Mental Retardation and the 8th Amendment

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).  The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders are, in fact, retarded, in order to enforce this constitutional restriction. 

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?

Has the person formulated plans and carried them through, or is his conduct impulsive?

Does his conduct show leadership, or does it show that he is led around by others?

Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?

Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?

Can the person hide facts or lie effectively in his own or others’ interests?

Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision. 

Last week, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism recently, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.

Military Capital Case Unlikely to Result in an Execution (Even in Texas)

On the fringes of Texas criminal law is the notorious case of Major Nidal Hasan, the Army medical officer and American Muslim that killed 13 people during a shooting rampage at Texas’ Fort Hood in 2009.

CNN reports HERE that the Convening Authority (the Army General that forwarded the charges to court-martial) has decided that this will be a capital case. That the death penalty would be on the table was thought by many to be a foregone conclusion. However, unlike Texas capital cases, the likelihood of the death sentence being executed is a longshot in the military system.

As reported by the Court-Martial Appellate blawg CAAFlog,

Under the current military death penalty system, which President Reagan promulgated in January 1984, there have been 52 known capital courts-martial resulting in 16 adjudged death sentences, for a 30.8% death sentencing rate.

Further, a survey of the 10 death sentences that have been adjudged in the military in past 37 years indicates that the reversal rate on appeal of death sentences in the modern military system is 80% (and none of the death sentences were reinstated when resentencing was authorized.)

The most shocking statistic, especially to Texans like me, is that there has not been a military execution under the modern system, ever. And it does not appear that one is imminent for the existing military death row inmates.

The death penalty may be an option for the Hasan jury and it may indeed be the sentence that is handed down, but if history is our guide, Hasan will spend his remaining days at Leavenworth and there will be no execution.

"A Very Strange As-Applied Challenge"

Every year, the Texas Court of Criminal Appeals sees challenges to the constitutionality of the Texas death penalty scheme from death row inmates…and every year, the CCA affirms the practice. John Edward Green, Jr. is trying a novel approach to the subject. He is charged with capital murder and rather than waiting to be convicted and sentenced to death, he is challenging the death penalty statute before trial. As the CCA states:

Mr. Green appears to seek a pretrial ruling from the trial court judge that the State is not entitled to proceed with its capital-murder indictment in this case because it is within the realm of possibility that Mr. Green could be wrongfully convicted and wrongfully sentenced to death if convicted. The question before us is whether Mr. Green is entitled, under Texas law, to a pretrial hearing and a pretrial ruling that would deprive the State of the opportunity to try its capital case and seek the death penalty against Mr. Green.

An intriguing challenge indeed, but not one that the CCA is likely to entertain. The Court goes on:

He is asking Texas trial and appellate courts to entertain a purely hypothetical claim and make an advisory ruling in a case that has not been litigated to any final resolution. Neither trial nor appellate courts may entertain hypothetical claims.

Just as I suspected. Without a conviction and a death sentence, it is rather difficult to challenge the constitutionality of the death penalty statute “as applied.” The simple risk of an innocent person being convicted – as evidenced by past innocent convictions – is not enough, says the CCA.

And we have explicitly held that the risk that some other possibly innocent person might be executed does not violate a third person’s–the defendant’s–due process rights, nor does it violate the Eighth Amendment.

Defendants certainly are getting more creative in confronting Texas death penalty statute, but for now, it stands firm. What form will the next attack take? I’ll be interested to find out.

CCA Upholds Death Sentence for Coble

Billie Wayne Coble was convicted of capital murder in 1990 and sentenced to death.  In 2007, the 5th Circuit Court of Appeals (federal court) granted habeas relief and remanded the case for a new trial on sentencing.  A second jury sentenced Coble to death and now the CCA affirms that sentence.  The opinion is 68 pages long and I'm sure it is chocked full of interesting material, but I don't have time to peruse it now.  For those of you that are interested, you can get the full opinion HERE.  Presiding Judge Keller concurred HERE.

ScotusBlog Features Texas Death Penalty Case

The Supreme Court will hear oral arguments in the Texas death penalty case of Henry "Hank" Skinner on October 13th. Skinner was convicted in 1995 of the triple murder of his girlfriend and her 2 mentally-challenged sons.  ScotusBlog offers a preview HERE.

Hood v. State: "Too Close for Comfort"

There was a good article in this month's ABA Journal about Hood v. State.  The author concludes, and most of us would likely agree, that the Supreme Court missed an opportunity in this one to weigh-in on an important issue in legal ethics.

Conspiracy to Conspire?

Here’s a quick update on some cases that were released last week. Links to the cases are provided.

Unquestionable Incompetency
Gonzales v. State, (Tex. Crim. App.), June 16, 2010 – Held: A trial judge is not required to conduct a competency hearing on his own initiative after hearing evidence that, due to alcohol or drug abuse, the defendant suffered amnesia with respect to events giving rise to the charged offense.

Cruel, but not Unusual
Davis v. State, (Tex. Crim. App.), June 16, 2010 – Held: Death sentence affirmed. Appellant raises 11 points of error challenging the propriety of the Texas Death Penalty scheme, including the allegation that death by lethal injection is unconstitutional as cruel and unusual punishment. Having considered and rejected these exact claims in previous cases, the CCA overruled all points of error and upheld the death sentence. (I guess in Texas, the death penalty, while arguably cruel, is by no means unusual.)

A Threat to Society From Behind Bars
Estrada v. State, (Tex. Crim. App.), June 16, 2010 – Held: For a non-parole eligible capital defendant, the relevant question to ask the jury, who is called upon to determine whether the death penalty should be levied, remains “whether there is a probability that the defendant would constitute a continuing threat to society whether in or out of prison.” The CCA rejected defendant’s argument that the issue should be restricted to future dangerousness in prison only (since he would be ineligible for parole). Side note – the death penalty was reversed and remanded on a separate issue (the State presented false and misleading testimony during the punishment phase).

Conspiracy to Conspire
Barrera v. State, (4th Dist.—San Antonio), June 16, 2010 – Held: “Conspiracy to commit aggravated kidnapping” and “engaging in organized criminal activity though conspiring to commit aggravated kidnapping” are not the same offense for double jeopardy purposes. (Truly a technical distinction with which I do not agree. Good thing there isn’t another offense on the books for “engaging in organized criminal activity by conspiring to engage in organized criminal activity”!)

Death Penalty Set Aside for Roy Gene Smith

BLUF:  "Becuase there was consitutional error in the punishment phase of the applicant's trial by which he was egregiously harmed, we remand this case to the trial court for new punishment."

As the saying goes, "if at first you don't succeed, try, try again."  In his second post-conviction application for writ of habeas corpus, Roy Gene Smith got the relief he was looking for.  His death sentence was set aside due to fundamental error during sentencing.  Smith claimed that he was entitled to relief from his death sentence "because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence that could not be given full effect by the sentencing jury."

The United State Supreme Court has instructed that juries must be "provided a vehicle by which to fully consider and give effect to mitigating evidence of the character and record of the individual offender."  In this case, to determine whether a death sentence was appropriate, the jury was required to answer special issues of:

• Deliberateness
• Future dangerousness, and
• Provocation (if raised by the evidence)

But if the defendant, such as was the case here, presented relevant mitigating evidence that was outside the scope of the special issues, the special issues were a constitutionally inadequate vehicle for the jury to fully consider and give effect to the mitigating evidence.  Furthermore, a "nullification instruction" to the jury is also insufficient to cure the consitutional inadequacy of the special issues.

What are we really talking about here?  The defendant had no real way of telling his story to the jury in a way where they could consider it in his favor in deciding whether to give him the death penalty.  Under the State's sentencing scheme, the jury was unable to adequately consider Smith's evidence of poverty, a crime-ridden neighborhood, and drug addiction. 

In setting aside the death sentence, the Court of Criminal Appeals, in a unanimous opinion, stated:

His evidence of drug addiction, poverty, and crime-ridden neighborhood was at the heart of his mitigation theory.  While we cannot say what credibility or weight the jurors might have given it, since it wne to the heart of the applicant's defensive theory, such mitigating evidence was nonetheless relevant and outside the scope of the special issues.  Therefore, the trial court was required to provide a constiutionally adequate vehicle for the jury to fully consider and give effect to it.  The trial court's failure to do so went to the very basis of the case and vitally affected the applicant's defensive theory at the punishment phase.

See the Court's full opinion HERE.

Alternative Testing May Not be Substituted for IQ Testing in the Mental Retardation Claim of Death Row Inmate

Yokamon Laneal Hearn was sentenced to death for the carjacking and fatal shooting of a Dallas-area stockbroker in 1998.  His initial execution date was set for March 4th, 2004, but it was stayed due to his claim of mental retardation.  In an application for Writ of Habeas Corpus to the Texas Court of Criminal Appeals, Hearn asserts that he is mentally retarded and, pursuant to the Supreme Court holding in Atkins v. Virginia, 536 U.S. 304 (2002), constitutionally exempt from execution.

According to Texas statutes and caselaw, mental retardation is defined by:

(1) significantly subaverage general intellectual functioning; (2) accompanied by related limitation in adaptive functioning; (3) the onset of which occurs prior to the age of 18.

Under the DSM-IV, the first prong (significantly subaverage general intellectual functioning) is defined as an IQ of about 70 or below (with a 5 point margin of error).  In this case, Hearn was administered several IQ tests, both by the State and the defense.  His scores ranged from 74 to 93, and it could not be clearly established that his IQ was about 70 or below.  As such, he searched for an alternative in order to establish subaverage intellectual functioning.

To support his claim of mental retardation, Hearn attempts to use neuropsychological measures to wholly replace full-scale IQ scores in measuring intellectual functioning.  The doctor who performed the testing testified that:

Neuropsychological testing, together with the diagnosis of fetal alcohol syndrome, has demonstrated that the significant limitations I have identified in Mr. Hearn's adaptive behavior are, nevertheless, a product of intellectual deficits...I am satisfied that Mr. Hearn has mental retardation.

The Court of Criminal Appeals, however, is not yet willing to accept new testing measures for mental retardation:

We hold that alternative assessment measures can not be substituted for full-scale IQ scores.

The Court notes in its opinion that its guidelines are judicially created because the Texas Legislature has yet to enact guidelines for enforcing the Supreme Court's Atkins mandate.  So, unless and until, the legislature decides to take up the issue, a full-scale IQ score of about 70 (give or take 5) is what will get your foot in the door.  Anything less, regardless of what other testing may reveal, and the application will be dismissed.

There is no news yet about a future execution date for Hearn.

See CCA opinion HERE.

CCA Affirms Death Penalties for Chanthakoummane and Mays

Sorry, no time to read the 54-page and 48-page opinions right now, but I thought I'd pass the news (and links) on anyway.

In October 2007, Kosoul Chanthakoummane was convicted of murdering Sarah Walker, a Frisco real-estate agent, during the course of a robbery in one of her model homes.  Evidence from the medical examiner revealed blunt force trauma to Walker's head consistent with being struck with a plant stand.  Conviction and death penalty affirmed.  See opinion HERE.

 In May 2008, a jury convicted Randall Wayne Mays of capital murder for the shooting death of Henderson County Deputy Sheriff Tony Ogburn.  Conviction and death penalty affirmed.  See opinion HERE.

What are the Odds of Getting the Death Penalty in Texas?

From the Houston Chronicle:

The death penalty is more likely to be imposed on convicted murderers who kill whites or Hispanics who have college degrees, are married and have no criminal records, according to a new study that examines 504 Harris County capital murder cases that occurred between 1992 and 1999.

Convicted capital murderers also were more likely to get the death penalty in Harris County when defended by court-appointed lawyers, while those who hired attorneys to represent them for the entire case were never sentenced to death, according to a separate brief written by the same professor.

Read full article HERE.