Federal appeals court: Brumfield is not retarded, can be executed

Judges say killer not mentally retarded

Condemned killer Kevan Brumfield is not mentally retarded and can be put to death for the 1993 ambush slaying of Baton Rouge police Cpl. Betty Smothers, a federal appellate court ruled Wednesday in reversing a federal district judge.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans said U.S. District Judge James Brady erred in concluding in February 2012 that Brumfield, of Baton Rouge, is mentally retarded and ineligible for execution.

An elated East Baton Rouge Parish First Assistant District Attorney Prem Burns, who prosecuted Brumfield, said she expects Brumfield’s attorney to appeal the case to the U.S. Supreme Court.

That attorney, Nicholas Trenticosta, could not be reached for comment. He contends Brumfield is mentally retarded.

The U.S. Supreme Court has barred the execution of mentally retarded people.

Burns said she will immediately ask that an execution date be set if the high court lets the appellate court’s decision stand.

“I just screeched,” she said of her reaction to the 5th Circuit’s reversal. “I’ve had that case since the day she was killed.”

Former NFL running back Warrick Dunn, the oldest of Smothers’ six children, starred at Catholic High School in Baton Rouge and Florida State University.

“Yesterday was the anniversary of her death, and it was Warrick’s birthday on Sunday,” Burns said Wednesday.

Smothers, 36, was working an off-duty security job when she was fatally shot shortly after midnight on Jan. 7, 1993, while driving a grocery store manager to a Jefferson Highway bank to make a night deposit.

The manager, Kimen Lee, survived the attack despite being shot numerous times.

Henri Broadway, of Baton Rouge, also is on death row for his role in the Smothers killing. He is seeking a new trial. He has not raised a mental retardation claim.

Brumfield, who was convicted and sentenced to die in 1995, was accused of firing the bullets that killed Smothers.

Broadway, who was tried after Brumfield in 1995, was accused of firing some of the shots that wounded Lee.

Chief 5th Circuit Judge Carl Stewart wrote for the three-judge panel that state District Judge Richard Anderson considered both the intellectual functioning and adaptive behavior prongs of Louisiana’s test for mental retardation and properly denied Brumfield’s request for an evidentiary hearing on his mental retardation claim.

“Based on the evidence in the record, we conclude that the state court did not clearly err in determining that Brumfield did not meet his burden of presenting a prima facie case of mental retardation under Louisiana law,” Stewart stated.

Stewart added there was no reason for Brady to conduct the hearing he later held in 2010 on Brumfield’s mental retardation claim.

“Even if we were to consider the new evidence presented to the (federal) district court,” Stewart wrote, “we likely would hold that Brumfield failed to establish” that he is mentally retarded.

Fifth Circuit Judges Carolyn King and Edith Jones joined Stewart on the panel.

Psychologists Victoria Swanson and Ricardo Weinstein testified in Brady’s courtroom that Brumfield is mentally retarded while forensic psychiatrist Robert Blanche, clinical psychologist Donald Hoppe and clinical neuropsychologist John Bolter testified Brumfield is not retarded.

Brady found that Brumfield has “significant limitations in intellectual functioning’’ and “significantly limited conceptual skills.’’

“If we as a society are to effectuate the evolving standard of decency contemplated by the Eighth Amendment’s prohibition on cruel and unusual punishment, we must accept as a given that certain cases will present unfortunate facts which, when viewed under the law, result in an outcome at odds with majoritarian sentiment,” Brady wrote in his 2012 ruling. “This may be one of those cases in the eyes of some.”

Shortly after Brady ruled Brumfield was mentally retarded, Dunn stated in a letter to The Advocate, “From my view, his use of ‘mental retardation’ as a defense is offensive and morally wrong.”