Law & the Courts

Justice Thomas’s Dissent in the Brumfield Death-Penalty Case Shows Sympathy for the Victim, Not Her Killer

We suspect that death-penalty opponents will be largely silent as the case of Dylann Roof, the 21-year-old racist who gunned down nine people in a Bible-study class on Wednesday, goes through the court system. His horrendous crime cries out for the ultimate punishment. It leaves children without parents, parents without children, and the community of Charleston, S.C., devastated.

Roof may not generate any sympathy or pleas for clemency, but plenty of other cold-blooded killers do — and go on to escape the death penalty. But the cases in which they commit evil acts and leave a trail of tears don’t get the publicity that Roof’s case will. It’s time we give these lesser-known crimes a closer look when we evaluate claims that the death penalty is barbaric and unjustified.

By coincidence, just twelve hours after Roof’s massacre, the U.S. Supreme Court released its opinion in Brumfield v. Cain, a death-penalty case in which a narrow 5–4 court majority vacated a federal-appeals-court opinion in a death-penalty case and ordered the lower courts to review it again. The decision means that Kevan Brumfield could escape the death penalty by claiming he is intellectually disabled.

Justice Thomas admonishes the majority for having spent its entire opinion on why Brumfield should be given habeas relief, while devoting only “a single sentence to a description of the crime for which a Louisiana jury sentenced Brumfield to death.”

Justice Clarence Thomas wrote an eloquent dissent. It provides a stark contrast between the kind of vicious, violent, antisocial criminals who prey on society, and police officers such as Betty Smothers, a single black mother of six, whom Brumfield murdered in cold blood in 1993. The killer is a diagnosed sociopath who has spent more than 20 years trying to avoid the death penalty that a Louisiana jury ruled should be his punishment.

Unfortunately, the liberal justices on the Court, along with Anthony Kennedy, today handed Brumfield yet another unmerited reprieve. In his dissent, Thomas takes the unprecedented step of including a photograph of the victim — a victim mentioned only in passing in the majority opinion written by Justice Sonia Sotomayor.

Justice Thomas — who was joined by Chief Justice John Roberts, Justice Antonin Scalia, and Justice Samuel Alito in the dissent — admonishes the majority for having spent its entire opinion on why Brumfield should be given habeas relief over his claim of “intellectual disability,” overturning both the conclusions and decisions of the Louisiana Supreme Court as well as the Fifth Circuit Court of Appeals, while devoting only “a single sentence to a description of the crime for which a Louisiana jury sentenced Brumfield to death.” ​

As Thomas says, this “case is a study in contrasts.” In an obvious effort to honor that victim, Thomas then describes in searing detail exactly what happened. On the one hand:

We have Kevan Brumfield, a man who murdered Louisiana police officer Betty Smothers and who has spent the last 20 years claiming that his actions were the product of circumstances beyond his control. On the other hand, we have Warrick Dunn, the eldest son of Corporal Smothers, who responded to circumstances beyond his control by caring for his family, building a professional football career, and turning his success on the field into charitable work off the field.

Smothers was a 14-year veteran of the Baton Rouge Police Department who was working a second job to support her family.

Following a ten-hour shift at the police department, Smothers went to her second job at a local grocery store where she served as a uniformed security officer.

Shortly after midnight on January 7, 1993, she drove the assistant manager to a local bank in her police cruiser to make the grocery store’s nightly deposit. As soon as they arrived, Brumfield and an accomplice, who had been specifically lying in wait to rob them, opened fire on the two women with .38- and .25-caliber handguns. They killed Corporal Smothers after hitting her five times; the assistant manager miraculously survived, despite being hit eleven times.

Brumfield subsequently made a videotaped confession. He admitted that he had come up with the idea to steal the grocery store’s deposit. Evidence at the trial showed that Brumfield had spoken about committing a robbery to several people in the weeks leading up to the murder. He was facing sentencing on unrelated charges and promised his pregnant girlfriend that he would obtain money to support her, their baby, and her child from a previous relationship. Brumfield told an acquaintance right after the murder of Corporal Smothers that “he had just killed ‘a son of a bitch.’”

Worse, six years before the murder, Corporal Smothers had caught Brumfield stealing while working security at a store and she made him put back what he had taken; she gave him a chance to turn his life around. As her eldest son, Warrick Dunn, later wrote in his book Running for My Life: My Journey in the Game of Football and Beyond, that was his mom, “always giving people second chances to do right.”

Brumfield already had a criminal record before he murdered Betty Smothers. He was awaiting sentencing for attempted possession of cocaine and felony theft of a gun. Justice Thomas describes Brumfield’s record  in detail:

Brumfield  had worked only three months in his entire adult life because, as he had admitted to his psychologist, he found drug dealing a far more effective way to make money. A few years before, he had been involved in the fatal shooting of a fellow drug dealer in a deal gone bad. And ten months after he murdered Corporal Smothers, Brumfield battered another police officer while in prison. . . . Brumfield’s murder of Betty Smothers was the culmination of a two-week crime spree. On Christmas Day, 1992, Brumfield robbed Anthony Miller at gunpoint after giving him a ride. He forced Miller out of the car, put a gun to Miller’s head, and pulled the trigger. Fortunately for Miller, the gun misfired, and he survived. One week later, Brumfield robbed Edna Marie Perry and her daughter Trina Perkins at gunpoint as they were walking along the side of the road. Brumfield pulled alongside them, pointed a sawed-off shotgun at Perry, and said, “Hand it over, bitch, Perry turned over her purse, but pleaded with Brumfield to give back the pictures from her deceased son’s funeral that she carried in the purse. He responded none too courteously, “Bitch, you dead,” and drove away.

Despite his claims that he was mentally deficient and should not be held accountable for his actions, Brumfield had the capacity to shadow the movements of the store manager and Corporal Smothers and learn their route for night deposits. He then waited for them, ambushed them, and killed them in a carefully planned crime.

Unmentioned in the majority’s opinion is that Smother’s murder had a devastating effect on her six children, who ranged in age from ten to 18. They went to live with their grandmother. Warrick Dunn and the second eldest son, Derrick Green, Justice Thomas notes, took on the “extra responsibilities to care for their younger siblings.” Dunn “quickly stepped into the role of father figure.” He said that he thought it “was up to [him] to make sure that everybody grew up to be somebody.”

Dunn became a star running back at Florida State University and then a professional player in the NFL, all the while coping with the loss of his mother. He even moved his younger siblings into his home in Tampa Bay when he started playing for the Buccaneers “to make sure they stayed on the right path.” He started a charitable organization, Homes for the Holidays, that decorates and furnishes homes for single mothers.  He was a founding member of Athletes for Hope, an organization dedicated to helping athletes find and pursue charitable opportunities. After he retired from professional football in 2008 he started two more charitable organizations in honor of his mother.

Thomas goes into great detail about the victims of this crime to contrast them with Kevan Brumfield, who argued that his actions “were the product of his disadvantaged background.” As Thomas says, that argument “is striking in light of the conduct of Corporal Smothers’ children following her murder.” Brumfield has spent 20 years “engaged in a ceaseless campaign of review proceedings.” He has issued numerous challenges to the court proceedings that convicted him and late in the game started claiming that he was “mentally retarded” because he alleged that he had an IQ score of 75 and therefore was ineligible for the death penalty.”

The state courts denied these claims because the very extensive record in the case showed that Brumfield had not met the burden of showing mental retardation. The Supreme Court majority placed a lot of emphasis on the testimony of a social worker who claimed that Brumfield’s problems could be traced to his low birth weight, lack of a supportive home environment, and abusive stepfather. A psychologist, however, diagnosed Brumfield as having a “sociopathic personality.” What that meant, as a clinical neuropsychologist said, was that he was extremely aggressive and had “a disregard for the basic rights of others,” something that his criminal behavior amply demonstrated was true.

In the majority opinion, Justice Sotomayor concluded that the Louisiana courts had an obligation to provide Brumfield with a new evidentiary hearing on his claim that he was intellectually disabled because he had a low IQ and supposedly had “substantial functional impairment” in some areas of “major life activities.” But Thomas pointed out that federal law limits the ability of federal courts to grant habeas relief to state prisoners, and that there was ample evidence on all of these issues already in the existing record, including extensive reports from various doctors, to support the state courts’ factual determination in this case and to refute Brumfield’s claim that he was impaired. In Thomas’s view, the “majority reaches the opposite result with a bit of legerdemain, recasting legal determinations as factual ones.” Thomas charged that the majority does “violence to the statute and to our ordinary understanding of ‘facts.’”

Thomas concludes:

What is perhaps more disheartening than the majority’s disregard for both [federal law] and our precedents is its disregard for the human cost of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends. It spares no more than a sentence to describe the crime for which a Louisiana jury sentenced Brumfield to death. It barely spares the two words necessary to identify Brumfield’s victim, Betty Smothers, by name. She and her family — not to mention our legal system — deserve better.

And Thomas adds an appendix to his dissent that we have never seen in a Supreme Court opinion: a photograph of Betty Smothers in her police uniform standing beside her police cruiser. That is what this case was all about — lest we forget.

Justice Thomas's dissent in Brumfield shows sympathy for the victim, Betty Smothers, not her cold-blooded killer.

— John Fund is the national-affair correspondent at National Review Online and Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. They are the coauthors of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.

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