The US supreme court heard arguments about the fate and mental condition of death row inmate Kevan Brumfield on Monday, in a case that asks the nine justices to decide whether a man deemed disabled by one court can be killed out of deference to the decision of another.
But the justices struggled even to determine the facts of what happened in a murder trial 20 years ago, frequently interrupting lawyers and losing patience with both sides’ inability to present a clear account of how Louisiana reviews mental disability.
Justice Antonin Scalia confessed he had not read the massive, 20-volume record of the case in its entirety, and doubted any of his colleagues would manage it either.
Chief Justice John Roberts and Justice Samuel Alito asked whether the court was trying to solve a constitutional question – are states obliged to grant mental disability hearings for questionable cases? – or whether it had taken on an isolated and almost impenetrable case.
Brumfield was sentenced to death in 1995 for the killing of an off-duty Baton Rouge police officer, Betty Smothers, seven years before the supreme court ruled that the execution of a mentally disabled person was unconstitutional.
Because mental disability was no impediment to execution before 2002, Brumfield did not argue he should be spared because of his mental condition in his original sentencing hearing.
After the supreme court’s decision, Brumfield asked a Louisiana court for a hearing to present evidence of a disability, but a judge refused on the grounds that evidence from the original trial was sufficient to settle his case.
When his case reached a federal court, a new judge decided Louisiana’s experts were unreliable and granted the hearing. After seven days of expert testimony, based on interviews with former teachers, coaches and friends and the assessment of psychologists, the judge agreed that Brumfield met the requirements to be considered mentally disabled.
Louisiana fought back on procedural grounds, and won in the fifth circuit, which ruled that the state was within its rights to use only the trial record in considering Brumfield’s abilities – and that the federal court should have deferred to the state, according to the Antiterrorism and Effective Death Penalty Act.
In oral arguments on Monday, the supreme court justices debated not whether Brumfield is mentally disabled but whether Louisiana had acted reasonably in denying Brumfield a hearing to argue a disability.
Brumfield’s attorney, Michael DeSanctis, struggled to lay out what standard he hoped the court would apply to his client.
Louisiana assistant district attorney Premila Burns in turn failed to explain how the state reviews evidence to determine a mental disability.
At times, the justices seemed ready to throw up their hands and abandon the case, although to do so would be tantamount to reaffirming Brumfield’s death sentence.
When the attorney representing Louisiana said the justices would have to read the entire record to understand the case, Scalia stuttered a disbelieving retort: “I mean, what – what your’e saying is, is, you don’t think it’s – it’s fantastical?”
Roberts asked the attorneys point blank: “What, what is the broader significance of that discussion here?” Samuel Alito later pressed the question – “There’s no broader legal issue involved here? No cross-cutting legal issue?” – only to hear disheartened equivocations in reply.
None of the eight judges who spoke showed much patience. Ruth Bader Ginsburg asked: “Is your point that we are involved in a wholly different inquiry [once the ban] is on the books?”
Sonya Sotomayor groped for the standard that the lawyers failed to define, reaching for “a sufficient amount of some evidence ... some reason to believe that an individual’s mental capacity is, is compromised”. She also expressed her frustration with Louisiana’s failure to make its standards clear, interrupting Burns: “Excuse me. Are we going around in a circle, a little bit of a circle?”
In yet another complicating twist, DeSanctis and Burns couldn’t even agree whether one doctor’s assessment of Brumfield was part of the record. “It’s actually an issue of debate whether [an expert] report was in the record,” DeSanctis told the justices.
Nonetheless, attorneys on both sides urged the court not to give up. DeSanctis asked the justices not to risk the execution of a man who had never had a chance to prove he should be exempt, and Burns suggested the court must set some standard or open the “floodgates” of murky, retroactive cases that varied state to state.
That the case may not resolve a broader problem of defining mental disability clearly irked the justices, who do not “take cases to right wrongs; they take cases to answer questions”, as Nicholas Trenticosta, a lawyer for Brumfield, told reporters before the arguments.
But although Trenticosta argued that “Kevan is not eligible to be executed”, he said the justices were rather trying to answer “esoteric, arcane questions” of law, such as whether the Louisiana court acted “unreasonably” and what constituted “clearly established law”.
Brumfield has shown in four tests he has an IQ of between 70 and 75 points, a range consistent with an intellectual disability.
As a child, Brumfield was placed in special education classes and struggled to comprehend the rules of basic games, said Susan Herrero, a psychologist and one of Brumfield’s lawyers. He has impaired adaptive abilities and plateaued at a fourth- or fifth-grade academic level, she said, and as an adult has relied on other death row inmates to draft letters that he was unable to write himself.
The state has shied away from addressing Brumfield’s abilities, instead fixing on whether evidence about those abilities should be allowed at all.
In past hearings, state prosecutors argued that Brumfield’s work dealing five-and-dime bags of drugs meant Brumfield was mentally able enough to hold down a job. But “these were things that any 10-year-old could do”, said Herrero.
The state also argues that Brumfield has an “impulsivity disorder” and is not technically disabled because he “was subjected to six evaluations before the age of 18 and not one diagnosed him”.
The district judge rejected this argument, agreeing with testimony that in the 1970s, Louisiana schools were urged not to label African American boys “mentally retarded” for fear of litigation.
Four possible outcomes
The justices are likely to decide the case in one of four ways.
They could rule that the Louisiana court should have provided funding to Brumfield to argue he had a disability.
They could rule that the Louisiana court should have provided funding – and that the federal court had the right to circumvent the Louisiana court with a hearing of its own.
Both of these outcomes would return Brumfield’s case to a lower court that would consider his disability.
The justices could also give up the case – or decide that the state court acted reasonably, freeing Louisiana to schedule Brumfield’s execution.
Only five justices remain on the court from the nine who declared the execution of mentally disabled people unconstitutional in 2002. Three of those five – Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer – voted with the majority in that case, while Antonin Scalia and Clarence Thomas dissented.
“Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members,” Scalia wrote in a separate dissent.
In the current court, Kennedy and Roberts could sway the decision should they stray from their more conservative colleagues, as Kennedy did in the 6-3 decision of 2002. That decision did not specify exact requirements to determine disabilities, leaving analysis largely to the states.
Although Brumfield confessed to Smothers’ killing in 1993, he has since said that police coerced the confession and that he is innocent.
In January, Texas executed a convicted rapist with an IQ of 67 and Georgia executed a convicted killer whose attorney had argued him disabled. The supreme court denied stays of execution for both men.
