[Deathpenalty] death penalty news----PENN., DEL., FLA., ALA., MISS., TENN., LA.

[Rick Halperin]

March 29



PENNSYLVANIA:

Defense attorneys: Pennsylvania's death penalty system puts unfair cost burden 
on counties



At his office in the Cumberland County Courthouse on Friday, Cumberland County 
Chief Public Defender Timothy Clawges discusses the need for public defenders 
for death penalty defendants who can't afford a private attorney. Pennsylvania 
is the only state in the country that does not provide funding for the defense 
in capital cases, according to Robert Dunham, executive director of the Death 
Penalty Information Center.

Because of that, it's on the counties to foot the bill of potential death 
penalty cases. For chief public defenders like Cumberland County's Timothy 
Clawges, that's a hefty bill that can equate to "tens and tens of thousands of 
dollars" for 1 case.

"It's hard to budget for," he said. "You might have a year without any, and 
then the next year, you might have a year with 3.

The issue at hand involves "indigent offenders," or those who are poor and 
would be unable to afford a private attorney to cover the cost of defense in a 
capital case. Clawges said most capital case defendants fall into that 
category.

"Very rarely does a person in that kind of offense have any funds," he said, 
estimating that a private attorney bill could be in the 6-figure range. "They 
wouldn't have enough money to hire an attorney and (pay for) expenses. There 
(are) very few people who have that kind of money."

"Certainly someone can pay for an attorney, but because so much work is 
involved, it's usually only wealthy individuals who can afford a private 
attorney," said Jay Abom, a Carlisle defense attorney certified for death 
penalty cases.

Defendants who can't pay for a private attorney can either be defended by the 
county public defender's office or receive a court-appointed attorney.

Abom, who has been appointed by the court for Cumberland County death penalty 
cases, explained that the county still pays for the defense, though in this 
case, it's through an hourly or settled rate with the appointed attorney.

Investigations

The reason why the defense of a capital case can be costly is also one of the 
reasons why a case can take so long to get to trial.

Clawges explained that defendants in capital cases face 2 phases at the county 
level - a guilt phase and a penalty phase.

Like other criminal defendants in the county system, a capital case defendant 
will have a trial to determine guilt. If that defendant is found guilty of 
1st-degree murder, however, then the case will move to a penalty phase 
immediately after the trial. During that phase, the defense will make the 
argument that the defendant should receive life in prison instead of a death 
sentence.

The same jury will be present in both phases and will determine guilt and the 
sentence.

The 2nd penalty phase would not be necessary if a defendant is found not 
guilty, or guilty of 2nd- or 3rd-degree murder. A 2nd-degree murder conviction 
automatically results in a life sentence, and a judge will determine the 
sentence in a 3rd-degree murder conviction, which is usually 20 to 40 years in 
prison.

While the defense attorney or public defender will have to prepare for the 
trial phase like any other case - though one that potentially carries a heavy 
price - the penalty phase requires a lengthy investigation into the defendant's 
past.

"From a defense perspective, it's not just about addressing the guilt or not 
guilt on an act or conduct, but (we also have to) complete an investigation 
into social history and medical history," Clawges said. "It requires experts. 
Social history is a lengthy, time-consuming and expensive process."

Dunham, who is a former federal defender in Pennsylvania, said the penalty 
phase investigation can involve researching past sexual abuse and child abuse, 
as well as talking to experts in forensic science, such as for ballistics, 
arson or DNA analysis.

"Suddenly you're not looking at a $5,000 or $10,000 or $15,000 or $20,000 
case," Dunham said. "It's substantially more expensive for capital cases."

Since guilt would have been established in the first phase of the court 
hearing, Dunham said, the defense in the penalty phase would have to look at 2 
things - if the crime was in character of the defendant or out of character.

"If it's in the character of the defendant, you know something in the 
individual's background, genetic makeup or (injury) has caused someone to 
behave in that manner. There are some psychological disturbances that need to 
be explored," he said. "For out-of-character (defense), you look at what was 
going on in that situation. That requires a psychological and psychiatric 
investigation."

Staff

Given that kind of work, it's recommended that capital cases must have 2 
defense attorneys.

"There's not a law that says that has to be that way," Abom said. "Some have 
agreed that having 1 person responsible for everything is so overwhelming 
considering the situation. Often in Cumberland County, judges will appoint 2 
attorneys."

Clawges said having 2 attorneys is particularly important since the level of 
investigation could not be performed by one person, and a 2-person team would 
eliminate the need for one attorney to have to prove the defendant innocent in 
one phase and then argue the extent of his or her guilt in the next.

However important, it's a hard task to take 2 public defenders away for an 
extensive case when Cumberland County has a full-time staff of nine - not all 
of whom are certified in death penalty cases - and a full caseload of 
defendants in other criminal cases.

"The strain on the staff can be very serious," said Clawges, who has been a 
public defender for almost 25 years.

He also noted that there are requirements as to who can defend a capital case 
offender. Attorneys would need a certain number of serious cases under their 
belts before they can become certified, and attorneys must then undergo 
continuous training on education of capital crime.

Public defenders do not see the same kind of salary as private attorneys 
despite the work, Clawges said.

"Absolutely that has an impact," he said. "There aren't a whole lot of private 
attorneys that do capital cases. The stress level is unparalleled. You really 
don't know how it works until you're doing one of these cases. Our attorneys 
don't receive anything extra for doing these cases, despite essentially being 
tasked with keeping somebody alive.

"There's nothing else like it," he added. "You're trying to leave no stone 
unturned. You can't imagine what it's like to sit in that defendant's seat."

Issues

Dunham said that kind of pressure on a small county staff that is not funded by 
the state leads to a stronger likelihood that capital cases could be reversed 
or overturned. And if a case is sent back to Cumberland County, that costly 
social history investigation would need to be repeated at the expense of the 
county if it returns to a public defender.

Since 1978, when the death penalty was re-established in Pennsylvania, Dunham 
said, "150 death penalty cases have been overturned. Of those, the most 
frequent reason is ineffective assistance of counsel."

"If you attempt to do something on the cheap at trial, it will be more costly 
in the long run," he said.

Dunham said studies have indicated that about 100 cases were reversed at the 
post-conviction stage, and another 50 more were reversed at the habeas corpus 
stage - in federal court. Of those 150 cases, Dunham said, 115 went back 
through the system, and only 4 of those defendants are still on death row. The 
other 111 were resentenced to life in prison or less, and some were freed.

"More have been freed than are on death row," he said of the reversed cases.

That additional cost has pushed some, including Gov. Tom Wolf, to estimate that 
the cost of the death penalty is $300 million. Dunham, however, said that is 
likely much smaller than the actual amount since those numbers do not include 
the cost of trials that did not result in a death sentence.

"Nobody knows how much it is costing the state," he said. "In Pennsylvania, 
there is still no central data collection site, so nobody knows how often 
prosecutors seek the death penalty in Pennsylvania. There is no central way of 
getting data."

A March 2008 study from Urban Institute, an organization that conducts economic 
and social policy research, showed that Maryland taxpayers between 1978 and 
1999 paid about $186 million more than what those cases would have cost if the 
death penalty had not been sought. Maryland has only had 5 executions since the 
late 1970s, when the death penalty was re-enacted.

Dunham said the Atlantic Center for Capital Representation, which provides 
resources for capital case defense attorneys, has been tracking capital cases 
in Pennsylvania for the past 4 years. According to the center's data, in the 
last 300 or more cases in which the death penalty was sought, the death penalty 
was imposed 16 times.

"For every time in which a death sentence is obtained, it is not obtained 19 
times," Dunham said. "That 5 % death penalty rate suggests that it's not 
particularly cost-effective."

Abom said of all the defendants he's represented in Cumberland County in which 
a death sentence was sought by the prosecution, none of them went to trial. He 
said all of his cases ended with a plea agreement for a life sentence or a 
lesser incarceration sentence.

Cumberland County District Attorney David Freed said it would have to be an 
unusual case where he would not consider a plea deal if the defense was 
interested, but he also noted that cost cannot be a factor when determining how 
to proceed with prosecuting a 1st-degree murder.

"I do not consider costs," he said. "It can't come down to the cost. You have 
to do the job."

(source: cumberlink.com)






****************

End Pa. moratorium on the death penalty



Last month, The Morning Call had pictures of 12 men who are murderers on the 
front page. Gov. Wolf announced he had a moratorium on the death penalty in 
Pennsylvania. The men have no remorse for what they have done. Most of their 
appeals are that they are mentally unstable.

The system is not broken. It is the misuse of the system that is broken. The 
liberal lawyers and Gov. Wolf claim it costs more for the appeals than to stay 
in prison for life.

Another letter written by Mr. Getz informing us all once again that he is a 
former police officer. Hey Merle we all know already you can stop now. I won't 
disagree that there is not some abuse in the way that the death penalties are 
appealed as some seemingly slam dunk cases seem to drag...

While I was a police officer in Bethlehem, my partner, Philip Fahy, was 
murdered in 1969 by a man named Bebley Wells Jr. I shot the murderer three 
times, and he survived and was given life in prison, not the death penalty.

I estimate that at the time it cost $42 a day to keep a murderer in prison for 
life. Wells spent 35 years in prison before he died in 2004. This could have 
been a cost of about $536,550.

The complaints about the death penalty are that the people on death row are 
lonely, the way they are to die is inhumane, and they should not have to 
suffer. What about the victims? Were their deaths humane? The victims don't get 
any appeals and will never see their family again.

Wake up, Gov. Wolf, and get with the program - but not the liberals' program.

Merle Getz

Bethlehem Township

(source: Letter to the Editor, Morning Call)








DELAWARE:

Delaware should keep death penalty for heinous crimes



When you write a column of commentary, history and other assorted local and 
national subjects, you're bound to repeat topics as they return to the 
forefront. It's been certainly true here in my 26 years at this spot.

Some subjects I feel almost obligated to write about almost annually, such as 
my gratitude to the United States for sheltering this columnist's escape from 
Nazidom on Thanksgiving Day, 1939. I feel the same about regularly remembering 
a friend killed on a plane that hit the World Trade Towers on Sept. 11, 2001.

The latter brings me to today's subject: the death penalty.

As some readers of this column must know by now, I support capital punishment 
in certain cases. Had we somehow caught some of the murderers involved in those 
fatal 9/11 attacks, there should be no hesitation in executing them.

I feel the same about such mass murderers of innocent civilians as most 
recently the gunmen in the Tunisian Museum, the executioners of ISIS and the 
butchers of Boko Haram of Nigeria. ISIS and Boko Haram picture themselves as 
warriors for an Islamic caliphate but they are really just evil killers.

The countries that have abolished the death penalty, and that includes most of 
the western world, have allowed mass murderers to get off lightly. In Norway, 
for example, a man who murdered 77 people on a vacation island was sentenced in 
2012 to the maximum penalty: 21 years in prison, considered a form of 
preventive detention that only required a minimum of 10 years incarceration.

The debate has resumed in Dover about whether Delaware should abolish its death 
penalty, a fight once again led by the redoubtable Sen. Karen Peterson. Her 
S.B. 40 eliminates the entire capital punishment Section 4209 of the Delaware 
Code's Title 11, with the exception that persons convicted of 1st degree murder 
after the law goes into effect would serve the rest of their natural life in 
prison "without benefit of probation or parole or any other reduction." The 15 
men who have already been sentenced to die could still be executed, but their 
various appeals mean they'll be in prison for many years anyway.

Delaware police organizations have come out strongly against the end to capital 
punishment, and a majority of Delawareans probably feel the same. The latest 
national Gallup Poll shows 61 % of Americans believe in the death penalty, a 
percentage pretty much unchanged in more than a decade.

The trouble with the poll is that the question is asked without the necessary 
qualifications. The numbers would be much higher if people were asked if such 
mastermind mass killers as Hitler, Stalin and Mao should be sentenced to prison 
or execution. Or what would the answer be if you ask about the men who raked 
the classrooms at Sandy Hook Elementary School and Virginia Tech University 
with their automatic weapons.

Anyone who kills a police officer - and remember we just had 2 New York City 
cops killed in cold blood as they sat in their patrol car - or a corrections 
officer should be executed. Else what would keep them from killing again? 
Someone who kills a witness against a murderer has also committed an 
unforgiveable crime.

What the General Assembly should do is modify the conditions under which a jury 
or a judge can now vote for the death penalty. It should be reserved for the 
most heinous killers, and should assure absolute evidence of guilt, not just a 
fallible eyewitness or forced confession or a stoolies' statement. Too many of 
those have turned out to have the wrong person jailed or executed.

A state Senate committee last week voted the bill out unanimously on its merits 
and it's bound to pass that chamber again. This year the 41 representatives 
should be given a chance to take a stand.

(source: Editorial; Harry Themal, delawareonline.com)








FLORIDA:

Holy Week is time to reflect on Florida's death penalty



"Father, forgive them, for they know not what they do." These last words of 
Larry Lonchar, who was executed by the state of Georgia in 1996, echo the last 
words of another man executed as a criminal: Jesus of Nazareth.

"Forgive them" are words that both break and challenge the hearts of Christians 
during the observance of Holy Week and Eastertide. Indeed, forgiveness is at 
the heart of the many faiths that recognize, as Archbishop Desmond Tutu of 
South Africa has said, that "without forgiveness, there is no future."

Pope Francis maintains that the death penalty is "inadmissible," and he calls 
upon all nations to abolish it, as do other faith traditions. In our view, it 
is time for all people who seek justice and the common good to ask: Do we know 
what we are doing?

Jesus was innocent, as Larry Lonchar was not, by his own admission. However, 
the 25 former inmates of Florida's death row who have been exonerated - more 
than in any other state - are innocent of the crimes for which they were almost 
put to death. We do not know how many other innocent persons have been executed 
in the more than three decades since Florida reinstated the death penalty, 
which former Gov. LeRoy Collins deemed "Florida's gutter of shame."

Still, even if the 393 men and women now on our state's death row are entirely 
guilty of the crimes for which they have been sentenced to die, does society 
execute justice by killing them ... or is justice itself on the gurney?

Gov. Rick Scott insists that he thinks about the victims when he signs a death 
warrant.

"Victim" Agnes Furey, one of the Tallahassee Democrat's 25 Women You Need to 
Know and a tireless advocate for restorative justice, is an eloquent opponent 
of the death penalty. Not only has she forgiven and befriended the man who 
murdered her daughter and grandson, but she also co-authored with him the 
award-winning book "Wildflowers in the Median."

And "victim" Kathy Dillon, whose New York State Trooper father was murdered in 
the line of duty and who speaks publicly against the death penalty, has 
written, "And for me, it always comes down to my belief that humans shouldn't 
have the power to decide who lives and who dies. I feel that it is wrong for 
one person to take the life of another, either in an attack of violence or in 
response to violence." (Dillon will speak in Tallahassee on April 13.)

The victims of state-sponsored homicide are the family members of executed 
prisoners, particularly their children. No law brings closure to their pain and 
agony. Only the mercy of God can comfort them. Do we know what we are doing? We 
do not, for only God has complete knowledge of our hearts. Yet Jesus prays that 
we may be forgiven.

With public support for the death penalty waning across the nation, and with 
long-overdue investigations into the sentencing and executing of human beings 
underway, it is time to stop, to reflect and to seek greater wisdom. Father, 
forgive us.

(source: Opinion; The Rev. Marda Messick (pastorststephens at embarqmail.com) is 
pastor of St. Stephen Lutheran Church and a member of Tallahassee Citizens 
Against the Death Penalty. The Rev. Emory Hingst is pastor emeritus of St. 
Stephen. The Rev. Brant Copeland is pastor of First Presbyterian 
Church----tallahassee.com)








ALABAMA:

Executions and secrecy



2 things are absolutely clear about a death-penalty bill making its way through 
the 2015 session of the Alabama Legislature:

1. Supporters of the measure in question (HB18) want to ensure the state's 
death-row inmates are executed in the name of Alabamians. The method is not so 
important. "We can choose not only the electric chair, but any other method 
available - hanging, firing squad, gas chamber or whatever," said Rep. Lynn 
Greer, R-Rogersville, the bill's lead sponsor.

2. HB18's supporters would just as soon Alabama residents know as little as 
possible about the executions done in their name, keeping confidential almost 
all aspects of an inmate's death.

The bill passed the House earlier this month on a 76-26 vote, and the Senate is 
expected to take it up soon.

Recent Gallup polling finds that 63 % of Americans support capital punishment - 
down from a high of 80 percent in 1994. Regardless of whether you are pro-death 
penalty or anti-death penalty, it matters how the state goes about killing 
inmates. There's no going back if it's later discovered the deceased was 
wrongly convicted. Over the past 42 years, more than 130 death-row inmates 
across the United States have been released after new evidence came to light, 
according to advocates at the Death Penalty Information Center.

The trials that convict men and women are held before the public. Just imagine 
the distrust we'd have in a system that tried and sentenced the accused in 
secret proceedings. Likewise, executions are open for family members and 
members of the news media to witness the killing of an inmate. News stories 
following an execution are important, as reporters relay information about the 
crime, the victim and the scene as the convict breathed his or her last.

That openness is being tested by the marketplace, particularly when it comes to 
the favored execution method of late - lethal injections.

Global drug manufacturers whose products are used in U.S. executions find 
themselves under pressure from activists opposed to the death penalty. That's 
especially true across Europe, where capital punishment is largely out of 
favor. The drug companies are thus reluctant to sell their products to states 
that use them for lethal injections. It's bad for business.

This helps explain the nearly 2-year pause in executions in Alabama. Capital 
punishment states such as Alabama are having a hard time finding drugs 
necessary for a lethal injection.

With HB18, Alabama is attempting a work-around. If the drug companies can't 
stand the bad publicity, then just keep secret what drugs are used in an 
execution's lethal cocktail.

In fact, thanks to an amendment by Rep. Mac McCutcheon, R-Huntsville, Alabama's 
HB18 appears to put a shroud over the entire process of killing an inmate, 
making it a state secret.

"The name, address, qualifications, and other identifying information of any 
person or entity that manufactures, compounds, prescribes, dispenses, supplies, 
or administers the drugs or supplies utilized in an execution shall be 
confidential, shall not be subject to disclosure, and shall not be admissible 
as evidence or discoverable in any action of any kind in any court or before 
any tribunal, board, agency, or person. The same confidentiality and 
protections shall also apply to any person who participates in an execution or 
performs any ancillary function related to an execution and shall include 
information contained in any departmental records, including electronic 
records, that would identify the person."

That's a mouthful, but what it essentially does is exempt executions from the 
state's Open Records Act. In other words, the bill asks Alabamians to trust the 
state. That's too much for a government to ask when it comes to the state 
taking a life.

(source: Bob Davis is associate publisher/editor of The Anniston Star)








MISSISSIPPI:

Mississippi Supreme Court affirms DeSoto death sentence



A split decision by the Mississippi Supreme Court has affirmed the death 
sentence given to a man for the death of a 13-year-old DeSoto County girl 
killed with her mother and grandmother.

The Memphis Commercial Appeal (http://bit.ly/1yfWlgy ) reports that 4 judges 
signed the majority opinion in the case of Sherwood Brown, whose attorney 
argued in October that mild mental retardation barred his execution. 3 judges 
dissented and 1 did not participate.

The U.S. Supreme Court in 2002 barred states from executing mentally disabled 
inmates.

Brown got the death penalty for killing 13-year-old Evangela Boyd, because 
jurors found that he killed her in 1995 while committing felony child abuse.

He got life sentences for the deaths of the child's mother, 48-year-old Verline 
Boyd, and her 82-year-old grandmother, Betty Boyd.

(source: Associated Press)








TENNESSEE:

Attorneys: TDOC does not have lethal injection drugs



The Tennessee Department of Corrections will not say if it has the chemicals 
needed to execute inmates via lethal injection.

Attorneys for inmates challenging the state's protocol say the drugs are not on 
hand. And an opportunity for the attorneys to ask prison supervisors about the 
drug supply did not take place as planned Friday because of a canceled court 
hearing.

As an increasing number of national medical organizations oppose participation 
in the controversial executions, it could be a challenge for Tennessee to find 
the drugs it needs.

"It's certainly clear that it has become more difficult for states to find the 
drugs that their protocols say they are supposed to use," said Robert Dunham, 
executive director of the Death Penalty Information Center, which opposes the 
death penalty. "What the response to that will be is unclear."

Drug supply

Attorneys for Tennessee and attorneys for more than 30 death-row inmates - who 
are challenging the state's lethal injection and electrocution procedures - had 
planned to gather in front of Davidson County Chancellor Claudia Bonnyman on 
Friday.

The inmates and their attorneys say the state's protocols are unconstitutional 
and violate protections from cruel and unusual punishment.

The state filed a motion for a Friday hearing, asking Bonnyman to stop any 
court proceedings related to electrocutions. That issue is pending before the 
Tennessee Supreme Court.

Attorneys: 'White out' glitch reveals lethal injection pharmacist

Attorneys for the inmates used it as a chance to file documents suggesting the 
state is unable to carry out lethal injection executions.

The Tennessee Department of Corrections has said it is confident it will be 
able to carry out executions, but when previously asked by The Tennessean, did 
not say whether the lethal-injection drugs were on hand.

The inmates' attorneys say in court documents that they subpoenaed Riverbend 
Maximum Security Institution leaders Tony Parker and Charles Carpenter to bring 
proof the state has the drugs. The execution chamber and death row inmates are 
housed at Riverbend in Nashville.

Attorneys for the inmates expected both men who oversee the prison to testify 
during a hearing that the Department of Corrections does not have a supply of 
the drugs.

The state withdrew its request for the Friday hearing. And then it asked the 
Tennessee Supreme Court to intervene.

National opposition

The battle happening inside the Nashville courtroom unfolds as an increasing 
number of national groups oppose lethal injection.

On Monday, the leaders of the American Pharmacists Association will take a 
final vote whether to oppose pharmacist participation in executions. The APA is 
the largest group of pharmacists with 62,000 members.

The policy under consideration says that "such activities are fundamentally 
contrary to the role of pharmacists as providers of health care."

The American Medical Association, American Board of Anesthesiologists, American 
Nurses Association and National Association of Emergency Medical Technicians 
each discourage their members' participation in executions.

"The 1st rule for doctors is the Hippocratic Oath: Do no harm," Dunham said.

In response to botched executions and public pressure, manufacturers of the 
lethal-injection drug pentobarbital barred their products from being used in 
executions. States have turned to compounding pharmacies, which alter 
manufactured drugs, for a supply.

But last week the International Association of Compounding Pharmacists issued a 
statement discouraging its 4,000 members from supplying compounded lethal 
injection drugs.

The statement reflects increasing concern that states will alter the chemicals 
and cause pharmacists to face legal problems, according to the association.

Still, that does not mean the drugs are unavailable and executions will halt.

"I think that will further restrict the availability of these drugs," Durham 
said. "And it will create further incentives for those few compounding 
pharmacies that are acting against the generally accepted view of their 
community, it will create more incentives for them to be secretive about their 
involvement in this activity."

In early March, Texas announced it was running low on pentobarbital.

On Wednesday, the Texas Department of Criminal Justice announced it had found a 
pharmacy to temporarily supply the chemical, and executions would continue.

OTHER EVENTS IN THE DEATH PENALTY CASE

-- Davidson County Chancellor Claudia Bonnyman ordered documents revealing the 
name of pharmacists supplying lethal injection drugs be returned to the 
Tennessee Department of Corrections. Federal public defenders got the 
documents, with 1 of the names poorly redacted, through a public records 
request. They sealed the documents and notified the court on March 20.

-- The state has asked the Tennessee Supreme Court to stop any Chancery Court 
proceedings related to the condemned inmates' claims that the electric chair is 
unconstitutional. The Supreme Court is set to hear arguments May 6 whether 
challenges to the electric chair can be made. The state argues since no inmate 
is currently set to be executed by electrocution, the inmates' claims are 
invalid.

-- The Tennessee Supreme Court has asked the state to show why 4 executions 
scheduled for later this year should not be rescheduled, given that the 
Chancery Court case likely will not be resolved by then.

-- What's next: A hearing to address pending motions in the case is set for 
April 10. Trial is set for July 7.

(source: The Tennessean)








LOUISIANA:

Baton Rouge cop killer's mental capacity at issue in case before U.S. Supreme 
Court



13 years after barring the execution of mentally disabled inmates and 10 months 
after nullifying a strict IQ limit for determining who can be executed, the 
U.S. Supreme Court on Monday will wade once again into the ever-evolving death 
penalty waters when it hears arguments in the 1993 ambush slaying of Baton 
Rouge police Cpl. Betty Smothers.

Kevan Brumfield, 1 of 2 condemned triggermen in the killing of the 36-year-old 
Smothers outside a Jefferson Highway bank depository, claims he is 
intellectually disabled but was prevented from showing that by a Baton Rouge 
state judge who denied him a hearing and state funds to pursue his claim.

District Judge Richard Anderson's 2003 ruling came the year after the high 
court, in the case of Atkins v. Virginia, forbade states from putting mentally 
disabled prisoners to death.

U.S. District Judge James Brady later gave Brumfield a hearing in Baton Rouge 
federal court, along with federal funds, and ruled in 2012 that Brumfield is 
intellectually disabled and ineligible for the death penalty.

Last year, that decision was reversed by a 3-judge panel of the 5th U.S. 
Circuit Court of Appeals, setting the stage for Monday???s showdown at the 
Supreme Court.

Smothers, a mother of 6 children, was working an off-duty security job and had 
driven a grocery store assistant manager to the bank to make a night deposit 
when she was fatally shot shortly after midnight on Jan. 7, 1993. Smothers was 
shot 5 times and died. Kimen Lee, the Piggly Wiggly employee, was shot 4 times 
in the crossfire of 2 gunmen but survived. Juries convicted Brumfield and Henri 
Broadway, who also is on death row, of being those shooters.

Brumfield, who turned 20 the day he killed the police officer, was accused of 
shooting Smothers. Broadway, who was tried after Brumfield, was accused of 
firing some of the shots that wounded Lee.

The state's attorneys argue in their Supreme Court brief that Brumfield scoped 
out the bank days in advance of the crime, rented a car and acquired both guns 
that were used.

Before the Supreme Court, attorneys are grappling with 2 questions:

Is it unreasonable for a state court to determine whether an inmate is 
intellectually disabled based on evidence from the penalty phase of his trial?

Has a state court that denies funding to an indigent inmate with no other means 
of obtaining evidence of his alleged intellectual disability denied the 
defendant his "opportunity to be heard" and his constitutional right to be 
provided with the "basic tools" for an adequate defense?

Son to attend arguments

Former Catholic High School, Florida State University and NFL running back 
Warrick Dunn, the oldest of Smothers' children, will attend the Supreme Court 
arguments, said retired East Baton Rouge Parish Assistant District Attorney 
Prem Burns, who prosecuted the capital murder case and will argue the case at 
the high court as special counsel.

Dunn's mother was killed 2 days after his 18th birthday. He declined to comment 
for this article through the DA's Office but in a 2012 letter to The Advocate 
made clear that he supports the death penalty for Brumfield. "From my view, his 
use of 'mental retardation' as a defense is offensive and morally wrong," he 
wrote.

Brumfield's attorneys want the justices to reverse the 5th Circuit. The state's 
attorneys are asking the top court to affirm the appeals court and Brumfield's 
death sentence.

Capital Post-Conviction Project of Louisiana Director Gary Clements, who 
handles numerous Atkins-related issues but is not involved in the Smothers 
case, said Thursday he's eager to see how the high court resolves the case.

As for whether the Brumfield case could have larger implications about how all 
courts decide whether someone is intellectually disabled and thus not eligible 
for execution, Clements said, "It isn't going to be the sea change that came 
out in 2002 (in Atkins) or in Hall."

Last May, in Hall v. Florida, the U.S. Supreme Court struck down that state's 
law that prohibited anyone with an IQ of 70 or higher from being classified as 
mentally disabled, regardless of other evidence to the contrary.

Louisiana does not have an IQ cutoff for intellectual disability. Prior to the 
Hall decision, at least nine states had a strict IQ limit, an indication of the 
absence of a national consensus on how to determine mental disability.

Clements suggested the nation's top court may have decided to hear Brumfield's 
case so it can further refine the court's restrictions on the death penalty.

In the Hall opinion, Justice Anthony Kennedy concluded that states should look 
to the clinical consensus for determining whether inmates are intellectually 
disabled and not fixate too strictly on an IQ cutoff.

In Brumfield's case, there is no clinical consensus. 2 psychologists testified 
in federal court that Brumfield is intellectually disabled. A psychiatrist, a 
psychologist and a neuropsychologist testified he is not.

Brumfield's attorneys and the lawyers representing the state agree that the 
Louisiana Supreme Court - shortly after the Atkins decision in 2002 - adopted 
the clinical definition of intellectual disability endorsed by the high court 
in Atkins.

The U.S. Supreme Court, however, left to the states the task of adopting an 
appropriate standard for intellectual disability.

The Louisiana Supreme Court concluded that a diagnosis of mental disability has 
3 distinct components: subaverage intelligence, as measured by objective 
standardized IQ tests; significant impairment in several areas of adaptive 
skills; and manifestations of the neuro-psychological disorder in the 
developmental stage, or before the age of 18.

In reversing Judge Brady in January 2014, the 5th Circuit said Anderson 
considered the intellectual functioning and adaptive behavior prongs of 
Louisiana's test for intellectual disability and properly rejected Brumfield's 
request for an evidentiary hearing on his claim that he is intellectually 
disabled.

Clements noted that not every inmate facing the death penalty is entitled to a 
so-called Atkins hearing.

"There's no such thing as an automatic Atkins hearing," he said.

Disputes about disability

Lawyers representing Brumfield argue in written briefs that Anderson, who was 
not Brumfield's trial judge, relied on the court record from the penalty phase 
of Brumfield's 1995 capital murder trial - a trial where intellectual 
disability was not an issue.

"No witness testified as to whether Brumfield was intellectually disabled or 
whether he met any of the clinical criteria that define intellectual 
disability. No witness was ever asked," the defense attorneys, who include Nick 
Trenticosta, of New Orleans, and Michael DeSanctis, of Washington, D.C., point 
out.

"7 years after Brumfield was sentenced, this Court recognized the nation's 
'evolving standards of decency' and articulated for the 1st time that the 
Eighth Amendment prohibits the execution of an intellectually disabled person," 
they note.

But even during the pre-Atkins penalty phase of his trial, Brumfield's 
attorneys contend, it was shown that Brumfield had scored an IQ of 75, that he 
has at best a 4th-grade reading level and spent much of his schooling in 
special education classes.

"The state court's determination that these facts did not even require a 
hearing on Brumfield's intellectual disability was patently unreasonable," his 
attorneys argue. They say Louisiana courts recognize that an IQ of 75 indicates 
the possibility of intellectual disability.

Brumfield, who dropped out of school in the 9th grade, had an abusive childhood 
and 6 different stepfathers or other temporary father figures, his attorneys 
argue in their Supreme Court brief. Brumfield was committed to 6 out-of-home 
institutions beginning at the age of 12, they say.

Prosecutors insist Brumfield, who briefly held down jobs and fathered five 
children with 3 different women, is not intellectually disabled. They say he 
was evaluated at least 6 times before the age of 18 and not once was he 
diagnosed as intellectually disabled.

"His behavior as an adult shows Brumfield has adequate adaptive skills. 
Brumfield's ability to orchestrate the sophisticated armed robbery that 
resulted in the cold-blooded murder of Corporal Betty Smothers provides 
definitive proof," Burns and Assistant District Attorney Monisa Thompson argue 
in their brief.

The state's attorneys also say Brumfield was given state funding prior to trial 
for investigation, mitigation and examination by psychologists.

In an interview, Burns acknowledged Brumfield is in the mildly intellectually 
disabled range.

"The IQ is not the issue to me," she added. "It's how he lives every day. He 
can certainly function on his own in society. He always took care of his wants 
and needs."

Brumfield, 42, has drawn support in his case from a high-powered coalition.

Monday's hearing will mark the 1st time in the history of the East Baton Rouge 
Parish District Attorney's Office that the office will orally argue a case 
before the nation's highest court.

(source: The Advocate)