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TDS Fights to Stop Execution of Man with Mental Retardation

Over the next two weeks, you will hear about Texas attorneys who are fighting to stop the execution of a Mexican national with mental retardation while also seeking to learn more about the drug that the State of Texas intends to use to kill their client.

The defendant is Ramiro Hernandez, he is represented by a legal team based at Texas Defender Service, and his case is no less troubling than any you might see portrayed on CNN’s Death Row Stories.

Despite overwhelming evidence that Mr. Hernandez meets the clinical definition for mental retardation, the courts rejected that claim. They did so by relying on the testimony of a prosecution psychiatrist who never met Mr. Hernandez, who could not state the definition of mental retardation, and who relied on racial and ethnic stereotypes to conclude that Mr. Hernandez functions normally.

Nothing about Mr. Hernandez’ life has been normal. He was born into abject poverty, living in a house made of cardboard, located next to a dump laced with toxic waste. His family survived by scavenging garbage for food to eat and items to sell. He was four years old when he joined his family in rummaging through trash piles where toxic chemicals periodically exploded and fires burned.

Today, Mr. Hernandez’s scores on appropriate tests show his IQ to be below 70.

Meanwhile, as late as this week Texas was refusing to identify the drug source and protocol that the prison system intends to use to execute Mr. Hernandez. A state district court in Austin ordered the drug source disclosed and, as of this writing, an appellate court has upheld the ruling.

Mr. Hernandez’ execution remains scheduled for April 9. Led by Senior Staff Attorney Naomi Terr and Cornell Law Professor Sheri Johnson, his legal team will continue the fight to stay his execution. They’ll do so by continuing to bring attention to the mounting errors that have infected the legal proceedings against him over the years.

Legal representation is critically important when the condemned is mentally impaired. Your continuing support makes it possible for TDS attorneys, mitigation specialists, paralegals and law interns to engage in the complex work of fighting unfair use of the death penalty – and especially when an execution date looms for a client with mental retardation.

 

JORDAN STEIKER SPECIAL TO THE AMERICAN-STATESMAN

Mentally disabled inmates still routinely put to death in Texas

“We do not execute mentally retarded murderers today.”

Gov. Rick Perry made this Orwellian declaration in 2001 as he vetoed, rather than signed, a Texas bill that would have protected intellectually disabled offenders from the death penalty. Now, more than a decade later, Perry’s declaration is no more true than it was back then: Texas continues to execute offenders with intellectual disabilities. In fact, without a last-minute intervention, Texas will execute just such an offender in a matter of weeks.

The crucial difference? The U.S. Supreme Court ruled in 2002 that our Constitution prohibits executing people with intellectual disabilities.

How has Texas managed to continue a practice that our Constitution condemns? In the absence of a statute, the Texas Court of Criminal Appeals — the highest criminal court in Texas — has used its authority to undermine the constitutional rule. In its landmark precedent, the appeals court expressed doubts about whether the Supreme Court intended to protect all offenders who meet the professional criteria for intellectual disabilities. Instead, the Court of Criminal Appeals has improvised its own approach to deciding which offenders with intellectual disabilities should be spared execution.

In the case of Ramiro Hernandez, scheduled to die April 9, the defense offered compelling evidence of his intellectual disabilities. Hernandez, a Mexican national, had numerous IQ scores below 70, including a 62 on his only full-scale test. Witnesses testified to Hernandez’s extreme deficits in functioning, including his inability to bathe himself, run simple errands, prepare food safely or make change.

Hernandez’s poor academic performance and inability to learn led to his expulsion from school after the third grade. Nonetheless, his claim of intellectual disabilities was rejected by the Texas courts and the 5th Circuit on dubious grounds. The Court of Criminal Appeals relied on the testimony of an “expert” who did not speak Spanish, did not meet Hernandez (or anyone who knew him), and could not state the definition of intellectual disabilities.

Despite Hernandez’s obvious deficits, the expert claimed his behavior was appropriate for his “cultural group.” The 5th Circuit likewise insisted that Hernandez should be judged not by American standards and asserted that the 62 IQ score was in reality a 70 when scaled to Mexican norms.

In other words, Hernandez’s low performance was squarely in the range of intellectual disabilities but not low enough for a Mexican to merit constitutional protection.

Hernandez’s case follows numerous other shady denials of intellectual disabilities claims. Elroy Chester presented uncontested evidence of his low IQ and numerous deficits, as well as evidence of his placement in the prison’s “Mentally Retarded Offenders Program.” Nonetheless, his claim was rejected using the appeals court’s invented criteria, and Chester was subsequently executed.

Juan Lizcano had IQ scores ranging from 48 to 62 and had been removed from school at age 15 because he had not advanced past the sixth grade. He could not read a clock, dress himself appropriately or perform simple jobs. The state relied on the testimony of Lizcano’s ex-girlfriend and a used-car salesman who had sold Lizcano a car, both of whom stated that Lizcano did not seem that impaired to them. Lizcano remains on death row.

The Supreme Court now has the opportunity to address Texas’ marked departure from professional norms in administering the intellectual disabilities exception to the death penalty. Unless it does so, many Americans will wrongly believe Perry’s glib pronouncement that “mentally retarded murderers” are in fact exempt from the death penalty. In Texas, we still kill them.

STEIKER IS THE JUDGE ROBERT M. PARKER CHAIR IN LAW AND DIRECTOR OF THE CAPITAL PUNISHMENT CENTER AT THE UNIVERSITY OF TEXAS SCHOOL OF LAW.

 

Texas Death Penalty Facts

death sentences
In 1999, there were 48 new death sentences in Texas. In 2011, there have only been 8 new death sentences in Texas. (Source: Texas Death Penalty Developments in 2010, The Year in Review, Texas Coalition to Abolish the Death Penalty, December 2010 and Texas Department of Criminal Justice.)2d
texas executions

  • In 2011, Texas executed 13 people. (Source: Texas Department of Criminal Justice)
  • In 2010, Texas executed 17 people accounting for over a third of all executions nationwide. (Source: Death Penalty Information Center & Texas Department of Criminal Justice)
  • In 2009, Texas executed 24 people accounting for almost half of all executions nationwide. (Source: Death Penalty Information Center & Texas Department of Criminal Justice)
  • Texas has accounted for more than1/3 of all modern executions (1976 to the present) in the U.S. with 475 executions as of September 21, 2011. (Source: Death Penalty Information Center)
  • Death Penalty Information Center’s 2011 End of the Year Report
Wrongful Conviction Facts
  • All three branches of Texas government have created entities to review issues in the criminal justice system based on the risk of error, but virtually nothing has been done to reduce the most prevalent causes of wrongful convictions.
  • In 2005, the Texas legislature created and Governor Rick Perry signed legislation creating the Texas Forensic Science Commission.
  • By executive order, Governor Rick Perry created the Criminal Justice Advisory Council.
  • In 2008, the highest criminal court in Texas, the Texas Court of Criminal Appeals, created a Criminal Justice Integrity Unit.
  • In 2009, the legislature created and the governor approved the Timothy Cole Advisory Panel on Wrongful Convictions.
  • These four entities all aimed to improve the quality of evidence introduced in criminal cases in Texas and therefore reduce the instances and risk of wrongful convictions. However, despite the stated intentions of these entities, they have not yet resulted in the passage reform measures that effectively address the well known causes of wrongful convictions.
Exoneration Facts
  • Innocent people can and do get sentenced to death in Texas and across the country
  • Since 1976, 138 people have been exonerated from death row nationwide. Twelve of them were in Texas. (Source: Death Penalty Information Center, p. 6)
  • When innocent people are exonerated, it is often a matter of dumb luck. For example, the real killer confesses or pro bono law firms take an interest in the case. It is rarely because the system catches errors and corrects itself.
  • Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive — and free — because a pro bono law firm took Mr. Willis’ case.
  • The fact that some mistakes were discovered in time and innocent people were exonerated strongly suggests that there have been other occasions when mistakes were not discovered in time and innocent people were executed.
  • As former U.S. Supreme Court Justice Sandra Day O’Connor observed, while noting 90 exonerations from death row in 2001, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.”

Links

Includes the weekly published opinions and handdown list of the Texas Court of Criminal Appeals, a library of prior opinions, the list of 11.071 “approved attorneys”, and the Guidelines and Rules for Attorney’s Fees and Expenses pursuant to art. 11.071.

Case information, docket sheets, Local Rules for the Fifth Circuit, etc. Does not require separate service to access information.

  • The following websites feature case information, docket sheets, local rules, etc. Access to the docket sheets generally requires that you have signed up with the Pacer Services. Instructions for doing so, addresses, etc., are contained within each website.

The District Court for the Northern District of Texas
The District Court for the Southern District of Texas
The District Court for the Eastern District of Texas
The District Court for the Western District of Texas

Offers an array of resources for attorneys representing death row prisoners in their habeas appeals, with separate resource libraries for individual states – including Texas – with sample pleadings, training materials, etc.

Extensive website with numerous materials and resources relevant to habeas litigation of capital cases (the website is split between resources for the defense of state prosecutions (Habeas Assistance & Training, or “HAT”) and the defense of federal prosecutions (Federal Death Penalty Resource Council, or “FDPRC”.) The HAT materials include the following:

  • Calendar of Upcoming Events
  • Current Developments and Recent Cases (including Supreme Court briefs in pending cases of particular importance)
  • Introduction to the Eighth Amendment
  • Recent Filings and Actions in the U.S. Supreme Court
  • Federal Habeas Corpus Update (Habeas corpus decisions listed by topic)
  • Constitutional Issues – Cases on point (summaries of successful cases under the seminal Supreme Court cases pertaining to capital litigation, e.g. Ake v. Oklahoma, Brady v. Maryland, Strickland v. Washington, etc.)
  • Presentations from Past Seminars
  • Cites to Sites (includes sites set forth herein)

General information about federal habeas corpus review and capital punishment, a synopsis of recent federal court decisions on habeas corpus and capital punishment, and links to other pertinent sites.

Links to other sites containing valuable information on all aspects of criminal law and procedure.

Complete listing of habeas corpus decisions issued by the federal courts, in chronological order.

General information about race and the death penalty, the work of the SCHR, and current developments in the administration of the death penalty in the U.S.

The Justice Project is a campaign to educate the public about the scope of the problem of wrongful executions, and what reforms can be made to prevent them. Contains general information about the death penalty, and numerous studies on the inadequacies of the system. Includes testimony presented to the House Judiciary Committee on H.R. 4167, the Innocence Protection Act of 2000.

A commercial website which offers an array of (free) legal resources and tools.