Retardation appeals in limbo, years after ruling
Copyright 2007 Houston Chronicle
Five years after the U.S. Supreme Court banned the execution of mentally retarded killers, 16 death row inmates from Harris County are still waiting to have their appeals on the issue resolved.
"This is a really unique situation," Assistant District Attorney Roe Wilson, chief of the DA's division dealing with the claims, said of the bubble. "We won't see this again."
The cases may get speedier resolution with judges across the state facing an order, issued last summer by the Texas Court of Criminal Appeals, to wrap up more of these cases.
Since the 2002 ban, six of the 454 inmates then on Texas' death row have had their sentences commuted to life in prison after proving they are retarded. One of those, Robert Smith, commuted in 2004, was from Harris County.
Of the 131 inmates on death row from Harris County, 16 have retardation claims pending.
One of those inmates, Exzavier Lamont Stevenson, was sentenced to die in 2000 for killing two convenience store clerks. Stevenson, 38, is expected to have his sentence commuted because he meets the legal test for retardation.
To be eligible, inmates must have a low IQ and significant problems adapting to their surroundings that were evident even in childhood.
State District Judge Vanessa Velasquez ruled last week that Stevenson was retarded based on the examinations of three doctors, said Kurt Wentz, Stevenson's attorney. The case will be forwarded to the Court of Criminal Appeals, which is expected to commute the sentence.
"The law has recognized a disability that allows for Mr. Stevenson to have a life sentence," Wentz said. "And for Mr. Stevenson that is an extreme punishment."
Wentz said Stevenson would have to spend at least 40 years in prison, including the time he already has served.
'The system worked'Stevenson pleaded guilty to capital murder in September 2000, and a jury sentenced him to die for fatally shooting Khalid Masroor and Syed Mehdi over a 10-cent dispute at a store.
"The system worked the way it is supposed to work," Wentz said of the judge's ruling.
Two other Harris County killers also recently had their cases sent to the appeals court. Experts for the District Attorney's Office agreed that Darrell Carr and Demetrius Simms also meet the legal definition of retarded and should not be executed, Wilson said.
Carr was convicted in 1991 of shooting 16-year-old Priscilla Rangel in the forehead during a convenience store robbery.
Simms was convicted in 1999 of killing 4-year-old Monique Miller, who disappeared in May 1991. Her nude and decomposing body was found two days later in a wooded area near her northeast Houston home. She had been beaten, strangled and possibly sexually assaulted.
In two other cases, experts on both sides say inmates Joel Escobedo and Jamie McCoskey are not retarded, Wilson said.
Escobedo was convicted in 1999 of robbing and killing a 65-year-old man for drug money at an East End bus stop. Guadalupe Garcia was pistol-whipped, robbed, then shot.
Convicted in 1992, McCoskey stabbed Michael Dwyer 24 times after raping Dwyer's pregnant girlfriend.
The other 11 condemned men are waiting, with judges and lawyers on both sides working through their claims.
As these cases proceed, some experts wonder how many retarded inmates in Texas may be masking their retardation, ultimately missing the chance to escape lethal injection.
"For these people, the worst thing in the world is if people think they're dumb," said Jim Ellis, a lawyer and death penalty opponent who argued the case that persuaded the Supreme Court to order the ban.
From being called names as a child to having problems getting even menial jobs, he said, the retarded must navigate a world in which it's never advantageous to admit their disability.
So, Ellis said, they fake their way through the criminal-justice system.
Ellis said he has seen cases in which a retardation claim was the only thing that could save a defendant's life, but the person still worked hard to not appear retarded.
This may mean there are defendants with retardation on death row, refusing to acknowledge their disability.
Victim's widow unappeased
Before the Supreme Court ban, defendants facing execution could argue at trial that they were retarded — one of several possible mitigating factors the jury could consider.
Prosecutors were also free to consider those claims before trial.
"No one wants to see a retarded person get executed," said Assistant District Attorney Denise Nassar, who has worked on seven death penalty trials.
States now are forbidden from executing inmates who meet the legal criteria. That strikes the widow of one of Stevenson's victims as unfair.
"Everyone said he would get the death penalty," said Rizwana Mustejab, whose husband, Mehdi, was killed.
"Seven years and I'm still waiting for that moment. It's not fair."
Mustejab said Stevenson was examined and found to be competent before his trial.
She also said Stevenson sometimes hid his face during the trial.
"He's not retarded," Mustejab said. "If you commit a crime and hide it, hide your face, you know you did something wrong."