The State Is Not Required to Adopt a Higher Competency Standard to Waive Counsel for Mentally Ill and Intellectually Impaired Defendants
In State v. Bell, 53 So. 3d 437 (La. 2010), the Louisiana Supreme Court reviewed the appeal of Anthony Bell, who argued that the trial court erred in convicting and sentencing him to death, because his waiver of the right to appointed counsel was not valid and because his mental retardation exempted him from the death penalty.
Facts of the Case
On May 21, 2006, Mr. Bell interrupted services at the Ministry of Jesus Christ Church, asking Pastor Brown's permission to address the congregation. Present were six adults and five children: Mr. Bell's wife, Erica, the couple's three children, Pastor Brown (Erica's mother), four other adults related to Ms. Bell, and two of their children. Pastor Brown knew that her daughter's marriage was troubled and granted Mr. Bell's request. He asked Erica to reconcile with him; when she refused, Mr. Bell became agitated and left. According to testimony of Pastor Brown, Mr. Bell returned as people were leaving. She, the only adult survivor, heard gunshots, found herself lying face down, and saw Mr. Bell force Ms. Bell and their three children into a car. Pastor Brown called the police, identifying him as the shooter.
Shortly thereafter, Mr. Bell called the police, reporting that his wife had committed suicide. They found him outside his apartment holding his infant son. Ms. Bell was in the passenger seat of the car with a gunshot wound to her head and a revolver held lightly in her hand. Mr. Bell was arrested and advised of his Miranda rights. During the investigation, he provided conflicting accounts, stating both that he was sorry about the shootings and identifying his wife as the shooter. Then, he declined to say more without counsel.
The court appointed counsel for Mr. Bell. He was indicted on five counts of first-degree murder and one count of attempted murder and faced the death penalty. Defense counsel made requests of the court concerning his mental state, asking for an IQ assessment and an evaluation for competency to stand trial. After a hearing in August 2007, Mr. Bell was found competent. Asserting that counsel was withholding documents from him, he filed several pro se motions between July 2007 and January 2008. In February 2008, the court granted his motion to represent himself.
On April 11, 2008, after deliberating for two hours on the final evening of a three-day trial, during which Mr. Bell mounted his defense in one-half day, the jury found him guilty on all counts. The next morning, as the penalty phase was to begin, he requested reappointment of counsel. The court agreed but refused counsel's motion for a 60-day continuance, granting 2 days instead. During the capital sentencing hearing, the jury was to determine whether Mr. Bell was mentally deficient pursuant to La. Code Crim. Proc. Ann. art. 905.5.1(A) (2010), which exempts defendants with mental retardation from execution. The defense's psychologist, Dr. Mark Zimmerman, diagnosed Mr. Bell with intellectual deficiency based on an IQ of 53, while Dr. Hoppe, the state's psychologist opined that Mr. Bell was malingering. Dr. Hoppe cited Mr. Bell's lower IQ score of 50 on the same test administered less than three months after Dr. Zimmerman's evaluation as evidence of Mr. Bell's intentional underperformance. Dr. Hoppe argued that research on “practice effect” showed that the second IQ score within six months of the first should increase rather than decline. Dr. John Thompson, a court-appointed expert, opined that Mr. Bell was intentionally underperforming to appear severely mentally retarded. Dr. Zimmerman ultimately “retracted” his conclusion about mental retardation when the evidence regarding malingering became available. His former employers testified about his work as a tank washer who also supervised other employees and as a stocker and cashier at local supermarkets, “with no reported problems in functioning” (Bell, p 457). The jury rejected the mental retardation claim and sentenced Mr. Bell to death.
Ruling and Reasoning
The Louisiana Supreme Court affirmed Mr. Bell's convictions and the sentence of death, concluding that his waiver of appointed counsel was valid and that there was not sufficient evidence that the jury had erred in rejecting his mental retardation claim. Regarding his waiver of counsel, Mr. Bell cited Indiana v. Edwards, 554 U.S. 164 (2008), in which the Supreme Court held that the Constitution allows judges to take a defendant's mental capabilities into account when deciding a motion for pro se representation. It held that even defendants found competent to stand trial under Dusky v. United States, 362 U.S. 402 (1960), can be denied the right to self-representation when mental illness is severe “to the point where they are not competent to conduct trial proceedings by themselves” (Edwards, p 178). Relying on Edwards, Mr. Bell argued that the trial court failed to consider his significant cognitive deficits when evaluating his waiver of counsel and request for self-representation. The supreme court rejected his argument, stating that “Edwards authorizes, but does not require, the states to adopt a more rigorous competency standard for mentally ill or incapacitated defendants” who seek self-representation (Bell, p 446). The court found insufficient evidence to suggest that Mr. Bell was mentally impaired to the extent that Edwards would be applicable.
The court also cited Faretta v. California, 422 U.S. 806 (1975), which acknowledges defendants' Sixth Amendment right to self-representation and sets guidelines that judges should use in determining whether defendants should be denied this right. The court found that the trial judge had conducted an adequate assessment during Mr. Bell's Faretta hearing and had correctly determined that he demonstrated sufficient understanding of potential risks and consequences of self-representation.
In ruling that the jury did not err in rejecting Mr. Bell's mental retardation claim, the court cited Atkins v. Virginia, 536 U.S. 304 (2002). It acknowledged the prohibition against executing mentally retarded defendants under the Eighth Amendment, but held that he had not proved by a preponderance of the evidence, as required by Louisiana statute, that he was intellectually deficient. The court held that the state's expert was more credible than the defense's expert. It based its finding both on the concurrence of opinion between the state and the court-appointed experts and on the defense expert's retraction of the original opinion in light of new information. The court further reasoned that his school and work histories did not show significant deficits in adaptive functioning. Moreover, during the penalty phase, the jury members witnessed his self-representation and thus had the opportunity to observe his cognitive state and assess his claim of mental retardation.
Discussion
This case illustrates the complexity involved in assessing cognitive deficiencies and legal competency. In deciding that Mr. Bell was competent to waive counsel and represent himself, the trial court and the Louisiana Supreme Court placed a significant amount of weight on his functioning at that moment in time, as opposed to his capabilities over time. The courts highlighted Mr. Bell's ability during the Faretta hearing as the indicator of his understanding of the risks associated with his decision to represent himself, despite the defense's concerns about his mental condition throughout the proceedings. Although the court cited Edwards, it interpreted that Supreme Court ruling as one that permits but does not compel a higher standard for mentally ill defendants seeking to waive counsel. Thus, the court saw no need to consider the role his intellectual impairments and paranoid thinking played in his decision to represent himself.
This case demonstrates the inequitable emphasis on IQ testing over critical examination of adaptive capacity. The case also demonstrates how a finding of exaggeration of deficits can unduly influence the overall conclusion. Both experts assessed Mr. Bell's IQ at the lower range of mild retardation (55–70); the state's expert argued that Mr. Bell was exaggerating his cognitive deficits. His exaggeration was presented as evidence that he did not have mental impairment. Research shows that defendants who meet criteria for mild mental retardation are capable of exaggerating their cognitive deficits when evaluated for competency (Everington C, Notario-Small H, Horton ML: Can defendants with mental retardation.. .. Behav Sci Law 25:545–60, 2007). “Exaggeration of deficit” is a term that implies that an actual deficit is known or that there is no underlying deficit. Neither is the case. An expert has the responsibility of determining adaptive capacity through behavioral observation and collateral data to estimate intellectual functioning in the absence of valid testing.
Atkins prohibits mentally impaired defendants from being executed in accordance with the Eighth Amendment. However, such cases as Bell illustrate how the complexity of determining intellectual deficiency and the adversarial nature of making this determination may cause defendants with bona fide mental retardation to reach death row. The United States Supreme Court in Atkins and in Edwards provides the foundation for expert psychological opinion of defendants' intellectual and cognitive capacities. In Godinez v. Moran, 509 U.S. 389 (1993), the dissent by Blackmun (with Stevens concurring) provided an apt analogy to guide psychologists who conduct such assessments: “[A] defendant who is utterly incapable of conducting his own defense cannot be considered competent to make such a decision, any more than a person who chooses to leap out of a window in the belief that he can fly can be considered competent to make such a choice.” The utterly incapable determination requires thoughtful consideration and thorough assessment. In cases in which defendants face the loss not only of their liberty but also of their lives, the assessment of intellectual and cognitive capacity and rational choice about their defense merits meticulous attention, diligence, and analytical consideration.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2013 American Academy of Psychiatry and the Law