concurring. I concur with the majority opinion but write to emphasize that the appellant, Barry Lee Fairchild, is not mentally retarded. The United States District Court so found after a full hearing, and the Eighth Circuit Court of Appeals affirmed. Fairchild v. Lockhart, 744 F.Supp. 1429 (1989), aff’d 900 F.2d 1292 (8th Cir. 1990), cert. denied 497 U.S. 1052 (1990). The public policy of this State which is embodied in Act 420 of 1993 clearly prohibits the execution of the mentally retarded. But because Fairchild has been found not to be retarded, that public policy is not at issue.
The bulk of the United States District Court’s 1989 opinion, which is 78 pages in length, is concerned with Fairchild’s IQ and his claim of mental retardation. Witness these statements and findings by that court which are the result of an exhaustive analysis:
On the basis of all of the evidence and the totality of the circumstances including:
1. A review of the state court record and the transcript of the testimony of Mr. Fairchild and the other witnesses in the state court proceedings;
2. A review of the transcripts of all of the appearances and hearings in this Court with particular focus on Mr. Fairchild’s performance as a witness and his awareness of the issues and his communicative skills;
3. The views and opinions of his attorneys and others who have had close association with Mr. Fairchild, as disclosed in the record;
4. A careful review of the factual reports and also the opinions of those who examined or observed Mr. Fairchild when he was at the State Hospital in 1974 and in 1983, and at the Federal Hospital in Springfield in 1986;
5. A careful consideration and evaluation of the documentary evidence, testimony and the opinions of Dr. George Baroff, Dr. Judy White Johnson, Ms. Ruth Luckasson, Dr. Theodore Blau, Dr. Pritchard, Dr. Rosendale, Mr. Dennis Keyes and Dr. Donald Butts and the other witnesses who testified in person or by deposition at the hearing which commenced on Thursday afternoon, March 16, 1989, and ended Tuesday evening, March 21, 1989;
The Court finds and concludes that Mr. Fairchild was not only capable of but did, in fact, voluntarily, knowingly, and intelligently waive his Miranda rights before confessing his involvement in the robbery, rape, and murder of Ms. Mason on March 5, 1983.
And the Court further finds and concludes that petitioner has not sustained his contention that the State failed to provide him with a professionally adequate evaluation of his mental condition before his 1983 state court trial.
The Court can also state at this time that it is convinced, and so finds, that Mr. Fairchild is not now retarded and was not in 1983. It is also convinced, and so finds, that in March of 1983, he understood not only the language and terminology of the Miranda warnings but also the practical meaning and effect thereof.
The Court’s own judgment as to the mental status of Mr. Fairchild based upon all of the evidence and based upon observing him testify and communicating in court on different occasions, upon viewing and reviewing the videotaped confessions, and upon reading transcripts of his testimony in the state court proceedings and listening to witnesses — expert and lay — describe his actions and conduct was, and continues to be, that he would fall in the “dull, below normal” category but that he is not “retarded.” Because of the circumstances under which the various “IQ” tests were given, probably the Revised Beta Examination conducted by Dr. Richard D’Andrea at Springfield is the least contaminated by by (sic) motivational or “secondary gain” phenomenon. Although by hindsight one might wish that a WAIS-R or Revised Stanford-Binet test had been administered under those optimal motivational circumstances, the Court is nevertheless convinced that the 87 IQ received by Mr. Fairchild on the Revised Beta is closer by far to an accurate IQ reading on Mr. Fairchild than either the 1989 WAIS-R or the Stanford-Binet test results. It is the Court’s opinion that the best tests, administered under optimal circumstances, would yield an IQ for Mr. Fairchild somewhere between 75 and 87.
744 F.Supp. at 1460-1461. (Emphasis added.) The rebuttable presumption for mental retardation under Act 420 is an IQ of 65 or below.
The Eighth Circuit Court of Appeals affirmed the absence of retardation in Fairchild with this straightforward assessment:
We affirm the District Court’s finding that Fairchild was not retarded in 1983, and is not retarded now. We cannot say this conclusion was clearly erroneous. On the contrary, the evidence here was mixed. The appellant has undergone a vast array of tests to ascertain his competence. The scores on those tests are contradictory; with 70 serving as the threshold of retardation, his IQ has been scored as low as 60 and as high as 87. And even if all the tests agreed, that would not settle the question. Being retarded means more than scoring low on IQ tests. It also means functioning ineffectively in society. The District Court correctly noted that here the evidence weighs against finding that the appellant is retarded. His interactions with others undermine such a claim. For example, the trial court allowed Fairchild to act as co-counsel at his trial. T. 73, 397. On the basis of his dealings with Fairchild, his habeas lawyer, Mr. Hall, noted his surprise upon discovering that some test scores indicated the appellant was retarded.
900 F.2d at 1295.
These decisions resolve the issue for me. Fairchild’s claim of retardation was clearly essential to his federal habeas corpus petition and was fully examined and explored prior to the enactment of Act 420. It was found to be wanting. There is no basis now for a redundant exploration of this issue.
David Newbern, Justice, dissenting. The State of Arkansas is on the verge of putting Barry Lee Fairchild to death without determining for itself whether he is, and was at the time the murder of which he was convicted, retarded. That is so despite the newly declared public policy of the State: “No defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” Ark. Code Ann. § 5-4-618(b) (Repl. 1993).
Perhaps as a result of its disgust with the delays resulting from the numerous motions and appeals filed by prisoners, especially those on death row, here and in federal courts, the majority of the members of this Court are improperly making a technical exit to avoid facing an important issue. It was error to have denied the stay of execution sought in Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993), on the basis of collateral estoppel. Now the majority absolves itself of that error with a questionable application of the law of the case doctrine to avoid addressing the merits of Mr. Fairchild’s appeal. I must dissent.
To its credit, the majority opinion is not shrill, yet the frustration we sometimes feel as the result of the seemingly interminable petitions and appeals of criminal defendants shows in the euphemistic recitation of the “number of proceedings” which have “occupied the attention” of the federal courts. We should never allow that frustration to trump the law or even to color our decisions.
The majority of my colleagues are unwilling to address the merits of Mr. Fairchild’s appeal because they previously refused to do so when we considered his motion for stay of execution in Fairchild v. Norris, supra. That decision was incorrect. The majority erroneously applied the doctrine of collateral estoppel to determine that we were barred from revisiting Judge Eisele’s finding that Mr. Fairchild is not mentally retarded.
It is enough to say, without repeating the entire dissenting opinion in Fairchild v. Norris, supra, that the issue before the United States District Court when Judge Eisele rendered his finding was whether Mr. Fairchild was capable of waiving the rights accorded him by the Miranda rule. As a retarded person may waive those rights, the question whether Mr. Fairchild was retarded was unnecessary to Judge Eisele’s decision. For collateral estoppel to preclude a court from addressing an issue, a finding on that issue must have been made in a previous decision, and that finding must have been necessary to that decision. Neither the majority as a group nor any member of it has responded, satisfactorily or otherwise, to that criticism of its decision.
The majority now applies the law of the case doctrine to avoid, once again, addressing Mr. Fairchild’s appeal, including his citation of the new mental retardation statute, on its merits. Application of law of the case in this appeal is tenuous at best. The majority cites no case to support its proposition that a conclusion, particularly a procedural one like application of collateral estoppel, reached in the process of deciding a motion, can or should be considered law of the case.
Even if there were authority for applying the doctrine in a situation such as this, it should not be considered to be binding upon us. The majority opinion quotes Mr. Justice Holmes’s statement in Messenger v. Anderson, 225 U.S. 436 (1912), that the law of the case “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Mr. Justice Holmes’s remark was slightly longer. Mr. Justice Holmes said the doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” 225 U.S. at 444 (emphasis added).
Contrasting the doctrine of law of the case and res judicata, the Supreme Court has also said, “there is a difference between such adherence [to law of the case] and res judicata; one directs discretion, the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission.” Southern Ry. Co. v. Clift, 260 U.S. 316 at 319 (1922).
By its enactment of § 5-4-618(b), long after the federal court ruled on whether Mr. Fairchild had the capacity to waive his Miranda rights, the Arkansas General Assembly determined that mentally retarded persons who commit capital murder should not be executed. It defined “mental retardation” in § 5-4-618(a)(1) and created, in § 5-4-618(a)(2), a rebuttable presumption that a person with an intelligence quotient of 65 or below suffers from mental retardation.
Here, as was the Georgia Supreme Court in Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989), we are faced with a significant change in the law which may have a profound effect on our interpretation of the “cruel and unusual punishment” proscription in Ark. Const, art. 2, § 9. The majority opinion sluffs it off by saying “The mere passage of Act 420 does not breathe new life into this issue. It does not require a third resolution . . . .” We have not addressed the issue, much less resolved it. The majority thus dodges a question of life or death by deferring to the decision of a federal court which is not binding upon us and which was made before the statute was enacted.
Mr. Fairchild seeks to show he falls within the protection of art. 2, § 9, on the basis of the new law. As the Georgia Supreme Court noted in the Fleming case, the matter of proportionality is implicated. Mr. Fairchild’s counsel, by presenting the materials mentioned in the majority opinion, make a strong argument that there is a lot of evidence that Mr. Fairchild is “retarded,” as that term is defined in § 5-4-618, and has been since childhood.
We have the power to decide, on the merits, whether Mr. Fairchild should have a hearing to determine whether he is retarded. We should do so, and we should grant the hearing for the reasons stated in my dissenting opinion, joined by Justice Hays, in Fairchild v. Norris, supra.
If counsel are correct, Barry Lee Fairchild may well not be the first retarded person to have been executed in Arkansas, but he surely will be the last. Now that the law has changed, we should not let that happen on the basis of an erroneous application of collateral estoppel, coupled with an insupportable and unnecessary application of law of the case. Our failure to address the merits of Mr. Fairchild’s appeal on the majority’s application of law of the case is at best cavalier and at worst irresponsible.
I respectfully dissent.
Hays, J., joins in this dissent.