www.thenation.com
If 54-year-old Marvin Wilson is put to
death on Tuesday, it will not be because Texas denies that he is
intellectually disabled, or as the legal literature puts it, “mentally
retarded.” This much, the state recognizes. It just does not believe
that Wilson is disabled enough to be executed in Texas—a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that “the mentally retarded should be categorically excluded from execution,” period.
Thus, barring a last-minute intervention,
a man who has been diagnosed with an IQ of 61 and who sucked his thumb
well into adulthood, now faces the prospect of being strapped to a
gurney and injected with lethal chemicals until he is pronounced dead.
“It doesn’t usually get to this point when you have an Atkins
claim this strong,” his lawyer, Lee Kovarsky, told me over the phone on
Sunday. “This claim is really sort of the worst of the worst.”
Kovarsky grew up in Texas and has seen
his share of death row injustices. Yet, clients like his are hardly
exceptional. “If getting the death penalty is like getting struck by
lightning,” he says, drawing on Justice Potter Stewart’s famous quote
about the arbitrariness of capital punishment, “then it seems to strike
offenders with MR a lot. Because their disability prevents them from
effectively disputing guilt or culpability, they end up on death row for
some of the least aggravated first-degree murders that are tried to
verdict.”
Indeed, a list compiled by the Death Penalty Information Center shows forty-four such prisoners executed before Atkins,
noting that some claiming intellectual disability have been killed
since then. Others, like Johnny Paul Penry—a man with an IQ of 56 who
did not know how many hours there were in a day, still believed in Santa
Claus and came within days of execution in 2000—are now imprisoned for life. (The DPIC lists twelve more Texas prisoners whose sentences were reduced after Atkins.) Just last month, Georgia death row inmate Warren Hill came close to execution
despite also being diagnosed as mentally retarded. (He lived to see
another day because of unrelated concerns, over the state’s lethal
injection protocol.) Weeks before that, Ohio Governor John Kasich
granted clemency to John Eley, in part due to concerns expressed by the former prosecutor in his case, over his “low intellectual functioning.”
Wilson was convicted for the 1992
kidnapping and killing of a police informant named Jerry Williams, who
had accused him of dealing cocaine. According to court filings,
“eyewitnesses saw two men—Mr. Wilson and his accomplice, Andrew
Lewis—attack Mr. Williams at Mike’s Grocery store in Beaumont, Texas.”
From there it gets murkey.
The eyewitness testimony as to the primary assailant was inconsistent…The eyewitnesses saw the assailants force Mr. Williams into a car, and one witness testified that, shortly thereafter, she heard what were either gunshots or noises from a nearby refinery. The forensic expert testified that attributes of the body strongly indicated that Mr. Williams was not killed immediately after the incident at Mike’s Grocery, but shortly before he was discovered at 7:00 a.m. the next morning…In light of evidence discovered on June 18 of last month, there have been and will be proceedings seeking to establish that Mr. Williams was entrapped in the early hours of November 10, that Mr. Wilson was not the shooter, and that he did not otherwise have a significant role in the murder that he did not know was about to take place. The evidence that Mr. Wilson was the principal perpetrator came from testimony of Terry Lewis, the wife of Mr. Wilson’s accomplice. Ms. Lewis testified that, when she became concerned that her husband pulled the trigger, Mr. Wilson calmed her by assuring her that Mr. Lewis was not the primary assailant.
“In short,” his lawyers argue, Wilson was
sentenced to die “under precisely the circumstances that make the
capital punishment of offenders with MR problematic: he was one of
multiple perpetrators, the eyewitness identification of the primary
assailant shifted over time, the more-sophisticated accomplice fingered
Mr. Wilson as the leader, and evidence of Mr. Wilson’s ‘confession’ came
from the accomplice’s wife.”
Putting aside the (rather salient)
question of whether Wilson actually committed the murder, there are
compelling reasons for the US Supreme Court to intervene. As Kovarksy
points out, the Court has been “showing a renewed interest in questions
of personal culpability,” a trend most recently on display in its ruling
in Miller v. Alabama,
which limited life without parole for juvenile offenders. What’s more,
he says, the Court is currently considering another case out of Texas,
which grapples with the state’s similar attempts to circumvent its
ruling in Atkins. In that case, attorneys for death row prisoner Elroy Chester argue that, while Atkins
“permitted states to adopt their own procedures for determining whether
someone suffers mental retardation, this deference to the states did
not authorize Texas to adopt a standard that permits the execution of
mentally retarded offenders.” Yet that’s precisely what has happened.
While most death penalty states have passed legislation to define what
qualifies as intellectual disability, based on similar clinical
standards as the Atkins court, Texas has not.
Instead, it focuses on a dubious set of
invented criteria that are known as the “Briseño factors.” Named after
another Texas death row case, these seven non-clinical measures are
meant to show whether a given defendant displays a “level and degree of
mental retardation at which a consensus of Texas citizens would agree
that a person should be exempted from the death penalty.” As an example,
the Briseño court cited the fictitious character of Lennie Small, the mentally impaired migrant worker from John Steinbeck’s novel, Of Mice and Men.
(“Most Texas citizens might agree that Steinbeck’s Lennie should, by
virtue of his lack of reasoning ability and adaptive skills, be exempt”
from execution, the court concluded.) These measures are rooted in
ignorance: notions that intellectually disabled people do not know right
from wrong, cannot lie in their own self-interest, are incapable of
leadership, and so on. The American Association on Intellectual and Developmental Disabilities
has described them as “based on false stereotypes about mental
retardation that effectively exclude all but the most severely
incapacitated.” What’s more, Kovarksy notes, they are “extraordinarily
elastic;” in a different case, Hall v. Texas, Wilson’s
attorneys argue, “the Briseño factors allowed the State to rely on a
co-worker, a waitress who served the defendant once, the arresting
detective, and prison guards who had limited contact with the defendant
to controvert three defense expert opinions.”
Based on his experience teaching sports to mentally challenged individuals, the eighteen-year-old co-worker opined that defendant Hall was not mentally retarded. One prison guard claimed that he “knew some kids in school with Down’s syndrome” and therefore did not think Hall was mentally retarded. Another guard asserted that her neighbor’s daughter was mentally retarded and that in her opinion Hall was not. A third guard had an uncle who was mentally retarded and reasoned that Hall “was nothing like his uncle.”
“There’s no psychological standard
setting body that has even suggested those factors are valid,” Kovarksy
says. And as a judge on Texas’s own Court of Criminal Appeals observed
in Lizcano v. Texas, “[W]e seem to have granted a certain
amorphous latitude to judges and juries in Texas to supply the normative
judgment—to say, in essence, what mental retardation means in Texas…Is
the Texas fact-finder at liberty to define mental retardation
differently than a consensus of Americans would define it for Eighth
Amendment purposes?”
That question should have been long since
resolved. As his client is prepared to be led to the death chamber,
Kovarsky says: ”If Texas executes Mr. Wilson, then the once-promising
Eighth Amendment rule against executing offenders with MR will have been
reduced to a capital exemption in name only.”
