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Capital
Defense
Weekly Leading off this week is the Texas Court of Criminal Appeals grant of relief in Ex parte Gregory Van Alstyne. Adopting the trial court's conclusion that Van Alstyne is mentally retarded, the opinion sets forth well the various elements necessary for a finding of mental retardation, including that the evidence supports a finding of significant sub-average intellectual functioning and adaptive deficits. As the dissent notes, and as a warning to counsel everywhere about the dangers of media availability with a client, Van Alstyne had given a television interview during which “the content of his speech and its manner of delivery suggest a person of ordinary intelligence.” In the news, DPIC notes,
Massachusetts House of Representatives recently, and overwhelmingly,
rejected an attempt to reinstate the death penalty there. In New Jersey,
a bill that would abolish the state's death penalty will be voted on in
both chambers, with the support of the Governor, by January 8, 2008 (the daily blog will be
covering at length). The
California Supreme Court will seek an amendment to the state
constitution that would change the death penalty process there by
moving capital case review to the regional courts of appeal with
apparently discretionary review still permitted to the state Supreme
Court. New scholarship is noted, both in print
and on SSRN. A few of those that seem to be interesting
from here include: Deborah W. Denno's
The Lethal Injection Quandary: How Medicine Has Dismantled the Death
Penalty at 76 Fordham L. Rev. 49 (2007); It’s
Like Deja Vu All Over Again: Williams v. Taylor, Wiggins v. Smith,
Rompilla v. Beard and a (Partial) Return to the Guidelines Approach to
the Effective Assistance of Counsel, Cornell Legal Studies Research
Paper No. 07-019, American Journal of Criminal Law, Forthcoming, by
John H. Blume, Cornell Law School; The
Dilemma of the Criminal Defendant With a Prior Record- - Lessons from
the Wrongfully Convicted, Journal of Empirical Studies,
Forthcoming, Cornell Legal Studies Research Paper No. 07-017, by
John H. Blume, Cornell Law School; The
Original Meaning of ‘Unusual’: The Eighth Amendment as a Bar to Cruel
Innovation, Northwestern University Law Review, Vol. 102, No. 4,
2008, by
John F. Stinneford , Florida Coastal School of Law;& Helen
Shin's Note,
Is the Death of the Death Penalty Near? The Impact of Atkins and Roper
on the Future of Capital Punishment for Mentally Ill Defendants
at 76 Fordham L. Rev. 465 (2007). Execution Information Due to the near unanimity of
thought on the subject, we are no longer listing execution dates
scheduled before February 15, 2008 as probable in light of Baze v. Rees and have suspended
the Weekly's "pending executions" save for volunteers.
(Advance Sheet Week of November 12, 2007) – In Favor of Life or Liberty
Week of November 19, 2007 – Other Disposition
Selected Excerpts from, & Commentary on, this Edition's Cases [Note formatting may be off below this point.] Ex parte Gregory Van Alstyne, 2007 Tex. Crim. App. LEXIS 1631 (Tex. Crim App. 11/14/2007) Relief granted on MR related claims over a pointed dissent. From the opinion The State took the position at
the evidentiary hearing that the
affidavits supporting Dr. Garnett's conclusion with respect to adaptive
deficits were not reliable. Edgerton pointed to internal
inconsistencies within individual affidavits as well as inconsistencies
among the various affidavits and concluded that there was a significant
danger of exaggeration from the informants. He noted that, although the
applicant's 1989 IQ tests had prompted the prison system to evaluate
him for special services, TDCJ had ultimately concluded, on the basis
of further evaluation, including administration of the Vineland test
for adaptive deficits, that he could function adequately in the regular
prison population. n12 Edgerton believed that the data more closely
supported a diagnosis of conduct disorder and concluded that the
applicant did not manifest a sufficient level or breadth of adaptive
dysfunction to ultimately justify a diagnosis [*12] of mild
mental
retardation.
SMALL
PRINTThe applicant countered with evidence that the TDCJ evaluation itself was unreliable because the data underlying the Vineland score had originated with the applicant himself, rather than from knowledgeable third-party sources as is the standard protocol. It was documented that much of the information that the applicant had supplied to the TDCJ evaluators inaccurately overstated his adaptive abilities. For example, the applicant had told the evaluators that he had graduated from an apparently non-existent high school, that he had been an "A" student, that he had spent three months in the Marine Corps when in fact there is no record of any military service, and that he had been employed as a commercial truck driver when in fact he had never had a driver's license. Moreover, the applicant established that, even if he could be diagnosed with conduct disorder (which Edgerton did not purport to do, testifying only that he thought it probable that a full work-up would result in that diagnosis), such a diagnosis [*13] would not exclude a concurrent diagnosis of mental retardation. n13 In his report, Dr. Garnett also evaluated the applicant according to the non-diagnostic criteria this Court identified in Ex parte Briseno. n14 The convicting court has made extensive findings with respect to these criteria. The record supports the convicting court's findings that: 1) the applicant's participation in the offense for which he is on death row was spontaneous, rather than planned; n15 2) that his conduct in general is impulsive; n16 3) that he is uniformly reported to be gullible and a follower rather than a leader; n17 and 4) that he was unable to lie or hide facts in his own interest. n18 On this state of the record, the convicting court was justified in finding by a preponderance of the evidence that the applicant has established adaptive deficits over the course of his lifetime (including during the developmental period) sufficient to show he is mildly mentally retarded. The Media Interview The dissenters disagree and would have us assert our [*16] prerogative as the ultimate (if not the original) finders of fact to reject the convicting court's recommendation. They believe that a recorded interview, approximately thirty-seven minutes long, that applicant gave to an Amarillo television reporter, conclusively demonstrates that he is not mentally retarded. As with Justice Stewart's assertion about hard-core pornography, they "know [mental retardation] when [they] see it," and the applicant "is not that[.]" n19 The convicting court did not ignore the media interview--far from it. After the evidentiary hearing was concluded, the convicting court allowed the parties to file additional affidavits from their experts in which they assessed the significance of the applicant's performance in the recorded interview and explained how they thought it supports their respective [*17] positions with regard to whether the applicant is mentally retarded. Tellingly, however, none of the experts purported to be able to determine, based upon viewing the television interview alone, whether the applicant is mentally retarded. Indeed, we are unaware of any mental health experts who purport to be able to diagnose mental retardation, or the lack thereof, based solely upon viewing a videotaped interview. The convicting court addressed the television interview at some length in its findings of fact and conclusions of law. The convicting court regarded the interview as relevant specifically in the context of one of the Briseno factors, viz: Does the applicant respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? n20 In its recommended findings of fact and conclusions of law, the convicting court judge noted with obvious trepidation the conflicting opinions of the experts with respect to the interview. He remarked that to his untrained eye the applicant's responses did not seem "indicative of mental retardation." But he also noted that during the course of the interview the applicant did not respond in a spontaneous [*18] way to questions, but instead "just started talking." The interviewer asked few questions, testifying that for the most part she just let the applicant talk about whatever topics he chose. The convicting court noted the possibility that the applicant's apparent fluidity during the interview may simply have reflected "a learned by rote understanding of his case which he [was] then able to repeat when given an opportunity" after he had spent eleven years on death row communicating with his various lawyers. Unable firmly to resolve its ambivalence with respect to this particular Briseno factor, n21 the convicting court ultimately relied upon the totality of the evidence as it bore upon all of the other relevant criteria to conclude that the applicant had demonstrated adaptive deficits to the requisite level of confidence. We believe this was the right approach. Both the American Bar Association and the State Bar of Texas recognize the important role of experts in screening defendants for mental health issues, including mental retardation. n22 There is a reason that mental-health experts are important to this process; mildly mentally retarded individuals often learn to disguise their disabilities in a so-called "cloak of competence." n23 It is true, of course, that experts do not make the ultimate determination with respect to mental retardation; the convicting court as original fact finder makes the ultimate determination with respect to mental retardation, based upon all of the evidence and determinations of credibility. n24 Nevertheless, we cannot fault the convicting court judge for entertaining a healthy scepticism of his own ability to gauge mental retardation, vel non, based upon nothing more than his intuitive assessment of the appellant's performance during the media interview. We, too, have viewed the media interview. To our untrained eye, it conclusively demonstrates neither that the applicant is mentally retarded, nor that he is not. Under the circumstances, the convicting court was justified in relying upon the expert assessment of Dr. Garnett, who has thirty-five years of professional experience as a diagnostician in the field of mental retardation. From his three-hour clinical interview of the applicant, in combination with the results of the IQ testing and his review of the other evidence of adaptive deficits summarized above, Garnett concluded that the applicant is mentally retarded. In his expert opinion, the thirty-seven-minute media interview corroborated that conclusion. Not surprisingly, Dr. Edgerton drew a different conclusion and thought that the media interview corroborated his own, contrary view. This means that the record would also support a reasonable jurist's conclusion that the applicant has not established mental retardation [*23] by a preponderance of the evidence. On such a state of the record, we typically defer to the recommended findings and conclusions of the convicting court--here, that the evidence preponderates in favor of a finding that the applicant is mentally retarded. SUBSCRIBING & ARCHIVES: Capital Defense Weekly is normally written by Karl Keys. CDW is published forty (40) times (or so) a year.
1997-2007
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