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)

— Louisiana state courts and a federal appeals court got it wrong when they ruled against a convicted Baton Rouge murderer who is trying to escape the death penalty by showing he is intellectually disabled, the convicted man’s lawyer told the U.S. Supreme Court on Monday.

But retired East Baton Rouge Parish Assistant District Attorney Prem Burns, acting as a special counsel on the case, told the court that those decisions comply with state and federal laws and the death penalty ruling should stand.

Burns led the prosecution of the murderer, Kevan Brumfield, for the 1993 killing of off-duty Baton Rouge Police Department Cpl. Betty Smothers. She was shot in her police car just after midnight on Jan. 7 of that year while escorting the assistant manager of a Piggly Wiggly grocery store to a bank to make a night deposit. The assistant manger, Kimen Lee, was hit four times by gunshots at the bank but managed to drive the car a half-mile to a convenience store and survived the attack.

Brumfield and a second man, Henri Broadway, who is also on death row, were convicted of the crime. Brumfield was accused of shooting Smothers, while Broadway was accused of firing the shots that struck Lee.

Brumfield’s guilt is not at issue. But in a complex case that involves conflicting court rulings and is further complicated by a 2002 Supreme Court ruling that changed the death penalty landscape, Brumfield maintains he was illegally denied a chance to establish that he is intellectually disabled — a determination that, in that changed landscape, spares convicted criminals from execution.

In the courtroom audience Monday for oral arguments in the case was Smothers’ oldest child, Warrick Dunn, a star running back on the Catholic High School football team in Baton Rouge who went on to play for Florida State University and in the NFL. Dunn turned 18 two days before his mother’s death.

After the arguments, Dunn — who favors Brumfield’s execution — said the lengthy legal proceedings are frustrating.

“It just affects the family because you are not able to bring closure,” he said.

Both Brumfield’s lawyer, Michael DeSanctis, of Washington, D.C., and Burns faced questioning from the Supreme Court justices, but the interrogation of Burns was more extensive and confrontational.

Although the questioning didn’t fit a rigid pattern, most of the contentious questions for Burns came from the justices making up the court’s liberal wing: Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonya Sotomayor. At one point, Breyer threw back his head in exasperation at a response from Burns; earlier, he had summarized a case for DeSanctis to make, generating laughter in the courtroom as the lawyer agreed with him.

Justice Antonin Scalia, a leader of the court’s conservative wing, seemed more favorable to Burns’ case. Among the other conservatives, Samuel Alito provided some probing of DeSanctis’ arguments, Chief Justice John Roberts said little and Clarence Thomas nothing at all (as is typical for him).

The justice who often provides the court’s swing vote, Anthony Kennedy, also said little, although he did allude to the finding by the one judge who gave Brumfield a hearing to present his claim to mental disability and who ruled in his favor: U.S. District Court Judge James Brady, of Baton Rouge.

Prosecutors appealed Brady’s ruling to the 5th U.S. Circuit Court of Appeals, which overturned it. The oral arguments Monday came in Brumfield’s appeal of the 5th Circuit decision.

At one point, Roberts wondered if the case presents a federal issue at all, which could be a good sign for Burns, as that could lead the Supreme Court to simply let the most recent decision stand. The court may announce its finding anytime before the end of June, when its term concludes.

In his 1995 trial and in the sentencing hearing after his conviction, Brumfield, now 41, did not present any evidence specifically intended to show that he is intellectually disabled; the Supreme Court would not promulgate that as a disqualification from execution until seven years later, in the Atkins vs. Virginia case. But Brumfield did show that he had tested with an IQ of 75, that he had attained at best a fourth-grade reading level and that he had spent much of his schooling in special education classes. At the sentencing hearing, he presented two expert witnesses who testified to his mental shortcomings.

Prosecutors cite Brumfield’s planning of the fatal holdup and other crimes as an indication of his mental abilities. They say he was evaluated at least six times before the age of 18 and not once diagnosed as intellectually disabled.

Brumfield was sentenced to death in 1995. While on death row in 2000, he filed an additional legal measure in his case. Then, after the 2002 death penalty decision by the Supreme Court in the Atkins case, he amended that 2000 filing to claim that he is intellectually disabled and that — based on Atkins — his execution would be illegal. He cited the evidence presented at his sentencing hearing to support his claim but argued that evidence alone was not adequate to resolve the issue, and he asked for an additional hearing and public funding for expert testimony.

A state judge denied his request for a hearing and funding, stating that, based on the information presented in court in 1995, Brumfield is not intellectually disabled and that in any event, he had failed to raise the issue previously, which disqualified him from pursuing it. Brumfield appealed to Brady’s court, and Brady granted him a hearing on his claim of intellectual disability. After the hearing, Brady ruled that Brumfield is intellectually disabled and blocked his execution.

On the prosecution’s appeal of that ruling, the 5th Circuit said the state court had not violated federal law by denying Brumfield a hearing and funding, and it reinstated his death sentence.

The oral arguments touched on several different aspects of the case. “Let’s get rid of that argument that Atkins had not been decided (when Brumfield’s trial took place),” Scalia said. “That has nothing to do with this case.” But Ginsburg indicated she thought it did.

Scalia also suggested the evidence presented by Brumfield in 1995 was adequate to determine his mental fitness. “I would think that that’s enough for the state court to hang its hat on,” he said.

Several justices signaled that they believe Brumfield provided enough information in 1995 to trigger a separate hearing on his claim of intellectual disability. “What’s not ‘some evidence’ here?” Kagan asked.

Scalia, again, disagreed. “If there’s one little peppercorn of evidence, we have to go on to a hearing?” he asked.

At one point, a ripple of laughter ran through the courtroom when Scalia acknowledged he had not read the entire lengthy court record of the case and didn’t intend to.

In concluding his presentation, DeSanctis said, “The only court to provide Mr. Brumfield with a hearing found that he was intellectually disabled.”

And if the Supreme Court fails to step in, DeSanctis said, Brumfield will be executed.

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