Death Sentence Set Aside for Intellectually Disabled Defendant
Smith v. Sharp, 2019 WL 4010132 (10th Cir. August 26, 2019) (OK): The panel finds Smith is intellectually disabled and sets aside his death sentence. To execute him would violate Atkins v. Virginia, 536 U.S. 304 (2002), in which the Supreme Court held the state is prohibited from executing the intellectually disabled. Outstanding work by our FPD colleagues in Oklahoma, Emma Rolls and Thomas Hird.
Smith appealed the district court’s denial of his habeas petition. To succeed he had to show the state appellate court’s ruling that he had failed to establish significantly sub-average intellectual functioning was contrary to, or an unreasonable application of, Atkins, or an unreasonable determination of the facts. The panel held he proved both. The state court unreasonably applied Atkins because it disregarded the clinical definitions of sub-average intellectual functioning in favor of lay witness testimony that Smith was not intellectually disabled. The court also unreasonably determined the facts because Smith’s consistently low IQ scores demonstrated significantly sub-average intellectual functioning.
Of note: This opinion is worthwhile reading if you have a client with low intellectual functioning. It offers ways to combat the government’s arguments that our clients are malingering or are not disabled because they behave like others with higher intellectual functioning.
The panel reviews in detail the expert testimony from both sides and for numerous reasons discounts the opinion of the state’s expert, including his suggestion that Smith was malingering. It also stresses that Smith’s IQ scores consistently were between 70 to 75 or lower, which is typically considered the cutoff score for an intellectual disability diagnosis. It also criticizes lay witness opinions perpetuating stereotypes about a person’s adaptive behavior. The panel says that intellectually disabled people can hold a job, work hard, cook, clean, lie, marry and love. Their deficits are assessed against the population in general, the overwhelming majority of which can perform work, for example, at a much higher level. In other words, the ability to hold a job is not sufficient evidence to overcome objective evidence of a person’s adaptive deficits.
Smith appealed the district court’s denial of his habeas petition. To succeed he had to show the state appellate court’s ruling that he had failed to establish significantly sub-average intellectual functioning was contrary to, or an unreasonable application of, Atkins, or an unreasonable determination of the facts. The panel held he proved both. The state court unreasonably applied Atkins because it disregarded the clinical definitions of sub-average intellectual functioning in favor of lay witness testimony that Smith was not intellectually disabled. The court also unreasonably determined the facts because Smith’s consistently low IQ scores demonstrated significantly sub-average intellectual functioning.
Of note: This opinion is worthwhile reading if you have a client with low intellectual functioning. It offers ways to combat the government’s arguments that our clients are malingering or are not disabled because they behave like others with higher intellectual functioning.
The panel reviews in detail the expert testimony from both sides and for numerous reasons discounts the opinion of the state’s expert, including his suggestion that Smith was malingering. It also stresses that Smith’s IQ scores consistently were between 70 to 75 or lower, which is typically considered the cutoff score for an intellectual disability diagnosis. It also criticizes lay witness opinions perpetuating stereotypes about a person’s adaptive behavior. The panel says that intellectually disabled people can hold a job, work hard, cook, clean, lie, marry and love. Their deficits are assessed against the population in general, the overwhelming majority of which can perform work, for example, at a much higher level. In other words, the ability to hold a job is not sufficient evidence to overcome objective evidence of a person’s adaptive deficits.
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