June 05, 2020 Success Stories

Abelardo Arboleda Ortiz

Represented by Amy Gershenfeld Donnella, Supported by Concerned Experts in Intellectual Disability, assisted by Steven M. Schneebaum P.C.

On January 17, 2017, President Barack Obama commuted Abelardo Arboleda Ortiz’s federal death sentence to life without parole. While President Obama did not announce a reason for granting clemency, Abelardo’s petition centered on a claim of intellectual disability. Amy Gershenfeld Donnella, a senior attorney with the Federal Capital Habeas Project, represented Abelardo and reached out to the Project for assistance during his appeals to help educate the courts about the inherent unreliability of unscientific methods for assessing intellectual disability.

Abelardo, a citizen of Colombia, was convicted in 2000 of capital murder under the Federal Death Penalty Act, along with three codefendants who were all involved in a drug trafficking ring. The four men were accused of shooting and killing a man named Julian Colon, who was a close acquaintance of the leader of the drug ring, Edwin Hinestroza.  Mr. Hinestroza believed that Mr. Colon had robbed him of $240,000 in cash and enlisted Abelardo and two other men to help him retrieve it. Together they located Mr. Colon and his nephew, who was also suspected of involvement in the robbery, and took them to a house where Mr. Hinestroza ordered one of his associates to shoot Mr. Colon. The jury found that Abelardo was not in the room where the shooting took place, did not order the shooting, and did not participate in binding the victim. In addition, evidence of Abelardo’s involvement in the drug trade was minimal and the Government stipulated Abelardo had no prior criminal record. Nevertheless, Abelardo and the shooter, who has since died in prison, were both sentenced to death. Mr. Hinestroza and the other codefendant were sentenced to life in prison.

During post-conviction proceedings, evidence emerged that Abelardo was likely intellectually disabled and thus ineligible for execution. In support of this claim, he pointed to IQ scores ranging from 44 to 70 and the fact that he could not read or write in either Spanish or English. An expert for the Government contended, however, that these test scores were inaccurate because only a test normed exclusively on uneducated Colombians could provide his “true” IQ score. Under the guise of cultural sensitivity, she testified that she viewed Abelardo’s deficits as stemming from his lack of opportunity to learn, rather than deficits indicative of intellectual disability. She attributed his seeming adaptive failures as an adult to the “cultural” conduct of Colombians, testifying as an example that Colombians have a tendency to hide money in mattresses, rather than use banks. In light of this testimony, the district court found that Abelardo did not meet the criteria for intellectual disability and denied his claim.

The U.S. Court of Appeals for the Eighth Circuit refused to intervene and set aside the district court’s judgment, so Abelardo’s attorneys sought review from the U.S. Supreme Court. In support of Abelardo’s petition for a writ of certiorari, the Project recruited Steven M. Schneebaum P.C. as pro bono counsel to write an amicus brief on behalf of Concerned Experts in Intellectual Disability. That brief discussed the inherent problems with inflating IQ scores based on cultural stereotypes, and it affirmed the validity of the prior testing that showed Abelardo to be intellectually disabled. In response to the arguments made on Abelardo’s behalf, the U.S. Department of Justice hired an expert to evaluate the intellectual disability claim. After reviewing the record and additional evidence, the expert concluded that Abelardo did in fact meet the criteria for intellectual disability and was therefore legally exempt from the death penalty. In a brief to the U.S. Supreme Court, the DOJ then recommended that Abelardo’s sentence be commuted to life in prison without parole. Shortly after this recommendation was filed with the Court, President Obama granted clemency.