Commonwealth v. Vandivner: Pennsylvania Supreme Court rules that criminal defendants with “mental impairments” can be executed

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From Legal Inelligencer

In a decision that may prove to be a lightning rod in the debate over Pennsylvania’s use of the death penalty, the state Supreme Court has ruled that any criminal defendant with mental impairments, short of being legally defined as “mentally retarded,” can be executed for capital offenses.

A dissenting justice accused the majority of being “draconian” and warned the ruling might lead to putting mentally retarded people to death.
The justices in the 5-2 decision in Commonwealth v. Vandivner ruled that those seeking waiver of the death penalty must show records noting a defendant’s mental illness began before his or her 18th birthday — a decision Justice Max Baer labeled as problematic for certain defendants.
“To say this is troubling is an understatement,” Baer wrote in his concurring and dissenting opinion. “Many defendants, such as appellant, were not afforded the specialized expert attention, IQ tests, or adaptive assessments memorialized in school records, required by the majority to corroborate their claim of mental retardation.”
Writing for the majority, Chief Justice Ronald D. Castille said that the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia allowed states to define “mental retardation” and that his ruling merely followed the definition set forth by the state Supreme Court in 2005 in Commonwealth v. Miller.
The Miller ruling, he wrote, requires a defendant to prove three things — that his or her IQ is roughly at or below 70, that he or she has limited adaptive behavior skills and that he or she has had such problems since before his or her 18th birthday.
In James W. Vandivners case, the debate centered on whether Vandivner was diagnosed as mentally retarded before his 18th birthday.
Castille wrote he was not.
He later continued: “As there is currently no prohibition on imposing the death penalty on a defendant who is mentally deficient but not mentally retarded, this claim must fail.”
It seemed to be the singular issue to divide the justices, as Baer, joined in his stance on the issues by Justice Seamus McCaffery, concurred with the majority on issues of Vandivner’s guilt.
Fayette County District Attorney Nancy Vernon did not return a call seeking comment. Neither did Vandivner’s attorney, Susan Elizabeth Ritz of the Fayette County Public Defender’s Office. Vernon’s secretary said Monday morning that those in the office had not yet seen the opinion.
Vandivner was sentenced to death in February 2007 after killing a woman, wounding her son and pointing a loaded gun at another man.
He filed a petition before his trial to bar the death penalty, asserting he was mentally retarded, and was granted a hearing.
During the four-day hearing, Vandivner did not present an IQ test or documentation of mental retardation from his childhood. Still, he presented a defense expert who testified that Vandivner’s full scale IQ was between 61 and 71, meaning he functions in the “mild range of mental retardation.”
A second expert told the court that a person’s IQ does not change over a lifetime, which indicated he would have been mentally retarded as a child, as well.
Vandivner also noted he was in special education classes until the 10th grade. He dropped out of school at that time. His math and reading skills are at a second-grade level, he said, and he spells at a first-grade level.
According to the opinion, a school official, testifying for the prosecution, told the trial court that students could have been placed in special education classes for “non-intelligence-related reasons,” including disciplinary problems. That official also testified that Vandivner was absent from school 92 days during his 10th-grade year.
The prosecution also noted to the trial court that Vandivner had earned a commercial driver’s license as an adult and that his social problems were attributed to his antisocial personality and drug and alcohol abuse, the opinion said.
The trial court judge ruled that Vandivner failed to prove his mental retardation began before he was 18.
Castille affirmed the decision.
Mindful of Baer’s dissent, Castille wrote that Vandivner had more recourse to prove the “age of onset” than simply providing results from an IQ test.
An appellant could also show school, social service or psychological records, Castille wrote. But because Vandivner’s childhood records did not label him mentally retarded, he failed to meet his burden of proof.
Castille wrote that there were too many other possibilities that could have led to Vandivner’s placement in special education classes and that could have led to his antisocial behavior.
“The concurring and dissenting opinion marginalizes the trial court’s more extensive factfinding, which included findings that the appellant’s school records contained no notations that he was considered mentally retarded; that his placement in special education classes, which he offered as objective proof of childhood mental retardation, could have been related to other factors such as behavioral issues or his poor school attendance; and that the number of objective medical risk factors appellant had could contribute to his current mental impairment (a relevant point because appellant’s current impairments were offered as proof of lifelong impairment),” Castille wrote.
He continued: “Respectfully, we have not altered the governing standard, but merely have found that there was no error in the trial court’s legal assessment of the particular evidence presented to it under that standard here.”
Baer, though, wrote that the majority’s ruling “imposes an impossible standard” on people in Vandivner’s situation.
Without a piece of “objective evidence” from their childhood, they seem destined to lose their petitions, he wrote.
Atkins and Miller do not require IQ tests, he wrote, and Miller’s third requirement was designed to “differentiate between mental retardation and intellectual deficits that develop after age eighteen, typically due to brain injuries or brain disease such as dementia.
“It was never intended to be the draconian standard established by the majority to eliminate the benefit of Atkins for legitimately mentally retarded individuals,” Baer said.
Any evidence a defendant offers in a case like this should be considered, he said, “without the barrier talismanic test.”
Vandivner’s expert testified that, based on interviews with the family and a review of his school records, Vandivner was mentally retarded before he turned 18. But the majority seemed to require an objective testing record, Baer wrote.
That “may well lead to the execution of mentally retarded defendants in violation of Atkins and Miller, if they were not fortunate enough to attend a school that tested for IQ and/or maladaptive behavior,” Baer said.
“In rejecting appellant’s evidence, the trial court focused on his failure to introduce an IQ test administered before age eighteen or to offer any illuminating school, social service, or psychological records, which, again, were extant prior to appellant’s eighteenth birthday, and the majority affirms this decision,” Baer wrote in a footnote near the end of his opinion.
“Notwithstanding the majority’s protests to the contrary, I believe that the trial court and majority have erected an insurmountable wall for defendants such as appellant who were not tested or labeled through a structured, formal school procedure.”


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