Smith v. Ryan
| Decision Date | 29 November 2012 |
| Docket Number | No. CV-87-234-TUC-CKJ,CV-87-234-TUC-CKJ |
| Parties | Robert Douglas Smith, Petitioner, v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
DEATH PENALTY CASE
This matter is before the Court on remand from the Ninth Circuit Court of Appeals "for the limited purpose of considering Smith's Atkins claim." (Doc. 254 at 2.) For the reasons set forth herein, the Court determines that Petitioner is not entitled to habeas relief.
The lengthy factual and procedural history of this case was set forth in a previous order and will not be repeated here except as relevant to Petitioner's remaining claims. (Doc. 239 at 1-6.)
After numerous and varied appellate proceedings, the Ninth Circuit suspended Petitioner's federal habeas appeal and directed the state court to determine whether Petitioner's alleged mental retardation rendered him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Smith v. Schriro, No. 96-99025 (9th Cir. Dec. 12, 2005). After extensive discovery and an evidentiary hearing, Pima County Superior Court Judge Jan Kearney ruled in March 2008 that Petitioner had failed to meet his burden ofestablishing mental retardation under A.R.S. § 13-703.02. The Arizona Court of Appeals affirmed in an unpublished memorandum decision, Smith v. Kearney, No. 2CA-SA-2008-0019, 2008 WL 2721155 (Ariz. App. Jul. 11, 2008), and the Arizona Supreme Court summarily denied discretionary review. Thereafter, the Ninth Circuit remanded the matter to this Court for an evidentiary hearing on whether Petitioner had cause and prejudice to overcome the procedural default of a claim alleging ineffective assistance of sentencing counsel. Smith v. Schriro, No. 96-99025 (9th Cir. Feb. 26, 2009.) The parties engaged in discovery and filed supplemental briefs. Following a hearing in May 2010, Chief United States District Court Judge John M. Roll found that Petitioner had failed to establish cause. (Doc. 239.)
In September 2010, the Ninth Circuit remanded again, this time for the limited purpose of considering Petitioner's Atkins claim. Smith v. Schriro, No. 96-99025 (9th Cir. Sept. 10, 2010). The matter was reassigned to the undersigned judge in February 2011, and the Court granted Petitioner's motion to amend his habeas petition to add several new claims arising from pursuit of state court relief under Atkins. (Doc. 269.) Petitioner filed a supplemental merits brief and Respondents filed a response (docs. 272, 274); Petitioner did not file a reply. Subsequently, the parties filed additional supplemental briefs regarding the effect of Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Maples v. Thomas, 132 S. Ct. 912 (2012), to the cause issue decided by Judge Roll and whether this Court has jurisdiction to reconsider that issue. (Docs. 278, 279.)
In Atkins, the Court held that the Eighth Amendment prohibits the execution of individuals who are "so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus." 538 U.S. at 317. The Court refrained from mandating specific procedures for determining retardation, instead leaving "to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences." Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986)(brackets and internal quotation marks omitted)).
In Arizona, a defendant must prove mental retardation to a trial court by clear and convincing evidence. See A.R.S. § 13-703.02(G) (West Supp. 2007).1 Mental retardation is defined as "a mental deficit that involves significantly subaverage general intellectual functioning, existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen." A.R.S. § 13-703.02(K)(3) (West Supp. 2007). "Significantly subaverage general intellectual functioning" means a full scale intelligence quotient (IQ) of 70 or lower. A.R.S. § 13-703.02(K)(5) (West Supp. 2007). An IQ test score of 65 or lower establishes a rebuttable presumption of retardation. A.R.S. § 13-703.02(G) (West Supp. 2007); State v. Arellano, 143 P.3d 1015, 1019 (Ariz. 2006). "Adaptive behavior" means the effectiveness to which an individual meets the standards of personal independence and social responsibility expected of that person's age and cultural group. A.R.S. § 13-703.02(K)(1) (West Supp. 2007). To establish mental retardation, a defendant must prove all three elements—the intellectual functioning prong, the adaptive behavior prong, and onset before the age of eighteen. See State v. Roque, 141 P.3d 368, 402 (Ariz. 2006).
Following remand from the Ninth Circuit, intellectual functioning testing was conducted by Dr. Sergio Martinez, a psychologist, and Dr. Thomas Thompson, aneuropsychologist. Dr. Martinez determined that Petitioner had an IQ score of 91 on the Wechsler Adult Intelligence Scale-III and a score of 89 on the Slosson Intelligence Test-Revised, which is within the low-average to average range of intellectual ability. Dr. Thompson, using the Reynolds Intellectual Assessment Scale, determined that Petitioner had an IQ score of 87, which Dr. Martinez adjusted to 93 due to scoring errors later acknowledged by Dr. Thompson. Dr. Albert Johnstone, a psychologist, undertook quantitative electroencephalography (QEEG) testing at Dr. Thompson's suggestion and opined that Petitioner has a lack of connectivity in the left hemisphere of his brain, which may be related to a language disorder, and mild dysfunction of the right frontal lobe region, which may correlate to impulsivity and anxiety.
The state court held a two-day hearing in late 2007, addressing both Petitioner's Atkins claim and the State's motion to preclude evidence of the QEEG test results. Four experts testified, and the Court admitted numerous records as well as deposition transcripts of 12 lay witnesses.
Dr. Johnstone testified concerning QEEG testing, which involves measuring brain electrical activity from numerous locations on the scalp. He explained that QEEG takes these signals and further analyzes them to detect patterns of frequency. These patterns are then compared, to check for statistically significant deviations, to a commercially-available database of frequencies obtained from a group of individuals who have no symptoms of neurological psychiatric disease and are described as "normal." In rebuttal, the State solicited testimony from Dr. Marc Nuwer, head of the UCLA Medical Center's clinical neurophysiology department. According to Dr. Nuwer, the Academy of Neurology and the American Clinical Neurophysiology Society do not consider QEEG brain mapping to be a useful technique for assessing neurobehavioral or psychological issues and recommend against its use in the courtroom setting. He described interpretation and database problems, noting that QEEG testing flags as statistically abnormal a lot of things in normal individualsthat are not attributable to injury or disease. In his opinion, neither QEEG nor MRI and CT scans would be reliable tests for determining the presence of mental retardation. With respect to the QEEG testing in this case specifically, Dr. Nuwer opined that Dr. Johnstone's findings concerning Petitioner's left hemisphere and right frontal lobe lacked clinical significance and did not provide evidence of either mental retardation or brain damage.
Dr. Thompson testified that there is a high probability Petitioner was retarded at the time of the offense in 1980, but that his functioning improved as a result of a structured prison life and appropriate medication. He concluded that Petitioner was not retarded as a result of a head injury or genetic disorder, but rather due to a dysfunctional environment and resulting frontal lobe dysfunction. Dr. Thompson based his conclusion on the following data points:
Otis Intelligence Scale
School records appended to the presentence report (PSR) indicate that at age 15, Petitioner twice was administered the Otis Intelligence Scale, scoring 62 and then 71. Dr. Thompson testified that the Otis test was developed in 1917 as part of intelligence testing created for the Army, had not been normed against various populations, and would not be an appropriate tool for measuring intelligence today. He also acknowledged that the raw data from Petitioner's Otis testing was not available, and that there was no way of knowing who administered the test, whether appropriate protocols were followed, how Petitioner behaved during the testing, and whether the test was administered individually or as a group, all information that would assist in determining validity of the scores.
School records also document low Stanford Achievement scores and poor grades. In his report, Dr. Thompson noted that Petitioner's language score on the Stanford ranged from the 2nd to 5th percentiles and his arithmetic score was at the 2nd percentile. This means, according to Dr. Thompson, that at age 15 Petitioner scored five to seven years below his ageand grade level. Before dropping out at age 16, Petitioner received primarily D's and F's in his academic courses during his last two years of school.
There was no dispute that Petitioner was raised in an extremely dysfunctional family and was subjected to neglect and severe emotional and physical abuse. Dr. Thompson testified that this chronic stressful environment, combined with poor nutrition, extracted a toll on Petitioner in terms of cognitive functioning and impulse control. He explained that long-term exposure to stress hormones harms the brain's frontal lobes and leaves an individual susceptible to chronic depressive disorders as well as disorders in the executive functioning of the brain. In his view, instability is indicative of frontal lobe...
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