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

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

Fourth Circuit Adopts Narrow Test for Determining Incompetence to Be Executed

Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006)

Sitting en bane, the Fourth Circuit in a seven­ to-six ruling held that the test for determining whether a criminal defendant is competent to be executed is limited to whether the condemned inmate is able to comprehend that he or she is sentenced to death and the reason why...

Found in DMHL Volume 25 Issue 2

Capital Defendant Not Entitled To New Trial When His Attorney Failed to Investigate a Psychological Report Suggesting a Possible Organic Brain Disorder

Walker v. True, 401 F.3d 574 (4th Cir. 2005), petition for reh'g en bane denied, 411 F.3d 467 (4th Cir. 2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the issuance of the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates the defendant's diminished capacity and reduced responsibility for the crime.  The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment constitutional right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase, and the Court indicated in Wiggins v. Smith, 539 U.S. 510 (2003), that this right required the defendant's attorney to diligently explore potentially relevant mental health evidence...

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

US Supreme Court Upholds Death Penalty Where Defendant’s Attorney Made Strategic Decision not to Present Evidence of Bipolar Mood Disorder

Cullen, Acting Warden v. Pinholster, ( Docket No. 09-1088), slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1088.pdf

On April 4, 2011, the United States Supreme Court reversed the en banc decision of the Ninth Circuit Court of Appeals that granted habeas corpus relief to a petitioner convicted on two counts of first degree murder, and reinstated the death penalty recommended by the jury and imposed by the California trial court.

The petitioner alleged that his trial counsel was ineffectual for failing to adequately investigate and present mitigating evidence during the penalty phase of the trial to support his mental health claim that school, medical and legal records, and declarations from family members and another psychiatrist had diagnosed him with a bipolar mood disorder and a seizure disorder. The prosecution presented eight witnesses testifying to the defendant’s threatening and violent behavior. The petitioner’s trial counsel unsuccessfully sought to exclude the aggravating evidence on the grounds that the prosecution had not given the petitioner proper notice under California law. The petitioner therefore only called his mother as a witness in mitigation. The petitioner’s counsel had consulted a psychiatrist who had diagnosed him with antisocial personality disorder, but did not call him as a witness.

The California Supreme Court twice reviewed the defendant’s claim, unanimously denying and dismissing the allegations each time. The United States District Court, however, heard evidence on the petitioner’s claim and granted habeas relief. The Ninth Circuit reviewing the federal district court’s decision en banc, considered the new evidence from the federal district court hearing and upheld the decision on the grounds that the State court had violated clearly established federal law.

Justice Thomas writing for the Court, held that review of habeas cases under 28 U.S.C. § 2254 is limited to the record that was before the state court that adjudicated the claim on the merits. Under the Antiterrorism and Effective Death Penalty Act of 1996, a claim adjudicated on the merits in state court cannot be granted unless 1) the decision was contrary to or involved an unreasonable application of clearly established federal law, or 2) was based on an unreasonable determination of facts in light of the evidence presented in state court. The Supreme Court held that the record under review is therefore limited to the record in existence at that time. The Court determined that the state court record supported the idea that the petitioner’s counsel acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice. The Court noted that the petitioner was also an unsympathetic client who boasted about his criminal history during the guilt phase, leaving trial counsel with limited mitigation strategies. The Court held that there was no reasonable probability that the additional evidence would have changed the verdict. Justices Sotomayor, Ginsburg and Kagan dissented. The other justices joined in the decision of the Court, but wrote multiple concurring opinions.

Found in DMHL Volume 30 Issue 4

Tennessee Supreme Court Rules Experts Can Testify to Reflect Capital Defendant’s Actual Cognitive Abilities in Addition to Consideration of IQ Scores

Coleman v. State, 2011 Tenn. LEXIS 319 (April 11, 2011)

The Tennessee Supreme Court has held that under Tennessee law a defendant can present expert testimony to show that his test scores do not accurately reflect his actual cognitive abilities for purposes of raising a defense of intellectual disability to a sentence of death. The defendant in this case had been convicted of first degree murder and sentenced to death over 30 years ago. Following the decision in Atkins v. Virginia, 536 U.S. 304 (2001), prohibiting imposition of the death penalty for persons with mental retardation, the inmate filed a habeas petition alleging that he suffered from an intellectual disability. The evidence presented at his habeas hearing indicated, among other things, that his mother had an intellectual disability and history of mental illness, that his home was violent, chaotic and overcrowded, that his mother drank, engaged in prostitution and abused him, and that his father had spent most of his life in prison and had little-to-no involvement in his life. The petitioner had failed 1st, 2nd, 3rd and 7th grade and was only “socially promoted” to higher grade levels, and that he was teased by his fellow classmates. He was lonely and stigmatized as a child and intellectually and socially behind his peers. He was viewed as “dull” by police officers with whom he had many encounters as a juvenile.

Even though eight other state statutes limit the assessment of intellectual disability to scores on IQ tests, the Tennessee Supreme Court found that Tennessee law does not limit the evidence to test scores. The Tennessee statute requires a “functional” intelligence quotient of 70 or below, not just a test score of 70 or below. The Court therefore concluded that its General Assembly wanted courts to make fact-intensive and complex decisions with assistance from experts in the field because “functional” IQ cannot limited to raw IQ scores. Trial courts may therefore receive and consider any relevant and admissible evidence as to whether the defendant’s IQ is 70 or below. It noted that under the Flynn effect recognized by mental health experts, IQ test scores tend to increase over time. Clinical judgment is therefore important in diagnosing and assessing intellectual disability in borderline cases, especially since the standard of error measurement is generally 3-5 points. The Court therefore remanded the case to the trial court to consider expert testimony in determining the petitioner’s functional IQ.

Found in DMHL Volume 30 Issue 5

Ninth Circuit Declines to Find Ineffective Assistance of Counsel for Attorney’s Strategic Decision Not to Seek Third Neurological Exam in Capital Case Even Though Exam Recommended

Leavitt v. Arave, 2011 U.S. App. LEXIS 9944 (9th Cir. May 17, 2011)

The Ninth Circuit Court of Appeals reversed the decision of the Idaho federal district court that had granted a new sentencing hearing to a defendant sentenced to death on the grounds of ineffective assistance of counsel in this habeas corpus case. The Court found that the defendant’s attorney made a reasonable strategic decision at the sentencing phase not to seek another neurological examination. The defendant was convicted of a gruesome stabbing murder in which he removed the victim’s sex organs. The expert who examined the defendant diagnosed him with antisocial personality disorder and intermittent explosive disorder, but recommended a follow-up MRI following an inconclusive neurologic examination to rule out an organic disorder. The trial judge who was deciding the sentence demonstrated hostility toward hearing any further psychiatric evidence, stating that such evidence tended to hurt more than help the defendant. The judge intimated that the evidence indicated an inclination on the part of the defendant to commit further violent acts. The Court held that the defendant’s counsel made the strategic decision to try to convince the judge that his client was a “good guy” even though he was aware of the possibility of brain damage as mitigating evidence. He was therefore not ineffective, as the district court had found, for failure to thoroughly investigate the defendant’s mental health condition.

Found in DMHL Volume 30 Issue 6

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

Fifth Circuit Holds Capital Defendant Not Entitled to All Expert Funding Requested; Was Competent-to-Be-Executed; Edwards Decision on State’s Right to Deny Self-Representation Not Retroactive

Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013.)

The Fifth Circuit Court of Appeals upheld the death penalty on August 21, 2013 for a mentally ill inmate alleging incompetence-to-be-executed, finding the district court’s decision to deny funding for additional expert assistance and testing was not an abuse of discretion. The Fifth Circuit also held that the district court’s decision weighed all of the evidence, including the inmate’s secretly recorded conversations with family, and was therefore not clearly erroneous. The Court further held that the United States Supreme Court case of Indiana v. Edwards, 554 U.S. 164 (2008), holding that the State may prohibit a mentally ill inmate found competent to stand trial from representing himself at trial had no retroactive application in federal habeas corpus proceedings.

In 1992, Scott Louis Panetti shot his estranged wife’s parents at close range, killing them and spraying his wife and three-year-old daughter with their blood. Panetti demanded to represent himself at trial although he had a long history of schizophrenia, and in spite of the trial judge’s pleas to accept counsel. His only defense was insanity. His appointed standby counsel described his self-representation as bizarre and his trial a farce and mockery of self-representation. The jury convicted him of capital murder and sentenced him to death. The conviction and sentence were upheld on direct appeal and collateral review.

In October 2003, the trial court set an execution date and Panetti filed a motion alleging for the first time that he was incompetent-to-be-executed. The trial court rejected the motion without a hearing. Texas law required Panetti to make a “substantial showing of incompetency” before entitling him to court-appointed experts. On federal habeas review, Panetti submitted additional evidence of mental illness and the district court stayed the execution to permit the state trial court to consider the renewed motion in light of the supplemental evidence. In February 2004, the state court appointed a psychiatrist and a clinical psychologist to examine Panetti, implicitly finding he had made a substantial showing of incompetency. These experts filed a joint report finding Panetti competent-to-be-executed. Without holding a hearing or ruling on Panetti’s motion to appoint him his own experts, the trial court found Panetti competent-to-be-executed.

Panetti then returned to federal court arguing that Texas’ failure to appoint him mental health experts and provide a hearing violated his due process rights under Ford v. Wainright, 477 U.S. 399 (1986). Ford held that denying a prisoner the right to present and rebut evidence in a competency-to-be-executed proceeding violated due process. The district court agreed and also found that such a denial by the state court was not entitled to deference under the Antiterrorism and Effective Death Penalty Act. Panetti’s experts then testified that he understood the reason for his execution – the murder of his in-laws, but his delusions caused him to believe Texas was in league with the forces of evil and sought to prevent him from preaching the Gospel. The State’s experts agreed Panetti was mentally ill, but his behavior was attributed to malingering. After hearing the evidence, the district court found that Panetti’s delusional belief system prevented him from rationally appreciating the connection between his crimes and his execution. But the district court found Panetti competent to be executed because the Fifth Circuit standard at that time was that the prisoner only needed to know the fact of his impending execution and the reason for it. The Fifth Circuit affirmed the district court decision and Panetti petitioned the United States Supreme Court for review.

In 2007, the United States Supreme Court granted Panetti’s petition for certiorari and reversed, finding the Fifth Circuit’s standard for competency-to-be-executed too restrictive. Declining, to set out a standard, the Supreme Court remanded the case requiring the district court to determine in a more definitive manner the nature and severity of Panetti’s mental health problems and whether his delusions impaired his concept of reality to the extent that he did not have a rational understanding of the reason for the execution. Panetti v. Quarterman, 551 U.S. 930 (2007).

On remand, the defense hired three experts, a clinical neurologist, a forensic psychiatrist and a forensic psychologist who had examined Panetti for the original hearing in 2004. These experts evaluated Panetti for a combined total of over 15 hours and administered a battery of tests designed to detect the likelihood of malingering. The district court authorized $9000 to pay the experts, but rejected his requests for additional funding. These experts all diagnosed Panetti with schizophrenia, although the psychologist who had examined him previously found Panetti had markedly improved since his 2004 examination. The other two experts testified that Panetti suffered from a genuine delusion that he was on death row to preach the Gospel and save souls. The defense also called two death row inmates who testified that Panetti preached incessantly in his cell and in the day room even though it irritated other inmates.

Texas presented testimony from a forensic psychologist and an expert psychiatrist and neurologist. Both testified that Panetti was partially fabricating his symptoms to thwart attempts to administer tests to detect malingering. The psychiatrist also doubted whether he was suffering from any form of mental illness, and was emphatic that Panetti had a rational understanding between his crime and execution because of his repeated assertions that he was unjustly convicted despite his insanity and that God had forgiven his guilt. Texas also called three correctional guards as witnesses who testified Panetti was never a problem; was generally wellbehaved, but would often have some religious statement to make; that the preaching was well thought out and the same as you would hear at church; and that some guards would assign Panetti to a cell to get revenge on an inmate because they knew his constant preaching would irritate him.

Texas also presented secret recordings of his conversations with his family. The tapes indicated that while Panetti did quote scripture and make religious comments, he did not rant or preach, and the conversations involved extended discussion about the trial judge’s corruptness and ineptitude. The district court’s summary of the tapes reflects that Panetti at no time became irrational, tangential or pressured in his speech. His comments about his legal proceedings reflected a fairly sophisticated understanding of his circumstances.

After hearing all of this evidence, the district court found that Panetti was seriously mentally ill and suffered from paranoid delusions of some type. The court also determined that Panetti was exaggerating some of his symptoms to avoid execution, stating that Panetti demonstrated a fairly sophisticated understanding of his case and that his refusal to cooperate with State experts contrasted with his treatment of his own experts. The district court then determined that Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two.

On appeal, the Fifth Circuit first determined that the district court did not abuse its discretion in refusing to provide additional funding to permit his experts to review the secret recordings and to obtain a PET scan to detect malingering. The Fifth Circuit found that the district court authorized $9000 to fund an expert team to assist Panetti in presenting his competency evidence and they were able to review a large number of the secret recordings. The request for a PET scan also violated the court’s scheduling order. Although the Supreme Court’s decisions in Ford and Panetti established a constitutional right to expert assistance in Eighth Amendment competency-to-be-executed hearings, the Court held the cases merely entitle the inmate to an opportunity to present his own expert testimony before a neutral decision maker. The decisions do not require the court to provide all of the expert assistance the inmate requests.

The Fifth Circuit also agreed that the Supreme Court’s remand required a “rational understanding” test for Eighth Amendment competency-to-be-executed proceedings, but disagreed with the district court determination, finding that the test is not the same as the Dusky standard applied in competency to stand trial situations. The Eighth Amendment standard arises out of the retributive value of executing a person who has no comprehension of why he is being executed and the abhorrence of civilized societies to kill someone who has no capacity to come to grips with his own conscience or deity. Nonetheless, the Fifth Circuit agreed that the district court applied the correct rational understanding analysis in finding Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two, based especially upon Panetti’s rationally articulated position that his punishment was unjustified because of his insanity at the time of his offense. The Fifth Circuit then found that the expert testimony was conflicting and that the district court’s finding of competency was therefore not clearly erroneous. The Court also found that the secret recordings generally corroborated the testimony of the State’s experts and that Panetti actually understood the reason for his punishment.

Finally, Panetti raised for the first time before the Fifth Circuit the issue that the State should not have permitted him to represent himself at trial. At the time of his trial, Panetti had been found competent to stand trial and then insisted on exercising his right of selfrepresentation. The United States Supreme Court cases of Faretta v. California, 422 U.S. 806 (1975), holding that defendants have a Sixth Amendment right to represent themselves, and Godinez v. Moran, 509 U.S. 389 (1993), suggesting that this right was absolute even if invoked by a severely mentally ill defendant, had been decided at the time of Panetti’s trial. The Supreme Court later held in Indiana v. Edwards, 554 U.S. 164 (2008), after Panetti’s trial, that the right of self-representation was not absolute and the State could insist that an attorney be appointed to represent a mentally ill defendant even though he had been found competent to stand trial.

The Fifth Circuit found, however, that this decision had no retroactive application to habeas petitions. In order to apply a new rule of constitutional law retroactively to federal habeas proceedings, the new rule must be a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceedings. The Court found that the right of the State to impose representation on a mentally ill defendant did not effect a sea change in criminal procedure. The Edwards decision also only applies in the exceptional situation where the defendant is competent to stand trial but so severely mentally ill that his self-representation threatens an improper conviction or sentence. Furthermore, Edwards is only permissive, allowing the state to insist on counsel but not requiring that it do so. The Court held that its application was therefore not retroactive.

Found in DMHL Volume 32 Issue 4

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

Supreme Court Reinstates Death Penalty Holding Prosecution May Introduce Expert Psychological Opinion Rebutting Voluntary Intoxication Defense

Kansas v. Cheever, _ U.S._ , 134 S.Ct. 596, 82 USLW 4032 (No. 12-609 Dec. 11, 2013) available at http://www.supremecourt.gov/opinions/13pdf/12-609_g314.pdf

In a unanimous opinion written by Justice Sonia Sotomayor, the United States Supreme Court held on December 11, 2013 that when a defense expert testifies that the defendant lacks the mens rea, or requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. In so doing, the Supreme Court reversed the decision of the Kansas Supreme Court that introduction of expert testimony from a court-ordered examination to which the defendant had not agreed violated his Fifth Amendment right against self-incrimination.

In January 2005, Scott Cheever shot and killed a county sheriff and shot at other law enforcement officers who were attempting to arrest him on an outstanding warrant. Several hours prior to the shooting, Cheever and his friends had cooked and smoked methamphetamine. One of Cheever’s friends warned him that officers were on the way to arrest him. He attempted to flee in his car but it had a flat tire. He returned inside and hid with a friend in an upstairs bedroom. Hearing footsteps on the stairs, Cheever stepped out and shot the sheriff climbing the stairs. He returned to the bedroom briefly, but went back to the stairs and shot the sheriff again. He also fired at other officers and members of the SWAT team that had arrived.

The State charged Cheever with capital murder, but shortly thereafter, the Kansas Supreme Court found in an unrelated case that the State’s death penalty scheme was unconstitutional. Because the death penalty was no longer available, the state prosecutors dismissed the charges against Cheever and permitted federal prosecutors to indict him under the Federal Death Penalty Act.

Cheever filed a notice in the federal case that he intended to introduce evidence that his intoxication with methamphetamine prevented him from forming the specific intent to commit the crime. The federal district court ordered Cheever to submit to a psychiatric evaluation to assess how methamphetamine had affected him when he committed the crime. The federal court, however, suspended the proceedings during jury selection when defense counsel became unable to proceed, and then dismissed the case without prejudice. In the interim, the United States Supreme Court reversed the Kansas Supreme Court in the unrelated case, holding that the Kansas death penalty scheme was constitutional.

Kansas then refiled the state proceedings against Cheever at which he presented a voluntary intoxication defense, arguing that his methamphetamine use had made him incapable of premeditation. He presented evidence at trial from a psychiatric pharmacologist that long-term methamphetamine use had damaged his brain. The expert testified that Cheever was acutely intoxicated at the time of the shooting. The State then sought to present rebuttal testimony from the forensic psychiatrist who had examined Cheever under the federal court order. Cheever objected on the grounds that he had not voluntarily agreed to the examination and the expert’s testimony would therefore violate his Fifth Amendment right against self-incrimination. The trial court admitted the testimony and the expert testified that Cheever shot the sheriff because of his antisocial personality and not because of his methamphetamine use. The jury convicted Cheever of murder and attempted murder, and recommended the death penalty, which the court imposed.

On appeal, the Kansas Supreme Court agreed that use of the rebuttal testimony from the expert in the federal proceeding violated Cheever’s Fifth Amendment rights because he had neither initiated the examination nor put his mental capacity in issue at trial. In so deciding, the Kansas Supreme Court relied upon the United Supreme Court decision in Estelle v. Smith, 451 U.S. 454 (1981), holding that a court-ordered psychiatric examination violated the defendant’s Fifth Amendment rights when the defendant had not initiated the examination or put his mental capacity in dispute at trial. The Court acknowledged the later-decided case of Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that where a defense expert who has examined the defendant testifies that the defendant lacks the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. But the Kansas Court found Buchanan did not apply because under Kansas law voluntary intoxication is not a “mental disease or defect.” The State of Kansas then petitioned the United States Supreme Court for a writ of certiorari, which the Court granted.

The Supreme Court reversed distinguishing this case from Estelle, pointing out that the judge in Estelle had ordered a psychiatric examination to determine the defendant’s competency to stand trial. The prosecution then used the defendant’s statements from the examination during the sentencing phase of trial to demonstrate the defendant’s future dangerousness. Instead, the Supreme Court relied on Buchanan, finding that “mental status” is a much broader term than “mental disease or defect.” It held that mental status defenses include those based on expert opinion as to the defendant’s mens rea, that is, his mental capacity to commit the crime or ability to premeditate. The Court reasoned that to allow a defendant to present one-sided and potentially inaccurate evidence to the jury would undermine the adversarial process. On the other hand, permitting the prosecution to present rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not permit him to refuse to answer related questions on cross-examination.

In this case, Cheever presented expert evidence of his voluntary intoxication to support his defense that he lacked the requisite intent to commit murder. The Supreme Court held that the prosecution may therefore offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. The Court then reversed the Kansas Supreme Court decision, reinstated the death penalty and remanded the case for further proceedings.

Found in DMHL Volume 33 Issue 1

Intellectual disability determination and the death penalty

Request to submit “newly discovered evidence” to establish intellectual disability and ineligibility for death penalty not barred by 28 U.S.C § 2255(e) even after original appeal denied

Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) (rehearing en banc)

Bruce Webster was convicted of kidnapping resulting in death and related offenses and was sentenced to death. These convictions and his death sentence were affirmed on direct appeal in Texas, and his motions for habeas relief, which were heard in Indiana where he resides on death row, were denied. Webster sought a rehearing en banc to address the question of whether he could file for a writ of habeas corpus to present new evidence demonstrating that he was categorically and constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002) and Hall v. Florida, 134 S.Ct. 1986 (2014). Federal prisoners who claim to be convicted or sentenced in violation of the Constitution must present a claim for relief by a motion under 28 U.S.C. § 2255. Subsection (e) generally prevents a prisoner from making an application for a writ of habeas corpus. There is, however, a savings clause in § 2255(e) that allows a prisoner to apply for a writ of habeas corpus where “it appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” A panel of the Seventh Circuit originally concluded that a claim of new evidence can never satisfy the standard in § 2255(e).

Upon rehearing en banc, the Seventh Circuit determined that “the savings clause [in § 2255(e)] permits Webster to resort to a [habeas] petition.” Of essential importance to the Court were the facts that “the Supreme Court has now established that the Constitution itself forbids the execution of certain people,” and that a “core purpose of habeas corpus is to prevent a custodian from inflicting an unconstitutional sentence.” The Court held that a categorical bar against the use of § 2255(e)’s savings clause in this way could lead to “the intolerable result of condoning an execution that violates the Eighth Amendment.” Conceding that this rule could not be applied to all newly discovered evidence due to finality considerations, the Court held that habeas relief was available to Webster because the new evidence proffered existed before the time of the trial and there was evidence “indicating that [it] was not available during the initial trial as a result of missteps by the Social Security Administration, not Webster’s counsel.”

Found in DMHL Volume 34 Issue 2

Intellectual disability determination and the death penalty

Habeas corpus relief granted to criminal defendant sentenced to death in state court system on grounds that he is ineligible for death penalty due to intellectual disability

Pruitt v. Neal, 788 F.3d 248 (7th Cir. 2015)

Tommy Pruitt was charged with murder, attempted murder, and related offenses in Indiana state court, and was convicted and sentenced to death. After exhausting his state post-conviction remedies, Pruitt sought federal habeas relief claiming that he was intellectually disabled and thus categorically ineligible for the death penalty. He also included several claims alleging ineffective assistance of his trial counsel, including one based on their failure to investigate and present evidence at sentencing that Pruitt suffered from schizophrenia. 

The Seventh Circuit held that the Indiana Supreme Court’s “determination that Pruitt failed to demonstrate significantly subaverage intellectual functioning based on inconsistent test scores” was objectively unreasonable and contrary to the clear and convincing weight of evidence. The Indiana Supreme Court erred by relying on “inaccurate assumptions and select pieces of evidence” in its factual determination, weighing circumstantial evidence—such as Pruitt’s ability to fill out applications for employment and his other work and school history—as more indicative of his true intellectual ability than his many subaverage IQ test scores. The Court also noted that the state court record contained “unrebutted evidence that Pruitt satisfie[d] the adaptive behavior prong of intellectual disability.” The Seventh Circuit also held that trial counsel’s failure to investigate and present evidence of Pruitt’s paranoid schizophrenia was “sufficiently egregious and prejudicial” to establish ineffective assistance. Ultimately, the Seventh Circuit reversed the judgment of the district court and remanded the case for new penalty-phase proceedings.

Found in DMHL Volume 34 Issue 2

Death Penalty

Right of defendant convicted and sentenced to death prior to Atkins decision to seek review and determination of whether defendant has intellectual disability and is therefore precluded from death penalty under the Eighth Amendment

Brumfield v. Cain, 135 S.Ct. 2269 (2015)

Petitioner Kevan Brumfield was convicted of murder in Louisiana and sentenced to death before the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002). A subsequent Louisiana state Supreme Court case mandated an evidentiary hearing whenever a defendant provides facts sufficient to raise a reasonable ground to believe that he has an intellectual disability. See State v. Williams, 831 So.2d 835 (La. 2002). Brumfield amended his state post-conviction petition to include an Atkins claim and sought an evidentiary hearing. The amended petition referenced evidence introduced at sentencing that Brumfield had an IQ of 75, had a fourth-grade reading level, had been prescribed medications and treated in psychiatric hospitals as a child, had been identified as having a learning disability, and had been placed in special education classes. The trial court dismissed his post-conviction petition without holding an evidentiary hearing or granting funds to conduct additional investigation. Brumfield sought federal habeas relief.

The district court granted relief under 28 U.S.C. §§ 2254(d)(1) and (2), but the Fifth Circuit reversed, holding that the state court decision was not “contrary to” and did not involve “an unreasonable application of clearly established federal law,” nor was it “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Supreme Court vacated and remanded, holding as unreasonable under § 2254(d)(2) the state trial court’s determinations that 1) Brumfield’s IQ score was inconsistent with a diagnosis of intellectual disability and 2) he presented no evidence of adaptive impairment. Although the record contained some contrary evidence, that evidence did not foreclose all reasonable doubt as to Brumfield’s intellectual disability. The facts raised at sentencing were sufficient to raise doubt concerning Brumfield’s impairments. The Supreme Court held that Brumfield had “cleared [§ 2254(d)’s] procedural hurdles” and so was entitled to an evidentiary hearing to show his intellectual disability.

Found in DMHL Volume 34 Issue 2

Intellectual Disability (ID) and the death penalty

Brumfield v. Cain, 2015 WL 9213235 (5th Cir. 2015)

Defendant Brumfield found intellectually disabled and therefore ineligible for the death penalty, under the standards set out by the Supreme Court in Atkins and Brumfield

Background: Kevan Brumfield was convicted of first-degree murder in 1995 and sentenced to death. After exhausting his state court remedies, Brumfield filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Louisiana, arguing that he was intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). The District Court held that the state courts had erred by failing to hold an Atkins hearing and granted Brumfield a writ of habeas corpus after holding such a hearing. On appeal, the Fifth Circuit reversed without reaching the merits of the Atkins claim, holding that Brumfield had not satisfied the procedural requirements for habeas relief. The Supreme Court of the United States reversed, finding that he did meet the requirements, and remanded the case to the Fifth Circuit to ascertain whether the District Court’s determination that Brumfield was intellectually disabled was clear error.

Holdings: On remand, the Fifth Circuit held that the District Court’s determination was not clearly erroneous because it was “plausible in light of the record as a whole.” Although the State argued that prior assessments placed Brumfield consistently in the 70- 85 range,3 the Fifth Circuit noted that “no actual IQ scores…were reported anywhere in Brumfield’s records” and that tests provided only “descriptions of the ranges into which Brumfield’s scores fell”, and every expert witness before the district court “agreed that Brumfield’s scores satisfied the first prong of the intellectual disability test.” Additionally, the District Court found that Brumfield had significant conceptual limitations and “carefully explained its reasoning, identified the specific evidence it relied upon, and specifically credited the testimony of certain experts.” Where the court’s reasoning was so careful and its conclusions not implausible—even if it rejected the State’s equally coherent and plausible story—the Fifth Circuit refused to disturb or second-guess its findings. Although Brumfield was not formally diagnosed as intellectually disabled until after age 18, the district court found that the evidence produced showed this failure to diagnose was related to incentives in the school system not to identify students as intellectually disabled. Again, the district court pointed to specific evidence—Brumfield’s poor academic record, below grade reading comprehension, and etiological factors (e.g., low birth weight, family history of intellectual disability). The Fifth Circuit noted that these factors “certainly bolster[ed] the court’s conclusion that Brumfield’s intellectual disability manifested” before 18.

Found in Found in DMHL Volume 34, Issue 4

Ineffective assistance of counsel

Hardwick v. Sec'y, Fla. Dep't of Corr., 803 F.3d 541 (11th Cir. 2015)

Failure of defense counsel to present mitigation evidence regarding defendant’s history of mental illness in sentencing phase of murder trial was prejudicial

Background: After affirmance of his state murder conviction and death sentence and denial of state post-conviction relief, John Gary Hardwick, Jr. petitioned for federal habeas relief. Hardwick based his claim of ineffective assistance on his counsel’s failure to conduct a professionally reasonable mitigation investigation regarding his mental health during the penalty phase, and that it was reasonably probable that he would not have been sentenced to death but for this deficient performance. After an initial denial followed by remand and an evidentiary hearing, the United States District Court for the Middle District of Florida determined that Hardwick’s counsel had been ineffective at the penalty phase of his trial and set aside his capital sentence.

Holdings: The Eleventh Circuit Court of Appeals affirmed, holding that Hardwick was entitled to a writ of habeas corpus setting aside his capital sentence and requiring the imposition of a life sentence, unless the State provided him with a new penalty phase. Although trial counsel’s decision not to present mitigating evidence at the penalty phase of a capital trial is not per se ineffective assistance, the strategic choice not to present mitigating evidence must be objectively reasonable. Here, as in Saranchak, there were several “red flags” that should have signaled to counsel the need to conduct a life-history investigation, to interview family members, and provide the information to a mental health expert.

Found in Found in DMHL Volume 34, Issue 4

Mitigation Evidence and Ineffective Assistance of Counsel

Salazar v. State, No. SC13-1233, 2016 WL 636103 (Fla. Feb. 18, 2016)

In a first degree murder case in which the defendant received a death sentence, the failure of defense counsel to investigate and present mitigation, including evidence regarding the defendant’s traumatic childhood and low intellectual functioning, sufficiently “undermined” “confidence in the outcome” so as to warrant remand for new hearing.

Background: After a jury trial, Neil Salazar was convicted of first-degree murder and related crimes and sentenced to death. The Supreme Court of Florida affirmed both the conviction and the death sentence. Salazar appealed and petitioned for a writ of habeas corpus. The basis of the appeal was that Salazar’s trial counsel was deficient and had failed to investigate his background and intellectual functioning and present mitigation evidence at the penalty phase.

Holdings: The Supreme Court of Florida denied Salazar’s habeas petition, but they remanded the case for a new penalty phase, holding that Salazar’s trial counsel had provided ineffective assistance at the penalty phase. The court held that Salazar had demonstrated both deficiency and prejudice in regard to his trial counsel’s performance at the penalty phase. Specifically, the court found that there was a reasonable probability that the result would have been different if trial counsel had presented evidence regarding Salazar’s low IQ, adaptive deficits, head injury, and family history.

Notable Points:

Because the known evidence would lead a reasonable attorney to investigate further, counsel’s failure to do so was objectively unreasonable: Salazar’s trial counsel was deficient—an element of the ineffective assistance claim—in failing at the penalty phase to investigate Salazar’s background and intellectual functioning. Specifically, a psychologist’s report from the defendant’s preliminary evaluation had directly informed trial counsel of defendant’s mental health problems and possible brain damage. Given this information, it was objectively unreasonable for Salazar’s trial counsel not to investigate further.

Counsel’s failure resulted in prejudice at the penalty phase: The Supreme Court of Florida also held that Salazar had been prejudiced by his trial counsel’s failures in the penalty phase. Considering the additional mitigation evidence relating to Salazar’s intellectual functioning, low IQ scores, adaptive deficits, childhood head injuries, and family history, there was a reasonable probability that hearing this additional evidence at the penalty phase would have led to a result other than the imposition of a death sentence.

Found in Found in DMHL Volume 35, Issue 1