By Aimee Green
The Oregonian
PORTLAND, Ore. — A Portland judge has ruled that a double murderer sent to death row for shooting his ex-girlfriend and her new boyfriend has an “intellectual disability” and shouldn’t be executed for his crimes.
Multnomah County Circuit Judge Michael Greenlick issued his written ruling after noting that Michael Davis’ IQ was measured as low as 61 or 62 when he was a schoolboy. An IQ of 100 is considered average and people with IQs of below 70 are considered to have an intellectual disability.
The term has replaced the phrase “mental retardation” in professional circles. As the judge noted, it encompasses more than an IQ score: It also is defined by a person’s inability to function in society.
The judge noted that ample evidence existed that Davis had such difficulties -- likely stemming in part from being beaten in the head and suffering brain damage as a child. Davis, who attended Los Angeles public schools, stuttered and was teased by classmates. He was labeled “educable mentally retarded” while he was in high school.
In 2002, the U.S. Supreme Court ruled that executing people with intellectual disabilities is unconstitutional because it amounts to cruel and unusual punishment.
Davis’ defense attorney, Andy Simrin, said several Oregon death row sentences have been reversed in light of the Supreme Court’s ruling, but this is the first time he knows of it happening in a contested case when the prosecution and defense didn’t agree whether the offender had intellectual disabilities.
Davis, now 60, was 35 in November 1991 when he barged into a motel room at the Ara’Bel Motel on Portland’s Sandy Boulevard and shot to death 32-year-old Gerald Glenn Phillips. Phillips was dating Davis’ ex-girlfriend, Belinda Fay Flannigan, 30. Davis also shot and killed Flannigan, police believe as she cowered near the motel room’s sink.
Police immediately suspected Davis, but they couldn’t build a case against him until nearly 11 years later, when in 2002 he was indicted for the double murder. He was sentenced to death in 2005.
Davis’ long appeals process began after that.
Part of the process landed the case in Judge Greenlick’s downtown Portland courtroomduring a three-day hearing in June. Greenlick didn’t issue his ruling until Wednesday.
During the hearing, the prosecution contended that Davis wasn’t intellectually disabled and pointed to evidence that showed varying IQ results. The prosecution’s expert pegged Davis’ IQ between the high 70s to the low 80s.
Prosecutor Jeff Howes said the low-60s IQ score recorded while Davis was a student in Los Angeles was tainted by racial bias. Davis is African American.
Howes also pointed to essays and other writing by Davis, including his thoughts on the war in Iraq post-9/11. Davis, who has spent much of his adult life incarcerated, also complained in an inmate communication form about having to pay for some eyeglasses.
“He’s writing better than a lot of lawyers I know,” Howes said.
The prosecutor described Davis’ “perfectly proper grammar,” even down to the correct usage of “it’s.”
But the judge said in his ruling that there was “insufficient evidence” that Davis actually wrote the pieces submitted as evidence.
"(P)eople with intellectual disability often endeavor to hide their deficits out of embarrassment or shame, and people affected often enlist others to provide assistance,” Greenlick wrote.
The judge said he was giving little weight to the testimony of the prosecution’s expert -- and that he was puzzled at how the expert arrived at his analysis of Davis’ IQ.
Instead, Greenlick said, he found all three of the defense’s experts credible. Based on their testimony, the judge found that Davis’ intellectual disability lowered “his capacity to understand information, communicate, learn from mistakes and experiences, engage in logical reasoning, control impulses, and understand the reactions of others.”
Read Greenlick’s ruling here.
In statements in response to Greenlick’s ruling, Oregonians for Alternatives to the Death Penalty and the Oregon Justice Resource Center used Davis’ case to criticize the death penalty for its long and costly process, which they say is riddled with problems.
Greenlick’s ruling comes several weeks after another decision struck a blow to Davis’ death sentence. Last month, a Marion County Circuit judge upheld Davis’ aggravated murder convictions but reversed his death sentence because Davis wasn’t evaluated for possible intellectual disability before he was sentenced.
That ruling opens the door for a new sentencing trial to determine if Davis should instead be sentenced to one of two lesser punishments: spending the rest of his life in prison or a life sentence with the possibility of release after 30 years.
For the time being, Davis is still on death row at the Oregon State Penitentiary, along with more than 30 others. It’s unclear if he will move anytime soon because his case is still in flux.
Among many questions left to be answered, attorneys for the state need to determine if they can appeal or whether they want to appeal.
Also of note, Gov. Kate Brown’s office announced earlier this week that Brown plans to continue her moratorium on executions through her new term if she wins election.