INCLUSION DAILY EXPRESS -- Mental Retardation and the Death Penalty

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MENTAL RETARDATION AND THE DEATH PENALTY: STATE BY STATE

Arizona:
Judges Would Determine Mental Retardation Under Proposed Death Penalty Bill (March 9, 2001)
Arkansas:
Death Sentence To Be Overturned (September 15, 2000)
Florida:
See Jerry Frank Townsend
Illinois:
State Says It Convicted The Wrong Serial Killer (February 10, 2000)
Louisiana:
DNA Testing Frees Death Row Inmate (January 3, 2001)
Missouri:
See Antonio Richardson
Nevada:
European Union Asks Governor To Spare Convict's Life (March 28, 2001)
North Carolina:
See Ernest P McCarver
Oklahoma:
Two Scheduled To Die Despite Diagnoses (January 2, 2001)
Condemned Man Spared By "Missing" Evidence (January 5, 2001)
Tennessee:
State's High Court Says Executions Are Unconstitutional (December 6, 2001)
Texas:
See John Paul Penry
Virginia:
See Earl Washington Jr
See Daryl Atkins

Background:
Mental Retardation And the Death Penalty In the USA
By Dave Reynolds (published in the July 2001 Ragged Edge Magazine)

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Judges Would Determine Mental Retardation Under Proposed Death Penalty Bill
By Dave Reynolds, Inclusion Daily Express
March 9, 2001
PHOENIX, ARIZONA--A bill banning the death penalty for people with mental retardation is being considered by the Arizona Senate.

According to Thursday's Arizona Republic, Senate Bill 1551 would set general guidelines for a judge to determined whether or not a defendant had mental retardation prior to going to trial. If the judge decided the person did have mental retardation, capital punishment would be removed as an option.

The measure would not set a precise standard such as an IQ of 70 or below which is considered by many experts to indicate mental retardation. The bill would have the judge make the call.

Luis Mata was the last person known to have mental retardation to be executed in Arizona. Mata and his brother Alonzo were been convicted of brutally killing a woman named Debra Lopez in 1977. Luis was executed for the crime in August of 1996. His brother received a sentence of life in prison.

Before Mata was executed the man who prosecuted him learned that Mata had scored between 68 and 70 on IQ tests. Michael Donovan said that no information about his disability was brought up prior to sentencing.

"None of this critical information was presented at Luis Mata's sentencing hearing," said Donovan last month. "Quite frankly, . . . Had I known this information, I would not have requested or pursued a death sentence."

Death Sentence To Be Overturned
By Dave Reynolds, Inclusion Daily Express
September 15, 2000
LITTLE ROCK, ARKANSAS--The Arkansas Supreme Court ruled yesterday that a convicted killer's death sentence must be overturned and new sentencing hearing given because the man's attorney simply did not do his job.

The state's highest court said William Howard was not looking out for Damond Sanford's best interest during the sentencing phase of his capital murder, rape, burglary and theft trial.

Sanford, who was 17 at the time of his conviction, had confessed to the January 1995 murder of Minnie Ward. But during sentencing, Howard failed to investigate and argue prosecutors' portrayal of Sanford as evil and cold-blooded.

After questioning Howard, the court determined that the defense attorney made no effort to obtain Sanford's school records -- which indicated he had scored 67 on one IQ test and 75 on another. In most areas, an IQ below 70 classifies a person as having mental retardation.

Howard also failed to present to the jury medical records that showed Sanford nearly suffocated to death as a child when a load of cotton seed fell on him, and that later his sister struck him in the head with a two-by-four post.

According to today's Arkansas Democrat-Gazette, the Supreme Court's unanimous decision was based also on Howard's testimony that he was 'quite disappointed' in the jury's guilty verdicts and that 'he was tired'.

DNA Testing Frees Death Row Inmate
By Dave Reynolds, Inclusion Daily Express
January 3, 2001
ANGOLA, LOUISIANA--For the first time in nearly 14 years, Albert Burrell walked out of the Louisiana State Penitentiary yesterday -- a free man -- after DNA testing cleared him of the crimes for which he was sent to death row.

Burrell, who is considered to have mental retardation, and his alleged accomplice, Michael Graham Jr., were convicted and sentenced to die for the 1987 murders of William and Callie Frost. Both men have consistently maintained that they were not guilty of the crimes.

Burrell came within 17 days of a scheduled execution in 1996, before his attorneys won a stay of execution.

On Tuesday, District Judge Cynthia Woodard ordered Burrell released after DNA testing determined that blood found at the murder site, long believed to belong to Burrell and Graham, in fact did not match that of either man. Graham was released last Thursday.

"We have no physical evidence in this case and that has been the problem from the start," said Pam Laborde, a spokesperson with the state's attorney general office. Woodard agreed with the attorney general that Burrell's and Graham's trials had "a number of irregularities".

This is not the first time DNA evidence has spared a person with mental retardation from the death penalty. Last October, DNA tests cleared a Virginia death row inmate of raping and murdering a woman in 1982. Defense attorneys believe Earl Washington Jr., 40, who reportedly has an IQ of 69, had been pressured by police to confess to committing the crimes. Washington had been convicted even though his confession had a number of inconsistencies. For example, he said he had acted alone, even though the victim's children testified they had witnessed the crime and that two men were involved. He also incorrectly identified the woman's race.

Washington's case has caused Virginia lawmakers to review the fairness of its death penalty laws. Illinois Governor Ryan last year issued a moratorium on executions in his state until a thorough examination can be done, after DNA and other evidence caused a large number of death penalty cases to be thrown out.

The execution of people with mental illness or mental retardation in the U.S. has sparked debate around the world, and some action within the states. Some disability rights advocates say that people such disabilities are often not sophisticated in defending themselves and do not thoroughly understand their rights. Since many are taught how to please others instead of how to understand and advocate for their own rights, they are more easily manipulated by accomplices and by police that want a confession. Another complicating factor is that most people with mental disabilities lack financial resources to obtain qualified, competent attorneys skilled in defending death penalty cases.

Last month, John Paul Penry, who reportedly has mental retardation, came within a few hours of being executed in Texas before the U.S. Supreme Court granted him a stay in order for the court to examine his case. A decision is expected in the summer.

European Union Asks Governor To Spare Convict's Life
By Dave Reynolds, Inclusion Daily Express
March 28, 2001
CARSON CITY, NEVADA--In a statement released yesterday by the Swedish Embassy in Washington, DC, the head of the European Union asked Nevada Governor Kenny Guinn and the state's Board of Pardons to spare the life of a death row inmate because he has mental retardation.

Thomas Nevius was convicted of shooting to death a Las Vegas resident during a home burglary in July 1980. He was sentenced to be executed for the crime.

Three witnesses, including Nevius' brother David, testified that he was the ring-leader of the group and that he pulled the trigger.

David walked away with probation and the other two are serving life sentences.

Michael Pescetta, who has been the public defender for Nevius since 1996, says records show that Thomas Nevius has scored between 57 and 68 on IQ tests. Pescetta also claims that the jury which convicted Nevius were not given this information, and that six of the jurors now say they would not have agreed to the death penalty if they had been provided that information.

All of Nevius' appeals have been exhausted or denied, including an appeal earlier this month to the U.S. Supreme Court.

Guinn has scheduled a clemency hearing with the Board of Pardons for April 11.

The statement from the EU, currently headed by Sweden, asks that the sentence be commuted to life in prison, noting that "the execution of mentally retarded persons conflicts with the minimum standards for human rights set forth in several resolutions by the United Nations."

Two Scheduled To Die Despite Diagnoses
By Dave Reynolds, Inclusion Daily Express
January 2, 2001
OKLAHOMA CITY, OKLAHOMA--If all goes as scheduled over the next nine days, two convicted murderers thought to have mental retardation will be executed in Oklahoma. One would become the first woman in the state's history to face the death penalty. She would also become the first African-American woman in the United States to be executed since capital punishment was reinstated in 1976.

Robert William "Eagle" Clayton, 39, is scheduled to die Thursday, January 4. Clayton confessed on two separate occasions to murdering a Tulsa woman in 1985. He later withdrew both confessions and now says he is innocent. His first confession was thrown out by a court which decided Clayton did not understand his rights. The second confession was used to convict him of the crime.

Clayton's defense attorneys say he has mental retardation and scored 68 on IQ tests. Most experts consider an IQ score below 70 to suggest mental retardation. During a hearing after Clayton's conviction, however, an appeals court found him to be competent and upheld his death sentence.

Wanda Jean Allen, 41, is scheduled to die by lethal injection a week later, on January 11. She was convicted of shooting to death her former lover in front of a police station in 1988. Allen claimed she killed the woman in self-defense. Before the murder, Allen had served four years in prison for manslaughter in the shooting death of another woman.

Allen's supporters say she has had mental retardation ever since she was hit by a truck at age 12, and was stabbed in the head as a teenager. They also claim Allen is being targeted because she is a lesbian. Her defense attorney, who had never handled a death penalty case, has said he defended her for $800 dollars because that was all Allen's family could afford.

Both Clayton and Allen have been denied clemency.

Condemned Man Spared By "Missing" Evidence
By Dave Reynolds, Inclusion Daily Express
January 5, 2001

TULSA, OKLAHOMA--For reasons not yet explained by officials, evidence from a 1985 murder showed up mysteriously late Wednesday, less than 24 hours before the man convicted of the crime was scheduled to die. The items -- a bloody sock, a pair of overalls, and a pocket knife -- were discovered in a evidence locker. They had been missing for the last four years.

In light of the discovery, Lt. Gov. Mary Fallin granted a 30-day reprieve to Robert William Clayton, 39, who was to be executed on Thursday, in order for the evidence to be examined and tested by DNA experts. It was the first stay of execution granted in Oklahoma over the last ten years.

Clayton, who reportedly has mental retardation and scored 68 on IQ tests, was convicted in the stabbing death Rhonda Kay Timmons, 19, at the Tulsa apartment complex where he was a groundskeeper. During the 1987 trial, prosecutors alleged that Clayton's sock and overalls contained traces of Timmons' blood. The overalls had been washed, but blood found on the sock had the same blood-type as Timmons. Experts were unable to determine whether the blood on the knife was from a human or an animal.

When a 1996 state law allowed evidence to be tested using DNA technology, none of the items could be found. Why the evidence turned up on Wednesday is unclear. Clayton's defenders believe DNA testing of the sock and knife will clear the man who has been on death row for 14 years. Fallin's order for the stay of execution will allow the testing to begin immediately.

Investigators in the case say Clayton confessed to "flipping out" and killing Timmons. Clayton denies that he gave any such confession.

The discovery brings into further question how states handle death penalty cases, particularly those involving defendants believed to have mental retardation. Clayton's reprieve came the day after Albert Burrell, a death row inmate who scored 68 on IQ tests, was released from Louisiana State Penitentiary. Burrell was cleared of the 1987 murder of an elderly couple, when DNA tests found that blood found at the crime scene did not belong to Burrell or his alleged accomplice. Last October, DNA tests cleared a Virginia death row inmate Earl Washington Jr, 40, of raping and murdering a woman in 1982. Defense attorneys believe Earl Washington, who reportedly has an IQ of 69, had been pressured by police to confess to committing the crimes.

Advocates for people with disabilities point out that people with mental retardation are at a disadvantage because, among other things, they may not understand their rights, confessions are easily forced from them, and they have poor legal representation. Before the decision Oklahoma was scheduled to execute eight people this month, which would have matched a monthly record for executions set recently in Texas. Still scheduled to die by lethal injection on January 11 is Wanda Jean Allen, who reportedly has an IQ of 69, considered by many to be in the mild range of mental retardation.

State's High Court Says Executions Are Unconstitutional
December 6, 2001

NASHVILLE, TENNESSEE -- Tennessee's Supreme Court ruled on Tuesday that executing people determined to have mental retardation violates state and federal law because of "the evolving standards of decency that mark the progress of a maturing society both nationally and in the state."

The case in question centers around Heck Van Tran, 35, a Vietnamese refugee who was sentenced to death for killing three people during a 1987 Memphis restaurant robbery.

According to Tennessee law, a person cannot be put to death if they have an IQ of 70 or below, and if the person appeared to have mental retardation before age 18. Tran's defenders say he scored 65 on an IQ test in 1999 and 67 in a more recent test.

The high court sent the case back to a lower court to decide whether Van Tran demonstrated signs of mental retardation before he turned 18.

The ruling may be a preview to an upcoming decision by the U.S. Supreme Court. Later this term, the court is expected to determine whether or not the death penalty for people with mental retardation violates the Eighth Amendment's protections against "cruel and unusual punishment".

In 1989, the U.S. Supreme Court narrowly ruled that such executions did not violate the Constitution.

"There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment," wrote Justice Sandra J. O'Connor in that decsion

More details on the Tennessee case are available from the Nashville Tennessean on-line:
http://www.tennessean.com/local/archives/01/11/11082776.shtml

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