Ashcroft Says Retarded Man No Longer Faces Death Penalty

By DAN BARRY 

In a sudden about-face on a capital case, Attorney General John Ashcroft has decided to end his pursuit of the death penalty against a mentally retarded Brooklyn man who is on trial on murder charges in Binghamton, N.Y., a Justice Department spokesman confirmed last night.

"The attorney general has signed off on this," said the spokesman, Bryan Sierra. "He is directing the withdrawal of the notice of intention to seek the death penalty with respect to this particular defendant," whose name is Christopher Lloyd McMillian.

Mr. Sierra declined to elaborate on the reasons behind Mr. Ashcroft's decision. But defense lawyers say that federal prosecutors in Binghamton have told them that the government now concurs with the defense's contention that Mr. McMillian is mentally retarded. Mr. McMillian's case was the focus of a story that appeared on Tuesday in The New York Times.
Terence L. Kindlon, one of Mr. McMillian's lawyers, said prosecutors told the defense team last night that they would file formal notice of the Justice Department's decision today in United States District Court in Binghamton.

"I can't imagine receiving better news," Mr. Kindlon said. "I'm walking on air."

Mr. McMillian, 33, and two co-defendants are accused of beating, robbing and strangling a Binghamton drug dealer in January 2000, and with participating in a gang-related interstate conspiracy to sell crack cocaine. But the question of Mr. McMillian's mental abilities has loomed over the case for nearly two years now, after members of his defense team began to suspect that he was retarded.

Joan Kline Podkul, a mitigation investigator assigned to the case, spent several months uncovering Mr. McMillian's school and medical records, which demonstrated a history of cognitive difficulties dating back to the man's troubled early childhood. He frequently banged his head and rocked back and forth, for example, and by the age of 5 required Valium to curb his hyperactivity.

Last June, Mr. Kindlon and another defense lawyer, Christopher Pogson, traveled to Washington for a brief appearance before the Attorney General's Review Committee
on Capital Cases, which makes recommendations on death penalty cases to Mr. Ashcroft. Mr. Kindlon argued that Mr. McMillian was identified as brain-injured when very young, that he had great difficulty synthesizing information, and that federal statutes prohibit the execution of the mentally retarded.

Mr. Kindlon made his argument just days after the Supreme Court's ruling in Atkins v. Virginia, in which the court declared the execution of mentally retarded people to be cruel and unusual punishment, and therefore unconstitutional. Nevertheless, the next month, Mr. Ashcroft instructed prosecutors in Binghamton to seek the death penalty against Mr. McMillian and his co-defendants, Lavin Matthews and Tebiah Tucker.

But defense lawyers continued to pursue their suspicion that Mr. McMillian was mentally retarded, and therefore not eligible for the death penalty. Late last year, they retained Dr. Jerid M. Fisher, a neuropsychologist from Rochester, to examine their client.

The American Association on Mental Retardation defines the disability as including "significant limitation" in intellectual functioning and adaptive behavior, and an I.Q. of approximately 70 or below. It also says these limitations should be in evidence before the age of 18. According to Dr. Fisher, Mr. McMillian's I.Q. was measured at about 67.

 To illustrate Mr. McMillian's trouble with abstract thought, Dr. Fisher reported that the defendant did not seem to understand the concept of his Miranda right against self-incrimination. The doctor said that when Mr. McMillian was asked to define "afford" in the part of the Miranda warning that reads, "If you cannot afford a lawyer," he answered, "Like a Ford car. . . . I like Cadillacs."

Mr. Kindlon forwarded a copy of Dr. Fisher's report to the prosecution. When the lawyer learned this month that the prosecution's expert, a California neuropsychologist named Dr. Daniel Martell, concurred with Dr. Fisher's assessment, he asked to have the death penalty notice against Mr. McMillian withdrawn.

The McMillian case has gained some notoriety among lawyers opposed to the death penalty. They say it demonstrates the pitfalls of the Justice Department's plan to establish nationwide consistency in decisions regarding capital punishment.