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Walton v. Johnson from the Fourth Circuit dominates this week.   Walton remands on two different grounds, mental retardation and competence to be executed.  Either holding would make the case the lead decision.  The Atkins discussion in Walton is one of just five published appellate opinions on the so-called "Flynn Effect" (as testing instruments age they increasingly score a subject higher than their actual intelligence) as it relates to mental retardation. Likewise the opinion is one of a small handful that favorably treats a competency to be executed claim under Ford v. Wainwright.

Five additional "wins" are noted.  In Shuffield v. State the Texas Court of Criminal appeals remanded for a  hearing  on a Batson claim. The Alabama Court of Criminal Appeals in Wilson v. State holds the post-conviction trial court erred in failing to permit WIlson's fourth and fifth motion to amend his first Rule 32 petition.  The same Court in Martin v. State remands as the trial court did not give sufficient mititgatory effect to the jury's recommendation for life.  Finally, in the last two "decisions for life" of the week, the same court, the Alabama Court of Criminal Appeals, remands in Wimberly v. State & Bond v. State, for imposition of a life without parole sentence under Simmons

Elsewhere, in Indiana a trial court has barred the State from seeking death on the penalty phase retrial of Zolo Azania, finding too much time, 24 years, has passed from the murder giving rise to the prosecution to permit death as a sentencing option.  Ninth Circuit panel has asked for oral argument on teh question of the constitutionality (at least as applied) of the deference standards of the AEDPA (hat tip to How Appealing). The DoJ has lost yet another Puerto Rican federal death penalty trial when a jury returned two verdicts for life this week;  Puerto Rico has not used the death penalty for almost 80 years and forbids the practice in its constitution.  Scott Sundby's new book, "A Life and Death Decision: A Jury Weighs the Death Penalty" draws on data collected by the Capital Jury Project (and others) to examine jury dynamics in the decision for life and death.  The Christian Science Monitor reports that a computer program designed by a team of criminologists and computer scientists has ben  able to predict the outcome of death penalty cases with better than 90% accuracy analysis the actual chances of someone being executed -- it bases its analysis solely  on factors such as age, race, sex, and marital status of the offend.  Finally,  Gary Sterling's execution date has been reset, most likely for the late summer.

Three cases could not be covered this week due to time limitations,  Calhoun v. State, 2005 WL 995489  (Ala.Crim.App. 4/29/2005),  Bryant v. State, 2005 WL 995481 (Ala.Crim.App. 4/29/2005), and  Nicklasson v. Roper, 2005 WL 1005126 (W.D.Mo. 4/26/2005).

Recently Executed


Serious X- Dates

 
Leading Cases

Walton v. Johnson, 2005 WL 977005 (4th Cir. 4/28/2005) (dissent)  Remand ordered on competency to be execute and mental retardation claims.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Shuffield v. State, No. AP-74,574 (Tex.Crim.App. 4/27/2005) Remand ordered for an evidenctiary hearing relating to a Batson claim.

Wilson v. State, 2005 WL 995418 (Ala.Crim.App. 4/29/2005) Remand ordered as the trial court erred in failing to permit amendment of the Rule 32 post-conviction petition.

Martin v. State, 2005 WL 995415 (Ala.Crim.App. 4/29/2005) Remand ordered as the trial court did not give sufficient mititgatory effect to the jury's recommendation for life.

Wimberly v. State, 2005 WL 995484 (Ala.Crim.App. 4/29/2005) Simmons remand to impose a life without parole sentence.

Bonds v. State, 2005 WL 995420 (Ala.Crim.App. 4/29/2005) Simmons remand to impose a life without parole sentence.

Notable Noncapital Cases

Washington v. Wilmore, 2005 WL 977009 (4th Cir. 4/28/2005)  Qualified immunity denied to claim by this death row exoneree  that Wilmore fabricated evidence that resulted in his death sentence.

*5 With respect to his first argument--that Ford competence requires an "ability to assist counsel in [one's] own defense"--Walton cites neither the opinion of the Court in Ford nor even the plurality's opinion. He merely asserts that support for this argument "can be rationally formulated from inferences found in the Ford plurality opinion." Id. at 35.

We, of course, must look to the opinion of the Court to determine the Ford requirements. That opinion is silent as to whether a defendant must be able to assist his counsel in order to be found competent to be executed. See Ford, 477 U.S. at 401-10. Moreover, Justice Powell, the fifth vote necessary for a majority, expressly rejected this position in his concurrence. It has "slight merit," he reasoned, because in modern times, unlike at common law, "the defendant has access to counsel, by constitutional right at trial, and by employment or appointment at other stages of the process whenever the defendant raises substantial claims." Id. at 420 (Powell, J., concurring). Because "a defendant must be competent to stand trial, ... the notion that a defendant must be able to assist in his defense is largely provided for." Id. at 421 (Powell, J., concurring); see also id. at 421 n. 2 (Powell, J., concurring).

Thus, even though Justice Powell's assurance that it is "unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free," id. at 420 (Powell, J., concurring), has since been called into question, see, e.g., 2002 Ill. Governor's Commission on Capital Punishment Rep., available at http:// www.idoc.state.il.us/ccp/ccp/reports/ commission_report/complete_report.pdf, it is clear that Walton's argument has never garnered a majority of the Court. Indeed, without indicating whether any Member of the Court accepted that position, all that Ford instructs is that one Member decisively rejected it.
[1] Nevertheless, Walton argues that we should hold as a condition of Ford competence that the defendant have a present ability to assist his counsel. Walton relies on, among other authorities, Justice Frankfurter's dissent in Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950), Justice Marshall's dissent from the Court's denial of a writ of certiorari in Rector v. Bryant, 501 U.S. 1239, 111 S.Ct. 2872, 115 L.Ed.2d 1038 (1991), and the American Bar Association standard, which states: "A convict is ... incompetent if, as a result of mental illness or mental retardation, the convict lacks sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or lacks the ability to convey such information to counsel or the court." ABA Criminal Justice Mental Health Standards Standard 7-5.6 (1989).

*6 Despite this venerable authority, and the fact that several states embrace Walton's view, e.g., Miss.Code Ann. § 99-19-57 (2000), in the face of the total silence of the Ford Court as to the necessity of the defendant's "ability to assist counsel in his own defense" and Justice Powell's decisive concurrence rejecting consideration of this factor, we decline to hold that in order to find a defendant competent under Ford, a court must find that he has the present ability to assist counsel. We note that every circuit to have considered this argument has similarly rejected it. See Rohan ex rel. v. Gates, 334 F.3d 803, 809-10 & n. 3, 812 (9th Cir.2003); Coe v. Bell, 209 F.3d 815, 826 (6th Cir.2000); Barnard v. Collins, 13 F.3d 871, 877 & n. 4 (5th Cir.1994).

2.
In contrast to his first argument, however, Walton's second contention--that Ford demands inquiry into whether the defendant can prepare for his death-- is firmly grounded in both the opinion of the Court in Ford and Justice Powell's concurrence. [FN3]

In the opinion of the Court, which Justice Powell joined, the Supreme Court explained:

[T]oday, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today.

Ford, 477 U.S. at 409 (citation omitted). In concurrence, Justice Powell emphasized this point:

If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

Id. at 422 (Powell, J., concurring).

*7 [2][3] Thus, unlike Walton's first argument, which the Ford Court did not address and Justice Powell, in concurrence, expressly rejected, his second argument finds support in both the opinion of the Ford Court and Justice Powell's concurrence. Both agree that it is not enough for a court to determine only that a defendant can recognize the cause and effect between his crime and his punishment. Rather, when deciding whether insanity bars a person's execution, a court must determine whether that person can, in the language of the Ford Court, "comprehen[d] ... why he has been singled out." Id. at 409. Or, using Justice Powell's formulation, in order to determine whether a person sentenced to death is "unaware of the punishment [he is] about to suffer and why [he is] to suffer it," a court must consider whether that person is able to "prepare for his passing." Id. at 422 (Powell, J., concurring). See also Garrett v. Collins, 951 F.2d 57, 59 (5th Cir.1992) (suggesting that for a defendant's Ford claim to survive, he must be able to "prepar[e] for his passing," but upholding state court's rejection of Collins' claim).

Tellingly, although the Commonwealth vigorously urges us to affirm the dismissal of Walton's Ford claim, it does not contend that Ford requires no consideration of a defendant's ability to prepare for his death. Rather, Virginia merely argues that "Walton's counsel's belief that Walton must ... 'prepare' for his execution as counsel thinks he should 'prepare' ... cannot constitute grounds for finding Walton incompetent." Brief of Respondent at 47. We agree. However, in this case, it is clear from the record that the district court determined that no consideration of an ability to "prepare" for one's "passing" is necessary under Ford.

[4] In reaching its conclusion that Walton is competent to be executed, the district court believed that Walton's ability to prepare for his own death was irrelevant. Thus, the district court told Walton's attorney at the March 2004 evidentiary hearing, "Any ... questions" other than "whether the petitioner understands that he's being punished by execution" and "whether the petitioner understands why he is being punished" are "extraneous.... Anything further is simply irrelevant or immaterial." The expert on which the district court relied, Dr. Mills, clearly felt constrained by the limits of the inquiry imposed by the court. Hence Dr. Mills testified, "The problem for me ... is the issues that the judge asked me to consider I think are so focused and so circumscribed and so limited that I have opined ... he meets those limited criteria."

[5] As demonstrated above, Ford requires more. A person who can only acknowledge, amidst a barrage of incoherent responses, the bare facts that he will be executed and that his crime is the reason why does not meet the standard for competence contemplated either in the opinion of the Ford Court or in Justice Powell's concurrence. [FN4] Undoubtedly, determining whether a person is competent to be executed is not an exact science. And in light of the high stakes of such a determination, the impulse of the district court to confine the inquiry to the most precise possible standard is understandable, particularly since Virginia has yet to adopt procedures for bringing a Ford claim. But the inquiry required by Ford, "[w]hether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance," 477 U.S. at 410, is broader than the inquiry the district court conducted in this case. [FN5]

****

B.
[7] The procedural posture of Walton's Atkins claim is very similar to the one we recently addressed in Walker v. True, 399 F.3d 315 (4th Cir.2005). Like Walker, Walton's conviction and sentence became final before the Supreme Court issued its opinion in Atkins I. Like Walker, because Walton completed his direct appeal and state habeas proceedings before he could raise his Atkins claim, "his sole remedy" under Virginia law "lie[s] in federal court." Va.Code Ann. § 8.01-654.2 (Michie 2000 & Supp.2004). Therefore, as in Walker, when considering Walton's habeas petition, the district court faced no state factual findings owed deference and, accordingly, "was obliged to assume all facts pleaded by [Walton] to be true" in resolving the Government's motion to dismiss the Atkins claim. Walker, 399 F.3d at 319 (internal quotation marks and citation omitted). But, as in Walker, the district court in the case at hand failed to do so.

Rather than assume the truth of the facts alleged in Walton's petition, the district court rejected Walton's Atkins claim because it found that Walton had "not forecast sufficient evidence to show that his alleged subaverage intellectual functioning originated before he was 18 years of age." Walton II, 269 F.Supp.2d at 700. On appeal in this case, echoing its words in Walker, the Commonwealth acknowledges that the district court's order "dismissing" Walton's claim was actually "in the nature of a grant of summary judgment." Compare Brief of Respondent in Walker at 14 with Brief of Respondent in Walton at 22. But even if summary judgment was the correct procedure, which it was not, see Walker, 399 F.3d at 319 & n. 1, the district court's ruling cannot stand because, as in Walker, the court resolved a factual dispute in favor of the Government. See id. at 319.

In rejecting Walton's Atkins claim, the district court relied on the results of two IQ tests administered to Walton around the time of his eighteenth birthday. The first, a WAIS-R administered to Walton at age seventeen years and eight months, purportedly gave him a full-scale IQ of 90, Walton II, 269 F.Supp.2d at 694-95; the second, a WAIS-R administered to Walton at age eighteen years and five months, gave him a full-scale IQ of 77. Id. at 695. Walton alleges that neither score bars his claim, and that the score of 77 in fact supports it.

*10 Specifically, with respect to the first IQ test, Walton maintains that there is "no way to determine the validity of that test" since Virginia has put forth no "raw data" from it. He contends that this first test "is not a test at all," but rather:
a juvenile intake report which refers to scores on a purported test. There is no information about who administered the test, when it was administered, or what the testing conditions were when the test was given. There is no raw data for the test and no indication what protocols were to be followed and whether the standardized format of the test was adhered to in full or what accommodations or adjustments were made.
Brief of Petitioner at 61; cf. Walker, 399 F.3d at 323 (discussing petitioner's allegation that one of his IQ tests is" 'highly unreliable for multiple reasons' "). If Walton can show that the IQ test he took when he was seventeen was not "administered in conformity with accepted professional practice," then, under Virginia law, it cannot be used to refute his alleged mental retardation. See Va.Code Ann. § 19.2-264.3:1.1(A).
Regarding the second test, Walton argues (much as Walker did with respect to an IQ score of 76) that when adjusted for the "Flynn Effect" and the standard margin of error, his score of 77 actually supports his claim of mental retardation. Pursuant to the Flynn Effect, according to Walton, "as the age of an intelligence test moves farther from the date on which it is normed, the mean score of the population as a whole on that test increases." Reply Brief at 25. And, adjusted for the Flynn Effect, he contends, his IQ score of 77 "indicates a full-scale score of 74." Brief of Petitioner at 61. Ordinarily, of course, a score of 74 would not put Walton within the legal range of mental retardation in Virginia. But, like Walker, he further maintains that, after accounting for the standard five-point margin of error, his score of 74 falls within the required range. See Reply Brief at 21, 25-26 & n.11; see also DSM IV at 39 ("It should be noted that there is a measurement error of approximately 5 points in assessing IQ...."). [FN7]

[8] Because the district court failed to consider Walton's contention as to the inadequacy of the first IQ test and the impact of the Flynn Effect or the standard margin of error on the second test, we must, as in Walker, vacate and remand for further proceedings. [FN8] On remand, the district court should determine the adequacy of the first test and the persuasiveness of Walton's Flynn Effect evidence as to the second test; if the court finds the Flynn Effect evidence persuasive, it should then determine whether the Virginia statute permits "consideration of measurement error in order to determine whether" Walton's purported score of 74 is " 'two standard deviations below the mean.' " Walker, 399 F.3d at 323.

Walton also submitted evidence of two more recent IQ tests, both reporting scores below the cutoff for mental retardation. See Walton II, 269 F.Supp.2d at 695 (noting August 9, 1999 WAIS-R reporting full-scale IQ of 69 and May 2003 GAMA reporting full-scale IQ of 66). We note that under the Virginia statute, "[a]ssessment of developmental origin shall be based on multiple sources of information generally accepted by the field of psychological testing and appropriate for the particular defendant being assessed, including, whenever available, educational, social service, medical records, prior disability assessments, parental or caregiver reports, and other collateral data." Va.Code Ann. § 19.2-264.3:1.1(B)(3). Thus, on remand, the district court may properly consider the scores from these tests, even though they were administered well after Walton's eighteenth birthday. Cf. Walker, 399 F.3d at 323 n. 7. [FN9]

*11 On remand the district court may have to consider Walton's "limitations in adaptive behavior" before age eighteen--another essential element of his claim. Because the court rejected Walton's Atkins claim due to his asserted failure to proffer sufficient evidence of mental retardation, the district court did not reach any conclusions as to this element. We note only that, as required by statute, Walton has set out a number of facts, which, if credited, tend to indicate significant limitations in adaptive behavior.

Walton would ordinarily not be entitled to an evidentiary hearing on remand because he has "failed to develop the factual basis of [his Atkins ] claim in State court." 28 U.S.C. § 2254(e)(2)(2000). But because Atkins was decided after the denial of his direct appeal and state habeas petition became final, he cannot be held accountable for failure to raise this claim in state court. See Va.Code Ann. § 8.01-654.2 (providing that the "sole remedy" for people in Walton's position, who have "completed both a direct appeal and a habeas corpus proceeding" under Virginia law, "lie[s] in federal court"); Walker, 399 F.3d at 319, 326-27.

At the evidentiary hearing held on remand, the parties will have the opportunity to demonstrate the reliability vel non of Walton's first IQ test and the persuasiveness of other possible mental retardation evidence, including evidence as to the Flynn Effect, measurement error, other IQ tests, and adaptive behavior. We make no determination as to the validity of Walton's arguments on any of these points; we hold merely that Walton is entitled to be heard on them.

Focus

Due to the lenghth of the excerpts in Walton, Focus will return next week.

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