A Killer’s Plea

Ray and Schulz were soon arrested for the Michigan killing and charged with first-degree murder. Though both were sentenced to life in prison without parole for that crime, Hyde’s murder remained unsolved. In June of 1985 Schulz was stabbed to death in prison by another inmate. A year later Ray underwent a religious conversion and confessed to Hyde’s killing. He was extradited to California, where in 1989 he was tried and sentenced to death. In affirming the sentence, Kern County Judge Henry Bianchi said that Ray premeditated Hyde’s murder, which he said was part of a “vicious and callous pattern” of behavior. “When things didn’t go his way in robberies,” Bianchi said, “this is how he solved it.”

Although mental retardation was brought up during Ray’s trial, it appears that he has not been tested since he was 16. In his petition to the state Supreme Court, Ray’s attorney, Charles Bush, asks for the funds to conduct an examination to determine the severity of his client’s mental condition. Most of the 18 states that have enacted laws prohibiting executionä of the mentally retarded use the definition supplied by the American Association on Mental Retardation: low IQ (generally below 70 or 75), difficulty performing simple daily tasks and onset of the condition at birth or during childhood. Since California has no law in place, it is up to the court to decide what definition should be applied to Ray, and, if it chooses, to any other California death-row inmate claiming mental retardation.

For many defense attorneys, the prospect of the conservative state Supreme Court making such a decision is worrisome. They would rather have the matter handled by the Democrat-controlled state Legislature. In August, a bill sponsored by Berkeley Assemblywoman Dion Aroner passed in the state Senate, largely because of a passionate speech by Senate President Pro Tem and leading liberal John Burton. But when it became clear that it would be defeated in the Assembly, it was yanked before it made it to the floor.

Some defense attorneys privately grumble that prosecutors from the district attorney and the state attorney general’s offices intentionally sabotaged the August negotiations and steered the issue into the courts. “There’s sort of this race,” said Hans Hemann, Aroner’s chief of staff. “And I don’t know who’s going to get to the finish line first.” Ward Campbell, capital case coordinator with the Attorney General’s Office, said such accusations are unfounded. “I love the way people concoct these theories that are far more elaborate than the reality,” he said. “Time simply ran out. I think everybody would like a set of rules so that everybody is doing the same thing.” Lawrence Brown, executive director of the California District Attorneys’ Association, and a principal negotiator on the legislation, concurred. “We certainly recognize a need to have some compromise on both sides,” Brown said. “I think we did our level best.”

That said, there were two major sticking points in the negotiations: whether to name a specific IQ number (prosecutors want a number, defense attorneys don’t) and when a decision on mental retardation should be made. Defense attorneys want the determination before the guilt phase, which would give jurors the chance to consider retardation apart from the crime. Prosecutors want it post-guilt phase, when jurors know all the gruesome details of the murder.

Campbell and Brown both said they want to ensure that the law is tough enough to ferret out false claims. “We do believe mental retardation can be feigned,” Brown said. “One can dumb down to take these tests.”

Attorney James W. Ellis, who argued the case before the U.S. Supreme Court that led to the ban on executions of the retarded, refuted that claim, saying that because mental retardation is a lifelong condition that by definition must appear in childhood, it is all but impossible to fake.

The California Legislature could have another crack at making the law in the coming term, which begins in January. But it is unclear who would be willing to sponsor a bill. Aroner is termed out at the end of this month. Hemann said he will continue to work on the issue with Aroner’s replacement, Lonnie Hancock. But, he said, Sen. Burton would be the most likely to be able to push it through. Anthony Williams, who works on criminal justice issues for Burton, was noncommittal. Even in a legislature that has been notably progressive in many areas, anything that eases restrictions on the death penalty is a tough sell, with many Democrats falling into the “tough on crime” camp. Whatever the outcome of the legislative tussle, the U.S. Supreme Court has made it clear that death row inmates who are found to be mentally retarded should remain in prison for life.

Without the benefit of a state law to guide it, the California court could stretch its ruling to include not only current death row inmates but also claims made by new defendants. Several capital trials are now underway in which the defendant is claiming mental retardation, including Steven Woodruff in Riverside County and Louis Gomez in Imperial County. A third trial, that of Efrain Hernandez, is expected to begin soon in Tulare County. Judges and attorneys on those cases are keeping an eye on the Legislature and the state court as they patch together rules to keep their trials going.