death penalty news June 16, 2004
OKLAHOMA: Nichols merits life sentence, not death Jury right to spare Lapeer native Terry Nichols will not be executed for his role in the Oklahoma City bombing. A jury last week could not agree on the death penalty. It took almost 20 hours of deliberation over three days for the Oklahoma jury to announce it could not reach a verdict. The hung jury automatically means Nichols, a native of Lapeer County, will spend the rest of his life in prison. Few crimes in the history of America are as heinous and cowardly as the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The worst act of domestic terrorism in the nation's history, the mass murder took 161 lives. Few crimes make a stronger case for the death penalty, yet it was good Nichols' life has been spared. Most of advanced nations have abolished the death penalty. The United States ,unfortunately, remains a world leader in execution. Only China and Iran share that distinction with us. There are those who believe justice only can be served if Nichols is executed. This viewpoint, especially from some of the victims' survivors, is understandable. Life in prison, however, is far more just. Nichols' conversion to Christianity is credited by many as the reason at least four jurors were unable to support capital punishment. Both defense and prosecution attorneys believe Nichols' religious beliefs influenced the jury. If that truly is the reason the jury effectively spared his life, then the message should be clear. Christianity believes God will judge the failings of man. There is no reason to believe Nichols won't answer for his role in the bombing. The jury has left his life up to God -- as it should be. The reason for Nichols' second trial is obvious. Tried in federal court in 1998, he was convicted for the deaths of eight federal law enforcement officers and sentenced to life in prison. His state trial held the promise of winning a death penalty. History will remember Nichols as the co-conspirator of Timothy McVeigh. He will live his life behind bars and he will think about his role in the deaths of 161 people. That sentence seems more just than the death penalty. (source: Opinion, Port Huron Times-Herald) ========================= CALIFORNIA: 'Retarded' label now ticket off death row -- UPCOMING BATTLE: WHO QUALIFIES? When a San Mateo County jury decided 16 years ago that Jose Arnaldo Rodrigues deserved the death penalty, nobody at his trial had mentioned his low IQ, his poor grades in special-education classes or his inability to take care of ordinary tasks, such as keeping his hair washed and his teeth brushed or cooking a meal for himself. But now that he is on death row for robbing and killing a Menlo Park man, Rodrigues is pinning his hopes for avoiding execution on the argument that he is mentally retarded and thus exempt from the death penalty. Two years after the U.S. Supreme Court banned the execution of the mentally retarded, states across the nation are struggling with how to apply the ruling to condemned inmates such as Rodrigues. And no state is struggling more than California, where dozens of condemned killers have invoked the ruling in special legal claims asserting they were mentally retarded when they committed the crimes that put them on death row. A Mercury News review of the more than 30 California claims of mental retardation -- which could double as more inmates on the country's largest death row file appeals -- shows that the courts may spend years figuring out where to draw a line between who can be executed and who can't. Setting a standard From old report cards to IQ tests, inmates are trying everything to establish the elusive legal definition of mental retardation, much to the dismay of prosecutors who say they are mostly malingerers just using every avenue to avoid the death penalty. The California Supreme Court recently identified a Los Angeles case in which it is expected to set the standards here for this murky area of capital punishment, and the U.S. Supreme Court may offer further clarification in a Texas case it is expected to rule upon by the end of this month. "I'd be surprised if the courts in California came down with any bright line rule,'' said San Francisco defense lawyer Michael Burt, a leading death penalty expert. The 46-year-old Rodrigues, for example, has offered enough proof to be one of only two death row inmates the California attorney general has so far agreed should be considered as possibly mentally retarded. Among other things, his IQ ranged between 70 and 76 in childhood, hovering around the generally accepted measure of 70 as mentally retarded. Yet the Mercury News found the evidence in Rodrigues' case is not dramatically different from many others whose claims have been dismissed as frivolous by prosecutors. Prosecutors have a simple answer to how they've responded to the retardation claims. "It's completely fraudulent in a lot of the cases,'' said Assistant Attorney General Dane Gillette, who supervises death penalty appeals for the state. The U.S. Supreme Court laid the groundwork for this latest conflict over the fairness of the death penalty with its June 2002 decision. The ruling left it to the states to define mental retardation for the purpose of applying the death penalty, generating a flurry of legislation and court battles. Although defense attorneys are trying to expand its reach, the ruling did not cover inmates with mental illnesses that can sometimes flourish on death row. It focused on mental retardation, a condition traced to childhood. Some states are well ahead of California. Convicted killers in North Carolina, Nevada, Texas and elsewhere have been removed from death rows after state officials or courts agreed they qualified for mercy under the Supreme Court's decision. Like most death penalty states, California, after a fierce political fight, enacted legislation that went into effect in January to define how to apply the high court decision to both new trials and old cases. The legislation doesn't include the 70 IQ benchmark, though some other states have included the measure as one of the criteria to demonstrate mental retardation. Instead, California's law relies on various factors set out by mental retardation experts, including poor adaptive functioning in society and mental impairment that shows up before the age of 18. But IQ still comes into play and is cited in many of the cases filed in the state Supreme Court. IQ of 59 None of the California death row inmates seeking relief has an IQ as low as that of Darryl Atkins, the Virginia killer who won the case in the U.S. Supreme Court with an IQ of 59. But most have been tested in the 70s or lower at some point in their lives. For lawyers fighting over the issue, the question becomes: Is close good enough to be spared? "I know the general public would like to say, `OK, there's a number,' '' said Harry Simon, a Los Angeles federal public defender. "That's not even close to realistic.'' The test case chosen by the California Supreme Court involves death row inmate Andrew Hawthorne, sentenced for the 1982 shootings of two Los Angeles gang rivals. Court papers say Hawthorne was slow in school, functionally illiterate and had IQ tests ranging from the mid-70s to 86. But state lawyers say it would stretch the U.S. Supreme Court's reasoning to give a break to an inmate like Hawthorne. They contend his case would provide "an escape hatch from execution to those who are merely F students in school.'' Prosecutors argue that Hawthorne is one of many inmates abusing the mental retardation issue. Among others, they cite the case of Kevin Cooper, a condemned San Bernardino County killer of four who was hours away from execution this year when a federal appeals court intervened for reasons unrelated to retardation. In separate proceedings last year, Cooper, with little evidence, unsuccessfully tried to argue he is mentally retarded. Another case is David "Mookie'' Welch, a notorious Oakland mass murderer and gang leader. Welch, with one IQ test of 78, has raised the mental retardation issue in the state Supreme Court, infuriating veteran Alameda County prosecutor Jim Anderson. "What he's trying to do is just a scam,'' Anderson said. "He might have a few screws loose. But that doesn't mean he's retarded.'' But while cases like Welch's may draw skepticism, many others now on the Supreme Court's plate illustrate the subjective nature of the mental retardation claims. In addition to Rodrigues of San Mateo, the Attorney General's Office has agreed in one other case that there may be enough evidence of retardation to warrant taking an inmate off death row -- Marcelino Ramos, the killer of a 20-year-old Santa Ana woman in a 1979 Taco Bell robbery. Ramos, court papers say, had D's and F's throughout school, psychiatric evaluations showing a "retarded level of intelligence'' and IQ scores ranging from the low 60s to 75. Ramos, who is now 44, and Rodrigues deserve a hearing to further evaluate their cases, the state concedes. Equally compelling But the Mercury News review of the petitions filed in the state Supreme Court shows other death row inmates with equally compelling evidence whose claims are being contested by the state. They include: ? Kern County killer John Lee Holt, whose IQ tested in the low to mid-70s and who was treated at mental health centers as early as 9 years old. ? Clarence Ray Jr., another Kern County murderer who failed throughout school and had IQ tests ranging from 70 to 75. ? Jack Gus Farnum, a Los Angeles murderer who grew up in homeless shelters and had IQ tests as low as 67. ? David Fierro, a Riverside killer with IQ tests in the mid-60s to low 70s who was put in mentally retarded classes in school. In those cases, the state denies the defendants should even be evaluated further for mental retardation. For example, state lawyers said Holt "isn't a Rhodes Scholar, but he is not retarded, either.'' Gillette, the state's top death penalty lawyer, insists there would be no reluctance to remove a mentally retarded inmate from death row, but there has to be compelling proof. These responses lead defense lawyers to say California is going to be more stubborn than other states that have volunteered to abandon the death penalty in some cases. The result, experts say, will be repeated conflicts over whether old school records, IQ scores, family memories and mental health evaluations can be parlayed into death row reprieves. The California Supreme Court, and most likely the federal courts later, will be forced to settle the life-or-death question in each case. "Everybody has a stake, not in resolution of these cases but in the particulars of the death penalty,'' said James Ellis, a University of New Mexico law professor who represented Atkins in the Supreme Court. "I wouldn't be surprised if these cases were more contentious.'' (source: Mercury News, San Jose)
