The Ultimate Test 

Deciding whose life to spare on death row

Wednesday, Jun 26 2002

NOT ONE OF THE 10 MEN WHOSE CASES were tracked in the Weekly's investigation fits the Hollywood version of mental retardation. Not one has Down syndrome. None drools, slurs his words or, by and large, has noticeable physical tics. These men are not the Steinbeckian Lennies of the world, squeezing the life out of living things because they don't know any better. In fact, you could probably get through an entire conversation with any one of them and be left with the impression that he is merely a quiet, affable middle-aged man with a rather elementary grasp of the world.

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Who Should Die?

Excerpts: In the words of the justices

L.A. County's 10: Death-row inmates and mental retardation This is the reality not only in L.A., but among mentally retarded death-row inmates nationwide. Opponents of executing the mentally retarded want rules that clearly state who should be ineligible for a death sentence. But figuring out just who would qualify for exemption requires a far greater knowledge of the nature of the beast than most Americans possess.

"I think most people have in mind an image of mental retardation which doesn't reflect . . . mild retardation," U.S. Supreme Court Justice Anthony Kennedy observed in February. Since 1976, when the death penalty was reinstated in the U.S., anywhere from two to 35 people with mental retardation have been executed nationwide, depending on who's keeping track. "Retardation, including retardation near the borderline, is highly debatable in most cases," Justice David Souter said. "There's a high risk that a jury is going to come to the wrong conclusion, to say this person really is the worst of the worst in a case in which that really is not so.

"Quite apart from moral judgments," Souter continued, "I'm just talking about a practical risk assessment." The generally accepted definition of mental retardation is an intelligence quotient of around 70 or less, with significant limitations on adaptive skills, such as communication or caring for oneself. The high court's ruling last week barring the execution of the mentally retarded also requires the onset of such a condition by age 18.

In L.A. County, most of the men who might be spared fall on the border of what is considered mental retardation. Inmate Lavell Frierson's IQ is anywhere between 71 and 90. Another inmate, Jack Gus Farnam, scored between 75 and 80. The scores of a third, Mauricio Silva, have swung from a low of 44 to 93.

Attorney James Ellis, who took the case of the Virginia man, Daryl Renard Atkins, to the high court, urges caution when reviewing mental-retardation claims made in the years before last week's decision. "That information was compiled when it didn't matter," said Ellis. "The results can be inaccurate either way. One low IQ score may not bear out. There may be cases where a higher score may be misleading as well." In any case, IQ alone is not enough to determine whether someone is or is not retarded. The person must also have been identified as retarded as a child and have difficulty performing some of the functions of daily life, anything from going to school or holding down a job to being able to interact with others to preparing a meal -- criteria that all 10 L.A. County cases meet.

ONE OF THE FIRST CASES TO BE PUT TO the test may be that of Anderson Hawthorne, a former South-Central L.A. gang member -- known as "Pee Wee" because of his slight build -- who at age 20 tested at the second-grade level for math and lower than first grade for reading comprehension. He was convicted in the shooting deaths of two rival gang members. His attorneys have already filed a petition in federal court asking for relief, and prosecutors and victims' family members are bracing for a fight.

Not surprisingly, Robert S. Henry, the deputy state attorney general who's contesting the Hawthorne appeal, scoffs at the thought that he is retarded. "That's the biggest load of hooey in the world," he said. "If Anderson Hawthorne is mentally retarded, then I am too."

The mother of one of Hawthorne's victims is equally skeptical. Lillie Goodman Fields, a retired nurse, sat through Hawthorne's trial for the killing of her oldest son, Kirk Thomas, nearly 20 years ago. Now retired, Fields called Hawthorne a "menace" and Thomas' death "the worst thing that happened to my family." She said she wants Hawthorne to be executed and suggested that the prison should "use him as a guinea pig and experiment" on him. Fields is upset at the suggestion that mental impairment might spare Hawthorne's life. "He was not mentally retarded when he did the crime," she said. "It was never brought up once. Don't you think they would have played that hand at the trial? I don't know how it can come up later."

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