The news of this edition can be summed up in one word, Baze. With no clear opinion,Baze v. Reesis now decided. Fordham’sProfessor Deborah Dennonotes:

Baze v. Rees is a splintered plurality decision in which the Supreme Court puts forth an Eighth Amendment standard that an execution method must constitute a “substantial” or “objectively intolerable” risk of serious harm before it can be rendered a violation of the Eighth Amendment. While the Court affirmed the constitutionality of Kentucky’s lethal injection procedure, the evidence available in Kentucky was limited due to constraints on discovery and the fact that the state has conducted only one prior lethal injection execution. Other states have far more information available concerning the problems with their particular procedures. There is a door open for future litigation on the constitutionality of lethal injection and I imagine that death penalty attorneys are already starting to prepare their future challenges.

A fuller discussion at the end of the of weekly. Complete news coverage atStand Down.

Lyle Denniston’ssuperb postat the SCOTUSblog on the oral arguments in Kennedy v. Louisiana can be summed up this way: Court looks to skip the hardest questions and potentially rule Louisiana’s statute doesn’t sufficiently narrow the class of death eligible rapists. Essentially Kennedy can win on either of his two chief arguments. The first is that death for rape, even child rape, is impermissible as,Corey Rayburn Yungnotes, “capital child rape statutes are not part of an evolving standard of decency. The second argument concerns whether the class of defendants is sufficiently narrowed under the Louisiana statute. Because the aggravating factors that applied to Kennedy were also elements of the crime, there is a real question over whether any narrowing has occurred.” Thebriefs are here. The transcripts are availablehere.

In the lower federal courts the Sixth Circuit inFrank Spisak, Jr., v. Hudsonreaffirms its prior grant of penalty phase relief, despite an intervening remand from the United States Supreme Court. In a curious First Circuit loss, a panel holds inUnited States v. Rodney Lopez-Matias, Eduardo Riera-Crespo & Raymond Alers-Santiago"the district court abused its discretion when it failed to consider whether there was prejudice to the defendants" when the Government filed a late "Notice of Intent to Seek a Sentence of Death" and removed the option of the death penalty in this capital prosecution.

Leading off the first of four favorable state court opinions, the Ohio Supreme Court inState v. Whitegranted penalty phase relief as White is mentally retarded, despite the trial court's findings to the contrary. The Texas Court of Criminal Appeals inEx parte Michael Nawee Blairremands to the trial court in light of new DNA evidence. The Louisiana Supreme Court inState v. Amanda Gutweiller a/k/a Amanda Hypes,quashes an indictment in this potentially capital case in light of the "State’s violation of grand jury secrecy and to preserve the strong public policy in favor of maintaining the secrecy of grand jury proceedings." Finally the North Carolina Supreme Court remandsState v. Iziah Bardenso that the trial court can consider Barden'sBatsonclaim in light of the additional guidance provided by the decisions inSnyder,Rice, andMiller-El.

Please note several websites relating to the death penalty have been hacked. Both DPIC & CFTJ’s websites have been hacked & hijacked. The Death Penalty Information Center was intermittently referring people to a porn site that attempts to install malware but now appears to simply refer people to a blank site. CFTJ is now down.

Looking ahead, the Fifth Circuit inDavid Lee Powell v. Quarterman, 2008 U.S. App. LEXIS 8209 (April 16, 2008) (unpublished), on Wednesday granted a Certificate of Appealability on three issues in this case out of Texas. The COA's questions include the applicability of Apprendi v. New Jersey & Ring v. Arizona to the Texas special question scheme, suppression of favorable evidence and Miranda. The remaining cases for the week that just passed appears to be outright losses.

Execution Data

May

27 Kevin Green - Va.

June

10 Percy Walton - Va.

July

15 Darrell Robinson - La.

24 Edward Bell - Va

Recent Executions

None in the last 30 days

SCOTUS

• Baze v. Rees, No. 07–5439 (4/16/2008) Kentucky's lethal injection protocol on this record does not violate the Eighth Amendment's ban on cruel and unusual punishments. More below. (Five concurring opinions and a dissent)
• Burgess v. US, No. 06-11429 (4/16/2008) A state drug offense punishable by more than one year qualifies as a "felony drug offense," even if state law classifies the offense as a misdemeanor under Controlled Substances Act's (CSA), 21 U.S.C. section 841(b)(1)(A).
• Begay v. US, No. 06-11543 (4/16/2008) Driving under the influence of alcohol (DUI) is not a "violent felony" for purposes of the Armed Career Criminal Act (ACCA).

Remainders from prior editions

• Michael Sale v. State, 2008 Ala. Crim. App. LEXIS 73 (Ala. Crim. App. 4/4/2008) Relief denied on claims relating to: (1) sufficiency of kidnapping aggravator & the substantive offense of kidnapping; (2) trial court erred in failing to declare a mistrial when his lead counsel fell ill during the trial; and (3) the trial court erred when it denied his motion for a change of venue on the ground of what Sale characterized as "prejudicial press coverage."
• Kerry Spencer v. State, 2008 Ala. Crim. App. LEXIS 74 (Ala. Crim. App. 4/4/2008) Jury override to death. Relief denied on claims including: (1) whether "the trial court erroneously allowed evidence of collateral crimes and prior bad acts, without sua sponte giving a limiting instruction to the jury regarding the proper use of the now complained-of evidence;" (2) "trial court erroneously failed to instruct the jury on voluntary intoxication and the lesser-included offense of manslaughter;" (3) failure to issue "instanter subpoena to compel the presence of defense witness Tyran "Bubba" Cooper;" (4) "trial court erred in refusing to instruct the jury on self-defense;" (5) "trial court erred in refusing to instruct the jury on heat-of-passion manslaughter as a lesser-included offense;" (6) "trial court's use of the State's requested jury instructions;" (7) in light of Ring v. Arizona his death sentence should be vacated as "there is no evidence that the jury unanimously found that at least one aggravating factor was proven beyond a reasonable doubt;" and (8) judicial override to death. Remand had, however, as "the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, and the principles espoused in Ex parte Taylor, Ex parte Tomlin, and Ex parte Carroll, and the cases cited therein, were not met as the trial court's sentencing order did not state that the jury's recommendation was treated as a mitigating circumstance and did not contain specific findings as to the weight assigned to the jury's recommendation of life imprisonment without parole or the reasons for the judicial override of that recommendation. Thus, we must remand this case to the trial court."
• Thomas Dale Ferguson v. State, 2008 Ala. Crim. App. LEXIS 75 (Ala. Crim. App. 4/4/2008) (dissent) Jury override to death. Relief denied, most notably: (1) whether the trial court complied with the Alabama Supreme Court's decisions inTaylor, Carroll,andTomlinin overriding the jury's recommendation and sentencing Ferguson to death; (2) whether on these facts Ferguson was entitled to an evidentiary hearing on his claim that he is mentally retarded; (3) the court hearing his Rule 32 petition erred in summarily dismissing his claims of ineffective-assistance-of-counsel; and (4) whether the circuit court erred in adopting the State's order summarily dismissing his petition.

(Initial List) Week of April 7, 2008 – In Favor of the Defendant or the Condemned

• Frank Spisak, Jr., v. Hudson, 2008 U.S. App. LEXIS 7760 (6th Cir 4/11/2008) Following remand from the United States Supreme Court prior grant of penalty phase relief is reaffirmed.
• State v. White, 2008 Ohio LEXIS 867 (Ohio 4/9/2008) Relief granted as White is mentally retarded within the meaning of Atkins v. Virginia, despite the trial court's finding to the contrary.
• State v. Iziah Barden, 2008 N.C. LEXIS 336 (NC 4/10/2008) "[W]e remand to the Superior Court in Sampson County for another hearing on theBatsonissuein light ofSnyder,Rice, andMiller-El,with regard to prospective jurors Lemuel Baggett and Teresa Birch."
• State v. Amanda Gutweiller a/k/a Amanda Hypes, 2008 La. LEXIS 795 (LA 4/8/2008) "Under the circumstances of this case, the remedy of quashing the indictment is adequate to redress the State’s violation of grand jury secrecy and to preserve the strong public policy in favor of maintaining the secrecy of grand jury proceedings."
• Ex parte Michael Nawee Blair, 2008 Tex. Crim. App. Unpub. LEXIS 276;No'sWR-40,719-03&WR-40,719-05(Tex. Crim. App. 4/9/2008) (unpublished) "[R]emanded to the trial court so that it may consider the additional DNA evidence and argument of the parties concerning it."

(Initial List) Week ofApril 7, 2008 – In Favor of the State or Government

• Carl Wayne Buntion v. Quarterman, 2008 U.S. App. LEXIS 7758 (5th Cir 4/11/2008) "Grant of conditional habeas relief on a claim of judicial bias from a conviction for capital murder and death sentence is vacated and relief denied where: 1) although various comments and actions by the trial judge both on and off the bench were highly improper; nevertheless, 2) under the AEDPA's highly deferential standard, a state habeas court's decision was neither an unreasonable application of controlling Supreme Court precedent, nor did it involve an unreasonable determination of the facts in light of the evidence presented." [via Findlaw]
• United States v. Rodney Lopez-Matias, Eduardo Riera-Crespo & Raymond Alers-Santiago, 2008 U.S. App. LEXIS 7662 (1st Cir 4/10/2008) "In this carjacking case, the district court ruled that the government could not seek the death penalty, citing the government's failure to abide by its own policies and by local court rules. The government appeals. Finding appellate jurisdiction over the matter, we hold that the district court abused its discretion when it failed to consider whether there was prejudice to the defendants. We can discern no prejudice on the record. Accordingly, we vacate the district court's order striking the Notice of Intent to Seek a Sentence of Death."
• Alvin Kelly v. Quarterman, 2008 U.S. App. LEXIS 7745 (5th Cir 4/10/2008) (unpublished) "The sole issue on appeal is whether the district court clearly erred in finding that a witness did not recant her trial testimony." Relief denied.
• Robert Jean Hudson v. Quarterman, No. 07-70039 (5th Cir 4/9/2008) (unpublished) "Hudson raises three arguments on appeal. He argues that (1) the district court improperly applied the AEDPA’s standard of deference to the state habeas court’s findings; (2) his trial counsel rendered ineffective assistance by failing to investigate and present at the punishment phase mitigating evidence in the form of testimony from several family members; and (3) the Dallas County Sheriff’s Department forcibly medicated him during trial, which prevented him from effectively assisting his counsel in his defense, interfered with his confrontation rights, and denied him due process of law."
• Abdullah Sharif Kaazim Mahdi v. Bagley, 2008 U.S. App. LEXIS 7766 (6th Cir. 4/11/2008) "Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause." Relief denied.
• State v. Steve Alan Boggs, 2008 Ariz. LEXIS 48 (Az 4/9/2008) Relief denied on claims relating to: (1) the admission of inculpatory statements by the Accused; (2) investigative hearsay contained in the police's questions; (3) putative invocation of the Accused's Fifth Amendment privilege; (4) failure to redact certain portions of the statement where the police accuse the Defendant of lying; (5) "failure to return some of the documents seized from his cell violated his constitutional right to keep confidential pretrial preparations and attorney-client communications and required the court to grant his motion to dismiss;" (6) police testifying as to third party statements; (7) "the trial court abused its discretion by denying his motion to proceed pro per at the penalty phase;" (8) "trial court violated his due process right to a fair trial by allowing the State to present threatening letters as rebuttal evidence in the penalty phase;" and (9) statutory review.
• Ex parte Gene Wilfor Hathor, Jr., 2008 Tex. Crim. App. Unpub. LEXIS 294 (Tex. Crim. App. 4/9/2008) (unpublished) (dissent) "Applicant presents two allegations in the instant application. Specifically, he asserts that (1) the punishment questions given did not allow the jury to meaningfully consider his mitigating evidence (a claim that was also raised in his initial habeas application); and (2) the findings and conclusions entered by the trial court regarding the claims raised in his initial habeas application are void and without effect." Dismissed for abuse of the writ.

Week of April 7, 2008 – noncapital of note

• Barbe v. McBride, No. 06-7550 (4th Cir 4/7/2008) State court erred by adopting a per se rule restricting cross-examination of the prosecution's expert under West Virginia's rape shield law.

(Initial List) Week of April 14, 2008 – In Favor of the Defendant or the Condemned

• David Lee Powell v. Quarterman,2008 U.S. App. LEXIS 8209 (5th Cir 4/16/2008) (unpublished) Certificate of Appealability granted on three issues in this case out of Texas. The COA’s first question seems rather curious:

Claim 1. Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 564 (2002), which were decided while Powell’s case was on direct appeal, required that Powell’s third trial (a capital resentencing proceeding following affirmance of the conviction) be a complete new trial on all the elements of the capital offense (including guilt-innocence elements) rather than just a retrial on the elements formerly treated as sentencing factors.

Claim 2. The prosecution’s failure timely to disclose documents in which agents of the prosecution asserted that Meinert fired shots at Officer Ablanedo and the other officers and threw a hand grenade violated Powell’s right to due process under Brady v. Maryland, 387 U.S. 83 (1963).

Claim 3. Powell’s Fifth and Fourteenth Amendment rights under Estelle v. Smith, 451 U.S. 454 (1981), were violated when an emergency room doctor, who did not provide Miranda warnings to Powell when he examined Powell following his arrest, testified for the prosecution about Powell’s answers to questions the doctor asked during the examination.

(Initial List) Week ofApril 14, 2008 – In Favor of the State or Government

• Kent Jermaine Jackson v. Johnson, 2008 U.S. App. LEXIS 7997 (4th Cir 4/15/2008) Relief denied on whether "Jackson’s trial counsel was ineffective for failing to object to the Commonwealth’s victim-to-defendant comparison at sentencing."
• Jose Luis Villegas v. Quarterman, 2008 U.S. App. LEXIS 8210 (5th Cir 4/16/2008) (unpublished)"This case involves an application for a certificate of appealability ("COA") filed by Jose Luis Villegas to appeal the district court's denial of habeas corpus relief under 28 U.S.C. § 2254. Villegas seeks a COA to appeal the denial of his claims that counsel provided ineffective assistance during the penalty phase of his trial by failing to (1) investigate thoroughly his background, character, personal circumstances, and mental health history; and (2) present adequate evidence of his background, character, personal circumstances, and mental health history in a manner sufficient to provide the jury with a vehicle to consider and give meaningful effect to the evidence in such a way that it would mitigate the imposition of the death penalty. Because we conclude that Villegas has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a COA."
• People v. Alfredo Valencia, 2008 Cal. LEXIS 4060 (Cal 4/14/2008) "The corpus delicti rule applies to unadjudicated crimes offered in aggravation at the penalty phase of a capital trial under current law. A conviction for first degree murder and death sentence is affirmed on automatic appeal over claims of error regarding: 1) prosecutorial misconduct; 2) exclusion of defense evidence; 3) jury instructions; 4) the sufficiency of the evidence; 5) the admission of preliminary hearing testimony; 6) the admission of hearsay evidence to prove corpus delicti; 7) admission of evidence of a photographic lineup; 8) admission of victim impact evidence; 9) limits on defense counsel's jury argument; 10) challenges to California's death penalty law; 11) international law; and 12) cumulative error."[via Findlaw]

(Initial List) Week ofApril 14, 2008 – noncapital of note

• Billy S. Jeffries v. Morgan, 2008 U.S. App. LEXIS 8352 6th Cir. 4/14/2008) Remand ordered to expand the record in the court below concerningBradyclaims.

Selected Excerpts from, & Commentary on, this Edition's Cases

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Baze v. Rees, No. 07–5439 (4/16/2008) Kentucky's lethal injection protocol, at least on this record, does not violate the Eighth Amendment's ban on cruel and unusual punishments. (Five concurring opinions and dissent)

Fordham’s Professor Deborah Dennonotes:

Baze v. Rees is a splintered plurality decision in which the Supreme Court puts forth an Eighth Amendment standard that an execution method must constitute a “substantial” or “objectively intolerable” risk of serious harm before it can be rendered a violation of the Eighth Amendment. While the Court affirmed the constitutionality of Kentucky’s lethal injection procedure, the evidence available in Kentucky was limited due to constraints on discovery and the fact that the state has conducted only one prior lethal injection execution. Other states have far more information available concerning the problems with their particular procedures. There is a door open for future litigation on the constitutionality of lethal injection and I imagine that death penalty attorneys are already starting to prepare their future challenges.

With no clear opinion, Baze v. Reesis now decided. This is a loss for two former clients, but in some ways Baze appears to signal a sharp turn away from the Rehnquist Court’s capital jurisprudence.

Lyle Dennistonsums up the opinion succinctly:

Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.” A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The opinion then added: “If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state’s refusal to change its method can be viewed as ‘cruel and unusual punishment’ under the Eighth Amendment.”

The Court concluded, though, that the existing protocol in Kentucky — the state involved in this case — did not violate the Constitution. The Court rejected the challenge by two Kentucky inmates that the state improperly administers the first drug in the three-chemical protocol — sodium thiopental, which is used to make the inmate unconscious. The Court said it agreed with “the state trial court and the State Supreme Court [in Kentucky]…that petitioners have not shown that the risk of an inadequate dose of he first drug is substantial.” The Court also rejected the inmates’ argument that the Eighth Amendment required the state to adopt a one-drug protocol, which the Court called an ”untested alternative.”

The meat of what this opinion really means is in the dicta, on page 23 of the Chief Justice’s plurality opinion:

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, “[o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation.” 329 U. S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. “[T]he power of a State to pass laws means little if the State cannot enforce them.” McCleskey v. Zant,499 U. S. 467, 491 (1991). State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to “objectively intolerable risk,” Farmer, 511 U. S., at 846, and n. 9, not simply the possibility of pain

As to the future of lethal injection protocol challenges, future challenges may well be had.

[W]e reject petitioners’ proposed “unnecessary risk” standard, as well as the dissent’s “untoward” risk variation. See post, at 2, 11 (opinion of GINSBURG, J.)

Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

And pages 11- 12 of Justice Stevens’ concurring opinion:

At the same time, however, as the thoughtful opinions by THE CHIEF JUSTICE and JUSTICE GINSBURG make pellucidly clear, our society has moved away from public and painful retribution towards ever more humane forms of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim.16 This trend, while appropriate and required by the Eighth Amendment’s prohibition on cruel and unusual punishment, actually under- mines the very premise on which public approval of the retribution rationale is based. See, e.g., Kaufman-Osborn, Regulating Death: Capital Punishment and the Late Liberal State, 111 Yale L. J. 681, 704 (2001) (explaining that there is “a tension between our desire to realize the claims of retribution by killing those who kill, and . . . a method [of execution] that, because it seems to do no harm other than killing, cannot satisfy the intuitive sense of equivalence that informs this conception of justice”); A. Sarat, When the State Kills: Capital Punishment and the American Condition 60–84 (2001).

Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: “Is it time to Kill the Death Penalty?” See Salinas, 34 Am. J. Crim. L. 39 (2006). The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

Doug Bermannotes succinctly:

In part because the Bazedecision provides a little something for everyone, the Bazedecision’s true impact will largely be decided by local officials (including state judges and “local” federal district judges). Those local officials eager to get executions going again will have new wind behind the sails of an argument that standard lethal injection protocols are constitutionally sound; those local officials content with the de factomoratorium status quo can use various parts of Bazeto justify claims that everyone should go slow as officials re-examine execution protocols in light of the Supreme Court’s new guidance in Baze.

In part because the Bazedecision’s true impact will largely be decided by local officials, the politics and practicalities of the death penalty can, should and likely will now largely return to where they belong — namely in the hands of local officials, most of whom are elected and politically accountable. I often view the death penalty in America as an example of modern federalism at its finest: states with an affinity for the death penalty can spend (waste?) a lot of time and money on capital cases, while states less excited about this punishment can reject its use de jureor de factoin various ways.

State v. White, 2008 Ohio LEXIS 867 (Ohio 4/9/2008) Relief granted as White is mentally retarded within the meaning of Atkins v. Virginia.

A capital defendant raising an Atkins claim "bears the burden of establishing that he is mentally retarded by a preponderance of the evidence." Lott, 97 Ohio St.3d 303, 2002 Ohio 6625, 779 N.E.2d 1011, P 21. In Lott, we instructed trial courts to "rely on professional evaluations * * * and consider expert testimony * * * in deciding" whether a capital defendant is mentally retarded. Id. at P 18.

In this appeal, White contends that the trial court abused its discretion by refusing to find that he had established retardation by a preponderance of the evidence, despite the testimony of two expert witnesses that he is mentally retarded and the lack of any expert testimony to the contrary. For the reasons that follow, we agree.

1. Adaptive Deficits

a. The Trial Court's Rejection of the SIB-R

The expert opinions of Drs. Hammer and Fabian were based substantially on the SIB-R. Both experts considered the SIB-R to be a valid tool for measuring adaptive [*18] skills. In their testimony, Drs. Hammer and Fabian described the SIB-R as "well developed," "mainstream," well standardized, useful, and reliable.

Undisputed evidence at the hearing showed that the SIB-R was based on extensive empirical research. Hill testified that, in deciding what skills to include on the test, the authors of the SIB-R used standard test-development procedures. The test developers interviewed a randomly selected, demographically representative group of 2,182 nonhandicapped persons. Their responses were used to determine which questions were most useful in distinguishing between persons who are mentally retarded and those who are not.

According to Hill, standard measures of reliability show that the SIB-R is a reliable test. Although a SIB-R evaluation is not completely free of subjectivity, Hill testified that the SIB-R is "as objective as we could make it" and "one of the most objective ways to measure adaptive behavior that there is."

Nevertheless, the trial court rejected the results of the SIB-R. The trial court questioned the results in part because, in scoring the test, Dr. Hammer had utilized information provided by White himself. However, Dr. Hammer estimated [*19] that "probably less than 10 percent" of his information came from White. Moreover, he did not use information provided by White as his sole basis for scoring any of the items on the SIB-R.

Furthermore, the record does not demonstrate that it is necessarily improper to use the person being evaluated as an informant on the SIB-R. Dr. Fabian, whose testimony on this issue was cited by the trial court, testified: "I think that they recommend as a[n] SIB-R collateral [informant] individuals other than the person [being evaluated]." (Emphasis added.) Similarly, Dr. Hill -- a co-author of the SIB-R -- testified only that "[t]here's some caution in the manual" about using the subject as an informant. "I don't think it says you can't interview a person directly that you suspect is retarded, but it's unlikely that you would want to rely on them solely for the information."

More important, the trial court failed to consider why the SIB-R manual discourages using the subject as an informant. Dr. Hammer and Mr. Hill both explained that using the subject as an informant is discouraged because mentally retarded persons tend to overestimate their own abilities. As Dr. Hill testified:

"There's some [*20] * * * research literature, that shows that if you interview a retarded person directly about themselves, that they often overestimate their abilities, that * * * they want to brag about the abilities they have or that they're not always a reliable respondent.

"There's never been any research to my knowledge cautioning people not to interview a retarded person directly because they underestimate their score." (Emphasis added.)

Hence, the record lends no support to the trial court's apparent belief that using White as an informant for the SIB-R compromised the validity of the diagnosis of mental retardation reached by the experts in this case.

b. The Trial Court's Reliance on Anecdotal Lay Testimony

The trial court relied heavily on the testimony of White's ex-girlfriend, Heather Kawczk, in reaching its conclusion that White failed to prove significant adaptive limitations.

Kawczk testified that she met White in the fall of 1992, when they attended high school together. She dated him until November 1995 and lived with White and his mother for over a year. In the fall of 1995, White and Kawczk shared an apartment for one and one-half to two months.

Kawczk testified that White was popular [*21] in school, "got along with a lot of people at school," and participated in activities with others. White and Kawczk went driving together. He took her to the homecoming dance, double-dating with another couple, and to a post-dance party where they "hung out" with other students. They attended high-school sporting events together.

Kawczk testified that White purchased a used truck and helped her when she purchased a used car. When he drove, White obeyed traffic rules. When White decided to rent an apartment, he signed a lease and made a deposit. White also directed Kawczk to conceal from the landlord that she was living there with him.

Kawczk testified that White had taught her to play Spades, a card game, and a fast-moving card game called "Speed." He also played basketball and "Mortal Kombat," a fast-paced video game, which he won about half the time. He could cook bacon and eggs and heat refrigerated chicken wings in the oven.

Dr. Hammer was present in the courtroom during Kawczk's testimony. n4 Dr. Hammer testified that White's family had already told him, in the October 2003 interview, many of the facts Kawczk related in her testimony.

Nevertheless, after Kawczk testified, Dr. Hammer rescored the SIB-R to reflect information gleaned from her testimony. As a result, Dr. Hammer increased White's scores on five of the 259 items. This revision did not significantly improve White's overall score, which rose only two points, from 55 to 57. Hence, rescoring the test did not alter Dr. Hammer's opinion that White is mentally retarded.

According to the undisputed testimony of the expert witnesses in this case, the facts stated in. Kawczk's testimony are in no way inconsistent with mild mental retardation. The mentally retarded are not necessarily devoid of all adaptive skills. Indeed, "they may look relatively normal in some areas and have certain significant limitations in other areas." [*23] Mildly retarded persons can play sports, write, hold jobs, and drive. Dr. Hammer testified that, in determining whether a person is mentally retarded, one must focus on those adaptive skills the person lacks, not on those he possesses.

The trial court's analysis appears to disregard this testimony. For example, the trial court's opinion mentions twice that White was a licensed driver. However, Dr. Hammer testified that a mildly retarded individual can qualify for a driver's license and that licensed-driver status is not a good criterion for distinguishing between people who are and are not retarded.

Similarly, the trial court found that White "was adept at video games, including * * * 'Mortal Kombat.'" It is not clear, however, what relevance White's video-game skills have to mental retardation. Dr. Hammer testified that Mortal Kombat "doesn't require a lot of planning [or] strategizing" and can be played by children younger than ten.

The trial court's analysis was also misdirected in stressing that White's family and peers did not perceive White to be lacking in adaptive behavior skills. Both experts testified that laymen cannot easily recognize mild mental retardation. Likewise, [*24] the trial court erred in focusing on whether White had exhibited behavior that was "bizarre" or "out of the ordinary." There was no evidence that "bizarre" behavior is a necessary attribute of the mentally retarded.

Especially relevant here is Dr. Hammer's already-cited observation that retarded individuals "may look relatively normal in some areas and have * * * significant limitations in other areas." (Emphasis added.) In light of that unrebutted testimony, the impressions of White's peers as relayed by Kawczk lend no support to the findings of the trial court.

We conclude that the trial court abused its discretion when it determined that White had failed to prove the existence of significant adaptive-skills limitations. In this case, the trial court failed to set forth any rational basis grounded in the evidence for rejecting the uncontradicted testimony of two qualified expert witnesses in the field of psychology.

A trial court is not required to automatically accept expert opinions offered from the witness stand, whether on mental retardation or on any other subject. See State v. Dickerson (1989), 45 Ohio St.3d 206, 210, 543 N.E.2d 1250 (expert testimony is not necessarily conclusive); [*25] Ex parte Briseno (Tex.Crim.App.2004), 135 S.W.3d 1, 9 (although experts may offer insightful opinions, ultimate issue of mental retardation is for the trier of fact). Nevertheless, expert opinion "may not be arbitrarily ignored, and some reason must be objectively present for ignoring expert opinion testimony." (Emphasis added.) United States v. Hall (C.A.5, 1978), 583 F.2d 1288, 1294. See, also, State v. Brown (1983), 5 Ohio St.3d 133, 134-135, 5 OBR 266, 449 N.E.2d 449 (trial court erred by disregarding expert opinions that defendant was insane, in the absence of evidence to the contrary).

In this case, the anecdotal evidence on which the trial court focused its attention was largely irrelevant. Moreover, to the extent that the anecdotal evidence was relevant, Dr. Hammer took it into account in scoring the SIB-R. There was no evidence calling into doubt the reliability of the SIB-R.

Nor did the trial court make any finding that the expert witnesses before it lacked either credentials or credibility. On the contrary, the court described Dr. Hammer as "a distinguished expert" with "impressive" credentials. And the trial court's rejection of the expert testimony was not based on any [*26] credibility determination. The trial court stated: "It is not so much that Dr. Hammer's testimony lacks credibility, as * * * that the ingredients for the [SIB-R] test are patently at odds with the credible testimony of Ms. Kawczk." (Emphasis added.)

While the trial court is the trier of fact, it may not disregard credible and uncontradicted expert testimony in favor of either the perceptions of lay witnesses or of the court's own expectations of how a mentally retarded person would behave. Doing so takes an arbitrary, unreasonable attitude to the evidence before the court and results in an abuse of discretion.

2. Onset before Age 18

The trial court also determined that White had failed to prove that his adaptive-skills limitations began before age 18. Whether the trial court's determination of this issue was correct was necessarily raised by appellant's assignment of error in the court of appeals. However, it was not addressed in the appellate court's opinion. Apparently, the court of appeals believed that its review of the "pre-age 18 onset" issue was unnecessary because it was upholding the adaptive-skills finding of the trial court. Because we have determined that the trial court [*27] erred in making this finding, however, we must now address the "pre-age 18 onset" issue. In the interest of judicial economy, we will address that issue today, in order to afford a complete and final resolution to this matter while the record is before us.

A finding that White's adaptive-skills limitations began after age 18 would preclude a finding of mental retardation under Lott. However, White claims that the trial court's determination in this regard was also an abuse of discretion. Upon our review of the record, we must agree.

Although no adaptive-skills tests had ever been conducted on White before he reached the age of 18, Dr. Hammer believed that White would have attained a low score had such testing been conducted. The state introduced no evidence to the contrary. Yet the trial court found that Dr. Hammer's opinion, in the absence of any actual pre-18 adaptive-skills testing, was "conjectur[al]" and did not establish the existence of adaptive deficits before the age of 18.

In our view, the trial court's finding on this issue does not comport with the evidence in the record. Although White had taken neither an IQ test nor an adaptive-skills test before age 18, Drs. Hammer [*28] and Fabian were able to review White's academic records. These records strongly support the experts' conclusion that White's intellectual and adaptive deficits had their onset before age 18.

White's academic records attest to his poor performance in school. When White was in seventh grade, during the 1985-1986 school year, he failed seven of ten subjects. The next year, he repeated seventh grade and failed four of nine subjects. In eighth grade, White failed two of eight subjects.

During his eighth-grade year, White took the California Achievement Test ("CAT"), described by Dr. "Fabian as "an academic achievement test similar [to] or [the] same as the WRAT." White's CAT scores reflect a performance well below the eighth-grade level. CAT scores indicated that his reading abilities were at the fourth-grade level and his language abilities at the third-grade level. His best subject on the CAT was mathematics, but even there, he reached only a sixth-grade level.

In 1988, the 15-year-old White was placed in an alternative school, but continued to perform poorly. In ninth grade, his grade-point average was 1.625. In tenth grade, White failed six of the seven courses in which he was awarded [*29] a grade. At 17, he repeated tenth grade and failed every course in which he received a grade. At 18, he repeated tenth grade again, this time failing six of seven courses. At 19, he was placed in the tenth grade for a fourth time, but school authorities later removed him because he was too old.

Dr. Hammer's interviews with White's family corroborated the picture that emerges from White's records. The family told Dr. Hammer that White "was having trouble with schoolwork, that he oftentimes would not let people * * * help him, he would become easily frustrated when people would try to help him * * * with the academic things." White's childhood academic performance, as reflected in both school records and family interviews, "was basically consistent with mild mental retardation," according to Dr. Hammer.

Finally, there was no evidence to suggest that White's current impairments could be explained by anything that happened after he turned 18, such as a brain injury. Dr. Hammer testified that White's records contained no evidence of any such event. Nor does anything in White's history indicate that he functioned at a higher level before age 18 than he does today.

As Dr. Hammer explained, [*30] the purpose of the "onset before age 18" requirement is to distinguish true retardation from cognitive impairments acquired later in life and caused by brain injuries or mental conditions. Both expert witnesses testified that a person's mental-retardation status does not change over his lifetime. Hence, if an adult is found to have intellectual and adaptive deficits not caused by a brain injury or illness, it can be inferred that those deficits have existed since childhood.

We think the trial court, by rejecting well-supported expert opinion regarding pre-18 onset without any evidence to the contrary, abused its discretion. The trial court gave too much weight to the fact that White's adaptive skills were never tested before age 18. As Dr. Hammer explained in his testimony, such testing will often not have taken place, particularly in cases of mild mental retardation.

State v. Iziah Barden, 2008 N.C. LEXIS 336 (NC 4/10/2008) "[W]e remand to the Superior Court in Sampson County for another hearing on theBatsonissuein light ofSnyder,Rice, andMiller-El, with regard to prospective jurors Lemuel Baggett and Teresa Birch."

In Barden I, defendant challenged the State's use of peremptory challenges to remove two prospective African-American jurors, Lemuel Baggett and Brenda Corbett. This Court noted that the first prong of the Batsontest was at issue: Whether defendant made a prima facie showing that the challenges were based on race. We held that the trial court erred in concluding that defendant failed to present a prima facie showing under Batsonand ordered that on remand, the trial court “give the State an opportunity for presenting race-neutral reasons for striking prospective jurors Baggett and Corbett.” Id.at 345, 572 S.E.2d at 128.

In anticipation of the Batsonhearing, on 21 March 2003, defendant filed various motions aimed at obtaining information about materials used by the prosecution before and at trial to guide the State's jury selection process. These filings included motions for discovery and production of documents. The trial court denied the motions.

Defendant's Batsonhearing was held during the 28 March 2003 special criminal session of the Superior Court in Sampson County. On 10 April 2003, Judge Balog entered an order denying defendant's Batsonclaims. Defendant again appealed to this Court, asserting error in the trial court's denial of his 21March 2003 discovery motions and the trial court's denial of his Batsonclaims.

Defendant assigns as error the denial of his “Motion for Discovery” and “Motion for Production of Documents,” seeking to obtain notes, manuals, policies and other documents which could shed light on the State's preparation for and conduct of jury selection. Both motions were filed pursuant to N.C.G.S. § 15A-1415(f). Section 15A-1415 by its plain language applies to proceedings surrounding a “postconviction motion for appropriate relief.” Because these discovery issues arise in the context of defendant's direct appeal rather than a post-conviction motion for appropriate relief, the trial court properly denied defendant's motions for discovery.

However, we again remand this case to the Superior Court in Sampson County for the limited purpose of conducting an additional Batsonhearing. On remand, a judge presiding over a criminal session shall consider the voir dire responses of prospective juror Baggett and those of Teresa Birch, a white woman seated on defendant's jury, in light of Snyder v. Louisiana, 552 U.S. __, 128 S. Ct. 1203, __ L. Ed. 2d __ (2008) , Rice v. Collins, 546 U.S. 333, 163 L. Ed. 2d 824 (2006), and Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196 (2005) , cases decided after defendant's prior Batsonhearing. The State shall have an opportunity to offer race-neutral reasons for striking juror Baggett while seating juror Birch. The court should determine whether these explanations are race-neutral under the framework set forth in these United States Supreme Court decisions, which were not available to it at the time of the 2003 hearing. If the court upholds the strikes after this new hearing under Batsonin light of Snyder, Rice, and Miller-El, the defendant's sentence will stand. If not, he is entitled to a new trial. The trial court's order is subject to appellate review.

Accordingly, we remand to the Superior Court in Sampson County for another hearing on the Batsonissue in light of Snyder, Rice, and Miller-El, with regard to prospective jurors Lemuel Baggett and Teresa Birch. The trial court is directed to hold this hearing, make findings of fact and conclusions of law, and certify its opinion to this Court within 120 days of the filing date of this opinion.