LITTLE ROCK — An Arkansas death-row inmate is entitled to a hearing to present arguments that he is mentally retarded and that he had ineffective counsel at his trial, a federal appeals court said Friday.
The 8th Circuit U.S. Court of Appeals in St. Louis ordered new proceedings for Andrew Sasser, who was convicted in Miller County Circuit Court of capital murder and sentenced to die in the July 12, 1993, slaying of Jo Ann Kennedy, a clerk at an E-Z Mart in Garland.
The appeals court said a federal judge erred in dismissing a petition by Sasser that argued he should not be executed because of mental retardation. The U.S. Supreme Court said in 2002 that it is unconstitutional to execute mentally retarded people, and Arkansas already had a state law banning executions of retarded people.
In its unanimous opinion Friday, a three-judge panel of the appeals court said the federal judge’s ruling was based on the mistaken belief that an IQ score of 70 or below was required under Arkansas law for a finding of mental retardation. Sasser scored a 79 on an IQ test in 1994 and an 83 on an IQ test in 2010.
The appeals court said that if Arkansas law did establish a cutoff IQ score for determining retardation, then it would be necessary to consider whether the law conflicted with U.S. Supreme Court precedent, but in fact there is no such cutoff score in state law.
"Under Arkansas law, mental retardation is not bounded by a fixed upper IQ limit, nor is the first prong a mechanical ‘IQ score requirement.’ … Neither does Arkansas law compel a finding of mental retardation below a certain IQ limit, although it establishes a ‘rebuttable presumption of mental retardation when a defendant has an intelligence quotient of 65 or below,’" Chief Judge William Riley wrote in the court’s opinion.
The appeals court also said Sasser is entitled to a hearing to argue that he received ineffective counsel at his trial because Arkansas’ justice system has denied him a meaningful opportunity to present that argument.
Earlier this year, in the case Trevino v. Thaler, the U.S. Supreme Court ruled that if a state "in theory" grants a defendant permission to raise a claim but grants no meaningful opportunity to do so, it effectively has has provided no opportunity to raise the claim.
Arkansas does not automatically appoint a defendant in a capital case a new attorney for direct appeal, and in Sasser’s case the same lawyer represented him at trial and on direct appeal, the appeals court noted.
The court said that in such a situation a lawyer could be forced "to choose between accurately asserting he was effective or inaccurately asserting that he was not."
"The first option would violate the lawyer’s duty of zealous representation to his client and the second his duty of candor to the court. A direct appeal procedure predicated on such a conflict of interest does not present indigent capital defendants a viable opportunity to challenge their appointed trial counsel’s effectiveness," Riley wrote in the court’s opinion.