A recent editorial in the Houston Chronicle highlights the case of Texas death-row inmate Milton Mathis, whose IQ of 62 places him well below the threshold for intellectual disability (formerly called “mental retardation”). Mr. Mathis faces execution on June 21, despite the 2002 U.S. Supreme Court ruling in Atkins v. Virginia, which banned the execution of inmates with intellectual disabilities. The Chronicle noted, “If put to death, Milton Mathis would have one of the lowest — if not the lowest - undisputed IQ scores of any Texas inmate sentenced to capital punishment since that ruling took effect.” Mathis’ lawyers raised this issue in both his state and federal appeals, but the state court rejected the claim, and the federal court denied a stay, not realizing that doing so prevented further litigation in state court. The federal judge later realized her error, but at that point, she lacked jurisdiction to change the ruling. Andrea Keilen, executive director of the Texas Defender Service, said, “What is really troubling is that in this case process has trumped substance. The evidence of mental retardation is compelling, overwhelming, and, because the state courts heard it, the federal courts have not allowed the evidence to be introduced.” The Chronicle concluded: “In essence, barring federal intervention or the governor’s clemency, Texas will unlawfully and unjustly execute a mentally retarded individual because of legal technicalities and the state’s failure to weigh Mathis’ clinical condition.” Read full editorial below.

Let’s avoid a travesty: Court must act swiftly before Texas executes a mentally retarded individual

June 9, 2011

In 2002, the U.S. Supreme Court ruled it unconstitutional to execute a person with mental retardation. But on June 21 of this year, a mentally retarded Texas inmate is due to be executed. If put to death, Milton Mathis would have one of the lowest — if not the lowest - undisputed IQ scores of any Texas inmate sentenced to capital punishment since that ruling took effect.

In 1999, Mathis scored 62 on a standardized IQ test administered by the state correctional system - eight to 13 points below the threshold for mental retardation. Recent thorough examinations have supported that finding. But because of an unfortunate convergence of Texas procedure and federal judicial error, coupled with a state court that gave short shrift to his mental retardation claims, Mathis is close to losing his life. (A federal judge denied a stay of execution, not realizing that would preclude litigation in state district court. By the time she realized her error, the judge lacked jurisdiction to revise the ruling.)

Last week, attorneys for Mathis filed a brief asking the Fifth Circuit Court of Appeals to allow a review of the federal merits of his claim of mental retardation, and to stay execution to allow considerations to proceed deliberately. They also delivered a clemency petition to the office of Gov. Rick Perry.

Sentenced to die in 1999 for multiple-victim murders in Fort Bend County, Mathis - like all execution-eligible prisoners - was entitled to “a meaningful state appeals process and a meaningful federal appeals process,” said Andrea Keilen, executive director of the Texas Defender Service. It seems he got neither. He did go through a state process, which was hardly meaningful, and the federal process is in limbo, pending the outcome of last week’s filing.

The only expert to testify in the state proceeding, an experienced forensic psychologist, administered five different tests to Mathis, including the Wechsler Adult Intelligence Scale-Third Edition (WAIS III) - considered the gold standard of intelligence tests. She also interviewed him for a full day and reviewed affidavits and previous tests. On the WAIS III test he scored 64 - a little higher than the state had assessed in 1999. Her conclusion was that Mathis had mental retardation.

But the judge signed off on the proposed findings submitted by the prosecution, that Mathis was not mentally retarded, even though the state offered no testimony, nor did it test Mathis for mental retardation. It based its findings in part on a childhood IQ test score of 79 - a fact that experts say is not inconsistent with adult mental retardation. The state called the WAIS III test - the scientific standard - “too subjective” and cited “racial bias” that stereotypes African-Americans as having low IQs. It also cited Mathis’ ability to have sex, to lie, to baby-sit and to steal dogs as evidence he was not mentally retarded.

(Earlier this year, the Texas State Board of Examiners of Psychologists banned a Fort Worth doctor from testing inmates because he routinely used those same scoring practices to inflate IQ scores and make defendants death penalty-eligible.)

In essence, barring federal intervention or the governor’s clemency, Texas will unlawfully and unjustly execute a mentally retarded individual because of legal technicalities and the state’s failure to weigh Mathis’ clinical condition. “What is really troubling,” Keilen told the Chronicle, “is that in this case process has trumped substance. The evidence of mental retardation is compelling, overwhelming, and, because the state courts heard it, the federal courts have not allowed the evidence to be introduced.”

One wonders where is the justice in our justice system, when a state ignores the Supreme Court’s ruling in its haste to execute a mentally retarded person. We urge the Fifth Circuit Court of Appeals to act promptly and allow federal consideration of the merits of Mathis’ claim.

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