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Virginia opinion at supct/htm1/00-8452. ZO.html "I suppose you could imagine that Texas Death Row inmates are smarter than everyone else, but I'd be surprised," READ JUDGE MARK KENT ELLIS'S rejection of Denkowski's methods at www.texasobserver. org/uploads/files/ KentOrder.pdf Within 30 hours, police had Daniel in custody. He confessed to Mahbubani's murder soon afterward. During his trial in 1996, prosecutors repeatedly played the videotape showing Daniel ruthlessly killing Mahbubani. The guilty verdict was a foregone conclusion. During the penalty phase of the trial, Daniel's mother and stepfather testified that he was a good son, and his attorney argued that he was "passive, docile. For one minute and a half, he just lost it." In the prosecutor's closing statement, he urged a death sentence: "This was a shocking crime, and it deserves a shocking punishment." The jury agreed. Daniel Plata was sentenced to die by lethal injection. Within four years, Plata's appeal had wound its way through the courts and ended in failure. His mother sought help from several lawyers in Mexico; her inability to speak English made it hard for her to find legal assistance in the United States. "I would sleep and wake up with the same thought about each day passing ... that he was one day closer to death," she says. Two more years passed before officials from the Mexican Consulate in Houston called her and said a lawyer wanted to ask about Daniel's history of being slow. The lawyer thought it might save his life. IN 2002, SIX YEARS AFTER Daniel Plata landed on Death Row, the U.S. Supreme Court ruled in a case called Atkins v. Virginia that "executions of mentally retarded criminals are cruel and unusual." Even though mentally disabled people can understand the difference between right and wrong, the court reasoned that they are less able to control impulsive behavior or learn from mistakes. The court supported its decision by pointing to bans on executing the mentally retarded in 17 states and in federal cases as "evolving standards of decency." Like most of the states that had already passed bans, the justices used a clinical definition to establish the level of mental retardation that would exempt Daryl Atkins, the Virginia defendant, from death: belowaverage intellectual abilities defined by an IQ score of 70 or below and "deficits in adaptive behavior" such as practical and social skills. Both of these limitations, the court ruled, had to be present before the age of 18. But the court left it up to the states to choose their own definitions of mental retardation. Since 2002, eight more states have passed laws that use the clinical definition cited in Atkins. Texas is not one of them. With bipartisan support, the Texas Legislature passed a law in 2001 mandating a life sentence for mentally retarded people convicted of capital crimes. But Gov. Rick Perry vetoed the measure, agreeing with critics that it was a "backdoor attempt to ban the death penalty." Bans on executing the mentally retarded have been floated in every legislative session since but have never again come up for a vote. In 2004, a Texas death row inmate named Jose Briserio contended that he was mentally retarded and shouldn't be executed for murdering a Dimmit County sheriff. In the absence of legislative guide F lines, the Texas Court of Criminal Appeals wrote "temporary judicial guidelines" that have guided Texas courts ever since. In its Brisefio decision, the court called clinical definitions of mental retarda tion, like those used by the U.S. Supreme Court, "exceedingly subjective." Texas added its own set of additional criteria in the form of seven questions, including: "Did the commission of that offense require forethought, planning and complex execution of purpose?" If a defendant didn't address these questions to the court's satisfaction, he could be eligible for execution even if his test scores showed he was mentally disabled. Most of Texas' questions emphasize the events of a crime in deciding whether a defendant meets a legal definition of mental retardation. "I think much of that emphasis is inappropriate because it embodies the stereotype of mentally retarded people as unable to do anything," says Sheri Lynn Johnson, a professor at Cornell Law School and co-director of its Death Penalty Project. In Texas, under the Brisefio standard, if you're capable of committing a murder, it's difficult to establish that you're also mentally retarded. In other states, evidence of mental retardation is heard in pretrial hearings that decide whether a person is even eligible for a death sentence. In Texas, prosecutors have fought successfully to hold off evidence of mental retardation to the penalty phase of a trial, meaning that jurors consider it only after they have convicted a defendant of murder. Keith Hampton, legislative director of the Texas Criminal Defense Lawyers Association, says "the gamesmanship is this: I can make you hate this guy so much that you won't care if he's mentally retarded." Since 2002, Texas has removed just 13 men from Death Row after they were found to have the mental and emotional development of 12-year-olds. In contrast to a 40 percent success rate for Atkins appeals nationally, just 28 percent have been successful in Texas. "I suppose you could imagine that Texas Death Row inmates are smarter than everyone else," says Johnson, "but I'd be surprised." DURING DANIEL PLATA'S original trial, prosecutors had portrayed him as a sophisticated criminal who'd tried to hide his identity and erase his fingerprints after murdering Murlidhar Mahbubani. But attorney Kathryn Kase figured that Plata's accomplices, who made no such attempts, had realized the store's security camera had captured their faces and didn't bother. If anything, she thought the crime showed how Plata was prone to act impulsively, as mentally retarded people are known to do. And when she interviewed Floresbinda Plata, she learned that there was a family history of retardation: Daniel's younger brother, Jesus, and his Aunt Celianel had both been diagnosed as mentally retarded. His cousin, Rosalba, had Down syndrome. To prove that Daniel Plata should be exempt from the death penalty, Kase had to start by showing that he had an IQ of 70 or below. She hired Antonin Llorente, a neuropsychologist who had designed intelligence tests and was a native Spanish speaker important because it would allow him to test Plata in the language he understood best. In May 2003, Llorente spent about five hours with Plata in a small visiting room at the Polunsky Unit in Livingston, where men on Death Row are housed. He began by asking Plata if he felt he was mentally retarded. Plata vehemently denied it. When Llorente asked him to draw his family, the 28-year-old man "drew stick figures," which Llorente noted in his report were "appropriate for children, not mature adults." Then he measured Plata's intellectual ability 8i THE TEXAS OBSERVER WWW.TEXASOBSERVER.ORG