Is Texas’ Death Penalty Machine Executing the Mentally Disabled?

In the final hours before his execution in Huntsville Tuesday night, 54-year-old Marvin Wilson told his attorney that, comforted by his god and family, he had reconciled himself to what was about to happen. Now we are left to wonder how Texas was able to kill a man with an I.Q. of 61 who reportedly sucked his thumb into adulthood. This was supposed to be a case about science, but the courts failed to apply it.

Wilson was convicted of a heinous murder. While out on bond for a drug charge in 1992, Wilson and an accomplice encountered a snitch named Jerry Williams, who had given police the tip that led to Wilson’s arrest. A witness said she saw the two men push Williams into a car, and the next day Williams was found dead on the side of the road, shot in the head and neck. There was no witness to the actual murder, and no physical evidence links Wilson to the crime. The accomplice was sentenced to life in prison, and Wilson, who a witness testified confessed to shooting Williams, received a death sentence.

Lawyers say this is a classic scenario in multi-party cases that involve a developmentally challenged defendant, and it calls to mind the logic the U.S. Supreme Court used in its 2002 Atkins v. Virginia decision meant to bar states from executing prisoners with mental retardation: The justices argued that in addition to being less culpable for their crimes, they are not equipped to mount an effective defense in court.

Enter Lee Kovarsky, a senior consulting attorney with the Texas Defender Service. He spent the past six years gathering evidence that Wilson might be ineligible for his death sentence: He had scored 61 on a Wechsler I.Q. test, which measures intelligence, demonstrating he fell well below the cut-off point of 70 for mental retardation. (Prosecutors argued that the test didn’t properly measure Wilson’s intelligence because he gamed the test to get a lower score.)Wilson repeatedly failed his special education classes in middle school, and struggled with everyday skills like counting money or tying his shoes. His cousin says kids “would always call Martin dummy.”

Presented with this evidence, Texas courts relied on their unique brand of reasoning stemming from the 2004 case of Texas death row prisoner Jose Briseño, who claimed he was mentally retarded and shouldn’t be executed for murdering a Dimmit County sheriff. Lacking legislative guidance, the Texas Court of Criminal Appeals wrote its own “temporary judicial guidelines” that remain in place today. Finding the clinical definitions of mental retardation “exceedingly subjective,” the CCA added its own set of additional factors to consider, including: “Did the commission of that offense require forethought, planning and complex execution of purpose?” If the court answered yes, a prisoner would be eligible for execution even if test scores showed he was intellectually disabled.

The CCA also cited the childlike character in John Steinbeck’s novel “Of Mice and Men,” saying most Texans would agree that “Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution.” Texas courts applied this same reasoning in Wilson’s case, and his death sentence was upheld by every state and federal court after that. Steinbeck’s son was compelled to issue a statement Tuesday condemning the use of his father’s work to identify whether a defendant with intellectual disability should live or die. “My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition,” Thomas Steinbeck wrote. “His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability.”

Wilson’s execution is an example of what has happened—and could continue to happen—to mentally disabled death row inmates in the Texas justice system —unless state lawmakers finally pass legislation instructing the court to use a science-based definition of mental retardation. State Sen. Rodney Ellis, a Houston Democrat, has vowed to re-introduce a measure that would ensure Texas implements the medically accepted criteria set out by the American Association on Intellectual and Developmental Disabilities to make sure that the “ultimate penalty should be reserved for those that can clearly comprehend why they are going to die.”

Ellis floated a similar proposal in 2010, the last time the Observer reported on Texas’ attempts to execute a mentally retarded prisoner, Daniel Plata. Plata’s life was spared when state District Judge Mark Kent Ellis took issue with methods used by psychologist George Denkowski, whose opinion state prosecutors relied on to argue Plata was eligible for execution, noting that “it is not generally accepted practice within the field of psychological assessment to obtain an IQ score, declare it invalid, and then estimate an IQ score with numbers,” as Denkowski had done. Plata is now serving a life sentence in a unit designed for mentally challenged offenders.

In the meantime, as Texas courts rely on stereotypes and unscientific evidence to determine if the roughly dozen men on death row with mental retardation claims should live or die, some prosecutors in new capital punishment cases are working to determine the defendant’s intellectual capacity before they go to trial. This is a key development because, as the Wilson case shows, once an intellectually disabled person is convicted and sentenced to death, neither state judges, or the U.S. Supreme Court, are eager to reverse the mistake.

Renee Feltz, a former news director at KPFT-FM in Houston, is a producer at Democracy NOW!. Her 2010 exposé about offenders with mental retardation on Texas death row was a finalist in the national Investigative Reporters and Editors awards.