Aug. 15
USA:
Death by IQ: US inmates condemned by flawed tests
"Texas puts man with 61 IQ to death." This was just one of the lurid headlines
that greeted the execution on 7 August of Marvin Wilson, killed by lethal
injection at Huntsville State Penitentiary for the murder of a police informant
in 1992.
Was he a child-like simpleton or a streetwise criminal? Both pictures were
painted in court as experts contested conflicting IQ test scores and other
lines of evidence. For Wilson, time ran out, but lawyers for dozens of other
inmates on death row in the US are trying to prove that their clients are
intellectually disabled, allowing their sentences to be commuted to life
imprisonment.
What is disturbing, according to some researchers who specialise in
psychometric testing and intellectual disabilities, is that executions may go
ahead because some courts refuse to accept two key scientific facts surrounding
IQ testing. First, the tests have a margin of error, which means that a score
should be interpreted as lying within a range, not a hard-and-fast number.
"There is measurement error in any score," says Edward Polloway of Lynchburg
College in Virginia, co-chair of a task force on the death penalty for the
American Association on Intellectual and Developmental Disabilities (AAIDD).
Second, some inmates are being condemned to death by inflated IQ scores
obtained using older intelligence tests. This inflation stems from the Flynn
effect - the perplexing observation that, across a population, IQ scores using
any particular test rise over time. In the US, scores climb by about 3 points
per decade.
According to James Flynn of the University of Otago in New Zealand, failing to
correct for the effect that bears his name creates a lottery in which
eligibility for execution in the US depends on the test that happens to be
used.
Cases like Wilson's have proliferated since 2002, when the US Supreme Court
ruled that executing people with an intellectual disability - then called
"mental retardation" - amounts to "cruel and unusual punishment" and is
therefore unconstitutional.
For someone to be classed as intellectually disabled, it is necessary to
demonstrate "significant limitations" in intellectual functioning (usually
taken to mean an IQ of 70 or below) and in adaptive behaviour - such as
problems with literacy, social skills and the ability to handle money. These
deficits must also have been present before the age of 18. However, the Supreme
Court did not stipulate how intellectual functioning and adaptive behaviour
should be measured, leaving that to individual states to decide.
This has led to wide variation in how such cases have played out. In 2009,
researchers at Cornell Law School in Ithaca, New York, analysed the cases of
234 death-row inmates who claim they are intellectually disabled. Overall, 38
per cent of the claims were judged valid, but the success rate varied from as
high as 17 out of 21 claims in North Carolina to 3 out of 26 in Alabama
(Tennessee Law Review, vol 76, p 625).
There are several reasons for the variation, including whether courts take into
account the measurement error inherent in IQ scores - the fact that an
individual, tested repeatedly, would not achieve the same score every time, but
rather a distribution of scores clustered around their "true" IQ.
Florida has closed the door on measurement error: in 2007 its Supreme Court
made a landmark ruling that Roger Cherry, a double-murderer who had scored 72
on an IQ test called the WAIS-III, was not intellectually disabled. The test
has a standard error of measurement of about 2.5 points, so Cherry's true IQ
could have been below 70. The court backed a strict cut-off of 70, and Cherry
remains on death row.
Failing to correct for the Flynn effect can have even bigger consequences, as
courts frequently consider IQ scores using tests introduced more than a decade
earlier - meaning scores can be inflated by 3 or more points (see "Life or
death", below).
Why scores on an IQ test should slowly rise over the years remains a mystery.
It probably does not mean that everyone is getting smarter. Instead, a range of
factors may be involved, including increasing familiarity with psychometric
testing and growing exposure to complex visual media such as computer games.
Whatever the explanation, the Flynn effect is now well established, and IQ
tests must be recalibrated from time to time to return the average score to
100.
The scientific consensus that the Flynn effect is real has not, however,
translated into a legal consensus that corrections should be applied to the IQ
scores of people sentenced to death. "There's always a fight over it, and the
judge decides in each case," says Cecil Reynolds of Texas A&M University in
College Station. A specialist in psychometric testing, Reynolds has testified
as an expert witness on behalf of death-row inmates.
Even where measurement error and the Flynn effect are not invoked, a court may
have to make sense of a confusing array of results from different tests. Before
his conviction, Wilson scored 73 on an IQ test at the age of 13, and 75 when he
was 29. While on death row he scored 61, 75 and 79 on 3 different tests.
Wilson's lawyers contended that his WAIS-III score of 61 was the most reliable
indicator of his mental capacity, but their argument foundered in November 2011
in a federal appeals court. The court noted that the test had been administered
by an intern who failed to keep adequate notes of Wilson's "motivation,
attentiveness or cooperativeness". This lack of documentation was a problem
because death-row inmates have a clear incentive to score poorly on IQ tests.
Is there any hope that future IQ tests on inmates will be conducted to
acceptable standards, and that courts will consider the evidence on a level and
scientifically valid playing field? The AAIDD task force believes it has the
answer: a manual on assessing intellectual disability in death penalty cases,
to be published next year. "I hope it will take some of the subjectivity out of
such decisions," Polloway says.
The AAIDD manual will include a section on the importance of considering
measurement error, and will urge courts to correct IQ scores to account for the
use of older tests. "There will be clear recommendations to use Flynn effect
corrections," says Keith Widaman of the University of California, Davis, who is
working on the relevant chapter.
Still, legal experts say that it is unclear whether courts will line up behind
the manual. "Who's to say what the courts are going to do?" warns Kevin Foley,
a judge in Charlotte, North Carolina, who is working on a book about
intellectual disability and the death penalty.
(source: New Scientist)
****************************
A solitary olive, a fast-food binge... and a birthday cake: The bizarre last
meals of death row killers before they face execution
Even though they have been condemned to die for their crimes, the humanity of
offering a death row prisoner a final meal fascinates like few other requests.
Inspired by the forgiving gesture, Julia Ziegler-Haynes, a Brooklyn-based
artist, has exhaustively trawled through the public records of death row
inmates and selected 24 last meals, painstakingly recreated them and then
photographed them.
Produced for a book known as 'Today's Special', each one was cooked and
prepared to the exact recorded likings and specifications of each prisoner,
from a fast food blow-out to a single un-pitted black olive.
'Essentially, these prisoners had become guests in my home. And so, despite
having been immersed in the hideous details of each crime, I repeatedly found
myself feeling empathetic towards them. Especially those whose requests were so
meager,' states Ziegler-Haynes.
Having been planning her photographic project for the past decade, the sculptor
and printmaker shot her meals from the vantage point of the diner.
This placed the viewer in the place of the condemned man and to help them think
about what could possibly have been going through their mind as they ate their
meal.
Her visual aesthetic is inspired by Christian Boltanski's Compositions
decoratives (1976), and significantly influenced by the food styling from that
era with its faded backdrops and unappetizing simplicity - likened to food
images from the windows of cheap restaurants.
Envisioning how each meal would appear served in the prisons, Ziegler-Haynes
then juxtaposed her versions against vibrant backgrounds to liven what she
assumed to be the opposite of their actual presentation.
I imagine, for instance, they serve frozen hamburger patties on commercially
made buns,' she states.
For the artist the concept of the last meal is something that is too engrained
in American culture.
'I will never fully understand the hypocrisy of fulfilling someone's last
wishes only to take their life the very next day,' said Ziegler-Haynes.
'It's a confusing gesture.
'It almost feels like the last meal does more for the executioner than it does
for the inmate: a clearing of the conscience.'
'Today's Special' is printed and published by the OHWOW Gallery in New York
City
To buy the book please visit here: http://store.oh-wow.com/item.html/1363097
(source: Daily Mail)
*****************
US Army lawyer for 9/11 accused: This is not a trial. It is an attempt to
legitimise a death threat----The man accused of masterminding the 9/11 attacks
has been detained for nine years. Now his lawyer accuses the authorities of
torture and says plans for justice are a sham
A US Army officer representing one of Guantanamo Bay's most notorious prisoners
has spoken out against the secretive nature of the Military Commissions system,
insisting it risks becoming little more than a "show game" to execute suspects,
denying them and the American people the right to a fair trial.
Captain Jason Wright was appointed by the military to represent Khalid Sheikh
Mohammed, who is charged along with 4 others with conspiring and executing the
9/11 attacks. Yet, the officer revealed to The Independent, rafts of vital
evidence - including the 3 1/2 years his client spent at secret CIA "black"
sites - have been deemed classified.
It was only through a Freedom of Information request that redacted files were
released showing that Mohammed had been subjected to waterboarding
interrogation 183 times, kept awake for seven days straight and had his
family's lives threatened.
Defence lawyers are banned from passing documents in confidence to their
clients or even discussing certain issues, funding is severely restricted and
requests for additional counsel or experts refused. While the accused face the
death penalty if convicted, they are likely to be detained indefinitely even if
they are acquitted, a situation Capt Wright likened to torture.
"This is not a trial. It is an attempt to legitimise a death threat," he said.
"It can never be fair to bring a man to the brink of death and back 183 times
with waterboarding and then do it a final 184th time - but this time it will
have full state sanction. The bottom line is, torture denies justice. If you
believe fundamentally that America is better than that, then this is a struggle
for the soul of America.
"I am concerned there has been this show game to try and find the best system
in order to try and execute these men. I am deeply concerned by the prospect
that theoretically, if anybody is tried and acquitted, the US government has
the authority to continue to detain that person indefinitely."
The officer, who previously spent 15 months as a legal adviser in northern
Iraq, continued: "I think a lot of Americans are appalled that Guantanamo Bay
is still open. No one denies 9/11 was horrific, but there are many people in
the Middle East who have felt aggrieved by the past effects of colonialism and
neo-colonialism. There has been a cycle of tragedy and trauma and now we can
add torture.
"I think it is time for the hyperbole of the war on terror to end, for all
sides to pursue both redemption and rediscovery. It is my hope this case will
provide an opportunity for this process. But in order to do so, it must be seen
as fair and legitimate, not just to America but to the rest of the world."
Despite President Obama's promise to close the notorious detention facility in
Cuba, 167 inmates - all Muslims - remain of the original 800 who were brought
in after thousands of dollars in bounties were offered to those that turned
them in. Of those still incarcerated, about half have been cleared but not
released.
Capt Wright said that the reformed Military Commissions Act, brought in after
Congress defied the President's attempts to have the trials heard within the
American legal system, does not abide by the Geneva Convention, allowing
evidence to be gained under duress. He said the situation was "still woefully
short of the standards of any normal court in the US".
Along with representatives of the 4 other detainees, he is due to return to
court next week to argue that he must be allowed to communicate documents to
his client in confidence. 2 years ago, the Joint Task Force Commander at
Guantanamo Bay ordered that all papers must be passed through a review team.
"All the defence lawyers have refused to abide by this order. Since December,
we have been unable to share any confidential documents with our clients," said
the judge advocate. "It violates our duty of client confidentiality and our
duty of basic due diligence to represent our clients."
The lawyers are banned from discussing certain subjects - even the term
"jihad", which is included in the charge sheet. Court hearings have a 40-second
delay, so anything deemed confidential can be silenced before the public
gallery hears it.
"It has a chilling effect on our ability to perform a basic aspect of the
defence investigation. For instance, anything Mr Mohammed conveys verbally to
me, whether it relates to his torture, his treatment or even what may have
happened on the eve of his capture in Pakistan, remains classified at the
highest level," said Capt Wright. "The US government said that because Mr
Mohammed was a high-value detainee, he was exposed to classified CIA
information and is therefore a holder of classified information. So
effectively: 'Because we tortured you, you can't speak'."
An arraignment hearing in May, normally expected to last no more than an hour,
stretched out for 13 hours as each one of the defence lawyers unsuccessfully
pleaded for the restrictions to be lifted.
Capt Wright, who insists that he must fulfil his obligation to advocate on
behalf of his client, added: "There are severe restrictions on our performing
our job competently. It is fundamentally unfair, both for the attorney and the
client, to have defence counsel subject to control of the US government."
A Department of Defense spokesman said last night: "Every detainee at
Guantanamo has had ample opportunity to get the help of lawyers, and there are
plentiful examples of robust and functional attorney-client relationships being
formed and of zealous, effective representation being provided."
Pointing out that the accused had a right of appeal to a federal civilian court
and ultimately to the Supreme Court, he added: "These reformed military
commissions... require all of the protections of fairness and justice that are
required by our values. The accused is presumed innocent. The prosecution must
prove his guilt beyond a reasonable doubt."
Facing death: The accused
9 years after he was arrested, Khalid Sheikh Mohammed was charged with
orchestrating the 9/11 terror attacks. Last April, along with 4 others - Walid
Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and
Mustafa Ahmed Adam al-Hawsawi ??? he was accused of 8 offences, including
murder, hijacking and terrorism.
The 5 are "responsible for the planning and execution of the attacks of 11 Sept
2001, in New York, Washington DC, and Shanksville, Pennsylvania, resulting in
the killing of 2,976 people," a Department of Defense statement said, adding:
"If convicted, the 5 accused could be sentenced to death." KSM, as he has come
to be known, was born in Kuwait in around 1964 but went Pakistan as a teenager
before moving to the United States to study mechanical engineering and then on
to Afghanistan to fight the Soviet invasion. As well as 9/11, he has been
accused of involvement in several terrorist plots, including the Bali nightclub
bombings and the Richard Reid shoebomb attempt to blow up an airline. His
nephew Ali Abdul Aziz Ali, 34, is a computer technician who was hired in the
late 1990s to work for the Modern Electronics Corporation in Dubai. Fluent in
English, he described himself as "very open-minded and western-oriented". He is
accused of assisting the hijackers with "everyday aspects of life in the West"
but insists he was simply helping to boost his income and had no idea who they
were.
Ramzi Binalshibh, 40, is a Yemeni who worked as a part-time bank clerk until
1995. He was denied a US visa and travelled to Germany to request political
asylum, which was rejected, but he returned to Hamburg with a visa. After the
attacks he was accused of being a key facilitator. Walid Muhammad Salih Mubarak
Bin Attash, 33, is a Yemeni from a prominent family. He read Islamic Studies in
Pakistan before losing his right leg in 1997 fighting in Afghanistan in a
battle that killed his brother. The Office of the Director of National
Intelligence described him as a "scion of a terrorist family".
Mustafa Ahmed Adam al-Hawsawi, 44, is a Saudi accused of being an organiser and
financier of the attacks.
Khalid Sheikh Mohammed: The torture details
Waterboarding involves drowning someone to the brink of death before
interrogation.
With its history in the Spanish Inquisition, it involves strapping a detainee
by their legs and arms to a board which is tipped head down. A cloth is placed
over the mouth and nose while water is poured in at varying heights, giving the
sensation of drowning. With a doctor present to prevent death, the detainee is
subjected to around minute of pain and panic before being raised up and
questioned. While information on his 3 1/2-year detention in CIA custody is
classified, certain redacted documents obtained through Freedom of Information
requests confirm Khalid Sheikh Mohammed was waterboarded 183 times, kept awake
for 7 1/2 days and subjected to authorised enhanced interrogation techniques.
Human rights experts insist "enhanced" techniques include sleep deprivation,
being subjected to extreme temperatures and having a towel placed around his
neck before being thrown against a wall. Mr Mohammed was also subjected to
unauthorised treatment like threats to the lives of his family.
Guantanamo Bay: 10 years of detentions for 'unlawful enemy combatants'
January 2002 The Bush administration establishes a detainment and interrogation
facility at Guantanamo Naval Base, Cuba, and the first 20 detainees arrive.
March 2003 Khalid Sheikh Mohammed is detained in Pakistan and handed over to
the US. He is held by the CIA, accused of being the principal architect behind
the 9/11 bombings.
September 2006 The Military Commissions Act of 2006 is passed, which allows
certain people to be designated "unlawful enemy combatants", thus making them
subject to military commissions. President George W Bush confirms for the 1st
time that the CIA has "high-value detainees" in prisons around the world.
Fourteen captives, including Mohammed, are transferred to Guantanamo to face
military commissions.
January 2009 President Barack Obama signs an order to suspend proceedings at
the Guantanamo military commissions for 120 days and announces that the
facility will be shut down.
October 2009 A reformed Military Commissions Act is passed. Critics say it
still offers sub-standard justice.
January 2011 The Obama administration abandons attempts to close Guantanamo
after Congress blocks the President from bringing accused terrorists before US
courts.
March 2011 The President approves the resumption of military trials at
Guantanamo Bay.
April 2011 Mohammed and 4 others are charged with conspiracy, murder, hijacking
and terrorism. A team of 2 military lawyers and 1 civilian lawyer is appointed.
August 2012 Legal representatives of the five suspects set to argue for the
right to pass documents in confidence to their clients.
(source: Belfast Telegraph)
ARIZONA:
Ariz. inmate asking be executed gets attorney
Convicted serial killer Dale Hausner has a new court-appointed lawyer, which is
something he didn't want as he tries to forego appeals and be executed quickly.
And the question now is whether the lawyer appointed to represent him will pose
an obstacle to his wishes.
If Robert Comer's case is any guide, death penalty attorney Julie Hall may do
just that.
Comer fought to fend off arguments by Hall and other death-penalty attorneys
representing Comer that he shouldn't be allowed to withdraw previously filed
appeals.
Comer ultimately was executed in 2007.
Hall did not respond to requests for comment on her appointment to represent
Hausner.
He was convicted of 6 murders among a series of random shootings in the Phoenix
area in 2005 and 2006.
(source: Associated Press)
GEORGIA:
COSTS: Federal Case Reveals High Costs of Death Penalty Prosecutions
The recent federal capital trial of Brian Richardson in Atlanta illustrated the
high costs of litigation when the death penalty is sought.
Richardson's case required more than 30 lawyers, and cost hundreds of thousands
of dollars in expert witness fees. The U.S. Attorney's Office assigned 8
prosecutors to the case and appointed 20 private attorneys to represent inmates
who were testifying against Richardson. The Federal Defender's Office assigned
four attorneys and 2 investigators to Richardson's defense. The office spent
almost $200,000 for its experts and expenses. Other costs to taxpayers included
more than $150,000 billed by mental health experts who planned to testify at
trial, but were prohibited from doing so. In the end, the defendant was
sentenced to life without parole. U.S. District Judge Clarence Cooper barred
the expert testimony after finding that prosecutors misled him as to how the
experts would conduct Richardson's mental health evaluation. 2 assistant U.S.
Attorneys were also removed from the case. One was stricken after recordings
revealed a disturbing conversation between the prosecutor and a government
snitch. The 2nd prosecutor was barred because of a conflict of interest, but he
continued working on the case behind the scenes, in defiance of the judge's
order. Brian Mendelsohn, one of Richardson's lawyers, said, "This was a
colossal waste of taxpayer money. Brian was willing to plead guilty in exchange
for a life sentence from day one. This entire episode could have been avoided."
Richardson was in prison for armed robbery and had murdered his cellmate in the
U.S. Penitentiary in Atlanta. The prosecution took 4 years and resulted in a
9-week trial. The government helped get reduced sentences for some of the
inmates they brought in and who cooperated with the prosecution. The Justice
Department's Office of Professional Responsibility is investigating the actions
of the original prosecutors.
(source: DPIC)
FLORIDA:
Jury unanimously recommends death penalty for Smith
It took a jury just 30 minutes Tuesday afternoon to deliver a unanimous
recommendation: Delmer Smith III, 41, should be sentenced to death by lethal
injection for the fatal Aug. 3, 2009 bludgeoning of Kathleen Briles.
Those same 12 people -- 6 men and 6 women -- delivered a unanimous verdict
after a couple of hours of deliberation last week convicting Smith of
1st-degree murder.
Dr. James Briles, who found his wife's dead body in their Terra Ceia living
room, thanked the jury for their decision.
"Delmer Smith got what he deserved," Dr. Briles saidTuesday.
If anyone has second thoughts about Smith's conviction, Dr. Briles added, they
should talk to surviving victims, talk to the medical examiner who conducted
his wife's autopsy, look at crime scene photos -- or talk to him, because there
is "a movie that keeps replaying in my head I'd be happy to share.
"Because Smith has been in and out of jail for most of his life, Dr. Briles
said being a part of the general jail population is not punishment, but a
lifestyle for the man who beat his wife repeatedly with a sewing machine.
Judge Peter Dubensky expects to make the final ruling during a sentencing
hearing in 2 months. If Dubensky upholds the jury's advisory punishment, Smith
would become the third person convicted in Manatee County on death row.
"He may outlive me, which wouldn't surprise me," Dr. Briles said. "It's justice
for Kathleen. That makes me happy, but it's bittersweet."
Dr. Briles, his 3 children and other family and friends sat quietly as the
decision was read, silently crying. Some placed their hands over their mouths.
Others held hands with those nearby.Smith stared blankly ahead as the jury's
decision was read, just like he did when he was convicted of murder.
"There's not one iota of remorse," Dr. Briles said. "The only thing I've seen
emotionally from Delmer Smith is anger."
The family stood in a line, keeping their eyes on a shackled Smith as he was
led from the courtroom.
Dr. Briles said he hopes the conviction of Smith and a possible death sentence
brings peace to other victims in Manatee and Sarasota counties of the man
suspected in several home invasions, sexual assaults and another homicide.
Dr. Briles also thanked Dubensky, prosecutors and defense attorneys for
upholding the justice system.Daniel Hernandez and Bjorn Brunvand gave limited
comments following the proceedings, saying, "We did the best we could with what
we had."
Prosecutors Brian Iten and Suzanne O'Donnell responded via email.
"We are grateful for the hard work of the jury, the investigators, the staff of
the State Attorney's Office. Most importantly we are relieved for the Briles
family, which has persevered through an unspeakable tragedy."
Surviving victim, family testify
After 4 days of jury selection and four days of the guilt phase ending in
Smith's conviction, the trial moved into the penalty phase.
Witnesses testified Tuesday as the state and defense presented evidence to
support the death penalty or life in prison, respectively.The state called
another victim of Smith's to testify Tuesday.
Nicole Mitchell was watching "CSI" and making jewelry in her living room March
14, 2009 in a Sarasota rental home, when she felt a presence.
"When I turned around, I thought my eyes were playing tricks on me," Mitchell
testified. "It was extremely quick. The lights went off right away. I was
grabbed and I was pushed onto the couch face down. Of course I started
screaming. The person grabbed my mouth and asked me to stop screaming and said
if I didn't cooperate, he said, 'I have a gun. I will kill you.'"
Mitchell said Smith led her through the home, threatening her with a gun while
looking for valuables.
"I was shaking. I was crying. My heart was beating very fast," Mitchell said,
recalling thanking Smith for his kindness. "You don't want to die and you don't
want to get hurt, so I was really cooperating."
Mitchell said she was forced back into the living room and told to lie on her
stomach. Smith took a television set from the wall and bound her using
electrical cords. Mitchell said her wrists were tied behind her back. Smith
tied her ankles and connected them to a cord around her neck so "if I moved my
legs, I would strangle myself."
Smith ransacked the house, she said. Mitchell was able to free her right arm
from the cords and untie the rest of the bonds.
Smith was convicted of armed home invasion and kidnapping in the case earlier
this year and sentenced to life in prison.
The state also called Robert Feverston, Manatee County Sheriff latent print
examiner, and Gerri Cotter, U.S. probation officer to show Smith was already a
convicted felon and on probation for 2 bank robberies.
Also called to the stand were Diane Brinker, Briles' sister, and Dr. Briles, to
read prepared victim impact statements.
"I have lost my security, my best friend and my sister," Brinker said, adding
that she has watched many of her sister's dreams come true, including the birth
of her 1st grandson.
Dr. James Briles recalled falling in love with Kathleen Briles under a blue
moon Dec. 31, 1990.
"The biggest tragedy here is that her 3 children will never be able to share
their lives with their mother again," he said.
Dr. Briles said he and his wife made it through the good and bad because of
their partnership.
"My heart is broken. My love is lost. And these are not recoverable," he said.
Defense shows other side
The defense called Smith's 2 nieces and a neuropsychologist to show a different
side of Smith and possible mental mitigating factors.
Alicia Phillips, 29, recalled living with her grandparents -- Smith's parents
-- in Michigan.
"He was my favorite uncle," Phillips said. "He gave me birthday presents,
Christmas presents. He would take me out. He would try to guide me in the right
direction."
When Smith was in prison, Phillips wrote to him, talked to him on the phone and
visited him.
Phillips said she loves Smith and he is in her prayers.Christina Smith, 23, was
emotional on the stand.
"I was too young to know he had gone to prison. I just knew he was away from
us," Smith said, adding that she realized he was incarcerated when they began
talking on the phone and writing letters. "It made me love him harder because I
knew he needed love."
"I understand what their family is going through, but I don't think it's right
for him to be away from us either," Smith said, referencing the Briles family.
Dr. Hyman Eisenstein, a neuropsychologist who evaluated Smith in July, shared
his findings.
Eisenstein said previous psychological evaluations showed Smith had academic
failings, having to repeat 2nd, 3rd, 4th and 5th grades. Eisenstein said
Smith's attention deficit disorder went untreated. He also said there was
documentation in evaluations that Smith suffered abuse.
"He wants to appear normal," Eisenstein said. "He seems to think that talking
about some of his impairments makes him less of a person. He only wants to look
at his strengths."
Eisenstein diagnosed Smith with profound, unequivocal brain damage and
intermittent explosive disorder.
"The planning of the robbery was certainly impulsive," he said. "It's my best
hypothesis that when confronted with the situation, his reaction was one of
shock. Rather than leaving the situation, he further got himself in more
trouble with the inability to step away from a bad situation."
The state's psychiatrist, Dr. Wade Myers, disagreed. He said Smith has no brain
damage, but does suffer from anti-social personality disorder.
"He had, to my understanding, a bound helpless female victim lying on the floor
and he made the decision to go get something to kill her with," Myers said.
In her closing statement, prosecutor Suzanne O'Donnell said evidence presented
throughout the trial proves factors in the case justify the death penalty.
"Many people have abuse in their background, have academic troubles, have
failing grades and they don't go and kill human beings," O'Donnell said. "It's
not something that these people are predisposed to do. It's something the
defendant chose to do."
Smith's defense attorney Bjorn Brunvand argued that Smith could help others if
allowed to die of natural causes in prison.
"Despite the things that you have seen, the things he has done, there is
another side of Delmer Smith - a human side," Brunvand said. "He may once again
contribute to other human beings. He may once again guide someone in the right
direction."
Brunvand also said findings from Eisenstein's evaluation show Smith did not
have the capacity to understand his actions.
"Murders are bad, but this is not one so far out of the norm that the death
penalty is appropriate," Brunvand closed.
(source: Bradenton Herald)
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