Retarded Inmates File Death Appeals

Jul 31, 2002

By ANDREW WELSH-HUGGINS

COLUMBUS, Ohio  - Attorney Larry Komp acted quickly after the U.S. Supreme Court  banned execution of the mentally retarded last month, filing an appeal for his own client less than two weeks later.

Allen Holloway, a convicted killer, has brain damage and an IQ that has been measured at 55 to 72, Komp said.

 "There's never been an expert that's said he wasn't mentally retarded," Komp said.

 At least 13 other inmates around the country have also sought reprieves in the weeks following the decision, and defense attorneys and prosecutors alike say dozens more are likely to follow.

 "Everybody on death row all of a sudden is going to become retarded and open the appeals process again," said Marvin White, Mississippi's assistant attorney general for capital litigation.

 No one, though, is expecting the high court ruling to spark an exodus from death row.

 "It's just another opportunity to put a speed bump in the process," Ohio Attorney General Betty Montgomery ( news, bio, voting record) said.

 An onslaught of appeals was predicted even before the Supreme Court reversed its previous position June 20 and ruled that executing mentally retarded murderers is unconstitutionally cruel.

 Ohio leads the appeals to date with nine, followed by Pennsylvania with two, Mississippi with two and Texas with one. David Bodiker, Ohio's public defender, estimates that about 50 of Ohio's 201 inmates awaiting execution are mentally retarded.

 Ohio, Pennsylvania, Mississippi and Texas are among 20 states that don't explicitly ban the execution of the mentally retarded. Attorneys in several of the other states also filed similar appeals before the ruling, based on the evidence before the court.

Pennsylvania already saw one of the first convicts taken off death row because of the decision. Earlier this month, prosecutors agreed to a life sentence for Arthur Faulkner after his attorney appealed based on the evidence in the Supreme Court case.

 The district attorney said Faulkner, who murdered two archaeologists in 1988, has brain damage and suffers from hallucinations.

 One Pennsylvania defense attorney acknowledged that attorneys might abuse the Supreme Court ruling but said the risk was worthwhile.

 "The alternative would be to put mentally retarded people to death," said Steven Fairlie, who is appealing the case of Nathan Scott. Fairlie said Scott, convicted of killing a dance instructor in King of Prussia, Pa., has an IQ of 69 and brain damage.

 The Supreme Court ruling in the case of Daryl Atkins � who killed a Langley Air Force Base airman during a robbery in 1996 � did not specifically define mental retardation but referred to guidelines set out by the American Association of Mental Retardation.

 According to those guidelines, to be deemed mentally retarded, individuals must have an IQ of 70 or below, have deficiencies in several areas such as the ability to hold down a job or communicate, and have been determined mentally retarded by age 18. Atkins' IQ was measured at 59.

 These standards are generally accepted by almost all states with little variation, although debates may arise over test results or the interpretation of a person's deficiency, said Robert Dinerstein, a dean at American University's Washington College of Law who follows death row cases involving mental retardation.

 Komp said he was optimistic that the ruling would benefit Holloway, who was sentenced to death in 1984 for strangling a Cincinnati woman.

 Now 48, Holloway was severely and repeatedly beaten as a child, denied food, sexually assaulted and neglected, court records show. He was born with a cleft palate, and his parents waited until he was 7 to have it treated.

 "This guy could be the poster child for getting rid of the death penalty," Komp said. Holloway's childhood was "just so abysmal and so bad � if this case doesn't move somebody, nothing will."