travis would be less nervous if she did not. Schneider continued the interrogation and Travis incriminated himself. Afterwards Schneider drove Travis to his parents’ home and explained the situation to them. Schneider then arranged to have Travis booked using friendlier booking procedures. After consulting with the county attorney, Schneider filed a complaint charging Travis with the misdemeanor of lascivious conduct. An Iowa court found Travis incompetent to stand trial and dismissed the charges.

The Folkerts then filed a civil lawsuit against the City of Waverly and the investigator Troy Schneider under 42 U.S.C. § 1983, alleging violation of their son’s and ward’s substantive constitutional rights in the interrogation process, and violations of § 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act for disparate treatment and failure to make reasonable accommodations. To establish a substantive due process violation, the Court stated that the Folkerts must demonstrate that a fundamental right has been violated and that the officer’s conduct shocks the conscience. To support their allegations the Folkerts recited Schneider’s 1) failure to accommodate Travis’ disability during the interrogation; 2) inadequate investigation; 3) investigation as retaliation against Travis’ relatives; and 4) filing of a defective charge.

The Court found that Schneider’s behavior did not shock the conscience. He altered his questioning style, more fully explained Travis’ Miranda rights, and interviewed Travis in a less intimidating room. He also called Travis’ mother and invited her to the police station. The Court also found that the adequacy of the investigation also did not shock the conscience. In order to do so, the Court stated the officer must 1) attempt to coerce or threaten the suspect; 2) purposefully ignore evidence of the suspect’s innocence; or 3) systematically pressure to implicate the suspect despite contrary evidence. Further, the patrol officer here had interviewed the alleged victim, his mother and visited the scene. The Court therefore found that Schneider’s failure to do so himself does not establish an intentional or reckless failure to investigate.

The evidence also revealed that during an investigation the previous year of a burglary of a business owned by Travis’ cousin’s wife, Schneider was alleged to have been rude to Travis’ cousin and not to have pursued a lead. No evidence was submitted, however, that Schneider retaliated against the family members by investigating Travis. Lastly the charge filed required a showing that the accused be “in a position of authority” over the victim. There was no Iowa case law interpreting this element of the offense before Schneider filed the charge and he sought the advice of the county attorney before doing so. Although following an attorney’s advice does not automatically provide an officer with qualified immunity, the Court found it demonstrates the reasonableness of the action. In this case, Schneider’s behavior does not shock the conscience.

The Folkerts also alleged that the city’s culture of indifference to people with disabilities demonstrated its deliberate indifference to Travis’ needs. The Court stated that a pattern of similar constitutional violations by trained employees, or a specific instance accompanied by a showing of lack of training to handle recurring situations, is necessary to establish deliberate indifference on the part of the city. The Court found that the plaintiffs here, however, failed to allege even a single violation of rights.

To establish a prima facie § 504 violation, a qualified individual with a disability must be denied the benefit of a program or activity of a public entity receiving federal funds. For a prima facie ADA violation, a qualified individual with a disability must be excluded from participation or denied the benefits of a public entity’s services, programs, or activities. Here, the interrogation was covered by the ADA. The Court found, however, that no reasonable jury could conclude that the defendants failed to make reasonable accommodation for Travis’ disability. Schneider altered his questioning style, more fully explained his Miranda rights, interviewed Travis in a less threatening room, drove Travis to the Folkerts’ home and explained the situation to them, and arranged an alternative and friendlier booking procedure. Most importantly, the Court stated Schneider called Travis’ mother and reasonably concluded that her comment that her presence might make Travis more nervous meant that she was not coming to the police station and was not requesting additional or alternative accommodations for her son. The Eighth Circuit therefore upheld the district court’s granting of the defendants’ motion for summary judgment and dismissal of the case.

Found in DMHL Volume 32 Issue 2

United States Supreme Court to Review Florida’s Bright-Line IQ Test to Determine Mental Retardation in Capital Cases

Hall v. Florida, No. 12-10882, _S. Ct._, 2013 WL 3153535(mem) (Oct. 21, 2013)

The United States Supreme Court has granted a capital prisoner’s Petition for Writ of Certiorari to determine whether Florida’s scheme utilizing a bright-line IQ score of 70 for identifying defendants with mental retardation in capital cases violates Atkins v. Virginia. In Atkins v.  Virginia, 536 U.S. 304 (2002), the Supreme Court held that the execution of defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. In a per curiam opinion, the Florida Supreme Court determined that the defendant could not meet the first prong of the mental retardation standard establishing a maximum IQ score of 70 and upheld his death sentence. Hall v. Florida, 109 So. Ed 704 (Fla. 2012). Should the Supreme Court overturn Florida’s scheme, the decision could impact mental retardation determinations in the states that still employ the death penalty, especially the twelve states, including Virginia, that have either a statutory or case law bright-line rule that does not apply the standard error measurement.

Freddie Lee Hall was convicted in 1981 for the 1978 murder of a man he kidnapped while robbing a convenience store. Upon fleeing the scene of the robbery, Hall stole a car and kidnapped his victim, and then drove approximately 18 miles to a wooded area where he killed him. Hall appealed his conviction, which was upheld, and filed numerous post-conviction petitions through the years, all of which were eventually denied.

In 1988, Hall again challenged his death sentence, arguing based on a then recently decided United States Supreme Court decision holding that all mitigating factors, and not just statutory mitigation, must be considered by the judge and jury. The Florida Supreme Court granted Hall’s petition in 1989 and remanded his case to the trial court for a new sentencing proceeding. During his resentencing hearing, the trial court found Hall to be mentally retarded as a mitigating factor but gave it “unquantifiable” weight, finding aggravating factors that outweighed the mental retardation factor, and again sentenced him to death. The Florida Supreme Court upheld this decision in 1993. Hall again pursued post-conviction relief which the Florida Supreme Court denied, finding that the trial court did not err in finding him competent to proceed at the resentencing, but writing “while there is no doubt that [Hall] has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment, the Court finds that [Hall] was competent at the resentencing hearings.” Hall v. State, 742 So.2d 225, 229 (Fla. 1999).

In 2002, the United States Supreme Court decided Atkins, holding that imposition of the death penalty for defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. The Supreme Court, however, left it to the States to determine how to measure mental retardation. Following this decision, Hall filed a motion to vacate his sentence, arguing among other things, that the issue of his mental retardation could not be re-litigated because he had already been found mentally retarded at his mitigation resentencing hearing. The trial court denied this motion, and at the 2-day evidentiary hearing in December 2009, testimony was presented concerning Hall’s behavior and functioning as a child, including his problems with reading, writing and caring for himself. One expert testified that Hall’s IQ using the Wechsler Adult Intelligence Scale Revised was 73, and that a prior result given by another psychologist on the same test was 80. Another expert testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall also sought to introduce a report completed by a then-deceased expert reflecting a score of 69, which the court refused to admit into evidence. The trial court then refused to vacate Hall’s sentence because he could not meet the first prong of the mental retardation standard – an IQ of 70 or below.

Florida statute § 921.137(1), adopted in 2001 prior to the Atkins decision, but after Hall’s mitigation resentencing hearing, defines mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” It defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities.” Two standard deviations of 15 points each from the mean of 100 is an IQ score of 70.

On appeal, Hall argued, among other things, that IQ should be read as a range of scores from 67 to 75 and that Florida’s adoption of a firm cutoff of 70 or below misapplies Atkins and fails to reflect an understanding of IQ testing. He argued that the appropriate standard should also include the standard error measurement (SEM). Relying on its precedent interpreting the statute, the Florida Supreme Court stated that the Florida statute does not use the word “approximate,” nor does it reference the standard error measurement. Based on the plain meaning of the statute, the Court held that the legislature established a bright-line IQ standard of 70 from which it could not deviate. It further found that Atkins did not mandate a specific IQ score or range of scores. Because Hall could not meet the first standard of an IQ of 70 or below, the Court held that the trial court did not err in refusing to admit evidence establishing deficits in Hall’s adaptive behavior that manifested before age 18.

The Court also found the trial court did not err in refusing to admit the report of the deceased psychologist reflecting an IQ of 69 because the underlying data supporting the report were not available and subject to challenge by the State. The Court also rejected Hall’s argument that Florida was precluded from challenging his mental retardation because the trial court had previously found him to be mentally retarded during the previous resentencing hearing on mitigation The Court found that the mitigation hearing occurred prior to the enactment of the Florida statute defining mental retardation and the current definition controlled, and that mental retardation as a mitigating factor and mental retardation under Atkins were discrete legal issues.

Three justices concurred in the per curiam opinion and one justice concurred separately in the result, also finding a strict cutoff IQ of 70 based upon a plain reading of the statute. The concurring justice focused his opinion, however, on the lack of issue preclusion from the mitigation hearing. He stated that even though the trial court at the mitigation hearing found Hall to be mentally retarded, it expressed concerns throughout the hearing that Hall’s experts were exaggerating his inabilities. The justice also noted that Hall’s crime reflected more deliberation and planning than would be expected from a typical defendant with mental retardation.

The majority of the Florida Supreme Court did not address the constitutionality of Florida’s statutory scheme. Two dissenting justices did, however. One justice wrote that the trial court had found that Hall had been mentally retarded his entire life but ironically his execution was being permitted solely by the Legislature’s after-enacted and inflexible definition of mental retardation. He noted that Atkins did not prescribe any bright-line cutoff, although it stated that “mild” mental retardation is typically used to describe someone with an IQ level in the range of 50 to 70. Because of the difficulty in determining which offenders are in fact mentally retarded, the Supreme Court left it to the States to develop “appropriate” ways to enforce the constitutional restriction on execution of sentences. This justice would have found therefore that imposition of a bright-line IQ cutoff was not “appropriate” when there was ample evidence of mental retardation from an early age.

The second dissenting justice wrote that imposing the death sentence on a prisoner who had been found mentally retarded even though he could not establish an IQ of below 70 would produce an absurd result. He went on to recite the record evidence reflecting Hall’s mental retardation, including testimony of an IQ of 60, his organic brain damage, chronic psychosis, speech impediment and learning disability. The justice wrote that Hall is functionally illiterate and has the short-term memory of a first grader. He indicated that the evidence also suggested that Hall was suffering from a mental and emotional disturbance, and to some extent may have been unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The justice also wrote that the record reflected Hall suffered tremendous physical abuse and torture as a child. He was the sixteenth of seventeen children and was tortured by his mother. She tied him in a “croaker” sack, swinging it over a fire and beat him; buried him in the sand up to his neck to strengthen his legs; tied his hands to a rope attached to a ceiling beam and beat him while naked; locked him in a smokehouse for extended periods; and held a gun on him and his siblings while poking them with sticks. The justice went on to write that the Supreme Court articulated in Atkins that those with disabilities in areas of reasoning, judgment and control of their impulses do not act with the same level of moral culpability that characterizes the most serious criminal conduct and in the interest of justice, he would have vacated the sentence.

The Supreme Court should hear this case during its January term and its decision may provide more guidance to the States in implementation of the death penalty for defendants alleging mental retardation. Florida is not unique in its use of a bright-line IQ score of 70, but there is no clear consensus among the States on this issue. Ten states among those that still impose the death penalty, including Virginia under Va. Code § 19.2-264.3:1.1(A), have a statutory bright-line rule and do not apply the standard error measurement. Two additional states, Alabama and Kansas, apply a bright-line rule through court decision. Sixteen states apply the standard error measurement, including ten states without a bright-line cutoff. The application of the standard error measurement to IQ scores in the remaining four states is unclear.

Found in DMHL Volume 32 Issue 4