U.S. Supreme Court won’t reconsider federal courts’ decision to strike down Kevan Brumfield’s death penalty sentence _lowres

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

The U.S. Supreme Court should reinstate Kevan Brumfield’s death sentence in the 1993 ambush slaying of Baton Rouge police Cpl. Betty Smothers because Brumfield is not, was not and never has been mentally disabled, prosecutors contend.

The East Baton Rouge Parish District Attorney’s Office is asking the high court to reverse U.S. District Judge James Brady, of Baton Rouge, and a New Orleans federal appeals court and reinstate state District Judge Richard Anderson’s 2003 conclusion that Brumfield is not mentally disabled.

Brady decided in 2012 that Brumfield, now 43, is mentally disabled and therefore ineligible for execution. After much legal back-and-forth, a three-judge panel of the 5th U.S. Circuit Court of Appeals affirmed Brady’s decision in December.

The U.S. Supreme Court, in Atkins v. Virginia in 2002, barred the execution of people found to be intellectually impaired.

In the Baton Rouge case, prosecutors Prem Burns and Monisa Thompson argue in a Supreme Court petition filed March 14 that Brumfield was never diagnosed with a mental disability in preparation for his 1995 capital murder trial in Anderson’s courtroom. Brumfield’s first allegation of mental disability, the prosecutors point out, came after the high court’s Atkins decision seven years later.

Psychologists Ricardo Weinstein, Stephen Greenspan and Victoria Swanson, expert witnesses for Brumfield, testified in Brady’s courtroom in 2010 that Brumfield is mentally disabled. But the state’s experts — psychiatrist Robert Blanche, psychologist Donald Hoppe and neuropsychologist John Bolter — testified he is not. Bolter was initially a defense trial expert for Brumfield.

Weinstein, according to Burns and Thompson, holds the “unique distinction” of being the first person to diagnose Brumfield as being mentally disabled. The diagnosis came in 2007, when Brumfield was 34, they note.

In his 2012 decision, Brady found Weinstein and Swanson “more credible” than the state’s experts.

“This credibility determination is overwhelmingly flawed, especially considering the facts that Drs. Weinstein and Swanson are active advocates against the death penalty,” Burns and Thompson allege in their petition to the Supreme Court.

The prosecutors say Swanson determined Brumfield was intellectually disabled before she met him and did not meet him until 2½ years after she wrote her report declaring him mentally disabled.

Greenspan, one of Brumfield’s experts, did not meet the convicted killer and did not give an opinion on his mental status because the psychologist did not think it was “ethical” or “professionally responsible” for him to make a mental disability diagnosis without meeting Brumfield, according to the petition by Burns and Thompson.

“Amazingly, this is exactly what … Dr. Swanson did,” the prosecutors claim.

Weinstein, they add, makes his living testifying in Atkins cases for the defense and has lectured on the defense circuit in “Making the Case for Life” seminars.

Nick Trenticosta, one of Brumfield’s attorneys, said Thursday he will file papers at the Supreme Court next month opposing the state’s petition.

As for the state’s experts, Burns and Thompson say Hoppe testified before Brady that Brumfield has a conduct disorder and an antisocial personality disorder but no mental disability. Blanche, the psychiatrist for the East Baton Rouge Parish Prison, likewise testified Brumfield’s case was a “classic case of conduct disorder,” the prosecutors say.

Bolter found Brumfield to have an attention deficit hyperactivity disorder and borderline intellectual functioning but nothing to suggest he was mentally disabled, they argue.

Burns and Thompson further claim that Brumfield was subjected to at least six intellectual assessments before the age of 18, and not one showed he was mentally disabled.

Cpl. Smothers, 36, a single mother of six children, was shot to death Jan. 7, 1993, outside a Jefferson Highway bank where she had driven a grocery store manager to make a night deposit as part of Smothers’ off-duty security job. The manager was wounded in the hail of gunfire but survived.

Burns and Thompson contend the facts of the crime negate Brumfield’s claim of intellectual disability.

“Brumfield’s adaptive skills in planning the robbery (scoping out the bank days in advance, renting a car off the street and purchasing the handguns) and then attempting to escape punishment (fleeing the scene, asking others to create alibis, disposing of the handguns and the car, and repeatedly lying to authorities) are strong evidence of satisfactory adaptive skills,” they maintain.

“The facts of this crime — with its premeditated aspects — lack the impulsiveness and nonleadership interaction often associated with mentally retarded individuals. …”

Smothers’ oldest child, former NFL running back Warrick Dunn, who starred at Catholic High School in Baton Rouge and Florida State University, has called Brumfield’s use of mental disability as a defense “offensive and morally wrong.” Smothers was killed two days after Dunn’s 18th birthday.

A second Baton Rouge man, Henri Broadway, is on death row in the Smothers case. He was accused of firing bullets into her police car and wounding the grocery store employee. Brumfield was accused of fatally shooting Smothers.

Broadway, 45, is seeking a new trial, claiming his trial attorneys were ineffective.