The U. S. Supreme Court will hear argument on Wednesday in its review of a federal appeals court decision overturning the death sentence of convicted Alabama murderer Joseph Clifton Smith. The Criminal Justice Legal Foundation (CJLF) has joined the case of Hamm v. Smith to encourage a decision overturning the lower court ruling and to clear up confusion regarding how courts determine if a murderer is exempt from the death penalty on the ground of intellectual disability.

The case involves the robbery and murder of Durk Van Dam. Smith, who had just been released from prison, was staying in a motel when he learned that Van Dam was carrying $1,500 in cash. Smith and acquaintance Larry Reid decided to rob Van Dam. On November 23, 1997, Smith and Reid convinced Van Dam, who had been drinking, to drive them to a remote area of Mobile County. Once there, Smith and Reid beat Van Dam with a hammer, cut him with a power saw, and left his body in his mud-bound truck after stealing $140 and his tools.

The evidence of guilt was overwhelming, including Smith’s confession to police, witnesses who saw Smith leave with the victim, a witness who declined Smith’s invitation to join them in the robbery/murder, and a pawn shop owner who bought the stolen tools from Smith. Due to the strength of the evidence, Smith’s attorneys presented a mental defense, claiming that he was mentally retarded. They introduced the testimony of an expert who tested him and found an IQ of 72. The prosecution presented two earlier IQ tests with scores of 74 and 75. The jury found him guilty. The jury was also instructed to consider the mitigating evidence of Smith’s mental condition, but the jury found it was outweighed by the aggravating evidence and recommended the death sentence.

In 2002, two years after Smith’s conviction, the Supreme Court ruled in Atkins v. Virginia that murderers who are mentally retarded cannot be executed. That condition was later renamed intellectual disability. For the next 21 years, Smith’s claims of trial error and intellectual disability were considered by multiple state and federal courts. In 2015, the Eleventh Circuit U. S. Court of Appeals ordered the district court to reconsider Smith’s claim despite its rejection by the state courts. The review included two more tests, finding Smith’s IQ at 75 and 78. In 2023, the appeals court then ruled that, accounting for the margin of error, Smith’s scores at the lower end of the scale were sufficient to find him possibly intellectually disabled and therefore turned to the battle of the experts concerning Smith’s claimed “adaptive deficits.” The court affirmed the district court’s finding that the inmate’s experts were more convincing than the state’s and overturned the sentence. After the U. S. Supreme Court took up the case, CJLF filed a “friend of the court” brief, arguing that the lower federal court had failed to adequately consider the well-established principle of aggregation. That principle tells us that repeated measures taken together are more precise than the margins of error of the individual tests.

In CJLF’s scholarly brief, Legal Director Kent Scheidegger disputes the holding that just because 70 is within the 95% confidence interval for four of the tests (although just barely for three of them), that was sufficient to move on to the second and third requirements of the diagnosis. While there is not yet a scientific consensus on precisely how to apply the principle of aggregation, the lower courts did not even try. The CJLF brief illustrates this point by combining the scores three different ways, all of which show that the chance of Smith meeting the first criterion for the diagnosis, an IQ of 70 or below, is extremely low.

“A decision favoring Smith’s argument would open up a new avenue for dozens of other murderers to challenge well-deserved death sentences based on IQ scores above 70,” said Scheidegger.