Hamm v. Smith · ¶32

The Court's review is further complicated by the fact that the issue of how to consider multiple IQ scores was neither meaningfully raised nor passed upon below. In the District Court, Alabama never argued that the court must, as a matter of law, combine all IQ scores using any particular method (or set of methods) to assess whether an Atkins claimant has proven significantly subaverage intellectual functioning. See Respondent's Post-Hearing Brief, ECF Doc. 129, pp. 36– 46. Nor did Alabama argue that the District Court must base its finding of intellectual functioning solely on Smith's IQ scores, without considering evidence of Smith's academic performance and adaptive functioning as well. See id., at 36 (arguing that Smith's school records show he does not meet the intellectual-functioning prong, rather than asking the District Court to ignore those records). Instead, Alabama urged the…

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