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TEXAS - Stay of execution

Another killer granted reprieve -- High court responds to assertion that inmate is mentally retarded

In a move that may telegraph the U.S. Supreme Court's growing concern over the execution of the mentally retarded, a Texas inmate got a reprieve just hours before he was scheduled to die by injection.

 Attorneys for Brian Edward Davis, 33, who was convicted of capital murder for a 1991 stabbing, filed a petition with the nation's highest court Tuesday afternoon asserting that their client should not be executed because he is mentally retarded.

 Another Texas death row inmate received a stay from the Supreme Court last week after his attorneys alleged that he was mentally retarded. Curtis Moore also got his reprieve hours before he was to die. He was convicted in Fort Worth for killing 3 people in 1995.

 The Texas Court of Criminal Appeals rejected the petition raising mental retardation as an issue in Mr. Davis' case Tuesday morning, but Supreme Court justices issued a stay of execution Tuesday afternoon. Mr. Davis was to be put to death Tuesday evening.

In February, the Supreme Court heard arguments in a case that raises the question of whether the execution of mentally retarded offenders should be precluded by the nation's evolving standards of decency. The court could rule on that case, Atkins vs. Virginia, later this summer.

 In the meantime, however, more death penalty cases in which mental retardation is raised as an issue may be put on hold.

 In Mr. Davis' case, the Supreme Court had rejected an innocence claim by his attorneys, as well as arguments that his jury was not permitted to sufficiently consider mitigating circumstances when they chose his punishment. He had claimed he'd confessed to Mr. Foster's murder to protect his wife, who received immunity from prosecution, and, years later, confessed to the same crime and then recanted her confession.

 However, the petition alleging that Mr. Davis is mentally retarded struck a chord with the justices, even though that claim had not been made at his trial or in subsequent appeals.

 "It was not brought up," said Roe Wilson, chief of post-conviction writs for the Harris County district attorney's office. "He didn't become 'mentally retarded' until this morning, after his actual innocence claim failed. And he is not mentally retarded now."

 Mental retardation can be defined by a combination of factors, including an IQ of 70 or below, serious impairments in the individual's ability to cope with daily activities, so-called adaptive functioning, and a manifestation of symptoms before the age of 18.

 Greg Wiercioch, an attorney with the Texas Defender Service, a nonprofit group that handles capital-murder appeals, said Tuesday that there is significant evidence that Mr. Davis meets those criteria.

 Ms. Wilson said that Mr. Davis' attorneys have cited 2 IQs for Mr. Davis, both above 70.

 "And as far as his functioning in the world, his 'sub-average functioning,' there was none," she said. "If you watch the tape of his video confession, he's very articulate. He understands everything that is said. He's having a normal conversation."

 Mr. Davis fatally stabbed Michael Alan Foster in 1991.

 In his petition to the Supreme Court, Mr. Wiercioch wrote that an IQ test administered when Mr. Davis was 15 placed his IQ at 74, which, with a measurement error of 5 points, could place him within the range for mental retardation.

 Also, he wrote that Mr. Davis' impairments impacted his everyday functioning; he took 3 years to advance from the 1st to 2nd grade and received special education instruction.

 Mr. Wiercioch acknowledged Tuesday that in the past, Mr. Davis' attorneys had not asserted that client should not be executed because he was mentally retarded. But he argues that procedural faults in such a case should not stand in the way of a fair examination of the issue.

 The Atkins case, he said, involves what could become a "blanket prohibition" to executing mentally retarded offenders, not unlike similar prohibitions already in effect to the execution of people who are mentally ill and don't comprehend why they are being punished, or offenders under a certain age.

 Ms. Wilson described the Supreme Court's action Tuesday as an indication that, if allegations are made that an offender facing execution is mentally retarded, "they're just simply going to stay these executions."

 University of Houston law professor David Dow was not surprised that 2 stays had been issued in Texas, in as many weeks, by the U.S. Supreme Court on the issue of mental retardation. "It's not unheard of when there is one of these 'bottleneck' issues a significant constitutional issue that affects a number of death penalty cases," he said.

 Mr. Dow said he would be surprised "if all of a sudden everybody on death row who has even the thinnest claim of mental retardation starts to get a stay," but also said that could happen.

 "A broad ruling [in the Atkins case] on the question of whether the constitution prohibits the execution of mentally retarded inmates could have an extremely significant effect on the pace of executions in Texas," he said. "It's already having an effect, and it could have a much more significant effect."

08 mag 2002

by MICHAEL GRACZYK

HUNTSVILLE, Texas A white supremacist convicted of killing a man in 1991 won a reprieve from the U.S. Supreme Court two hours before his scheduled execution Tuesday.

 The court halted the execution after attorneys for Brian Davis, 33, said he is mentally retarded. The court has stopped a number of executions as it considers a Virginia case that challenges the constitutionality of executing retarded inmates. A ruling is expected before July.

 Davis denied killing Michael Foster, 31, who met Davis and Davis' wife at a Houston bar. Davis said his wife was responsible for stabbing Foster 11 times and beating and robbing him after they drove him home.

 Davis said his wife also used a pen to inscribe on Foster's abdomen a swastika and the letters <NSSH> _ which stood for National Society of Skinheads.

 Davis' now ex-wife, Tina McDonald, 31, has denied his claims. She is serving 40 years in prison for aggravated robbery with a deadly weapon and auto theft in an unrelated case.

 Roe Wilson, a Harris County assistant district attorney who handles capital case appeals, said nothing in the case suggests Davis is mentally retarded.

 <Ultimately, I think he'll be executed,> Wilson said