By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
DEAD TO RIGHTS
Re: “Who Should Die?” [cover story, June 28–July 4]. It may be true, as Sara Catania suggests, that a national consensus is emerging against executing the “mentally retarded.” Six justices of the United States Supreme Court apparently agree with her. Unfortunately, her well-intentioned compassion masks a deep pessimism about the integrity of our justice system.
The jury’s role in answering the question raised in the headline is conspicuously absent from Catania’s critique. She is unwilling to acknowledge the fundamental role of juries in deciding what is just. Last week, in his concurring opinion in the death-penalty case of Ring v. Arizona, Justice Scalia wrote, “Our people’s traditional belief in the right of trial by jury is in perilous decline.” The retroactive mental-health analyses injected into capital cases by biased “experts” and half-informed journalists accelerate that decline.
Rather than take on the jury system directly, Catania muddies the rhetorical waters by suggesting that the people on death row may not be guilty at all. If that were true, then they should be freed outright, not merely given life sentences. But Catania does not go that far. Because she can’t. The evidence of guilt in capital cases is consistently overwhelming. Often, the convictions are based on statements coming out of the defendants’ own mouths. Ironically, that fact is used by Catania as proof that death-penalty defendants are “often” retarded. But if, as Catania reports, Jesse Morrison turned himself in, why does that necessarily indicate he is mentally retarded? Does a murderer’s willingness to accept punishment preclude society from imposing it? Have we fallen so far down the rabbit hole that we think only the retarded show remorse?
In deciding whether a defendant should be executed for his horrific crime, the jury might hear evidence of brain damage, an abusive childhood, a history of drug addiction, or the influence of his wicked friends. By sentencing the defendant to death, the jury expresses its view that none of that evidence forgives the defendant’s extraordinary violence. Maybe the jurors don’t believe the evidence, or maybe it just doesn’t move them. Or maybe they believe that, even if the defendant can’t add fractions or keep a job, the hole the defendant tore in the social fabric must be mended with a death sentence.
In each capital case, the jury, a group of 12 citizens no different from anybody else, has reached a considered consensus about what is just. There is nothing cruel or unusual about that.
—Kyle Brodie Los Angeles
As the prosecutor of Stanley Bernard Davis, let me set the record straight. What Sara Catania failed to state was that Davis’ secretly recorded jailhouse tapes, of conversations with his co-defendants, established that he was the shooter and that he had committed a kidnap-robbery in the same location one year earlier. On tape, Davis stated to his co-defendants that the reason he shot the two college students was because the earlier kidnap-robbery victim was allowed to live and that that victim had almost sent Davis to prison. (Unfortunately, the victim would not or could not pick Davis out of a lineup.) Davis also stated on tape that Brown (the immunized co-defendant who was separated from Davis and the other two co-defendants) had to be killed because he might confess and testify against them. Davis’ mail intended to set this up was intercepted, and the plot failed.
None of the co-defendants was legally death-eligible; that is why Davis, the shooter, was the only defendant tried for a death sentence. Co-defendant Bennet was brain-injured and was allowed to plead to two second-degree murders. We did sensitively exercise our discretion as to the only mentally deficient individual in this case. The reason Brown got immunity was that the search and seizure in regard to all evidence against him was legally suspect and subject to suppression. Further, the tapes made clear that Davis was the sole shooter.
Davis’ own statements convicted him and qualified him for the death penalty. He was not the victim in this case.
As a licensed clinical psychologist and a “Goldwater” conservative, I frequently read your publication, because, even though I usually disagree with the opinions expressed, I find them interesting and thought-provoking.
Sara Catania’s article opposing the death penalty for “retarded individuals” was indeed thought-provoking but, unfortunately, was significantly misleading. First of all, the diagnosis of mental retardation is never made based on an I.Q. score alone. The I.Q score is used along with a measure of adaptive functioning, so an individual with a score of 69 is not necessarily “mentally retarded” — not unless his adaptive-functioning score is also below a certain level.
The most blatant error was in Catania’s list of the 10 “retarded” death-row inmates in L.A. County. It should be noted that only an I.Q. score of 69 or lower (along with the measure of adaptive functioning) can begin to qualify a person for the diagnosis of mental retardation. A score of 70 to 79 is considered in the “borderline” range, and a score of 80 or higher is in the “low average” range of normal intelligence. Not one of the 10 individuals on the list had an I.Q. score in the mentally retarded range (69 or lower). All were in the borderline range, and at least two were reported as being possibly in the low-average range. There is a margin â of error, so some of the scores in the low 70s might actually be in the high 60s, and some of the scores in the high 70s might actually be in the 80s. The majority of the scores cited were actually 75 or above, suggesting that the higher probability is that, of the 10 men cited, more actually had an I.Q. score in the low-average range. One of the individuals actually scored in the low-average and in the normal range on two of his three I.Q. tests.