Intellectual Disability

Virginia Governor Commutes Death Sentence of Mentally Incompetent Death-Row Prisoner

Virginia Governor Terry McAuliffe commuted the sentence of mentally incompetent death-row prisoner William Joseph Burns (pictured) on December 29, 2017, after multiple mental-health experts said Burns was unlikely to regain sufficient competency for his death sentence to ever be carried out. Burns, whose sentence was converted to life in prison without the possibility of parole, became the fifth death-row prisoner to have been granted clemency in the United States in 2017. Burns was convicted and sentenced to death for the 1998 rape and murder of his mother-in-law. Showing signs of severe mental illness, Burns was found incompetent to stand trial in 1999, delaying his trial for a year. At trial, his lawyers presented mitigating evidence that Burns had mental retardation (now known as intellectual disability), but the jury returned a death verdict. The Virginia Supreme Court upheld the conviction and sentence in 2001, but in 2002, the U.S. Supreme Court declared that the use of the death penalty against people with mental retardation violated the Eighth Amendment. In 2005, the Virginia Supreme Court ruled that Burns had presented sufficient evidence of intellectual disability to warrant a trial on that issue. However, Burns exhibited continuing signs of severe mental illness and a court-appointed mental-health expert determined that he was actively psychotic, spawning more than a decade of litigation over his competency to stand trial. In issuing the commutation, McAuliffe wrote that the “continued pursuit of the execution of Mr. Burns, both as a matter of constitutional principle and legal practicality, cannot be justified.” McAuliffe noted that Virginia has already spent more than $350,000 in "treating, transferring, monitoring, and litigating whether Mr. Burns has the mental competence to conduct a trial on whether he has the intellectual capacity to be executed" and mental-health experts "have confirmed that Mr. Burns is not likely to be restored to competence. ... As of now," the Governor said, "there is no lawful way to impose the death sentence on Mr. Burns, and there is no clear path for that ever being possible." The commutation, McAuliffe said, "brings finality to these legal proceedings; it assures the victim’s family that Mr. Burns will never again enjoy freedom, but without the torment of post-trial litigation; and it allows the Commonwealth to devote its resources towards other cases. In my view, this is the only just and reasonable course." Virginia governors have commuted ten death sentences since the Commonwealth reinstated its death penalty in October 1975. In 2000, following DNA testing that proved his innocence, Governor Jim Gillmore granted an absolute pardon to Earl Washington. Most recently, Governor McAuliffe commuted the death sentence of Ivan Teleguz five days before his scheduled April 25, 2017 execution, noting that the prosecution's use of false evidence to influence the jury's sentencing determination resulted in a death verdict that “was terribly flawed and unfair.”

Judge Finds New Jersey Federal Capital Defendant Intellectually Disabled, Bars Death Penalty

A New Jersey U.S. district court judge has barred federal prosecutors from seeking the death penalty against Farad Roland, finding that Roland is intellectually disabled and therefore ineligible for capital punishment. After an eighteen-day evidentiary hearing featuring sixteen witnesses, Judge Esther Salas ruled on December 18 that Roland—accused of five killings in connection with a drug-trafficking gang—had "abundantly satisfied his burden of proving his intellectual disability by a preponderance of the evidence." In 2002 in Atkins v. Virginia, the U.S. Supreme Court held that subjecting individuals with intellectual disability to the death penalty violated the Eighth Amendment's prohibition against cruel and unusual punishments. Judge Salas's ruling came almost exactly ten years after New Jersey abolished the death penalty, and ended efforts to obtain what would have been the first death sentence imposed in the state since abolition. The federal government may seek the death penalty in federal court under federal law, irrespective of whether the state in which the federal trial takes place itself authorizes capital punishment. The only other federal death-penalty case that has been tried in New Jersey ended with a life sentence in May 2007. Roland's was the third federal capital case in the last year in which a defendant was spared the death penalty because of intellectual disability. In June 2017, federal prosecutors announced they would not appeal a New York federal district court's determination that former death-row prisoner Ronell Wilson is intellectually disabled. Wilson had faced a capital resentencing hearing after his 2007 federal death sentence was overturned as a result of prosecutorial misconduct. In January 2017, President Barack Obama commuted the death sentence of Abelardo Arboleda Ortiz, in part because of evidence that Ortiz is intellectually disabled. Judge Salas found that Roland had satisfied all three prongs of the test to determine Intellectual Disability: "(1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70—adjusted for the standard error of measurement); (2) adaptive deficits (the inability to learn basic skills and adjust behavior to changing circumstances); and (3) the onset of these deficits while still a minor." Accordingly, she concluded, "Roland is ineligible for the death penalty under the Eighth Amendment and the FDPA [Federal Death Penalty Act]." In comments to NJ Advance Media, Roland's attorney, Richard Jasper, called Judge Salas's decision "a thorough, detailed, thoughtful 135 page opinion that speaks for itself."

Texas Prosecutors Agree Bobby Moore is Intellectually Disabled, Should Be Resentenced to Life

In a Houston death-penalty case that reached the U.S. Supreme Court and resulted in a decision overturning the Texas courts' standard for determining Intellectual Disability in capital cases, prosecutors have conceded that Bobby James Moore (pictured) is himself intellectually disabled and ineligible for the death penalty. In a brief filed November 1 in the Texas Court of Criminal Appeals, Harris County prosecutors agreed with Moore's lawyers and mental health advocacy organizations that Moore meets the medically established criteria for intellectual disability and cannot be executed. Moore had been convicted and sentenced to death for his involvement in the armed robbery of a Houston supermarket in 1980 in which a store employee was shot to death. Subsequently, the U.S. Supreme Court ruled in 2002 in the case of Atkins v. Virginia that the execution of individuals with mental retardation—now known as Intellectual Disability—violated the Eighth Amendment's proscription against cruel and unusual punishments. In 2014, a Texas trial court determined that Moore qualified as intellectually disabled under the clinical standards accepted in the medical community. However, the Texas Court of Criminal Appeals reversed that ruling, saying that to be considered intellectually disabled in Texas a death-row prisoner must meet a more stringent standard for proving impaired adaptive functioning, consisting of a set of lay stereotypes known as the “Briseño factors” (named after the Texas court decision that announced them). The U.S. Supreme Court rejected the use of the Briseño factors, calling them an unscientific "invention" of the Texas courts that was "untied to any acknowledged source" and that lacked support from "any authority, medical or judicial." The Court sent the case back to the Texas Court of Criminal Appeals in March 2017 with instructions that any judicial determination of whether a death-sentenced prisoner is intellectually disabled must be “informed by the medical community’s diagnostic framework." In their brief to the Texas appeals court, filed after the remand, Moore's lawyers wrote that "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution" and they asked that the state court "reform his death sentence to a term of life imprisonment." Harris County prosecutors agreed. District Attorney Kim Ogg said in a statement released to the media, "I'm doing what I believe the law requires.... The nation's highest court has ruled that intellectually disabled persons can't be subject to the death penalty." The Texas Court of Criminal Appeals still must rule on the case before Moore can be taken off death row.

Federal Court Rules to Protect the Interest of Incompetent North Carolina Death-Row Exoneree

A federal judge has voided a contract that had provided Orlando-based attorney Patrick Megaro hundreds of thousands of dollars of compensation at the expense of Henry McCollum (pictured left, with his brother Leon Brown), an intellectually disabled former death-row prisoner who was exonerated in 2014 after DNA testing by the North Carolina Innocence Inquiry Commission showed that he had not committed the brutal rape and murder of a young girl for which he had been wrongly convicted and condemned. McCollum and Brown—who both have IQs measured in the 50s and 60s—had been convicted in 1983 based on coerced false confessions that the brothers (aged 19 and 15 at the time) provided to interrogating officers. At the time of his exoneration, McCollum had spent 30 years on death row and was the state's longest serving death-row prisoner. Megaro became McCollum's and Brown's lawyer in March 2015, after two women who claimed to be advocating on behalf of the brothers persuaded them to fire the lawyers who had been representing them in their efforts to obtain compensation and to hire Megaro's firm. McCollum was awarded $750,000 in compensation from North Carolina in October 2015, at least half of which appears to have been paid to Megaro. Within seven months, McCollum was out of money and taking out high-interest loans that had been arranged and approved by Megaro. Megaro also negotiated a proposed settlement of the brothers' wrongful prosecution lawsuit in which he was to receive $400,000 of a $1 million payment to the brothers. Defense lawyer Ken Rose, who represented McCollum for 20 years and helped win McCollum's release from prison, provided testimony that two mental experts had previously found that McCollum was "not competent to provide a confession" and that McCollum remained "vulnerable to manipulation and control by others." After hearing additional evidence from experts and other witnesses, U.S. District Court Judge Terrence Boyle determined that, as a result of his intellectual disability, McCollum lacked knowledge and understanding of financial issues, "remains easily manipulated," and was "unable to make important decisions about his person and property." As a result, the court voided the contract between McCollum and Megano, including the fee arrangements. Raymond Tarlton, whom Judge Boyle appointed to serve as McCollum's guardian ad litem, said the decision "made clear that the same disabilities that led to Henry McCollum giving a false confession in 1983 made him vulnerable to be manipulated and controlled after release.” The court also has appointed a guardian to protect the interests of Leon Brown. Judge Boyle ordered further briefing pending receipt of the guardian's report to assist in determining the status of the contract between Megaro and Brown.

Supreme Court Directs Florida to Reconsider Intellectual Disability Decision in Death Penalty Case

The United States Supreme Court has ordered the Florida Supreme Court to reconsider a decision that had denied a death-row prisoner's claim that he was ineligible for the death penalty because he has Intellectual Disability. On October 16, the Court reversed and remanded the case of Tavares Wright (pictured, left), directing the Florida courts to reconsider his intellectual-disability claim in light of the constitutional standard the Court set forth in its March 2017 decision in Moore v. Texas. The decision in Wright v. Florida was the sixth time the Court has vacated a state or federal court's rejection of an intellectual-disability claim and remanded the case for reconsideration under Moore—and the third time it has done so in less than a month. Earlier in October, the Court vacated two decisions by the U.S. Court of Appeals for the 5th Circuit and remanded the cases of Texas death-row prisoners Obie Weathers and Steven Long for reconsideration in light of Moore, and on October 18, the Texas Court of Criminal Appeals cited Moore  as grounds for reconsidering its own prior rejection of intellectual-disability claims raised by Carnell Petetan, Jr. (pictured, right). Moore was expected to have broad impact in Texas, where—the Court unanimously agreed—the state courts had unconstitutionally adopted an unscientific set of lay stereotypes to determine whether a defendant facing the death penalty had impairments in functioning that qualified him or her as intellectually disabled. Five members of the Court also stressed in the majority opinion in Moore that the state had improperly rejected claims of intellectual disability by emphasizing a capital defendant's perceived adaptive strengths, instead of "focus[ing] the adaptive-functioning inquiry on adaptive deficits," as required by accepted medical practice. Lawyers in Harris County (Houston)—which has executed more prisoners than any other county—anticipate that more than a dozen prisoners sentenced to death in that county may be entitled to reconsideration of their death sentences under Moore, and one prisoner, Robert James Campbell, has already been resentenced to life. However, the Supreme Court's recent rulings indicate that its pronouncement in Moore that a state's determination of Intellectual Disability must be "informed by the medical community’s diagnostic framework" is not limited to Texas. In May, the Court vacated a decision of the Alabama Court of Criminal Appeals in the case of Taurus Carroll after his lawyer invoked Moore to argue that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In the Florida case, Wright's lawyers argued that the state supreme court's decision in his case was inconsistent with a line of Supreme Court cases on intellectual disability—Atkins v. Virginia (2002), which declared execution of those with intellectual disability to be unconstitutional; Hall v. Florida (2014), which struck down Florida's approach to measuring the role of IQ in determining intellectual disability; and Moore. Although its order did not set forth the reasons for its decision, the Supreme Court agreed and directed the Florida courts to reconsider the issue.

Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison

An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."

REPORT: Most of the 26 Prisoners Facing Execution in Ohio Through 2020 Severely Abused, Impaired, or Mentally Ill

Almost all of the 26 men scheduled for execution in Ohio over the next three years suffer from mental, emotional, or cognitive impairments or limitations that raise questions as to whether they should have been sentenced to death, according to a new report released August 30 by Harvard's Fair Punishment Project. While the U.S. Constitution requires that the death penalty be reserved for the worst crimes and the worst offenders, the report—Prisoners on Ohio's Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age—says that, instead, these prisoners "are among the most impaired and traumatized among us." The report says Ronald Phillips, whom Ohio executed July 26, was "19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse – information his trial lawyers never learned or presented to a jury." It says at least 17 of the 26 other condemned prisoners Ohio seeks to execute between September 2017 and September 2020 experienced serious childhood trauma, including "physical abuse, sexual abuse, neglect, and exposure to serious violence"; at least 11 have evidence of "intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury"; and at least 6 "appear to suffer from a mental illness." Jessica Brand, the Project's Legal Director, describes what has happened in these cases as a "horrible trifecta" in which "people who are the most impaired received some poor representation at some time in their cases and then are facing the most severe penalty possible." The Ohio Alliance for a Mental Illness Exemption from the death penalty, which is supporting an Ohio bill seeking to ban the use of capital punishment against the severely mentally ill, issued a press statement in which they noted that two of the prisoners are so mentally ill that they should be categorically exempted from the death penalty. A Death Penalty Information Center review of Ohio’s 2017-2020 scheduled executions shows that more than 60% of the execution warrants are directed at prisoners who were sentenced to death before Ohio had adopted its life-without-parole sentencing option and jurors had to weigh the death penalty against the risk that a prisoner would be released back into society. Mirroring trends repeated across the country, death sentences fell dramatically in Ohio when the state amended its death-penalty law to make life without parole available as a sentencing alternative. Death sentences dropped by 2/3rds in the state over the next decade, from an average of 12.7 per year to 4.3. The data suggests that juries would likely have treated evidence of intellectual disability, mental illness, or behavioral problems arising from chronic abuse and trauma very differently if they had assurances that the defendants would not later be released if sentenced to life.     

Texas Execution Stayed to Permit Proper Consideration of Intellectual Disability Claim

A Texas appeals court has stayed the August 30 execution of Steven Long (pictured) to provide him an opportunity to litigate a claim that he is ineligible for the death penalty because of intellectual disability. On August 21, the Texas Court of Criminal Appeals issued the stay and remanded Long's case to a Dallas County trial court, directing the court to reconsider his claim of intellectual disability in light of the U.S. Supreme Court's March 2017 ruling in Moore v. Texas. The Texas courts had previously rejected Long's intellectual disability claim, but had applied an overly harsh definition of intellectual disability that was declared unconstitutional in Moore. Long was convicted and sentenced to death in Dallas for the rape and murder of an 11-year-old girl in 2005. Although the U.S. Supreme Court had ruled in Atkins v. Virginia in 2002 that it was unconstitutional to apply the death penalty to a person with Intellectual Disability—then known as mental retardation—and had previously ruled in a Texas case in 1989 that juries must consider a defendant's mental retardation as a potential basis to spare his or her life, Long's trial lawyer did not have him evaluated for mental retardation. In May 2008, his post-conviction lawyers raised the issue in his state habeas corpus proceedings, and the state courts rejected his claim, analyzing the issue under the "Briseño factors," a non-scientific series of questions developed by the state court in the case of Jose Garcia Briseño. Mr. Long then raised—and lost—the issue in the Texas federal district court, with the U.S. Court of Appeals for the Fifth Circuit refusing to consider his appeal. However, on March 28, 2017, the U.S. Supreme Court struck down Texas's use of the Briseño factors, and less than one month later Long filed a petition in the U.S. Supreme Court asking the Court to apply its ruling in Moore to his case. While that appeal was pending and briefing was ongoing, Texas scheduled an execution date for Long during a period in which the Court was in summer recess. Long filed an application for a stay of execution in the Supreme Court. He then filed a new habeas petition in state court on August 3, 2017, reasserting the intellectual disability claim the state courts had initially denied and sought a stay of execution in the Texas Court of Criminal Appeals. The state court wrote, "In light of this new law and the facts of applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court." Briefing has been completed on his petition seeking U.S. Supreme Court review, and a decision is expected in early October on whether the Court will review his case. 

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