The Focus this week, is mental retardation and the death penalty following the exhaustive report of Human Rights Watch,  BEYOND REASON: The Death Penalty and Offenders with Mental Retardation
http://www.hrw.org/reports/2001/ustat/.

Due to changes in web protocols the current delivery method (and indeed the method that has been used for the past three years) is now being blocked due to the current crack down on unsolicited net advertising, a/k/a spam. While all options are being explored and "tech support" promising to have had the problem fixed this weekend, Recent editions are available at 

http://www.capitaldefenseweekly.com/archives/010312.htm
http://www.capitaldefenseweekly.com/archives/010305.htm
http://www.capitaldefenseweekly.com/archives/010219.htm
http://www.capitaldefenseweekly.com/archives/010212.htm

Supreme Court
Shafer v. South Carolina (US)  Where a trial court  does not instruct the jury that a life sentence would be without parole, Simmons v. South Carolina, 512 US 154 (1994), applies and due process entitles the defendant to inform the jury of  his ineligibility for parole.

     South Carolina has consistently refused to inform the jury of a capital defendant's parole eligibility status.⁴ We first confronted this practice in Simmons. The South Carolina sentencing scheme then in effect, S. C. Code Ann. §§16-3-20(A) and 24-21-610 (Supp. 1993), did not categorically preclude parole for capital defendants sentenced to life imprisonment, see supra, at 8-9, n. 3. Simmons, however, was parole ineligible under that scheme because of prior convictions for crimes of violence. See §24-21-640; Simmons, 512 U. S., at 156 (plurality opinion); id., at 176 (O'Connor, J., concurring in judgment). Simmons' jury, in a note to the judge during the penalty phase deliberations, asked: "Does the imposition of a life sentence carry with it the possibility of parole?" Id., at 160 (plurality opinion). Over defense counsel's objection, the trial judge in Simmons instructed: "Do not consider parole or parole eligibility [in reaching your verdict]. That is not a proper issue for your consideration." Ibid. After receiving this response from the court, Simmons' jury returned a sentence of death, which Simmons unsuccessfully sought to overturn on appeal to the South Carolina Supreme Court. Id., at 160-161.

     Mindful of the "longstanding practice of parole availability," id., at 177 (O'Connor, J.), we recognized that Simmons' jury, charged to chose between death and life imprisonment, may have been misled. Given no clear definition of "life imprisonment" and told not to consider parole eligibility, that jury "reasonably may have believed that [Simmons] could be released on parole if he were not executed." Id., at 161 (plurality opinion); see id., at 177-178 (O'Connor, J.). It did not comport with due process, we held, for the State to "secur[e] a death sentence on the ground, at least in part, of [defendant's] future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its [only] noncapital sentencing alternative, namely, that life imprisonment meant life without parole." Id., at 162 (plurality opinion); see id., at 178 (O'Connor, J.) ("Where the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury--by either argument or instruction--that he is parole ineligible.").

     As earlier stated, see supra, at 8-9, the South Carolina Supreme Court held Simmons "inapplicable under the [State's] new sentencing scheme," 340 S. C., at 298, 531 S. E. 2d, at 528. Simmons is not triggered the South Carolina court said, unless life without parole is "the only legally available sentence alternative to death." Ibid. Currently, the court observed, when a capital case jury begins its sentencing deliberations, three alternative sentences are available: "1) death, 2) life without the possibility of parole, or 3) a mandatory minimum thirty year sentence." Ibid. "Since one of these alternatives to death [is] not life without the possibility of parole," the court concluded, Simmons no longer constrains capital sentencing in South Carolina. 340 S. C., at 299, 531 S. E. 2d, at 528.

     This reasoning might be persuasive if the jury's sentencing discretion encompassed the three choices the South Carolina court identified. But, that is not how the State's new scheme works. See supra, at 2-3. Under the law now governing, in any case in which the jury does not unanimously find a statutory aggravator, death is not a permissible sentence and Simmons has no relevance. In such a case, the judge alone becomes the sentencer. S. C. Code Ann. §16-3-20(C) (2000 Cum. Supp.). Only if the jury finds an aggravating circumstance does it decide on the sentence. Ibid. And when it makes that decision, as was the case in Simmons, only two sentences are legally available under South Carolina law: death or life without the possibility of parole. Ibid.

     The South Carolina Supreme Court was no doubt correct to this extent: At the time the trial judge instructed the jury in Shafer's case, it was indeed possible that Shafer would receive a sentence other than death or life without the possibility of parole. That is so because South Carolina, in line with other States, gives capital juries, at the penalty phase, discrete and sequential functions. Initially, capital juries serve as factfinders in determining whether an alleged aggravating circumstance exists. Once that factual threshold is passed, the jurors exercise discretion in determining the punishment that ought to be imposed. The trial judge in Shafer's case recognized the critical difference in the two functions. He charged that "[a] statutory aggravating circumstance is a fact, an incident, a detail or an occurrence," the existence of which must be found beyond a reasonable doubt. App. 203. Turning to the sentencing choice, he referred to considerations of "fairness and mercy," and the defendant's "moral culpability." App. 204. He also instructed that the jury was free to decide "whether ... for any reason or no reason at all Mr. Shafer should be sentenced to life imprisonment rather than to death." App. 203.

     In sum, when the jury determines the existence of a statutory aggravator, a tightly circumscribed factual inquiry, none of Simmons' due process concerns arise. There are no "misunderstanding[s]" to avoid, no "false choice[s]" to guard against. See Simmons, 512 U. S., at 161 (plurality opinion). The jury, as aggravating circumstance factfinder, exercises no sentencing discretion itself. If no aggravator is found, the judge takes over and has sole authority to impose the mandatory minimum so heavily relied upon by the South Carolina Supreme Court. See supra, at 8-9, 12. It is only when the jury endeavors the moral judgment whether to impose the death penalty that parole eligibility may become critical. Correspondingly, it is only at that stage that Simmons comes into play, a stage at which South Carolina law provides no third choice, no 30-year mandatory minimum, just death or life without parole. See Ramdass, 530 U. S., at 169 (Simmons applies where "as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." (emphasis added)).⁵ We therefore hold that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole.

III

     South Carolina offers two other grounds in support of the trial judge's refusal to give Shafer's requested parole ineligibility instruction. First, the State argues that the jury was properly informed of the law on parole ineligibility by the trial court's instructions and by defense counsel's own argument. Second, the State contends that no parole ineligibility instruction was required under Simmons because the State never argued Shafer would pose a future danger to society. We now turn to those arguments.

A

     "Even if this Court finds Simmons was triggered," the State urges, "the defense's closing argument and the judge's charge fulfilled the requirements of Simmons." Brief for Respondent 38. To support that contention, the State sets out defense counsel's closing pleas that, if Shafer's life is spared, he will "die in prison" after "spend[ing] his natural life there." Id., at 39. Next, the State recites passages from the trial judge's instructions reiterating that "life imprisonment means until the death of the defendant." Id., at 40.

     The South Carolina Supreme Court, we note, never suggested that counsel's arguments or the trial judge's instructions satisfied Simmons. That court simply held Simmons inapplicable under the State's new sentencing scheme. 340 S. C., at 298, 531 S. E. 2d, at 528. We do not find the State's position persuasive. Displacement of "the longstanding practice of parole availability" remains a relatively recent development, and "common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole." Simmons, 512 U. S., at 177-178 (O'Connor, J.). South Carolina's situation is illustrative. Until two years before Shafer's trial, as we earlier noted, the State's law did not categorically preclude parole for capital defendants sentenced to life imprisonment. See supra, at 8-9, n. 3, and 10-11.

     Most plainly contradicting the State's contention, Shafer's jury left no doubt about its failure to gain from defense counsel's closing argument or the judge's instructions any clear understanding of what a life sentence means. The jurors sought further instruction, asking: "Is there any remote chance for someone convicted of murder to become elig[i]ble for parole?" App. 253; cf. Simmons, 512 U. S., at 178 (O'Connor, J.) ("that the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a life-sentenced defendant will be released from prison").⁶

     The jury's comprehension was hardly aided by the court's final instruction: "Parole eligibility or ineligibility is not for your consideration." App. 240. That instruction did nothing to ensure that the jury was not misled and may well have been taken to mean "that parole was available but that the jury, for some unstated reason, should be blind to this fact." Simmons, 512 U. S., at 170 (plurality opinion); see 340 S. C., at 310, 531 S. E. 2d, at 534 (Finney, C. J., dissenting) ("[T]he jury's inquiry prompted a misleading response which suggested parole was a possibility."); State v. Kelly, No. 25226, 2001 WL 21321, *13 (S. C., Jan. 8, 2001) (Pleicones, J., dissenting in part, concurring in part) ("Without the knowledge that, if aggravators are found, a life sentence is not subject to being reduced by parole, or any other method of early release, the jury is likely to speculate unnecessarily on the possibility of early release, and impose a sentence of death based upon `fear rather than reason.' " (quoting Yarbrough v. Commonwealth, 258 Va. 347, 369, 519 S. E. 2d 602, 613 (1999))).

     In sum, a life sentence for Shafer would permit no "parole, community supervision, ... early release program, ... or any other credits that would reduce the mandatory imprisonment," S. C. Code Ann. §16-3-20(A) (2000 Cum. Supp.) (set out supra, at 4, n. 1); this reality was not conveyed to Shafer's jury by the court's instructions or by the arguments defense counsel was allowed to make.

B

     Ultimately, the State maintains that "[t]he prosecution did not argue future dangerousness," so the predicate for a Simmons charge is not present here. Brief for Respondent 42. That issue is not ripe for our resolution.

     In the trial court, the prosecutor and defense counsel differed on what it takes to place future dangerousness "at issue." The prosecutor suggested that the State must formally argue future dangerousness. App. 161. Defense counsel urged that once the prosecutor introduces evidence showing future dangerousness, the State cannot avoid a Simmons charge by saying the point was not argued or calling the evidence by another name. See App. 161-162.

     As earlier recounted, the trial judge determined that future dangerousness was not at issue, but acknowledged, at one point, that the prosecutor had come close to crossing the line. See supra, at 3-4, 5. The South Carolina Supreme Court, in order to rule broadly that Simmons no longer governs capital sentencing in the State, apparently assumed, arguendo, that future dangerousness had been shown at Shafer's sentencing proceeding. See supra, at 8-9; cf. Kelly, 2001 WL 21321, at *6 (recognizing that future dangerousness is an issue when it is "a logical inference from the evidence" or was "injected into the case through the State's closing argument"). Because the South Carolina Supreme Court did not home in on the question whether the prosecutor's evidentiary submissions or closing argument in fact placed Shafer's future dangerousness at issue, we leave that question open for the state court's attention and disposition.

Captial Cases Remanded for Further Adjudication
No cases reported this week.

Federal Captial Cases Relief Denied
Parker v. Head (11th Cir)  Evidence that police tried to contact defense counsel is insufficient to establish that criminal defendant reinvoked his right to counsel after a polygraph test.  Likewise trial counsel was not ineffective when his lawyer:  (a) admitted to the jury that Parker was guilty of capital murder; (b) failed to obtain or present a competent mental health expert to testify during both phases of the trial;  (c) made prejudicial reference to Parker's possible eligibility for parole if given a life sentence.

4. Ineffective assistance of counsel claims

Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a habeas petitioner is entitled to relief when counsel's performance falls below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's errors and omissions, the result of the proceedings would have been different. Id. at 687. Parker argues that his counsel rendered ineffective assistance of counsel in three different circumstances during the trial: (1) counsel unreasonably told the jury in argument that Parker was guilty of murder; (2) counsel unreasonably failed to obtain and present  [*25]  a competent mental health expert at both phases; and (3) counsel unreasonably injected parole eligibility into the trial.

A. Defense counsel's statements conceding Parker's guilt

The state habeas court concluded that the evidence failed to support Parker's claim of ineffective assistance of counsel, given counsel's testimony that the concession during opening statement and closing argument was a strategic decision made in consultation with Parker and in light of Parker's admissible confession, in order to maintain credibility with the jury for sentencing purposes. Additionally, the district court concluded that Parker had not shown actual prejudice from counsel's arguments, in that he had not established a reasonably probability that, "in light of the overwhelming evidence against Parker including his confession," the result of the proceedings would have been different had counsel not 
conceded Parker's guilt. On the evidence presented to the state court, we cannot say that the state court's decision was contrary to, or an unreasonable application of, the Strickland standard, or that the district court erred in concluding that Parker failed to show the prejudice required  [*26]  under Strickland.

B. Defense counsel's failure to obtain and present competent mental health expert

We likewise find that, on the record before the state habeas court, it cannot be said that the state court's conclusion that the evidence failed to support Parker's claim of ineffective assistance of counsel for failure to obtain and present a competent mental health expert at both phases of the trial was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Upon a review of the record, we agree with the district court that Parker has failed to demonstrate the prejudice required under Strickland to support a claim of ineffective assistance of counsel.

C. Defense counsel unreasonably injected parole eligibility into the trial

Finally, Parker claims that defense counsel improperly injected the topic of Parker's possible eligibility for parole into the jury's sentencing deliberations. Defense counsel on direct examination had sought to elicit testimony that a person like Parker would not be paroled for at least 40 years if given a life sentence instead of the death penalty. While the witness testified  [*27]  to this, he also testified, on both direct and cross-examination, that in Georgia a person given a life sentence is eligible for, but would not necessarily be granted, parole after serving seven years. The state habeas court found no constitutional error. Upon a review of the record, we cannot say that Parker has produced sufficient evidence to demonstrate that there is a reasonable probability that, but for counsel's actions in this regard, the result of the proceedings would have been different. Strickland, 466 U.S. at 668. Accordingly, as Parker has not established that he was prejudiced by counsel's errors, we cannot find that the state court's adjudication of this claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.

People v. Rissley (Illinois) The state Supreme Court with the highest error rate regarding actual innocence, rules that the trial court erred in not dismissing this post-conviction petition as untimely despite strong evidence of trial counsel bungling.

Lambert v. State (Indiana) We now affirm the denial of Lambert's petition for post-conviction relief, finding that this Court did not engage in what Lambert calls "unconstitutional appellate sentencing," the post-conviction judge did not err by declining to disqualify himself, and Lambert's trial and appellate counsel were not ineffective.

Black v. State (Oklahoma)  Relief denied on issues most notably of jury selection, and guilt phase instructions on manslaughter.

State v. Torres  (TN Crim App)  In this appeal as of right, the appellant challenges both his conviction and his sentence, raising the following issues for our consideration: (1) whether the 1993 version of Tenn. Code Ann. § 39-13-202(a)(4) violates the United States and Tennessee constitutions; (2) whether the indictment in this case is defective due to the State's failure to charge a separate count of aggravated child abuse; (3) whether, during a competency hearing conducted prior to the appellant's trial, the trial court erred in ruling that a licensed clinical social worker was qualified to render an opinion concerning the appellant's competence to stand trial; (4) whether, during the guilt/innocence phase of the appellant's trial, the trial court erred by declining to admit into evidence a redacted video cassette recording of an interview of the appellant by police investigators; (5) whether, during the guilt/innocence phase, the trial court erred in admitting testimony concerning the appellant's demeanor at East Tennessee Baptist Hospital following his offense; (6) whether, during the guilt/innocence phase, the trial court erred in admitting evidence concerning healed scars and old bruises found on the victim's body; (7) whether Tenn. Code Ann. § 39-13-204 (1993) and Tenn. Code Ann. § 39-13-206 (1993), Tennessee's death penalty statutes, violate the United States and Tennessee constitutions; (8) whether, under the United States and Tennessee constitutions, the application of the aggravating circumstance set forth in Tenn. Code Ann. § 39-13-204(i)(l) to the offense of first degree murder by aggravated child abuse fails to adequately narrow the class of death-eligible defendants; (9) whether, during the sentencing phase of the appellant's trial, the trial court erred in providing a Kersey instruction to the jury; and (10) whether, under the United States and Tennessee Constitutions, the  appellant's sentence of death is disproportionate to the penalty imposed in similar cases. Following a thorough review of the entire record and the parties' briefs, we affirm the judgment of the trial court.

Other Notable Cases (As reported by Findlaw, and other sources)
In re Nwanze (3rd Cir) If, after an inter-district transfer of a section 2241 petition from the district of confinement to the district of sentencing, the sentencing court refuses to grant relief on jurisdictional grounds, the confinement court may exercise jurisdiction under the All-Writs Act, 28 USC 1651(a), to grant a writ of error coram nobis.

Emerson v. Johnson (5th Cir)A "Suggestion That The Court Reconsider On Its Own Motion the denial of the Application for Writ of Habeas Corpus," is a properly filed application for State post-conviction or other collateral review under 28 USC 2244(d)(2) thus tolling the statute of limitations.

Anderson v. Sternes (7th Cir)A witness who testifies that he is a "gang specialist" does not improperly influence a jury where he does not characterize defendant as a gang member, or the crime as gang-related, and a passing reference to defendant's prior arrest record does not produce a significant likelihood that an innocent defendant was convicted.

Carroll v. Schiro (8th Cir)State court reasonably applied test for ineffective assistance of counsel when it determined that counsel's failure to present prior inconsistent statements of victim and witness did not prejudice defedant, and statements were cumulative.

Bragg v. Galaza (9th Cir)Failure of habeas petitioner to seek evidentiary hearings to resolve factual ambiguities on direct appeal for ineffective assistance of counsel claim results in an insufficient factual record.

Lockhart v. Terhune (9th Cir) Attorney representing defendant in murder trial had a conflict of interest where same attorney represented a co-defendant in prior murder trial where first defendant was convicted, and prior conviction was relevant to later trial.

Deorle v. Rutherford (9th Cir)Firing bean-bag round at unarmed suspect without warning the suspect is excessive force not entitled to qualified immunity.

Kleve v. Hill (9th Cir)A defendant initially convicted under California law for conspiracy to commit second-degree murder is not entitled to habeas relief even after the California Supreme Court ruled that there is no such crime.

Milstead v. Kibler (4th Cir) Police officer's mistaken understanding of the facts did not make the officer's split-second judgment to use deadly force unreasonable when the victim came crashing through a poorly lit door after the real gunmen had fired a gun and threatened to kill the police.

Outrages of the Week
To return next week.

Featured 
The Focus this week, is metnal retardation and the death penalty following the exhaustive report of Human Rights Watch, BEYOND REASON: The Death Penalty and Offenders with Mental Retardation
http://www.hrw.org/reports/2001/ustat/.

People with mental retardation in the U.S., currently estimated to number between 6.2 and 7.5 million, have historically been victimized both by their disability and by public prejudice and ignorance.8  In recent decades there have been significant gains in understanding the nature of the condition, in the provision of education and other services that meet the unique needs of those who are mentally retarded, and in the willingness of the public to accord them the respect and rights they deserve as human beings and citizens. Nevertheless, misunderstanding of the unique nature and implications of mental retardation remains widespread. When a person with mental retardation confronts the criminal justice system, they are uniquely unable to take advantage of legal safeguards and to protect their constitutional rights.

What is mental retardation?

Mental retardation is a lifelong condition of impaired or incomplete mental development. According to the most widely used definition of mental retardation, it is characterized by three criteria: significantly subaverage intellectual functioning; concurrent and related limitations in two or more adaptive skill areas; and manifestation before age eighteen.9 The first step for diagnosing and classifying a person as having mental retardation is for a qualified person to give one or more standardized intelligence tests and a standardized adaptive skills test on an individual basis.

Subaverage intellectual functioning

Intelligence quotient (I.Q.) tests are designed to measure intellectual functioning. An I.Q. score provides a rough numerical assessment of an individual's present level of mental functioning in comparison with that of others. The vast majority of people in the United States have I.Q.s between 80 and 120, with an I.Q. of 100 considered average. To be diagnosed as having mental retardation, a person must have an I.Q. below 70-75, i.e. significantly below average. If a person scores below 70 on a properly administered and scored I.Q. test, he or she is in the bottom 2 percent of the American population10 and meets the first condition necessary to be defined as having mental retardation.

Although all persons with mental retardation have significantly impaired mental development, their intellectual level can vary considerably. An estimated 89 percent of all people with retardation have I.Q.s in the 51-70 range. An I.Q. in the 60 to 70 range is approximately the scholastic equivalent to the third grade.11

For the lay person or non-specialist, the significance of a low I.Q. is often best communicated through the imprecise but nonetheless descriptive reference to "mental age." When a person is said to have a mental age of six, this means he or she received the same number of correct responses on a standardized I.Q. test as the average six year old child.

· Earl Washington, who confessed to a murder he did not commit, has an I.Q. of 69 and a mental age of ten. That is, he cannot perform intellectual tasks beyond the capacity of a typical ten-year-old.

· Jerome Holloway, who death sentence was ultimately reduced in the face of overwhelming evidence that he had been unable to comprehend the proceedings against him, has an I.Q. of 49 and a mental age of seven.12

· Luis Mata, executed in 1996, had an I.Q. of 68-70. According to a psychologist who evaluated Mata, "his ability to express himself and his ability to recognize the meaning of common words were at the level of a nine- to ten-year-old child....He lacked basic understanding of familiar processes. He did not know the function of the stomach, where the sun sets, nor why stamps are needed on letters...Arithmetic abilities were limited to addition and subtraction with the help of concrete aids such as fingers."13

The threshold I.Q. level for a diagnosis of mental retardation has been progressively lowered over the years, in part because of awareness of the damaging social prejudice suffered by those labeled "retarded." In 1959, the American Association on Mental Deficiency set 85 as the I.Q. below which a person was considered to be retarded.14 In 1992, the renamed American Association on Mental Retardation lowered the mental retardation "ceiling" to an I.Q. of 70-75,15 but many mental health specialists argue that people with I.Q.s of up to 80 may also have mental retardation. 16 Flexibility in the I.Q. standard is important because tests given at different times may show slight variations due to differences in the tests and because of testing error -- the standard error measurement on I.Q. tests is generally three to five points.

Limitations in adaptive skills

Mental retardation entails significant limitations in two or more of the basic skill areas necessary to cope with the requirements of everyday life, e.g. communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Although there are significant variations among those with mental retardation, in terms of their ability to function and their skill levels, all have significant limitations in their "effectiveness in meeting the standards of maturation, learning, personal independence, and/or social responsibility that are expected for his or her age level and cultural group."17 For instance, an adult with mental retardation may have trouble driving a car, following directions, participating in hobbies or work of any complexity, or behaving in socially appropriate ways. He or she may have trouble sitting or standing still, or may smile constantly and inappropriately. Limitations in everyday coping skills may be more or less severe, ranging from individuals who can live alone with intermittent support, to individuals who require extensive hands-on assistance and guidance, to individuals who require constant supervision and care. For most people with mental retardation, limited adaptive skills make ordinary life extremely difficult unless a caring family or social support system exists to provide assistance and structure.

Offenders with mental retardation who have been convicted of committing capital crimes typically grew up poor and without networks of special support and services -- often without even a supportive, loving family. They functioned as best they could without professional assistance, often required to fend for themselves while still teenagers. If they were able to work, it was at basic menial tasks.

· Billy Dwayne White, executed in Texas in 1992, had an I.Q. of 66. After being hired as a kitchen dishwasher he was fired when he could not learn to operate the dishwasher. Family members reported that "if one told Billy exactly what to do and took him to the place where it was to be done [he] could do some work. If he were left on his own and not specifically guided, he could not do it."18

· Johnny Paul Penry, on death row in Texas, with an I.Q. measured variously between 50 and the low sixties, at one point worked greasing the bearings of cart wheels. "I was good at this," he told an interviewer proudly.19

Manifestation before the age of eighteen

Mental retardation is present from childhood. It can be caused by any condition which impairs development of the brain before, during, or after birth. The causes are numerous: hereditary factors; genetic abnormalities (e.g. Down's syndrome); poor prenatal care; infections during pregnancy; abnormal delivery; illness during infancy; toxic substances (e.g. consumption of alcohol by the pregnant mother; exposure of the child to lead, mercury or other environmental toxins); physical abuse; and malnutrition, among others. Regardless of the cause, part of the definition of mental retardation is that it manifests itself during an individual's developmental period, usually deemed to be birth through age eighteen. Many psychiatrists argue that the age before which signs of retardation must become manifest should be raised from eighteen to twenty-two, to reflect the difficulties in obtaining accurate age records for many people with this disability and the differing rates at which people develop.20

An ordinary adult cannot suddenly "become" mentally retarded. An adult may, for reasons related to accident or illness, suffer a catastrophic loss in intellectual functioning and adaptive skills, but this would not make him or her "mentally retarded," since by definition mental retardation starts during childhood. One implication of this is that mental retardation is virtually impossible for an adult to fake: when evaluating whether an adult is mentally retarded, testers look not only at I.Q. test results, but also at school reports, childhood test records, and other evidence that would show whether his or her intellectual and adaptive problems developed during childhood.

Early diagnosis can help the person with mental retardation obtain access to appropriate special education, training, clinical programs, and social services during important developmental years -- as well as through life. With help from family, social workers, teachers, and friends, many mentally retarded people succeed in simple jobs, maintain their own households, marry, and give birth to children of normal intelligence.21 But, although support and services can improve the life functioning and opportunities for a person with retardation, they cannot cure the condition. There is no "cure" for mental retardation.

Characteristics and Significance of Mental Retardation

Although mental retardation of any degree has profound implications for a person's cognitive and social development, it is a condition which in many cases is not readily apparent. While some of the mentally retarded, such as those whose retardation is caused by Down's syndrome or fetal alcohol syndrome, have characteristically distinctive facial features, most cannot be identified by their physical appearance alone. Unless their cognitive impairment is unusually severe (e.g. an I.Q. below 40), persons with mental retardation may be thought of as "slow" but the full extent of their impairment is often not readily appreciated, particularly by people who have limited contact with or knowledge of them, including police, prosecutors, judges, and other participants in the criminal justice system. Many capital offenders with mental retardation did not have their condition diagnosed until trial or during post-conviction proceedings.

A person with mental retardation, according to one expert, "is always the least smart person in any group. This leads to fear, dependence and an experience of terrible stigma and devaluation."22 Since mentally retarded people are often ashamed of their own retardation, they may go to great lengths to hide their retardation, fooling those with no expertise in the subject. They may wrap themselves in a "cloak of competence," hiding their disability even from those who want to help them, including their lawyers. 23 Overworked or incompetent lawyers may overlook evidence of retardation and fail to request a psychological evaluation or raise the issue during trial. At times, even competent lawyers who are anxious to help their clients may fail to identify their clients' retardation or may be unable to access funds for a psychological evaluation.

· Oliver Cruz, who was executed in Texas on August 9, 2000, had an I.Q. that was measured variously at 64 and 76. Cruz nonetheless insisted to reporters that, although he was perhaps "slow in reading, slow in learning," he was not mentally retarded.24

· Mitigation specialist Scharlette Holdman recalled a client who so successfully hid his retardation from his attorneys that he allowed them to sign him up for college-level calculus classes, which he could not comprehend. He had gone through much of his schooling allowing his younger sister to complete his homework for him. When he was given papers to read in connection to his case, he would carefully stare at them. If he was asked a substantive question, he usually responded, "I don't recall." Only when experts in retardation evaluated him and investigators reviewed his school records and spoke to his family did lawyers discover he had mental retardation and had been considered "slow" since his early childhood.25

· Another capital defendant "hid his mental retardation for most of his life by working at a very repetitive job as a switcher on the railroad. He lied about finishing high school. He was actually in special education classes and did not finish the sixth grade. He was drafted into the army and discharged because of his mental retardation. He lied about his service record. He often made things up so that people would not suspect mental retardation." 26

The fact that many people with mental retardation can and do live relatively "normal" lives with their families or in the community, coupled with the fact that most of them do not look different from people with average intellectual capabilities, can make it difficult for the public to appreciate the significance of their condition. But, as the late U.S. Supreme Court Justice Brennan noted, "`Every individual who has mental retardation' -- irrespective of his or her precise capacities or experiences -- `has a substantial disability in cognitive ability and adaptive behavior.'" 27 Like all human beings, people with mental retardation deserve to be treated with dignity and respect, and deserve the chance to live lives that are as normal as possible -- but they also require special acknowledgment of their vulnerabilities and their mental incapacities.

A person with mental retardation will have limitations of a greater or lesser extent in every aspect of cognitive functioning. He or she will have limited abilities to learn (including reading, writing, and arithmetic) and to reason, plan, understand, judge, and discriminate. Mental retardation truncates the capacity to think about intended actions, to consider their possible consequences, and to exercise restraint. One expert has summarized the attributes of mental retardation as follows:

Almost uniformly, individuals with mental retardation have grave difficulties in language and communication. They have problems with attention, memory, intellectual rigidity, and in moral development or moral understanding. They are susceptible to suggestion and readily acquiesce to other adults or authority figures... People with mental retardation have limited knowledge because their impaired intelligence has prevented them from learning very much. They also have grave problems in logic, foresight, planning, strategic thinking, and understanding consequences.28

Many of these limitations, of course, characterize children. But while children will outgrow these limitations as their brains develop and mature, people with mental retardation will not.

In limiting a person's cognitive development and ability to learn, mental retardation also limits the ability to understand abstract concepts, including moral concepts. While most defendants with mental retardation who have committed a crime know they have done something wrong, they often cannot explain why the act was wrong.

· At the trial of a man with mental retardation convicted of raping and murdering an 87-year old woman, a clinical psychologist testified that while the defendant could acknowledge that rape was "wrong," he was nonetheless not able to offer any explanation for why. "Pressed for an answer, [the defendant] admitted not receiving `permission' for the rape....Pressed further, in desperation, he blurted out, `Maybe it's against her religion!' The jury gasped at such an explanation."29

The inability to comprehend abstract concepts may include the inability to fully understand the meaning of "death" or "murder".

· Morris Mason, whose I.Q. was 62-66, was executed in 1985 in Virginia after being convicted of rape and murder. Before his execution, Mason asked one of his legal advisors for advice on what to wear to his funeral.30

· Robert Wayne Sawyer, who had mental retardation, was convicted of beating, raping and burning alive a young woman in 1979. At his clemency hearing, the chair of the Louisiana pardons board asked Sawyer if he knew what murder was. Sawyer responded, "That's when the breath leaves your body." In response to a subsequent question he clarified that "it's when you stab someone and the breath leaves the body." When he was then asked what happens if someone is shot, Sawyer answered, "I just don't know."31

Since they often face abuse, taunts, and rejection because of their low intelligence, people with mental retardation can be desperate for approval and friendship. Eager to be accepted and eager to please, people with mental retardation are characteristically highly suggestible.

· Earl Washington, whose mental retardation was diagnosed when he was a child, confessed during long police interrogations to a murder that he did not commit. Washington was so suggestible and eager to please, according to a former employer, that "you could get [him] to confess that he walked on the moon." In an effort to show the invalidity of Washington's confession because of his mental deficiencies, his trial lawyer would "pick a day, any day, and tell Washington that day was [his] birth date....after prodding and cajoling, Washington would accept the false date."32

· As one psychiatrist testified about a capital defendant with an I.Q. of between 35 to 45: "[People with mental retardation try] to go along with people that they suspect are in authority. For example, I asked [the defendant] where we were when I saw him, and he obviously didn't know, so I asked him if we were in Atlanta and he said `Yes, we are in Atlanta.' In fact, we were in Birmingham, Alabama. I could have said New York and he would have said `Sure, New York'...."33

L ow intelligence and limited adaptive skills also mean that people with mental retardation often miss social "cues" that other adults understand. Their inappropriate social responses can be misinterpreted by people who do not know they have mental retardation or who do not understand the nature of retardation. They may act in ways that seem suspicious, even when they have done nothing wrong. When questioned by police or other authority figures, they often smile inappropriately, fail to remain still when ordered to do so, or act agitated and furtive when they should be calm and polite. Others may fall asleep at the wrong moment.

· Herbert Welcome was convicted of murdering his aunt and her boyfriend in 1981 in Louisiana. Welcome has mental retardation and, according to psychiatric testimony presented at his trial, has a mental age of eight. He smiled incessantly during his capital murder trial, an almost involuntary defense mechanism developed in response to a lifetime of taunts. As his defense attorney noted, "Many people with retardation smile a lot...They are anxious for approval, and have learned that smiling is one way to get [it]. But they don't have the judgment to know when to smile." 34 The prosecutor argued that Welcome's smiles showed that he lacked remorse for his crimes. He was sentenced to death and remains today on death row.

· Both Barry Lee Fairchild, convicted of murder in Arkansas, and Billy Dwayne White, convicted of murder in Texas, slept during their capital trials -- eloquent evidence of the failure of these two men with mental retardation to appreciate the significance of the criminal proceedings against them. Trial counsel were not aware that they had mental retardation. But their tendency to sleep peacefully during their trials helped alert post-conviction lawyers to their mental disability. In the case of White, who snored loudly during the penalty phase of his trial, the prosecutor argued that his conduct indicated his lack of remorse for his crime and his lack of respect for the criminal justice system. Both Fairchild and White were sentenced to death and executed. 35

Mental Retardation and Crime

The vast majority of people with mental retardation never break the law.36 Nevertheless, mentally retarded people may be disproportionately represented in America's prisons. Although people with mental retardation constitute somewhere between 2.5 and 3 percent of the U.S. population, experts estimate they may constitute between 2 and 10 percent of the prison population.37 The disproportionate number of persons with mental retardation in the incarcerated population most likely reflects the fact that people with this impairment who break the law are more likely to be caught, more likely to confess and be convicted, and less likely to be paroled. It may also be that some of the people with mental retardation who are serving prison sentences are innocent, but they confessed to crimes they did not commit because of their characteristic suggestibility and desire to please authority figures. See Section IV below.

As with people of normal intelligence, many factors can prompt people with mental retardation to commit crimes, including unique personal experiences, poverty, environmental influences and individual characteristics. Attributes common to mental retardation may, in particular cases, also contribute to criminal behavior. The very vulnerabilities that cause problems for people with mental retardation in the most routine daily interactions can, at times, lead to tragic violence.

Many people with mental retardation are picked upon, victimized and humiliated because of their disability. The desire for approval and acceptance and the need for protection can lead a person with mental retardation to do whatever others tell him. People with mental retardation can fall prey when people with greater intelligence decide to take advantage of them, and they become the unwitting tools of others.38 Many of the cases in which people with mental retardation have committed murder involved other participants -- who did not have mental retardation -- and/or occurred in the context of crimes, often robberies, that were planned or instigated by other people. As one expert in mental retardation has noted, "Most people with mental retardation don't act alone. They are usually dependent. They are never the ringleader or the leader of a gang." 39

· "Joe,"40 a mentally retarded man, admired tough-talking local drug dealers and sought to befriend them. One day his drug dealer "friends" gave Joe a gun and instructed him to go into a store and take money from the clerk. They told him, however, "Don't shoot the guy unless you have to." Joe hid for a while, then entered the store, but he forgot his instructions. "He panicked and couldn't remember the plan. He shot the guy and forgot to rob the store."

· Billy Dwayne White, a teenager with mental retardation, allied himself with older men in the neighborhood, one of whom testified: "When Billy started hanging around us he was real scared and timid. We told him that he would have to change. We taught him how to steal. We would get him to do things that were wrong by telling him that he was a coward if he didn't, and that he could only be in our gang if he showed us that he had courage...we could persuade him to do these things because he was easily misled."41

People with mental retardation may also engage in criminal behavior because of their characteristically poor impulse control, difficulty with long-term thinking, and difficulty handling stressful and emotionally fraught situations. They may not be able to predict the consequences of their acts or resist a strong emotional response.42 The homicides committed by people with mental retardation acting alone are almost without exception unplanned, spur of the moment acts of violence in the context of panic, fear, or anger, often committed when another crime, such as a robbery, went wrong. For example, William Smith, I.Q. 65, tried to take money from "old Dan," a friendly elderly storekeeper he had known all his life. When Dan resisted, Smith panicked and lashed out, killing him.43

Low intellectual skills and limited planning capacities mean that people who have mental retardation are more likely than people of normal intelligence to get caught if they commit crimes. As a result, they make good "fall guys" for more sophisticated criminals. A suspect with mental retardation is also less likely to know how to avoid incriminating himself, hire a lawyer and negotiate a plea.

Multiple Vulnerabilities

Many, if not most, of the people with mental retardation convicted of capital murder are doubly and triply disadvantaged. In general, America's prison population is made up disproportionately of poor people, minorities, the mentally ill, and those who were abused as children. Not surprisingly, the mentally retarded people who become enmeshed in the criminal justice system usually share one or more of these characteristics: many of them come from poor families, suffered from severe abuse as children, and/or face mental illness in addition to their retardation.44

A history of severe childhood abuse is particularly common among defendants with mental retardation convicted of capital murder. While the relationship between abuse and adult behavior is complex, "strong evidence exists that a person who was abused as a child is at risk of suffering long-term effects that may contribute to his violent behavior as an adult," particularly if the abuse was severe physical abuse that caused serious injury to the child.45 The long-term negative effects of childhood abuse may be even greater for people whose cognitive abilities are impaired and whose ability to navigate in the world is already seriously compromised by mental retardation.46

· Luis Mata was executed in Arizona in 1996, convicted of rape and murder. Mata suffered organic brain damage from multiple medical traumas and had an I.Q. tested variously between 63 and 70. Mata's alcoholic father beat all of his sixteen children, but he picked primarily on Luis, subjecting him to constant physical abuse -- kicking him, punching him, and beating him with electrical cords. When Luis Mata was six, he fell off a truck, badly fracturing his skull, but his family was too poor to obtain medical treatment for him. This and other medical traumas may have contributed to his neurological deficits.47

· Freddie Lee Hall, with an I.Q. of 60, is on death row in Florida, convicted of killing a young pregnant woman. Hall was one of seventeen children in an impoverished family. As a child, he was "tortured by his mother, sometimes stuffed in a sack and swung over a fire, or tied to the rafters and beaten." His mother even encouraged neighbors to beat her son, and she buried him in the ground as a "cure" for his asthma.48

· Robert Anthony Carter, who had mental retardation, was convicted of a murder committed when he was seventeen and was executed in 1998.49 One of six children, Carter was abused by both his mother and stepfather, who whipped and beat him with belts and cords. Carter's siblings would be forced to hold him down while his mother beat him. At other times, his mother would wait until Carter was asleep and then begin to whip him. He also suffered from several serious head injuries as a child - including one in which he was hit so hard with a baseball bat on the head that the bat broke. 50

Many capital defendants with mental retardation also suffer from mental illness. Although the two conditions are often confused, they are different disorders. Mental illness almost always includes disturbance of some sort in emotional life; intellectual functioning may be intact, except where thinking breaks with reality (as in hallucinations). A person who is mentally ill, e.g. who is bipolar or suffers from schizophrenia, can have a very high I.Q., while a mentally retarded person always has a low I.Q. A person who is mentally ill may improve or be cured with therapy or medication, but mental retardation is a permanent state. Finally, mental illness may develop during any stage of life, while mental retardation is manifest by the age of eighteen. The percentage of mentally retarded people who are also mentally ill is not known with any certainty; estimates vary from 10 percent to 40 percent.51 Persons who suffer from both mental illness and mental retardation are particularly disadvantaged in dealing with the criminal justice system because each condition can compound the effects of the other.

· Nollie Lee Martin, had an I.Q. of 59 and was further mentally impaired as a result of several serious head injuries he had received in childhood. As a child he was physically and sexually abused and came from a family with a history of schizophrenia. His medical history included psychosis, suicidal depression, paranoid delusions, and self-mutilation. After being convicted in 1978 of kidnapping, robbery, and murder in Florida, Martin spent more than thirteen years on death row mostly incoherent and rocking back and forth on the floor of his cell. He required constant medication for his mental illness and hallucinations. He beat his head and fists against the cell wall and would mutilate himself. He was executed in 1992.52

· Emile Duhamel was convicted of the aggravated sexual assault and murder of a nine-year-old girl in 1984.  He had an I.Q. of 56 and organic brain disease and suffered as well from paranoid schizophrenia and dementia.  After a decade of legal proceedings over his competency for execution, Duhamel died in his Texas death row cell in 1998.
 
 

Errata
From the Death Penalty Information Center reports: 

Poll Finds Support for Death Penalty Alternatives and for System Reforms 
A national poll recently conducted by Peter D. Hart Research Associates found only 60% favored the death penalty for persons convicted of murder.  The poll also found that when respondents were offered the sentencing alternative of life imprisonment with restitution to the victims' families, support for the death penalty fell to 38%, with 48% supporting the alternative.  Among the poll's additional findings: 

72% favored suspension of the death penalty until questions about its fairness can be studied, up from 64% in August 2000 
91% favored requiring courts to allow death row inmates access to DNA tests that could prove their innocence 
84% favored requiring court-appointed attorneys in death penalty cases to have prior experience in capital cases and to be certified to handle such cases by the local Bar Association 
82% favor requiring courts to have funds available to ensure that capital defendants have adequate counsel 

New Report on Mental Retardation
Human Rights Watch issued a new report today (March 20) condemning the use of the death penalty for inmates with mental retardation. The report, Beyond Reason: The Death Penalty and Offenders with Mental Retardation, provides numerous examples of persons who have been sentenced to death despite their profound intellectual limitations.  The report also documents how mentally retarded people are incapable of understanding - much less protecting - their constitutional rights; how their characteristic suggestibility and willingness to please leads them to confess - even falsely - to capital crimes; and how they are unable to understand the legal proceedings against them and assist in their own defense.  For more information, read HRW's press release.

     On March 27, the U.S. Supreme Court will hear Penry v. Johnson, a case related to the execution of those with mental retardation.  Recently, the Court halted the executions of two mentally retarded death row inmates.  Stays were granted to Antonio Richardson in Missouri and Ernest McCarver in North Carolina while the Court considers whether it will hear their cases.  Thomas Nevius (see below), who also suffers from mental retardation and brain damage, is currently facing execution in Nevada.

Another Mentally Retarded Inmate Facing Execution
 Thomas Nevius, who suffers from mental retardation and brain damage, and who functions intellectually, and in other ways, as a child, ranks in the bottom 1 to 2% of the population in terms of mental capacity.  Yet Nevius is facing execution in Nevada and his attorneys have now applied for executive clemency.
     Nevius was convicted and sentenced to death for a 1980 burglary and murder committed with three other defendants. He was the only one of the four to receive the death penalty. Two co-perpetrators received life sentences and the third, his half-brother David Nevius, received probation for testifying against Thomas.  Nevius' lead defense attorney had never tried a capital case before and failed to investigate or discover evidence of Nevius' mental retardation. At trial, prosecutors portrayed Nevius as the ringleader and the defense failed to present to the jury  Nevius' mental retardation, passivity, and character as a follower rather than a leader, due to his mental limitations.  Six jurors have since come forward and stated that, had they known of Nevius' mental retardation and brain damage, they would not have sentenced him to death.  (See Application for Executive Clemency on Behalf of Thomas Nevius, 1/17/01)  In an unusual move, the governor of Nevada has granted a formal clemency hearing on April 11.
     Currently, 13 states prohibit the execution of those with mental retardation, and similar statutes are pending in at least 8 other states. See also, mental retardation and proposed legislative changes.

 WITNESS TO THE EXECUTION  - This one-hour documentary film, which will air on Monday, March 19 at 8 pm EST, explores the death penalty through the stories and profound experiences of the people who chose to be witnesses at the execution of death row inmate Donald Jay Miller.  MSNBC was granted unprecedented access to Arizona  Department of Corrections execution process for the filming of this piece.  For more information, see www.msnbc.com/news/537370.asp#investigates

 DNA and a Dedicated Sibling Free Man Convicted of Murder
Kenneth Waters was released from a Massachusetts prison after his sister, Betty Ann Waters, uncovered DNA evidence demonstrating his innocence.  Kenneth Waters was convicted of the 1980 murder of Katharina Brow.  Although he could have faced the death penalty, he was sentenced to life imprisonment.  Frustrated with the legal system, Betty Ann Waters, a single mother of two with a GED who waitressed for extra money, put herself through college and then law school in order to represent her brother.  While in law school she discovered as much as she could about her brother's case, about DNA, and the Cardozo Law School's Innocence Project's work with the wrongly convicted.
     After becoming her brother's attorney, Waters discovered a sample of blood, believed to be the perpetrator's, which was taken from the crime scene.  Although DNA samples are lost or destroyed "about 75% of the time," the sample in her brother's case was located and Waters had it tested. The new test confirms that the DNA found at the scene does not match her brother's and Waters subsequently filed a motion for a retrial.  The Middlesex, district attorney's office said it will not oppose the motion and prosecutors said they will review the case file to see whether Kenneth Waters should be exonerated.  (Boston Globe, 3/15/01)  See also, Innocence.

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