May 10, 2003,

Retarded on death row in legal limbo State does little after high court ruling

By RACHEL GRAVES

Nearly a year after the U.S. Supreme Court banned execution of the mentally retarded, Texas officials have no idea how many of the 449 convicts on death row have the disability and no system in place to ensure that retarded inmates will not be put to death.

Instead, Texas' highest criminal court has been reluctant to delay executions, asking those who claim mental retardation -- some of whom may not have the right to a lawyer -- for a host of documents supporting their position.

Last month, the state refused to consider the retardation claims of a Harris County man, leaving it to the conservative 5th U.S. Circuit Court of Appeals to grant an 11th-hour postponement of the execution and order further investigation.

"The Texas Court of Criminal Appeals has once again abdicated its responsibility to see that justice be done," said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty. "The 5th Circuit is one of the two most conservative courts in the United States. When they have to step in, you know something is amiss."

Critics say that before the high court ruling last June, Texas had already executed at least six people who were demonstrably retarded. And now a combination of legal complications, judges' and lawyers' lack of knowledge about the disability and Texas officials' disinterest in addressing the issue has resulted in a failure, experts fear, to stop the execution of more mentally retarded people in the future.

Legislative efforts to comply with the Supreme Court ruling are focused on identifying the mentally retarded before trial, not finding those already on death row.

"People facing the death penalty here are dependent on the good will of their lawyers," Houston defense attorney Dick Burr said. "It means that some people are lucky and others are not."

With no systematic effort to find and remove qualifying inmates from death row, as North Carolina and other states have done, one can only guess how many mentally retarded are still awaiting execution. Texas prisons routinely administer IQ tests to all incoming prisoners -- except those on death row, since these inmates are not eligible for special placement.

Statewide, about 3 percent of the population is mentally retarded, according to the Texas Department of Mental Health and Mental Retardation.

But considering that 7 percent of Texas convicts tested have IQs below 70, a commonly accepted benchmark for mental retardation, there could be 31 condemned inmates who qualify to have their death sentences lifted.

At least 12 inmates have already received delays of their execution dates while the courts consider their retardation claims, and a handful of appellate attorneys are taking on the daunting task of scouring school and psychiatric records looking for low IQ test scores or hints that a client's retardation may have gone unrecognized.

Burr spent $5,000 of his own money and 100 hours of his time to secure an execution delay for one of his clients, Jose Briseno. Burr expects to be reimbursed for the money he spent to hire an expert to evaluate Briseno but not to be compensated for his work.

Defenders of Texas' execution procedures, including Gov. Rick Perry, say the system already had safeguards in place and they have no reason to believe anyone on death row is mentally retarded.

"I don't know of any who are mentally retarded," Roe Wilson, the assistant district attorney who handles most of Harris County's capital appeals, said of death row offenders prosecuted in Houston.

In ruling last June that executing the mentally retarded is cruel and unusual punishment, the Supreme Court left it up to the states to define the disability and prevent execution of those who have it. In many states, lawmakers are still grappling with proposals for new laws.

Texas House and Senate leaders disagree over whether retardation should be determined before or after the guilt phase of the trial. State senators are threatening to block a bill passed by the House. A separate Senate bill has not come up for a vote yet.

The American Association on Mental Retardation defines the disability as one that starts before age 18 and is characterized by "significant limitations both in intellectual functioning and adaptive behavior as expressed in conceptual, social and practical adaptive skills."

While some states have adopted formal procedures to identify those already on death row who are mentally retarded, Texas has done nothing. It is up to individual lawyers to figure out if their clients are mentally retarded, mount appeals and persuade a court that many see as hostile.

"The only way that you're going to know that someone on death row is mentally retarded is if his or her lawyer does the homework to figure it out," said Jim Marcus, executive director of Texas Defender Service, a legal nonprofit group that represents some death row convicts and provides help to other lawyers.

Marcus and others point out that Texas has legendary tales of court-appointed lawyers sleeping during trials, failing to call witnesses in defense of their clients and otherwise botching their work. Even many good lawyers, they add, are ill-equipped to deal with mental retardation, which can be difficult to identify and is an entirely new field for most lawyers and judges.

 Texas Attorney General Greg Abbott declined to be interviewed for this tory, citing both pending litigation and the ongoing discussions in the Legislature. Perry's office did not return phone calls, but the governor has voiced opposition in the past to the Supreme Court decision.

"We do not execute mentally retarded murderers today," he said before the ruling.

 The Court of Criminal Appeals, the first court to determine whether mental retardation claims warrant a delayed execution date, has denied many claims on the grounds that they lack sufficient evidence.

"A writ application which makes the naked assertion, `I am mentally retarded,' obviously does not suffice," said an opinion written in February by Judge Cathy Cochran in denying Houston killer Richard Head Williams' mental retardation claim. "If it did, every inmate on death row would be equally entitled to file a subsequent writ in the hope that something, somewhere might turn up to support this bare assertion."

Williams was executed Feb. 25 for a contract murder six years ago.

The court demanded, in the Williams opinion, at least one IQ test showing mental retardation and said it would prefer several IQ tests taken before the age of 18, school and medical records, and affidavits from qualified experts before granting hearings on the claim.

The 5th Circuit, in sharp contrast, has granted execution delays on the grounds of mental retardation for several of the inmates turned down by the Texas court.

In delaying the execution of Kenneth Wayne Morris last month, the 5th Circuit ruled that even without an IQ test or any proof that Morris is mentally retarded, he should be given a hearing "allowing the district court to make a more informed judgment."

In the written opinion, Judge Patrick Higginbotham acknowledged the challenge in determining mental retardation through school records, "given the wide practice of social promotions and the reluctance of school officials' use of the stigmatizing term `retarded.' "

Cochran, of the Texas Court of Criminal Appeals, declined to speak specifically about its stance on mental retardation because she expects to be ruling in more such cases. But she said the court is fulfilling its responsibility.

"Of course I would be very concerned that every person got his full measure of due process," she said. "Our court always tries to follow exactly what the United States Supreme Court says."

Some see the court's skepticism about mental retardation claims as appropriate, calling the issue the "brass ring" to get off death row.

"Making a claim of mental retardation does not necessarily mean mental retardation," said Dianne Clements, president of the Houston-based victims advocacy group Justice for All.Clements believes that every claim of mental retardation will be explored, "whether it's bogus or not."

Defense lawyers point out, though, that death row offenders who have completed their process of state and federal appeals are no longer entitled to a lawyer. Some lawyers have voluntarily stayed on to argue mental retardation claims without pay, and the Texas Defender Service has picked up some cases.

Others may have simply been deserted.

One lawyer, finished with his court-required responsibilities, posted a message on a listserv for lawyers asking if anyone wanted to take over the case he was planning to abandon, Marcus said.

"Who's going to write the petition and file it?" Marcus asked. "Is it going to be the mentally retarded guy on death row? I don't think so."

And because Texas pays lawyers by the hour instead of having a salaried group of public defenders, lawyers who spend their time searching for evidence of mental retardation have no guarantee of getting paid for their work, said defense attorney Burr. He hopes lawyers will stay on to keep their clients from being executed but said they have no legal obligation to do so.

Prosecutor Wilson said she was not aware "of any cases where the attorneys have abandoned their clients."

Wilson believes that offenders' lawyers are in the best position to determine whether mental retardation claims should be made because they have more interaction with their client than others do.

She said money is readily available for lawyers who need to hire experts.

Defense lawyers, though, report varied experiences getting money to hire experts and do other work. While Burr was forced to spend his own money for one client, the court granted him money in another case.

Whether the mentally retarded already on death row will be spared execution is "hit or miss," he said. "The first problem is, `Will lawyers even look (for evidence of mental retardation)?' The second problem is how able they will be to look without funding."

Some lawyers also say their colleagues are not equipped to determine mental retardation, a disability that experts say can be masked by those who suffer from it.

"This is a whole new body of litigation," said Michael Charlton, who represents Morris and is planning mental retardation appeals for seven or eight of his Texas clients, most from Harris County. "It's made the prosecution and the defense of capital murder cases vastly more complicated."

At least 12 Texas executions have been delayed on the grounds of mental retardation. All are still in legal limbo.

One of those inmates, Willie Mack Moddon, last month won an opinion from a state district judge in Lufkin that he is mentally retarded. Moddon has agreed to be sentenced to five consecutive life terms instead of execution.

The Court of Criminal Appeals still must rule in the case.

Meanwhile, Moddon sits on death row, where he has been since 1985.

At 55, with graying curly hair and a two-day beard, Moddon has a placid expression, even as he admits to stabbing a woman to death during a robbery in Lufkin in 1984.

He talks little, mostly responding to questions with a nod or shake of his head. When he does speak, his words are slurred and his vocabulary poor.

He believes the Supreme Court made the right decision in banning execution of the mentally retarded because, he says, he does not know the difference  between right and wrong.

"If somebody tell me to do something, I just go ahead and do it, regardless of what it is," he said. "A lot of people tell me, `You don't know nothing.

You don't know nothing right from wrong.' "