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Hill v. Anderson – On Remand, 6th Circuit Once Again Sets Aside Death Sentence Under Atkins

The 6th Circuit Court of Appeals recently overturned the death sentence of Habeas Corpus petitioner Danny Hill, finding that Hill was intellectually disabled, and therefore ineligible for the death penalty under Atkins v. Virginia.

Hill was originally convicted of murder and sentenced to death in 1986. His conviction and sentence were affirmed on direct appeal. It was not until 2002, while Hill’s first Habeas petition was pending in the Federal Court of Appeals, that the Supreme Court handed down Atkins. That decision relied on Supreme Court precedent that execution violates the 8th Amendment bar on cruel and unusual punishment when it is not proportional to the offense committed. The Atkins Court held that because of their lessened culpability, the death penalty is disproportionate when applied to intellectually disabled individuals.[i]

While the Supreme Court left it up to the states to decide how they would determine which defendants were intellectually disabled, it noted that two prominent psychiatric manuals require three separate findings in order to make such a diagnosis: (1) significantly subaverage intellectual functioning, typically indicated by an IQ of 70 or lower; (2) significant limitations in adaptive functioning; and (3) manifestation or onset before the age of 18.

 Following Atkins, the Court of Appeals remanded Hill’s case to the District Court, with instructions to remand to the state courts to determine if Hill was entitled to relief under Atkins. The Ohio Court of Appeals and Ohio Supreme Court had already determined in Hill’s direct appeal that Hill was intellectually disabled. On remand, the court determined that issue preclusion did not apply to this determination, since the issue of whether Hill was intellectually disabled was not essential to Hill’s conviction and sentence in 1986, before Atkins was decided.

During the hearing on Hill’s Atkins claim, the court ruled that “the focus of the evaluation would be Hill’s present functioning, and therefore that contemporary evidence was what was primarily relevant – not historical accounts.” Three expert witnesses testified during the hearing. One had been appointed by the court, one was retained by the State, and one retained by Hill. The evidence at the hearing showed that Hill’s IQ at the time of trial ranged from 55 to 68, low enough that the parties agreed he qualified as intellectually disabled under the first prong of Atkins. He also had the moral development of a two-year old. Hill had always struggled in in school, and was placed in special education classes from kindergarten forward. He remained essentially illiterate for his whole life, and was unable to take care of his hygiene independently, without reminders to brush his teeth or shower. While the defense expert focused on these facts, the other two experts pointed at evidence of Hill’s intelligence and sophistication, which was inconsistent with an intellectual disability diagnosis. This evidence included the fact that Hill had arranged a press conference with local news outlets in 2000, in order to draw attention to his case, something  the State’s expert claimed he had never seen an intellectually disabled person do. Both the State’s and the court’s experts were impressed with Hill’s memory of events, and by the fact that he was able to tell a complex and detailed account of events leading up to the murder. The court’s witness found Hill’s account “remarkable and not likely, not very plausible,” but nevertheless noted “the degree of organization, the degree of complexity, and the degree of memory,” which she believed would be unusual for an intellectually disabled person. The State also presented evidence of Hill’s current level of functioning in prison and interaction with prison staff and law enforcement to show that he was not disabled.

The defense expert testified that this behavior was not inconsistent with that of a mildly intellectually disabled person, explaining that many such people “are quite aware of their deficits in learning and functioning, and are somewhat worried that other people will find that also. So they oftentimes will develop certain skill areas that they can hold out as indicating that they have a competence in a certain area, and therefore, are trying to mask . . . what their deficits actually are.” Ultimately, the state and court experts opined that Hill was not disabled, while the defense expert opined that he was mildly intellectually disabled. The court credited the two experts, and held Hill was not entitled to relief under Atkins. Hill then renewed his Habeas petition in the Federal Courts.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), The District Court could grant Hill’s petition on the Atkins claim only if the state court’s decision that he was not intellectually disabled was either an unreasonable application of clearly-established law, or an unreasonable determination of facts. Under this standard of review, the District Court denied the petition. The 6th Circuit reversed. It based this decision, in part, on Moore v. Texas, decided by the Supreme Court in 2017. In Moore, The Supreme Court reversed the Texas Court of Criminal Appeal’s decision that the defendant was not intellectually disabled. The Court found that the Texas court had improperly discounted the defendant’s adaptive deficiencies, and instead focused on his adaptive strengths, an approach rejected by the medical community.

The 6th Circuit found that the Ohio courts had made the same mistake as the Texas court in Moore, by focusing selectively on evidence of Hill’s strengths, while discounting evidence of his deficiencies. On appeal by the state, The Supreme Court held that the 6th Circuit should not have applied Moore retroactively. It therefore remanded for reconsideration of Hill’s claim under Atkins based only on the law that was applicable in 2008, when Ohio courts addressed the issue.

On remand, the 6th Circuit again reached the same conclusion that Hill was intellectually disabled. The Court noted that every court that had addressed the issue before Atkins was decided had found Hill to be intellectually disabled, and that he had been in special education classes for his entire time in school, that in prison he was unable to complete simple tasks without supervision, or maintain basic personal hygiene without reminders, and that he had been functionally illiterate his entire life. The 6th Circuit found that the Ohio courts had unreasonably discounted the extensive record of his disability, and instead focused on arbitrary and largely irrelevant facts, such as anecdotal accounts of prison staff, to show that Hill was of average intelligence. The Ohio courts also found evidence of Hill’s initiative and ability for self-preservation in voluntarily going to the police to talk about the murder in 1985, and crafting a narrative to try and deflect suspicion from himself. The 6th Circuit pointed out that Hill that was “not even a suspect before he went to the police, and his statements are what aroused their suspicion. Incriminating oneself is hardly self-preservation.”

We can expect that the State will seek review of this decision, either by the Supreme Court, or the full 6th Circuit sitting en banc. Could either court reverse the latest decision? The AEDPA is very deferential to state court decisions. Also, the Atkins standard is broad, and deliberately left it up to the states to decide how to determine whether a defendant was intellectually disabled. Without guidance from the Court’s later decisions such as Moore, there is room for a reviewing court to find that the state court decision did not violate the clearly-established law at the time.  

The Ohio court focused on present, rather than past evidence of Hill’s intellectual disability. As the 6th Circuit pointed out in its opinion, the diagnostic requirement that deficiencies appear by age 18 inherently contemplates that this is a backwards-looking, and not a strictly present focused analysis. However, The Atkins court did not require states to follow the three-pronged analysis. While later Supreme Court cases including Moore and Florida v. Hall have emphasized that state law on this issue should at least be rooted in medical consensus, those cases would not apply retroactively to Hill. Therefore, the three-prong analysis would not be considered clearly-established law for purposes of Hill’s petition. The 6th Circuit noted that Ohio adopted the three-prong test in State v. Lott. It held that that since the US Supreme Court directed the states in Atkins to develop their own tests for intellectual disability, and Ohio did just that in Lott, that Lott should be treated as clearly-established law in this context. However, this, to the best of my knowledge, is a novel argument. Clearly-established law in the AEDPA context refers only to holdings of the Supreme Court of the United States.   

Still, if Atkins is to have any effect, there must be some application of it that would qualify as unreasonable under AEDPA. The Hill case presents a large body of evidence of the defendant’s disability. If the state courts did not have any rational reason for deciding the case based on a much smaller amount of information that highlighted Hill’s strengths, rather than the much larger body of evidence showing his deficiencies, that could qualify as an unreasonable interpretation of Atkins. A reviewing court could also affirm the 6th’s Circuit’s decision on the basis that the state court made an unreasonable determination of facts. Still, it is far from clear what the outcome will be.


[i] The Atkins court used the term “mentally retarded.” Since then, “intellectually disabled” has become the preferred term.

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Are You Smelling What I’m Smelling? First District Court of Appeals Addresses Odor of Marijuana in Traffic Stop

The 1st District Court of Appeals recently upheld a trial court’s grant of a motion to suppress.  In State v. Whitfield, police initiated a traffic stop for excessive window tinting. Officers Cuiranek and Wells stood next to the car and spoke with the occupants. Cuiranek, who stood on the driver’s side, testified at the suppression hearing that “He had smelled a weird scent coming from the car, but he was not 100 percent sure if it was marijuana, so he called a K9 team to the scene to confirm the presence of marijuana in the car.” Officer Wells, who stood on the passenger side, where the defendant was seated, testified that he smelled marijuana coming from the car.  

When the K9 officer arrived, he approached the car on the driver’s side, and ordered the occupants out of the car. That officer testified that he smelled no odor of marijuana. Officer Wells then performed a frisk search of the defendant, during which he smelled “a little something.” Wells felt a hard lump in the defendant’s pants pocket, which he believed to be marijuana. The officers then put the defendant in handcuffs, and removed the object from his pocket, which turned out to be a baggie with cocaine and a scale. The officers asked him if there was any marijuana in the car. He admitted that there was a bag of marijuana under the seat, and the officers retrieved the marijuana.

The trial court granted the defendant’s motion to suppress, finding that there was no indication that he was engaged in any illegal activity, that there “was no identifiable odor of marijuana coming from the car,” and that therefore the police lacked reasonable suspicion to conduct the frisk search. The state appealed.

Ohio courts have consistently held that an odor of marijuana, detected by a police officer who recognizes the smell from his experience and training, is probable cause to conduct a search. Courts are generally willing to accept an officer’s testimony on this matter as true, and, because of the ephemeral nature of smell, there is often little a defendant can do to challenge this testimony. In this case, however, because three officers gave three differing accounts off what smell, if any, was detectable from the car, the Court of Appeals upheld the trial court’s decision to grant the motion to suppress.

Importantly, this decision was couched in deference to the trial court’s findings. The Court of Appeals noted that “We must accept the trial court’s findings of fact if they are supported by competent and credible evidence,” and held that the evidence did support the trial court’s determination that there was no identifiable odor of marijuana. Under this holding, a trial court facing similar facts could reach a different result and survive appellate scrutiny. A court could choose to credit an officer’s testimony that he smelled marijuana, even where a second officer testified to the contrary. A reviewing court could then determine that competent credible evidence supported the finding that there was an odor of marijuana. Still, Whitfield represents a valuable effort to draw the line somewhere on when to credit an officer’s testimony about odor of marijuana.  

Read the opinion here.

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State v. Jeffries – 6th Circuit Finds No Proximate Cause Requirement for Controlled Substance Act Sentence Enhancement

In United States v. Jeffries, the 6th Circuit Court of Appeals
confronted the issue of whether a sentence enhancement for selling drugs that cause the death of the user requires proof that the drugs were the proximate cause of death.

Appellant Jeffries had sold fentanyl to a woman who overdosed and died. At trial, medical experts for the Government testified that the amount of fentanyl in her system was “significantly above the lethal level,” and that no other “anatomical issues” could have caused her death. Jeffries was charged with distributing a Schedule II substance under 21 U.S.C. § 841(a)(1), a part of the Controlled Substance Act. Based on the amount of drugs Jeffries sold, 21 U.S.C § (b)(1)(C) set his maximum penalty at twenty years. However, if death or injury results from the use of the drugs sold by the defendant, the maximum penalty becomes life imprisonment.

Because the “death results” enhancement increases the maximum penalty for the offense, the 6th Amendment right to a jury applies to this issue under Apprendi v. New Jersey. The Supreme Court had previously applied Apprendi to § 841’s “death results” enhancement in Burrage v. US, in which it held that the enhancement requires proof that the drugs were the but-for cause of death. In that case, the Court reversed the defendant’s conviction, where the evidence at trial showed that the victim had ingested several drugs at once, and it could not be determined that the heroin sold by the defendant would have caused death by itself. The Court left open the question of whether the enhancement also requires proof of proximate cause.

In Jeffries, the District Court for the Northern District of Ohio
rejected the defendant’s request for a jury instruction requiring the state to
prove that the drugs were the proximate cause of death. The defendant was convicted, and subsequently filed a motion for a new trial. The District Court held that it had erred in denying the defendant’s request for a jury instruction, and granted the motion for a new trial on that basis. The
government appealed.

The Court of Appeals reversed, holding that the sentencing enhancement only requires proof of but-for cause. The court first noted the ordinary meaning of the statutory language “results from” only implies but-for causation, not proximate cause. The court next explained that the broader statutory context also supported its conclusion, stating that “use of a schedule I or II controlled substance is inherently dangerous. Death to the drug user is therefore always foreseeable when a defendant manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute, or dispense those substances.”

The court therefore held that Congress, by creating the sentencing
enhancement, had abrogated the common law principle that criminal liability requires both proximate and but-for cause. The court also noted that all circuit courts that had addressed the issue reached the same conclusion.

The court distinguished the case from US v. Martinez, in which the
6th circuit held that similar “results from” language in a different statute
required proximate causation. The statute at issue in Martinez was a
sentencing enhancement for health care fraud, which applied where the fraud caused death. The Jeffries court stated that “ in circumstances in
which the potential for injury or death is not an inherently foreseeable result. . . it might make sense to require the government to prove that it was reasonably foreseeable to the defendant that the conduct would be likely to lead to injury or death.” By contrast, since it is “always foreseeable that” the sale of schedule I or II drugs “will involve an ultimate user of the
substance, and that death or injury may result from that use,” and therefore, “it makes sense to require the government to prove only but-for causation in order to apply the enhanced penalty.”

In a dissenting opinion, Judge Bernice Bouie Donald wrote that she would
have affirmed the District Court in requiring the government to prove proximate cause. The dissent found little persuasive value in the out-of-circuit cases which had not found a requirement of proximate cause. The dissent pointed out that the Fourth Circuit had been the first to make this holding in US v. Patterson, and that all other circuit courts that had decided the issue essentially cited to Patterson with little or no analysis.
For that reason, Judge Donald concluded that “although the cases look
impressive as a whole, a cursory inspection of each case reveals that they
stand on uneasy footing, and should not be given the persuasive value proscribed by the majority.”

The dissent also took issue with the majority’s attempt to distinguish the
case from Martinez, pointing out that the court had treated near
identical language as ambiguous in one statute, and unambiguous in another. Judge Donald wrote:

The majority also explicitly argues that it is always reasonably foreseeable
that death will result if someone manufactures, distributes, dispenses, or
possess with intent to do any of those things . . .If that is the case, then
why would the Court not impose a proximate cause requirement for the rare case when it was not foreseeable?”

The dissent placed rightful skepticism in the majority’s assumption that
congress had intended to displace the common law rule requiring both but-for and proximate cause. The fact that death is almost always a foreseeable result of selling drugs is a thin justification for deciding Congress has abrogated the common law in this case, but not in the case of the statute at issue in Martinez. Even accepting the court’s argument, cases where proximate cause is a genuine issue for the jury are not hard to imagine. For example, consider a drug user who drives while intoxicated and dies as the result of an accident. Are the drugs the proximate cause of death? What if the drugged driver instead causes the death of another? While these situations may be outliers, they are not so far-fetched as to make a proximate cause requirement unnecessary. Requiring proof of proximate cause would therefore be more in line with Apprendi and its progeny.

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8th District Issues Reminders on Due Process for Criminal Contempt

The 8th District Court of Appeals issued two decisions recently reminding trial courts about the proper use of the contempt power, and the difference between direct and indirect contempt of court.

Direct contempt occurs in court. Here, the judge has summary power to hold someone in contempt. This unique situation, in which a judge can find someone guilty of a crime and sentence them, without any opportunity to present a defense, is a product of the court’s need to control the courtroom, and promote the orderly administration of justice. The fact that the judge personally witnesses the conduct also lessens the need for an evidentiary hearing.

Indirect contempt punishes conduct outside of court which violates a court order.  With indirect contempt, the defendant is entitled by statute to a hearing, where the State must prove contempt beyond a reasonable doubt. Unlike with direct contempt, the judge has not witnessed the conduct constituting contempt firsthand. Also, the interest in the orderly administration of justice does not apply here, because the contempt does not occur in or near the court. Therefore, the judge’s contempt power must yield to due process rights.

Because the summary contempt power is justified only by the specific concerns present in cases of direct contempt, it must be strictly limited to those cases. The 8th District’s recent opinions both reverse lower courts that exercised summary power in cases of indirect contempt.

In Cleveland v. Robinson, the defendant was found in contempt of court for violating a protection order. The conduct occurred outside of a court. The court scheduled a hearing on the matter. However, at that hearing, when the alleged victim failed to appear, the court found the defendant in contempt, with no evidence having been presented.

The court of appeals reversed. It held that direct contempt did not apply here, and the defendant could only be held in indirect contempt, which requires a hearing. The court stated: “Because the court generally has no personal knowledge of the alleged contemptuous behavior, it must afford the accused procedural safeguards such as a written charge, an adversary hearing, and the opportunity for legal representation.”

In Cleveland v. Goodman, the defendant was held in contempt for his outbursts directed at the court and defense counsel after his sentencing hearing. The court was still on the record, but the defendant had been sentenced, and the hearing was effectively at an end. The judge found him in indirect contempt of court. The court of appeals reversed, holding that the court had not provided him the hearing required under the indirect contempt statute.

Could the judge have avoided the hearing requirement by holding the defendant in direct contempt? After all, this conduct occurred in the courtroom, and in front of the judge. Given that the hearing had ended, however, the defendant’s conduct posed no risk of interfering with court proceedings.

Several Ohio courts have held that even in cases of direct contempt, summary action is not always warranted. These courts, such as the courts of appeals for the Fifth[i]  and Tenth[ii] Districts, hold that the summary contempt power should be reserved for cases of contempt that actually obstruct justice, and require the court to swiftly impose punishment to maintain the order of the courtroom. While the 8th District did not need to reach this issue in Goodman, that defendant’s conduct, which did not result in obstruction of justice, was not the kind that requires summary punishment. Wider adoption of the rule followed by the Fifth and Tenth Districts would ensure that the summary contempt power is confined to the limited circumstances in which it is necessary.

Read the opinions in Robinson and Goodman.


[i] In Re Lodico, 2005-Ohio-172.

[ii] Bank One Trust Co., N.A. v. Scherer,2008-Ohio-2952.