Saturday, May 29, 2010

Court decision: So Close, Yet So Far Away – Or How the Burden of Proof Matters (Ramirez v AZ 2010) - Guest post Kevin Foley

Below is another guest blog post (by Kevin Foley) re: the recent denial of post conviction relief from execution due to mental retardation/intellectual disability.  As per ICDP guest post policy, these guest posts are presented "as is" with additional URL links added by the blogmaster.  Any guest post does not necessarily represent the opinions of the ICDP blogmaster.  Kudos Kevin F for continuing to provide thought provoking guest posts.

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Is another “intellectually disabled” death row inmate due to slip through the cracks?  Arizona inmate David Martinez Ramirez presented a Post Conviction Relief (PCR) claim in the Superior Court for Maricopa County seeking a ruling that he was exempt from the death penalty due to mental retardation.  His claim was heard by a judge (not a jury) who denied his claim on the basis that Ramirez “failed to show by clear and convincing evidence that he is mentally retarded.”[1] However, a review of the court’s opinion begs the question whether Ramirez would have prevailed had the burden of proof been the more common, “by a preponderance of the evidence” standard.

In his opinion, the trial judge, Thomas W. O’Toole, specifically concluded that, “If the Flynn Effect was required to be used in scoring these tests, the court finds that the defendant has proved by a preponderance of the evidence that his full score IQ score is 70 or lower.”[2]  Similarly, the court stated that, “the conflicting evidence shows by a preponderance of the evidence that the defendant had significant adaptive behavior deficits” and “THE COURT FINDS by a preponderance of the evidence that the onset of the Defendant’s adaptive behavior deficits occurred before he reached the age of 18.”[3]

The bottom line of Ramirez is that – with the application of the Flynn Effect – and considering the court’s statements surrounding the elements of a mental retardation (IQ of 70 or below, adaptive behavior deficits, and onset before age 18), Ramirez would have been found to be mentally retarded, except for the application of the heavy-handed “clear and convincing” burden of proof.

Another court, applying the same or similar facts using the lesser standard of proof of “preponderance of the evidence” could achieve– and in fact has achieved - a different result. In the matter of Kenneth Glenn Thomas, the federal habeas court was also faced with multiple IQ scores from an extended period of time, including a high score of 77 – the same highest score obtained by Ramirez.[4]  Despite the objections of the state concerning the district court’s application of the standard error of measurement and the Flynn Effect, the federal appeals court held that the district court’s application of these concepts was not reversible error. The Eleventh Circuit observed that, “The district court considered the Flynn Effect just as it considered the other evidence in the record” and it “exercised its discretion to consider the SEM  . . . and we cannot say that this was clear error.”[5]

While every case has different facts, and I cannot say beyond peradventure that Ramirez is intellectually disabled, it certainly looks like the outcome turned on the burden of proof.  Is this what the U.S. Supreme Court envisioned – different outcomes depending on what state the person calls home?

1  Ruling, State v. Ramirez, Maricopa County Super. Ct. Case No. CR 1989-005726 (Apr. 4, 2007), rev. denied, Case No. CR-07-0177 (Ariz., Nov. 29, 2007) (unpub.), cert. denied, 553 U.S. 1056 (2008).
2  Id. at 4 (n. 5). One could argue that the court would have reached the same conclusion even if the preponderance standard was used – in light of the court’s resolution of the Flynn Effect issue. However, the court appeared to resolve the Flynn Effect issue as an issue of fact, not a matter of law. This assertion is borne out by the  court’s analysis surrounding the Flynn Effect and the court’s discussion of the different experts’ approach to using (or not) the Flynn Effect in calculating IQ scores and whether the WAIS-III manual recommends that it be applied.  So it is equally arguable that the court would have applied the Flynn Effect if the preponderance standard was used, and the fact that it did not was because the clear and convincing standard was used.
3  Id. at 7.
4  Ramirez obtained an 87 on one testing, but the court seemed to reject this score because “the practice effect skewed and raised the score to 87”. Id. at 2.
5  Thomas v. Allen, __ F. 3d __, Case No. 09-12869 (11th Cir., May 27, 2010).

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