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VIII. DEFENDANTS WITH MENTAL RETARDATION: THEIR STORIES
This section introduces some of the human beings whose lives are at stake in the debate about whether the mentally retarded should be subjected to the death penalty. Indeed, for some of the people profiled here, it is already too late. We have not attempted to provide complete individual profiles or comprehensive reviews of the long and complex histories of their prosecutions, trials, and subsequent appeals. Rather, we have sought to highlight examples of how capital prosecution of offenders with mental retardation offends principles of justice and basic standards of decency. Limmie Arthur was the seventeenth of eighteen children born to a poor South Carolina sharecropper family. 126 His I.Q. is 66, he functions at the level of a ten-to-twelve year old, and his intellectual abilities are that of a seven-year-old. 127 On New Year's Eve 1984, "he drank a bottle of whisky with a neighbor, stole the man's Social Security payment, then killed him with an ax."128 Arthur then panicked and ran home to his parents' house, leaving his bloodstained shirt behind. After Limmie Arthur arrived home, he hid in the attic, terrified by his own act. When the police came, he was still hiding in the attic. They found him with ease, though, because his feet were sticking out. Like a child, Arthur had assumed that if he could not see the police, they would not be able to see him. He forgot about his feet. Arthur was tried, convicted, and sentenced to death in 1985, after a trial in which his mental disability went unrecognized, even by his own attorney. In a hearing on an unrelated matter, Arthur's retardation was uncovered. According to one of Arthur's appeals attorneys, "Retarded people who function at [Arthur's] level are good at one thing and one thing only and that is covering up their disability...A lawyer or prosecutor or judge talking to him is not going to realize that he is talking to a retarded person."129 At a resentencing hearing ordered by the South Carolina Supreme Court, extensive evidence of Arthur's life long mental retardation was presented, including school records, testimony from former teachers, and the results of psychological evaluations.130 When an expert in mental retardation examined Arthur, she found him to be "a childlike man with a strong desire to conceal his retardation by pretending to be able to read and perform other skilled tasks he identifies with non-retarded people." When she asked Arthur to recite the alphabet, he "began to sing the nursery rhyme of the ABCs. Halfway through he got stuck and could not remember the rest of the letters. He then hummed the rest of the tune."131 Arthur himself was convinced that he had been sentenced to death because he could not read. While on death row, he diligently tried to learn to read with the hopes of eventually obtaining his general equivalency diploma. He thought he would get a reprieve if he was successful.132 The South Carolina Supreme Court ultimately ruled that that Limmie Arthur had not "knowingly or voluntarily" waived his right to a jury trial, and it overturned his death sentence.133 Prosecutors agreed to accept a term of life imprisonment instead of trying him again. Jerome Bowden was a small, undernourished twenty-four-year-old when he was accused of robbing and murdering a fifty-five-year-old Georgia woman and badly beating her bedridden mother.134 Bowden's I.Q. was measured at 59, and he could not count to ten. His mental age was approximately nine. Neighbors described Bowden "soft-spoken, pleasant, optimistic, and always smiling."135 One neighbor said:
Bowden's sister, Josephine, recalled that "Jerome's mind just used to come and go." Once, while mowing his sister's lawn, the mower ran out of gas; Bowden filled the gas tank with water, then wandered off.137 When he was not working, Bowden would often just sit on his bed and rock himself back and forth for hours on end.138 When Jerome Bowden heard from his sister that the police had been looking for him, he went to them to find out how he could help. They confronted him about the crime, and he denied any involvement, but eventually he broke down, confessed, and signed a written statement acknowledging his guilt.139 James Graves, a sixteen-year-old boy, implicated Bowden in the crime; beyond Graves's statement and Bowden's confession, no physical evidence linked Bowden directly to the crime, although a great deal of evidence incriminated Graves. Bowden denied that he had played a role in the murder. When asked why he had made a false confession, Bowden struggled to find an answer: "Well, that I don't know. Only thing that I knew, since Detective Myles had told me this here.... Had told me about could help me, that he could, you know, which I knew that confessing to something you didn't take part in was-if you confess to something that you didn't do, as if you did it, because you are saying that you did." 140 Apparently Detective Myles promised Bowden that he would help him stay out of the electric chair if he confessed. When his clemency attorney later asked him if he had even read his "confession" before signing it, Bowden said, "I tried."141 Although Jerome Bowden could hardly read and could not count to ten, his trial lawyers did not raise his retardation during his defense.142 He was convicted of murder and sentenced to death. When the state granted a last-minute, ninety-day stay of execution to have his mental capacity evaluated, Bowden's lawyers rushed to his cell with the news, but Bowden did not understand the meaning of a "stay." He asked his attorney if the stay meant he could watch television that night.143 "Jerome has no real concept of death," his attorney ruefully concluded.144 During the stay of execution, Irwin Knopf, a psychologist from Emory University, gave Bowden another I.Q. test at the request of the State Board of Pardons and Paroles. This time Bowden scored 65, higher than on his previous tests but still clearly within the definition of mental retardation. Knopf nonetheless concluded that Bowden was not sufficiently disabled to merit clemency. Bowden's lawyers were devastated. Bowden, in contrast, was proud of his performance on the I.Q. test: "I tried real hard," he told his lawyers. "I did the best I could."145 Relying entirely on Knopf's test, the State Board of Pardons and Paroles refused to grant clemency for Jerome Bowden. Bowden was "scared," his lawyers said, but he told an interviewer that he was "going off to live on a little cloud," and he hoped a guard who had befriended him "would live on a cloud near him someday."146 Despite a public outcry, Bowden was executed on June 4, 1986. The public outcry surrounding his execution led Georgia to become the first state in the U.S. to prohibit the execution of people with mental retardation.147 Oliver Cruz was convicted of raping and murdering a young woman, Kelly Donovan, in 1988.148 Despite uncontroverted evidence at trial of his mental retardation, troubled family and emotional history, a Texas jury sentenced sentenced him to death. Cruz was one of five children; his mother's common law marriage ended while he was a child because of his father's excessive alcohol and drug use. His mother had a history of mental illness, was repeatedly hospitalized for depression, and was diagnosed as having chronic schizophrenia. As a young man, Cruz had been committed to a psychiatric hospital. School testing while Cruz was a child established his mental retardation. As an adult, his I.Q. was tested at 64. He was functionally illiterate, reading and writing below the third grade level. He dropped out of school after failing seventh grade three times. He supported himself with menial work and odd jobs because he could not understand how to fill out a job application. Cruz also suffered from severe dependency on drugs and alcohol; indeed, he was severely intoxicated at the time of his crime. Like many people with mental retardation who commit crimes, Oliver Cruz did not act alone. An older man who was not mentally disabled, Jerry Kemplin, also participated. Kemplin, however, pleaded guilty and received a sixty-five year sentence in return for testifying against Cruz. When interrogated by the police, Cruz waived his Miranda rights and confessed. The trial court ruled the waiver was valid, even though Cruz had limited understanding of the legal concepts in the warning. At trial, the police investigator who obtained the waiver testified that Cruz " had difficulty reading aloud some of the words written on the Miranda warnings. [He] realized that [Cruz] had no understanding of some of the terms and had to explain them to him at length." 149 The psychologist who tested Cruz testified that the concept of "waiving rights" was beyond Cruz's comprehension. The prosecutor did not contest Cruz's mental retardation. Rather, the prosecutor argued at sentencing that his mental retardation was an aggravating factor that warranted the death penalty:
In post-conviction proceedings, Cruz's attorneys challenged the instructions given to the jury in his case, arguing they did not permit the jury to give adequate consideration to the mitigating evidence of Cruz's mental retardation. When the case reached the federal court of appeals, the court ruled that Cruz was not entitled to special instructions on mitigation because during his trial he had not established a causal link between his low intelligence and his crime. On August 9, 2000, the Supreme Court refused to hear the case, rejecting Cruz's petition for a writ of certioriari and denying his application for a stay of execution.151 Oliver Cruz was executed that evening. Born to a thirteen-year-old mother, Tony Tyrone Dixon's troubled life has been marked by his mental retardation and violence. His I.Q. tested at 65 and he spent his youth in and out of mental health programs. He committed six felonies before, at age seventeen, murdering Elizabeth Peavy in Houston in 1994 while stealing her car. 152 At the time of the crime, he was living in a group home for mentally impaired teens. At Dixon's trial, the crux of his defense was that he was a mentally deficient, easily swayed youth with the intellectual ability of a kindergartener, a youth who was incapable of foreseeing or fully comprehending the consequences of his impulsive actions. He knew right from wrong, but could not use reason to choose one or the other. Dixon's limited comprehension was demonstrated during his videotaped confession. After Dixon recounted what he had done, the homicide detective questioning him explained that he was accused of a capital crime and that death could be the punishment. With a childlike failure to understand his situation, Dixon said he was ready to go home and repeatedly asked if he could leave.153 According to one of his attorneys, "[Tony Dixon] may be able to understand information, but to take it with him and use it in the real world, that gets lost with Tony....He has what one psychologist described as `an inability to transfer information.' Without exception, all the people who knew Tony said he did not understand consequences." 154 Dixon told a psychologist who evaluated him that he knew that shooting Peavy might hurt her but he thought she would "stay back alive" as people do who are shot on television.155 The prosecutor insists Dixon is smarter than the psychological testing indicated: "There is a certain measure of street smarts that you can't measure on those standard examinations...[Dixon] clearly has strong survival skills and can engage in criminal conduct and operated with a predator's mind on the streets..."156 During the trial, the prosecutor insisted that, whether in spite of or because of his mental deficiencies, Dixon was a violent dangerous man. He told the jury: "I submit to you that Tony Dixon has what it takes to make the decisions that scare you to death when you're on the street" and that a sentence of life could mean Dixon would be released after 40 years in prison and would return to the streets "as a predator."157 The jury apparently agreed with the prosecutor's contention that Dixon was too dangerous to live. He was convicted and sentenced to death.158 Interviewed on death row in 1999, Dixon could not remember the name of the lawyer who was handling his appeal. He could not explain the nature or grounds of current legal efforts on his behalf; he knew his case was "something like Penry's" (referring to fellow Texas death row inmate Johnny Paul Penry) although he did not know why.159 Emile Pierre Duhamel160 was an alcoholic vagrant with mental retardation (I.Q. 56) and severe mental illness -- he suffered from paranoid schizophrenia, serious depression, and dementia. He had been arrested and convicted for various crimes several times before he was arrested in 1984 for sexually assaulting and strangling to death a nine-year-old girl in a field in Harligen, Texas. At a competency proceeding prior to trial, a psychiatrist testified that Duhamel was not competent to stand trial. The prosecution presented the testimony of two jail guards and a nurse who said Duhamel appeared normal to them. He was found competent. Duhamel's court-appointed attorneys presented no evidence of his mental impairments at either the guilt/innocence or sentencing phase of his trial and they put on no witnesses. Nor did they challenge the voluntariness of his confession or whether he had made a knowing and intelligent waiver of his Fifth Amendment rights. Duhamel was convicted and sentenced to death. A federal district court found trial counsel constitutionally ineffective for failing to develop and present mitigating evidence. The U.S. Court of Appeals for the Fifth Circuit, however, reversed that decision. It ruled Duhamel had failed to establish a reasonable probability that the jury would have been persuaded by mitigating evidence to sentence him to life imprisonment rather than to death, given the brutality of the murder, the age of the victim, and Duhamel's prior criminal record.161 On death row, Duhamel's mental condition deteriorated. He was plagued by visual and auditory hallucinations, was increasingly delusional and his paranoia prevented him from working with attorneys representing him in post-conviction proceedings. In 1996, with an execution date pending, Duhamel's attorneys conducted a tape-recorded interview of him through the bars of his prison cell.162 The interview offered such powerful evidence of Duhamel's mental condition that the Attorney General of Texas agreed to a stay of execution and the need for a hearing to evaluate his current mental status. During the interview, although his execution was scheduled and imminent, Duhamel insisted that he had no need for his attorneys' services, as he would be released shortly. His lawyers attempted to make him understand that this was not the case and that they needed his cooperation:
Duhamel: No, I don't.
Duhamel: No, I don't. No, I don't. No, you don't. Emile insisted that he had "already been executed."
On July 9, 1998 Emile Duhamel died in prison of natural causes with his competency for execution still unresolved. Jerome Holloway was known for years as "the most retarded man on death row anywhere in the nation." He does not know the year he was born, and is incapable of relating basic autobiographical details. He cannot tell time, recite the alphabet, make change, or identify the country he lives in. His I.Q. was measured at 49, the mental age of a seven-year-old.164 As Dr. Brad Fisher, director of the Criminal Justice Resource Center, stated, "A person with an I.Q. of 49 is someone you don't expect is going to be able to make change for a dollar bill, someone who can't even follow directions through town, or understand abstract terms.... Jerome does not have the capacity to understand the court process and what attorneys are arguing and how it relates to his own future."165 In 1986, Holloway was accused of the robbery and murder of an elderly woman in Georgia, a neighbor and a friend of his mother's. He confessed to the crime, signing a statement that he was unable to read. He attempted to plead guilty, but the judge rejected the plea on the grounds that Holloway could not comprehend it. Despite this, Holloway was not given a competency hearing and was denied a psychiatric evaluation.166 He was sentenced to death. When new lawyers appealed his death sentence, they brought Holloway to the witness stand to illustrate his suggestibility and lack of comprehension: Attorney: Jerome, did you assassinate President Lincoln? Holloway: Yes. Attorney: Did you assassinate President Kennedy? Holloway: Yes. Attorney: Did you assassinate President Reagan? Holloway: Yes.167 In 1987, hours before Holloway's scheduled execution, the Georgia Supreme Court overturned the sentence, citing his lack of comprehension of the court proceedings. The prosecution ultimately agreed to reduce Holloway's sentence to two life terms.168 In 1980, an eight-year-old girl, Bertha Martinez, was raped, stabbed, and strangled to death in San Marcos, Texas. The case lay unsolved for eleven years until Doil Lane was identified in 1991 as a suspect in the 1990 rape and murder of a nine-year-old girl, Nancy S., in Wichita, Kansas, and he was questioned by the local police. Over a several month period following that initial contact, Lane had numerous conversations with the police, often at his instigation, during which he -- according to the police -- alternately confessed and denied all involvement in Nancy S.'s death.169 Eventually, the police began to regard Lane as a serious suspect, and they arranged a formal interrogation session. During that interrogation, Lane confessed to both the murder of Nancy S. and to that of Martinez. He was taken into custody, and the next day interrogated again, this time in the presence of Texas police as well. On both days, Lane waived his Miranda rights. During his confession, sometimes crying, sometimes babbling incoherently, Lane said his stepfather and he raped the girl in the presence of his mother, and that his stepfather stabbed her and forced Lane to strangle her. Lane said his stepfather forced him to commit the crime by telling him that if he did not, he would "shoot me and put me in the trash can."170 Lane was extradited to Texas where he was tried for the murder of Bertha Martinez. The jury deliberated less than one hour before finding him guilty, less than two hours before deciding on a sentence of death. The principal evidence against him was his confession. DNA testing was inconclusive.171 Lane's post-conviction attorney believes the confession may have been false, the result of police feeding facts to a highly suggestible man with mental retardation and a lifelong fascination with "firetrucks and policemen."172 Whether or not Lane's confession is true, there is not question he has serious cognitive impairments. As a child, he spent years as a resident of a special school in Texas for mentally disabled students. His I.Q. has tested between 62 and 70. His mental deficiencies are so obvious that the report by the Kansas police officer who first interviewed him noted Lane seemed "mentally retarded." 173 The former chief psychologist of the Texas Division of Criminal Justice assessed his intelligence in 1998 and concluded he had mental retardation. When his police interrogation was over, Lane -- a thirty-year-old -- climbed into the interrogating officer's lap.174 At his trial in Texas, Lane asked the judge for crayons so that he could color pictures. The judge denied the request.175 On appeal, Lane's counsel challenged the admissibility of his confession. Despite Lane's low I.Q. and his child-like behavior, the trial court concluded that Lane was capable of understanding his Miranda rights and that his confessions were voluntary. The appellate court agreed.176 Doil Lane, now 39, is on death row in Texas, while legal proceedings in his case continue. He is still trying to get his crayons: "I like to clore [color] in my clorel [coloring] book but you all tuck away my clores when you can't hurt no one with a box of 24 clores, just in my book," he wrote in plaintive protest.177 Ramon Martinez-Villareal has been on death row since 1983, convicted of the murder of a rancher and a ranch hand.178 He does not know how old he is, although his current lawyer believes he may be in his mid-fifties. He comes from rural Mexico, and his family recalls that he did not walk or talk until he was five and was never able to learn the use of even simple tools such as hoes and shovels. In addition to being retarded -- Martinez-Villareal has an I.Q. of 50 -- he is mentally ill, probably schizophrenic. Martinez-Villareal, a Mexican national who speaks no English, was never informed of his Vienna Convention right to contact the Mexican consulate when he was arrested in the U.S., and he ultimately got a trial lawyer who spoke no Spanish.179 Because of his retardation, compounded by the language barrier, he had trouble understanding what was happening to him during his interrogation and trial. When he was told, during his interrogation, that he had the right to remain silent, and was asked by the interpreter if he understood that right, he replied, "Yes, I must be silent."180 When he was arrested, Martinez-Villareal was wearing a new pair of boots, which the police took from him. Barely comprehending his situation, he focused on the one aspect he understood: his new boots had been taken. He asked repeatedly for his boots, unable to understand that something more serious was at stake. This childlike focus on the concrete is typical of those with mental retardation. During the trial -- at which Martinez-Villareal could not tell the difference between the spectators and the jury -- the prosecutors cited his obsession with his boots as evidence of his callous attitude toward his crime. Also, like many people with mental retardation, Martinez-Villareal tended to smile incessantly and inappropriately; during his trial, he frequently bestowed wide smiles on the victim's family. This too was used by the prosecutor as evidence of his cold-bloodedness, while in reality it showed how little he understood his situation.181 Martinez-Villareal's lawyer presented no expert testimony about his retardation during his trial. The two people of normal intelligence who were also involved in the crime were never prosecuted; they claimed Martinez-Villareal alone was to blame.182 He was sentenced to death despite his insistence that he took no part in the crime.183 Since then, Martinez-Villareal's new attorneys have appealed to Arizona's clemency board, presenting evidence of his retardation and other mental problems. His extreme disability made even this evidence-gathering difficult, however. Martinez-Villareal was incapable of comprehending the legal issues at stake or helping his lawyers make important choices. He was even frightened by the psychologist who came to test him, saying, "The doctor's mad at me because I don't know the answers. When I don't know, he gets mad!"184 The trial judge who originally sentenced Martinez-Villareal to death has subsequently testified that if he had known of his mental impairments, he would not have imposed the death penalty. The state's attorney who prosecuted him has said that he would never have sought the death penalty if he had known how mentally impaired he was. Nonetheless, he remains on death row. Morris Mason, a man burdened by mental retardation (I.Q. 62-66) and mentally illness, murdered an elderly woman during "an alcoholic rampage."185 A paranoid schizophrenic with a mental age of eight, Morris Mason had been in and out of mental hospitals for much of his life and had a history of violent acts. When he was twenty-one, he began to hear voices in his head ordering him to "do things, break things, tear things, and destroy things."186 Not sane or mentally competent enough to stop himself from hurting others, Mason was nonetheless just sane enough and just intelligent enough to know that he was out of control. In the week before the killing, he had twice sought help from his parole officer for his uncontrollable drinking and drug abuse. The day before the crime, he had asked to be placed in a halfway house, but no openings were available. 187 After Mason was charged with murder, a state psychiatrist who interviewed him found him "seemingly uncaring as to his fate. He offers no complaints and seems to have no full association [sic] of the gravity of his situation."188 Morris Mason was executed June 1985. He had so little conception of death that he asked advisors what he should wear to his own funeral, and said cheerfully, on his way to the execution chamber, that a visitor should tell a fellow inmate that "when I get back, I'm gonna show him I can play basketball as good as he can."189 Luis Mata190 was born with an abnormally large head, the result of damage during the birthing process. His family saw his swollen head as a sign that his birth would bring bad luck. Luis Mata and his fifteen siblings often went hungry as children. "Malnourishment was a daily fact of life."191 The children were also beaten viciously by their alcoholic father. Luis, in particular, suffered his father's wrath: he was beaten with electric cords, kicked, and punched. At age six, Luis fell from a wagon and fractured his skull. His head swelled "like a balloon," but his impoverished family sought no medical treatment for him.192 After his fall his behavior became increasingly odd and unpredictable: he "began to have seizures like a jumping bean."193 He talked to himself and spoke of visits from space aliens.194 "Luis also seemed a lot dumber after the accident," his sister recalled. Luis had to repeat first grade three times.195 A psychiatrist who examined him when he was an adult reported that "his ability to express himself and.... to recognize the meaning of common words were at the level of a nine- to ten-year-old child."196 He did not understand the difference between north and south or east and west, or the number of weeks in a year.197 His I.Q. was measured at variously at 63 to 70. Luis Mata and his brother Alonzo were arrested in 1977 as suspects in the rape and murder of Debra Lee Lopez in Arizona. Both Luis and Alonzo told the police that it was Luis who cut Lopez' throat, almost severing her head. There was no physical evidence linking Luis to the crime. Both brothers were convicted after trial and sentenced to death; after a resentencing hearing, Luis was again sentenced to death and Alonzo received a life sentence.198 During Luis Mata's sentencing hearings, his lawyer did not present evidence about Mata's mental retardation or his abused childhood.199 The lawyer who handled his post-conviction proceedings did not conduct any investigation into Mata's background, contact his trial counsel or family members, or obtain assistance from mental health experts.200 New attorneys subsequently developed extensive evidence of Luis Mata's mental retardation and childhood abuse. After reviewing this new evidence, the prosecutor from his trial filed an affidavit saying that he no longer believed Luis Mata was sufficiently culpable to merit the ultimate punishment: "Had I known this information, I would not have requested or pursued a death sentence for Luis Mata."201 Nonetheless, the courts refused to consider the new evidence on procedural grounds -- ignoring the prejudice to Mata from his earlier attorneys' poor work. Indeed, the Supreme Court of Arizona said the evidence was not "new" because Luis Mata himself had known about his condition and his past, and the court faulted Mata for not having come forward with it!202 Shortly before Luis Mata was scheduled to die, his brother Alonzo confessed that he was solely responsible for Lopez' rape and murder and that Luis had taken the blame to protect him. A witness who had been present during a portion of the crime agreed that Luis had not taken part in the rape and murder. The Arizona Board of Executive Clemency nonetheless refused to recommend a reprieve of execution. Luis Mata was executed on December 21, 1996.203 Eddie Mitchell, I.Q. 66, was born in 1970.204 His mental deficiencies were obvious from his early childhood: in first grade, which he failed once, his classmates would mock him, calling him "stupid" and "retarded." He stayed in sixth grade for three years and when he finally dropped out of school at age eighteen, he was still in eighth grade. His middle school principal recalled that "he couldn't understand lessons, couldn't respond.... The other kids would giggle and laugh at him."205 Mitchell could not even learn to play baseball: his cub scout master remembers that on the rare occasions when he actually caught the ball, "he would just hold on to it, maybe kiss it, but never throw it on." His intellectual level as an adult was manifest in a statement he provided to his attorneys, written in large, childish letters: "I love to shop in the store. I like ice cream very. Smile. I like horse. I like food to eat. Yes I like cat, and dog. I love animal very much. God love you very very much. The Lord is come back real soon. God bless you. Smile God love you."206 In 1992, Eddie Mitchell got into a quarrel with Paul Guillory, a sixty-seven-year-old relative for whom he had worked on and off. According to the police, Mitchell thought Guillory owed him money, and when Guillory would not pay, Eddie picked up a stick and hit him over the head, causing his death. When interrogated by the police, Eddie waived his rights and confessed, apologizing for the incident. Although even the chief police officer on the case testified that he did not believe Eddie Mitchell had intended to kill Guillory, Louisiana prosecutors sought and obtained the death penalty. In Mitchell's post-conviction appeals, the judge ruled that while Eddie Mitchell could not be expected to represent himself, no funds were available for counsel. This ruling left Mitchell, who thought "waiving rights" meant waving his right hand,207 and whose writing skills are that of a small child, in the ludicrous position of potentially having to represent himself in court if he wishes to go through the legally complex process of appealing his death sentence. Eddie Mitchell remains on death row in Louisiana. Pro bono lawyers are currently fighting for his right to receive free court-appointed counsel in his appeals. Johnny Paul Penry's problems started when he was born. A difficult breach birth left him with organic brain damage, and this initial damage was compounded during his early childhood by his mother's brutal beatings. She hit him on the head, broke his arms several times, burned him with cigarette butts, and forced him to eat his own feces and drink urine.208 She threatened to cut his penis off if he kept wetting the bed.209 His family's neighbors recalled hearing "terrible, terrible screams" coming from the Penry house every afternoon. "They weren't like a two-year-old crying or even a baby crying," said one neighbor. "They were horrible screams, terrified screams [that] would just go on and on."210 When he went to school, Penry could not learn; he dropped out of first grade, and when he reached adulthood his mental age was still "comparable to the average second-grader's."211 His aunt spent a year just trying to teach him to sign his name.212 As an adolescent, he was unable to recite the alphabet and could not count.213 As Johnny's mother beat her defenseless child, she sometimes screamed that she loved him.214 Violent "love" was all Penry was taught, and when he was twenty-one he was convicted of rape. The woman he raped testified that although she was terrified by Penry's attack, she felt sorry for him, too. Penry was paroled after that rape. A report from the Texas Rehabilitation Commission warned that he had "very poor coordination between body drives and intellectual control.... He also tends to be very defensive and may tend to protect himself from anticipation [of] hurt from others through aggressive acts."215 In 1979, Johnny Penry was accused of the murder and rape of twenty-two-year-old Pamela Mosely Carpenter in Livingston, Texas, and he confessed to the police. It is difficult to piece together the sequence of events that led Penry to kill Carpenter: what seems certain is that Penry entered Carpenter's house and frightened her. When she tried to defend herself by attacking him with a pair of scissors, Penry beat Carpenter violently and stabbed her in the chest with the scissors, killing her.216 The police claimed that Penry entered the house in order to commit murder and rape. It is equally possible, however, that Penry entered Carpenter's house with no intention of harming her but that, when Carpenter reacted with terror, Penry panicked himself and events quickly spiraled out of control.217 During his trial, "it became clear [that Penry] couldn't read or write.... He couldn't name the days of the week or the months of the year, couldn't count to 100, couldn't say how many nickels were in a dime or name the President of the United States."218 Nonetheless, a Texas jury sentenced him to death. They were not instructed to consider his retardation as a mitigating factor, however, and in 1989 in Penry v. Lynaugh the U.S. Supreme Court overturned his sentence. "In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its `reasoned moral response' to that evidence in rendering its sentencing decision."219 The Supreme Court ordered a retrial. During the retrial, his lawyers pointed out that Penry's I.Q. measured between 50 and the low sixties. Other Texas death row inmates testified that they had "never known a man... that wanted friends more than Johnny did." Penry was so suggestible that reporters could "get him to say almost anything they wanted to hear." But two prosecution experts denied that Penry was seriously retarded; one, a former chief psychologist for the Texas prison system, argued that his one-time, unrepeated score of 72 on an old verbal I.Q. test "shows his potential" (despite the fact that Penry's average combined I.Q. score on multiple tests administered between his childhood and the age of twenty was in the low fifties). The other expert claimed Penry was faking his retardation; after two examinations that took up a combined total of twenty-three minutes, he diagnosed Penry as someone with an I.Q. between "mild and dull normal."220 The judge then presented the jury with essentially the same set of instructions that led the Supreme Court to overturn the results in the first trial, and Johnny Penry was sentenced to death once more. The Supreme Court decision in Penry's case led Texas legislators to revise the state's capital sentencing scheme, giving jurors greater latitude to consider a wide range of mitigating factors during sentencing. But ironically, Penry's retrial took place before these legislative changes went into effect, so he could not benefit from them. He remains on death row today, where he "spends his days coloring with crayons and looking at comic books he cannot read."221 His most recent execution date of November 16, 2000 was stayed by the U.S. Supreme Court pending consideration of his appeal challenging the jury instructions in his second trial. Oral argument in his case is scheduled for March 27, 2001. Anthony Porter222 seemed to many like a stereotypical criminal: "[He] seems to think he's pretty slick. He walks into a room slowly, real cool, like some streetwise punk, a smirk on his face, eyes shifting back and forth."223 Although he claimed he was innocent, Porter struck his Illinois jury as someone every bit mean enough to have committed the brutal murder with which he was charged, the 1982 slaying of a young Chicago couple. Porter's original trial lawyer did not realize that his client had severe mental retardation and so never raised this as a possible mitigating factor. The jury convicted Porter, and the judge sentenced him to death. Porter was so frightened and belligerent that he opposed having his lawyers file for clemency: "He thought that when your lawyer gets tired of working, he files this petition and then they come and get you to kill you. He would get enraged when [filing a clemency petition] was mentioned."224 In 1998, Anthony Porter was forty-eight hours away from execution when his lawyers persuaded the Illinois Supreme Court to grant a stay while they gathered further evidence of his mental retardation. Porter could not help his lawyers, could not "describe facts," or "deal with abstractions."225 When the psychiatric expert obtained by the defense started his examination, Porter asked him a preliminary question: "What's execution?" he wanted to know. The examining psychologist "explained that he was to be put to death and that was why he was on death row. [Anthony's] eyes grew wide, and he said, `Oh my gosh!'" The psychologist concluded that Porter was clearly incompetent and unfit to be executed. His I.Q. measured only 51.226 The prosecutor's office appeared to think Porter was somehow "faking" his retardation. According to the Chicago Tribune, the prosecutor had no sympathy for Porter's plight: he "sneer[ed]" that Porter's I.Q. score was `conveniently' four points lower than the score of the person with the lowest I.Q. executed in the U.S. in recent decades."227 For Porter, that low I.Q. score was more than just convenient. It saved his life, and ultimately set him free. Although the courts granted a stay solely in order for the investigation into Porter's retardation to proceed, the story bought Porter just enough time for a group of journalism students at Northwestern University to prove conclusively that he was innocent. Porter was released from prison in 1999 after spending sixteen years on death row. Illinois Gov. George Ryan was shaken by the near-execution of an innocent man: "Anthony... was, I think, mentally incompetent, had a very low I.Q., had no business being on death row," he told CNN in September 2000. When Gov. Ryan, a long-time death penalty supporter, realized that Porter's case was far from atypical, he instituted a state moratorium on the death penalty, saying "I have grave concern's about our state's shameful record of convicting innocent people and putting them on death row." Illinois had executed twelve people since reinstating the death penalty in 1977. During the same period, ten Illinois death row prisoners were found to be innocent.228 Earl Washington, Jr. grew up extremely poor in rural Virginia, one of five children in a family marked by parental drinking and violence. 229 As a child, he was diagnosed as brain-damaged and mentally retarded. He attended special education classes and dropped out of school at fifteen after failing all his courses. A teacher made "what would become a prophetic observation: `[Washington] is very easily led. He tries to do what is asked, but has no idea what is expected of him.'"230 Testing placed his I.Q variously at 57 and 69.231 He knows "some," but not all, of the letters of the alphabet.232 Washington worked as a farmhand, and his employers noticed his extreme suggestibility. As one stated, "[Washington] was going to agree with whatever you said. Sometimes he knew what you were talking about. Sometimes he didn't."233 In 1983, he was picked up by police for shooting his brother-in-law in the foot during a quarrel -- charges that were eventually dropped.234 But while in police custody, he waived his Miranda rights and after a lengthy interrogation, confessed not only to the incident involving his brother-in law but to five other crimes, including a break-in down the street, a burglary on another street nearby, a recent rape -- and, eventually, the 1992 the stabbing murder of a young woman, Rebecca Williams.235 In his "confession," his trial lawyers said, "Earl on more than ten to fifteen occasions simply uttered the words either yes or no."236 Most of his "confessions" didn't check out: he had the facts all wrong, and eyewitnesses said he wasn't the perpetrator. The police eventually acknowledged that Washington could not possibly have committed most of the crimes he had admitted to. But police were less willing to let go of Earl's confession in the Williams case, which had gone unsolved for a year.237 They insisted on Washington's guilt despite various odd aspects of the information volunteered. Washington, for instance, told the police that Rebecca Williams, his supposed victim, was black, although she was in fact white. He described her as "short" although she was 5' 8''. He said he kicked in the door, which was found undamaged. He said he stabbed her two or three times, rather than the thirty-eight times she was actually stabbed. And he said she was alone, although Williams's two small children were present.238 Washington later recanted his confession, insisting that he had not committed the crime.239 He said, "I guess I just agreed with whatever [the police] told me, that's what I agreed. Whatever they said, I agreed with, I guess."240 One of Washington's defense attorneys told journalists that in his view, Washington, an African-American in a southern town, had "found that the way to get by in his community as a mentally challenged black man was [to say] `Yes, sir.' `Yes, Sir,' is an easy answer for him. It means he's pleased his interrogator."241 In an interview with Human Rights Watch, Washington's lawyer elaborated: "Earl Washington developed a coping mechanism of pleasing authority figures. When police let him know what they wanted, he gave them that. He didn't see the danger."242 Despite Washington's mental retardation, the trial court found that he had voluntarily waived his Miranda rights and that his confession was valid -- even though the court knew that he had been found to be innocent of virtually everything else he had "confessed" to doing.243 After a three-day trial -- in which the prosecutors did not reveal to the jury Washington's various false confessions -- Earl Washington was sentenced to death. Subsequent appeals to state and federal courts were all denied, despite newly discovered forensic evidence that showed the seminal fluid found at the crime scene could not have been Washington's.244 In 1993, new DNA tests were performed on the blood and semen found on the victim, and the results did not match Earl Washington's DNA. Gov. Wilder of Virginia nevertheless refused to overturn Washington's conviction, arguing that perhaps Washington had had an accomplice (despite the victim's dying words, in which she said her assailant had been alone),245 but on his last day in office he did reduce Washington's sentence to life in prison. In 2000, a new series of DNA tests ordered by Virginia's current governor, Jim Gilmore, showed once again that there was no trace of Washington's blood or semen at the crime scene.246 After eighteen years in prison, including nine and a half on death row, Washington received a pardon from Gov. Gilmore declaring him innocent of the murder that brought him within days of execution. He was released from prison on February 12, 2001. Terry Williams,247 I.Q. 69, was born with fetal alcohol syndrome. Before his birth, his mother "drank herself into a stupor every day from Thursday to Monday," one of Williams's former advocates told Human Rights Watch. "Both of his parents were bootleggers," and eventually "they were arrested and charged with criminal child neglect. The police report is enough to make you ill. Kids were naked, hungry and there was feces and urine on the floor." 248 One morning in 1985 in Danville, Virginia, a neighbor found the dead body of textile-worker Harris Stone after Stone had been out drinking. Stone's blood-alcohol count was measured at 0.41, more than five times higher than the point at which a motorist is declared legally drunk. The police concluded that Stone had died of alcohol poisoning. Eight months later, however, Terry Williams wrote an anonymous letter to the police, explaining that he had hit Stone in the chest with a gardening tool and robbed him of $3.249 An autopsy was performed, and Stone was found to have broken ribs and a perforated lung.250 When the police eventually traced the letter to Terry Williams and interrogated him, he "confessed, recanted, and then confessed again." He later told his lawyers, however, that his letter had been about a dream he had had and that his confession had only been about his dream.251 Despite the peculiar circumstances of Stone's death, Williams was charged with capital murder, and the prosecution used his confession as the key evidence of his guilt. Williams's trial attorney did not tell the jury about his mental retardation or his abused childhood, and he did not bother to return the phone calls of an accountant who offered to serve as a character witness for Williams. Defense counsel also told the jury in his closing arguments that Williams's alleged crime "defies logic" and that he could not think of "any great, earth-shattering, moving reason" why the jury should spare Williams' life.252 Terry Williams was found guilty and sentenced to death. Ultimately, the American Bar Association asked a Washington, D.C. law firm to represent Williams pro bono in his post-conviction appeals. His new lawyers appealed his death sentence, arguing that Williams had been denied effective assistance of counsel.253 Ultimately, the U.S. Supreme Court agreed, finding in a 6-3 opinion that Williams could not have received a fair trial. Williams's fetal alcohol syndrome and borderline intelligence made it difficult for his new lawyers in their efforts to represent him. "He can't understand any abstraction, can't make a budget, can't understand how things in state court can have an impact later," one of his former attorneys told Human Rights Watch. Williams "answers questions and makes decisions based on your tone of voice and facial expressions.... He's so incredibly suggestible."254 After the Supreme Court decision, however, Terry Williams's lawyers were able to reach an agreement with the state to avoid a full resentencing trial. In the November 2000 plea agreement, Williams pled guilty and accepted life in prison without the possibility of parole in exchange for the state's agreement to forgo the death penalty. He remains in prison, but has been moved off death row. One of his attorneys relates that he "is very happy to have the increased freedom and human contact of life off of the row."255 Twenty-year-old Johnny Lee Wilson lived with his mother and grandmother in Missouri when he was accused by police of brutally murdering seventy-nine-year-old Pauline Martz, a friend of his grandmother. Wilson, whose I.Q. was under 70,256 had no criminal record; he worked intermittently as a handyman and janitor, mowing lawns and helping out. At first he insisted to police that he had been with his mother during the time the crime was committed. The police kept up their interrogation, telling Wilson that if he confessed "we can all go home." Wilson thought they meant that he, too, could return home.257 The police told him that they were his friends and wanted to help him:
As the interrogation continued, with the police insisting on his guilt, Wilson's conviction of his own innocence began to waver:
The police finally broke Wilson's resistance, and they began to coax details of the crime from him. The police asked about the color of the shirt worn by the victim, for instance: Wilson: I'd say it was white, kind of white or bluish blouse. Investigator: Okay, how about bluish? I'll go for that. Wilson: Yeah. Investigator: How about blueish-green, maybe. Wilson: Yeah. The police knew that the victim's ankles had been bound with both rope and duct tape, and they tried to get Wilson to admit to knowing this incriminating detail:
Although there was no other physical evidence linking him to the crime,259 Johnny Lee Wilson was charged with capital murder after his "confession."260 He pled guilty to avoid the death penalty, and he was sentenced to life in prison. Although Wilson clearly had little understanding of what a "guilty plea" meant,261 several courts upheld the "voluntariness" of his guilty plea.262 Evidence ultimately emerged supporting Wilson's alibi, and another man, who had been a suspect from the beginning, confessed to the crime.263 It turned out that the police and prosecution had withheld evidence that would have cleared Wilson.264 In 1998, Johnny Wilson was pardoned by Missouri Gov. Mel Carnahan, who said: "We have locked up an innocent, retarded man who is not guilty of the crime of which he is accused." 265 Johnny Wilson had spent almost a decade in prison before his pardon.266 126 General background information from Human Rights Watch telephone interview with John Blume, counsel for Arthur, June 1, 1999. 127 John Blume and David Bruck, "Sentencing the Mentally Retarded to Death: An Eighth Amendment Analysis," 41 Arkansas Law Review 726 (1988). 128 David Stout, "The Lawyers of Death Row," New York Times, February 14, 1988. 129 Joseph Frazier, "Too Retarded to Die for Crimes? Laws Say No," Los Angeles Times, April 17, 1988. 130 State v. Arthur, 374 S.E. 2d. 291, 293-194. (S.C. 1988); Human Rights Watch telephone interview with David Bruck, counsel for Arthur, February 26, 2001. Evidence of Arthur's retardation is detailed in Brief of Appellant, State v. Arthur, December 21, 1987 (on file at Human Rights Watch). 131 Human Rights Watch interview with Ruth Luckasson, January 29, 2001. See also, South Carolina v. Arthur, Appellant's Brief, in the Supreme Court of South Carolina, December, 1987, p. 12-13. 132 Human Rights Watch interview with Ruth Luckasson, January 29, 2001. 133 "Death sentence voided," Washington Post, November 15, 1988. 134 Reed, Penry Penalty, p. 84. 135 Ibid. 136 Perske, Unequal Justice, p. 31. 137 Ibid., quoting from the Application of Jerome Bowden for a 90-Day Stay of Execution and for Commutation of his Sentence of Death, submitted to the Georgia Board of Pardons and Paroles. 138 Bowden v. Francis, 733 F.2d 740, 747 (11th Cir. 1984). 139 Bowden v. State, 239 Ga. 821 (1977). 140 See testimony of Jerome Bowden at his December 6, 1976 trial (on file with Human Rights Watch). 141 Joseph Frazier, "Too Retarded." 142 Ibid. 143 Editorial, Atlanta Journal and Constitution, June 21, 1996. 144 Perske, Unequal Justice, p. 31, quoting from Application of Jerome Bowden. 145 Ibid., p. 33. 146 Frazier, "Too Retarded." 147 Reed, Penry Penalty, p. 86. 148 Information about Oliver Cruz comes from Human Rights Watch telephone interview with Jeffrey Pokorak, post-conviction counsel for Cruz, February 25, 2001; Cruz v. Johnson, Petition for Writ of Certiorari to the United States (on file at Human Rights Watch); In Re Oliver David Cruz, Petition for a Reprieve of Execution, Before the Texas Board of Pardon and Paroles, (on file at Human Rights Watch); Bonner and Rimer, "Executing the Mentally Retarded." 149 Petition for Reprieve of Execution, p. 9. 150 Petition for Certiorari, p. 7, quoting from trial transcript. 151 Cruz v. Johnson, 121 S.Ct. 11 (2000). 152 See Tolson, "Death Sentence Heightens"; Robert Stanton, "Retarded Teen Guilty of Murder," Houston Post, February 4, 1995; wire reports, Fort Worth Star-Telegram, February 10, 1995. 153 Jennifer Liebraum, "Trial to begin in slaying of popular dentist," Houston Chronicle, January 30, 1995. 154 Tolson, "Death sentence heightens debate." 155 John Makeig, "Retarded teen convicted in killing dentist for car," Houston Chronicle, February 4, 1995. 156 Tolson, "Death sentence heightens debate." 157 Jennifer Liebraum, "Dentist's murderer gets death penalty," Houston Chronicle, February 9, 1995. 158 Because he committed his crime when he was seventeen years old, Dixon's sentence violates international human rights law. See Article 6 (5) of the ICCPR ("sentence of death shall not be imposed for crimes committed by persons below eighteen years of age"). 159 Human Rights Watch interview with Tony Tyrone Dixon at Ellis Unit, Huntsville Tex., May 17, 1999. 160 Information on Emile Duhamel from Human Rights Watch interview with Greg Wiercioch. See also, Duhamel v. Scott, Petition for Writ of Habeas Corpus and Motion for Stay of Execution and For an Evidentiary Hearing," filed September 26, 1995 (on file at Human Rights Watch). Extensive information and documentation on Duhamel's case is available at www.lonestar.texas.net/~acohen. Voluminous documentation on Duhamel's mental condition was provided to Human Rights Watch by his counsel and is on file at Human Rights Watch. 161 Duhamel v. Collins, 955 F.2d 962 (5th Cir. 1992). 162 Because Duhamel refused to leave his cell for legal visits, the attorney obtained a court order allowing Duhamel to interview him in front of the cell. 163 Transcript of interview of Emile Duhamel, provided by Gregory Wiercioch, on file with Human Rights Watch and available on the web at http://lonestar.texas.net/~acohen/transcript1.html. 164 Reed, Penry Penalty, p. 119; Joe Parham, "Condemned Man Called Most Retarded On Death Row," United Press International, October 12, 1987. 165 Parham, "Condemned Man." 166 Holloway v. State, 361 S.E.2d 794 (Ga. 1987); Reed, Penry Penalty, pp. 119-120. 167 Perske, Unequal Justice, p. 18. 168 Reed, Penry Penalty, p. 111; Parham, "Condemned Man." 169 Lane's prolonged and bizarre series of interactions with the police -- including one in which he invited the police to come eat cantaloupe with him at his house -- are detailed in Kansas v. Lane, 940 P.2d 422 (Kan. 1997). 170 Debbie Hiott, "Jurors hear Lane's 1991 confession in 8-year-old's death," Austin American-Statesman, February 9, 1994. Lane's stepfather and mother were indicted as co-defendants but the charges were subsequently dropped. The stepfather died in January 1994; Lane's mother is in a mental health facility. Debbie Hiott, "Lane sentenced to death for murder of 8-year-old girl," Austin American-Statesman, February 17, 1994. 171 Lane was subsequently returned to Kansas and was tried and convicted for the murder of Nancy S. He was then returned to the custody of Texas. 172 Human Rights Watch telephone interview with William Allison, post-conviction counsel for Lane, Austin, Tex., February 26, 2001. 173 Ibid. 174 Monica Polanco, "40 years probing criminal minds, Williamson Sheriff Ready for a Change." Austin American Statesman, July 31 2000. William Allison points out that the fact that a "crusty, old Texas ranger" who would never permit a grown man to sit in his lap let Lane do, so showed the policeman's awareness of Lane's mental condition. Human Rights Watch interview with William Allison. 175 Bonner and Rimer, "Executing the Mentally Retarded." 176 Kansas v. Lane, 940 P.2d 422 (Kan. 1997). 177 Bonner and Rimer, "Executing the Mentally Retarded." 178 Background information on Ramon Martinez-Villareal from Human Right Watch telephone interview with Sean O'Brien, attorney for Martinez-Villareal, April 29, 1999. 179 Frank Murray, "U.S. Argues World Court Can't Halt Va. Execution" Washington Times, April 14, 1998. Vienna Convention on Consular Relations and Optional Protocols, U.N.T.S. Nos. 8638-8640, vol. 596, pp. 262-512, April 24, 1963. Article 36 of the Convention requires that foreign nationals detained in member states be notified of their right to communicate with their consular officials. The U.S. ratified the Vienna Convention in 1969. Leigh Marjamaa, "Death Row Debate: Mexico Fights to Protect Citizens in U.S. Prisons," The News, June 14, 1998. 180 Human Rights Watch interview with Sean O'Brien, April 29, 1999. 181 Ibid. 182 Arizona v. Martinez-Villareal, 702 P.2d. 670, 673 (Ariz. 1985). 183 Ibid.; see also Bonner and Rimer, "Executing the Mentally Retarded." 184 Human Rights Watch interview with Sean O'Brien, April 29, 1999. 185 Michael Ross, "Don't Execute Mentally Disturbed Killers," The Humanist, January 1999. 186 Forensic Unit Diagnostic Staff Conference report, Virginia Department of Mental Health and Mental Retardation, November 28, 1975, (on file with Human Rights Watch). See also Reed, Penry Penalty, p. 81. 187 Ross, "Don't Execute." 188 Case note by M. Maurice Ryans, M.D., Chief of Service, Forensic Unit, Virginia Department Mental Health and Mental Retardation, June 23, 1978, (on file with Human Rights Watch). 189 "Executing Mentally Impaired Prisoners is Unjust and Cruel," Dallas Morning News, November 22, 1998. 190 General information about Luis Mata provided by Jeffrey Kirchmeier, counsel for Luis Mata. Human Rights Watch telephone interview with Jeffrey Kirchmeier, May 25, 1999. 191 Declaration of Dr. Timothy Derning, psychologist, January 11, 1992, (on file with Human Rights Watch). 192 See generally Affidavit of Michael Bayless, June 28, 1995, (on file with Human Rights Watch); see also Affidavit of Richard I. Lanyon, psychologist, August 13, 1993, (on file with Human Rights Watch). 193 Declaration of Derning. 194 Pamela Manson, "Death Row Appeal cites Brain Damage; Violent Childhood Described," Arizona Republic, July 3, 1995. 195 Declaration of Clemente Mata, sister of Luis Mata, Exhibit 11, In Re Luis Mata , Application for Executive Clemency, Before the Arizona Board of Executive Clemency, (copy on file with Human Rights Watch). 196 Peres-Arce, "Neuropsychological Evaluation." 197 See declaration of Derning. 198 See In Re the Application of Luis M. Mata, Application for Executive Clemency, submitted to the Arizona Board of Executive Clemency. 199 Luis Mata, like many people, fought hard to keep his retardation a secret. One of his attorneys said ruefully, "I had no idea [he was mentally retarded]... He would talk about `habeas' and read the briefs. Later, I realized he used words without knowing what they meant." Human Rights Watch interview with Jeffrey Kirchmeier. 200 Luis Mata Application for Executive Clemency, p. 24. 201 Manson, "Death Row." 202 State v. Mata, 609 P.2d 48 (Ariz. 1980). 203 Death Penalty Information Center. 204 General background information on Eddie Mitchell from Human Rights Watch interviews with Clive Stafford-Smith and Emily Bolton of the Louisiana Crisis Assistance Center, May 19, 1999, May 21, 1999 respectively. See also State of Louisiana v. Eddie Mitchell, Brief Amicus Curiae of the Louisiana Public Defender's Association in Support of Eddie Mitchell's Request that this Court Grant Supervisory Writs and Hear Full Argument on Whether a Mentally Retarded Person who is Condemned to Death May be Denied Counsel and Funds for His Release, filed September 18, 1998, Case 98 KP 2445, Louisiana Supreme Court. 205 Affidavit of Ivory Bellony, March 28, 1997 (on file at Human Rights Watch). 206 Document on file at Human Rights Watch. 207 When an attorney from the Louisiana Crisis Assistance Center asked Mitchell if he had understood what "waiving his rights" meant, Mitchell raised his right hand and waved. Human Rights Watch interview with Emily Bolton . 208 There is extensive information on Penry's case in the published court decisions and numerous press accounts. Good summaries of Penry's mental retardation and childhood history are also provided in Request for Clemency or Reprieve for Johnny Paul Penry, December 13, 2000, filed with Texas Board of Pardon and Paroles, p. 4, (on file with Human Rights Watch); also see generally Petition for Writ of Habeas Corpus, No. H-97-CV-04094, S.D. Tex., March 2, 1998, (on file with Human Rights Watch). See also Reed, Penry Penalty and Perske, Unequal Justice.. 209 Petition for Writ of Habeas Corpus, p. 9. 210 Penry Request for Clemency, p. 9; Ibid., Perske, Unequal Justice, p. 63; Penry Petition for Writ of Habeas Corpus, p. 9. 211 Reed, Penry Penalty, p. 2; see also Penry v. Lynaugh, 492 U.S. 302, 307, 309 (1989). 212 Perske, Unequal Justice, p. 65. 213 Penry Petition for Writ of Habeas Corpus, p. 9. 214 Perske, Unequal Justice, p. 63. 215 Ibid,. p. 64. 216 See Penry v. Lynaugh, 492 U.S. 302, 307 (1989). 217 Ibid. 218 Ibid., p. 65; see also Raymond Bonner and Sarah Rimer, "Mentally Retarded Man Facing Texas Execution Draws Wide Attention," New York Times, November 12, 2000. 219 See Penry v. Lynaugh, 492 U.S. 302, 328 (1989). 220 Perske, Unequal Justice, pp. 68, 71 221 Bonner and Rimer, "Mentally Retarded." 222 General information about Anthony Porter from Human Rights Watch telephone interview with Daniel Sanders, attorney for Anthony Porter, May 5, 1999. 223 Eric Zorn, "Questions Persist as Troubled Inmate Faces Electrocution," Chicago Tribune, September 21, 1998, describing the reaction Washington's defense experts initially had to him. 224 Human Rights Watch interview with Daniel Sanders. 225 Ibid. 226 Adriana Colindres, "Death Row Dilemma," State Journal-Register, Springfield, Ill., October 4, 1998. 227 Zorn, "Questions persist." 228 CNN, "Struggle to be Normal, Part 4: Criminal Justice, " October 2, 1994. 229 General background information on Earl Washington from Human Rights Watch telephone interview with Gerald Zerkin, attorney for Washington, May 13, 1999. A detailed review of his case is presented in McGlone, et al, "A Near-Fatal Injustice." 230 Ibid. 231 Ted Koppel, "Crime and Punishment - A Matter of Life and Death," ABC News Nightline, September 14, 2000; Jim Dwyer, "Testing the Rush to Death Row," New York Daily News, September 7, 2000. 232 CNN, "Struggle." 233 Tim McGlone, et al., "A Near-Fatal Justice." 234 Dwyer, "Testing the Rush." 235 Ibid.; see also Washington v. Virginia, 323 S.E. 2d. 577 (1984), cert. denied, 471 US 1111 (1985), rev'd on other grounds. 236 Ibid; also Koppel, "Crime and Punishment." 237 Koppel, "Crime and Punishment." 238 Dwyer, "Testing the Rush"; Perske, Unequal Justice, p. 55; Hourhian, "Earl Washington's Confession," p. 1502. 239 When reporters asked him why he had volunteered so many details to the police, Washington struggled to find words:
figured she was black. Reporter: You figured she was black?
240 CNN, "Struggle." 241 Koppell, "Crime and Punishment." 242 Human Rights Watch telephone interview with Gerald Zerkin, attorney for Earl Washington, May 13, 1999. 243 Washington v. Virginia, 323 S.E. 2d. 577 (Va. 1984), cert. denied, 471 US 1111 (1985), rev'd on other grounds. 244 Washington had type O blood while semen found at the crime scene contained type A. Washington's trial lawyer had been unaware of this evidence and so never presented it at trial. McGlone, et al., "A Near-Fatal Justice." 245 Ibid. 246 CNN, "Struggle." 247 General background information about Terry Williams from Human Rights Watch telephone interviews with Linda Tarlow, a former lawyer for Terry Williams, May 6, 1999 and October 6, 2000. 248 Human Rights Watch interviews with Linda Tarlow. 249 Frank Green, "Death Row Veteran's Life Spared," Richmond Times Dispatch, November 15, 2000. 250 Brooke Masters, "Deal Gets Inmate off Death Row; U.S. High Court Intervened, citing Virginia Man's Deplorable Defense." Washington Post, November 15, 2000. 251 Human Rights Watch interviews with Linda Tarlow. 252 Masters, "Deal." 253 Human Rights Watch interviews with Linda Tarlow. 254 Ibid. 255 Human Rights Watch telephone interview with Dinah S. Leventhal, lawyer for Terry Williams, January 2, 2001. 256 20/20, ABC News, "An Innocent Man - Retarded Man Wrongfully Imprisoned," March 3, 1995. 257 Perske, Unequal Justice, p. 44, citing Wilson v. Missouri, Appellant's Reply Brief, Supreme Court of Missouri, Case No. 73285, pp. 10-12. 258 Robert P. Sigman, "Victim Of 'A Horrible Injustice'; So Far, Attempts To Help Johnny Lee Wilson Have Failed," Kansas City Star, June 4, 1995. The article reproduces extensive portions of the interrogation transcript. 259 Interestingly, police found a stun gun at the crime scene. When they confronted Wilson with the stun gun, he had no reaction, and seemed bewildered. When police asked him to tell them what the stun gun was for, he suggested that it might be an electric razor. See Perske, Unequal Justice, p. 46. 260 Although confessions are notoriously unreliable, juries and judges tend to find them extremely damning, and convict even when there is no evidence to corroborate the confession. See generally Peter Brooks, Troubling Confessions (Chicago: University of Chicago Press, 2000). 261 See dissent by Judge Blackmar in Wilson v. State, 813 S.W.2d 833, 846 (Ma. 1991): "The transcript raises substantial questions about whether the plea was voluntarily and intelligently made. When asked why he was pleading guilty, the movant twice replied, `I don't know.' When the judge responded at some length that these responses were not adequate the movant replied, `I don't understand what you're saying.' At this point many judges would have suggested that the proceedings be suspended so that the movant could consult with counsel. This judge, however, kept the movant on the carpet and asked a long series of questions, almost all calling for yes or no answers." 262 See Wilson v. State, 813 S.W.2d 833, 846 (Mo. 1991). 263 Human Rights Watch interview with Sean O'Brien, April 29, 1999. 264 Perske, Unequal Justice, p. 44-48. 265 Wilson v. Lawrence County, 154 F.3d 757, 759, (8th Cir.1998). Gov. Mel Carnahan also said, "As a result of an intense investigation conducted by my office, I have decided to issue a pardon to Johnny Lee Wilson because it is clear he did not commit the crime for which he has been incarcerated." 266 "Wrongful Incarceration," National Law Journal, September 7, 1998.
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