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Sentence of One of Alabama's Longest Serving Death Row Inmates Reduced After 30 Years

On December 6, Bobby Tarver, who had spent 30 years on Alabama's death row, finally had his death sentence reduced to life without parole by a state judge because of his intellectual disability. Tarver was Mobile County's longest-serving death row inmate, having been convicted in 1982 of murdering a taxi cab driver. Last September, a federal judge overruled state court opinions and held that Tarver could not be executed because of his mental retardation, thus concluding a years-long legal battle about Tarver’s mental capacity. The final ruling came ten years after the U.S. Supreme Court held in Atkins v. Virginia (2002) that it was unconstitutional to execute defendants with mental retardation.


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Former Death Row Inmate Imprisoned for 30 Years in Texas With No Conviction

 A former death row inmate with intellectual disabilities has languished in the Texas prison system for over 30 years despite having no valid criminal conviction. Jerry Hartfield, an illiterate man with an IQ of 51, had his capital conviction overturned in 1980 because the jury at his trial had been improperly selected. A Texas appeals court ordered a new trial for Hartfield, but that trial has never happened. In 1983, then-Governor Mark White attempted to commute Hartfield's former death sentence to life without parole. However, a federal court has recently ruled that the commutation was irrelevant since Hartfield was not convicted of a crime. No action had been taken on the case until 2006, when another inmate helped Hartfield file a handwritten motion, asking that he be either retried or set free. The Texas Court of Criminal Appeals rejected the petition, but a federal judge agreed with Hartfield, saying the decision overturning his conviction still stands.  U.S. District Court Judge Lynn Hughes said, "Hartfield's position is as straightforward and subtle as a freight train....The court's mandate was never recalled, its decision never overturned, the conviction never reinstated; yet Hartfield never received the 'entirely new trial' ordered by the court." The U.S. Court of Appeals for the Fifth Circuit called the state's defense of Hartfield's incarceration "disturbingly unprofessional" and returned the case to the Texas Court of Criminal Appeals for further action. Given the Sixth Amendment's right to a speedy trial, it is not clear that Hartfield could be re-tried.


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INTELLECTUAL DISABILITIES: Texas Stands Alone in Its Unusual Test of Mental Retardation and Exemption from Execution

Despite the U.S. Supreme Court's ban on the death penalty for defendants with mental retardation, Texas is planning to execute Marvin Wilson on August 7.  Wilson has an IQ of 61 and adaptive functioning levels even lower; the only board-certified expert to evaluate Mr. Wilson concluded he has mental retardation (now known as intellectual disability).  Wilson struggled in school, and dropped out after the 10th grade.  According to experts who assessed his mental health, Wilson continues to be unable to perform even the simplest tasks without assistance.  This intellectual disability typically manifests itself before the age of 18 and is objectively determined by mental health professionals, independent of the crime that put the defendant on death row.  Texas, however, insists that it can layer additional factors onto the test for retardation, factors not used by any other states, not based on scientific criteria, and which do relate to the original crime. This test is based on the “Briseño factors” (named after the Texas court decision that announced them), and allows an execution if (among other factors) the court determines the criminal offense required forethought, planning and complex execution.  The American Association on Intellectual and Developmental Disabilities wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” Attorneys for Wilson have filed a petition with the U.S. Supreme Court, asking it to consider whether the Briseño factors represent an unreasonable application of the Supreme Court’s ruling on mental retardation .


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Executions Scheduled for July 18 in Texas and Georgia Present Serious Mental Health Issues

Yokamon Hearn (pictured) is facing execution in Texas on July 18 despite clear evidence of brain damage since his early childhood. Hearn’s trial attorneys failed to conduct an adequate investigation into Hearn’s early history, which would have uncovered mitigating evidence that he was neglected by his parents and had a history of mental health problems. His mother's alcoholism was so severe that she drank to the point of passing out during her pregnancy with Mr. Hearn.  He has been diagnosed with a disabling condition known as Fetal Alcohol Syndrome.  Hearn’s current attorneys said there is a strong likelihood that one or more jurors would have reached a different sentencing conclusion had they been presented this important mitigating evidence.  Further interfering with an adequate review of Hearn's case is Texas's resistance to apply a recent Supreme Court decision regarding inadequate representation at both trial and appeal.  UPDATE: Hearn was executed on July 18.

In Georgia, the State Board of Pardons and Parole denied Warren Hill’s request to commute his death sentence on July 16. He, too, is scheduled to die on July 18. UPDATE: Execution date changed to July 23, as state changes to a single-drug execution protocol.  A recent article in The Atlantic noted the common thread in Hearn's and Hill's cases.  While in prison between the age of 28 and 33, Warren Hill tested at a grade level of approximately 6-7, and had an IQ within the range of mental retardation. Mr. Hill’s attorneys described his childhood: “Mr. Hill has suffered from neurological impairment since birth, manifested in a vulnerability to seizures and in mental retardation. During his school years, his teachers and fellow students regarded him as the slowest student in class. Because there were no special education programs available in the segregated schools attended by Mr. Hill, his teachers opted for 'social promotion,' an informal but then-common practice of moving students on to higher grades in spite of their inability to master age-appropriate work.”  Although a state judge agreed that Hill met the criteria for the diagnosis of mental retardation, the Georgia Supreme Court later said Hill failed to prove his intellectual disability “beyond a reasonable doubt.”  See Hill's Motion for a Stay of Execution filed with the U.S. Supreme Court on July 16.


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Ohio Governor Grants Clemency Based on Defendant's Mental Capacity

On July 10, Ohio Governor John Kasich (pictured) granted clemency to death row inmate John Eley, who was scheduled to be executed on July 26.  Eley's sentence was reduced to life in prison without parole. The governor said he based his decision on evidence that Eley acted under the direction of another person, and that his mental capacity was limited, saying, "Without those factors it is doubtful that Eley would have committed this crime." The prosecutor in the case and one of the judges who sentenced Eley to death called for mercy. The Ohio Parole Board voted 5-3 against recommending clemency.  Those who voted for clemency said that Eley's crime was not one of the "worst of the worst," and that similar crimes rarely receive death sentences. This is the third death-row clemency granted by Gov. Kasich, including two issued in 2011.


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EDITORIALS: "An Urgent Plea for Mercy"

A recent New York Times editorial encouraged the Georgia Board of Pardons and Paroles to reduce the sentence of death row inmate Warren Hill to life. Hill is facing execution on July 18.  The editorial noted that Mr. Hill's intellectual disabilities, including an IQ of 70, led the trial judge to find him mentally retarded. Georgia's Supreme Court, however, overturned the judge's ruling because mental retardation had not been proven "beyond a reasonable doubt." The Times noted that Georgia "is the only state with a statute requiring a defendant to meet [this] unfairly heavy burden," and added, "This unjust procedural requirement effectively denies protection for the mentally impaired, as required by the Eighth Amendment." The Times also said that clemency is appropriate for Hill because some jurors have said they would have sentenced him to life without parole if given the option, and the victim's family has said he should not be executed. See the full editorial below.


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Georgia Inmate Scheduled to Die Despite Initial Finding of Intellectual Disabilities

Warren HillWarren Hill (pictured) is scheduled to be executed on July 18 in Georgia despite being previously found intellectually disabled. The U.S. Supreme Court in Atkins v. Virgnia (2002) banned the execution of individuals with intellectual disabilities (mental retardation), but allowed each state to set guidelines for determining whether an inmate has such a condition. In Georgia, capital defendants are required to prove “mental retardation” beyond a reasonable doubt. It is the only state in the country that sets such a high burden of proof for such claims.  Earlier, a state judge found that Hill was intellectually disabled, but under a lower legal threshhold than is required in the statute. In 2003, the Georgia Supreme Court reversed the judge’s ruling in a 4-3 vote, holding that Hill’s lawyers had failed to clear the threshold of “beyond a reasonable doubt.”  Last year, the U.S. Court of Appeals for the Eleventh Circuit upheld the Georgia Supreme Court. Writing for the majority, Judge Frank Hull said federal law "mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise." Brian Kammer, one of Hill’s lawyers, said he will ask the Board of Pardons and Paroles to grant Hill clemency. Kammer said, “Executing Warren Hill, a 52-year-old man whom a court has found to be more likely than not mentally retarded, would be a terrible miscarriage of justice.”  UPDATE: On July 16, Georgia's Board of Pardons denied clemency. UPDATE: Georgia's Supreme Court stayed Hill's execution to review the state's lethal injection protocol. UPDATE 1/28/15: Warren Hill was executed on January 27, 2015. 


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EDITORIALS: Intellectual Disabilities and Death Sentences

The editors of the Birmingham News in Alabama recenlty called upon a trial court to overrule a jury's 10-2 recommendation for death in the case of Esaw Jackson because of his mental disabilities.  While noting that in many states Jackson would not even be eligible for the death penalty following a non-unanimous vote, the News added that an IQ test, conducted by a state expert on Jackson, showed an IQ of 56, well below the level that generally indicates an intellectual disability.  In 2002, the U.S. Supreme Court held that those with intellectual disabilities (mental retardation), cannot be sentenced to death.  The editors pointed out, “There are a number of reasons why intellectual disabilities are a reason for leniency: It stands to reason that someone without adequate intellectual capacity should not bear full legal responsibility for their actions. A strong case also can be made that people with diminished mental capabilities are at a disadvantage when it comes to defending themselves. Some intellectually disabled defendants, for instance, have confessed to crimes they didn't commit.” The editorial concluded, “If Jackson is intellectually incapable of bearing full responsibility for his actions, he not only should not be put to death - he cannot be under the law. Staging not just one but two capital trials was a colossal waste of time and money. [The judge] can avoid throwing more money down the drain by simply sentencing Jackson to life in prison with no chance for parole.”


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The Angolite Tells the Story of a Wrongful Execution in Colorado

A recent issue of The Angolite, a magazine published by prison inmates at the Louisiana State Penitentiary in Angola, highlights the story of Joe Arridy, who was executed in 1939 in Colorado. Arridy was sentenced to death in 1937 for the murder and sexual assault of a teenage girl. After his execution, facts pointing to Arridy’s innocence gradually emerged. New evidence showed that he had been coerced into giving a false confession, that he was not in town at the time of the crime, and that another person had admitted to committing the crime. In addition, Arridy had an IQ of 46, and was easily led by police. One psychiatrist, Dr. B.L. Jefferson, testified that Arridy had the mind of a child of about six years old and was not capable in aiding in his defense or of giving a reliable confession. On death row, Arridy spent his days playing with toys and requested ice cream for his last three meals. Witnesses say he stepped into the gas chamber still grinning like a little boy.  On January 7, 2011, Colorado Governor Bill Ritter granted Arridy a full and unconditional posthumous pardon.


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South Carolina Inmate Released After Nearly 30 Years on Death Row

Edward Lee Elmore was released from prison in South Carolina on March 2 after agreeing to a plea arrangement in which he maintained his innocence but agreed the state could re-convict him of murder in a new trial.  He had been on death row for nearly 30 years after being convicted and sentenced to death in 1982 for the sexual assault and murder of an elderly woman in Greenwood, South Carolina. The state's case was based on evidence gathered from a questionable investigation and on testimony with glaring discrepancies. Elmore’s appellate lawyers discovered evidence pointing to Elmore's possible innocence that prosecutors had withheld. Originally, state officials repeatedly claimed the evidence had been lost. The evidence included a hair sample collected from the crime scene. After being tested for DNA, the evidence suggested an unknown Caucasian man may have been the killer.  In February 2010, Elmore was found to have intellectual disabilities and thus was ineligible for execution; he was taken off death row.  In November 2011, the U.S. Court of Appeals for the Fourth Circuit granted him a new trial because of the prosecutorial misconduct in handling the evidence. The court found there was  “persuasive evidence that the agents were outright dishonest,” and there was “further evidence of police ineptitude and deceit.”


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