The prosecution and trial of capital defendants in the United States is notoriously flawed by arbitrariness, prejudice, and error. These flaws are magnified when the defendant has mental retardation. By virtue of their disability, people with mental retardation are even less likely than other defendants to be able to protect their legal rights and to secure a fair trial. Even before they run afoul of the law, the intellectual and adaptive deficits of mentally retarded people render them uniquely vulnerable to abuse and exploitation. These vulnerabilities continue to haunt them once they are enmeshed in the criminal justice system.
If a person is so profoundly retarded as to be deemed mentally incompetent he or she will not be required to stand trial. In practice, however, findings of mental incompetence are extremely rare. Once adjudicated as competent to stand trial, a person with mental retardation is deemed capable of understanding the nature and purpose of the legal proceedings and of cooperating, communicating and working with defense counsel. The law does not require specially designed aids or procedures to assist the "mentally competent" person suffering from retardation. Yet even people with less severe degrees of retardation are significantly impaired in their ability to understand and protect their rights and to assist in their own defense.
For example, one attribute of mental retardation is the inability to reason abstractly and to comprehend abstract concepts -- including the most basic concepts relevant to criminal proceedings. Robert Wayne Sawyer -- an offender with mental retardation executed in 1993 -- was asked by a psychiatrist interviewing him to define evidence. "It's what lawyers put on a yellow pad like the one you're using," was the best definition Sawyer could offer. When asked what "reasonable doubt" meant, Sawyer put out his cigarette, pointed to the residual smoke and said, "That smoke ain't reasonable out, but when it stops, it's reasonable out." When asked if he could provide an explanation that did not involve a cigarette, Sawyer said he could not.79
At various stages in the proceedings against them, criminal suspects face important decisions about whether to waive their constitutional and statutory rights, e.g. the right to refrain from answering police questions, and the right to a trial by jury. Before giving effect to such waivers, the courts are obliged to determine, based on the totality of the circumstances, whether the waiver was voluntary and made with full awareness of the nature of the right being waived and the consequences of the decision to waive it.80 The courts, however, frequently accept waivers by people with mental retardation without sufficient regard for the nature of the disability and its impact on such crucial decisions. Many people with mental retardation relinquish critical rights simply because they cannot understand what it means to have a "right," much less what it means to waive it.
The right against self-incrimination -- either during interrogation or trial -- is protected by the Fifth Amendment to the U.S. Constitution and is recognized as a basic human right by the International Covenant on Civil and Political Rights.82 The importance of this right cannot be overemphasized, as a confession almost invariably results in a conviction, even without corroborating evidence. To protect the right against self-incrimination, confessions made during police interrogations cannot be admitted into evidence at trial unless the police have given a "Miranda warning," informing the suspects of the right to remain silent, to have an attorney present and that anything said could be used against them. 83 A suspect may waive these rights, but the waiver is invalid unless it is "knowing, intelligent and voluntary."84
People with mental retardation almost invariably waive their "Miranda" rights and confess to the police without the presence of counsel. Their waivers are necessarily suspect given the characteristics of their disability.
People with mental retardation will ordinarily lack the intellectual capacity to make an informed decision regarding whether to confess without the presence of counsel. Mental retardation often means the defendant cannot understand the seriousness of the situation, cannot identify and assess the ramifications of a confession, and lacks the ability even to understand that he has an option of whether or not to confess. Indeed, a person with even mild retardation may not comprehend the vocabulary used in the standard Miranda warning or the abstract concepts that it embodies. 85 Miranda warnings are written at a seventh-grade level of difficulty; many people with mental retardation in the criminal justice system function at a lower intellectual level and are unable to understand the language and meanings of the warning.86 As James Ellis and Ruth Luckasson, leading experts on mental retardation and the criminal justice system, have noted:
A careful inquiry is needed to determine whether a person with mental retardation does, in fact, comprehend the nature and significance of a waiver of rights. Yet, the police and the courts frequently limit themselves to seeking yes-or-no answers to questions that are themselves abstract -- e.g. asking whether the suspect understands his rights and is willing to waive them.
If the nature and meaning of the Miranda warning are carefully, simply, and clearly explained, some people with retardation may be able to understand it. In practice, however, it is rare for police to do anything other than recite the standard warning. One state court suggested the following general rule: "When expert testimony indicates that a defendant could have intelligently understood the waiver of his constitutional rights only if they were simply and clearly explained, the record must expressly and specifically establish that such an explanation was given."89
The "voluntariness" of confessions by persons with mental retardation is also suspect. Such persons are susceptible to non-physical forms of coercion, pressure and intimidation by the police that people with normal intelligence can more readily withstand.90 They are less able to handle the stress and fear of a police interrogation, particularly if the questioning is prolonged. They are also less likely to resist the efforts of an apparently "friendly" police questioner. Their characteristic desire to please figures of authority can lead them to do whatever they think necessary to gain approval. It can be almost impossible for them to make a decision to remain silent in the face of police efforts to get them to talk.91
The Task Force on Law of the President's Panel on Mental Retardation warned decades ago, in 1963:
Traditionally, in assessing the voluntariness of a confession, the U.S. courts have considered the totality of the circumstances, including both objective factors -- the conduct of police during an interrogation -- and subjective factors, such as the intellectual and emotional characteristics of the suspect. The presence of mental retardation is clearly relevant to the voluntariness inquiry. However, in 1986, in Colorado v. Connelly, 93 the U.S. Supreme Court issued a ruling that has been widely interpreted to require proof of official coercion, objectively defined, as a prerequisite to a determination that a waiver of rights and a confession were involuntary. As a result, most federal courts refuse to find a confession invalid simply because a defendant was affected by internal pressures or compulsions which were not a product of objective coercion, or because the defendant was unusually susceptible to psychological pressure.94 Such an approach effectively discounts the special needs of defendants with mental retardation and fails to provide adequate protection to suspects who, even absent police misconduct, are easily led into making incriminating statements.
The rights of persons with mental retardation would be best protected if no waiver could be provided or confession given absent the presence of a lawyer for the suspect. Indeed, the explanation of the Miranda warning should be provided by the lawyer so that the suspect with mental retardation is not implicitly induced by an apparently concerned and friendly officer into waiving his or her rights. U.S. courts, however, have not insisted on such a requirement.
Innocent people with mental retardation all too often confess to capital crimes they did not commit, simply because they want to give the "right" answer to a police officer, or because they believe that if the police say they did something, they must have done it, even if they do not remember.95 In a legal system that gives enormous weight to confessions, even when they are uncorroborated by other evidence, the vulnerability, suggestibility, and eagerness to please of mentally retarded people can place their lives at risk.96
Police in the United States are able to use virtually any method short of physical force to obtain a confession from a criminal suspect. They can lie, for instance, falsely claiming that they possess evidence they lack; they can shout angrily and make threats; they can wear a suspect down through bullying and prolonged interrogations. Such tactics can be difficult to withstand, even for people with normal intelligence who are innocent.97 Numerous suspects with mental retardation, some of whose cases are included in Section VIII of this report, have confessed falsely to capital crimes that were in fact committed by others.
Detective 2: Yeah.
Detective 1: Okay, now tell us how it went, David-tell us how you did it.
Vasquez: She told me to grab the knife, and, and, stab her, that's all.
Detective 2: (voice raised) David, no, David.
Vasquez: If it did happen, and I did it, and my fingerprints were on it....
Detective 2: (slamming his hand on the table and yelling) You hung her!
Detective 2: You hung her!
Vasquez: Okay, so I hung her....98
After confessing, David Vasquez was charged with capital murder in February, 1984. He pled guilty to second-degree murder to avoid the death penalty and received a sentence of thirty-five years for murder and burglary. He was pardoned in 1989 when the true murderer was finally discovered.99
Not only can the police be fooled by a false confession from a retarded defendant, but the defendant himself can be fooled. When police deliberately or unconsciously supply crucial details to a suspect with mental retardation, causing him to "confess," he may come to believe his own false confession-especially after repeating it several times to authority figures who validate its truth. Scharlette Holdman, a mitigation specialist who works for criminal defendants with mental retardation, noted: "After a confession, the person with mental retardation's memory is contaminated by the police, so you never get at the reality of what events transpired."100
It is well documented that many capital defendants receive inadequate counsel, often because courts appoint attorneys for the indigent who are too inexperienced, overworked, or uninterested to do an effective job.101 As a result, numerous death penalty cases are marred by serious errors: a recent comprehensive examination of thousands of death penalty cases during the past three decades, undertaken by Columbia University professors at the request of the chair of the Senate Judiciary Committee, found that appeals courts identified prejudicial, reversible errors in sixty-eight percent of all capital cases they reviewed. 102 Aside from deliberate police or prosecutorial misconduct (e.g., withholding exculpatory evidence), the most common cause of serious error in capital cases is "egregiously incompetent" defense lawyers.103 Similarly, the Dallas Morning News reported that of 461 death row inmates in Texas, fully one quarter had been represented by attorneys who had been reprimanded, placed on probation, suspended, or disbarred by the Texas Bar Association.104
Effective assistance by trial counsel includes a thorough and diligent investigation into all matters relevant to the determination of guilt or innocence as well as to sentencing, e.g., into mitigating factors. Inadequate investigations for either phase can doom a client. So can a failure to act as a committed, conscientious advocate for the defendant's life when arguing his case to the jury. All too often, however, mentally retarded defendants are represented by trial attorneys who provide inadequate, even abysmal, representation.
· Robert Sawyer, executed in Louisiana in 1993, was also represented by defense counsel who did nothing to prepare for the penalty phase of Sawyer's trial. For example, he made no effort to uncover - and hence never presented to the jury -- readily available evidence that Sawyer was mentally retarded, had been adjudicated incompetent on two prior occasions, had severe organic brain damage, had been a patient in four mental health facilities, had been left motherless as an infant by his mother's suicide, and as a child suffered beatings by a father described as sadistic by other members of the family.107
· Robert Anthony Carter's lawyer made a closing statement at his trial that was largely unintelligible, unfocused, and contained remarkably prejudicial comments. He asked the jury to give Carter the consideration of life "even though he doesn't deserve a great deal of consideration." He also told the jury that they could go either way in this case (i.e. grant life or the death penalty) "and your consciences would be clear." Although this lawyer acknowledged after the trial that Carter's childlike behavior possibly suggested some form of mental impairment, he had not attempted to obtain medical records for Carter or investigate his family history, nor did he request funds from the court for a psychological examination of Carter. Carter was, in fact, mentally retarded and seriously brain-damaged and had a childhood history of brutal physical abuse.108
Sadly, these cases are not unique.109 The U.S. Supreme Court has ruled that every defendant has the right to receive "reasonably effective" counsel and is entitled to a new trial or sentencing procedure if the counsel's poor performance prejudiced his or her defense.110 But, in practice, many cases of ineffective assistance of counsel go unremedied.111 Courts, unfortunately, are reluctant to overturn sentences on the basis of poor lawyer performance. It is troubling enough that capital defendants can pay with their life for their counsel's failings; it is particularly intolerable that defendants with mental retardation who have no ability to evaluate their counsel's performance can pay the same price.
The special vulnerabilities of people with mental retardation make it critically important for them to have experienced, committed counsel. But these same vulnerabilities can make it harder for even the best of counsel to function effectively. Offenders with mental retardation often cannot assist their lawyers in preparing their defense as a defendant with normal intelligence could do. For example, people with mental retardation typically find it difficult to recall information that might help an attorney -- in part because of problems with memory, in part because they are not able to conceptualize what information might be helpful. The trial lawyer for Johnny Paul Penry, for example, told Human Rights Watch that Penry was unable to answer open-ended questions about his activities on the day of the murder for which he was ultimately convicted. If asked leading questions, Penry would provide inconsistent yes or no responses depending on how the questions were formulated and what Penry apparently believed his attorney wanted him to say.112
79 Human Rights Watch telephone interview with Ruth Luckasson, January 29, 2001. Luckasson provided another example of Sawyer's limited comprehension of basic concepts. When asked to define "grave uncertainty" Sawyer explained that it meant "you dig a grave."
80 See Colorado v. Connelly, 479 U.S. 157 (1986); Edwards v. Arizona, 451 U.S. 477 (1981).
81 Human Rights Watch interview with Clive Stafford-Smith, Executive Director, Louisiana Crisis Assistance Center, New Orleans, La., May 19, 1999. Robert Perske, who has written extensively on the fate of mentally retarded offenders in the criminal justice system, notes that some mentally retarded people may think that waiving one's rights means waving at the "right" rather than at the "wrong," or has something to do with ocean waves. Human Rights Watch interview with Robert Perske, Darien, Conn., July 11, 1999.
82 Article 14.3(g), International Covenant on Civil and Political Rights.
83 The Supreme Court established the constitutional requirement of the warning in Miranda v. Arizona, 384 U.S. 436 (1966), and recently affirmed the obligation of the police to expressly provide it in Dickerson v. U.S., 530 U.S. 428 (2000). These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda v. Arizona, 384 U.S. at 479.
84 Miranda v. Arizona, 384 U.S. at 444.
85 In a recent study, researchers tested groups of individuals with and without mental retardation on their comprehension of Miranda rights. They found that individuals with mental retardation had significant problems understanding the Miranda warning; that considerably more persons with mental retardation than without did not meet minimum criteria for competence; and that considerably more persons with mental retardation did not understand any of the substantive portions of the warning. Caroline Everington and Solomon Fulero, "Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation," 37 Mental Retardation 212 (June, 1999).
86 See, Solomon Fulero and Caroline Everington, "Assessing Competency to Waive Miranda Rights in Defendants with Mental Retardation," 19 Law and Human Behavior 533 (1995); George S. Baroff, Mental Retardation: Nature, Cause and Management (Hemisphere Publishing Corporation, 1986).
87 Ellis and Luckasson, "Mentally Retarded Criminal Defendants," p. 448 (citations omitted).
88 Part of the transcript of Washington's questioning about his Miranda waiver is reproduced in Paul T. Hourihan, "Earl Washington's Confession, Mental Retardation and the Law of Confessions," 81 Virginia Law Review 1471, 1482 (1995) (citations omitted).
89 Hines v. State, 384 So. 2d 1171, 1181 (Ala. Crim. App. 1980).
90 The American Bar Association's Criminal Justice Standards recognize the impact of mental retardation on the voluntariness of confessions. "Official conduct that does not constitute permissible coercion when employed with non-disabled persons may impair the voluntariness of statements of persons who are mentally ill or mentally retarded." Standard 7-5.8, passed by the ABA House of Delegates on August 10, 1988.
91 See Carol Sigelman et al., "When in Doubt, Say Yes: Acquiescence in Interviews with Mentally Retarded Persons," Mental Retardation (April 1981), reporting on the tendency of mentally retarded individuals to respond "yes" to questions regardless of their content.
92 President's Panel on Mental Retardation: Report of the Task Force on Law, 33 (1963), quoted in Ellis and Luckasson, "Mentally Retarded Criminal Defendants," pp. 414, 451.
93 Colorado v. Connelly, 479 U.S. 157 (1986).
94 Hourihan, "Earl Washington's Confession," p. 1482 .
95 A survey of clients in the New Jersey Developmentally Disabled Defenders program found that 63% believed that being arrested meant one must be guilty. Suzanne Lustig, "The Hidden Population in the Criminal Justice System: Providing Successful Advocacy Services to Defendants with Mental Retardation," submitted to The President's Committee on Mental Retardation August 7. 1998, p.15, (on file with Human Rights Watch). Ms. Lustig is the Director of the Developmentally Disabled Defenders Program, sponsored by The Arc of New Jersey. As Robert Persketold Human Rights Watch, "people with mental retardation just don't trust their own thinking." Human Rights Watch interview with Robert Perske, Darien, Conn., July 11, 1999.
96 See generally Note, "Constitutional Protection of Confessions Made by Mentally Retarded Defendants," 14 American Journal of Law and Medicine, 431 (1989); Hourihan, "Earl Washington's Confession."
97 See generally Peter Brooks, Troubling Confessions (University of Chicago Press, 2000); Donald Connery, ed., Convicting the Innocent (Cambridge: Brookline Books, 1996).
98 Dana Priest, "At Each Step, Justice Faltered for Virginia Man," Washington Post, July 16, 1989.
100 Human Rights Watch interview with Scharlette Holdman.
101 See, e.g., Stephen B. Bright, "Counsel for the Poor: The Death Penalty Not for the Worst Crime but for the Worst Lawyer," 103 Yale Law Journal 1835 (1994).
102 In cases involving prejudicial error, more than 80 percent of the capital defendants were found by juries or judges to merit sentences less severe than death once the error had been cured, and a full 7 percent of capital defendants in cases involving prejudicial error were later found to be completely innocent. See generally Liebman, et al.,"A Broken System."
104 See Dallas Morning News, September 10, 2000.
105 Reed, Penry Penalty, p. 115; Jones v. State, 381 So. 2d 983 (Miss. 1980); Jones v. Thigpen, 788 F. 2d 1101 (5th Cir., 1986).
106 Jones v. Thigpen, 788 F. 2d 1101 (5th Cir., 1986).
107 Petition for Writ of Habeas Corpus, In Re Robert Wayne Sawyer, Oct. 8, 1990. The U.S. Supreme Court affirmed the lower federal courts' denial of Sawyer's habeas petition in Sawyer v. Whitley, 505 U.S. 333 (1992).
108 Brief of Petitioner-Appellant and Reply Brief of Petitioner-Appellant, Robert Anthony Carter v. Johnson, (1996) (on file at Human Rights Watch).
109 See generally Alisia St. Florian, "Fifth Amendment, Miranda Waiver And Fourteenth Amendment Voluntariness Doctrine In Cases Of Mentally Retarded And Mentally Ill Criminal Defendants," 4 Suffolk J. Trial & App. Adv. 271 (1999) and Kevin P. Weis, "Confessions Of Mentally Retarded Juveniles and The Validity Of Miranda Rights Waiver," 37 Brandeis Law Journal. 117 (1998). See also People v. Perez, 592 N.E. 2d 984 (Ill. 1992).
110 "First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose [sic] result is reliable." Strickland v. Washington, 466 US 668, 686, (1984). To prove prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid., at p. 694.
111 See Annotation: "Propriety of Imposing Capital Punishment on Mentally Retarded Individuals," 20 A .L.R 5th 177 (citing cases in which counsel failed to present mitigating evidence of retardation). Regarding ineffective assistance of counsel for capital defendants generally, see Bright, "Counsel for the Poor."
112 Human Rights Watch telephone interview with John Wright, October 11,2000.