(CN) - Supreme Court justices appeared skeptical Monday of Louisiana's explanation for denying a death-row inmate a hearing on whether he is mentally retarded.
A jury ordered the death penalty for Kevan Brumfield in 1995 after finding him guilty of first-degree murder related to the death of Betty Smothers, a corporal in the Baton Rouge, La., police department.
Though Brumfield had never the issue of mental retardation before, he challenged his conviction on that basis after the Supreme Court prohibited states from executing the mentally impaired with the 2002 case Atkins v. Virginia.
State courts denied Brumfield an Atkins hearing, but the inmate finally obtained one in 2010 and a federal judge for the Middle District of Louisiana ultimately granted Brumfield a writ of habeas corpus in 2012 on the grounds that he is mentally retarded and therefore ineligible for execution.
The 5th Circuit reversed earlier this year, however, because it found that the Middle District did not give the state court's determination appropriate deference.
Brumfield's attorney Michael DeSanctis told the U.S. Supreme Court today that Brumfield's IQ score of 75 is absolute evidence of his ineligibility for the death penalty.
"That's not just suggestive of intellectual disability; that's actual evidence of intellectual disability and there was no testimony in the record to the contrary," DeSanctis said.
There was "overwhelming evidence" of Brumfield's mental impairment before the state court that reasonably entitled Brumfield to a competency hearing, the attoney told the justices.
"It was in the record before the state court that Mr. Brumfield, quote, 'has a basic deficit somewhere in his brain,'" DeSanctis said.
In addition to the fact that Brumfield was in special education from the third grade, the attorney noted that he was in and out of mental hospitals throughout his childhood, and was in trouble with the law from an early age.
DeSanctis said the federal district court correctly found the state court's denial of a competency hearing "entirely unreasonable," and violated Louisiana's own standard that a defendant provide "some reason to believe that [he or she] is intellectually disabled."
Justice Samuel Alito told Brumfield's attorney: "I think you're making a strong argument that is purely a factual argument about this case, that you are not making an argument about the categorical rule about not considering evidence at a pre-Atkins penalty phase proceedings."
When attorney Premila Burns began her argument for the state, Justice Stephen Breyer immediately told her, "You did not argue that on the basis of the evidence produced at the federal hearing, that this man was not intellectually disabled. You have put all your eggs in the basket of, on the record that didn't permit a hearing, he didn't make out a threshold finding."
Burns agreed, saying the state has taken the position that Brumfield was never entitled to a hearing on his competency.
Justice Sotomayor said, "So if we disagree with that ... what are you left with?"
Burns said in that case, the matter should be remanded to the 5th Circuit for review of the facts.
Justice Elena Kagan said that, given Louisiana's fairly low bar for winning a hearing, a defendant must present "some evidence" as to his mental capacity. "It looks awfully like an unreasonable determination of the facts to say that this record does not meet that standard," Kagan said.
Burns emphasized that the state court made its decision on the entirety of the record. "It cannot be taken in a vacuum as counsel would have you believe that this judge was myopic," she told the jurices.
On rebuttal DeSanctis said: "I want to emphasize that this court recently recognized that it's unconstitutional to create an unacceptable risk that persons with intellectual disability will be executed. The state court's determination of the facts in this case created precisely that risk. And now that we're here, it's not just risk; it's certainty. The only court to provide Mr. Brumfield with a hearing found that he is intellectually disabled, and unless this court reverses the 5th Circuit's erroneous ruling, an intellectually disabled person will be executed."