[Newspoetry] execution

[Mike Lehman]

Brian,
Full story follows your inquiry.
Comrade Mike

Brian Hagy wrote:
> 
> hey, does anybody know any information, or have a moment to research for
> me, about this execution scheduled to happen tonight in Texas.  The person
> being executed (i don't remember his name, i've only heard brief details,
> and want to know more) is mentally retarded, which according to federal
> law i thought it's illegal to execute mentally retarded people (the quote
> i've been hearing from the state of texas is that if "someone doesn't know
> what they're doing, then they're even more dangerous"....is this quote
> being said?).
> 
> i want to know more about this situation, but don't have the time to
> research it right now, since i'm in the process of moving, and working
> with these "dangerous" people.


New York Times

August 7, 2000

Executing the Mentally Retarded Even as Laws Begin
to Shift

By RAYMOND BONNER and SARA RIMER

     IVINGSTON, Tex., Aug. 2 -- Oliver Cruz can barely read and write.
He has an I.Q. of either 64 or 76,
     depending on the test. He flunked the seventh grade three times. He
was rejected by the Army after
     failing the entry exam three times, and unable to decipher a job
application, he did the menial work that
came his way, cutting grass, cleaning houses and taking tickets for a
traveling carnival. 

Now, at 33, he has spent 12 years on death row in Livingston for the
rape and murder of a 24-year-old
woman, Kelly Donovan, who was stationed at the Air Force base in Mr.
Cruz's hometown, San Antonio. Mr.
Cruz, who in an interview this week took full responsibility for his
crime and expressed anguished remorse, is
scheduled to die by lethal injection on Wednesday at 6 p.m. 

A defense psychologist testified at trial that tests, as well as a
review of school records, showed Mr. Cruz to
be mentally retarded. The state did not dispute this. Indeed, the
prosecutor argued that the fact that Mr. Cruz
"may not be very smart" made him "more dangerous," and so was a reason
to sentence him to death. 

Mr. Cruz awaits execution at a time when there is growing opposition
across the country to the execution of
the mentally retarded. Federal law, approved by President Ronald Reagan,
bars the execution of the mentally
retarded convicted in federal courts. Of the 38 states that permit
capital punishment, 13 have laws that
prohibit the execution of someone who is mentally retarded; in New York
that legislation was signed into law
by Gov. George E. Pataki. 

In Florida, Gov. Jeb Bush, who like his brother George is a strong
supporter of the death penalty, told
reporters in April that "people with clear mental retardation should not
be executed," and a spokesman said
last week that Jeb Bush still held that position. The chairman of the
state's Republican Party has recently
pledged to support legislation that would ban the execution of the
mentally retarded in Florida. 

Here in Texas, Gov. George W. Bush has opposed laws that would prohibit
the execution of the mentally
retarded. [It is a position he still holds, a spokeswoman, Linda
Edwards, said on Friday. "Governor Bush
believes that the jury should consider all the evidence regarding mental
impairment and decide whether a
death sentence is appropriate," Ms. Edwards said.] Legislation barring
the execution of a defendant whose
I.Q. is below 65 passed the Republican-dominated Texas Senate last year
but failed in the House. The bill's
sponsor, Senator Rodney Ellis, Democrat of Houston, said he was
optimistic that the bill would pass next
year. He said he would try to raise the I.Q. limit to 70, which is what
it is in several other states. 

"The national and international attention to the death penalty in Texas
has created some momentum," Mr.
Ellis said. 

Mr. Cruz's lawyer, Jeffrey Pokorak, has asked Governor Bush and the
Texas State Board of Pardons and
Paroles for a stay of execution, and he says he hopes he can postpone a
lethal injection at least until next
spring, when the legislation that might save his life will be voted on.
He wants a full evidentiary hearing on Mr.
Cruz's mental condition. Mr. Pokorak said the defense psychologist's
review of Mr. Cruz's school records
showed that they had classified him as "educable mentally retarded." 

The Bexar County district attorney, Susan D. Reed, whose office
prosecuted Mr. Cruz, said in an interview
this week that she opposed Mr. Cruz's request for clemency, primarily
because of what she called the
heinous nature of his crime. 

"Here's a woman abducted off the street, kidnapped, raped, stabbed 20
times," Ms. Reed said. She added
that Mr. Cruz had a history of violence and had once fired a shotgun at
a man. The man, Arthur Jones, who
never spoke to the police about the incident, characterized it in
testimony at Mr. Cruz's murder trial as a
minor matter. "It was done and gone with, you know," he said. 

Ms. Reed also said that the evidence about Mr. Cruz's mental retardation
was "conflicting," referring to the
two I.Q. scores. 

Experts say that a person is mentally retarded who has a significantly
subaverage intelligence, which is
generally defined as an I.Q. below 70, and who consequently has serious
difficulties coping with routine
aspects of daily life, in school and at work. The condition must have
existed since childhood. 

Mental retardation is distinct from mental illness, although the two may
exist in the same person. 

While a majority of Americans support the death penalty, state polls
show that a majority of those supporters
make an exception for the mentally retarded, even in the fiercely
pro-death penalty state of Texas. 

The American Bar Association does not have a position on the death
penalty in general but is opposed to
executing the mentally retarded, said Elisabeth Semel, director of the
organization Death Penalty
Representation Project. 

Those who oppose the execution of the mentally retarded do not argue
that they should not be held
accountable for their crimes, or severely punished. What they contend is
that the mentally retarded should
not be considered so morally culpable that they deserve the ultimate
punishment, which is supposed to be
reserved for the most culpable criminals who commit the most heinous
crimes. 

It is not known how many of the 3,600 death row inmates in the United
States are mentally retarded, but
experts say it is about 10 percent, said James Ellis, a leading expert
on mental retardation and the death
penalty, and a professor at the University of New Mexico law school. 

In the United States, 34 people who were known to be mentally retarded
have been executed since the
Supreme Court reinstated the death penalty in 1976, according to the
Death Penalty Information Center, an
organization that is opposed to the death penalty. 

One of George W. Bush's first acts as governor of Texas, in January
1995, was to reject a request for
clemency for Mario Marquez, who suffered from severe brain damage and
had an I.Q. of 60 and the skills of a
7-year-old. Mr. Marquez was executed on the evening of Mr. Bush's
inauguration for the murder of his niece. 

"I want to be God's gardener and take care of the animals," Mr. Marquez
told his lawyer, Robert McGlasson,
a few hours before being strapped on to the gurney. 

Mr. McGlasson recalled in an interview this week, "It was like talking
to a 5-year-old." 

Texas does not know how many of the 459 inmates on death row are
mentally retarded, said Larry
Fitzgerald, a spokesman for the Texas Department of Corrections. The
prison has I.Q. test scores only for
those inmates who might have been tested during an earlier
incarceration, Mr. Fitzgerald said. 

One death row inmate is Doil Lane, whose I.Q. has been tested between 62
and 70 and whose emotional
and intellectual development is that of an 8-year-old, his lawyer,
William Allison, said. 

Mr. Lane was convicted of the rape and murder of an 8-year-old girl,
with the case against him consisting
largely of his own confession, Mr. Allison said. 

Experts on mental retardation say that the mentally retarded often
confess to things they have not done, in
part because they want to please. Mr. Allison said Mr. Lane's confession
was false. "Given time," he added,
"you could get him to confess to anything." Mr. Allison noted that his
client was so childlike that after he
confessed, he climbed into the lap of a Texas Ranger to whom he had
confessed. 

At his trial, Mr. Lane requested a crayon so he could color pictures.
The judge would not let him have one. 

Mr. Lane, now 39, still longs for crayons. "I like to clore [color] in
my clorel [coloring] book but you all tuck
[took] away my clores when you can not hurt no one with a box 24 clores,
just in my book," he wrote
recently. 

It took no prodding from the police for Mr. Cruz to confess to his
crime, and Mr. Cruz's lawyer does not
dispute his guilt. But an older man, Jerry Kemplin, was with Mr. Cruz
during the rape and murder. Mr.
Kemplin, like Mr. Cruz, was initially indicted on a charge of capital
murder, but he did not confess to
anything, instead accepting a plea bargain in exchange for testimony
against Mr. Cruz. Mr. Kemplin was
sentenced to 65 years, with the possibility of parole after serving a
quarter of his term. 

"The smart guy who doesn't confess, who knows better than to give
evidence against himself, gets the deal,"
said Mr. Pokorak, Mr. Cruz's lawyer. "But the guy who is retarded, who
doesn't understand all the words of
his Miranda warning, he gets death." 

In the highly publicized case of Ricky Ray Rector, the Arkansas inmate
executed while Bill Clinton was
governor but running for president, Mr. Rector's lawyers argued that he
was so mentally impaired that he did
not even know he was about to be executed. But Mr. Rector's condition
was not considered mental
retardation because it did not reach back to his childhood. It was
caused when he shot away part of his brain
at the time of his arrest. 

The test for whether a defendant is mentally retarded is not the same
test used to determine whether a
defendant is insane and therefore not guilty by reason of insanity. That
requires a defendant to show that he
did not know right from wrong. A person who is able to make this ethical
judgment may still be deemed
mentally retarded, depending on I.Q. 

Mr. Pokorak is not arguing that Mr. Cruz should not have been convicted
by reason of insanity but that he
should not be executed because he is mentally retarded. 

One reason for the lack of precise data about the number of mentally
retarded inmates on death row is that
the mentally retarded themselves struggle to hide their disability, even
though in many cases it is the one
thing that might save them from execution. 

"They would rather pass as normal than stand up and say I have a
disability," said Timothy Derning, a
psychologist in Lafayette, Calif., who has testified as an expert
witness for defendants in many capital
murder trials. "They have been called 'stupid' and 'retards' their whole
life, so who wants to say they are
mentally retarded?" 

Interviewed in a holding cell on death row this week, Mr. Cruz's
expression was pained as he answered
questions about his lawyer's efforts to emphasize his mental retardation
to spare him from execution. 

"It hurts to be in that category, that I'm retarded or stupid," Mr. Cruz
said. 

But he also recalled his frustration with school, which he said had led
to his dropping out at age 16. "I was
slow in reading, slow in learning," he said. "Maybe I was a loser. The
teacher would say, 'Read this chapter.'
I couldn't read." 

He volunteered that he had made progress on death row. "Now, I can write
a letter," he said, "a half a page." 

Mr. Cruz did not appear to know what it meant to be mentally retarded.
"I'm not retarded," he said. "I'm not
the kind of person who is going to go out and hurt people for the fun of
it." 

He attributed his crime to his being drunk and on LSD. But he also said,
"I'm not going to use this as an
excuse for what happened." 

"I know I was wrong," he said. "I feel real bad about it. There's
nothing I can do to change it, bring that person
back. I want to make things right." His eyes filling with tears, he said
that half of him had died that night
along with the woman he killed. 

"Keep me locked up," he added. "But don't kill me. I know I could help
people." 

Toward the end of the interview, Mr. Cruz put his head in his hands and
wept. 

Talking in her office in San Antonio, Ms. Reed, the district attorney,
raised doubts about Mr. Cruz's mental
retardation but said, "I'm not going to say that he is or he is not." 

She said the jury had heard the evidence about his mental retardation
and had reached its verdict, and that
she supported the jury's judgment. Mr. Pokorak said that the jury had
not been properly instructed to
consider evidence of mental retardation, as required by Supreme Court
rulings. The United States Court of
Appeals for the Fifth Circuit, in New Orleans, ruled recently that while
the instruction had not been given, it
was not a fatal constitutional error. [Mr. Cruz filed an appeal on
Friday with the Supreme Court.] 

On the general issue of whether the mentally retarded should be
executed, Ms. Reed said, "I'm not willing to
make a broad statement for or against it." 

Most people charged with capital murder are poor, and so are represented
by appointed lawyers. Many of
these lawyers are inexperienced, even incompetent, and often fail during
the mitigation phase of the trial to
present the evidence of mental retardation that could persuade the jury
to spare their client's life. 

In Arizona, Ramon Martinez-Villareal is on death row after being
convicted of murdering two people. He has
an I.Q. of 50 and also suffers from brain damage, schizophrenia and
dementia, according to evidence
presented by his lawyers in various appeals. During the trial, Mr.
Martinez-Villareal's lawyer did not mention
his client's mental retardation. Mr. Martinez-Villareal, meanwhile, was
not able to tell the difference between
the spectators and the jury, his trial lawyer testified at a later
hearing. 

Since the evidence of Mr. Martinez-Villareal's mental retardation has
emerged, brought out by his
post-conviction lawyers, the trial judge and the prosecutor have said
that Mr. Martinez-Villareal should not be
executed. Nevertheless, he remains on death row. 

In a landmark case involving a Texas death row inmate, Johnny Paul
Penry, the Supreme Court ruled, in
1998, that executing someone who was mentally retarded was not "cruel
and unusual punishment," in
violation of the Eighth Amendment. 

The court, however, reversed the conviction of Mr. Penry for rape and
murder because the jury had not been
instructed during the mitigation phase of the trial that it could take
into account his mental condition in
deciding whether to give him the death penalty. 

Mr. Penry, who suffered brain damage at birth, has an I.Q. of about 60
and the mental ability of a 7-year-old.
He is still on death row. His lawyers are preparing to return to the
Supreme Court. Now, they may win the
argument that executing the mentally retarded is unconstitutional, death
penalty lawyers and constitutional
scholars say. 

Writing for the majority in the Penry case in 1989, Justice Sandra Day
O'Connor said that a "national
consensus" had not developed against executing the mentally retarded. At
the time, only Georgia and
Maryland prohibited doing so. 

Since then, 11 states -- Arkansas, Colorado, Indiana, Kansas, Kentucky,
Nebraska, New Mexico, New York,
South Dakota, Tennessee and Washington -- have enacted laws that
prohibit these executions. Five other
states -- Illinois, Missouri, Arizona, Florida and Texas -- came close
to passing laws during their most recent
legislative sessions. 

The Supreme Court has not said how many states would constitute a
"national consensus."