1. (a) Court in which sentence was rendered: Okmulgee County

(b) Case Number: CRF-90-144.

2. Date of sentence: June 19, 1997 (Resentencing Trial)

3. Terms of sentence: Death

4. Name of Presiding Judge: Hon. Charles Woodson

5. Is Petitioner currently in custody? Yes.

Where? OSP H Unit, McAlester, Oklahoma.

Does Petitioner have criminal matters pending in other courts? No.

If so, where? N/A.

List charges: N/A.

Does Petitioner have sentences (capital or non_capital) to be served in other states or jurisdictions? No.

If so, where? N/A

List convictions and sentences: N/A.I.

6. Petitioner was convicted of the following crime(s), for which a sentence of death was imposed: First Degree Murder in the Commission of Robbery with a Dangerous Weapon, in violation of 21 O.S. § 701.7 (B).

(a) The State alleged:

1. The defendant was previously convicted of a felony involving the use or threat of violence to the person, 21 O.S. § 701.12 (1).

2. The defendant knowingly created a great risk of death to more than one person, 21 O.S. § 701.12 (2).

3. The murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution, 21 O.S. § 701.12 (5).

4. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, 21 O.S. § 701.12 (7).

(a) The Jury found:

1. The defendant was previously convicted of a felony involving the use or threat of violence to the person, 21 O.S. § 701.12 (1).

2. The defendant knowingly created a great risk of death to more than one person, 21 O.S. § 701.12 (2).

3. The murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution, 21 O.S. § 701.12 (5).

4. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, 21 O.S. § 701.12 (7).

(O.R. III, at 715, OUJI-CR 2^nd 4-69).

1. Richard Hammon did not shoot or kill Eugene Slape.

2. Richard Hammon did not shoot Charles Reeves or Richard Dix.

3. Richard Hammon is mildly retarded and is easily influenced by others.

4. Richard Hammon has apologized to the family of Eugene Slape for his role in the robbery of Truck N Things, which resulted in the murder of Eugene Slape.

(O.R. III, at 675, OUJI-CR 2^nd 4-79).

Was Victim Impact Evidence introduced at trial? Yes.

7. Check whether the finding of guilty was made: After plea of guilty ( ) After plea of not guilty (X).

A. Count V, Possession of Firearm AFCF 2+, 100 years.

B. Count IV, Feloniously Pointing Weapon AFCF 2+, 100 years.

11. Check whether the finding of guilty was made: After plea of guilty ( ) After plea of not guilty (X)

Duane Woodliff, Esq.

P.O. Box 608

Henryetta, OK 74437]

(918) 652-3348

Attorney at Capital Resentencing Trial:

James Bowen, Esq.

Capital Trial Division, OIDS

440 S. Houston

Tulsa, OK 74103

(918) 581-2464

To what court or courts? The Oklahoma Court of Criminal Appeals.

Date Brief In Chief filed: September 16, 1998

Date Response filed: January 12, 1999

Date Reply Brief filed: February 1, 1999

Date of Oral Argument (if set): June 22, 1999 at 10:00 p.m.

Date of Petition for Rehearing (if appeal has been decided): N/A.

If so, what were the grounds for remand? N/A.

Julie Gardner, Esq.

Capital Direct Appeals Div.

Oklahoma Indigent Defense System

1660 Cross Center Drive

Norman, OK 73019

(405) 325-3633

17. Was an opinion written by the appellate court? Yes ( ) No ( ) Not Applicable (X). If "yes," give citations if published: N/A. If not published, give appellate case no.: N/A.

21. Have other motions been filed with this application or prior to the filing of this application? Yes (X) No ( ) If yes, specify what motions have been filed:

First Verified Application For Extension of Time to File Post-Conviction Application and Related Motions, filed April 30, 1999.

Second Verified Application For Extension of Time to File Post-Conviction Application and Related Motions, filed May 28, 1999.

Third Verified Application For Extension of Time with Request to Show Cause, filed July 1, 1999.

Documents contained in the four bound volumes of the Original Record in Hammon v. State, Case No. F-90-144, will be referenced by the notation " O.R.," followed by the volume and the page number(s) in the Original Record where the document appears, e.g. "O.R. I, at 25." The transcript of the 1991 Jury Trial of guilt/innocence and punishment will be indicated by the notation "1991 Tr." followed by volume number and the cited page number(s), e.g., "1991 Tr. II, at 320-328," and if necessary, the line numbers, "lines 16-21."

Citation to the 1997 re-sentencing trial will be indicated by the notation "1997 Tr." followed by volume number and the cited page number(s), e.g., "1997 Tr. II, at 100-103," and if necessary, the line numbers, "lines 18-23." Transcripts of motion hearings will be identified by date, the notation "Motion Hrg. Tr." and page number. The transcript of Mr. Hammon’s June 19, 1997, sentencing hearing will be cited as "Sent.Tr.," followed by the page number(s).

Pursuant to Rule 9.7(D)(1)(a) of the Rules of the Court of Criminal Appeals, effective January 1, 1998, see In Re Revision, 1997 OK 74, superceded in part, 1998 OK CR 4, the record in this post-conviction proceeding not otherwise mentioned above also consists of the "record on appeal" in Case No. F-97-910, and the previous appeal in F-91-432, as defined by Rule 1.13 (f), and the same shall be considered to be incorporated herein by reference and by operation of the rule.

References to the Appendix of Exhibits In Support of the Application For Post-Conviction Relief will indicate the exhibit number, followed by the notation "Appendix," e.g., "Exh. 1, Appendix." All citations will be separated from the regular text of the brief by parentheses.

The relevant procedural history of Petitioner’s case is detailed in the responses previously submitted in Part A of this Application. The facts of this homicide have been exhaustively detailed by appellate counsel in the Brief of Appellant in Hammon v. State, F-97-910. Further exposition of the facts will be limited to the facts relevant to the issues presented in this post-conviction application.

Richard Eugene Hammon, the Petitioner in this case, was convicted of first degree felony murder for his participation in the robbery and homicide of Earl Eugene Slape at his place of business, Truck-N-Things, in Okmulgee, Oklahoma, on June 28, 1990. Mr. Slape operated this business with his son, Brad Slape, who was present during the offense. (Tr. 649) Brad Slape was not harmed during the course of events and became the prosecution's principal witness. [1]

Briefly, the evidence presented by the State tended to show that on the early morning hours of June 28, 1990, the Petitioner joined with Benny Dwight Jones in two robberies, one occurring during the early morning hours at Bud’s Convenience Store in Muskogee, Oklahoma, and the second occurring around 11:15 a.m. at Truck -n- Things in Okmulgee, Oklahoma. (Tr. 357)

Benny Dwight Jones shot Eugene Slape, the owner of the store, was in the front room of the store while Brad Slape was in the back room tinting the windows on a pickup truck. (Tr. 650) Brad Slape testified that while he was in the back room, he heard loud footsteps, and a slap or some type of popping noise which he attributed to something being dropped. (Tr. 652) He stated that he then heard two more shots and his father groaning. (Tr. 653) At this same time, or a second or two after the second shot, Brad Slape stated he saw a black man come into the back room and then heard someone else yelling in the front of the store. Brad Slape recognized the man in the back room as a former acquaintance. He later identified this man as Richard Hammon. [2] (Tr. 654-655). Mr. Hammon and Mr. Jones were subsequently arrested and each confessed their participation in this offense to Agent David Page. (Tr. 620-639)

Brad Slape testified that during the robbery, Mr. Hammon told him that this was a holdup and pointed a small caliber pistol at his head. Brad Slape stated he jumped into the cab of the truck and began to plead for his life. (Tr. 655-656) He remained behind the dashboard of the truck until he thought Richard Hammon had gone. When he looked up from behind the dashboard, Richard Hammon was still there. Brad Slape testified that Richard Hammon pointed the gun down at his head and when he ducked he heard a loud shot which he thought came from Richard Hammon. Brad Slape waited until he heard the front door of the store shut before he went into the front to check on his father. (Tr. 656) When Brad Slape went into the front of the store he found his father lying on the floor. (Tr. 658) His father was still alive but obviously in a critical condition from the gunshot wounds. [3]  The State also presented evidence concerning the earlier robbery of Bud’s Convenience Store, which proved that during the robbery Benny Jones had shot the cashier and a patron of the store. (Tr. 540-569)

Mr. Hammon presented the testimony of Dr. Allan Eugene Reynolds, who concluded from his formal testing and record review that Mr. Hammon is mildly mentally retarded, with IQ scores of 67 in 1993 and 66 in 1996. (Tr. 675-679; 686) In addition to finding mental retardation, Dr. Reynolds’ testing indicated the possibility of organic brain damage. (Tr. 687) He testified that organic brain damage could not be confirmed without further testing (Tr. 687-688).

Mr. Hammon testified in his own defense, admitting his involvement in the Okmulgee and Muskogee robberies. (Tr.838-840). He admitted that the robbery of Truck-N-Things was planned and that when he went into the store, it was his job to look for cameras while Benny Jones talked to "the person running the register." (Tr. 841, 846, 852) When Mr. Hammon did not see any cameras, he nodded for Benny Jones to go ahead with the robbery, while he proceeded into the back room to check out a shadow he had seen. (Tr. 841) .

Mr. Hammon testified that he was in the back room with Brad Slape when he heard gunshots from the front of the store. (Tr. 842, 854-855, 878) These shots scared Mr. Hammon and prompted him to run into the front of the store. (Tr. 843, 880) However, before leaving the back room, Mr. Hammon turned around and pointed the gun at Brad Slape to keep him in the truck. (Tr. 843) Mr. Hammon affirmatively stated that he never fired the gun he was carrying. (Tr. 843, 848, 857) Mr. Hammon stated that he never intended to shoot or kill anyone and that he did not know that Benny Jones would shoot anyone. (Tr. 844)

Evidence was also offered as to Mr. Hammon’s good behavior and adjustment in prison, (Tr. 737, 752, 754); his poor academic performance (Tr. 772-774); his tendency to follow others (Tr. 774, 800); his hardworking nature and athletic achievements (Tr. 782-783); his history of epileptic seizure disorder, which is the probable cause of his organic brain damage (Tr. 795-798, 803); growing up without an active father figure (Tr. 809, 818); his family’s love for him (Tr. 814-815, 825-826).

At the conclusion of sentencing, the jury found the existence of all of the aggravating circumstances alleged against Mr. Hammon and sentenced him to death.

Mr. Hammon’s Mental Disabilities.

Mr. Hammon’s execution will violate the state and federal prohibitions against cruel and/or unusual punishments, because he is, and was at the time of this offense, mentally retarded and suffering from organic brain damage, the latter probably caused by his history of epileptic seizure disorder. Mr. Hammon’s mental retardation was testified to in the trial proceeding by Dr. Eugene Reynolds. Dr. Reynolds testified that Mr. Hammon scored 67 on a 1993 IQ test and 66 on another test in 1996. These scores place Mr. Hammon within the mildly mentally retarded range according to the classification of the Diagnostic and Statistical Manual of Mental Disorders 39 (4^th ed. 1994), also known as the DSM-IV.

Whether it is called mental retardation or "dementia due to a general medical condition," testing has confirmed that Mr. Hammon functions intellectually either in the borderline or mildly retarded range, and that his functioning may in fact be deteriorating with the passage of time. Dr. Reynolds’ 1993 testing yielded a full scale IQ of 67. Richard scored a 71 on an IQ test given in 1976 by the Okmulgee County Health Department. A 1991 "Culture Fair" test by the Oklahoma Department of Corrections placed Mr. Hammon’s IQ at 66. The State’s own agents have repeatedly demonstrated that Mr. Hammon’s intellectual functioning is severely impaired. [4]   The Attorney General would be hard pressed to suggest otherwise.

Mr. Hammon requested an evidentiary hearing on direct appeal to present mental disability evidence which his trial lawyer unreasonably neglected to prepare and present at trial. [5]  Application for Evidentiary Hearing on Sixth Amendment Claims, §§ II(A_C), filed in Hammon v. State, F_97_910. Mr. Hammon incorporates the materials filed in the Application for Evidentiary Hearing as if fully set forth and renews that request in the event the Court denies an evidentiary hearing on direct appeal.

New Rules and Procedural Bars.

The Capital Post-Conviction Procedure Act, 22 O.S. § 1089, always permits this Court to grant post-conviction relief on a "new rule of constitutional law that was given retroactive effect by the Supreme Court or a court of appellate jurisdiction in this state," including those cases where an untimely original application for relief or a subsequent application requests such relief. See §1089 (D)(9)(b). Mr. Hammon’s application is timely and his conviction remains on direct appeal. Therefore, the underlying concerns about finality of conviction which animate "non-retroactivity" principles on collateral state and federal review are not currently present in this case.

Section 1089 (D)(9)(b) indicates the Legislature’s intent to extend to capital prisoners the benefit of new rules of constitutional law announced by the Supreme Court or the state appellate courts if those rules are properly retroactive on collateral review. There is a presumption that the Legislature is aware of the legal circumstances in which new rules are announced or applied in collateral review. State ex rel. City of Okmulgee v. Moroney, 10 P.2d 430, 432, 156 Okla. 200 (Okla. 1932)(assuming that the Legislature "had full knowledge of its former acts, and was cognizant of the decisions of this court"). The Legislature is therefore presumed to know that the principles of Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 1067, 103 L.Ed.2d 334 (1989) govern the Court’s interpretation of Section 1089 (D)(9)(b). See Smith v. Bowersox, 159 F.3d 345, 347 (8^th Cir. 1998) (noting that "there is a well_established body of federal case law that interprets the phrase ‘final by the conclusion of direct review" and when Congress elects to use terminology that has become commonplace in court decisions in a particular field of law, the rules of statutory construction call for us to define the statute's terms in harmony with that accepted judicial meaning").

This Court has in fact cited the Teague definition of finality when stating that the Legislature intended in the amendments to the Post-Conviction Procedure Act to provide petitioners "with only very limited grounds upon which to attack their ‘final’ judgments." Walker v. State, 1997 OK CR 3, 933 P.2d 327, 330 (1997). The Court has also interpreted the Post-Conviction Procedure Act to allow, as one of those "very limited grounds" for relief, a "new rule of constitutional law given retroactive effect by the Supreme Court or an appellate court of this State." Turrentine v. State, 1998 OK CR 44, 965 P.2d 985, 987 (1998). Hain v. State, 1998 OK CR 27, 962 P.2d 649, 650 (1998).

The non-retroactivity principle of Teague itself can be simply stated: After Teague, a federal court will not announce, or apply, a "new rule of constitutional law" in a collateral proceeding–usually federal habeas review--to invalidate a final state court judgment, unless one of two "exceptions" to non-retroactivity apply. Teague, 489 U.S. at 311-313, 109 S.Ct. at 1075-1077. The two exceptions, like the rest of the Teague doctrine, are drawn from Justice Harlan’s concurrence in Mackey v. United States, 401 U.S. 667, 690-695, 91 S.Ct. 1160, 1178-1181, 28 L.Ed.2d 404 (1971).

Under Justice Harlan’s view, a new rule of constitutional law which "places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe’" must be given retroactive effect even if it upsets "final" criminal convictions. This is because society cannot claim a legitimate interest in inflicting criminal punishment for conduct which was never properly the business of government to control. Mackey, at 693, 91 S.Ct. at 1180. The second exception recognized by Justice Harlan was for certain "watershed rules" of criminal procedure which were "implicit in the concept of ordered liberty," "without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313.

According to the Supreme Court in Penry, a rule forbidding the execution of the mentally retarded would be a "new rule" of constitutional law. That rule would also be retroactive to all cases under Justice Harlan’s "primary conduct" exception to non-retroactivity. The Supreme Court reasoned that "rules prohibiting a category of punishment for a class of defendants because of their status or offense" is "analagous to a rule placing certain conduct beyond the State’s power to punish at all," and therefore "such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review." Penry, 492 U.S. at 330, 109 S.Ct. at 2953.

Neither the State’s interest in finality of judgment, or this Court’s own doctrines of waiver and res judicata can bar the relief sought by Mr. Hammon. Because executions of the mentally retarded do violate contemporary standards of decency–a point more fully explored below–and a constitutional rule prohibiting such executions should be given full retroactive effect, Mr. Hammon’s claim is cognizable not just in the first appeal, but in every proceeding before this Court. "There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." Mackey, at 693, 91 S.Ct. at 1180.  [6]

The "Objectivist" Error in Penry

Mr. Hammon’s claim for relief from his death sentence based on his mental retardation would require this Court to announce a new rule of constitutional law. Lambert v. State, 1999 OK CR 17 ¶ 59, ___ P.2d ___ (1999). In Lambert, a per curiam opinion of this Court rejected a similar claim with no analysis "in light of Penry v. Lynaugh." In Penry, a bare majority of the Supreme Court held that execution of a mentally retarded prisoner (IQ of 54, mental age 6 ½ years) did not violate the Eighth Amendment’s prohibition against "cruel and unusual punishments." In an opinion by Justice O’Connor, the majority found that the evidence before the Court was insufficient to demonstrate a national consensus against the execution of the mentally retarded. The "evidence" considered by the Court was limited to the observation that two states and the federal government had banned such executions by statute.

While acknowledging that "several public opinion surveys" presented by Penry indicated "strong public opposition to execution of the retarded," the Court, without explanation, rejected this evidence by simply noting the Court’s preference for the more "objective" indicia of contemporary standards expressed in state legislation.

The public sentiment expressed in these and other polls and resolutions may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely. But at present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment.

Penry, at 335, 109 S.Ct.at 2955. The majority did not question the validity of the polling data offered by Penry or explain why such data are irrelevant to the "evolving standards of decency" analysis.

In Penry, Justice O’Connor’s analysis focused solely on legislative outcomes to determine that Penry’s execution would not violate "evolving standards of decency." Her assertion that such legislation is virtually the only "objective indicator" of evolving standards is flawed for a number of reasons. First, the correlation between American public opinion and the sum total of legislative outcomes is not nearly so symbiotic as Justice O’Connor suggests. There is little reason to suppose that legislative agenda is solely, or even predominantly, a creature of prevailing public opinion on every given subject of legislation action. The Supreme Court’s own decisions reflect an awareness of how special interests may exert substantial anti-democratic influence on the legislatures. E.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (finding statutory limitations on political contributions to candidates or committees can further legitimate governmental interests in protecting against corrupting effect of special interests). 

The experiences of the States confirm that economic and social special interests are often a dominant force in directing the state’s legislative priorities among both elected bodies and through ballot initiatives.  [7]  The Supreme Court has also recognized that resort to legislative process is not available at all to groups which are disenfranchised from political action. [8]  It is not difficult, in light to these realities, to understand why majority public opposition to executing the mentally retarded capital offender–a politically disenfranchised group if ever there was one–might not produce a neatly corresponding expression in legislative enactments.

Second, Justice O’Connor’s "objective factor" argument places too much emphasis on the ability of legislative outcomes to indicate an underlying current of prevailing moral opinion upon which the legislation is based. Legislative outcomes do not emerge from the political process as the embodiment of moral wisdom or the "considered judgment" of contemporary societal standards characterized by Justice O’Connor in Penry and Thompson v. Oklahoma, 487 U.S. at 852, 108 S.Ct. at 2708 (O’Connor, J., concurring). More realistic assessments of legislation are not difficult to find. "...[B]road consensus on noble objectives represents only the beginning of the legislative process...;" legislation itself often contains "calculated ambiguities or political compromises essential to secure a majority," Archibald Cox, Internal Affairs of Labor Unions Under the Labor Reform Act, 58 Mich.L.Rev 819 852 (1960); and legislative outcomes are "often the product of compromises that are not readily apparent to the public or even consistent in their relation to other contemporaneous enactments from the same body," McNutt v. Board of Trustees, 141 F3d 706, 709 (7^th Cir. 1998).

For example, while the rejection of the death penalty in 13 states certainly means that no legal executions will occur in those states, each state’s decision to reject the death penalty may rest on a plethora of pragmatic considerations, including but not limited to contemporary rejection of capital punishment on grounds of "decency." Some legislators may conclude that the death penalty–while not morally repugnant–is too expensive and diverts public money from meaningful anti-crime measures. Other legislators may vote to abolish the death penalty because it fails to deter criminals from violence; and its specific deterrent effect on the executed offender is purchased at too high a price given the option of life without parole. Still others may vote to abolish capital punishment based on their personal moral opinion regardless of contemporary values. Yet others forming the majority may be voting a particular way for purely political reasons, including desire for re-election, as a quid pro quo to obtain reciprocal support for another measure then pending, and a host of other reasons.

And so goes legislation in general. Penry’s legislative outcome methodology fails to acknowledge these realities of the legislative process when it posits that legislative results are the best evidence of "evolving standards of decency." While any legal theory of representative government must accept legislation as some indication of contemporary public values, it is at best an incomplete indication, and for purposes of measuring "evolving standards of decency," it is an inferior one.

Another Measure of Evolving Standards: "Enlightened Public Opinion."

In footnote 4 to the plurality opinion in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 2722, 101 L.Ed.2d 702 (1988), Justice Stevens traced the verbal lineage of "evolving standards of decency" to the majority opinion in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). In Weems, a majority of the Supreme Court held that 15 years imprisonment at hard labor and attached punishments for falsifying public documents were cruel and unusual under the 8^th Amendment. There the Court stated: The "cruel and unusual punishments clause in the opinion of the learned commentators may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 373-374, 30 S.Ct. at 553. (Emphasis added).

Modern methods of measuring opinion on matters of public concern produce reliable studies based on probability sampling, a scientific principle which holds that the responses of a randomly selected sample of a small percentage of the population can be representative of opinion among the populace as a whole. The ideal representative sample creates an equal probability of selection among the sample group, so that every member of the population to be studied has an equal chance of being chosen as a survey respondent. Most polls by the Gallup organization, for example, target a sample group of "national adults." Members of this population group are eighteen years or older, living in a telephone household within the continental United States.  [9]

Although Gallup routinely uses sample groups of 1000 to 1500 national adults, a highly accurate survey can be achieved with smaller samples. Even Gallup recognizes that once the sample is 500 randomly chosen from the studied population, accuracy gained from increasing the sample size is minimal. It is generally accepted in the social science community that a survey of 400-500 randomly selected respondents produces a result with plus or minus 5% accuracy, with a 95% confidence level. [10]  In other words, assuming that 50% of the random sample would answer a particular question "yes", between 45 and 55% of the population would answer the question "yes" in 95 out of 100 random samples, a respectably high level of reliability.

Given these levels of reliability, the justification to forestall a constitutional determination until an given number of state legislatures adopt the constitutional rule by statute and thus provide the "national consensus" required by Penry seems feeble, indeed. Courts confronted with constitutional challenges based on "evolving standards of decency" should admit evidence of scientific opinion surveys as they would admit other forms of scientific evidence, whether it be fingerprinting, ballistics, DNA testing, blood typing, or forensic pathology. Experts in social science methods are competent witnesses to state the underlying scientific principles involved, and the weight to be given to the evidence should be reposed in the finder of fact.

Like all forms of specialized knowledge which possess the basic foundational indicia of scientific reliability, public opinion evidence should be admitted because it is helpful to the tribunal faced with the difficult question of determining whether a challenged punishment violates "evolving standards of decency." Under Federal Rule of Evidence 702, and its identical Oklahoma counterpart, 12 O.S. § 2702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise.

In Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786 (1993), the Supreme Court clarified the "liberal thrust" of the Federal Rules of Evidence and their "general approach of relaxing the traditional barriers to ‘opinion’ testimony." Interpreting the language of Rule 702, the Court said:

The subject of an expert's testimony must be "scientific ... knowledge." The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science. See, e.g., Brief for Nicolaas Bloembergen et al. as Amici Curiae 9 ("Indeed, scientists do not assert that they know what is immutably 'true'__they are committed to searching for new, temporary, theories to explain, as best they can, phenomena"); Brief for American Association for the Advancement of Science et al. as Amici Curiae 7_8 ("Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (emphasis in original)). But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation__i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability. [11]

Public opinion measurements are not perfect, of course. And no particular public measure of sentiment concerning a challenged punishment is necessarily entitled to conclusive weight. However, it does not follow that social science research is of no benefit at all to a court grappling with "evolving standards of decency." This Court should, at minimum, admit evidence concerning public opinion surveys on the subject and determine the weight to be afforded to that evidence in a given case, assuming that a scientific foundation for the proffered evidence is established by a properly qualified expert witness. Justice O’Connor’s thoroughly misguided disregard of such evidence in Penry was a mistake which should not be repeated in the future.

Opposition to Executing the Mentally Retarded: Across the Nation

The very morning that the Supreme Court heard oral arguments in Penry, a public opinion poll commissioned by Time/CNN indicated that approximately two-thirds of the American public opposed executions of the mentally retarded. D.W. Keyes & W.J. Edwards, Mental Retardation and the Death Penalty: Current Status of Exemption Legislation 687 (ABA 1997). Penry himself had presented the Court with the results of several surveys indicating "strong opposition" to this practice.

For example, a poll taken in Texas found that 86% of those polled supported the death penalty, but 73% opposed its application to the mentally retarded. A Florida poll found 71% of those surveyed were opposed to the execution of mentally retarded capital defendants, while only 12% were in favor.A Georgia poll found 66% of those polled opposed to the death penalty for the retarded, 17% in favor, with 16% responding that it depends how retarded the person is. [12]

Penry, 492 U.S. at 334-335, 109 S.Ct. at 2955. (Internal citations omitted).

A large number of surveys on this issue reveal a striking consistency in opposition to executing the mentally retarded. According to polling data retrieved from the Institute for Research in Social Science at the University of North Carolina at Chapel Hill, [13]  a 1988 Harris survey measured opposition to this practice among a staggering 3, 123 adults, including three ethnic subsamples of 2008 Whites (70.10% opposed); 1005 Blacks (81.60% opposed), and 110 Asians (78.10% opposed). [14]

Polls from other states taken before and after the Penry decision also demonstrate public rejection of the practice. In the 1987 Nebraska Annual Social Indicators Survey conducted by the University of Nebraska’s Bureau of Sociological Research, 67.5% of 428 respondents opposed the death penalty in cases where the defendant was mentally retarded. In an October 1988 survey of 463 Alabama residents 18 years or older, 71.30% of respondents opposed the death penalty in cases involving the mentally retarded.  [15]  A December 1989 survey of California residents 18 years or older found 71.60% of the 448 respondents agreed that it was "not all right" to inflict capital punishment on the mentally retarded.  [16]  A recent article collecting polling data from several other states also demonstrated substantial, if not absolute, public opposition to executing mentally retarded prisoners in Connectict (84%), Georgia (66%), Indiana (74%), Kentucky (57%), Louisana (78%), Maryland (82%), New York (82%) Oklahoma (61%) [17]  South Carolina (56%), Texas (73/45.4%), and Virginia (39%). [18]

The Gaddie Survey: Current Oklahoma Opposition.

Over ten years have passed since Professors Gramsick and Bursik of the University of Oklahoma’s Center for the Study of Crime, Delinquency, and Social Control finished their study "Attitudes of Oklahomans Toward the Death Penalty" (the Gramsick/Bursik Study). That study, cited in Judge Chapel’s dissenting opinion in Lambert, [19] concluded from a random sampling of 353 Oklahomans that 60% of the state’s population were opposed to executing the mentally retarded capital offender. [20]

In late June and early July, 1999, at the request of Petitioner’s counsel, Dr. R. K. Gaddie, a University of Oklahoma political scientist, conducted a survey designed to provide a current measure of Oklahoma attitudes toward the practice of executing the mentally retarded. Professor Gaddie’s Survey of Oklahoma Attitudes Regarding Capital Punishment: A Survey Conducted for the Oklahoma Indigent Defense System (the "Gaddie Survey"), is included in the Appendix as Exhibit 5. Professor Gaddie designed a survey instrument asking three questions concerning capital punishment. The first question asked about public support for the death penalty in general; the second, about the death penalty for convicted offenders under the age of 18; and the third, about the execution of mentally retarded offenders (also defined in the survey as persons with a mental age of between 5 and 10 years of age). [21]

Petitioner’s counsel retained an independent telephone survey company which interviewed 484 randomly selected respondents in the Oklahoma City metropolitan area using the Gaddie Survey instrument.  [22]   According to Professor Gaddie, these methods will yield a survey result with an accuracy of +/_4.45% with a 95% confidence level for the population studied. [23]  The interviews were concluded on Saturday, July 10, 1999.

The Gaddie Survey results confirmed the widespread Oklahoma support for the death penalty found in the Gramsick/Bursik study, with fully 76.4% of the survey respondents supporting capital punishment in general. [24]  Only 12% of those surveyed opposed the death penalty in general. Gramsick and Bursik’s 1988 study fixed Oklahoma public support for the death penalty in general at 80.2%. [25]

Respondents in the Gaddie Survey were more ambivalent toward capital punishment for younger offenders. While only 42.1% opposed the death penalty for juveniles, 38.6% indicated support for capital punishment in such cases, with 17.5% of respondents volunteering that their answer would depend on the particular case. [26, 27]

The most significant finding of the Gaddie Survey is the increasing widespread opposition to capital punishment for the mentally retarded when compared to the Gramsick/Bursick Study findings of a decade ago. Of the Gaddie Survey’s 484 respondents, 390, or a staggering 80.6%, agreed that mentally retarded persons should not be executed. Only 10.5% of those surveyed supported capital punishment for the mentally retarded, with an even smaller number, 5.4%, stating that it depends on the facts of the case.

Professor Gaddie’s figures also demonstrate that of the 370 respondents who generally favored capital punishment, only 13% favored executing the mentally retarded, and another 6.2% would support it depending on the circumstances. Thus, among those favoring the death penalty in general, 77.6% expressed opposition to executing the mentally retarded. Even among those favoring the death penalty for juveniles, an astonishing 69% remained opposed to executing the mentally retarded. [28]

Opposition to executing the mentally retarded was so rigorous in the studied population that the over-sampling of women in the survey was deemed statistically insignificant on this issue.  [29] As Professor Gaddie explained:

[In the survey], [m]en were more likely to want to apply the death penalty than women, and the association between sex and support for the death penalty is statistically significant...The difference in the levels of support are least pronounced when applying the penalty to the mentally retarded. Opposition to the application of the death penalty to the mentally retarded ran nearly as high among men as among women, and the difference is not statistically significant. Where women and men were most differentiated in the application of the death penalty was in its application to juvenile offenders...Women are overrepresented in our sample by about 10 points, which skews our results when sex is a significant indicator of preferences. However, the result for the application of the death penalty in cases of mentally retarded offenders is likely more correct and accurately reflects the opinions of Oklahomans regardless of sex, because of the lack of any meaningful difference between the sexes in applying the death penalty to the mentally retarded. [30]

The Gaddie Survey is not a statewide survey, but its results are generalizable to the entire metropolitan Oklahoma City area’s adult population, the state’s largest population center. Although not all respondents stated their ethnic origin, the known ethnic makeup of the sample resembles the ethnic makeup of the population state-wide.  [30] There is little reason to suspect that a statewide survey would yield a significantly different measure of contemporary moral opinion in Oklahoma.

Coupled with the results of the Gramsick/Bursik Study of 1988, the Gaddie Survey indicates sustained and widespread rejection among Oklahomans of the execution of the mentally retarded. If the Eighth Amendment and Article 2, Section 9 of the Oklahoma Constitution "may acquire meaning as public opinion becomes enlightened by a humane justice," Weems v. U.S., 217 U.S. at 373-374, 30 S.Ct. at 553, then a judicial declaration that such executions are cruel and unusual is long overdue.

G. A Decade of Shame.

The ten years since the Supreme Court’s decision in Penry have confirmed what public opinion surveys predicted about a national consensus against executing the mentally retarded. Ten more state legislatures have outlawed the practice, bringing the number of death penalty states outlawing the practice to twelve, along with the federal government. When these thirteen death penalty jurisdictions are added to the thirteen states which have no death penalty, over half of the sovereign jurisdictions in the American republic have codified their rejection of this practice in their general laws. [32] But the Supreme Court’s constitutional mistake in Penry has a long list of victims: The opinion left the States free to cruelly execute approximately 24 mentally retarded prisoners. [33]

The analytical framework of "evolving standards of decency" applied by the Supreme Court in Penry--and adopted by this Court in Lambert-- is seriously flawed. Penry’s arbitrary limitations on the evidence which might be marshalled on the question of current standards of decency render the protections of the Eighth Amendment almost superfluous to the state legislative process. Ford v. Wainwright was just such a case, where the Supreme Court could bring itself to declare executions of the insane "cruel and unusual" only because most states had either never practiced them or had long abolished them. The Eighth Amendment question presented in Ford was virtually academic, and thus easy for the Court to answer.

But to focus solely on legislative outcomes is to fiddle while Rome burns, in the constitutional sense. It is the antithesis of enforcing a "progressive" constitutional protection "which acquires meaning as public opinion becomes enlightened by a humane justice." Weems, 217 U.S. at 373-374, 30 S.Ct. at 553. The "evolving standards of decency" jurisprudence currently in fashion will extend judicial sanction to a cruel and unusual punishment until it falls into disuse or is outlawed in most places–a process which could years at least--even though it offends today’s standards of decency.

Applying the "evolving standards of decency" analysis is not without its difficulties. But the interpretation of the phrase given by the Penry majority invites a total abdication of the judicial duty to address constitutional issues properly before the courts and to provide remedies rather than impotent observations.

Judges given stewardship of a constitutional provision...whose core is known but whose outer reach and contours are ill-defined, face the neverending task of discerning the meaning of the provision from one case to the next...A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. [34]

Mr. Hammon urges in this post-conviction proceeding that this Court should adopt the recommendation of the American Bar Association that the execution of death sentences in this State should be indefinitely stayed pending implementation of policies which permit the fair and reliable imposition of the death sentence.

In support of this proposition, Mr. Hammon hereby incorporates by reference the Report and Recommendation No. 107 of the American Bar Association, a copy of which Report and Recommendation is included as Exh. 7 to his Appendix of Exhibits in Support of Application For Post-Conviction Relief

Wherefore, Mr. Hammon respectfully requests that this Court enter an order vacating the death sentence and imposing a sentence of life imprisonment or life imprisonment without parole, or the in the alternative, remand this case for a full and fair evidentiary hearing on the issues presented.

Bryan Lester Dupler, after being duly sworn, states that he is the duly appointed counsel of the Petitioner, Richard Eugene Hammon; that he has read the foregoing application for post-conviction relief, its argument and authorities; and the statements of fact contained therein, and the documents appended to this application, are true and correct to the best of his knowledge and belief.

s/  Bryan Lester Dupler, OBA #14978

Subscribed and sworn to before me this ____ day of ______________, 1999, by the person known to me as Bryan Lester Dupler.

_________________________________

Notary Public

My Commission expires:

By my signature below, I certify that a copy of the foregoing Application for Post-Conviction Relief was served on the Attorney General of the State of Oklahoma by depositing a copy of the same with the Clerk of the Court of Criminal Appeals this ___ day of _____________, 1999.

Bryan Lester Dupler, OBA # 14978

Capital Post-Conviction Division

Oklahoma Indigent Defense System

1660 Cross Center Drive

Norman, OK 73019

(405) 325-3331