A sharply divided court Feb. 4 overturned Robert Douglas Smith’s death sentence in a brutal 1980 rape and murder near Tucson, saying lower courts wrongly ignored evidence that Smith was intellectually disabled at the time of the crime.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said determinations by lower courts that Smith was not intellectually disabled were “not fairly supported by the record” and needed to be reversed.
It then overturned his death sentence, citing the U.S. Supreme Court’s ruling in 2002 that executing an intellectually disabled defendant is unconstitutionally “cruel and unusual punishment.” It sent the case back to state court with orders to reduce Smith’s sentence to life.
Judge Stephen Reinhardt, who wrote the opinion, added a separate concurrence in which he questioned the constitutionality of the Arizona test for determining whether a defendant is intellectually disabled for purposes of a death sentence.
In a biting dissent, Judge Consuelo Callahan said there is “substantial evidence, if not overwhelming evidence,” that Smith did not prove he was intellectually disabled at the time of the murder, and that his most recent IQ tests were close to normal, ranging from 87 to 93.
“The one thing everyone appears to agree on is that Smith is not intellectually disabled,” Callahan wrote, before chiding the majority for “disregarding the findings of the state courts.”
A call seeking comment from the Arizona Attorney General’s Office was not immediately returned Thursday. But Smith’s attorney said he was “very pleased with the decision.”
“It is important to realize that intellectual disability is not a permanent trait but a state of functioning,” said Jonathan Young, who argued Smith’s case before the court.
Smith was arrested in 1980 in connection with the random rape and murder of Sandy Owen near Tucson.
Court documents said Smith was traveling across country with Joe Leonard Lambright and Kathy Foreman. Angry that Lambright and Foreman had sex in his presence – and after Lambright said he “would like to kill somebody just to see if he could do it” – the three set out to find a victim.
They kidnapped Owen, who was raped by Smith as they drove into the mountains and then raped again when they reached a mountain site where they all got out. At some point, Smith began choking Owen and Lambright “declared that she must be killed,” court documents said.
Lambright proceeded to stab Owen repeatedly as Smith and Foreman held her down, then tried to cut her throat after Smith’s attempt to break her neck failed. With Owen still alive, Lambright threw a large rock at her head, before the three drove off “in a celebratory mood.”
Lambright and Smith both confessed, but Lambright said Smith was “the worst of the three,” while Smith said the other two were “the real killers.” Smith was convicted in 1982 of first-degree murder, kidnapping and sexual assault and sentenced to death.
Callahan noted that it was not until an appeal in 2004 – after the Supreme Court ruled it unconstitutional to execute people with intellectual disabilities – that Smith raised disability as a defense.
Experts for the state and for Smith testified that his IQ tested in 1964 at 62 – well below the IQ of 70 that was the state’s standard for “significantly subaverage intellectual functioning.”
While later tests showed a near-normal IQ, a neuropsychologist for the defense said there was a “high probability” Smith was intellectually disabled when the crime occurred, noting that IQs increase naturally over time and that Smith’s could have been boosted by tutoring and medications he received in prison.
But a doctor for the state said there was a “high degree of probability” Smith was not mentally disabled at the time of the crime, noting that Smith had been able to support himself and live on his own for 15 years and have multiple romantic relationships in that time.
But the burden of proving his disability was on Smith, and lower courts repeatedly said he had not met that burden.
The majority of the circuit court panel disagreed with the lower courts, with Reinhardt writing that not only were those decisions not supported by the record but that they were based on an unconstitutionally strict standard for proving intellectual disability.
Callahan said the facts were “undeniable” and that the lower courts were correct.
“Judge Reinhardt is certainly entitled to his opinion, but it is not the opinion of the panel or of the Ninth Circuit,” she wrote. “The concurrence is clearly contrary to the position of the Arizona Supreme Court.”