Friday, January 20, 2017

Tenth Affirms Another OK Death Penalty

Smith v. Duckworth, 824 F.3d 1233 (6/6/16) (Okl.) (Published) - The 10th affirms another Oklahoma death penalty in a ยง 2254, AEDPA controlled case. With respect to the one issue relevant to non-death penalty cases, the 10th holds that it was not unreasonable to okay the trial court refusing to allow a neuropsychologist to testify about Mr. Smith's intellectual capability regarding the question whether Mr. Smith voluntarily, knowingly and intelligently waived his Miranda rights. The trial judge did consider Mr. Smith's intellectual ability in addressing the Miranda question, the 10th says. And there is no clearly established S. Ct. law that requires the trial court to listen to an expert , the 10th concludes. The 10th is untroubled by the following statement by the trial court: "the fact that he's of low intelligence I don't think is a huge surprise to anybody based on the fact most criminal defendants who come in here are not rocket scientists. Is there any law that says I am to take that into consideration, even someone of low intelligence?"
On the pure death-penalty front, the 10th holds it was not unreasonable for Oklahoma to preclude from death-penalty ineligibility on intellectual disability grounds those with an IQ of 76 or higher. The legislature took into account the standard error of measurement--5 points from 70---the lack of which was the problem with the Florida 70 IQ cut-off in Hall v. Florida. It was also okay not to take into account the Flynn Effect, which is the increasing of IQ scores by .3 in the population every year. Mr. Smith's IQ scores were 71, 76 and 79. But neither Hall nor any other S. Ct. case said anything about the Flynn Effect. So the Oklahoma courts couldn't have been unreasonable in upholding Oklahoma's law, despite the Flynn Effect. The 10th is also okay with the denial of an ineffective-assistance-of-penalty-phase counsel claim on lack-of-prejudice grounds. Even if the Oklahoma appellate court made an unreasonable finding that the new evidence counsel could have presented was not particularly different from what was presented at trial, the state court considered all of the evidence in finding the new evidence would have made no difference in the death verdict. So the ruling was not based on any unreasonable fact determination, says the 10th. And the state court's assessment that evidence of Mr. Smith's PCP use causing brain damage was a double-edged sword [because the jury could think Mr. Smith was extra dangerous] was not contrary to Sears v. Upton. Sears does not prohibit considering the double-edged nature of mental-health/substance-abuse evidence. Its discussion of the double-edged issue concerned Strickland's attorney performance prong, not the prejudice prong. In fact, the 10th observes, the S. Ct. has noted the two-edged nature of some mitigating evidence.