N.C. OKs Ban on Executing Retarded

RALEIGH, N.C. - North Carolina was poised to become the 18thstate to ban executions of the mentally retarded after lawmakersapproved the measure Tuesday.

The new law would define as mentally retarded anyone whose IQ wasrecorded at 70 or lower before the age of 18, with ``significantlimitations in adaptive functioning'' at the same time.

The bill was sent to Gov. Mike Easley, whose spokesman said onlythat the governor will review it. Easley, a Democrat, is notexpected to oppose the measure, which passed with overwhelmingsupport in both Democratic-controlled houses of the legislature.

``I think in the long run, there's not anyone in this state thattruly says, 'No, I don't mind executing mentally retardedpeople,''' said Democratic Rep. Ron Sutton, a co-sponsor of theHouse bill.

Under the new law, a defendant could seek a pretrial hearing beforea judge. If the judge rules the accused is not retarded, defenseattorneys can bring up the issue during the sentencing phase; alljurors must agree the defendant is retarded to rule out a deathsentence.

A retarded person still could be sentenced to life in prison without parole for first-degree murder. The new law would apply to capital cases that begin after Oct. 1, though current death row inmates would have several months to seek hearings on the issue.

Seventeen states and the federal government already have some kind of ban on executions of the mentally retarded, according to the Death Penalty Information Center.

Rethinking Justice A Cleburne judge who helped write the state's laws says he now has concerns about the death penalty.

By Anthony Spangler - Star-Telegram Staff Writer - FORT WORTH - Thirty years after helping craft Texas' capital punishment laws, Senior State District Judge C.C. "Kit" Cooke is questioning the fairness of the death penalty.

During a statewide legal seminar last week in Corpus Christi, Cooke recalled the 11 death penalty cases he has presided over during his 23-year judicial career. He talked about how those trials have altered his feelings regarding Texas' ultimate punishment.

"I think the mood is changing in this country and people are realizing there are deficiencies in the system," said Cooke, 54, of Cleburne, a frequent visiting judge in Tarrant County. "We always think we've got the right person, but the system is not infallible. We need to make sure the system works."

Although Cooke still supports the death penalty, he has concerns about possible deficiencies in the system such as inadequate legal representation, access to DNA testing and the racial disparity of those executed.

"I was looking at it as a young politician, with about 90 percent of my district supporting the death penalty," said Cooke, referring to his service in Johnson County as a state representative when he was 24. "Now, from a judge's perspective and taking care of people's rights, I think it has a lot of flaws. I think it is appropriate in a limited number of cases."

His concerns were echoed earlier this month by U.S. Supreme Court Justice Sandra Day O'Connor.

At a meeting of the Minnesota Women Lawyers in Minneapolis, O'Connor expressed concerns about issues of innocence, adequate legal representation and whether the mentally retarded are being executed.

Her remarks could indicate a shift in the balance of power on the court because she has historically supported death penalty issues, said Richard Lazarus, law professor at Georgetown University Law School.

"Her remarks are potentially quite significant because the court has, on death penalty cases, been sharply divided on a 5-4 basis," said Lazarus, who specializes in Supreme Court issues.

"Since justices rarely speak publicly, she could be sending a general signal about her uneasiness of how the death penalty is being administered."

In Texas, 10 offenders have been executed this year, compared with 25 during the same period last year. Neither prison officials nor a spokeswoman for the attorney general's office could explain the change this year.

"I know the numbers reflect that, but we really could not find anything to quantify any sort of trend," spokeswoman Jane Shepperd said.

Several death penalty issues were addressed during the recent Texas legislative session, but there are differing opinions on whether they signal a change in support for capital punishment.

In May, lawmakers passed a bill to prohibit the execution of mentally retarded inmates, but Gov. Rick Perry vetoed the measure, calling it "fatally flawed."

Lawmakers also passed bills giving inmates greater access to DNA testing to verify claims of innocence and set new standards for publicly appointed lawyers. Both measures were signed into law.

Bills that would have allowed Texans to vote on a moratorium on executions, while the state's capital punishment policies were studied, passed committees in both houses of the Legislature but were never brought to the floor for a vote.

Maurie Levin, a lawyer with Texas Defender Service, a nonprofit group that assists Death Row inmates, said the Legislature's focus on death penalty issues this year is a "clear indication that the landscape is shifting."

"The Bush election shed a national spotlight on Texas' high rate of executions, and there has been attention on the systematic deficiencies in the system," she said. "Those problems are making everybody feel a little queasy about the death penalty."

But Sen. Robert Duncan, R-Lubbock, sponsor of Senate Bill 3, which allows inmates greater access to DNA testing, disagrees that the mood in Texas is changing.

"I don't think there is a philosophical change in support for the death penalty by citizens or legislators in Texas," said Duncan, who supported the bill to prohibit the execution of the mentally retarded.

"It is our responsibility as lawmakers to be sure those that get the death penalty deserve it and that there are no errors in administering that process."

Death penalty supporters in Texas said opposition groups use "misinformation" and "highly charged propaganda" to cast doubt on the legal system.

"If someone is wrongfully convicted, they should absolutely be released," said Dianne Clements, president of Houston-based Justice For All, a victims advocacy and pro-death penalty group. "The death penalty is the appropriate punishment for some offenders. We do an exceptional job of fairly convicting guilty people."

The risk of convicting an innocent person is what has caused Cooke anguish, particularly after the execution of Richard Wayne Jones on Aug. 22 last year.

Jones, who fatally stabbed 27-year-old Tammy Livingston of Hurst on Feb. 19, 1986, said, in his final words, "... I didn't commit this crime." Jones had contended that another man killed Livingston and that Jones confessed to the crime to protect his sister, who was with Jones when Livingston was abducted.

"Most Death Row inmates confess or want to clear their conscience before their execution," Cooke said. "Jones didn't. That's why it weighed so heavy, because I handled every portion of the case."

Cooke sent a letter to the clemency board rejecting Jones' claims that he was poorly represented by his attorneys.

"I might have written something different if he made a claim of innocence," Cooke said. "There were no mistakes made during the case. But the death penalty does make you second-guess."
Anthony Spangler,