Stay of Execution Granted for Brain-Damaged and Intellectually Impaired Texas Man Who Was Eighteen at Time of Crime

The U.S. Court of Appeals for the Fifth Circuit has stayed the exe­cu­tion of Texas death-row pris­on­er Dexter Darnell Johnson one day before he was sched­uled to die. The rul­ing, issued late in the day on August 14, 2019, per­mits Johnson to lit­i­gate his claim that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. The stay marked the sec­ond time in four months that fed­er­al courts inter­vened in Johnson’s case to halt a looming execution. 

On April 30, 2019, the U.S. District Court for the Southern District of Texas grant­ed Johnson a stay two days before a pri­or sched­uled exe­cu­tion so that his new­ly appoint­ed habeas cor­pus lawyers could have time to inves­ti­gate claims of pos­si­ble con­flicts of inter­est and inef­fec­tive rep­re­sen­ta­tion involv­ing his pri­or coun­sel. Although that order gave new coun­sel 90 days to devel­op those claims, bare­ly a week passed before Texas pros­e­cu­tors asked a state court judge in Harris County to set a new execution date. 

Johnson, who is brain dam­aged and intel­lec­tu­al­ly impaired and has been diag­nosed with schiz­o­phre­nia, was con­vict­ed and sen­tenced to death for the mur­ders of two teenagers in June 2006. He had turned 18 years old just days before the killings. Johnson’s lawyers sought a stay of exe­cu­tion in state court to lit­i­gate a range of issues relat­ing to men­tal health and intel­lec­tu­al dis­abil­i­ty and the pre­sen­ta­tion of what he claimed was false tes­ti­mo­ny at tri­al. However, the Texas Court of Criminal Appeals refused to address his claims and denied a stay. In fed­er­al court, his new lawyers sought to reopen his pri­or habeas cor­pus pro­ceed­ings, in which he had been rep­re­sent­ed by a lawyer who, his new lawyers said, had failed to prop­er­ly raise his claims in both state and fed­er­al court. He also request­ed per­mis­sion from the fed­er­al appeals court to file a new habeas cor­pus peti­tion seek­ing to show that he is intel­lec­tu­al­ly dis­abled. The Fifth Circuit declined to reopen his pri­or habeas pro­ceed­ings, but grant­ed him a stay on his intel­lec­tu­al disability claim. 

Johnson pre­sent­ed evi­dence to the fed­er­al court that he meets the def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty set forth in the DSM‑5, the most recent diag­nos­tic man­u­al used by psy­chi­a­trists and psy­chol­o­gists to diag­nose men­tal ill­ness and devel­op­ment dis­or­ders, such as intel­lec­tu­al dis­abil­i­ty. He argued that changes in the diag­no­sis of intel­lec­tu­al dis­abil­i­ty that were not avail­able to him at the time of his first habeas peti­tion now show that he is intel­lec­tu­al­ly dis­abled. Previously, Texas had denied Johnson’s intel­lec­tu­al dis­abil­i­ty claim, apply­ing an uncon­sti­tu­tion­al stan­dard that required him to score 70 or below on IQ tests. However, his test scores were slight­ly above that threshold. 

Johnson’s lawyers alleged in fed­er­al court that he ​“is an intel­lec­tu­al­ly dis­abled, brain-dam­aged schiz­o­phrenic who func­tions at the lev­el of a ten-year-old.” They pre­sent­ed evi­dence that he scored 70 on a recent IQ test, plac­ing him indis­putably with­in the range of intel­lec­tu­al dis­abil­i­ty. The Fifth Circuit deci­sion cat­a­logued a litany of adap­tive deficits that could per­mit a find­ing of intel­lec­tu­al dis­abil­i­ty, includ­ing: func­tion­ing at a sixth-grade lev­el in high school, an ​“inabil­i­ty to fol­low bus or walk­ing direc­tions,” ​“strug­gles with per­son­al hygiene,” and ​“inabil­i­ty to man­age mon­ey or his own affairs.” Johnson’s attor­ney has also not­ed that Johnson has a ​“pro­nounced stut­ter” and lim­i­ta­tions in lan­guage skills. The appeals court returned the case to the fed­er­al dis­trict court to con­duct a hear­ing to resolve Johnson’s claim. 

Prosecutors allege that Johnson and four oth­er teenagers engaged in a month-long crime spree in which they killed five peo­ple, includ­ing the two mur­ders for which he was sen­tenced to death. Johnson has main­tained his inno­cence of the crimes. In a January let­ter, he wrote, ​“I sim­ply refused to become a snitch which allowed my co-defen­dants to make up lies so they could all get plea deals.”