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Seventh Circuit Affirms Vacatur of Death Sentence Based on Newly Discovered Evidence of Defendant’s Intellectual Disability

In 1998, the U. S. Court of Appeals for the Fifth Circuit upheld Webster’s conviction and death sentence for his role in the kidnapping, rape, and death of a 16-year-old girl. In 2005, the same court affirmed the denial of his 28 U.S.C. § 2255 petition.

Then in 2009, Webster’s new attorneys from the firm of Dorsey & Whitney discovered records from the Social Security Administration (“SSA records”). The SSA records supported a claim that Webster was intellectually disabled and ineligible for the death sentence pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). Arguing the SSA records were “newly discovered evidence,” Webster sought relief in the district court under § 2255(h) (the “savings clause”), which allowed him to seek habeas relief under 28 U.S.C. § 2241. (Per Rumsfeld v. Padilla, 542 U.S. 426 (2004), § 2241 required Webster to file his petition in the district court where he was confined – Terre Haute, Indiana.)

The Government argued that Webster was barred from proceeding under § 2255(h). The U.S. Court of Appeals for the Seventh Circuit ruled that Webster could seek relief under the savings clause if the records were “newly discovered evidence” and remanded to the district court for that determination. Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015). And if the SSA records were newly discovered evidence, the district court was then to determine if Webster was ineligible for the death sentence based upon intellectual disability. Id.

At the hearing in the district court, Webster’s trial attorney, Larry Moore, testified that his defense strategy from the beginning of Webster’s case was to focus on the sentencing because of the Government’s overwhelming evidence against Webster. Moore testified he understood that Webster’s intellectual capacity would be the “single biggest issue” at trial, so he devoted considerable energy in pursuing an intellectual disability defense to the death penalty.

After learning that Webster’s mother had applied for Social Security benefits on behalf of Webster in the early 1990s (before Webster committed his offense), Moore directed his paralegal, Kim Whitehead, to request the SSA records. Whitehead then contacted Hal West at the Social Security Administration’s Office (“SSA Office”) and informed him that investigator J.W. Strickland would arrive to pick up Webster’s records. Moore testified that he received a call from Strickland stating that after Strickland had arrived at the SSA Office he was told they had no records for Webster. Moore then personally called the SSA Office and was told no records existed. Moore supported his testimony with documentary evidence that included handwritten notes of his conversations with Whitehead, Strickland, and West, as well as a fax of a request for Webster’s records that had been sent to the Social Security office. Moore testified he took the SSA Office at its word and stopped searching for the records.

The district court found Moore’s “testimony to be credible [after] observing his demeanor.” The district court was also persuaded by Moore’s documentary evidence and ruled that Moore had exercised due diligence in seeking the SSA records; consequently, the SSA records were “newly discovered evidence.”

The district court scheduled another hearing to consider the merits of Webster’s claim that he was intellectually disabled and therefore ineligible for the death penalty. Doctors Daniel Reschly and John Fabian both opined at the hearing that Webster was intellectually disabled. Their opinions were based upon observing Webster’s limited ability to comprehend and use language; observing his inability to form simple conclusions (e.g., why he should tell one doctor about medications he was taking from another doctor or why he shouldn’t use a hair dryer in the bathtub); examining the records of Webster’s nine I.Q. tests administered over 27 years wherein he consistently scored below 70; and examining the SSA records and letters revealing Webster attended special education classes after failing first grade.

The district court found Webster was intellectually disabled based upon the fact that: (1) Webster’s intellectual deficits began before he was 18, (2) his numerous low I.Q. test scores (especially the score from the SSA records because that I.Q. test had been administered before Webster committed his offenses when he had no reason to malinger), and (3) his deficient adaptive functioning because he was barely literate. The district court concluded that Webster was intellectually disabled and vacated his death sentence. The Government appealed, arguing that the district court erred in finding that Moore had exercised due diligence in pursuit of the SSA records and in finding that Webster was intellectually disabled.

The Seventh Circuit observed that the same “clear error” standard of review apply to both issues: the Court couldn’t reverse unless it was “left with the definite and firm conviction that a mistake had been committed.” Anderson v. Bessemer City, 470 U.S. 564 (1985). This requires a showing that the district court’s finding was “so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id. Furthermore, a district court’s credibility determinations are entitled to great deference because “only the trial judge can be aware of the variations in demeanor and tone of voice.” Credibility findings can virtually never be clear error. United States v. Austin, 806 F.3d 425 (7th Cir. 2015).

Regarding the due diligence argument, Webster could proceed via § 2241 only if he could show by clear and convincing evidence that Moore had exercised reasonable diligence. Moore v. Knight, 368 F.3d 936 (7h Cir. 2004). When counsel encounters information suggesting further investigation of a particular path would be fruitless, he has exercised due diligence and may cease that investigation. Rompilla v. Beard, 545 U.S. 374 (2005). The district court’s finding that Moore had exercised due diligence was based on the judge’s assessment of Moore’s testimony, Moore’s credibility, and Moore’s documentary evidence. As such, the finding was amply supported, and there was no clear error warranting reversal, the Court concluded.

With regard to the finding of intellectual disability, Webster had to show by a preponderance of evidence that he had a deficit in intellectual functioning, a deficit in adaptive functioning, and the onset of both deficits during his developmental years. Atkins. Again, the district court’s finding was based upon the expert testimony of the two doctors. And their opinions were based on Webster’s historical records of intellectual disability and their own observations/evaluations of him. There the Court again concluded that there was evidence to support the district court’s finding of intellectual disability, and nothing to demonstrate clear error to warrant reversal.

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Related legal case

Webster v. Watson

 

 

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