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The Ultimate Test

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.

Also in this issue:

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."

 

Often, it can be equally as difficult for jurors, judges or attorneys to figure out who among the accused is retarded, according to Peter Aranella, a UCLA law professor and nationally recognized expert on mental-disability defenses. The only mentally retarded people most jurors are likely to see are those who are accused of a crime. "Most people just don't have a lot of direct experience with mental retardation," Aranella said. "That makes it all that much harder for people to understand what exactly mental retardation is."

The confusion is compounded by the muddling of mental retardation and mental illness, Aranella says. Mental retardation is a result of irreparable brain damage -- a person who is retarded can never be "cured," made smarter, or even treated to alleviate the condition. Mental illness can come and go, be treated or controlled with medication. A mentally ill person can be brilliant and still suffer from extreme psychiatric debilitation. "One of the problems is that people who have mental retardation are very good at acting as if they understand," said James H. Barnes, a defense attorney who has represented non-capital clients with mental-retardation claims. "Attorneys aren't really trained to recognize mental retardation and aren't adept at it."

In some cases, mental retardation might be misinterpreted or missed entirely because of extreme drug use. That may have been the case with Lavell Frierson, whose 22 years as a condemned man makes him one of the longest-serving inmates on California's death row. As a child growing up in South-Central L.A., Frierson could not tie his shoes. At 7 he suffered a major concussion and was hospitalized for three days. At 11 he started sniffing glue, and in seventh grade, test scores identified him as mentally retarded. By age 20 he was living in a flophouse near the airport and using PCP every day. When an airline employee came to the door looking for a prostitute, Frierson pointed a gun at him, got into his car with him and shot him in the head.

Frierson has consistently maintained that he cannot remember the shooting. Frierson's death sentence was overturned -- twice. The first time, the state Supreme Court held that Frierson's attorney had failed his client by not investigating the "diminished capacity" defense. At the guilt phase of his retrial, his attorney made no opening statement, put on no witnesses and presented no defense. In the third trial, the court refused to reissue a check it had lost that was to pay investigators and experts -- including mental-health experts -- for the defense. Frierson's attorney ended up paying the costs himself. Frierson was sentenced to death.

IN THE 18 STATES THAT ALREADY barred the execution of the mentally retarded, the legal definition varies significantly. IQ is the most readily recognizable signpost of retardation. Some states, including Kentucky, Maryland, New Mexico, Nebraska, North Carolina, South Dakota, Tennessee and Washington, allow an IQ no higher than 70. Others give the courts more discretion, requiring only a "significantly subaverage intellectual functioning." These states include Arizona, Connecticut, Florida, Georgia, Indiana, Missouri, New York and Kansas.

Those skeptical of the ban on executing the mentally retarded say it will encourage a rush to dumbness among the condemned. "There are a lot of death-row inmates with IQs under 100," said Dane Gilette, head of death-penalty litigation in the state Attorney General's Office. "I can tell you one thing for sure, the collective IQ of death-row inmates is going to drop 20 or 30 points overnight. That's a somewhat cynical outlook, but it's definitely a possibility."

In death-penalty states that already banned execution of the mentally retarded, that concern has not been borne out. The response has been strong, but there have been few complaints that inmates who were not actually retarded won relief. Those who are spared are then usually sentenced to life in prison without parole. In Georgia, which in 1988 became the first state to halt such executions, 27 of 102 inmates awaiting execution at that time claimed mental retardation. Seven of those inmates have been removed from death row. Fifteen cases are pending. In North Carolina, which banned such executions last year, 40 of the state's 226 inmates have made mental-retardation claims.

If anything, claims of mental retardation may be underreported. Though court records show that inmate Jesse Gonzalez has a "below 70" IQ, his attorney, Robert Berke, said that Gonzalez is so mortified at the thought of drawing attention to his compromised mental condition that they are hoping to win the case without mentioning it. Pasadena defense attorney Robert Amadon, who has handled cases of inmates with mental retardation, said being labeled retarded carries a serious stigma. "If you're in prison, any weakness that you have is dangerous, actually dangerous," he said. "The last thing in the world you want to have known is that you're an easy mark."


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