A man who once awaited his execution will now receive an entirely new trial due to multiple errors committed by the state. Kenneth Simmons was convicted in Dorchester County, South Carolina for the 1996 rape and murder of Lily Bell Boyd, and was sentenced to death for the crime. However, the courts have now agreed that Mr. Simmons is ineligible for the ultimate punishment, and that his case was marked by prosecutorial misconduct. Several years ago, lawyers proved that Mr. Simmons has intellectual disability, and therefore cannot be punished by execution under the Eighth Amendment to the U.S. Constitution (see the Supreme Court’s decision in Atkins v. Virginia). And, earlier this year, a Dorchester County court confirmed its decision to grant Mr. Simmons a new trial because the prosecutors presented false DNA evidence when they obtained the guilty verdict against him.
Mr. Simmons’s case exemplifies the thorny and underexplored issues that arise when State misconduct intersects with a defendant’s intellectual disability. One reason the U.S. Supreme Court categorically banned the execution of persons with intellectual disability is the greater risk of wrongful conviction. As the Atkins decision states (using the common nomenclature of the time—“mental retardation”—which the Court no longer uses):
“The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” . . . is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”
Mr. Simmons’s problematic conviction may seem like an unusual example of potentially wrongful conviction because the State provided seemingly valid scientific evidence to establish his guilt. However, in Mr. Simmons’s case, that evidence was flawed and misrepresented. As an amicus brief the Innocence Network filed on Mr. Simmons’s behalf explains (on page 3), “[t]his case exemplifies how the persuasive power of DNA testing—one of the justice system’s greatest assets—can be misused to secure convictions untethered to the realities of the evidence or the constitutional requirements of a fair trial.” In short, from a juror’s perspective, DNA evidence has become synonymous with certainty; indeed, the State knew and capitalized on this fact. But, the evidence is only as good as the testing that was done and is only as meaningful as the testimony is truthful. The DNA evidence presented to Mr. Simmons’s jurors fell short of reliability and truthfulness.
The Innocence Network’s amicus spells out clearly how the State’s DNA experts failed to conduct appropriate testing, analyzed results using faulty assumptions, and presented untruthful and misleading testimony at the trial. Without getting into the weeds here, one example typifies these deep-seated problems. The relevant question was how likely it was that Mr. Simmons contributed to the DNA evidence collected at the crime scene. (With the proper assumptions in place, it turns out that 1 in 2 African Americans could have contributed the relevant DNA sample, but that is a separate—albeit compelling—point.) Instead, the prosecution elicited testimony from its experts about the likelihood that anyone else in the world would have the exact same DNA profile as Mr. Simmons. (That number is as low as 1 in several billion.) Thus, the statistical evidence the State presented at trial was the likelihood that anyone in the population would share the same DNA as the defendant, not the likelihood the defendant left the DNA that was taken from the victim and crime scene. The jury was presented the former information under the pretense that it was the latter. It is no wonder Mr. Simmons was convicted.
Bringing misleading and false evidence in the courtroom is bad enough, but the State hammered it home in closing arguments. The trial court’s order explains (on page 2):
“The State relied on a chart presented to the jury that contained false information regarding the DNA samples. The Solicitor utilized the chart to emphasize his own incorrect claims about the DNA evidence during closing arguments. The State basically argued that it was impossible for the DNA to have come from anyone other than the Applicant, which is false.”
The case also raises questions about whether the State’s witnesses really provided independent expert opinions. In its decision remanding the case for further consideration of the DNA issue, the South Carolina Supreme Court dropped a distressing footnote that explained one of the two DNA witnesses simply assumed the prosecution’s chart was accurate and testified off of it:
“Crane’s testimony referenced the chart, even though at the time Crane said she had ‘not recently’ seen it. During her deposition for these PCR proceedings, Crane said she had never seen the chart before the trial and admitted testifying off of it based on the assumption it was correct. It is now conceded that the chart contained false information.”
When it comes to expert testimony, courts appear reluctant to charge the prosecution with the duty to know whether the evidence presented is accurate and truthful. Here, the South Carolina Supreme Court specifically indicated that it found “no evidence of conscious wrongdoing” by the prosecutors, and laid blame for the “faulty information” on the team at Lifecodes that conducted the DNA testing and analysis. The Court’s generous and gratuitous finding may have come in response to the prosecution’s more reasonable approach to the post-conviction issues. As the South Carolina Supreme Court observed, “[t]he State, to its credit, does not deny the obvious—that is, the strength of the State’s DNA evidence against Simmons was misrepresented to the jury.”
While prosecutors here garnered credit from the state’s high court for “not deny[ing] the obvious”—a fairly low standard—the State did more than merely rely on and amplify faulty information its experts provided. Neither the prosecution nor its experts ever disclosed to the defense team that one of Lifecodes’ tests indicated that “no male DNA was present” in the relevant sample. (See the Innocence Network amicus brief at pages 16-18.) The prosecution had an affirmative obligation under Brady v. Maryland to disclose exculpatory evidence. That a crucial DNA sample being used as evidence of Mr. Simmons’s guilty may not have actually had any male DNA on it was exculpatory, to say the least.
In the post-conviction hearings, the State took the position that while the DNA evidence may have been misleading, the prosecution presented other persuasive evidence that Mr. Simmons is guilty. The crux of that evidence is a confession the defendant gave. Recall that Mr. Simmons has intellectual disability. A wealth of research establishes that confessions procured from defendants with intellectual disabilities are often unreliable. An amicus brief submitted by state chapters of some of the nation’s leading advocacy groups for persons with intellectual disability presented this information to the post-conviction court. In addition to compiling the emerging scientific literature on the topic, the brief points out that Mr. Simmons’s case possesses many traits that characterize false confession cases: a defendant with a low IQ; a case with little direct evidence (over one year elapsed between the crime and Mr. Simmons’s arrest); and a highly suggestible defendant who was eager to please law enforcement. While the State can certainly seek to present the confession at a subsequent trial, it was not enough to persuade the court to ignore the way in which the DNA evidence sealed Mr. Simmons’s fate. In its words, “[t]he Court is still of the opinion that the presentation of DNA evidence at the Applicant’s trial was so tainted that he was severely deprived of his due process rights.”
Last month, the State accepted the trial court’s decision and announced it would not appeal the grant of a new trial. While we wait to see how the criminal justice system next deals with Mr. Simmons’s case, a few things are worth keeping in mind:
- Individuals with intellectual disabilities are far more likely to be wrongly convicted;
- Prosecutorial misconduct is a major contributor to wrongful convictions;
- Misconduct often intersects with intellectual disability, indirectly and directly
- Consider this Ohio case, where prosecutors put a man with intellectual disability on death row while withholding reams of exculpatory evidence from him;
- Even more on point, consider this Texas case, where the State’s misconduct was specifically tied to the question of the defendant’s intellectual disability; prosecutors failed to disclose childhood records showing the defendant had low IQ scores.
While the link between intellectual disability and prosecutorial misconduct (and the death penalty) has not been the subject of much scholarly analysis, a few prominent experts are beginning to bring it to light. Consider this piece, by Professor Michael Perlin, and this one, by law professor and expert on capital cases in which the defendant has intellectual disability John Blume. Surely, the case of Kenneth Simmons helps demonstrate the danger of the State’s use of false evidence, particularly when a defendant has intellectual disability.