Capital Habeas Petitioner's Cause Remanded for Evidentiary Hearing on Intellectual Disability
Harris v. Sharp, 2019 WL 5541416 (10th Cir. October 29, 2019) (OK published): In this capital habeas appeal, the panel remands to the district court for an evidentiary hearing on Harris’ claim that his counsel was ineffective for not requesting pretrial hearing on whether he was intellectually disabled.
At the time of Harris’ retrial, Oklahoma law permitted pretrial evidentiary hearings before a judge or jury on whether he suffered from an intellectual disability. If either the judge or jury found an intellectual disability, Harris was no longer eligible for the death penalty. If the jury found no intellectual disability, he could ask the judge to revisit the issue after trial. Here, the defense would have lost nothing if the judge or jury found no intellectual disability. But, importantly, The panel concluded that Harris’ counsel thus had a risk-free opportunity to avoid the death penalty. Bypassing this opportunity constituted deficient representation, because "evidence of an intellectual disability was ready-made." Harris had IQ scores under the 70-point threshold necessary for a determination of intellectual disability under Oklahoma law.
The court noted that counsel’s strategic decisions generally draw considerable deference when the attorney has thoroughly investigated the law, the facts, and the plausible alternatives. But merely calling something a strategy does not prevent meaningful scrutiny by a court. Here, "any defense attorney" would have sought a pretrial hearing on the existence of an intellectual disability, especially when ABA Death Penalty Guidelines require that "[c]ounsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." ABA Guidelines § 10.11(L).
The panel also found that Harris alleged a theory of prejudice that, if true, could justify habeas relief. Because the parties disagreed on the facts showing prejudice, the panel was unable to decide the issue. Instead, it said Harris was entitled to an evidentiary hearing as to prejudice. At that hearing, the parties would be allowed to present expert testimony on whether Harris satisfied Oklahoma’s test for an intellectual disability.
At the time of Harris’ retrial, Oklahoma law permitted pretrial evidentiary hearings before a judge or jury on whether he suffered from an intellectual disability. If either the judge or jury found an intellectual disability, Harris was no longer eligible for the death penalty. If the jury found no intellectual disability, he could ask the judge to revisit the issue after trial. Here, the defense would have lost nothing if the judge or jury found no intellectual disability. But, importantly, The panel concluded that Harris’ counsel thus had a risk-free opportunity to avoid the death penalty. Bypassing this opportunity constituted deficient representation, because "evidence of an intellectual disability was ready-made." Harris had IQ scores under the 70-point threshold necessary for a determination of intellectual disability under Oklahoma law.
The court noted that counsel’s strategic decisions generally draw considerable deference when the attorney has thoroughly investigated the law, the facts, and the plausible alternatives. But merely calling something a strategy does not prevent meaningful scrutiny by a court. Here, "any defense attorney" would have sought a pretrial hearing on the existence of an intellectual disability, especially when ABA Death Penalty Guidelines require that "[c]ounsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." ABA Guidelines § 10.11(L).
The panel also found that Harris alleged a theory of prejudice that, if true, could justify habeas relief. Because the parties disagreed on the facts showing prejudice, the panel was unable to decide the issue. Instead, it said Harris was entitled to an evidentiary hearing as to prejudice. At that hearing, the parties would be allowed to present expert testimony on whether Harris satisfied Oklahoma’s test for an intellectual disability.
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