U.S. Supreme Court Hears Arguments In Florida Death Penalty Case

Should A Man With An I.Q. Of 71 Be Put To Death?

The Supreme Court of the United States has held that a person who is ruled mentally deficient can not be put to death. In a landmark 2002 case, Atkins v. Virginia, the justices determined a that executing someone who is mentally retarded constitutes cruel and unusual punishment. However, the justices never set a benchmark for what constitutes a low intelligence quotient, commonly known as I.Q., or mental retardation. Instead, the justices left it to the individual states to set their own line.

Florida did just that, and the so-called “bright line” cutoff number legislators chose is 70. Other states have their own number. For the accused in Florida, if the I.Q. is found to be 71 or higher, the Florida Supreme Court has ruled a sentence of death does not violate the prohibition on cruel and unusual punishment, as defined in Amendment VIII of the U.S. Constitution and refined by the U.S. Supreme Court in its Atkins v. Virginia ruling of 2002.

Current Death Penalty Case Dates To 1978

Freddie Lee HallThe case before the justices this week involves Freddie Lee Hall, who was convicted of the 1978 murders of a pregnant woman and a sheriff’s deputy. Mr. Hall was resentenced in 1992, and his death penalty was upheld. At the time he was resentenced, he was found to be mentally retarded, one of the legal terms commonly used for people with a low I.Q. Florida’s Supreme Court, ruling on Mr. Hall’s case in December 2012, upheld the death sentence, despite the fact Mr. Hall’s I.Q. is 71, just one point above the so-called “bright line” cutoff for mental retardation, which was established long after Hall’s 1992 resentencing.

“Once the statute is applied, Hall morphs from someone who has been ‘mentally retarded his entire life’ to someone who is statutorily barred from attempting to demonstrate concurrent deficits in adaptive functioning …” ~ Florida Supreme Court Justice James E.C. Perry, writing a dissenting opinion when the state Supreme Court upheld Mr. Hall’s death penalty sentence.

Mr. Hall’s attorney, Eric Pinkard, appealed to the U.S. Supreme Court, arguing that there have been several I.Q. tests showing Mr. Hall’s intelligence quotient to be as low as 60 and as high as the current number, 71, which was the result of a 2009 I.Q. test.

I.Q. Does Not Stay The Same, According To Numerous Studies

It is well settled that an I.Q. changes over time, and that a person’s emotional condition, nutrition, physical health, social and economic status, and a host of other factors, can all influence an I.Q. test result. The American Psychological Association published a 1996 report on I.Q., with research notes from a number of collegiate psychologists, including one from the University of North Florida, that found I.Q. varies based on these factors. The report can be found at the University of Connecticut website. Another I.Q. study, by the Journal for the Association of Psychological Science is also online for public viewing.

When the Florida Supreme Court upheld Mr. Hall’s death sentence, Mr. Pinkard filed a writ of certiorari within a matter of months, appealing the case to the U.S. Supreme Court. Part of his brief includes the dissenting statements of at least two of the Florida justices, Hon. Jorge Labarga and Hon. James E.C. Perry.

Florida's Supreme Court
The Florida Supreme Court ruled in December 2012 that while Mr. Hall had been ruled “mentally retarded”, his I.Q. of 71 did not meet the legislative standard that would prevent him from being executed. That number, called the “bright-line” cutoff, is 70. The ruling prompted the current U.S. Supreme Court challenge.

Justice Labarga wrote, “The situation present in Florida, in which the Legislature has established a bright-line cutoff score that this Court has upheld, now creates a significant risk that a defendant who has once been found to be mentally retarded may still be executed.”

Justice Perry agreed with Justice Labarga, writing, in part, “The current interpretation of the statutory scheme will lead to the execution of a retarded man in this case. Hall had been found by the courts to be mentally retarded before the statute was adopted.”

Florida Supreme Court Justice James E.C. Perry
Justice James E.C. Perry

Justice Perry’s dissenting opinion further explained that the state legislature’s adoption of the so-called “bright-line cutoff” for mental retardation retroactively altered Mr. Hall’s status. “Once the statute is applied, Hall morphs from someone who has been ‘mentally retarded his entire life’ to someone who is statutorily barred from attempting to demonstrate concurrent deficits in adaptive functioning to establish retardation.” In other words, the law prevents Mr. Hall from proving his mental deficiency because the I.Q. score allegedly demonstrates the opposite circumstance.

Supreme Court Ruling Will Affect States Other Than Florida

The case is complex, and it could have ramifications beyond Florida. Brian Kammer, an attorney in Georgia who has represented low-I.Q. defendants on death row, said the case has the potential to force states to rewrite their  “bright-line” cutoff laws. “To the extend [a Supreme Court ruling] deals with a state’s prerogative to define ‘mental retardation’ a certain way, it would very likely have applicability to other states … in setting limits on that prerogative,” Kammer told USA Today in October 2013.

The U.S. Supreme Court docket page for this case may be found on the court’s government website.

Attorney Michael Dutko Helps Get Tamarac Man Freed From Jail

Florida Man, Convicted Of Felony, Gets Second Chance At Exoneration

Jorge Insua
Jorge Insua, in a photograph taken by local media, standing in the lobby of Bogenschutz, Dutko & Kroll’s Fort Lauderdale offices.

Criminal defense attorney, Michael E. Dutko, working with the Broward State Attorney’s Office, has helped to get a man freed from prison, only weeks after the accused had been convicted of a third-degree felony. That man, 37-year-old Jorge Insua, was convicted of leaving the scene of an accident involving serious bodily injury, and on July 18 was sentenced to serve the next five years in a Florida prison.

Insua’s family decided to hire Mr. Dutko to help find new information that could prove Insua was innocent, and in late August, prosecutors agreed the new evidence Mr. Dutko had presented them warranted further investigation. As a result, the Broward State Attorneys Office requested Mr. Insua be released from prison pending a further investigation.

Mr. Dutko told local media the State Attorney’s move was a very unusual step. “I’ve never seen it before; I’ve never talked to someone who’s seen it before, but of course I’ve only been around the courthouse for 37 years,” he said.

“This wouldn’t be happening, but for the fact that I think some very responsible people in the State Attorney’s Office have literally dropped what they’re doing to evaluate this,” Mr. Dutko said.

This case demonstrates the complexities that can arise in matters of post-conviction relief. While Mr. Insua has been released from prison, his conviction is not yet overturned. “He’s out, but it’s not over,” Mr. Dutko told the South Florida Sun-Sentinel.

The evidence must still be examined, and the real culprit of the hit-and-run accident, for which Insua was convicted, must still be brought to justice. However, that may be easier than it sounds.

Police from the city of Sunrise, where the hit and run accident happened, actually had another suspect on their radar before turning to, and eventually arresting, Mr. Insua. However, it is unclear whether that person may eventually face charges, which could lead to Mr. Insua’s conviction being vacated.

NSU Alumni Magazine Highlights The Dutkos

Michael E. Dutko and Ashley Dutko Article
Nova Southeastern University publishes “Nova Lawyer”, which recently printed an interview article with Michael E. Dutko and daughter, Ashley.

First, Michael E. Dutko became a lawyer; then his son, Michael, Jr. Then daughter Ashley. Law in the family was the focus of a recent series of articles published by “Nova Lawyer”, a news magazine printed for the legal alumni and friends of Nova Southeastern University’s Shepard Broad Law Center in Broward County. The Dutkos the focus of one of these articles.

The article focuses on the reasons behind Mr. Dutko and Miss Dutko’s decisions to go to law school and join the legal profession, the things each likes most about the law and what kind of advice they would give current law students.

The article may be downloaded here.


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