U.S. v. Davis

• Decision Date: 24 April 2009
• Docket Number: Criminal No. RWT-07-0199.
• Parties: UNITED STATES of America v. Earl Whittley DAVIS, a/k/a Baby Earl, and "E", Defendant.
• Court: U.S. District Court — District of Maryland

Page 472

611 F.Supp.2d 472

UNITED STATES of America v. Earl Whittley DAVIS, a/k/a Baby Earl, and "E", Defendant.

Criminal No. RWT-07-0199.

United States District Court, D. Maryland.

April 24, 2009.

Deborah A. Johnston, Office of the U.S. Attorney, Greenbelt, MD, for Plaintiff.

John Hanjin Chun, Office of the Federal Public Defender, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

PART 1: INTRODUCTION

The defendant, Earl Whittley Davis, has been indicted for a number of federal crimes relating to the robbery and murder of Jason Schwindler on August 4, 2004. The charge of murder by use of a firearm in furtherance of a Hobbs Act robbery in violation of 18 U.S.C. § 924(j) is a death-eligible offense. On April 8, 2008, the government filed formal notice of its intent to seek the death penalty.

The Federal Death Penalty Act, enacted in 1988, provides that a "sentence of death shall not be carried out upon a person who is mentally retarded." 18 U.S.C. § 3596(c). Fourteen years later, the federal policy embodied in the Act became a constitutional imperative when, in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that execution of a mentally retarded defendant would constitute a "cruel and unusual punishment" prohibited by the Eighth Amendment.

Mental retardation is not a defense, nor is the lack of mental retardation an element of a crime that the government must prove beyond a reasonable doubt in order to impose the death penalty. See Walker v. True, 399 F.3d 315, 326 (4th Cir.2005). Rather, it is a condition, the existence of which disqualifies a person from capital punishment, but certainly not all punishment, including life in prison. See Atkins, 536 U.S. at 306, 122 S.Ct. 2242 ("Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes.").

In December 2008, the defendant filed a motion requesting a pretrial hearing on the question of whether imposition of the death penalty in this case should be barred because he is mentally retarded. The defense argued that it is both efficient and practical for a trial judge to determine whether a capital defendant is mentally retarded prior to trial, due to the significant amounts of time, money, and effort that could be saved by eliminating an unnecessary penalty-phase proceeding. The government disagreed, and urged the Court to address the mental retardation issue during the sentencing proceeding in order to avoid duplicative presentation of evidence relevant to both mental retardation and mitigation, and so that there would be only one appeal and no delay in the start of trial.

The Court concluded that the defendant's arguments were more sound, and consistent with every other federal court that had addressed the issue. Consequently, because mental retardation is a disqualifying condition, the Court granted the defendant's motion and assigned to him the burden of establishing, by a preponderance of the evidence, that he is mentally retarded. See United States v. Hardy, 2008 WL 1743490 (E.D.La. Apr. 10, 2008) (finding that question of mental retardation should be resolved by the judge at a pretrial hearing, and burden should be on defendant by preponderance of the evidence); United States v. Nelson, 419 F.Supp.2d 891 (E.D.La.2006) (same); United States v. Sablan, 461 F.Supp.2d 1239 (D.Colo.2006) (same).

After the experts retained by each party had an opportunity to evaluate the defendant and prepare reports for the Court, the hearing on the issue of mental retardation began on March 24, 2009. The hearing lasted six days, during which the Court heard extensive expert and fact testimony that is summarized and discussed below. For the reasons explained in this opinion, the Court concludes that the defendant has abundantly satisfied his burden of proving his mental retardation by a preponderance of the evidence and, accordingly, the government will not be permitted to seek a sentence of death.

I. Mental Retardation—A Primer For Capital Cases

In Atkins, the Supreme Court noted that "to the extent there is a serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus." 536 U.S. at 317, 122 S.Ct. 2242. The Court then left to the states the task of developing standards and appropriate ways to enforce the constitutional prohibition. Id.

The Atkins court cited two professional organizations for their definitions of mental retardation—the American Association On Mental Retardation (AAMR), and the American Psychiatric Association—and noted that their definitions were "similar." Id. at 308 n. 3, 122 S.Ct. 2242. Since Atkins, other federal courts have applied these same definitions, noting that the two definitions are essentially identical.

The definition of mental retardation is effectively three-pronged. An individual must have (1) significantly below average intellectual functioning, (2) significant deficits in adaptive behavioral skills, and (3) onset of the condition before age eighteen.

A. Definitions of Mental Retardation

The AAMR¹ is an organization of professionals and citizens concerned about intellectual and developmental disabilities. Its mission is to "promote[ ] progressive policies, sound research, effective practices and universal human rights for people with intellectual and developmental disabilities." American Association On Intellectual and Developmental Disabilities, Mission Statement, http://www.aamr.org/content_443. cfm?navID=129 (last visited April 14, 2009). The AAMR defined mental retardation in its 2002 manual as follows:

Mental retardation is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior, as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.

AAMR, Mental Retardation: Definition. Classification, and Systems of Support 8 (10th ed.2002) (hereinafter, "AAMR 2002" or "AAMR manual").

A "significant" limitation in intellectual functioning is best represented by an IQ score that is approximately two standard deviations below the mean as measured by appropriate instruments, and in consideration of the standard error of measurement (SEM). Id. at 14, 37. Most standardized IQ assessment tests are normalized so that the average score is 100 with a standard deviation of 15. Therefore, an IQ score two standard deviations below the mean—the benchmark for mental retardation—is approximately 70. However, the SEM in IQ assessments is approximately 5 points, therefore raising the operational definition of mental retardation to 75. AAMR 2002 at 58-59; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41-42 (4th ed., text rev.2000) (hereinafter, DSM-IV-TR) ("it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior").

The operational definition of a "significant" limitation in adaptive behavior requires performance of at least two standard deviations below the mean of either (a) one of the following three types of adaptive skills: conceptual, social, and practical, or (b) an overall score on a standardized measure of conceptual, social, and practical skills. AAMR 2002 at 76.

The AAMR manual also specified five additional assumptions that should be included as part of the application of the definition of mental retardation. One of these assumptions is particularly salient in the context of this case:

Assumption 3: "Within an individual, limitations often coexist with strengths." This means that people with mental retardation are complex human beings who likely have certain gifts as well as limitations. Like all people, they often do some things better than other things. Individuals may have capabilities and strengths that are independent of their mental retardation. These may include strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.

AAMR 2002 at 8.

The American Psychiatric Association's definition of mental retardation is similar:

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, heath and safety (Criterion B). The onset must occur before age 18 (Criterion C).

DSM-IV-TR at 41. All experts who testified in this case agreed that the two definitions are essentially the same, and both are recognized as authoritative.

The DSM-IV-TR states that four approximate levels of severity of mental retardation can be specified, reflecting the level of intellectual impairment. Individuals with mild mental retardation (MMR) have IQs in the range of 50-55 to approximately 70, and represent about 85% of all individuals with the disability. Individuals with IQs of 35-40 to 50-55 are considered to have moderate mental retardation; IQs of 20-25 to 35-40 are indicative of severe mental retardation; and IQs below 20-25 are indicative of profound mental retardation. See DSM-IV-TR at 42-43.

C. Developmental Nature of Mental Retardation

Mental retardation (MR) is characterized as a developmental disability because persons with mental retardation do not acquire skills during the developmental period (i.e., birth to age 18) at the same rate as those without it. This...