Provided Photo Baton Rouge police Cpl. Betty Smothers who was killed in 1993 (PP)

Thirteen years after barring the execution of mentally disabled inmates and 10 months after nullifying a strict IQ limit for determining who can be executed, the U.S. Supreme Court on Monday will wade once again into the ever-evolving death penalty waters when it hears arguments in the 1993 ambush slaying of Baton Rouge police Cpl. Betty Smothers.

Kevan Brumfield, one of two condemned triggermen in the killing of the 36-year-old Smothers outside a Jefferson Highway bank depository, claims he is intellectually disabled but was prevented from showing that by a Baton Rouge state judge who denied him a hearing and state funds to pursue his claim.

District Judge Richard Anderson’s 2003 ruling came the year after the high court, in the case of Atkins v. Virginia, forbade states from putting mentally disabled prisoners to death.

U.S. District Judge James Brady later gave Brumfield a hearing in Baton Rouge federal court, along with federal funds, and ruled in 2012 that Brumfield is intellectually disabled and ineligible for the death penalty.

Last year, that decision was reversed by a three-judge panel of the 5th U.S. Circuit Court of Appeals, setting the stage for Monday’s showdown at the Supreme Court.

Smothers, a mother of six children, was working an off-duty security job and had driven a grocery store assistant manager to the bank to make a night deposit when she was fatally shot shortly after midnight on Jan. 7, 1993. Smothers was shot five times and died. Kimen Lee, the Piggly Wiggly employee, was shot four times in the crossfire of two gunmen but survived. Juries convicted Brumfield and Henri Broadway, who also is on death row, of being those shooters.

Brumfield, who turned 20 the day he killed the police officer, was accused of shooting Smothers. Broadway, who was tried after Brumfield, was accused of firing some of the shots that wounded Lee.

The state’s attorneys argue in their Supreme Court brief that Brumfield scoped out the bank days in advance of the crime, rented a car and acquired both guns that were used.

Before the Supreme Court, attorneys are grappling with two questions:

Is it unreasonable for a state court to determine whether an inmate is intellectually disabled based on evidence from the penalty phase of his trial?

Has a state court that denies funding to an indigent inmate with no other means of obtaining evidence of his alleged intellectual disability denied the defendant his “opportunity to be heard” and his constitutional right to be provided with the “basic tools” for an adequate defense?

Son to attend arguments

Former Catholic High School, Florida State University and NFL running back Warrick Dunn, the oldest of Smothers’ children, will attend the Supreme Court arguments, said retired East Baton Rouge Parish Assistant District Attorney Prem Burns, who prosecuted the capital murder case and will argue the case at the high court as special counsel.

Dunn’s mother was killed two days after his 18th birthday. He declined to comment for this article through the DA’s Office but in a 2012 letter to The Advocate made clear that he supports the death penalty for Brumfield. “From my view, his use of ‘mental retardation’ as a defense is offensive and morally wrong,” he wrote.

Brumfield’s attorneys want the justices to reverse the 5th Circuit. The state’s attorneys are asking the top court to affirm the appeals court and Brumfield’s death sentence.

Capital Post-Conviction Project of Louisiana Director Gary Clements, who handles numerous Atkins-related issues but is not involved in the Smothers case, said Thursday he’s eager to see how the high court resolves the case.

As for whether the Brumfield case could have larger implications about how all courts decide whether someone is intellectually disabled and thus not eligible for execution, Clements said, “It isn’t going to be the sea change that came out in 2002 (in Atkins) or in Hall.”

Last May, in Hall v. Florida, the U.S. Supreme Court struck down that state’s law that prohibited anyone with an IQ of 70 or higher from being classified as mentally disabled, regardless of other evidence to the contrary.

Louisiana does not have an IQ cutoff for intellectual disability. Prior to the Hall decision, at least nine states had a strict IQ limit, an indication of the absence of a national consensus on how to determine mental disability.

Clements suggested the nation’s top court may have decided to hear Brumfield’s case so it can further refine the court’s restrictions on the death penalty.

In the Hall opinion, Justice Anthony Kennedy concluded that states should look to the clinical consensus for determining whether inmates are intellectually disabled and not fixate too strictly on an IQ cutoff.

In Brumfield’s case, there is no clinical consensus. Two psychologists testified in federal court that Brumfield is intellectually disabled. A psychiatrist, a psychologist and a neuropsychologist testified he is not.

Brumfield’s attorneys and the lawyers representing the state agree that the Louisiana Supreme Court — shortly after the Atkins decision in 2002 — adopted the clinical definition of intellectual disability endorsed by the high court in Atkins.

The U.S. Supreme Court, however, left to the states the task of adopting an appropriate standard for intellectual disability.

The Louisiana Supreme Court concluded that a diagnosis of mental disability has three distinct components: subaverage intelligence, as measured by objective standardized IQ tests; significant impairment in several areas of adaptive skills; and manifestations of the neuro-psychological disorder in the developmental stage, or before the age of 18.

In reversing Judge Brady in January 2014, the 5th Circuit said Anderson considered the intellectual functioning and adaptive behavior prongs of Louisiana’s test for intellectual disability and properly rejected Brumfield’s request for an evidentiary hearing on his claim that he is intellectually disabled.

Clements noted that not every inmate facing the death penalty is entitled to a so-called Atkins hearing.

“There’s no such thing as an automatic Atkins hearing,” he said.

Disputes about disability

Lawyers representing Brumfield argue in written briefs that Anderson, who was not Brumfield’s trial judge, relied on the court record from the penalty phase of Brumfield’s 1995 capital murder trial — a trial where intellectual disability was not an issue.

“No witness testified as to whether Brumfield was intellectually disabled or whether he met any of the clinical criteria that define intellectual disability. No witness was ever asked,” the defense attorneys, who include Nick Trenticosta, of New Orleans, and Michael DeSanctis, of Washington, D.C., point out.

“Seven years after Brumfield was sentenced, this Court recognized the nation’s ‘evolving standards of decency’ and articulated for the first time that the Eighth Amendment prohibits the execution of an intellectually disabled person,” they note.

But even during the pre-Atkins penalty phase of his trial, Brumfield’s attorneys contend, it was shown that Brumfield had scored an IQ of 75, that he has at best a fourth-grade reading level and spent much of his schooling in special education classes.

“The state court’s determination that these facts did not even require a hearing on Brumfield’s intellectual disability was patently unreasonable,” his attorneys argue. They say Louisiana courts recognize that an IQ of 75 indicates the possibility of intellectual disability.

Brumfield, who dropped out of school in the ninth grade, had an abusive childhood and six different stepfathers or other temporary father figures, his attorneys argue in their Supreme Court brief. Brumfield was committed to six out-of-home institutions beginning at the age of 12, they say.

Prosecutors insist Brumfield, who briefly held down jobs and fathered five children with three different women, is not intellectually disabled. They say he was evaluated at least six times before the age of 18 and not once was he diagnosed as intellectually disabled.

“His behavior as an adult shows Brumfield has adequate adaptive skills. Brumfield’s ability to orchestrate the sophisticated armed robbery that resulted in the cold-blooded murder of Corporal Betty Smothers provides definitive proof,” Burns and Assistant District Attorney Monisa Thompson argue in their brief.

The state’s attorneys also say Brumfield was given state funding prior to trial for investigation, mitigation and examination by psychologists.

In an interview, Burns acknowledged Brumfield is in the mildly intellectually disabled range.

“The IQ is not the issue to me,” she added. “It’s how he lives every day. He can certainly function on his own in society. He always took care of his wants and needs.”

Brumfield, 42, has drawn support in his case from a high-powered coalition.

Monday’s hearing will mark the first time in the history of the East Baton Rouge Parish District Attorney’s Office that the office will orally argue a case before the nation’s highest court.