Publication: THE DALLAS MORNING NEWS PubDate: 9/8/2002 Head: Death-row Decisions Executing the mentally retarded must

cease, the U.S. Supreme Court says. Now comes the tricky part. Byline: ED TIMMS Credit: Staff Writer Section: SUNDAY READER Edition: SECOND Page Number: 1J Word Count: 1755 The nations highest court says that executing the mentally retarded is no longer acceptable. But who fits that description? Who makes the determination? And when? At the time of the decision, 20 states allowed the execution of mentally retarded inmates. Developing appropriate ways to ensure that mentally retarded inmates are not executed was left up to individual states. In Texas, which has the most active death row in the nation, defense attorneys and prosecutors are wrestling with those questions. Texas lawmakers are expected to weigh in when the Legislature convenes in January.Because of the U.S. Supreme Courts decision, Atkins v. Virginia, a significant number of Texas executions may be delayed - and some inmates no longer will face death. As the justices considered the case, and since the decision was handed down in June, five Texas death-row inmates who made claims that they are mentally retarded have received stays of execution or have been ordered new sentencing hearings. Some Texas prosecutors may hesitate to try defendants who can make a mental retardation claim until legislators craft laws that define who should be exempted from execution. But waiting too long to do so could lead to legal complications because of defendants rights to a speedy trial. Everyone is anticipating that when the Legislature starts up that this is going to be addressed, said Roe Wilson, chief of post-conviction writs for the Harris County district attorneys office. But I think right now, people are still trying to figure out the best way to do it. And we dont really have a consensus

yet. First option One option is to call upon the same jury that has rendered a guilty verdict in the innocence-guilt phase of a trial to decide whether a defendant is mentally retarded before assessing punishment. This year, an East Texas judge asked a jury to consider evidence that capital murder defendant Johnny Paul Penry is mentally retarded. The jury, which only considered what Mr. Penrys sentence should be, rejected his claim and sentenced him to death for the rape and murder of Pamela Moseley Carpenter in her Livingston home. It was the third time Mr. Penry has been sentenced to death for the 1979 crime. In 1989, the Supreme Court had ruled in his case that mental retardation should be considered as a mitigating factor during the punishment phase of a capital trial. Another jury later sentenced him to death again, but that sentence was overturned by a Supreme Court decision in 2001; the justices concluded that the jurys instructions did not comply with their earlier ruling. Ms. Wilson predicted that until a statute that specifically responds to the Atkins decision is developed, judges may deal with claims of mental retardation by capital defendants case-by-case perhaps, as was done in the Penry case, by submitting a "special issue, " or question of fact, to the jury for a decision. But some legal experts question whether it is appropriate to allow jurors who have already heard about the gory details of a crime to then decide, after finding defendants guilty, whether they are mentally retarded. ... It invites jury nullification, said University of Texas at Austin law professor Jordan Steiker. It invites the jurors to shade their views about mental retardation with their attitudes about the crime. Keith Hampton, legislative chairman for the Texas Criminal Defense Lawyers Association, suggested that some prosecutors dont want to raise the issue of whether a defendant is mentally retarded until the punishment phase so they can still have a shot at getting the death penalty for somebody who is mentally retarded. Mr. Hampton said that death-qualified jurors - those who have

indicated that they are willing to hand down a death sentence according to the law - may be less inclined to focus solely on the question of whether a defendant is mentally retarded, especially after theyve been exposed to the facts of the case and all of the emotional baggage that carries with it. Mr. Steiker also offered a financial reason for not deciding the mental retardation issue after the guilt-innocence phase of a trial. Its crazy to go through a capital trial if the person isnt eligible for the death penalty, he said. Second option Another option is to decide whether a capital murder defendant is mentally retarded at a pre-trial hearing before the trial judge. I dont know that the Legislature needs to do anything, Mr. Hampton said. Texas has a well-established provision in the Code of Criminal Procedure for pretrial hearings. A lawyer is going to want to raise the issue prior to trial, and should, to preclude the death penalty if he thinks his client is mentally retarded. One concern about this approach, however, is that the Supreme Court may frown on not having a jury decide an issue that has an impact on punishment. In another death penalty case decided by the Supreme Court recently, Ring v. Arizona, the justices concluded that juries, not judges, should rule on the facts that lead to a death sentence. Some legal authorities favor resolving the quandary by having a procedure similar to competency hearings, which are routinely conducted in Texas, to determine whether defendants are mentally retarded and ineligible for the death penalty. Third option If a judge feels that there is evidence to support a finding of incompetency to stand trial, according to state law, a jury is impaneled to make the final determination. Similarly, a jury different from the one that would decide the defendants innocence or guilt could be convened to decide whether a defendant should not face the death penalty because of mental retardation.

Conceivably, a defendant could be found competent to stand trial that is, able to rationally consult with an attorney and understand the proceedings - but also found to be mentally retarded and not eligible for a death sentence. Critics of this approach argue that it would be costly and time-consuming, especially since a defendants mental capacity likely would resurface as an issue during the punishment phase of a trial as a mitigating factor. Diane Beckham, senior staff counsel for the Texas District and County Attorneys Association, said it may be advisable to have a state statute spelling out how mental retardation claims in a death penalty case should be handled, whichever approach is used. That way, she said, there would be uniformity statewide in how the issue is addressed, perhaps avoiding a situation where some counties would be in compliance with the Atkins decision, but others would not. The definition Agreeing on a legal definition of mental retardation and working out what kind of evidence might be appropriate to make a determination are additional challenges for the legal community. Mental health definitions of mental retardation differ to a degree. However, experts have generally characterized mental retardation as sub-average intellectual functioning that becomes apparent before the age of 18 that seriously impairs an individuals ability to cope with daily activities. One benchmark is an IQ of 70 or below. According to Texas Department of Criminal Justice records, at least 18 death-row inmates tested at 70 or below on IQ tests administered when they were incarcerated for previous convictions. The Texas Court of Criminal Appeals in July stopped the execution of Jose Briseo, sentenced to death for killing Dimmit County Sheriff Ben Murray in 1991, after his attorney uncovered prison records from previous convictions showing that his client had an IQ of 67. Claims that he is mentally retarded were not raised at trial. TDCJ typically tests inmates to determine where they should be housed and to assess their educational needs and aptitude. Tests are not administered to inmates entering the prison system with death sentences: Their housing arrangements are predetermined, and

they are not eligible for educational programs. As the Briseo case demonstrates, however, IQ tests administered by state employees to death-row inmates whove served time for lesser offenses may resurface. I do think there will be a lot of effort to go back over the records of people who have been sentenced to death, school records and prison records and any other kinds of institutional records, said Mr. Steiker, the UT law professor. I think it will be a very common phenomenon. Ms. Beckham, the senior staff counsel for the Texas District and County Attorneys Association, noted that the IQ test is only one of the criteria used to measure mental retardation. Thats not a gotcha in our minds, " she said. Youve got to look at more than the IQ test. Such tests are likely to be challenged. Many mental health experts have questioned the validity of IQ tests as a measure of intelligence. And scores may vary. One Texas death row inmate, for example, has scored 67 on one test, and as high as 111. There can be all kinds of reasons you might get a 65 on an IQ test, including that you deliberately dumbed down for the test, said Ms. Wilson of Harris County. Some of these people ... have held jobs, theyve had families. Now they might not have been model citizens and they might not have been the sharpest knife in the drawer, but I dont think that fits the definition of mental retardation. Ms. Wilson said that she expects that a procedure will be developed to handle new cases in which mental retardation is an issue, but that does not necessarily address what happens to individuals already on death row who have no prior IQ scores - or, perhaps, a score that is slightly above the 70 benchmark. I would imagine that giving them an IQ test at this time would be very unreliable, she said. Mr. Steiker counters that there are very few people who dont have some kind of standardized tests in their social history and that theres little to suggest that, post-Atkins, death row inmates suddenly will be taking IQ tests to determine whether they are mentally retarded.

That has not been the case, he said, in states that had already exempted the mentally retarded from execution before the decision. In a dissent to the Atkins decision, Justice Antonin Scalia expressed a reluctance to exempt the mildly mentally retarded from the death penalty. Assuming ... that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture killing is no more culpable' than the average murderer in a holdup-gone-wrong or a domestic dispute? he wrote. E-mail etimms@dallasnews.com