Dissenting.
¶'11 vigorously dissent to the Court’s troubling decision, which vacates Appellant’s death sentence and modifies that sentence to life imprisonment without parole. The Court’s Opinion represents both a miscar*622riage of justice and an abuse of judicial power.
¶ 2 In Myers v. State, 2005 OK CR 22, 130 P.3d 262, 2005 WL 3334712 this Court set forth the standard of review to be used on appeal when a defendant challenges the sufficiency of the evidence following a jury finding that he or she is not mentally retarded. That is, “[w]hen the defendant challenges the sufficiency of the evidence following a jury finding that he is not mentally retarded, this Court will review the evidence in the light most favorable to the State to determine if any rational trier of fact could have reached the same conclusion.” Myers, 2005 OK CR 22, ¶ 7, 130 P.3d at 262, 2005 WL 3334712.
¶ 3 But now, mere weeks after Myers was handed down, the Court has misapplied (or sidestepped) that standard, not once, not twice, but three times! See Lambert v. State, 2003 OK CR 11, 71 P.3d 30 and Salazar v. State, 2005 OK CR 24, 126 P.3d 625. Read together with these other decisions, today’s opinion makes it clear’ that Myers has already been disregarded, thus impliedly overruled, and that the Court will substitute itself in as the trier of fact when mental retardation is raised as a defense to capital punishment. That is, the Court will use de novo review in appeals from jury decisions on mental retardation rather than the objective rule of appellate review established in Myers, for no other conclusion can be reached upon reviewing the procedural history and record in this case.
¶4 Petitioner has presented his mental retardation claim to many jurors and courts, but until today none of them have found this claim worthy of relief from the death sentence.
¶ 5 The first instance was when Petitioner was tried for first-degree murder and sentenced to death in a nearly identical case, Tulsa County Case No. CF-90-717.1 There, Petitioner had raised his mental deficiencies as mitigation for the jury to consider (his expert testified he was borderline mentally retarded with an IQ of 77,2 well above the 70 threshold that allows one to be considered mentally retarded). Nevertheless, a jury of twelve deliberated the matters presented in aggravation and mitigation and returned a death sentence.
¶ 6 On appeal, this Court3 affirmed that conviction and sentence. See Pickens v. State, 1993 OK CR 15, 850 P.2d 328. In so doing, the Court rejected Petitioner’s claim that the instructions had not allowed his jury to properly consider his “educably mentally handicapped” claim. Instead, the Court found the jury had been allowed to give full consideration of all mitigating evidence presented. On habeas review, however, the Tenth Circuit reversed on other grounds, finding a videotaped confession had been improperly admitted,4 an error that was not harmless beyond a reasonable doubt. Pickens v. Gibson, 206 F.3d 988, 997 (10th Cir.2000). Petitioner subsequently entered into a deal for the sentence of life imprisonment without the possibility of parole.
¶ 7 In his first Creek County trial — concerning the crimes for which he is now on death row — Petitioner also raised the issue of mental retardation. His expert testified concerning Petitioner’s level of intelligence and his chronic PCP use that had resulted in brain damage and “changed his attachment to reality.” The jury instructions listed Petitioner’s “mental age” as a mitigating circumstance, but after deliberating the jury still returned a death sentence. This Court later reversed that sentence on other grounds and remanded the case for a new trial. Pickens v. State, 1994 OK CR 74, 885 P.2d 678.
¶ 8 On retrial, Petitioner again raised the issue of mental retardation as part of his defense, and he received another instruction listing mental retardation as a mitigating circumstance. But jurors once again found the aggravating evidence outweighed the *623mitigating evidence and sentenced Petitioner to death. On appeal, this Court affirmed. Pickens v. State, 2001 OK CR 3, 19 P.3d 866, cert. denied, 536 U.S. 961, 122 S.Ct. 2668, 153 L.Ed.2d 842 (2002).
¶ 9 Thereafter, following Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and Murphy v. State, 2002 OK CR 32, 54 P.3d 556, we granted Petitioner post-conviction relief on his mental retardation claim, remanding his case to Creek County for a jury trial on that specific issue. Petitioner was thus able to present his claim to jurors who were focused on -the question at hand, i.e., whether Petitioner’s mental retardation claim had substance and rendered him constitutionally ineligible for the death penalty. But once again, Petitioner could not convince a single juror that his level of intelligence provided a basis for relief from the death sentence imposed.
¶ 10 Petitioner has thus presented his mental retardation claim to four separate juries comprised of forty-eight Oklahomans, and it speaks volumes that none of them have granted him any form of relief. Additionally, the District Court,'this Court, and the United States Supreme Court have declined to grant relief on several occasions.
¶ 11 That’s why it is so disturbing to read the Court’s opinion today, when it disingenuously states: “[w]e review the evidence in a light most favorable to the prevailing party to determine if any rational trier of fact could have reached the same conclusion”.5 For the Court does nothing of the sort. Indeed, the Opinion spends some fourteen pages reviewing the record de novo or, more often than not, in a light most favorable to Pickens!6
¶ 12 Thus, rather than reviewing the evidence in a light most favorable to the prevailing party (the State), as is proper, the Court’s opinion takes that State-favoring evidence and attempt to explain it all away. Under a de novo standard, some of the Court’s discussions in this regard might be legitimate, but under the Myers standard those discussions represent nothing, more than rationalizations for personal opinions.7
¶ 13' The opinion thus acknowledges many points that should have weighed — and in the jury’s mind clearly did weigh — in the State’s favor: Petitioner scored in the borderline to low intelligence range on tests administered in school; he graduated from high school; he functioned as high as an eighth grade level in math; he could “.talk, carry on conversation and print”; he had IQ scores ranging from 70 (which barely even qualifies him to be considered mentally retarded) to as high as 79; his latest test showed an IQ of 76; he made mostly A’s and B’s in school, including both educably mentally handicapped classes and regular classes; his developmental age on the Bender Visual Motor Gestalt Test was within average limits; Dr. Logan found he presently functioned in the borderline range of intelligence; he showed signs of marked improvement in literacy and math when taught by Ms. Brannon; there was no written documentation that Appellant was determined to be mentally retarded in school; his class rank was listed on his high school transcript as 125 out of 328; he could fill out medical services forms and write letters; some of his letters used advanced words and language; the trial judge found Petitioner had the ability to articulate numerous arcane and complicated ideas, memories, and feelings; Petitioner began using PCP and smok*624ing marijuana at an early age; he continued abusing drugs while in prison; substance abuse can affect IQ tests; some witnesses testified that. Petitioner could communicate normally; Petitioner was able' to plan out detailed lies; one witness spoke with Petitioner and found him to be intelligent; he dressed neatly; Petitioner refused to take standardized adaptive functioning tests; and Petitioner’s testing was influence by a poor home environment with drugs and violence.
¶ 14 Today’s opinion concedes these evi-dentiary points, before explaining them away. But there was additional evidence. Petitioner had a 2.7 GPA in school. Prison officials commended him for hard work and dedication in completing assigned tasks. He was able to communicate his medical needs and symptoms to doctors. He wrote letters with legal terms like habeas corpus, notarization, motions, continuances, pro se, ineffectiveness, unprofessional conduct,- and record. He had average visual motor integration and neat handwriting. A former sheriff and community-sentencing employee (with a mentally retarded sister) interviewed Petitioner and formed the opinion that he was not mentally retarded. Petitioner was employed and drove an automobile. He could adjust his lies when given additional facts. He had good memory and could carry on a good conversation. One expert testified, based upon Petitioner’s 1976 I.Q. test, that there is a 95% chance that Petitioner’s I.Q falls between 73 and 85, which is in the borderline intelligence range.
¶ 15 Of course, there was also a lot of evidence introduced by Petitioner to show he is mentally retarded, some of which could be countered with the type of justifications presented in today’s opinion. But the point is this: Petitioner’s case is a close call under the facts and evidence, and there is evidence supporting either point of view. That is why we have juries, to listen to the evidence, review the facts, and reach what is often a very difficult decision.
¶ 16 Twelve rational jurors reviewed the evidence in this case and did in fact reach the conclusion that Petitioner is not mentally retarded. Unless we can say no rational juror could have possibly reached that decision upon viewing the evidence in a light most favorable to the State, we have a legal duty to affirm. And here, there was ample evidence to support the jury’s verdict. Indeed, Petitioner’s I.Q. scores, only one of which put him in the mild mentally retarded range, were alone sufficient to support the jury’s verdict.
¶ 17 In essence, today’s ruling takes the position that the opinion of three judges reviewing a cold record on the issue of mental retardation is “rational,” while simultaneously finding the unanimous opinion of twelve qualified jurors who viewed the evidence first hand was irrational. We need not look far to understand that something is terribly wrong with that idea, for Article 2, Section 19 of Oklahoma’s Constitution states that “[t]he right of trial by jury shall be and remain inviolate_” And according to our well-established case law, the jury is the exclusive judge of the weight and credibility of the evidence. See Smith v. State, 1996 OK CR 50, ¶ 23, 932 P.2d 521, 530; Robedeaux v. State, 1993 OK CR 57, ¶ 43, 866 P.2d 417, 429.
¶ 18 I agree that the instructional errors that occurred in this case necessitate relief. But that relief is to reverse this case and remand it for a new trial, not decide the fact question as a matter of law.
¶ 19 The crucial point is this: the evidence of mental retardation was sharply conflicting. As such, the jury’s decision must stand. This Court has no business substituting what “we would do” for what twelve competent jurors did. As we said in Martinez v. State, 1999 OK CR 33, ¶ 36, 984 P.2d 813, 824:
... a fundamental premise of our criminal trial system is that “the jury is the lie detector.” Determining the weight and credibility of witness testimony, therefore, has long been held to be the “part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.”
984 P.2d at 824 (internal citations omitted).
¶ 20 What is occurring in this case is reminiscent of Alexander Hamilton’s admonition in The Federalist, No. 78, when he wrote, “It *625can be of no weight to say, that the Courts on the pretense of a repugnancy, may substitute their own pleasure to the Constitutional intentions of the legislature”, or in this case the duly valid verdict of a jury of Oklahoma citizens.
¶21 According to Myers, “We will not disturb the jury verdict where there is any competent evidence reasonably tending to support it.” 2005 OK CR 22, ¶ 7, 130 P.3d 262, 2005 WL 3334712. If. only that were true.
. See Pickens v. Gibson, 206 F.3d 988, 997 (10th Cir.2000).
. That decision included two members who today find Petitioner is mentally retarded.
. In that videotaped confession, Petitioner confessed to the crimes in this case.
. According to Webster's dictionary, a "rational trier of fact” would mean a juror who has the ability to reason. I see nothing in the record to indicate the jurors in question here were even more mentally retarded than Appellant claims to be. ,
. This isn't rocket science. The standard of review is identical to that used by this court for years when reviewing the sufficiency of the evidence, the standard adopted by the U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And it doesn't become confused by the fact that the defendant rather than the State had the original burden of proof on the issue in question. Indeed, the fact that the burden of proof is switched from the State to a criminal defendant actually renders Appellant's claims even less compelling.
.I do not doubt my colleagues are sincere when they take the position that Pickens is mentally retarded. The evidence on this point was unquestionably conflicting, and reasonable persons could disagree on that point. The question, however, is whether the jury's verdict is supportable under the law and facts. Here it clearly is.