New York Times

August 7, 2000

By RAYMOND BONNER and SARA RIMER

LIVINGSTON, Tex., Aug. 2 — Oliver Cruz can bare­ly read and write. He has an I.Q. of either 64 or 76, depend­ing on the test. He flunked the sev­enth grade three times. He was reject­ed by the Army after fail­ing the entry exam three times, and unable to deci­pher a job appli­ca­tion, he did the menial work that came his way, cut­ting grass, clean­ing hous­es and tak­ing tick­ets for a traveling carnival.

Now, at 33, he has spent 12 years on death row in Livingston for the rape and mur­der of a 24-year-old woman, Kelly Donovan, who was sta­tioned at the Air Force base in Mr. Cruz’s home­town, San Antonio. Mr. Cruz, who in an inter­view this week took full respon­si­bil­i­ty for his crime and expressed anguished remorse, is sched­uled to die by lethal injec­tion on Wednesday at 6 p.m.

A defense psy­chol­o­gist tes­ti­fied at tri­al that tests, as well as a review of school records, showed Mr. Cruz to be men­tal­ly retard­ed. The state did not dis­pute this. Indeed, the pros­e­cu­tor argued that the fact that Mr. Cruz ​“may not be very smart” made him ​“more dan­ger­ous,” and so was a rea­son to sen­tence him to death.

Mr. Cruz awaits exe­cu­tion at a time when there is grow­ing oppo­si­tion across the coun­try to the exe­cu­tion of the men­tal­ly retard­ed. Federal law, approved by President Ronald Reagan, bars the exe­cu­tion of the men­tal­ly retard­ed con­vict­ed in fed­er­al courts. Of the 38 states that per­mit cap­i­tal pun­ish­ment, 13 have laws that pro­hib­it the exe­cu­tion of some­one who is men­tal­ly retard­ed; in New York that leg­is­la­tion was signed into law by Gov. George E. Pataki.

In Florida, Gov. Jeb Bush, who like his broth­er George is a strong sup­port­er of the death penal­ty, told reporters in April that ​“peo­ple with clear men­tal retar­da­tion should not be exe­cut­ed,” and a spokesman said last week that Jeb Bush still held that posi­tion. The chair­man of the state’s Republican Party has recent­ly pledged to sup­port leg­is­la­tion that would ban the exe­cu­tion of the men­tal­ly retard­ed in Florida.

Here in Texas, Gov. George W. Bush has opposed laws that would pro­hib­it the exe­cu­tion of the men­tal­ly retard­ed. [It is a posi­tion he still holds, a spokes­woman, Linda Edwards, said on Friday. ​“Governor Bush believes that the jury should con­sid­er all the evi­dence regard­ing men­tal impair­ment and decide whether a death sen­tence is appro­pri­ate,” Ms. Edwards said.] Legislation bar­ring the exe­cu­tion of a defen­dant whose I.Q. is below 65 passed the Republican-dom­i­nat­ed Texas Senate last year but failed in the House. The bil­l’s spon­sor, Senator Rodney Ellis, Democrat of Houston, said he was opti­mistic that the bill would pass next year. He said he would try to raise the I.Q. lim­it to 70, which is what it is in sev­er­al other states.

“The nation­al and inter­na­tion­al atten­tion to the death penal­ty in Texas has cre­at­ed some momen­tum,” Mr. Ellis said.

Mr. Cruz’s lawyer, Jeffrey Pokorak, has asked Governor Bush and the Texas State Board of Pardons and Paroles for a stay of exe­cu­tion, and he says he hopes he can post­pone a lethal injec­tion at least until next spring, when the leg­is­la­tion that might save his life will be vot­ed on. He wants a full evi­den­tiary hear­ing on Mr. Cruz’s men­tal con­di­tion. Mr. Pokorak said the defense psy­chol­o­gist’s review of Mr. Cruz’s school records showed that they had clas­si­fied him as ​“edu­ca­ble mentally retarded.”

The Bexar County dis­trict attor­ney, Susan D. Reed, whose office pros­e­cut­ed Mr. Cruz, said in an inter­view this week that she opposed Mr. Cruz’s request for clemen­cy, pri­mar­i­ly because of what she called the heinous nature of his crime.

“Here’s a woman abduct­ed off the street, kid­napped, raped, stabbed 20 times,” Ms. Reed said. She added that Mr. Cruz had a his­to­ry of vio­lence and had once fired a shot­gun at a man. The man, Arthur Jones, who nev­er spoke to the police about the inci­dent, char­ac­ter­ized it in tes­ti­mo­ny at Mr. Cruz’s mur­der tri­al as a minor mat­ter. ​“It was done and gone with, you know,” he said.

Ms. Reed also said that the evi­dence about Mr. Cruz’s men­tal retar­da­tion was ​“con­flict­ing,” refer­ring to the two I.Q. scores.

Experts say that a per­son is men­tal­ly retard­ed who has a sig­nif­i­cant­ly sub­av­er­age intel­li­gence, which is gen­er­al­ly defined as an I.Q. below 70, and who con­se­quent­ly has seri­ous dif­fi­cul­ties cop­ing with rou­tine aspects of dai­ly life, in school and at work. The con­di­tion must have exist­ed since childhood.

Mental retar­da­tion is dis­tinct from men­tal ill­ness, although the two may exist in the same person.

While a major­i­ty of Americans sup­port the death penal­ty, state polls show that a major­i­ty of those sup­port­ers make an excep­tion for the men­tal­ly retard­ed, even in the fierce­ly pro-death penal­ty state of Texas.

The American Bar Association does not have a posi­tion on the death penal­ty in gen­er­al but is opposed to exe­cut­ing the men­tal­ly retard­ed, said Elisabeth Semel, direc­tor of the orga­ni­za­tion Death Penalty Representation Project.

Those who oppose the exe­cu­tion of the men­tal­ly retard­ed do not argue that they should not be held account­able for their crimes, or severe­ly pun­ished. What they con­tend is that the men­tal­ly retard­ed should not be con­sid­ered so moral­ly cul­pa­ble that they deserve the ulti­mate pun­ish­ment, which is sup­posed to be reserved for the most cul­pa­ble crim­i­nals who com­mit the most heinous crimes.

It is not known how many of the 3,600 death row inmates in the United States are men­tal­ly retard­ed, but experts say it is about 10 per­cent, said James Ellis, a lead­ing expert on men­tal retar­da­tion and the death penal­ty, and a pro­fes­sor at the University of New Mexico law school.

In the United States, 34 peo­ple who were known to be men­tal­ly retard­ed have been exe­cut­ed since the Supreme Court rein­stat­ed the death penal­ty in 1976, accord­ing to the Death Penalty Information Center, an orga­ni­za­tion that is opposed to the death penalty.

One of George W. Bush’s first acts as gov­er­nor of Texas, in January 1995, was to reject a request for clemen­cy for Mario Marquez, who suf­fered from severe brain dam­age and had an I.Q. of 60 and the skills of a 7‑year-old. Mr. Marquez was exe­cut­ed on the evening of Mr. Bush’s inau­gu­ra­tion for the mur­der of his niece.

“I want to be God’s gar­den­er and take care of the ani­mals,” Mr. Marquez told his lawyer, Robert McGlasson, a few hours before being strapped on to the gurney.

Mr. McGlasson recalled in an inter­view this week, ​“It was like talk­ing to a 5‑year-old.”

Texas does not know how many of the 459 inmates on death row are men­tal­ly retard­ed, said Larry Fitzgerald, a spokesman for the Texas Department of Corrections. The prison has I.Q. test scores only for those inmates who might have been test­ed dur­ing an ear­li­er incar­cer­a­tion, Mr. Fitzgerald said.

One death row inmate is Doil Lane, whose I.Q. has been test­ed between 62 and 70 and whose emo­tion­al and intel­lec­tu­al devel­op­ment is that of an 8‑year-old, his lawyer, William Allison, said.

Mr. Lane was con­vict­ed of the rape and mur­der of an 8‑year-old girl, with the case against him con­sist­ing large­ly of his own con­fes­sion, Mr. Allison said.

Experts on men­tal retar­da­tion say that the men­tal­ly retard­ed often con­fess to things they have not done, in part because they want to please. Mr. Allison said Mr. Lane’s con­fes­sion was false. ​“Given time,” he added, ​“you could get him to con­fess to any­thing.” Mr. Allison not­ed that his client was so child­like that after he con­fessed, he climbed into the lap of a Texas Ranger to whom he had confessed.

At his tri­al, Mr. Lane request­ed a cray­on so he could col­or pic­tures. The judge would not let him have one.

Mr. Lane, now 39, still longs for crayons. ​“I like to clore [col­or] in my clorel [col­or­ing] book but you all tuck [took] away my clores when you can not hurt no one with a box 24 clores, just in my book,” he wrote recently.

It took no prod­ding from the police for Mr. Cruz to con­fess to his crime, and Mr. Cruz’s lawyer does not dis­pute his guilt. But an old­er man, Jerry Kemplin, was with Mr. Cruz dur­ing the rape and mur­der. Mr. Kemplin, like Mr. Cruz, was ini­tial­ly indict­ed on a charge of cap­i­tal mur­der, but he did not con­fess to any­thing, instead accept­ing a plea bar­gain in exchange for tes­ti­mo­ny against Mr. Cruz. Mr. Kemplin was sen­tenced to 65 years, with the pos­si­bil­i­ty of parole after serv­ing a quar­ter of his term.

“The smart guy who does­n’t con­fess, who knows bet­ter than to give evi­dence against him­self, gets the deal,” said Mr. Pokorak, Mr. Cruz’s lawyer. ​“But the guy who is retard­ed, who does­n’t under­stand all the words of his Miranda warn­ing, he gets death.”

In the high­ly pub­li­cized case of Ricky Ray Rector, the Arkansas inmate exe­cut­ed while Bill Clinton was gov­er­nor but run­ning for pres­i­dent, Mr. Rector’s lawyers argued that he was so men­tal­ly impaired that he did not even know he was about to be exe­cut­ed. But Mr. Rector’s con­di­tion was not con­sid­ered men­tal retar­da­tion because it did not reach back to his child­hood. It was caused when he shot away part of his brain at the time of his arrest.

The test for whether a defen­dant is men­tal­ly retard­ed is not the same test used to deter­mine whether a defen­dant is insane and there­fore not guilty by rea­son of insan­i­ty. That requires a defen­dant to show that he did not know right from wrong. A per­son who is able to make this eth­i­cal judg­ment may still be deemed men­tal­ly retard­ed, depend­ing on I.Q.

Mr. Pokorak is not argu­ing that Mr. Cruz should not have been con­vict­ed by rea­son of insan­i­ty but that he should not be exe­cut­ed because he is mentally retarded.

One rea­son for the lack of pre­cise data about the num­ber of men­tal­ly retard­ed inmates on death row is that the men­tal­ly retard­ed them­selves strug­gle to hide their dis­abil­i­ty, even though in many cas­es it is the one thing that might save them from execution.

“They would rather pass as nor­mal than stand up and say I have a dis­abil­i­ty,” said Timothy Derning, a psy­chol­o­gist in Lafayette, Calif., who has tes­ti­fied as an expert wit­ness for defen­dants in many cap­i­tal mur­der tri­als. ​“They have been called ​‘stu­pid’ and ​‘retards’ their whole life, so who wants to say they are mentally retarded?”

Interviewed in a hold­ing cell on death row this week, Mr. Cruz’s expres­sion was pained as he answered ques­tions about his lawyer’s efforts to empha­size his men­tal retar­da­tion to spare him from execution.

“It hurts to be in that cat­e­go­ry, that I’m retard­ed or stu­pid,” Mr. Cruz said.

But he also recalled his frus­tra­tion with school, which he said had led to his drop­ping out at age 16. ​“I was slow in read­ing, slow in learn­ing,” he said. ​“Maybe I was a los­er. The teacher would say, ​‘Read this chap­ter.’ I couldn’t read.”

He vol­un­teered that he had made progress on death row. ​“Now, I can write a let­ter,” he said, ​“a half a page.”

Mr. Cruz did not appear to know what it meant to be men­tal­ly retard­ed. ​“I’m not retard­ed,” he said. ​“I’m not the kind of per­son who is going to go out and hurt peo­ple for the fun of it.”

He attrib­uted his crime to his being drunk and on LSD. But he also said, ​“I’m not going to use this as an excuse for what happened.”

“I know I was wrong,” he said. ​“I feel real bad about it. There’s noth­ing I can do to change it, bring that per­son back. I want to make things right.” His eyes fill­ing with tears, he said that half of him had died that night along with the woman he killed.

“Keep me locked up,” he added. ​“But don’t kill me. I know I could help people.”

Toward the end of the inter­view, Mr. Cruz put his head in his hands and wept.

Talking in her office in San Antonio, Ms. Reed, the dis­trict attor­ney, raised doubts about Mr. Cruz’s men­tal retar­da­tion but said, ​“I’m not going to say that he is or he is not.”

She said the jury had heard the evi­dence about his men­tal retar­da­tion and had reached its ver­dict, and that she sup­port­ed the jury’s judg­ment. Mr. Pokorak said that the jury had not been prop­er­ly instruct­ed to con­sid­er evi­dence of men­tal retar­da­tion, as required by Supreme Court rul­ings. The United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled recent­ly that while the instruc­tion had not been giv­en, it was not a fatal con­sti­tu­tion­al error. [Mr. Cruz filed an appeal on Friday with the Supreme Court.]

On the gen­er­al issue of whether the men­tal­ly retard­ed should be exe­cut­ed, Ms. Reed said, ​“I’m not will­ing to make a broad state­ment for or against it.”

Most peo­ple charged with cap­i­tal mur­der are poor, and so are rep­re­sent­ed by appoint­ed lawyers. Many of these lawyers are inex­pe­ri­enced, even incom­pe­tent, and often fail dur­ing the mit­i­ga­tion phase of the tri­al to present the evi­dence of men­tal retar­da­tion that could per­suade the jury to spare their client’s life.

In Arizona, Ramon Martinez-Villareal is on death row after being con­vict­ed of mur­der­ing two peo­ple. He has an I.Q. of 50 and also suf­fers from brain dam­age, schiz­o­phre­nia and demen­tia, accord­ing to evi­dence pre­sent­ed by his lawyers in var­i­ous appeals. During the tri­al, Mr. Martinez-Villareal’s lawyer did not men­tion his clien­t’s men­tal retar­da­tion. Mr. Martinez-Villareal, mean­while, was not able to tell the dif­fer­ence between the spec­ta­tors and the jury, his tri­al lawyer tes­ti­fied at a later hearing.

Since the evi­dence of Mr. Martinez-Villareal’s men­tal retar­da­tion has emerged, brought out by his post-con­vic­tion lawyers, the tri­al judge and the pros­e­cu­tor have said that Mr. Martinez-Villareal should not be exe­cut­ed. Nevertheless, he remains on death row.

In a land­mark case involv­ing a Texas death row inmate, Johnny Paul Penry, the Supreme Court ruled, in 1998, that exe­cut­ing some­one who was men­tal­ly retard­ed was not ​“cru­el and unusu­al pun­ish­ment,” in vio­la­tion of the Eighth Amendment.

The court, how­ev­er, reversed the con­vic­tion of Mr. Penry for rape and mur­der because the jury had not been instruct­ed dur­ing the mit­i­ga­tion phase of the tri­al that it could take into account his men­tal con­di­tion in decid­ing whether to give him the death penalty.

Mr. Penry, who suf­fered brain dam­age at birth, has an I.Q. of about 60 and the men­tal abil­i­ty of a 7‑year-old. He is still on death row. His lawyers are prepar­ing to return to the Supreme Court. Now, they may win the argu­ment that exe­cut­ing the men­tal­ly retard­ed is uncon­sti­tu­tion­al, death penal­ty lawyers and con­sti­tu­tion­al scholars say.

Writing for the major­i­ty in the Penry case in 1989, Justice Sandra Day O’Connor said that a ​“nation­al con­sen­sus” had not devel­oped against exe­cut­ing the men­tal­ly retard­ed. At the time, only Georgia and Maryland pro­hib­it­ed doing so.

Since then, 11 states — Arkansas, Colorado, Indiana, Kansas, Kentucky, Nebraska, New Mexico, New York, South Dakota, Tennessee and Washington — have enact­ed laws that pro­hib­it these exe­cu­tions. Five oth­er states — Illinois, Missouri, Arizona, Florida and Texas — came close to pass­ing laws dur­ing their most recent legislative sessions.

The Supreme Court has not said how many states would con­sti­tute a ​“nation­al consensus.”

From the per­spec­tive of the rights of the men­tal­ly retard­ed, one of the strongest laws is Nebraska’s, said Jerry Soucie, a lawyer with the Nebraska Commission on Public Advocacy, an agency that rep­re­sents poor defen­dants in capital cases.

The law, which was urged by advo­cates for the men­tal­ly retard­ed and the Roman Catholic Church, says that a per­son with an I.Q. below 70 is pre­sumed to be men­tal­ly retard­ed, and requires a judge to vacate a death sen­tence imposed before the law was passed if the judge finds by a ​“pre­pon­der­ance of the evi­dence” that the per­son was mentally retarded.

After the law was passed, 2 of the 10 men then on death row had their sen­tences com­mut­ed to life in prison. One had an I.Q. of 68, the other 65.

Illinois does not have a law pro­hibit­ing the exe­cu­tion of the men­tal­ly retard­ed, but it was his men­tal defi­cien­cies that saved the life of Anthony Porter. Mr. Porter, who was sen­tenced to die for the mur­der of two peo­ple, has an I.Q. of 51. He was 48 hours away from exe­cu­tion when the State Supreme Court grant­ed him a reprieve so that his men­tal retar­da­tion could be inves­ti­gat­ed. The reprieve gave inves­ti­ga­tors time to uncov­er evi­dence of Mr. Porter’s inno­cence, and after spend­ing 16 years on death row, he was exon­er­at­ed and released from prison last year.