TEXAS: Controversial execution halted----Circuit court finds that convicted murderer's mental ability is in doubt

14/08/03 - A federal appeals court stopped the execution of Jose Alfredo Rivera late Wednesday because of lingering questions about whether he fits the legal definition of mental retardation, which would render his execution unconstitutional.

Rivera waited in small holding cell near the Huntsville death chamber for almost three hours past his scheduled 6 p.m. execution as defense lawyers frantically attempted to persuade the Texas Court of Criminal Appeals, the U.S. 5th Circuit Court of Appeals or the U.S. Supreme Court to consider recent evidence from 2 experts indicating that Rivera might be mentally retarded.

Ultimately, a 3-judge panel of the 5th Circuit ruled that there was enough evidence of Rivera's diminished mental ability to justify a stay. A federal district court will now be asked to determine whether he is mentally retarded.

Rivera was informed of the reprieve by a prison chaplain. He already had eaten his final meal, which included tamales and enchiladas.

"He said he was not surprised, because he has faith," Texas Department of Criminal Justice spokeswoman Michelle Lyons said. "He was praying with the chaplain and wearing a black beaded rosary."

The nation's high court ruled last year that executing mentally retarded inmates is cruel and unusual punishment and violates the U.S. Constitution.

When Rivera was convicted in 1994 for the sexual assault and murder of a 3-year-old Brownsville boy, mental retardation did not automatically bar a death sentence, so the precise state of his mental abilities was never determined.

Rivera's appeals were largely based on statements from two mental health experts who recently reviewed his case and concluded that he might well be retarded but that further testing is needed.

Attorney General Greg Abbott's office fended off the appeals for most of the day by arguing that Rivera's lawyers did not follow proper legal procedures in raising the argument.

Because evidence of Rivera's possible retardation was not presented early enough or in the proper legal sequence, Abbott's office argued, the appeals courts "should refuse to consider the evidence."

The 5th Circuit judges initially accepted Abbott's argument and rejected the appeal. Rivera's lawyers refiled their appeals using a different legal path, and the stay was granted.

The Texas Court of Criminal Appeals twice rejected the appeals, and the U.S. Supreme Court also rebuffed the case once before the stay was finally granted.

Gov. Rick Perry declined to grant a reprieve as the legal roller coaster continued into the evening.

Neither Perry's or Abbott's offices would comment on the case.

"I think what this really illustrates has been how form has been elevated over substance so much in these proceedings," said Jim Marcus of the Texas Defender Service, which spearheaded Rivera's appeals. "If we hadn't gone back to the courts a 2nd time, Mr. Rivera would be executed by now."

Bryce Benjet, another of Rivera's appeals attorneys, said lawyers will now "have the opportunity to fully litigate this claim of mental retardation at a rational pace."

Rivera and Veronica Zavala were convicted for the brutal slaying of Luis Blanco, who was sexually assaulted and strangled with his own underwear before his body was thrown into a lake.

Zavala, who received a life sentence, implicated Rivera in the killing. But she has since recanted, saying she identified Rivera only after police pressured her to name an accomplice.

Rivera, who had a history of violence and a criminal record that included assault, robbery and carrying illegal weapons, was arrested on Zavala's word. He confessed to the killing after lengthy questioning by police, and the confession was the primary evidence against him presented at trial.

Rivera later insisted that he was innocent and confessed only after aggressive police bullying.

"She tried to blame it all on me," Rivera said in a recent interview. "She named me so she would get away with it. If I had been there, that boy would be alive. If I have to, I get executed. My conscience is clear."

The possibility that Rivera is mentally retarded undermines not only the constitutionality of his execution, his attorneys argued, but also the validity of the confession that sent him to death row in the first place.

The "possibility of false confessions" by people with mental retardation who feel pressured to please authority figures was one of the reasons cited by the U.S. Supreme Court in banning their execution.

A psychiatrist and a psychologist who reviewed Rivera's school records and life history recently concluded that Rivera, 40, might be mentally retarded.

Psychologist Richard Garnett noted that Rivera flunked special education classes, could scarcely read or write and, according to family members, could not fill out job applications, make change for a dollar or tell time.

Rivera also began sniffing paint when he was 14, which could have caused further brain damage, Garnett wrote in a report prepared for defense attorneys.

Garnett found Rivera's case to be "consistent with a diagnosis of mental retardation" but said more tests were necessary to reach a definitive diagnosis.

Garnett's report was largely the basis of the federal court's decision to issue a stay.

Executing mentally retarded killers

June 26, 1989: The U.S. Supreme Court rules in a Texas case, Penry v. Lynaugh, that executing mentally retarded killers is not cruel and unusual punishment. The court says, however, that juries must be allowed to consider retardation when deciding whether a convicted killer should be executed.

1989-2002: 16 states outlaw execution of mentally retarded defendants, joining 2 states that outlawed the practice before the Penry decision. The number of states with such a ban -- or no death penalty -- reaches 30.

June 17, 2001: Gov. Rick Perry vetoes legislation to ban execution of mentally retarded killers in Texas.

June 20, 2002: Citing changing public opinion and evolution of state law, the U.S. Supreme Court rules in Atkins v. Virginia that executing mentally retarded killers has come to be viewed as cruel and unusual punishment, and is thus unconstitutional.

April 9, 2003: A bill establishing a procedure for inmates on Texas' death row to claim mental retardation is referred to a Senate committee, where it languishes for the rest of the legislative session.