Intellectual Disability

Amid Questions of Competency, South Dakota to Execute Special-Olympics Defendant Who Gave Up Appeals

The South Dakota Supreme Court has denied motions that sought to delay the October 29, 2018 execution of Rodney Berget (pictured). As the state prepared to execute Berget, the former public defender who represented him at trial took action to fight a prospective legal guardian’s efforts to keep the former Special Olympics participant from being put to death. On Friday, October 26, Juliet Yackel, a Chicago-based lawyer who had been retained in Berget’s state post-conviction proceedings as a mitigation investigator, filed a pleading called a petition for writ of prohibition that asked the South Dakota Supreme Court to halt Berget’s execution and to appoint her as his legal guardian “because he has an intellectual disability and [is] otherwise incompetent, rendering him ineligible to be executed.” Berget waived a jury trial and pled guilty to murder for his involvement in the death of a prison guard, and is currently attempting to waive his appeals. At the close of the trial, he told the sentencing judge, “I believe I deserve the death penalty for what I’ve done.” Yackel’s petition describes Berget as “intellectually disabled and suicidal.” The motion alleges Berget “is not able to protect his own interests and the attorneys assigned to do so have refused” to do so. On Saturday, October 27, Berget’s trial lawyer, Jeff Larson—whom the court removed from the case after he attempted to continue to represent Berget in appeal proceedings meant to raise issues of his possible ineffective assistance at trial—filed an affidavit from Berget opposing Yackel’s motion and reasserting the reasons why Berget says he wants to drop all appeals. On October 29, the South Dakota high court denied the petition.

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that individuals with intellectual disability—then known as mental retardation—may not be executed. Yackel’s petition includes a litany of evidence she says  “clearly demonstrates” Berget’s ineligibility for the death penalty: IQ tests administered during Berget’s childhood in which he scored under 70, public welfare records in which a psychologist noted that “the boy appears ... to be suffering from borderline mental retardation,” Berget’s assignment to special education classes and participation in Special Olympics, and a diagnosis of intellectual disability by several leading national mental health experts. The petition and an accompanying affidavit also set forth evidence that Berget has a “lengthy history of self-harm and suicidality.” “This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel told Liliana Segura, an investigative reporter for The Intercept. “There is no question here. This is not a close call.” 

With Larson describing his client as “very intelligent and quite competent,” Berget pled guilty and waived his right to a jury trial. After Larson was fired from the public defender’s office, he continued to represent Berget pro bono, and did not retain a mitigation investigator to research Berget’s background, upbringing, and mental health history. He presented what Segura describes as “an astonishingly weak defense.” After the court removed Larson from the case, Berget was represented by Eric Schulte, a civil lawyer with no capital case experience, who also failed to present evidence of Berget’s participation in Special Olympics. The trial court rejected the intellectual disability claim raised  by Schulte, relying on testimony from a prosecution psychologist who had employed scientifically unsupported methods for assessing intellectual disability that were similar to those the U.S. Supreme Court struck down in Moore v. Texas in 2017. According to Yackel’s petition, acting on “the advice of his personal spiritual advisor, [Schulte] disregarded the clear need for appellate review and refused to file a Notice of Appeal,” effectively waiving Berget’s right to appeal. Dr. Stephen Greenspan, one of the leading national experts on intellectual disability, called the trial court’s ruling “egregious” and the case “one of the most outrageous” he had seen. 

Texas Courts Rule for Two Death-Row Prisoners on Intellectual Disability, Junk-Science Claims

Two Texas prisoners took steps away from death row as state courts ruled in their favor on issues involving false or faulty scientific evidence and argument. On October 5, 2018, the Texas Court of Criminal Appeals (CCA) granted a stay of execution to Juan Segundo (pictured, left), directing a Tarrant County trial court to reconsider a claim of intellectual disability that the courts had previously rejected based on an unconstitutional, unscientific standard for measuring his functioning. Four days later, an El Paso trial judge found that prosecutors had “presented false and misleading evidence and argument” concerning the cause of death of a 19-month-old whom Rigoberto Robert Avila (pictured, right) had been convicted of killing, and recommended that the CCA grant Avila a new trial.

Texas had been set to execute Segundo on October 10. Segundo’s lawyers had long argued that he is intellectually disabled and therefore exempt from execution under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. However, the Texas courts had dismissed that claim, relying on a series of nonclinical factors—some based on the fictional character Lennie Smalls from Of Mice and Men—to say that Segundo was not intellectually disabled under Texas law. In 2017, in the case of Moore v. Texas, the U.S. Supreme Court ruled that intellectual disability determinations must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas’s approach, calling it an “outlier” that created “an unacceptable risk that persons with intellectual disability will be executed.” In Segundo’s case, the CCA wrote, “[i]n light of the Moore decision and the facts presented in applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court.”

The CCA stayed Avila’s January 2014 execution based on a new law giving prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. His was one of the first cases sent back to a lower court for reconsideration under the 2013 junk-science law. In his 2001 trial, prosecutors argued that Avila had killed his girlfriend’s infant son. “There’s no other way the kid could have died,” they told the jury. New evidence showed, however, that the infant could have died from injuries caused by his four-year-old brother. Judge Annabell Perez wrote that this new evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial. In a prepared statement, Avila’s lawyers wrote: “The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony. After spending 17 years on death rowand facing four serious execution datesfor a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.”

Law Review: Junk Mental Health Science and the Texas Death Penalty

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

Kentucky Supreme Court Strikes Down Commonwealth’s Death-Penalty Intellectual Disability Law

The Kentucky Supreme Court has struck down the Commonwealth’s death-penalty intellectual disability law, which required proof of an IQ score of 70 or below before a death-row prisoner or capital defendant could be found ineligible for the death penalty. The court ruled on June 14, 2018, in the case of Robert Keith Woodall (pictured) that the Commonwealth’s use of a strict IQ cutoff as a prerequisite to finding a defendant intellectually disabled violates the U.S. Supreme Court’s recent decisions in Hall v. Florida (2014) and Moore v. Texas (2017). Those decisions made clear that state standards for determining intellectual disability in death-penalty cases must be “informed by the medical community’s diagnostic framework” and that use of a fixed 70-IQ cutoff score is incompatible with that framework. The Kentucky court reversed a trial court decision that had rejected Woodall’s intellectual-disability claim, and ordered the trial court to reassess that claim using a proper standard. Woodall was convicted and sentenced to death in 1998. Four years later, in Atkins v. Virginia, the U.S. Supreme Court barred the death penalty for people with intellectual disability, and Woodall sought to have his death sentence overturned on those grounds. The trial court rejected his claim, saying he had not satisfied Kentucky's IQ requirement. The Hall decision, however, had specifically identified Kentucky’s IQ cutoff as one the statutory provisions that would violate the Eighth Amendment, and the Kentucky high court wrote that the Commonwealth's IQ standard “potentially and unconstitutionally exposes intellectually disabled defendants to execution.” Woodall’s attorneys praised the decision, saying, “While Kentucky was one of the first states to prohibit the execution of the intellectually disabled when it passed the statute that the Kentucky Supreme Court struck down today, that statute had long since become obsolete as the science moved forward. The Kentucky Supreme Court’s decision today to abandon that statute in favor of a more modern and scientific understanding of intellectual disability is very appropriate.” The court established new guidelines for lower courts to use in intellectual-disability hearings, including a “totality of the circumstances test,” which will examine whether defendants have the ability to learn basic skills and adapt their behavior to their circumstances.

“Outlier” Texas Court of Criminal Appeals Upholds Bobby James Moore's Death Sentence

In a ruling three dissenters criticized as an "outlier," and after having been rebuked by the U.S. Supreme Court in 2017 for ignoring the medical consensus defining intellectual disability, a sharply divided (5-3) Texas Court of Criminal Appeals (CCA) has upheld the death sentence imposed on Bobby James Moore (pictured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intellectually disabled under the most recent clinical definition of the disability and may be executed, despite a finding by a trial court judge, a concession from the Harris County District Attorney's office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. Harris County prosecutors had filed a brief with the CCA, stating, "[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." In a forceful dissent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, catalogued the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability and wrote: "There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief." Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County trial court. After making credibility determinations about the lay and expert testimony it heard, that court agreed that Moore had intellectual disability as defined by contemporary medical diagnostic criteria. However, the CCA reversed, applying an idiosyncratic set of criteria known as "Briseño factors" (named after the Texas court decision that announced them), which were based on unscientific stereotypes, including the behavior of a fictional character from Of Mice and Men. Last year, in Moore v. Texas, the U.S. Supreme Court unanimously struck down Texas' use of that criteria, saying that a court's intellectual disability determination must be "informed by the medical community’s diagnostic framework." The Court criticized the manner in which the CCA assessed Moore's significant deficits in adaptive functioning, saying the CCA had improperly focused on the adaptive skills Moore possessed, rather than the clinically required assessment of his areas of diminished functioning. It also said the CCA had improperly based its judgment on Moore's adaptive deficits on how he was able to function in the highly regimented prison setting. The dissent emphasized that the majority again gave improper consideration to these factors in reaching its conclusion that Moore was not intellectually disabled, and said the court had misapplied current medical standards and failed to defer to the trial court's credibility rulings. As a result, the dissent said, the CCA "essentially continues to determine that mildly intellectually disabled people are subject to the death penalty in contravention of the Supreme Court’s holding in Moore."

Supreme Court to Review Native American's Conviction and Death Sentence for Murder on Indian Lands

The U.S. Supreme Court has agreed to review a federal appeals court decision vacating the conviction of Patrick Dwayne Murphy (pictured), a Native-American prisoner sentenced to death in Oklahoma state court for a murder he argues could only be prosecuted by the federal government. On May 21, 2018, the Court granted Oklahoma’s petition to review an August 2017 decision by the U.S Court of Appeals for the Tenth Circuit ruling that Murphy—a member of the Muscogee (Creek) Nation—should not have been tried in state courts because the killing occurred within the borders of the Creek Reservation, which the court found to be “Indian country.” Under the federal Major Crimes Act, certain enumerated crimes, including murder, are subject to exclusive federal jurisdiction if committed in Indian country by or against an Indian. A unanimous three-judge panel of the appeals court sided with Murphy and Native American friend-of-the-court advocates who argued that the boundaries of the Creek Reservation—which spans eleven counties across Oklahoma, including most of Tulsa—were established in an 1866 treaty between the U.S. and the Creek Nation and that Congress has never disestablished them. In their petition to the Court, state prosecutors challenged the circuit court's ruling that found that the 1866 treaty between the U.S. and the Creek Nation remains intact, claiming that the decision “threatens to resurrect Oklahoma’s pre-statehood status.” Murphy’s brief opposing the State’s petition argues that, while the State of Oklahoma has long “asserted absolute criminal and civil jurisdiction” over these lands, it has done so “in defiance of Congress’s statutes, in furtherance of one of this country’s most shameful episodes of plunder and exploitation.” The land in question in the case has long been claimed by the Muscogee (Creek) Nation. Kevin Dellinger, attorney general for the Muscogee (Creek) Nation, said that they “welcome the chance for the United States Supreme Court to affirm the Muscogee (Creek) Nation’s sovereign territorial boundaries as established in our 1866 treaty with the United States.” The Tenth Circuit “found clear confirmation that Congress deliberately preserved the Muscogee (Creek) Nation reservation,” he said. “Unable to dispute the clear historical record and the law, the state of Oklahoma has asked the Supreme Court to read into facts that simply do not exist and/or to change the well established applicable law.” The Supreme Court will hear argument in the case in the Fall. Justice Gorsuch, who previously served as a judge on the Tenth Circuit, took no part in the decision to review the case.

Former Louisiana Death-Row Prisoner Released on Plea Agreement, Amid Evidence of Innocence, Misconduct

More than twenty years after being convicted and sentenced to death for a murder he has long said he did not commit, Corey Williams (pictured, center, with his defense team) walked free from prison in Louisiana on May 22, 2018. The deal was bittersweet for Williams, for despite the evidence of innocence, he had to agree to plead guilty to lesser charges of manslaughter and obstruction of justice to obtain his freedom. In a statement released to the media, Amir Ali (pictured, left), Williams' lead counsel in his U.S. Supreme Court proceedings, said: “Imagine your child leaving to hang out with friends, and then losing him or her for twenty years. No one can give Corey back the time that he wrongfully spent behind bars, away from his family and friends. Today, we ensure this tragedy ends here—Corey can finally go home." Williams, who is intellectually disabled, was just sixteen years old when he was arrested for the murder of a pizza deliveryman in Caddo Parish, Louisiana. Police interrogated him overnight, eventually leading him to confess, despite knowing that he was intellectually disabled and therefore more susceptible to confessing falsely. Williams' attorneys said, "His confession was brief, devoid of corroborating details. Having just assumed responsibility for a homicide, Corey told the officers, 'I'm tired. I'm ready to go home and lay down.'" Witnesses reported seeing several older men rob the victim. Fingerprints from one of those men were found on the murder weapon, and the victim's blood was found on the clothing of another man. A third possible suspect, Chris Moore, nicknamed “Rapist,” was the only witness who testified against Williams. Prosecutors withheld recordings of witness interviews that supported Williams' innocence claims. Those recordings showed that police suspected Moore and the two other men were trying to frame Williams. Williams was sentenced to death, but his death sentence was vacated six years later after the U.S. Supreme Court declared the use of the death penalty against people with intellectual disability to be unconstitutional. Hugo Holland, who along with Dale Cox, is responsible for 75% of death sentences imposed in Louisiana from 2010-2015, prosecuted Williams' case. He was later investigated for withholding evidence in a separate case, and had to resign his post due to other misconduct. At the time the plea deal was made, Williams had an appeal pending before the U.S. Supreme Court, seeking review of his case based upon the prosecution's improper withholding of exculpatory evidence. Forty-four former state and federal prosecutors and Department of Justice officials—including former U.S. Attorney General Michael Mukasey—filed a brief in support of Williams' claim, urging the U.S. Supreme Court to grant him a new trial. The plea deal ends the litigation of that case. Ali said, “The District Attorney’s decision not to defend the tragic decisions of his predecessors is commendable. Corey’s release is vindication that he was wrongfully targeted years ago by prosecutors who had no regard for truth or justice.”

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