OH Supreme Court Reverses Death Penalty Case

Clifton White will not be executed. The Ohio Supreme Court today ruled a judge erred in substituting his opinion for that of experts as to whether White was mentally retarded. Case synopis here and the full opinion is here. (pdf).

In 2002, the Supreme Court in Atkins v. Virginia banned execution for the mentally retarded as cruel and unusual punishment. White was pursuing post-conviction relief at the time.

Later that year, the Supreme Court of Ohio in State v. Lott established criteria and procedures to be applied ....a petitioner is required to show by a preponderance of the evidence:

  • “(1) significantly subaverage intellectual functioning,
  • (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and
  • (3) onset (of the intellectual and adaptive limitations) before the age of 18.”

The trial court in White's case appointed experts and held a hearing. Both the state's expert and the defense expert determined he met the criteria. [More...]

the Summit County Court of Common Pleas appointed experts and conducted an evidentiary hearing on White’s claim. At that hearing, both the expert psychologist selected by the state and the expert psychologist selected by the defense testified that, based on their examinations of White, the results of scientific tests and information they gathered from persons who had known and interacted with White, he met the three Lott criteria for classification as mentally retarded.

Nonetheless, the trial judge disagreed:

Notwithstanding the testimony of the expert witnesses, however, the trial court ... agreed that White’s low scores on intelligence tests met the “subaverage intellectual functioning” test in Lott, but held that White had not presented evidence sufficient to establish a significant lack of adaptive skills or the onset of his limitations prior to age 18, and therefore failed to meet the second and third parts of the Lott test.

The Ohio Supreme Court ruled today the Judge was wrong.

“According to the undisputed testimony of the expert witnesses in this case, the facts stated in Kawczk’s testimony are in no way inconsistent with mild mental retardation. The mentally retarded are not necessarily devoid of all adaptive skills. Indeed, ‘they may look relatively normal in some areas and have certain significant limitations in other areas.’ Mildly retarded persons can play sports, write, hold jobs, and drive. ... For example, the trial court’s opinion mentions twice that White was a licensed driver. However, Dr. Hammer testified that a mildly retarded individual can qualify for a driver’s license and that licensed-driver status is not a good criterion for distinguishing between people who are and are not retarded.”

“Similarly, the trial court found that White ‘was adept at video games, including ... “Mortal Kombat.”’ It is not clear, however, what relevance White’s video-game skills have to mental retardation. Dr. Hammer testified that Mortal Kombat ‘doesn’t require a lot of planning [or] strategizing’ and can be played by children younger than ten. ... We conclude that the trial court abused its discretion when it determined that White had failed to prove the existence of significant adaptive-skills limitations. In this case, the trial court failed to set forth any rational basis grounded in the evidence for rejecting the uncontradicted testimony of two qualified expert witnesses in the field of psychology.”

The Court found further error by the Judge on the third prong of the test,:

....which was that White failed to demonstrate that his intellectual and adaptive deficits were present prior to the age of 18. While the trial court found that White had not affirmatively proved onset before age 18, Justice Cupp found that conclusion to be based almost entirely on the absence of scientific test results because White had not been given either an IQ or an adaptive skills test before age 18.

...Justice Cupp wrote: “We think the trial court, by rejecting well-supported expert opinion regarding pre-18 onset without any evidence to the contrary, abused its discretion. The trial court gave too much weight to the fact that White’s adaptive skills were never tested before age 18.

....While noting that a trial court “is not required to automatically accept expert opinions offered from the witness stand,” Justice Cupp wrote: “(E)xpert opinion ‘may not be arbitrarily ignored’ ... While the trial court is the trier of fact, it may not disregard credible and uncontradicted expert testimony in favor of lay witnesses or the court’s own expectations of how a mentally retarded person would behave. Doing so takes an arbitrary, unreasonable attitude to the evidence before the court and results in an abuse of discretion.”

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    I've learned more (none / 0) (#1)
    by eleanora on Wed Apr 09, 2008 at 04:52:42 PM EST
    about the death penalty since I started reading this blog. I can't believe that a judge would take "Mortal Kombat" skill into consideration on such a deeply serious matter. The more I learn, the more I think we're just not smart enough to make sure that that penalty is saved for the most serious crimes, carried out with all due process protections, and is only applied to resoundingly, unquestionably guilty offenders.

    What do you think of the argument (none / 0) (#2)
    by sarcastic unnamed one on Wed Apr 09, 2008 at 05:01:48 PM EST
    that these days, anyway, DP cases (like this one) get appealed and appealed and appealed until there is no doubt of guilt?

    NonSequitur (none / 0) (#3)
    by squeaky on Wed Apr 09, 2008 at 05:10:28 PM EST
    The Judge clearly asserted arrogance and misjudgment over a fairly black and white rule of law. BOth the state and defense experts were uncontested in their determination that the defendant was mentally retarded and therefore not punishable by death.

    Your question obviously is meant to hijack the thread, no?


    Don't be an @ss. (none / 0) (#11)
    by sarcastic unnamed one on Thu Apr 10, 2008 at 11:46:47 AM EST
    I am responding directly to her comment:
    The more I learn, the more I think we're just not smart enough to make sure that that penalty is saved for the most serious crimes, carried out with all due process protections, and is only applied to resoundingly, unquestionably guilty offenders.

    OK (none / 0) (#13)
    by squeaky on Thu Apr 10, 2008 at 12:03:55 PM EST
    Perhaps your writing needs work then (as mine does usually), because your comment seems to be starting a discussion about the Death Row appeals process and not about this case.

    As you know Death Row appeals is a very contentious issue that many on the right want to do away with.  


    I think it shows profound ignorance (none / 0) (#5)
    by fuzzyone on Wed Apr 09, 2008 at 06:10:45 PM EST
    First, guilt and innocence are not at issue in this case.  The Supreme Court has said that people with mental retardation can not be executed, period.

    Second, you need to understand the kind of judges hearing these cases and the pressure they are under to do nothing.  There are plenty of cases, particularly in states like TX, VA, etc that have gone through the state courts with huge problems and not gotten relief till federal court.  Unfortunately the AEDPA (signed by Bill Clinton) has made it harder for federal courts to grant relief.  Don't kid yourself, a lot of review does not mean good review.


    Not even worth responding to. (none / 0) (#12)
    by sarcastic unnamed one on Thu Apr 10, 2008 at 11:48:05 AM EST
    not a matter of "smart" (none / 0) (#7)
    by pluege on Wed Apr 09, 2008 at 06:31:14 PM EST
    its not a matter of whether we're smart enough or not (if that were possible, which it is not) - its not a matter of guilt. its the matter that we have no right, individually or as a society to murder anyone - period - and majority opinion will never make it so.

    This is an important and well written decision (none / 0) (#4)
    by fuzzyone on Wed Apr 09, 2008 at 05:51:41 PM EST
    The argument that a person with mental retardation should be executed because they could drive, or bag groceries, or live on their own is one that you see all the time in these cases and one that reflects a profound lack of understanding of what mental retardation is.  Plenty of people with mental retardation can do those things but still have profound deficiencies in their cognitive abilities.  While I think executing anyone is a moral outrage, executing a person with mental retardation is even more of one.  Thanks for the post.

    Justice Still In Danger (none / 0) (#6)
    by pluege on Wed Apr 09, 2008 at 06:23:46 PM EST
    so now they're going to remove from office a judge that would intentionally discount expert opinion in order to murder someone - RIGHT?

    As I have stated in other posts (none / 0) (#8)
    by Florida Resident on Wed Apr 09, 2008 at 07:05:25 PM EST
    the death penalty is an aberration and no civilized society should do it.  

    Its not an aberration (none / 0) (#10)
    by pluege on Wed Apr 09, 2008 at 09:08:46 PM EST
    its barbarism and its all too real in barbaric countries such as the US.

    Nice for a change (none / 0) (#9)
    by txpublicdefender on Wed Apr 09, 2008 at 07:14:37 PM EST
    It's nice to read such a well-reasoned opinion from a state court on this issue.  My experience in Texas is that prosecutors often call no expert to rebut a defense expert, but instead rely on these lay witnesses to talk about how someone can play cards and drive and hold a job.  The fact that the ability to do those things is completely irrelevant to the definition in the literature of retardation is meaningless.