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Frontiers of Justice Retarded Convict Meets Modern-Day ‘Hanging Judge’ BY DAVID DOW Houston WALTER BELL is a 34-year-old man with a six-year-old’s mind. His IQ is somewhere around 60. Some say it is in the 50s; others say it is close to 70. But no one disputes that he is retarded. Bell is also on Death Row. The State of Texas recently tried to execute him even though the Supreme Court of the United States has decided to , rule on whether it is constitutional to execute the retarded. The Supreme Court eventually prevented Bell’s execution, but only after a federal court of appeals had ruled that the state could proceed. It is that judgment that is disturbing.. Johnny Paul Penry is a more well-known Death Row inmate who is also retarded. His case is the one the Supreme Court has already agreed to hear, and Penry’s argustatute, in violation of the federal Constitution, does not permit the jury to consider evidence of mental retardation as “mitigating evidence” in determining the punishment for a convicted murderer, and and therefore prohibited by the Eighth Amendment to execute those who are mentally retarded. The Supreme Court agreed on June 30, 1988, to hear Penry’s case. The date is important. Argument will occur sometime during the summer of 1989. Although dates are important to this story, it is also important to pause for a moment to consider the way the system works. Hundreds of prisoners are on Death Row in Texas, Louisiana, and Mississippi, the three states that comprise the Fifth Circuit. \(The federal court system in the United States is divided into eleven appellate circuits plus the District of Columbia. These courts are the intermediate level between the district courts, where trials go on, and have a constitutional right to be represented, free of charge \(if they cannot afford upon the direct appeal of that conviction. Then their constitutional guarantee is used up. If they want to attack the effectiveness David Dow is an assistant professor of law at the University of Houston Law School. of their trial or appellate counsel \(which is not, in many cases, a preposterous claim given that their trial and appellate counsel may well have been court-appointed and therefore more interested in trying the case want to raise collateral federal claims in person needs a volunteer lawyer. Few Death Row inmates have the resources to retain private attorneys, meaning that virtually all of them depend upon volunteer lawyers when it comes to’ later stages of litigation. Many Death Row inmates have committed hideous crimes, and that sometimes makes it difficult for lawyers to be enthusiastic about representing them, yet representing them representing them effectively is critically important, not just because the Constitution guarantees the right to counsel, but because we as society are preparing to inflict a severe and irrevocable punishment. Most Western nations have abandoned capital punishment as barbaric; if we retain it, we must at least ensure that the system is fair. That is why even the President of the State Bar of Texas, not known as a particularly liberal organization, has stressed the importance of Death Row inmates having adequate representation. And he has encouraged Texas lawyers to volunteer to represent them. Not enough have answered the call, however, and there is a shortage. What this means is that those who have assumed the responsibility of overseeing the process, those who try to find lawyers for the inmates, are fighting against the state with one arm tied behind their backs. Their task is to persuade lawyers to work for no pay on cases that usually lack popular appeal. One consequence of this dilemma is that energies tend to be concentrated on aiding inmates only after their date of execution has been set. This makes perfect economic sense: in a world of scarce resources, one satisfies immediate demands first, postponing the less important until later. As a practical matter, it is not efficient in this system to devote scarce resources to something before those resources are needed, and they are not truly needed until an execution date. is set until, that is, the threat to the client is imminent. Sometimes, it is true, a lawyer is at fault for doing nothing until the llth hour; rarely, though, is the inmate to blame. BACK TO THE STORY: the State of Texas set an execution date for Walter Bell of October 14, 1988. This was the second time his execution had been scheduled. Bell had formerly been scheduled to die on October 14, 1987, but the Texas Court of Criminal Appeals granted Bell a stay of execution on October 12, 1987, the same date the Supreme Court decided to hear the widely publicized Franklin case, which raised issues similar to those Bell was raising in his own petition, namely, whether juries were precluded by Texas law from giving appropriate weight to supposedly mitigating factors. Following the Court’s decision in the Franklin case, which effectively allowed his execution \(he Court of Criminal Appeals, on June 27, 1988, denied Bell relief. Bell’s new execution date of October 14, 1988, was set, and he was represented by a New York lawyer a volunteer who filed a writ of habeas corpus on October 7, 1988. This petition raised. the same’ issues that the Supreme Court had agreed to review in the Penry case. The Fifth Circuit, in a remarkably long opinion written by Judge Edith Jones, denied Bell’s request for relief. That decision was effectively reversed by the Supreme Court, which granted Bell a stay and 90 days in which to file a petition for certiorari, in which Bell will ask the Supreme Court to review his case, specifically, the issue of whether it is constitutional to execute mentally retarded citizens. The Supreme Court’s decision came approximately seven hours before Bell’s scheduled execution. Walter Bell’s friends had already told him good-bye; Bell had ordered his last meal; his mother had spent what she believed would be her last day with her son. The question is why the Fifth Circuit, knowing that the Supreme Court had agreed to decide the Penry case and knowing that Bell had an issue in his case that was similar to Penry’s, nonetheless acted as it did. One answer can be found in the very first sentence of Judge Jones’s opinion: she immediately castigated Bell for commencing his appeal “less than one week before his scheduled execution date.” That swipe ignores the point that, given the scarcity of volunteer lawyers, efforts cannot, as an THE TEXAS OBSERVER 9