Evidence of Mental Retardation in Death Penalty Proceedings: An Application of Atkins in Alabama

Facts of the Case

In 1994, Alonzo Burgess was convicted of capital murder for the killing of his girlfriend and two of her children. During the penalty phase of the trial, the defense relied on the testimony of Dr. John Goff, a neuropsychologist, to present evidence regarding Mr. Burgess's mental health as a mitigating factor. Dr. Goff diagnosed Mr. Burgess with cyclothymic disorder. He indicated that it had been difficult for him to communicate with Mr. Burgess, as he was in a “manically excited state.” Dr. Goff testified that he did not conduct intelligence testing. Rather, his testimony as to Mr. Burgess's intellectual functioning was based on the reports of Dr. Shealy, an expert for the defense, and Dr. Maier, an expert for the state. Dr. Shealy administered intelligence testing after Mr. Burgess's arrest, and in his report, concluded that Mr. Burgess was “borderline mentally retarded.” Dr. Maier did not report having conducted intelligence testing, but “estimated” that Mr. Burgess's intelligence was “below normal probably in the borderline range, IQ estimate somewhere between 70 and 80” (Burgess, p 1313). It was introduced into the record that Dr. Maier further reported that Mr. Burgess “may even be mildly mentally retarded,” and that such a finding would be consistent with his “very limited educational and/or vocational achievements” (Burgess, p 1313). Mr. Burgess's school records were introduced into evidence and indicated that he had done poorly throughout school. He had to repeat the first grade, was placed in special education, and had dropped out of school after the ninth grade with all failing grades with the exception of one D.

After consideration of the evidence, the jury recommended, by a vote of 8 to 4, that Mr. Burgess be sentenced to life in prison without the possibility of parole. However, the trial court chose not to follow the jury's recommendation and instead sentenced him to death. The Alabama Court of Criminal Appeals affirmed his conviction and sentence. Mr. Burgess sought postconviction relief pursuant to Alabama Rule of Criminal Procedure 32, arguing ineffective assistance of counsel. Mr. Burgess claimed that his defense counsel failed to make an adequate presentation of evidence related to his mental health. Shortly before his Rule 32 hearing was to take place, the U.S. Supreme Court granted certiorari in Atkins. Mr. Burgess subsequently filed an amendment to his petition, claiming that the Eighth Amendment barred his execution because of his intellectual disability. The trial court denied the petition, and no hearing was held on the Atkins claim. The Alabama Court of Criminal Appeals upheld the denial on the basis of the “finding” that his IQ was between 70 and 80. Other factors on which the conclusion was based included that “Burgess had completed the ninth grade; had completed one year at a training school” and had “worked as a welder while incarcerated in Mississippi” (Burgess, p 1314). The Alabama Supreme Court denied certiorari.

Mr. Burgess subsequently filed a writ of habeas corpus in the Federal District Court for the Northern District of Alabama. He presented an affidavit from Dr. Bryan Hudson, a neuropsychologist. Dr. Hudson conducted intelligence testing producing a full-scale score of 76 on the Wechsler Adult Intelligence Scale-III. After taking into account the standard error of measurement and the Flynn effect, Dr. Hudson concluded that Mr. Burgess's “true IQ would certainly fall in the range of mild mental retardation” (Burgess, p 1322). He also stated that based on a review of Mr. Burgess's family and personal history, he “has demonstrated deficits in all three areas of adaptive behavior skills” (Burgess, p 1322): conceptual skills, social skills, and practical skills. Further, Dr. Hudson's affidavit indicated that Dr. Goff had not testified to the IQ score of 66 obtained when Dr. Shealy tested the defendant.

The federal district court refused to consider the affidavit or to grant Mr. Burgess an evidentiary hearing. After review of the record, the court found that “Burgess's IQ scores placed him in the category of borderline intellectual functioning or borderline mentally retarded” and that “the Alabama court's finding that Burgess was not mentally retarded is not an unreasonable finding based on the evidence” (Burgess, p 1315).

Ruling and Reasoning

The Eleventh Circuit held that it was unreasonable to make a determination about whether the defendant had an intellectual disability on the basis of an estimated IQ and conflicting statements by the mental health experts regarding his intellectual functioning. The court reasoned that Dr. Goff did not conduct intelligence testing on Mr. Burgess, and instead relied on the report of Dr. Shealy, who had found him to have borderline intellectual impairment. Dr. Goff also relied on the report of Dr. Maier, who did not conduct intelligence testing, yet estimated an IQ in the range of 70 to 80. Further, Dr. Maier gave conflicting statements in his report, when he concluded that Mr. Burgess may be “mildly mentally retarded,” which would correspond to an IQ of 50 or 55 to 70.

The Eleventh Circuit also disagreed with the finding that Mr. Burgess failed to demonstrate deficits in adaptive behavior and therefore did not meet the diagnostic criteria for intellectual disability. The Eleventh Circuit reasoned that the evidence that was presented in mitigation (e.g., that Mr. Burgess had worked as a welder in a Mississippi prison, had worked as a brick mason, and was “cooperative” with a probation officer) amounted to “good character” evidence and “does not indicate anything substantive about Burgess's adaptive abilities as that term is used clinically” (Burgess, p 1316). Furthermore, the Eleventh Circuit found that the lower courts failed to take into account that Dr. Maier had noted that Mr. Burgess “may even be mildly mentally retarded,” and “that the finding would be consistent with Burgess's poor adaptive skills: his poor school performance and his lack of vocational success” (Burgess, p 1317). The Eleventh Circuit also disagreed with the district court's decision not to consider Dr. Hudson's affidavit on adaptive functioning, given the limited evidence in the record. They noted that Dr. Hudson provided an analysis of Burgess's adaptive behavior deficits in the context of how it relates to intellectual disability. They concluded that “if the district court were to find Dr. Hudson's testimony to be credible, combined with prior record evidence and Dr. Shealy's reported IQ score of 66 … Burgess would be entitled to habeas relief” (Burgess, p 1322).