IQ Debate Unsettled in Death Penalty Cases

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Unformatted text preview: http://articles.latimes.com/keyword/appeals
 IQ
debate
unsettled
in
death
penalty
cases

 
 The
Supreme
Court
ruled
against
executing
the
mentally
retarded,
but
defining
that
 group
has
proved
difficult.
 
 June
11,
2007|David
G.
Savage
,
Times
Staff
Writer
 
 YORKTOWN,
VA.
—
Five
years
after
the
Supreme
Court
declared
in
Atkins
vs.
Virginia
that
 the
death
penalty
was
unconstitutional
for
those
who
are
mentally
retarded,
Daryl
Atkins
 still
sits
on
death
row.
 
 In
August,
lawyers
for
the
man
who
won
the
landmark
ruling
will
try
again
to
convince
a
 jury
here
that
he
is
indeed
mentally
retarded
and
therefore
deserves
a
life
term
in
prison,
 not
execution.
 
 Three
times
before,
the
county
prosecutor
has
persuaded
juries
here
to
condemn
Atkins
to
 die,
and
she
expects
to
win
a
fourth
time
as
well.
"Daryl
was
a
slow
reader.
He
was
lazy,
and
 he
came
to
school
stoned.
But
until
he
committed
this
murder,
no
one
thought
he
was
 mentally
retarded,"
said
Eileen
M.
Addison,
the
prosecutor.
 
 His
case
is
not
unique.
Though
the
high
court
found
that
there
was
a
"national
consensus"
 against
executing
the
mentally
retarded,
it
left
it
to
the
states
to
decide
which
murderers
 would
qualify
for
that
exemption.
 
 Determined
prosecutors
have
had
little
trouble
convincing
juries
that
a
convicted
killer
 with
a
low
IQ
is
not
necessarily
retarded.
The
definition
of
retardation
is
imprecise;
test
 results
can
vary,
giving
prosecutors
an
opportunity
to
produce
additional
scores
and
other
 evidence
to
make
the
case
that
an
inmate
is
actually
smart
enough
to
die.
 
 The
result
is
that
the
Supreme
Court's
ruling
has
had
less
effect
than
many
had
foreseen.
 "There
has
been
more
resistance
than
I
expected,"
said
University
of
New
Mexico
law
 professor
James
Ellis,
an
expert
on
mental
retardation
who
represented
Atkins
before
the
 Supreme
Court.
 
 A
few
states
moved
off
of
death
row
several
inmates
who
had
IQ
scores
in
the
60s
or
low
 70s,
he
said.
But
states
where
capital
punishment
has
strong
support,
including
Virginia
 and
Texas,
have
let
juries
decide.
And
"it's
an
uphill
fight
with
the
jury"
to
establish
mental
 retardation,
Ellis
said.
 
 In
2002,
he
told
the
high
court
there
were
no
reliable
numbers
on
how
many
of
the
nation's
 more
than
3,000
death
row
inmates
were
mentally
retarded.
Some
experts
predicted
 several
dozen
inmates
would
qualify
for
the
exemption.
Human
Rights
Watch
said
the
 number
could
be
as
high
as
300.
 
 Since
then,
said
Richard
Dieter,
executive
director
of
the
Death
Penalty
Information
Center
 in
Washington,
only
a
handful
of
inmates
that
he
knows
of
have
been
found
to
be
mentally
 retarded
and
had
their
death
sentences
commuted.
 
 The
Atkins
decision
"has
had
an
effect,
but
not
a
sweeping
effect,"
said
Dieter,
whose
center
 opposes
capital
punishment.
"His
case
is
emblematic
because
in
a
lot
of
states,
it
has
 resulted
in
case‐by‐case
litigation."
 
 California
has
the
largest
death
row
population,
660
inmates.
"We
have
not
seen
a
 substantial
impact,"
said
Dane
Gillette,
the
state
coordinator
for
capital
punishment.
"We
 anticipated
some
would
claim
to
be
retarded,
and
it
has
been
raised
in
a
handful
of
cases.
 But
it
has
not
yet
resulted
in
a
determination
of
retardation"
requiring
that
the
inmate
be
 removed
from
death
row,
he
said.
 
 he
greatest
effect
of
the
court's
ruling
may
have
been
in
cases
that
followed.
Some
 prosecutors
probably
chose
not
to
seek
the
death
penalty
when
a
murder
suspect
had
low
 IQ
scores,
legal
experts
said.
 
 Before
the
Atkins
decision,
the
Supreme
Court's
major
rulings
on
mental
retardation
came
 in
the
case
of
Johnny
Paul
Penry,
a
Texas
murderer
who
was
said
to
have
the
mental
age
of
 a
6
1/2
‐year‐old.
 
 In
1979,
at
age
22,
he
raped
a
woman
and
stabbed
her
to
death
with
a
pair
of
scissors.
He
 confessed
and
was
sentenced
to
death.
The
fact
that
he
could
not
read
or
write
or
name
all
 of
the
days
of
the
week
made
little
impact.
 
 But
when
his
execution
drew
near,
the
high
court
in
1989
and
again
in
2001
overturned
his
 death
sentence
on
the
grounds
that
Texas
law
had
wrongly
prevented
jurors
from
fully
 weighing
his
mental
disability
as
a
reason
for
leniency.
 
 Nonetheless,
Penry
sits
on
death
row
in
Texas.
In
the
fall,
he
will
go
before
a
jury
for
a
 fourth
time.
As
with
Atkins,
this
trial
will
focus
exclusively
on
whether
he
is
retarded.
 Polk
County
prosecutor
Lee
Hon
also
expects
to
prevail
again.
 
 "Penry
is
a
not‐too‐bright,
sexually
violent
predator,"
Hon
said.
"It's
true
he
never
made
it
 out
of
first
grade.
He
was
educationally
deprived.
But
when
he
got
into
the
Texas
prison
 system,
he
began
to
achieve
a
lot.
He
learned
to
read
and
write.
He
had
a
calculator
in
his
 cell.
We
had
a
lot
of
testimony
to
that
effect."
 
 The
brutal
murder
of
the
22‐year‐old
woman
still
hangs
over
the
case,
said
John
Wright,
 Penry's
lawyer.
"We
offered
a
deal
that
would
keep
him
in
prison
for
life,
but
they
won't
 take
it,"
Wright
said.
"The
prosecutors
are
bound
and
determined
to
kill
him."
 
 Historically,
the
law
has
exempted
from
criminal
punishment
people
who
are
mentally
ill.
If
 they
were
disturbed
or
delusional
when
they
committed
the
crime,
they
presumably
could
 not
understand
the
consequences
of
their
acts
and
therefore
would
not
be
considered
 legally
responsible.
 
 People
with
mild
mental
retardation
are
judged
to
be
competent
to
stand
trial.
They
 presumably
understand
when
they
have
done
wrong.
They
"should
be
tried
and
punished
 when
they
commit
crimes,"
Justice
John
Paul
Stevens
said
in
the
Atkins
decision.
"Because
 of
their
disabilities
in
areas
of
reasoning,
judgment
and
control
of
their
impulses,
however,
 they
do
not
act
with
the
level
of
moral
culpability"
that
puts
them
among
the
small
group
of
 the
worst
offenders
who
deserve
to
die.
 
 The
Atkins
case
shows
the
difficulty
of
deciding
whether
a
criminal
is
mentally
retarded:
a
 condition
that
Stevens,
quoting
the
American
Assn.
on
Mental
Retardation,
defined
in
part
 as
"significantly
subaverage
intellectual
functioning"
‐‐
measured,
perhaps,
by
an
IQ
of
70
 or
below
‐‐
and
difficulty
in
adapting
to
the
ordinary
tasks
of
life.
 
 By
August
of
1996,
Atkins,
then
19,
had
a
long
criminal
record,
including
the
shooting
and
 wounding
of
a
woman
in
her
frontyard
in
Hampton,
Va.
 
 Late
one
evening,
he
and
a
friend
were
"panhandling"
for
beer
money
at
a
convenience
 store
when
Atkins
put
a
gun
to
the
head
of
Eric
Nesbitt,
a
21‐year‐old
airman
stationed
at
 the
nearby
Langley
Air
Force
Base.
 
 They
forced
their
way
into
Nesbitt's
truck
and
made
him
drive
to
a
bank
and
take
$200
 from
an
automated
teller
machine.
The
scene
was
captured
on
camera:
the
frightened
 young
airman
with
Atkins
holding
a
gun
to
his
head.
Next,
the
criminal
pair
drove
him
to
a
 thickly
wooded
area
near
Yorktown,
where
Atkins
took
Nesbitt
from
the
truck
and
shot
 him
eight
times.
 
 He
was
tried
at
the
York
County
Courthouse
about
four
miles
from
the
murder
scene.
A
 psychologist
hired
by
the
defense
interviewed
Atkins
in
jail
and
gave
him
a
standard
 intelligence
test,
and
said
his
IQ
was
59.
 
 The
psychologist
testified
Atkins
was
"mildly
mentally
retarded."
The
jury
unanimously
 sentenced
him
to
death.
The
Virginia
Supreme
Court
reversed
this
sentence
because
of
a
 technical
error
on
the
jury
form;
a
new
jury
was
convened
and
also
voted
for
a
death
 sentence.
 
 The
case
was
appealed
to
the
Supreme
Court
in
2001,
and
the
6‐3
decision
in
Atkins'
favor
 put
his
name
into
constitutional
history.
In
dissent,
Justice
Antonin
Scalia
said
the
ruling
 would
turn
the
"process
of
capital
trial
into
a
game"
and
that
"the
symptoms
of
this
 condition
can
readily
be
feigned."
 
 Scalia's
prediction
was
borne
out
in
part.
The
prosecution
and
defense
hired
dueling
 psychologists
to
testify
that
Atkins
was
or
was
not
mentally
retarded.
The
defense
 appeared
to
have
more
trouble.
 
 The
psychologist
who
had
first
described
Atkins
as
mentally
retarded
reevaluated
and
 retested
him
two
years
ago
and
scored
his
IQ
at
74,
slightly
above
the
cutoff
for
retardation.
 On
the
witness
stand,
the
psychologist
explained
that
IQ
scores
could
fluctuate
and
that
 Atkins'
exposure
to
a
team
of
lawyers
and
psychologists
probably
helped
to
raise
his
 intelligence
score.
"We
have
an
individual
who
is
in
much
better
intellectual
shape
now
...
 ironically
due
to
the
stimulation
he
had
received
while
in
confinement,"
Evan
Nelson
told
 the
jurors.
 
 If
Atkins
was
trying
to
feign
retardation,
he
did
a
poor
job.
He
correctly
answered
a
series
 of
questions
about
history
and
culture.
He
knew
that
"Abe
Lincoln"
was
president
during
 the
Civil
War,
that
the
physicist
known
for
the
theory
of
relativity
was
"Einstein,"
and
that
 the
artist
who
painted
the
Sistine
Chapel
was
"Michelangelo."
When
another
psychologist
 asked
him
whether
he
had
had
relationships
with
more
than
one
woman,
Atkins
asked:
 "Like
a
menage
a
trois?"
 
 Addison,
the
prosecutor,
also
poked
holes
in
the
59
IQ
score.
The
psychologist
had
said
 Atkins
answered
incorrectly
when
asked
to
identify
Martin
Luther
King
Jr.
‐‐
"Preacher,"
 Atkins
had
replied.
"For
civil
rights."
The
psychologist
was
hard‐pressed
to
explain
why
 that
had
been
considered
wrong.
 
 Ellis,
the
law
professor
from
New
Mexico,
interviewed
Atkins
before
the
Supreme
Court
 hearing.
"I
thought
he
was
a
good
example.
His
testing
was
clearly
in
the
range
of
mental
 retardation.
And
his
life
showed
a
lot
of
problems
with
adaptive
behavior.
He
didn't
drive
a
 car
because
he
couldn't
pass
the
written
exam."
 
 Teachers
testified
he
had
difficulty
in
school
and
was
held
back
a
grade.
One
example
was
 repeated:
When
he
copied
a
friend's
homework
paper
in
eighth
grade,
he
also
copied
the
 friend's
name
at
the
top.
 
 Ellis
worries
that
jurors
may
look
for
a
sign
that
the
defendant
is
different.
"They
may
be
 looking
for
a
physical
manifestation
of
Down's
syndrome.
That's
the
stereotype,"
he
said.
 Defense
lawyers
also
say
they
are
stymied
by
the
need
to
prove
the
defendant
is
mentally
 retarded.
"We
think
that
is
the
wrong
test,"
said
attorney
Richard
Burr,
a
veteran
opponent
 of
capital
punishment.
"We
think
the
state
should
have
the
burden
of
proving
the
defendant
 does
not
have
mental
retardation."
 
 In
2005,
12
jurors
agreed
with
Atkins'
prosecutors
and
said
he
did
not
qualify
as
retarded.
 A
year
later,
however,
the
Virginia
Supreme
Court
said
the
judge
had
erred
by
informing
 jurors
that
Atkins
had
been
sentenced
to
death
previously.
 
 This
decision
set
the
stage
for
still
another
trial
this
summer
in
the
same
courthouse.
 "It's
been
five
years,
but
this
issue
is
far
from
being
resolved,"
said
Dieter
of
the
Death
 Penalty
Center.
"It's
been
a
battle
of
wills,
and
no
one
is
conceding."
 
 ...
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