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Who Should Die?

A Virginia jury had to make a choice before convicting Daryl Renard Atkins of robbing and killing a man for beer money. Atkins and his accomplice blamed the other with firing the eight shots. Should the jury believe Atkins, with an IQ of 59, who bumbled on the witness stand and contradicted the story he gave police moments after his arrest? Or should it buy the story of Atkins‘ accomplice, who’d been smart enough not to talk to detectives, even though his version did not match the evidence. It was a relatively easy choice for jurors. Atkins got death; his accomplice, a life term.

These facts bear remarkable similarities to several L.A. County death-row cases, all of which could now be subject to new appeals based on the U.S. Supreme Court‘s prohibition on executing killers with childlike minds. Over the past several months, in anticipation of a ruling, the Weekly examined all 183 of L.A.’s death-row cases, interviewing hundreds of trial and appellate attorneys and reviewing thousands of court records and media accounts. Our research turned up 10 mentally impaired death-row inmates and uncovered this statistic: Half of the time, just like in the Virginia case, the inmate had at least one accomplice, but only the retarded man got the death penalty.

Like most cases that could be affected by the ruling, that of Stanley Bernard Davis is not about guilt or innocence. Instead it turns on less clear-cut principles of justice and fairness. No one doubts that Davis had something to do with the 1985 robbery and killing of a UCLA student and her boyfriend; only that other factors must be considered. Davis is mentally retarded, with an IQ of 73. He had three accomplices, but he alone got the death penalty. Though police found the Uzi semiautomatic pistol used in the killings under the bed of one of Davis‘ crime partners, that man received full immunity for a story that fingered Davis as the lone killer.

But how is it possible that Davis, whose mental age has been measured at 9 12 and who couldn’t even hold down a job as a delivery man because he kept getting lost, could lead a kidnapping-and-murder plot? And how is it possible that he, the only retarded person of the four men involved in the crime, was the only one sentenced to death? Davis, like most of the other 606 inmates on California‘s death row, is appealing his sentence.

”I don’t care who did it,“ said Ruby Davis, who started raising Stanley when he was 2 years old. ”Right is right and wrong is wrong. If there was a group involved, why should one get off scot-free for running his mouth?“ She remembers warning him about his bad friends the day before the crime. ”I said, ‘You should stay away from these guys. They are bad news.’ And that was the end of that. The next day, all hell broke loose.“

The decision by the high court, one of its few rulings in more than a decade to address the application of the death penalty nationwide, leaves it up to the states to rework their laws to exclude the mentally retarded. Another major ruling this week rejected death-penalty laws in five states, including Arizona, where judges -- not juries -- have been deciding who dies. Some 800 cases could be affected. Abolishing the death penalty for the seriously mentally impaired could spare hundreds more, from California to Virginia, Texas to Montana. Assemblywoman Dion Aroner (D-Berkeley) said she would reintroduce her legislation that would ban the execution of such convicted killers. A similar bill died in committee last year.

Exactly how many prisoners‘ lives hang in the balance is unclear. No records identify who is retarded among the more than 3,700 inmates on death rows across the country, though the New York--based Human Rights Watch estimates 300 nationwide. A fair number would likely come from California, which has the nation’s largest death row. In particular, L.A. County has the most death-row cases of any county nationwide -- more than all but seven states.

The cases found in our review provide a glimpse at the human toll behind the numbers, not glossing over the horrific crimes these men committed but taking a hard look at the circumstances under which only the mentally retarded were singled out for death. Taken together, these cases demonstrate how retarded suspects can fall prey to the system. Unable to assist in their defense, they become unwitting allies in their own conviction. Whatever the degree of blame they share for the crime, they fall the hardest every time. Whether blinded by a misplaced sense of loyalty to their accomplices, unable to recognize a bad attorney or too proud to let on how little they understand of what is happening to them, they are incapable of self-preservation every step of the way, from arrest to interrogation to courtroom testimony.

When accomplices are involved, the outcome seems all but assured. In one instance, a mentally retarded suspect appeared confused during interrogation and asked for his mother. In another, the man turned himself in after seeing his crime on America‘s Most Wanted. In yet another, the entire trial, including conviction and death sentence, lasted less than seven hours. And finally, one mentally retarded suspect was convicted solely on the testimony of his partner in crime and a jailhouse informant. In each case the accomplice got a lighter sentence.

Indeed, by itself, the Davis case might be considered an anomaly. But when examined with these other four cases, the outcome becomes all too familiar: The savvy criminal allies himself with someone less mentally capable, and then, when it comes to punishment, outsmarts him into taking the heat. ”It’s a question of which of the accomplices is first to implicate the other, and the prize is leniency,“ said Frank Zimring, a professor at UC Berkeley‘s Boalt Law School who specializes in the death penalty. ”When one of the guys is cognitively impaired, it’s not too hard to guess who the loser will be.“

Despite widespread opposition to execution of the mentally retarded, the high court‘s ban appeared far from assured during a contentious hour of arguments before the court, on a dank February morning.

”What’s wrong with executing the retarded?“ asked Supreme Court Justice John Paul Stevens, considered one of the most liberal members of the court. He intended his query for James Ellis, the attorney representing Atkins, on whose case hinged the fate of hundreds of mentally retarded inmates nationwide. But Justice Antonin Scalia soon jumped in. Scalia, who has publicly called for the resignation of any judge who thinks the death penalty is morally wrong, was characteristically combative. ”They did know the difference from right to wrong,“ he said. ”Isn‘t that the only thing that bears on culpability? I don’t see the necessary connection between intelligence and moral reprehensibility.“

By his query, Scalia expertly dodged the questions hanging over every capital case: What is the point of the a death penalty, and who should qualify? After decades of debate, these concerns are far from resolved. Out of 10,000 homicides a year, only several hundred draw a death sentence. As to who qualifies, the supposed standard is that the ultimate punishment is reserved for only the ”worst of the worst.“ But determining just which convicted killers should die seems inevitably arbitrary. The court cited that conundrum in 1972, when it banned the death penalty nationwide. ”It is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment,“ Justice William Brennan wrote at the time.

Pro--death penalty states quickly responded with new laws changing the way juries are selected and capital cases are tried, ensuring, they argued, that only those who really deserved it would die. In 1976, the court allowed those laws to stand, and capital punishment‘s brief hiatus came to a close. Since then the court has set some limits, barring state-sanctioned killing of children and of the criminally insane.

It only makes sense, say those who oppose execution of the mentally retarded, to add those with childlike minds to the list. ”A person may have criminal intent, may know right from wrong, but because of retardation he has less than a full understanding of what he’s doing and the consequences,“ said Ellis. ”Just as we don‘t want to execute those under the age of 16, we don’t want the death penalty used for the retarded.“ In writing the court‘s majority opinion, Stevens concurred, saying the mentally impaired face a risk of wrongful execution. ”Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.“

The Weekly’s findings go to the heart of this death-penalty debate: questioning whether it is humanly possible to reserve the death sentence for the worst of the worst, or whether, in fact, it is often meted out instead to those least equipped to fend it off. In the cases we reviewed, where one of the killers was mentally retarded and the others were not, the answer seems clear. Retardation, instead of shielding the mentally impaired from the harshest possible punishment, swung wide-open death row‘s door.

The case of Stanley Bernard Davis is different from most of those involving inmates with mental retardation in one significant way: His trial attorneys knew of his cognitive impairment from the very start and incorporated it into their defense. ”Stanley was slow,“ said Louis Bernstein, one of two attorneys who handled the case at trial. ”Quiet, slow and a big guy. He shouldn’t have gotten the death penalty, because he was mentally deficient. There was no question about that.“

Bernstein had hoped that by highlighting Davis‘ retardation, he could gain the sympathy of the jury. But before the case even went to trial, it became clear that Davis’ low intelligence was going to be a major impediment. Davis would not talk about the crime, even when his attorneys told him his silence would hurt the case. ”He never said he was the triggerman, and he never said he wasn‘t,“ said Seymour Applebaum, Davis’ other trial attorney. Nor would Davis name an accomplice, Deandre Brown, as the shooter. ”He kept saying, I am taking no deals,“ Applebaum recalled.

The crime began on September 30, 1985, on the streets of Westwood. Davis, Brown and two others wanted to steal a car and drive to Barstow, rob a liquor store and get money to help a friend make bail. They ended up commandeering at gunpoint a Honda belonging to Brian Edward Harris, the boyfriend of UCLA freshman Michelle Ann Boyd. They drove the couple to Mulholland Drive in the Santa Monica Mountains, where, Brown told the police, Davis led Boyd and her boyfriend, one by one, down a ravine and shot them in a remote field.

One day later, police found the burned wreckage of the car in South-Central L.A. and traced fingerprints to the suspects. The police then discovered the Uzi hidden under Brown‘s bed. It is at this point, Davis’ attorneys argue, when Brown agreed to tell police everything about the crime in exchange for immunity from prosecution, that the case started getting twisted, and Davis‘ mental impairment began to do him in.

On a secretly recorded jailhouse tape that was later played at trial, a homicide detective asked Davis: ”All right, remember that Uzi? Think about the little fingerprint on it.“ Clearly worried about his role in the crime, Davis remarked to his cellmate: ”Now they’re trying to say the fingerprints on the Uzi is mine. Man, that‘s what’s going to do the shit, man. I‘m telling you, man.“

But forensic tests found no fingerprints on the gun, and no physical evidence linked Davis to the crime. Despite Davis’ refusal to cooperate, his attorneys argued that it was, in fact, Brown who had killed the couple. At trial, they maintained that Brown masterminded the crime and carried out the shootings. They pointed to their client‘s low intelligence and naivete. ”Davis was not the brightest star in the sky,“ Applebaum said. At trial, he called Brown the killer and ”a leader, a liar, an opportunist.“

Deputy D.A. Harvey Giss offered a plea bargain, saying he would not seek the death penalty if Davis would plead guilty to the shootings. Davis’ mother and his attorneys, knowing there was little chance the jury would find him innocent and anxious to save his life, saw the offer as a lucky break and pressed him to take the deal. But Davis, who refused even to admit he was at the scene of the crime, declined the offer.

The jury convicted Davis on all counts and sentenced him to die in the gas chamber. After the trial, the foreman told Bernstein that the jury was not swayed by Davis‘ mental retardation, and in fact that his client ”was a Ph.D. on the street.“ A second accomplice got 53 years to life, and the third got 18 years. As for Brown, because of his deal with prosecutors, all charges against him were dropped and he was released.

Over the years, Richard Harris, who lost his son Brian, has written Christmas and Easter cards to Stanley Davis. ”I get these very short letters. He says he is sorry.“Harris said the high court’s decision was overdue. ”I do not hate the man. I have forgiven him.“

The state Attorney General‘s Office stands by the conviction, and the reliance on the testimony of a witness who took part in the crime. ”You can’t have all nuns and schoolteachers as your witnesses,“ said Lisa J. Brault, the deputy attorney general contesting the appeal. ”It‘s for the jury to decide if they are telling the truth.“ She was unimpressed with the Weekly’s finding that, when accomplices are involved, the mentally retarded inmate is the one who gets death. ”Everyone who is on death row has a doctor who says that they are mentally retarded,“ she said. ”Sometimes you have to look at the actions and see if they add up.“ But the Weekly‘s own review, in which only 10 claims of mental retardation were found in the 183 L.A. County death-row cases, appears to refute this charge.

When mentally retarded criminals get the severest of all punishments, things are usually stacked against them from the start.

In the case of Melvin Turner, convicted of a double murder at a Torrance airport hangar in 1979, his mental deficits were hard to ignore. Turner, a tiny man who stands a little more than 5 feet tall, is ”borderline mentally retarded,“ according to court records. His first arrest came when he was 10, for petty theft. After that he repeatedly got picked up for burglary, winding up, at age 15, at the California Youth Authority. After his release, he returned to the streets, becoming an occasional informant for a Compton police officer.

Turner’s crimes grew increasingly serious, but never more sophisticated. As a teenager, Turner tried to rob a man who grabbed his gun and shot him with it. In prison, Turner met Teague Hampton Scott, an older man who was nearly a foot taller and had a 130 IQ. The two became friends, and Scott helped protect Turner from other predatory inmates.

After serving their time, the men stayed in touch in the outside world -- Scott soon sought out Turner ”because he was gullible and limited,“ Turner‘s lawyers wrote later in an appeal. ”Scott knew [Turner] would follow his orders and could become a scapegoat if necessary.“ That, Turner’s attorneys maintain, is exactly what happened with the airport murders.

Scott, who wanted to steal a car, suggested to Turner that they scope out the Torrance airport, where Turner had worked for a time as a security guard. When Scott saw a sports car that was to his liking, he went looking for the key -- and the owner. Police later found the car‘s owner and his companion inside an airport hangar, each with a bullet through the head.

Upon his arrest, Turner said that he stood watch outside while Scott did the shootings. But over the course of five days in jail without access to an attorney, his story changed. Turner said that he held the gun while Scott bound and robbed the victims. Scott then told him to shoot, Turner said, but he refused. On day four, his story changed again: During the robbery, he and Scott got into a fight, and in the midst of the struggle one of the victims was shot. He said Scott then took the gun and shot the second victim.

Try as he did to blame his partner, Turner was no match for Scott, who insisted Turner was the killer. Scott’s cellmate testified that he overheard Turner confess to the crime.

Scott was not the only friend who Turner says betrayed him. According to court papers, Turner was visited in jail by the Compton detective who used him as an informant. The detective brought both carrot and stick, threatening to reveal that he was a snitch unless he confessed, and offering to write a letter on his behalf to a judge on the case.

Turner played the role he was assigned. During the trial, he said his ever-changing story about his role in the shootings was based on his belief that the detective who had promised to help him would ensure that he would go free. ”Anything that I said, it would not matter,“ he said, ”because she was going to get me out anyway, so if it meant involving myself to get out, that is what I was going to do.“

The lawyers for Turner‘s appeal assert that his gullibility was central to his conviction. ”When a person with mental retardation is interrogated, he has a poor ability to monitor the interpersonal process, is often trying to please, is susceptible to coercive pressures, is more easily confused and misled, while trying to do the perceived right thing,“ they wrote. ”Lies and manufactured scenarios are transparent to a person of average intelligence, but remain credible to the gullible and naive retardate.“

Scott, who was tried separately, was convicted of two counts of first-degree murder and is eligible for parole in 12 years. Turner got death.

Another case turned up by the Weekly followed the same blueprint, but in this one, the tragic element of the simpleton following the crafty accomplice takes on an aspect of farce. This case involves Jesse Morrison, one of a four men convicted of shooting an amateur boxer and the man’s sister at their home in Wilmington, where they had heard $30,000 in drug money was stashed.

Those who knew Morrison, a ”shy, passive“ child with borderline mental retardation, blame his criminal behavior on Michael Berry, a friend of his father‘s who was 10 years older than Morrison and had a long rap sheet. It was Berry, Morrison’s attorneys contend, who planned the robbery and killing that landed Morrison on death row. Berry ”ran the streets, hustled, did whatever he wanted to do,“ and Morrison idolized him, according to testimony of his brother, Victor Morrison. ”Jesse was basically a good kid until he started hanging around with Michael Berry,“ Victor Morrison said. ”That‘s when the stealing and robbing began.“

The stealing and robbing came to an end in May of 1989, when Morrison, Berry and two others showed up at the boxer’s house. The boxer wound up dead; his sister was shot in the face and survived.

In the weeks after the shooting, the sister immediately identified Berry as the man who shot her, but twice failed to pick Morrison out of a photo lineup as the man who killed her brother. After police found Morrison‘s fingerprints at the scene, the sister identified him as the man she had seen coming out of the room where her brother had been shot.

All four suspects were soon in custody, and police and prosecutors began the high-stakes game of playing one accomplice off another in their search for incriminating testimony. Morrison might have helped his cause had he turned against his partners, but that never happened.

A court psychiatrist concluded that Morrison’s reticence stemmed from a relationship with Berry that the doctor characterized as being ”even like a lover in a way.“ Morrison, he said, ”doesn‘t want to betray this great friend of his.“

He cited a note Morrison sent to Berry while in prison awaiting trial: ”I no this DA wont me or you or you and me but I don’t care what he wont cause people in Hell wont out. But is something I wont to no and that is to no how you are cause I love you. So whatever happens I wont you to no I love. So don‘t leave me.“

Berry ended up with a life sentence with no possibility of parole. Another accomplice, who was unarmed, got a four-year prison term. The fourth was a minor, who was convicted of first-degree murder and sent to the California Youth Authority. Morrison got death.

Unlike in several of the other cases presented here, Paul Palalaua Tuilaepa was not turned in by an accomplice. Yet his shoddy legal representation shows there are other ways that mental impairment can lead to a death sentence for one inmate while his partners in crime are spared.

In October 1986, Tuilaepa joined David Laupua in a barroom robbery in Long Beach that left one man dead and three others wounded by gunfire. Juries convicted both men, but the facts cast enough confusion to suggest that Tuilaepa could have escaped the maximum penalty.

Born in American Samoa, Tuilaepa, the youngest of 12 children, moved with his family to L.A. when he was 9. His IQ, measured in the ”low 70s,“ puts him in the bottom 5 percent of the population -- he cannot understand words such as fluid, pedestrian and graceful.

In court, eight witnesses identified Tuilaepa as the killer. Yet several of those same witnesses failed to identify a photo of Tuilaepa shown to them just after the a shooting. Instead, these witnesses identified the accomplice as the triggerman and the only one carrying a gun. Moreover, according to a police account of the arrest, his accomplice, Laupua, ”immediately and spontaneously stated: ’I killed the guy. Let my friend go.‘“

Tuilaepa had the misfortune to be assigned defense attorney Ron Slick, who represented him in both the guilt and penalty phases of his trial. Slick, now a Compton Superior Court commissioner, is known in some legal circles as ”Dr. Death“ because eight of his clients have landed on death row. In another of Slick’s cases, an appeals court found that the Long Beach attorney did such a poor job it overturned a murder conviction.

Slick put on no witnesses during the guilt phase of Tuilaepa‘s trial, which lasted only three and a half hours. He mounted no challenge when eight witnesses identified Tuilaepa as the shooter, despite the fact that several had changed their stories.

Conversely, Slick cooperated fully with the court during the Tuilaepa proceedings. He allowed Tuilaepa to be shackled throughout the trial and sentencing. When the judge asked the prisoner to stand up, saying, ”Do you want to turn around if you can and let them look at you?,“ Slick made no protest, and his client stood, chains and all.

Slick later came under criticism for his performance during the trial when state Supreme Court Justice Stanley Mosk called his defense of Tuilaepa ”deficient in many regards.“ But the court let his conviction stand. Laupua will be up for parole in eight years.

Of the five accomplice cases the Weekly found, the story of Lester Ochoa perhaps reveals the most severe problems an inmate’s mental retardation can cause for himself and others.

Ochoa was convicted of kidnapping, raping and stabbing to death a 16-year-old girl in 1987 while high on cocaine in La Puente and kidnapping, robbing and raping another woman. An accomplice in the earlier rape case, Edward Ramage, led police to Ochoa and testified against him in exchange for a reduced sentence.

Even with Ramage‘s input, the facts surrounding the case are murky at best. The only physical evidence linking Ochoa to the murder was a shoe print. Ochoa, then 26, provided the most damning testimony against himself.

That comes as little surprise in light of Ochoa’s wretched life story. Ochoa was sexually molested as a child by at least two adults, including his half sister. He suffers from an organic brain disorder and early on became addicted to PCP, cocaine and alcohol. In 1985 he was attacked and stabbed with a broken bottle and nearly died from loss of blood. A year later he was gashed in the head by a police officer‘s billy club. To judge from the court record, Ochoa was putty in the hands of the police. He volunteered to take a lie-detector test. When he failed the test, police informed Ochoa of his Miranda rights and asked if he wanted to waive his right to a lawyer. He said he did not understand the question and asked to speak with his mother. Detectives denied his request and went ahead with their interrogation.

Ochoa gave a detailed confession. He said that he and the girl had consensual sex on the grounds of a school near his house, but that afterward he feared she would scream and so he stabbed her repeatedly. A detective testified later that Ochoa ”cried during his confession and asked for help for what he had done.“

But Ochoa recanted his statement during often contradictory trial testimony. He said police pressured him to confess, promising that if he cooperated they would help him get a three- to seven-year prison sentence. ”’Whatever we say in court goes,‘“ he said one officer told him. ”’We‘re policemen.’“ Ochoa testified that, in fact, he did not remember much of what happened on the night of the murder because he was in a drug-induced haze, and that he began to believe the accusations of the police, which then formed the basis of his confession. Asked why he did not call an attorney whom his mother had contacted, he said, ”Just because a cop threatens me, I‘m supposed to run to a lawyer? He’d probably laugh at me.“

At one point during the trial, Ochoa said that he did not know whether he had killed the girl. At another point he testified that he did not kill her, that he saw a man stabbing her, and that that man asked him to help hide the body, which Ochoa did. He said he didn‘t tell police because ”Where I come from you don’t snitch.“ Ramage was never implicated in the murder case.

Ochoa‘s attorney argued that his client ”lacked the ability to form the specific intent and mental framework“ to commit a ”premeditated and deliberated murder.“ But Ochoa’s rambling testimony did little to dispel the jury‘s horror at the crime, and he was sentenced to death. Ramage, convicted of rape, got eight years in prison and was released on parole after three, in 1992. He is now serving time on an unrelated conviction.

On appeal, Ochoa’s counsel argued that his trial attorney had failed him. The testimony of a mental-health expert was ”grossly inadequate and did not serve to educate the jury regarding petitioner‘s mental state at the time of the offense.“ And the representation in the penalty phase was ”abysmal,“ ”perfunctory and damaging.“ Ochoa’s defense lawyer allowed the prosecution to exclude any evidence from family members that Ochoa had expressed remorse for the crimes. The prosecutor then told the jury that there was no evidence of remorse, a claim Ochoa‘s appellate counsel deems ”outrageous misconduct.“

Even the state Supreme Court, notoriously indifferent to the fate of death-row inmates, acknowledged shortcomings in the defense. Noting that Ochoa’s attorney failed to ask the judge to modify the sentence, the court observed, ”This was an opportunity to spare the defendant his death sentence and counsel took no advantage of it.“ The court let the death sentence stand.

The 10 condemned men whose cases the Weekly tracked share the horrific childhoods endemic to the nation‘s death-row population -- poor education, poverty, drug use, neglect and physical abuse. Three were homeless at an early age. Eight were involved in gangs -- violence and death were a part of their daily lives. Nine are nonwhite -- half are African-American, three are Latino, and one is American Samoan. At least two were sexually molested. As with all death-row inmates, each has been convicted of homicide -- murder compounded by at least one of the California death penalty’s 19 requisite ”special circumstances,“ such as rape, robbery or a multiple killing.

But these inmates are bound together -- and set apart from the rest of death row -- by the defining characteristics of mental retardation: low IQ, an inability to perform basic daily tasks like making change or holding down a job, and clear signs of retardation during childhood. All are followers, outsiders and physical misfits, taunted, harassed and beaten by other children and by their families because of their slowness, their physical differences, the color of their skin. Three of the men are barely 5 feet tall, one suffers from gigantism. Several were born with symptoms of fetal alcohol syndrome. All of the men suffered severe head injuries early in life and have criminal records dating back to childhood. In school reports they were called ”slow,“ ”pathetic“ and needing ”special attention.“

In the five instances where the retarded man did not commit murder alone, the role these shortcomings played in landing a death sentence solely for the mentally impaired man is impossible to ignore. While stories like Davis‘ and Morrison’s show the vulnerability of the retarded suspect in a ”he said, he said“ scenario, it‘s not just the accomplices who seize on weakness. In a criminal-justice system prone to following the least resistant route, the mentally retarded man is an obvious target and the easier prey, says UCLA law professor Peter Aranella, a nationally recognized expert on mental-disability defenses. A retarded person is both less able to help in his own defense and an ideal target for prosecutors, he said: ”There are countless opportunities for abuse.“

At the same time, a mentally challenged defendant makes a prime candidate for subpar counsel. And when the defendant is unable to understand the complexities of his case or to challenge decisions made on his behalf, he becomes vulnerable to the indifference of an attorney already prone to unscrupulous behavior. ”If there’s problematic defense counsel, this is going to compound the great difficulties of counseling and motivating cognitively handicapped capital defendants,“ said UC Berkeley law professor Frank Zimring. Or, as Aranella put it, ”The retarded person talks the most and gets the poorest representation.“

When the question of executing the mentally retarded was first brought before the court in 1989, Justice Sandra Day O‘Connor cast the deciding vote -- to allow the executions to continue. The court was considering the Texas case of condemned robber-rapist Johnny Paul Penry, who dropped out of the first grade and whose aunt spent a year trying to teach him to write his name. Though the justices granted Penry a reprieve, they decided the nation was not ready for an outright ban on executing the retarded. At the time only two states banned such executions. In writing the court’s 5-4 opinion, O‘Connor borrowed the language of the late Chief Justice Earl Warren, saying she was looking for ”evolving standards of decency“ that would suggest a ”growing consensus“ that execution of the mentally retarded is wrong.

Thirteen years and four new justices later, consensus was again the main concern. This time it was the Virginia case of Atkins, an inmate with a long, violent criminal history who was convicted of shooting an Air Force enlisted man. And this time, both O’Connor and Justice Anthony Kennedy switched their votes, leaving the court‘s three most conservative justices --Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas -- to dissent.

The court majority seemed most impressed with the number of states that don’t allow execution of the mentally retarded. Twelve states have no death penalty at all, and another 18 ban execution of the mentally retarded -- most through legislation enacted in the past decade. ”It is not so much the number of these states that is significant, but the consistency of the direction of change,“ Stevens wrote in the court opinion. ”The large number of states prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provides powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal.“

The Atkins‘ case provided the court with a good example. The Virginia jury may have believed Atkins’ accomplice, William Alfredic Jones, but the judge expressed doubts when he sentenced Jones to a life term. ”The judge made the statement from the bench, ‘Do you know that your testimony does not explain any of the forensic evidence in this case?’“ said George M. Rogers III, one of Davis‘ two court-appointed attorneys in the 1998 trial. ”Basically he was saying, ’Do you understand that everything you told me, measured against scientific evidence, is a lie?‘

During the trial, Jones and Atkins agreed on this much: Shortly before midnight on August 16, 1996, they had abducted airman Eric Nesbitt from a convenience store parking lot, forced him to withdraw $260 from an ATM machine and drove him in his 1995 Nissan to a remote area. Once there, Jones testified that Atkins ordered Nesbitt out of his pickup truck and, when he was 5 feet away, opened fire. A large amount of Nesbitt’s blood, however, was found on a passenger seat and somehow Atkins was shot twice in the leg. Jones said he and Atkins had scuffled over the gun. Atkins testified that he was sitting in the pickup when Jones fired the shots; eight struck Nesbitt and two pierced the cab of the pickup, striking Atkins.

Such discrepancies in a particular case may do little to reduce public support of the death penalty. But nationwide surveys show that, while the overwhelming majority of Americans back the death penalty, they oppose execution of people who are mentally retarded. The court majority noted that 27 polls conducted in various states and nationwide in the past five years back that up. One poll not cited by the court was conducted by the unabashedly conservative Fox network in June of 2001; the poll found that two-thirds of Americans do not want mentally retarded people put to death, even if they are convicted of premeditated murder. “The general feeling seems to be, is this guy‘s understanding such that he is the one out of 100 or two out of 100 of the people in this country who commit homicide for whom the death penalty might be appropriately considered?” attorney James Ellis said. “There’s nobody whose measured intelligence is in the bottom 2 percent of the population who is in the top 2 percent in terms of culpability.”

The hard part, for the court and for the population at large, comes in applying the abstract idea of diminished culpability to actual cases. When ugly crimes are committed and lives are lost, someone must pay. But who? When more than one person takes part in the crime, simple compassion might suggest that the mentally retarded person is the least responsible. But in actual cases, our survey found all sorts of factors that can go against the retarded defendant. “You‘re talking about the risk of erroneous application of the death penalty to the least culpable class of killer,”said UCLA’s Aranella. “Not all killers are equally culpable, and the retarded person is least culpable of all.”

Christine Pelisek contributed to this story, and Gendy Alimurung provided research. Sara Catania is a 2002 Crime and Communities Media Fellow with the Open Society Institute, a New York--based nonprofit dedicated to reforming the criminal-justice system. The story is one in a yearlong series on death row funded in part by the fellowship. To read other stories in the series, go to www.laweekly.com.


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