Oregon Supreme Ct - Dec. 3, 2015
by: Abassos • December 3, 2015 • no comments
Death Penalty - Atkins - Very Low IQ Is Not a Required Element of Intellectual Disability
It is possible for a person with a borderline IQ but low adaptive functioning to qualify as intellectually disabled such that the state is categorically prohibited from executing the person. Here, defendant was tried and sentenced to death when the DSM-IV-TR was the primary diagnostic manual. The DSM-IV-TR said that "significantly subaverage intellectual functioning" was a definitional component of what was then called mental retardation. Under the DSM-5 and the currently prevailing psychological/psychiatric view, intellectual functioning should be interpreted in conjunction with adaptive functioning in diagnosing intellectual disability. Defendant was consistently measured as having an IQ of 82-84, in the range for "borderline intellectual functioning." However, defendant's "adaptive functioning was equivalent to that of a seven-and-a- half-year-old and he had significant functional impairment in each of the 11 areas identified in the DSM-IV-TR for measuring adaptive functioning." His experts testified that the prevailing view was changing and advocated for what is now the DSM-5 definition. The court now finds that "even though the trial court’s ruling comported with the published standards existing at the time that the court ruled, we now conclude that the trial court did not apply now-current medical standards in determining that defendant had not met his burden of proof to show that he has an intellectual disability." Remanded for a new Atkins hearing to consider the evidence presented in light of the current standards. State v Agee, 358 Or 325 (2015).
Death Penalty - Atkins - There Is No Apprendi/Ring Right to Have the Jury Decide Whether the Defendant Is Intellectually Disabled
The question whether a defendant is intellectually disabled, and therefore categorically excluded from execution, is a legal one. That is, even if the jury decided that the defendant has an intellectual disability, it would not override or alter the decision the court must make, pursuant to Atkins, about whether the defendant is constitutionally allowed to be put to death. It is also not a question that the Sixth Amendment requires a jury to make because it is a factual finding that lowers the maximum allowable punishment. It does not raise the punishment above the statutory maximum (Apprendi), nor is it an element of the crime (Ring). "A finding of intellectual disability permits the defendant to 'escape the statutory maximum.'" State v Agee, 358 Or 325 (2015).
Death Penalty - Penalty Phase - A Defense Psychologist's Diagnosis is Relevant at the Penalty Phase, Even If the Judge Disagrees With the Diagnosis
A defense expert's diagnosis of intellectual disability meets the very low standard for OEC 401 relevance at the penalty phase of a capital trial. This is true even where the court conducted an extensive Atkins hearing pretrial and came to the conclusion that the defendant does not have an intellectual disability. As the U.S. Supreme Court has pointed out, “mental retardation for purposes of Atkins, and mental retardation as one mitigator to be weighed against aggravators, are discrete issues. . . defendant was entitled under ORS 163.150 and the Eighth Amendment to present that testimony to the jury during the penalty phase of his death penalty trial as mitigating evidence." Moreover, the error was not harmless: “It is the rare case in which this court can determine, when evidence relevant to [the fourth] question is excluded, that the evidence could not have affected” the jury’s decision whether to impose the death penalty. . . This is not that rare case." Sentence of death vacated. State v Agee, 358 Or 325 (2015).
Death Penalty - Penalty Phase - Co-Defendant's Life Sentence Is Relevant Mitigating Evidence
Defendant was entitled to have co-defendant's sentence of life admitted at the penalty phase of his capital trial. This was true even though co-defendant was constitutionally excluded from receiving the death penalty because of his intellectual disability. First, it reflects on the circumstances of the offense that co-defendant was so intellectually disabled as to require a life sentence because it was generally agreed that co-defendant was primarily responsible for the murder, including planning the crime and wielding the weapon that caused death. That defendant acted under co-defendant's influence reflects on his own intellectual deficits. Second, co-defendant's life sentence is itself mitigating. A conclusion that defendant should not receive death when his more responsible co-defendant received life would be entirely appropriate as a "reasoned moral response" under the fourth question. If a new penalty phase occurs on remand, such evidence must be admitted. State v Agee, 358 Or 325 (2015).
The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent
While a trial court has broad authority to determine whether a witness is really going to testify (or instead, assert the right to remain silent), there is a limit to that authority. That limit is crossed when the judge allows a detailed pretrial examination of a witness by one of the parties. Here, the defense planned to call a co-defendant (who had already pled guilty). The trial court had the defense conduct a limited examination about whether he was willing to testify. But on cross, the judge "effectively permitted an unlawful pretrial deposition of a defense witness . . . including asking leading questions to draw out a moment- by-moment description of . . . actions and statements leading up to and during the assault". Allowing such a detailed pretrial examination violated both the discovery rules (ORS 135.805 to ORS 135.873) and ORS 136.420, which provides that all testimony “shall be given orally in the presence of the court and jury". The court also finds the error to be harmless, however, since the defendant could identify no significant benefit gained by the state through having the additional information. State v Agee, 358 Or 325 (2015).
