Magazine article Developments in Mental Health Law

Tenth Circuit Finds Right to Counsel in Post-Conviction Proceeding to Determine Whether Mental Retardation Bars Imposition of Death Penalty; Rejects Use of Flynn Effect in Determining IQ

Magazine article Developments in Mental Health Law

Tenth Circuit Finds Right to Counsel in Post-Conviction Proceeding to Determine Whether Mental Retardation Bars Imposition of Death Penalty; Rejects Use of Flynn Effect in Determining IQ

Article excerpt

Although there is no right to counsel in post-conviction proceedings, the Tenth Circuit has held that a capital defendant has a Sixth Amendment right to counsel in a post-conviction (Atkins) hearing conducted after his original conviction to determine whether he is mentally retarded (intellectually disabled). Such a finding would bar imposition of the death penalty. The Court then proceeded to review each of the defendant's claims of ineffective assistance of counsel, rejecting all of them except one, but finding no cumulative evidence or prejudice on that claim to warrant overturning the jury verdict. On review of the jury's finding that the defendant was not mentally retarded, the Court found that the results of the defendant's numerous IQ tests fell within a "gray" area, but the scores were not entitled to be adjusted downward due to the "Flynn" effect. Because there is no scientific consensus on its validity, failure to apply it is not "contrary to clearly established federal law." Finally, the Court found that defendant's trial counsel in the original trial was grossly ineffective during the sentencing phase, overturned the death sentence, and remanded the case to the Oklahoma courts for a new sentencing hearing. Hooks v. Workman, 689 F.3d 1148 (10th Cir. 2012).

Victor Hooks was convicted in 1989 of first degree murder of his common law wife and of first degree manslaughter of her unborn child. Hooks and his common law wife had lived together for four years and were the parents of a one-year-old daughter. His wife was also 24 weeks pregnant with their second child. After originally claiming that she had been beaten and raped while on a walk, Hooks confessed to police that they had been fighting, she slapped him, and he then struck her, knocked her to the ground and kicked her in the stomach and face. Subsequently he removed her clothing, put her in the bathtub, and shaved a portion of her head. Hooks then cleaned up the apartment and also removed blood from his one-year-old daughter who had been splattered in the course of her mother's beating.

Hooks was represented at trial by a private attorney hired by his mother. His attorney decided not to pursue an insanity defense believing there was an insufficient factual basis for it, but focused on obtaining a conviction for a lesser-included offense of second degree murder or first degree manslaughter, arguing that Hooks acted in the heat of passion and not with malice aforethought. There was some information that Hooks had been hit by an 18-wheel truck as a child and suffered a traumatic brain injury, and also suffered from chronic psychosis. The evidence also showed that Hooks had abused his wife on prior occasions and was convicted of armed robbery of a liquor store several years earlier. The trial court refused to instruct the jury on the lesser included offenses and the jury then found the defendant guilty of first degree murder, imposing the death penalty, and first degree manslaughter in the death of the unborn child, sentencing him to 500 years imprisonment on that charge.

Hooks challenged his convictions both on direct appeal and through post-conviction petitions for writs of habeas corpus. In 2002, 13 years after Hooks' conviction, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321 (2002) that, in light of a national consensus, the execution of a person with mental retardation is cruel and unusual punishment prohibited by the Eighth Amendment. Hooks then filed a second post-conviction petition alleging that he is mentally retarded. In 2004, after a six-day trial, a jury found him not to be mentally retarded. The Oklahoma Court of Criminal Appeals upheld the determination on both direct appeal and collateral review.

In deciding Atkins, the Supreme Court declined to establish a definition of mental retardation, but left it to the states to do so. In response to Atkins, the Oklahoma Court of Criminal Appeals established the following definition in case law:

   A person is "mentally retarded" (1) [i]f he or she functions at a
   significantly sub-average intellectual level that substantially
   limits his or her ability to understand and process information, to
   communicate, to learn from experience or mistakes, to engage in
   logical reasoning, to control impulses, and to understand the
   reactions of others; (2) [t]he mental retardation manifested itself
   before the age of eighteen (18); and (3) the [m]ental retardation
   is accompanied by significant limitations in adaptive functioning
   in at least two . … 
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