In an appeal that could set the terms for releasing all mentally retarded inmates from California’s death row, a convicted killer is asking the state’s highest court to lift his death sentence because of his impairment.

The petition, filed on behalf of Clarence Ray Jr., comes in the wake of the U.S. Supreme Court’s ruling in June that called execution of the mentally retarded “cruel and unusual” and banned the practice. The court left it up to the states to figure out how to define retardation, with the expectation that each state’s lawmakers would come up with their own set of rules. But an effort to get a law passed in California in August fell apart, essentially throwing the matter to the courts.

Ray’s petition, the first of its kind in California, opens the door for the state Supreme Court to both define mental retardation and determine when in the course of a trial it should be considered. It is unclear how many of California’s 612 death row inmates might make a similar claim. By some estimates, anywhere from 2 to 10 percent of the death row population may suffer from mental retardation — an L.A. Weekly investigation earlier this year found 10 possible cases among the 183 death-row inmates from L.A. County.

Ray, now 46, was sentenced to death for shooting and killing a woman and wounding her companion during a 1984 holdup in the parking lot of a Bakersfield country-western bar. His mental impairment is well-documented. He suffered fetal alcohol syndrome and, when he was 6, was placed in classes for the mentally retarded after he scored 75 on an IQ test. Around that time an examiner noted Ray’s “verbal ramblings and seemingly purposeless movements of hands and body,” called his concept of place “vague” and found that “his basic understanding of words is extremely meager.”

At age 16, Ray’s mental condition deteriorated when a chemical explosion at a rustproofing plant where he worked put him in a coma for four days. Ray went through a prolonged recovery, and doctors monitoring his condition performed an IQ test. It came in at 70. Ray’s uncle, Robert Ray, who testified at the murder trial and is the only family member who continues to keep in touch with him, said in an interview that his nephew was “always slow” and “never seemed right in the head.”

Ray’s attorney, Charles Bush, who has been working on the case for nearly 12 years, has long known of his client’s mental impairment — the issue was raised at Ray’s original trial 15 years ago. But mental retardation could not keep a convicted killer off of death row — until now. Once the U.S. Supreme Court made its ruling, Bush immediately began working on the appeal. “This is a tremendous opportunity for us,” Bush said. “Clarence has a very substantial claim.”

John Thawley, the prosecutor who is scheduled to file the reply to the Ray petition for the California Attorney General by December 2, declined to comment on the merit of the claim. “We’re on the cutting edge of the wave, I guess,” he said. “We’ll just have to respond with our brief and let the Supreme Court decide.”

The evidence of Clarence Ray’s mental retardation is intertwined with the details of a bleak and brutal childhood in the slums of Detroit. According to depositions and court testimony of friends and family members, Ray’s mother, Shirley, had a history of mental illness and once tried to commit suicide as her three children watched. She drank excessively and gave alcohol and drugs to her children, who would go for days without food. She often worked as a prostitute, bringing her customers home to the family’s tiny rundown apartment and forcing her three children to have sex with her and with her customers.

By age 7, Clarence Ray had developed a glue-
sniffing addiction. Later he became addicted to other drugs including marijuana, methamphetamines and PCP. At one point, Robert Ray recalled, the courts sent the children to live with their grandmother in Kentucky. But Shirley Ray was unwilling to let her children be. “They were doin’ pretty good a year or two until she came and stole ’em back,” Robert Ray said. “She took ’em right back down. They never had a chance.”

Clarence Ray was first imprisoned in 1974, when he was 19, for second degree murder. While in prison he befriended fellow inmate James Frederick Schulz. In 1984, soon after Ray was paroled, he reunited with Schulz, who Ray’s attorney said had a dominating personality and was the leader of the two. Within a few months, Ray and Schulz were involved in a Michigan murder where the victim was stabbed 66 times. Ray later told a probation officer that he was high on drugs and alcohol at the time of the killing and did not remember it. Ray and Schulz fled to California where they landed in Bakersfield and held up a liquor store. A few days later, outside a country-western bar called Tex’s Barrel House, the pair tried to rob Mark Emmet Doss, 56, and Kathy Lynn Hyde, a 31-year-old cocktail waitress and mother of two. A scuffle followed and both Hyde and Doss were shot. Doss recovered. Hyde died several days later.


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.

In all likelihood, the California Supreme Court, which has an enormous caseload, will probably just sit on the Ray appeal and wait for the Legislature to make the rules. There’s also a chance it might kick the case back to the Kern County court where the trial was held. There is no execution date set for Ray or any other inmate on California’s death row. If such a date were set for an inmate who claimed to be mentally retarded, the court would be forced to act quickly. But even if the court steps in and plays an uncharacteristically activist role, the ruling would only be the law of the land temporarily, until the Legislature got around to acting.

In the meantime, Robert Ray, who is 65, will continue to hope that his nephew’s life will be spared. He and his wife Kathy write to Clarence Ray Jr. regularly. They send him about $60 a month out of the meager workers’ compensation and disability payments Robert Ray has received since he fell off a ladder seven years ago while working as a press operator. They visit Clarence Ray Jr. when they can, usually making the journey once every two or three years to the Michigan prison where he is serving the life term he got before he was sentenced to death. They are his only visitors.

Robert Ray can’t help but wonder what would have happened if he had been able to get Clarence and his siblings away from their mother and raise them himself. “It was no good for them. I could see that,” he said. “But I was single and I was young and I didn’t have a job. I had no way to take care of ’em. How would I provide for ’em?” He does think his nephew should be punished for his crimes. “I know he did something real bad wrong and he should spend the rest of his life behind bars,” he said. “I agree with that. But executing the kid? I don’t think they should.”

Christine Pelisek contributed to this story. 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.

LA Weekly