A divided Ninth Circuit panel ruled today, in Smith v. Schriro, that Robert Douglas Smith was intellectually disabled when he committed acts of kidnapping, sexual assault, and murder in 1980. I haven’t yet waded through all 54 pages of Judge Stephen Reinhardt’s lead opinion (eleven pages of which concurring judge Patricia Mary Schroeder does not join), nor have I read Reinhardt’s 27-page special concurrence in his own majority opinion. (Why, I wonder, did he not move to his special concurrence the eleven pages of his lead opinion that Schroeder doesn’t join?) But given Reinhardt’s abysmal track record, I’m willing to bet that Judge Consuelo Callahan has it right in her dissent, the opening paragraph of which reads (emphasis added):

The one thing everyone appears to agree on is that Smith is not intellectually disabled. When tested in 2005 the experts found that he had an IQ of between 87 and 93, well within the low-average to average range of intellectual ability. Yet despite this fact, the majority reverses because it is certain that Smith was intellectually disabled in 1980 when he murdered Sandy Owen. The majority reaches this conclusion by disregarding the findings of the state courts, denying those courts the deference they are due, and expressing supreme confidence in its own ability to detect past intellectual disability despite substantial conflicting evidence and the fact that Smith is not now intellectually disabled. Accordingly, I dissent.

More fodder for another summary reversal by the Supreme Court?