Missed Court Deadline Could Cost Mentally Retarded Man His Life

Though the U.S. Court of Appeals for the Fifth Circuit assumes that Texas death row inmate Marvin Lee Wilson is mentally retarded, it ruled that he cannot raise the issue in federal court because his defense attorney missed a filing deadline. The U.S. Supreme Court has banned the execution of those with mental retardation, but the Fifth Circuit stated that "however harsh the result may be" their hands are tied by deadlines established in the 1996 Antiterrorism and Effective Death Penalty Act.

Wilson is on death row for the 1992 kidnapping and murder of a police informant. At a hearing in 2004, Wilson's lawyers presented evidence that their client's IQ had been measured at 61, which meets the "70 or below" IQ threshold often used to identify those with mental retardation. The defense attorneys also presented testimony from a psychologist and a childhood friend, both of whom testified about Wilson's limited abilities. Despite that evidence, Judge Larry Gist of the state district court in Beaumont, Texas, ruled that Wilson had failed to prove that he was mentally retarded. Gist's decision was later affirmed by the Texas Court of Criminal Appeals. As Wilson's attorney prepared to present his client's case before the federal court, he said that he became tangled in the procedures and deadlines established in the 1996 federal law, an error that caused him to miss the federal filing deadline.

Noting that the U.S. Supreme Court similarly banned the execution of juvenile offenders, James Marcus of the Texas Defenser Service stated, "Executing someone who is categorically exempt from the death penalty would be new ground even for Texas. If Mr. Wilson had been 14 years old at the time of the crime but, in the eyes of the court, the issue was raised late, would it be O.K. for Texas to kill him? The question in this case is no different."

(New York Times, December 17, 2005).  See Mental Retardation.

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LEGAL UPDATES: Mental Retardation, Representation, Lethal Injections

Various courts issued rulings this week regarding issues important to capital punishment law:

The U.S. Supreme Court issued an unsigned opinion holding that it was improper for the U.S. Court of Appeals for the Ninth Circuit to require Arizona to have a jury determine a defendant's mental retardation status. The Court noted that Arizona's legislature had not yet addressed whether this issue should be decided by a judge or a jury. The case is Schriro v. Smith, No. 04-1475 (October 17, 2005). (See Washington Post, Oct. 18, 2005). See Mental Retardation.

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Johnny Paul Penry's Death Sentence Overturned for Third Time

Ruling that jurors in the most recent retrial of Johnny Paul Penry may not have properly considered his claims of mental impairment, the Texas Court of Criminal Appeals sent Penry's case back for re-sentencing. The Texas court's decision marks the third time that Penry's death sentence has been overturned during the past 16 years. The U.S. Supreme Court overturned his capital conviction in 1989 in Penry v. Lynaugh, a decision upholding the execution of defendants with mental retardation, but striking down the way that Texas courts considered this issue.  Penry was again sentenced to death, but in 2001 the Supreme Court threw out Penry's new death sentence because the jury was still not properly instructed about mental retardation. In 2002, as the Supreme Court was handing down its decision that the mentally retarded are exempted from the death penalty (Atkins v. Virginia), a trial court sentenced Penry to death for a third time.  The recent Texas Court of Criminal Appeals decision overturned this third sentence because the jury may not have understood that it could consider mental impairments beyond mental retardation as mitigating evidence. Penry was convicted of the 1979 rape and murder of Pamela Moseley Carpenter in East Texas. Defense experts have consistently noted that Penry's IQ is below 70, one indicia for those considered to be mentally retarded, and experts state that Penry remains very childlike in his abilities.

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Important Court Decisions in New Jersey and Louisiana

The Appellate Division of New Jersey's Superior Court in State v. Jimenez announced new procedures on August 17, 2005 for deciding claims of mental retardation by a defendant facing the death penalty:

(a) the State must be put to the burden of proving the absence of mental retardation when a colorable issue is presented; (b) the State's burden is to prove the absence of mental retardation beyond a reasonable doubt; (c) the jury must be the factfinder; and (d) a defendant may never be put to any burden of persuasion at any pretrial proceeding concerning the issue.
-from the concurring opinion. See the entire opinion:

In Louisiana on August 9, 2005 in a pre-trial ruling by Louisiana State District Court Judge Stephen Beasley in the case of State v. Jimmy Turner, 11th JDC, Sabine Parish, the court found Louisiana's law providing procedures for the determination of mental retardation in a capital case to be unconstitutional on several grounds. In particular, the court found the use of a death-qualified jury to make the finding of mental retardation to be prone to error.

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Ohio Death Row Inmate Spared Because of Mental Retardation

On August 9, 2005, the Court of Common Pleas Criminal Division in Hamilton County, Ohio, held that Darryl Gumm, a death row inmate, is mentally retarded. The decision came after Mr. Gumm filed a post-conviction petition in the state court following the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Gumm's case appears to be the first Ohio death row inmate to be declared mentally retarded and therefore unexecutable. (State v. Gumm, No. B-9205608)

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Virginia Insists on Execution Even in "Close Case" of Mental Retardation

Even though the state of Virginia admits that the question of Daryl Atkins' mental retardation is a "close case," it is still pursuing a lengthy jury trial to ensure his execution.  The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that those with mental retardation must be excluded from the death penalty, but they issued no opinion with regard to Mr. Atkins' mental status.  As the trial in Virginia began this week, Atkins' mother and former teachers testified about his long-term struggles in dealing with his disability, noting that he did not finish high school, could not get a driver's license, and was cut from the football team because he could not grasp the rules.

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BOOKS: Clemency
  • A new book by Professor Austin Sarat focuses on clemency's role in the U.S. criminal justice system: "Mercy on Trial: What It Means to Stop an Execution." According to U.S. Senator Edward Kennedy, "This thoughtful book should be read by every citizen who cares about the issue, and by every governor and president entrusted with the power to punish or pardon." In "Mercy on Trial," Sarat reviews the complexities of clemency and examines issues such as rehabilitation. (Princeton University Press, 2005).

See Books on the Death Penalty. See also Clemency.


  • "Justice Denied, Clemency Appeals in Death Penalty Cases" - In "Justice Denied: Clemency Appeals in Death Penalty Cases," (Northeastern University Press, 2002) Professor Cathleen Burnett examines Missouri's administration of the death penalty. While researching all 50 applications for executive clemency submitted to Missouri governors since the state's reinstatement of the death penalty in 1977, Burnett discovered a series of problems directly related to flawed police investigations, instances of prosecutorial misconduct, examples of inadequate defense counsel, and the appellate court's review of capital cases. She also investigated the political ramifications of death penalty cases for trial judges in capital cases and Missouri governors. See the University of Missouri-Kansas City's Press Release.

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Georgia Death Penalty Conviction Overturned Because of Prosecutorial Misconduct

A Georgia Superior Court overturned the murder conviction of death row inmate Willie Palmer after finding that prosecutors hid a $500 payoff to the state's key trial witness, an act the judge said was "in defiance of (the state's) legal and ethical duties." The judge also threw out Palmer's death sentence on the grounds that his trial lawyer failed to investigate and present evidence of Palmer's mental retardation.

In his opinion, the judge noted that prosecutors "intentionally hid" a deal made with the a state witness, and that prosecutors "aggressively resisted" the deal's disclosure until a hearing that took place 6 years after Palmer's 1997 trial. "It appears logically inescapable that the state knew, only too well, how extremely material this evidence was in this case. It is difficult, if not impossible, to conceive of how this suppression could have been done in good faith.... Without the jury being informed that the state has provided an important witness a pecuniary motivation to testify, the trial transforms into a basically corrupt process in which the jury is deprived of a major key to seeking and deciding the truth - and determining a man's fate," the judge wrote in ordering a new trial for Palmer. The State Attorney General's Office is appealing the ruling.

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