Retards Killing the Intellectually Disabled

A bit of history.

The year was 1989.  Johnny Paul Penry was, as even polite folks said in those days, mentally retarded.  He was also on death row in Texas.  That combination of things, his lawyers said, should be impossible.  The berobed ones in Washington agreed to answer whether they were.  Sandra Day O'Connor put the question simply in her opinion for the Court.

We must also decide whether the Eighth Amendment categorically prohibits Penry's execution because he is mentally retarded.

The answer (by a 5-4 vote) was a clear no.  Oh, it's something juries ought to be allowed to consider (Texas more-or-less prohibited even that at the time) when deciding what to do, but hey, killing the retards is cool.

In sum, mental retardation is a factor that may well lessen a defendant's culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of his or her mental retardation alone. So long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination whether "death is the appropriate punishment" can be made in each particular case.

Fast forward to 2002.  Daryl Renard Atkins was on death row in Virginia.  Like Johnny Paul Penry, he was intellectually disabled.  The Supremes decided to have another go at it.  John Paul Stevens, who'd dissented in Penry began his opinion (for a different 5-4 majority) this way.

Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.

And so it was that Penry was overruled and execution of the intellectually disabled was recognized as unconstitutional.  

The catch was that the Court decided to let the each of the states that killed people decide for itself how to figure out who was sufficiently, er, slow.  Oh, sure, there were actual standards, clinical definitions by people who studied this shit out there, and the Court said they should count, but if you were, say, Florida, you didn't care about that.  You just made an arbitrary cut-off of 70 and said if someone had a number higher than that, 

Off with his head.

The Supremes took on Florida's rule last year in the case of Freddie Lee Hall.  By the familiar 5-4 vote, they said, in an opinion by Kennedy, Florida blew it.  That there were actual standards, clinical definitions by people who studied this shit.  Florida couldn't just make it up.  Alito, dissenting, said that sure they could.  

Hey, we're talking about whether to kill the retards, not whether to treat them.  Who cares what experts say?  We have elected legislators and judges who are far more able to decide who has an intellectual deficit than people who study the matter.  I mean, retards can always recognize another retard, right?*

Ah, but Georgia.  The Peach Tree State.  Where the guy on the row must prove beyond a reasonable doubt that he's a retard (as they probably still think it's proper to say down there).

Warren Lee Hill was in prison when he killed Joseph Handspike, another inmate.  They've been trying to kill Hill ever since.  Thing is, as Alan Blinder writes in the Times,

Although Mr. Hill’s appeals sometimes involved questions about Georgia’s lethal injection protocols, his last legal campaign dealt with a contention of an intellectual disability. Mr. Hill, with an I.Q. of 70, had “the emotional and cognitive functioning of an 11-year-old boy,” Mr. Kammer [one of his lawyers] said.“Warren Lee Hill is intellectually disabled,” Mr. Hill’s lawyers told the Supreme Court in a filing. “The lower Georgia courts have said this twice. All of respondent’s experts have acknowledged this fact.” 

Get that.  Hill's experts say he's intellectually disabled, and so do the experts Georgia dug up.  I mean, the state can't find an actual whore psychologist who'll say Hill isn't intellectually disabled (as they probably don't bother to say down there). 

And then there are the courts.  The ones that took the evidence and twice said he's intellectually disabled.  And were overruled by higher courts because they're fucking retards (as we say up here of the Georgia high court).

And last night, after Georgia parole board or whatever they call it said to kill and the governor signed off on it and the 9 in DC said, it was OK (actually, only 7 of the 9 - Breyer and Sotomayor voted to call a halt at least to consider), they did.  Last night.

By the way, around the time the good people of Georgia were committing an execution in violation of the 8th Amendment, the Texas Court of Criminal Appeals announced that it had no problem with that state's killing Robert Ladd tomorrow night despite the fact that he's intellectually disabled. 

Because, really, nobody gives a damn.

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*Disclosure: That's not an actual quote.    

Procedure Uber Alles - Part II (Corrected)

When the Supreme Court decided Roger Coleman's case (Coleman v. Thompson), Justice O'Connor's opinion for the majority began with what are now familiar, if still chilling, words to capital litigators.

This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus.

Coleman's lawyer blew a deadline in the Virginia Supreme Court, and as a result, O'Connor (joined by Rehnquist, White, Scalia, Kennedy, and Souter) determined that Coleman had forfeited his right to have federal courts review his federal constitutional claims.  Coleman was executed a year later.*

Less well known than O'Connor's opening, less well known than they should be,  are the opening paragraphs of Harry Blackmun's dissenting opinion (joined by Marshall and Stevens).

Federalism; comity; state sovereignty; preservation of state resources; certainty: the majority methodically inventories these multifarious state interests before concluding that the plain-statement rule of Michigan v. Long, 463 U.S. 1032 (1983), does not apply to a summary order. One searches the majority's opinion in vain, however, for any mention of petitioner Coleman's right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death. Nor does the majority even allude to the "important need for uniformity in federal law," id., at 1040, which justified this Court's adoption of the plain-statement rule in the first place. Rather, displaying obvious exasperation with the breadth of substantive federal habeas doctrine and the expansive protection afforded by the Fourteenth Amendment's guarantee of fundamental fairness in state criminal proceedings, the Court today continues its crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims. Because I believe that the Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights, I dissent.

I

The Court cavalierly claims that "[t]his is a case about federalism," ante, at 726, and proceeds without explanation to assume that the purposes of federalism are advanced whenever a federal court refrains from reviewing an ambiguous state court judgment. Federalism, however, has no inherent normative value: it does not, as the majority appears to assume, blindly protect the interests of States from any incursion by the federal courts. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. "Federalism is a device for realizing the concepts of decency and fairness which are among the fundamental principles of liberty and justice lying at the base of all our civil and political institutions." Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423, 442 (1961). See also The Federalist No. 51, p. 324 (C. Rossiter ed. 1961) (J. Madison) ("Justice is the end of government. It is the end of civil society"). In this context, it cannot lightly be assumed that the interests of federalism are fostered by a rule that impedes federal review of federal constitutional claims.

Coleman, as the dissenters understood it would, became a touchstone for efforts by the courts and Congress to place form over substance, finality over fairness.  It's gotten worse (much worse) over the years.  I talked about it a bit last week in the context of William Garner's execution and the decision of the purportedly ultra-liberal, criminal-friendly Ninth Circuit in Lee v. Lampert.  And I've discussed it before in the context of claims of factual innocence.

And now there's the Fifth Circuit.

Ok, it's the Fifth Circuit.  (And it's a couple of months old, but I just saw it in today's Dallas Morning News.)  Here's how Jason Trahan begins his story.

Bruce Carneil Webster helped kidnap, rape, torture and bury alive Arlington teen Lisa Rene.

You can see that's he's not a sympathetic figure.  You get it that, especially if when he "helped" do those things, he was actually doing them himself, he committed the kind of crime that they invented the death penalty for.  And it's important to recognize that, because like Coleman's this isn't a story of some good guy getting railroaded by a system.  This is a story of the system itself, working exactly the way Congress and the courts intend it to.

This is a story of what looks to be an illegal, unconstitutional murder.  Soon to be committed by the federal government.  With the specific authorization of the federal courts.

Because, you see, Webster has mental retardation.  (The newly correct language is to say that he is a person with "intellectual and developmental disabilities," but that's not the language everyone uses, and it doesn't quite capture the point as well, though perhaps it will one of these days.)  And that means that it violates the Eighth Amendment for him to be executed (Atkins v. Virginia).

Except, this is the second time Webster's asked the federal courts to weigh in on his death sentence.  That's one too many.  He doesn't fit one of the exceptions to AEDPA's rule that federal courts can only evaluate whether a conviction and sentence violates the Constitution once.

Because if they could review a death sentence just because it violates the Constitution - why then the republic would crumble.  

Or not.  But so Congress seems to think.  (You might think Sarah Palin and her Tea Party pals would jump all over this given the importance they place on the Constitution.  You might think that.  You'd be wrong.)

Anyway, Webster tried again, but the Fifth Circuit, in an opinion by Judge Jerry Smith, told him to forget about it and just get on with the business of getting killed.  It falls to Judge Wiener (who acknowledges that Smith has the law right and reached, therefore, the proper result), to say this is an outrage.

I write separately to emphasize the absurdity of its Kafkaesque result: Because Webster seeks to demonstrate only that he is constitutionally ineligible for the death penalty — and not that he is factually innocent of the crime — we must sanction his execution.

Actually, as Wiener says, Webster isn't just trying to make a case.  He's got it made.  Wiener explained.

If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded. In 1993 — more than a year before his indictment for the offense of conviction — Webster applied for Social Security benefits. To determine his eligibility for those benefits, three separate government physicians performed medical and psychological examinations on him. Notably, all three physicians independently concluded that Webster is mentally retarded.

So we're not talking possibility here.  Webster's not trying to game the system.  The law, whatever you think of Atkins is clear that it would violate the Constitution for him to be executed.  But the Fifth Circuit, recognizing that, says it has no power to stop the killing.

That system isn't just "Kafkaesque."  It's morally bankrupt.  If it's a system, it's an evil one.  Wiener lays it out plainly, but he can't see a way out.

The Supreme Court explained in Atkins v. Virginia that because mentally retarded persons suffer from “disabilities in areas of reasoning, judgment, and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Thus, “in the light of our evolving standards of decency,” the Court held that the Eighth Amendment prohibits as excessive the execution of mentally retarded defendants. Although I concur in the majority’s opinion as a correct statement of the law, I continue to harbor a deep and unsettling conviction that, albeit under Congress’s instruction which ties our judicial hands so illogically, we today have no choice
but to condone just such an unconstitutional punishment.

In fact, of course, they have a choice.  They can fix the problem with the stroke of a pen:  The law requires a violation of the Constitution.  That makes it an unconstitutional law.  The Court can, and should, declare the law unconstitutional.  Refuse to follow it.

To do that, though, Wiener and the others would have to have the integrity - intellectual, moral, social, political, legal - to do what is intellectually, morally, socially, politically, and legally right.

But you know, it's hard to do that.  Because there's every reason to think that Congress intended just this.  The point of AEDPA was to prevent the federal courts from enforcing the Constitution in death penalty cases.  Far more important, Congress said, for the states to kill than for them to obey the Constitution.

This isn't the first time something of this sort has happened.  But it's stark and it's clear.  And, as I said, it's the system working exactly the way Congress and the courts intend it to.

Process.  Procedure.  Form over substance.  Kill them and be done with it.

The Supremes will be offered a chance to fix this particular mess.

I'm not holding my breath.

But I'll be watching.

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*Coleman, of course, is not a sympathetic character.  He died insisting on his innocence of the rape-murder for which he was on death row.  He made a pretty good showing of innocence - enough to convince some not-all-that-easy-to-convince folks into spending years litigating against Virginia in an effort to test the DNA.  (The only credible explanation for Virginia's years of refusal is that the authorities believed testing would prove that they'd killed an innocent man.)  Eventually, it was tested.  Coleman was guilty, and promptly went from being a poster-child for death penalty error to being a poster-child for abolitionist naivete.

EXPERTS

Three very interesting cases on experts and the like.

In People v. Safford, a divided panel of the Appellate Court of Illinois, First Division, reversed a conviction because the fingerprint evidence wasn't supported by a strong enough foundation. Specifically, the fingerprint examiner who testified that his analytic model was a matrix analysis, said that he used first, second, and third tier evaluations to compare a latent with a known print and conclude that they came frome the same person. But he didn't testify to just what he did at each stage of the analysis or how he did it.
Safford argued

The defendant contends the trial court erred in allowing Examiner Cutro to testify to his conclusion that the latent print recovered from Officer Marcano's patrol car belonged to the defendant without ever testifying, on either direct or crossexamination, to the evidentiary basis for his opinion. In his main brief, the defendant contends that to allow opinion testimony based solely on the qualifications of the witness as an expert, without disclosing the basis for the opinion "would be to invite forensic fraud." The defendant attacks the fingerprint identification testimony that the trial court allowed as equivalent to allowing Examiner Cutro "to testify in essence: I am an expert and you have to take my word for it." The defendant
argues the trial court erred by not requiring the State to offer an adequate foundation in the form of the expert's underlying reasoning to explain the expert's ultimate conclusion presented to the jury.

Under the circumstances, the court explained, there was simply no way for the defendant to conduct a meaningful cross-examination. In effect, the fingerprint examiner's testimony was no more than, "Trust me, I'm an expert." (Personally, and as an aside, I like to call these guys "trained lookers," butI digress.)

Still, you can see that the court might have let the purported "expert" get away with it if he'd tried. But

We can think of no reason Examiner Cutro could not explain the Level One, Level Two, and Level Three details he must have observed on each occasion, which led him to conclude that the two prints matched. "An expert's opinion is only as valid as the bases and reasons for the opinion." Gaytan, 313 Ill. App. 3d at 146. It was insufficient for Examiner Cutro to rely on his training and expertise as a basis for his ultimate opinion that no one other than the defendant could have left that latent print on Officer Marcano's police car. Before the jury could assess the weight and credibility of Examiner Cutro's opinion, it was incumbent on the trial judge to determine whether the foundational requirements had been met for the admission of Examiner Cutro's opinion. This was a question of law. "The trial court [may not] blindly accept the expert's assertion that his testimony has an adequate foundation." Gaytan, 313 Ill. App. 3d at 146.

Good for them.

Actually, Illinois is on a roll. A couple of weeks before Safford, another division of the appellate court there decided People v. Daniels, reversing the trial court's denial of a motion to suppress a confession. Why? Because Daniels didn't have the mental capacity to understand Miranda warnings.

Three experts testified. Two, in great detail, explained the testing they conducted and how and why and reached the conclusion that as a consequence of Daniels profound mental retardation she did not understand the warnings and, therefore, her waiver was not valid. The third expert disagreed. The trial court essentially discounted all of that.

After hearing all of the evidence and watching the videotaped confession, the circuit judge found defendant had knowingly and intelligently waived her rights. In doing so, the judge stated that he did not see how defendant’s poor performance on the abstract reasoning test applied to her ability to waive Miranda, noting that “as an intelligent person” he would have difficulty defining the similarities between “an ear and an eye” or explaining a proverb such as “between a rock and a hard place.” The judge further stated that defendant had received her rights at “every single turn” and that the experts’ opinions were a “wash” because the videotape of the confession “clearly indicate[d], without any doubt whatsoever, that [defendant] was advised of her rights, [that] she chose to give a statement, and [that] she did so knowing and understanding what her rights were.” The judge also found it unlikely that defendant would have said she understood something if she did not. The judge ultimately concluded that if a proverb was to be used to determine whether defendant had intelligently and knowingly waived her Miranda rights, then the following proverb should “be added to the mix: The truth is in the pudding,” with the pudding being defendant’s own videotaped confession.

We all know judges like that. Hell, we all appear before them regularly. What we all don't have is a court of appeals that

cannot find any basis upon which to predicate the transcendency of the judge’s lay opinion over that of the court’s own appointed experts . . . .

Rather the trial judge apparently chose to formulate his opinion based upon his own conceptualization of what it would take to establish sufficient comprehension of the import of Miranda warnings and chose to rely on defendant’s videotaped statement and her answers of “yes” to questions regarding her understanding of Miranda warnings without probing into defendant’s ability to understand the questions to which her answers were directed.

It's pretty damning.

Finally, there's the U.S. District Court for the Middle District of Alabama which, after trial, issued an opinion exploring numerous problems with eyewitness identification testimony and explaining why it allowed a defense expert (Solomon Fulero) to testify about eyewitness identification in general but not about the specific witnesses in the case (United States v. Smith, No. 07cr165).

No quotes this time. Just read it.