New York Times


WASHINGTON, July 22 - Mario Marquez did not deny raping and murdering his 18-year-old wife and her 14-year-old niece, the crimes for which he was convicted in 1984 and executed 11 years later.

But on appeal, Mr. Marquez’s lawyers presented evidence that he was mentally retarded and suffered from severe brain damage, the result of beatings by his father, with sticks, whips and clubs. When he was 25, Mr. Marquez had difficulty counting money and thought the five largest cities in the United States were Montana, Oregon, Wisconsin, New York and New Orleans, according to a test given to him by a state-appointed psychologist.

The State of Texas did not dispute any of this. A Texas district court, in ruling on one of Mr. Marquez’s appeals, found that he was “a damaged child functioning in an adult life” and that he was “mildly mentally retarded,” with an intelligence quotient of 65 to 70, compared with a normal I.Q. of about 100.

Mr. Marquez was one of six retarded inmates executed since 1990 by

Texas, according to the Death Penalty Information Center, a nonprofit organization in Washington. Alabama, Florida, Louisiana and Virginia each executed four retarded inmates and South Carolina executed three, according to the center. In all, the center lists 35 such cases in 12 states.

The debate about whether any mentally retarded person should be executed has intensified recently, as state governments and the Supreme Court are addressing the issue.

In June, Gov. Rick Perry of Texas went against the trend in other states when he vetoed a bill that would have barred the execution of the mentally retarded. Mr. Perry denied that Texas had executed anyone who was mentally retarded.

This month, when he signed legislation that prohibits the execution of the mentally retarded, Gov. Bob Holden of Missouri said, “I realize this is now a national issue since the governor of Texas refused to sign a similar bill, but I believe this is the right thing to do.” Two weeks later, Connecticut
enacted a similar law.

Of the 38 states with the death penalty, 17 prohibit the execution of the mentally retarded, as do the federal government and the District of Columbia.

In the fall, the Supreme Court will hear arguments from the lawyers who say that executing someone who is mentally retarded is cruel and unusual punishment, in violation of the Eighth Amendment. The death row inmate in the case is Ernest P. McCarver, who was convicted in North Carolina for the murder of a fellow cafeteria worker. Mr. McCarver has an I.Q. of 67. In general terms, people are considered mentally retarded if they have I.Q.’s below 70, have difficulty performing everyday tasks and have shown signs of the condition before age 18.

In 1989, when only two states barred the execution of the retarded, the Supreme Court ruled, in the case of Johnny Paul Penry, a Texas death row inmate whose I.Q. is 51 to 63, that the Eighth Amendment does not proscribe execution of the mentally retarded. But the court said procedural flaws in Mr. Penry’s case precluded his execution, and this year, after he was sentenced to death again, the court again spared him, ruling that the jury had not been properly instructed on how to consider the evidence of Mr. Penry’s retardation when deciding on the sentence.

One month after the 1989 decision in the Penry case, Alabama executed Horace Dunkins, who had been convicted of raping and murdering a 26-year-old mother of four. Mr. Dunkins had an I.Q. of 69 and the reasoning skills of a 12-year-old, but this evidence was never presented to a jury.
After one juror learned of it later, she signed an affidavit saying she never would have voted for the death penalty had she known of Mr. Dunkins’s mental retardation.

The first state to pass a law to protect the mentally retarded was Georgia, largely because of a public outcry following the execution in 1988 of Jerome Bowden, who was convicted of robbing and killing a 55-year old woman and severely beating her mother. Mr. Bowden’s school records showed he had an I.Q. of 59. As an adult he could not count to 10, and he worked mopping floors at Goodwill Industries, in a program for the mentally retarded.

At trial, Mr. Bowden’s lawyers presented none of the evidence of his mental retardation to the jury. When his appellate lawyers, who found the school records and other evidence of retardation, tried to raise the issue in federal court, they were barred from doing so, because the issue had not been
raised during the trial.

In rejecting Mr. Bowden’s appeal for clemency, the Georgia Board of Pardons and Paroles said he “knew right from wrong.” That is often the standard that officials give when they assert that no mentally retarded person has been executed in their states. Governor Perry of Texas said the six inmates executed in his state who experts say were mentally retarded were not because they “knew what they were doing was wrong.”

But this is confusing two tests of a defendant’s mental state. Whether a defendant knows right from wrong is the test for criminal insanity - a defendant who does not know right from wrong may be found not guilty by reason of insanity. Most mentally retarded people are not insane, and they know right from wrong. In states that prohibit the execution of the mentally retarded, the question of whether a person is mentally retarded is raised in the sentencing phase of the trial, after the defendant has been found guilty.

Although there is no question of his sanity, Mr. Bowden’s appellate lawyers say there is a good chance he was innocent.

An accomplice received a life sentence in exchange for testifying against Mr. Bowden. Initially, Mr. Bowden denied having killed the woman, saying his friend had done it. But then the police brought a document to him in his cell. He could not read it. But he signed it. It was a confession.

Confessions by a person who is mentally retarded are highly problematic, mental health experts say, because retarded people often are susceptible to suggestion and eager to please the authorities.

“You can talk them into things,” said Timothy Derning, a psychologist who has been an expert witness in capital cases around the country. “They may know right from wrong, but they don’t trust their own opinions. For this reason, they often confess.”

The execution of Mr. Bowden, in 1988, was “such a hideous occurrence that it shamed the Legislature into passing the retardation law,” said August Siemon, an Atlanta lawyer who represented Mr. Bowden in his appeals. But it is not a very satisfactory law from the view of defendants who are mentally retarded, Mr. Siemon said, because it requires them to prove their retardation beyond a reasonable doubt.

Most of the states that have laws banning the execution of the mentally retarded, including New York, only require defendants to prove their condition by a “preponderance of the evidence.”

The law in Arizona, which the governor signed in April, requires the court to appoint a psychologist to examine a defendant in a capital case, and if the defendant’s I.Q. is below 75, then further testing by psychologists is required. Ultimately, the judge, not the jury, decides if a defendant is mentally retarded.

In 1996, Arizona executed Luis Mata, who was convicted of rape and murder. He had been born with water on the brain, and he fractured his skull when he was 6. He had an I.Q. of between 65 and 70, and as an adult he could only count on his fingers. None of this evidence was presented to the
jury, and years later, when the prosecutor learned of it, he said he was “shocked and upset.”

In an affidavit, the prosecutor, Michael Donovan, said that had he been aware of the evidence of Mr. Mata’s mental retardation, “I would not have requested or pursued a death sentence.”