SUPPLEMENTAL INFORMATION
BEFORE THE GOVERNOR OF THE STATE OF TEXAS
AND
TEXAS BOARD OF PARDONS AND PAROLES
–––––––––––––––––––––– . –––––––––––––––––––––
JAMES LEE CLARK
DENTON COUNTY CRIMINAL CASE No. F-93-0713-C
APRIL 11, 2007 EXECUTION DATE
–––––––––––––––––––––– . –––––––––––––––––––––
APPLICATION FOR
COMMUTATION OF DEATH SENTENCE
TO LIFE IN PRISON
––––––––––––––––––––––––––––––––––––––
PUBLIC HEARING REQUESTED
––––––––––––––––––––––––––––––––––––––
Ward S. Larkin
15327 Pebble Bend Dr.
Houston, TX 77068-1839
Phone: 281-444-3840
Email: ward@adelante.com
AUTHORIZED REPRESENTATIVE FOR
JAMES LEE CLARK [SEE EXHIBIT 1]
This Application for Commutation of Death Sentence to Life in Prison is presented in
behalf of James Lee Clark in compliance with 37 TAC 143.57.
No interview with a member of the board per 37 TAC 143.57(e) is requested.
Table of Contents
Table of Exhibits i
Application for Commutation of Death Sentence to Life in Prison 1
Supplemental Information 1
Other Atkins Claims Involving Dr. George Denkowski 1
The case of Darnell Glenn Carr 4
The case of Demetrius Lott Simms 6
The case of Exzavier Lamont Stevenson 7
The case of Coy Wayne Wesbrook 9
The case of Brian Edward Davis 12
Texas Persons With Mental Retardation Act § 591.003(16) 13
Clemency Issues 14
The Case of Robert Smith 14
The Case of Doil Lane 15
The Fox is Guarding the Henhouse 16
Victim Impact 18
Conclusion 18
Exhibits
1
Table of Exhibits
Exhibit 12 Findings of Fact and Conclusions of Law for Exzavier Lott
Stevenson
Exhibit 13 Findings of Fact and Conclusions of Law for Darrell Glenn
Carr
Exhibit 14 Findings of Fact and Conclusions of Law for Demetrius Lott
Simms
Exhibit 15 Findings of Fact and Conclusions of Law for Coy Wayne
Wesbrook
Exhibit 16 Findings of Fact and Conclusions of Law for Brian Edward
Davis
2
March 27, 2007
To the Governor and Honorable Members of the Board Of Pardons & Paroles:
Application for Commutation of Death Sentence to Life in Prison
Supplemental Information
OTHER ATKINS CLAIMS INVOLVING DR. GEORGE DENKOWSKI
On February 28, 2007 the Texas Court of Criminal Appeals ruled that
Darrell Glenn Carr1 and Demetrius Lott Simms2 are mentally retarded and
pursuant to U.S. Supreme Court case Atkins v. Virginia, 536 U.S. 304 (2002) are
therefore exempt from execution. On March 21, 2007 the Texas Court of Criminal
Appeals similarly ruled that Exzavier Lott Stevenson3 is mentally retarded, but
that Coy Wayne Wesbrook4 is not. On March 29, 2006 the Texas Court of
Criminal Appeals ruled that Brian Edward Davis5 is not mentally retarded, and
therefore not exempt from execution.
These cases are important to James Clark’s Application for Executive
1 Exhibit 13 contains the Findings of Fact and Conclusions of Law in the case against Darrell Glenn Carr:
Harris County Criminal Case No. 0644434-B, Texas Court of Criminal Appeal Case No. WR-55,033-02.
Exhibit 13 also contains the Texas Court of Criminal Appeals Order dated February 28, 2007, commuting
Mr. Carr’s death sentence to life in prison.
2 Exhibit 14 contains the Findings of Fact and Conclusions of Law in the case against Demetrius Lott
Simms: Harris County Criminal Case No. 0605233-B, Texas Court of Criminal Appeal Case No. WR-
56,811-01. Exhibit 14 also contains the Texas Court of Criminal Appeals Order dated February 28, 2007,
commuting Mr. Simms’ death sentence to life in prison.
3 Exhibit 12 contains the Findings of Fact and Conclusions of Law in the case against Exzavier Lamont
Stevenson: Harris County Criminal Case No. 0836855-A, Texas Court of Criminal Appeal Case No. WR-
57,059-02. Exhibit 12 also contains the Texas Court of Criminal Appeals Order dated March 21, 2007,
commuting Mr. Stevenson’s death sentence to life in prison.
4 Exhibit 15 contains the Findings of Fact and Conclusions of Law in the case against Wayne Coy
Wesbrook: Harris County Criminal Case No. 0768395-B, Texas Court of Criminal Appeal Case No. WR-
52,120-02. Exhibit 15 also contains the Texas Court of Criminal Appeals Order dated March 21, 2007,
ruling that Mr. Wesbrook is not mentally retarded.
5 Exhibit 16 contains the Findings of Fact and Conclusions of Law in the case against Brian Edward Davis:
Harris County Criminal Case No. 616522-E, Texas Court of Criminal Appeal Case No. WR-40,339-05.
Exhibit 16 also contains the Texas Court of Criminal Appeals Order dated March 29, 2006, ruling that Mr.
Davis is not mentally retarded.
3
Clemency because Dr. George Denkowski was the state’s psychological expert
for determining mental retardation in each of these cases. Dr. Denkowski was the
psychological expert on mental retardation first hired by the Denton County
District Attorney to evaluate James Clark, but was fired after he diagnosed James
Clark as mentally retarded. More so, these other cases are important to James
Clark because in each of these other cases the presiding trial court did what it’s
supposed to do regarding expert scientific testimony: accept and consider the
relevant and reliable scientific evidence and ignore the non-relevant, non-reliable
scientific evidence. [See page 26 of Clemency Application filed on March 21,
2007, analysis of U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993).]
In each of these cases, as is required by Daubert, the presiding trial judge
used only the reliable and relevant expert psychological testimony when
deciding who is mentally retarded and who is not mentally retarded. Anecdotal
evidence and scientific evidence that didn’t comply with proven and accepted
empirical standards wasn’t considered. Similarly, Dr. Denkowski was especially
cautious about test taking underperformance, and the courts recognized this
caution. Atkins claimants do, admittedly, have a vested interest in being
diagnosed with mental retardation.
However, and unlike James Clark’s case, where the trial judge allowed the
prosecutor to hire and fire expert psychologists until the prosecutor found the
testimony he wanted to hear, where the trial judge ignored the only two experts
who performed accepted standardized testing on mental retardation, where the
4
standard error of measurement was ignored, in these cases of Exzavier Lott
Stevenson, Darrell Glenn Carr, Demetrius Lott Simms, Coy Wayne Wesbrook
and Brian Edward Davis the various trial judges properly considered the
relevant and reliable expert psychological testimony.
Dr. Denkowski’s expert opinions were found relevant, reliable and
credible. And this is how it should be. This is how it must be. The courts must
defer to the relevant, reliable and credible expert psychological evidence when
determining who is mentally retarded and who is not. To do otherwise is
arbitrary and capricious, a violation of the law. One of the fundamental
principles of the American criminal justice system is to prevent arbitrary or
otherwise oppressive treatment of persons suspected, accused or convicted of
criminal offenses, not to encourage or facilitate oppression.
To quickly recap, mental retardation is a disability characterized by, (1)
significantly subaverage general intellectual functioning (2) accompanied by
related limitations in adaptive functioning, (3) the onset of which occurs prior to
the age of 18.
THE CASE OF DARRELL GLENN CARR
In the case of Darrell Glenn Carr, after Mr. Carr’s attorneys claimed mental
retardation under Atkins, the Harris County District Attorney’s first response
was to oppose it: "Applicant has failed to prove facts which would entitle him to
relief".
Prior to Atkins Mr. Carr had full-scale IQ test scores above 70. On April 2,
1981 (at the age of 11 years, 6 months) Mr. Carr took the WISC-R and attained a
5
full-scale IQ of 80. On January 11, 1983 the WISC-R was re-administered, and Mr.
Carr attained a full-scale IQ of 68. On October 23, 2003 Dr. Rosana Rosin gave
Mr. Carr the WAIS-III, and he attained a full-scale IQ of 50. On August 17, 2006
Dr. Denkowski re-administered the WAIS-III and Mr. Carr attained a full-scale
IQ score of 53.
Also during August 17-8, 2006 Dr. Denkowski administered to Darrell
Glenn Carr the following: Test of Memory Malingering (TOMM), Dot Counting
Test, Rey 15-Item Memory Test, Beck Anxiety Inventory (BAI), Beck Depression
Inventory – Second Edition (BDI-II), Wide Range Achievement Test – Third
Edition (WRAT-3), and Adaptive Behavior Assessment System (ABAS).
On November 24, 2006 Dr. Denkowski’s issued his assessment: Mr. Carr
attained a full-scale IQ of 53 and has deficits in the four adaptive behavior
assessments: community use, functional academics, health and safety, and self
care. Dr. Denkowski provided that Darnell Glenn Carr "is mentally retarded in
terms of the criteria that apply in Texas criminal proceedings".
In light of Dr. Denkowski’s expert examination, and in spite of a full-scale
IQ score as high as 80, the Harris County District Attorney re-evaluated its
opposition to Mr. Carr’s Atkins claim. On December 15, 2006, the Harris County
District Attorney filed Proposed Findings of Fact and Conclusion of Law saying
that Darrell Glenn Carr is mentally retarded and therefore exempt from
execution.6 Without modification, and on December 20, 2006, the trial judge Brian
Rains signed the Harris County District Attorney’s proposed Findings of Fact
6 Exhibit 13 contains the Findings of Fact and Conclusions of Law in Darrell Glenn Carr’s case.
6
and Conclusions of Law. On February 28, 2007 the Texas Court of Criminal
Appeals affirmed that trial court, officially commuting Mr. Carr’s death sentence
to life in prison. Darrell Glenn Carr was convicted of capital murder and
sentenced death for the robbery-murder of 16-year old Priscilla Rangel.
THE CASE OF DEMETRIUS LAMONT SIMMS
In the case of Demetrius Lott Simms, after Mr. Simms’ attorneys claimed
mental retardation under Atkins, the Harris County District Attorney’s first
response was to oppose it: "Applicant fails to prove, by a preponderance of the
evidence, that he meets the first prong of the three-part definition of mental
retardation"; "Applicant fails to demonstrate, by a preponderance of the
evidence, that he has such limitations in adaptive functioning as would satisfy
that prong of the diagnostic criteria for mental retardation".
Prior to Atkins Mr. Simms had full-scale IQ test scores above 70. On
August 2, 1989 (at the age of 18 years, 5 months) Dr. Orloff gave Mr. Simms the
Weshsler Adult Intelligence Scale – Revised Edition (WAIS-R), and Mr. Simms
attained a full-scale IQ of 71. In 1994 Dr. Nelson determined that Mr. Simms has
a full-scale IQ of 66. On February 29, 1996 Dr. Lehman assessed Mr. Simms
attained a WAIS-R full scale IQ of 68. Then on August 20, 1998 Dr. Nelson also
tested Mr. Simms with WAIS-R, full-scale IQ 73.
On July 27-8, 2006 Dr. Denkowski administered to Demetrius Lott Simms
the following: Test of Memory Malingering (TOMM), Weshsler Adult
Intelligence Scale – third edition (WAIS-III), Dot Counting Test, Rey 15-Item
Memory Test, Beck Anxiety Inventory (BAI), Beck Depression Inventory –
7
Second Edition (BDI-II), Wide Range Achievement Test – Third Edition (WRAT-
3), and Adaptive Behavior Assessment System (ABAS).
On November 24, 2006 Dr. Denkowski’s issued his assessment. Mr. Simms
attained a full-scale IQ of 63 and was deficit in the five adaptive behavior
assessments: communication, community use, functional academics, health and
safety, and social. Dr. Denkowski provided that Demetrius Lott Simms "is
mentally retarded in accord with the criteria that are applicable in Texas criminal
proceedings".
In light of Dr. Denkowski’s expert examination, and in spite of other IQ
scores above 70, the Harris County District Attorney re-evaluated its opposition
to Mr. Simms’ Atkins claim. On December 20, 2006, the Harris County District
Attorney filed Proposed Findings of Fact and Conclusion of Law saying that
Demetrius Lott Simms is mentally retarded and therefore exempt from
execution.7 Without modification, and on the same day, the trial judge Michael
McSpadden signed the Harris County District Attorney’s proposed Findings of
Fact and Conclusions of Law. On February 28, 2007 the Texas Court of Criminal
Appeals affirmed that trial court, officially commuting Mr. Simms’ death
sentence to life in prison.
Demetrius Lott Simms was convicted and sentenced to death for the
murder of 4-year old Monique Miller.
7 Exhibit 14 contains the Findings of Fact and Conclusions of Law in Demetrius Lott Simms’ case.
8
THE CASE OF EXZAVIER LOTT STEVENSON
In the case of Exzavier Lamont Stevenson, after Mr. Stevenson’s attorneys
claimed mental retardation under Atkins, the Harris County District Attorney’s
first response was to oppose it.
There are no full-scale IQ test scores for Mr. Stevenson prior to Atkins.
However, on January 1, 1989 (at the age of 20) the U.S. Social Security
Administration determined that Mr. Stevenson was mentally retarded for the
purpose of Supplemental Social Security Income (SSI). On January 23, 2002 Dr.
Jerome Brown administered the WAIS-III, and Mr. Stevenson attained a full-scale
IQ score of 55. On February 2, 2004 Dr. Rosana Rosin re-administered the WAISIII,
and Mr. Stevenson attained a full-scale IQ score of 51.
Then on July 27-8, 2006 Dr. Denkowski administered to Mr. Stevenson the
following: Test of Memory Malingering (TOMM), Stanford-Binet Intelligence
Scales – Fifth Edition (SB-5), Dot Counting Test, Rey 15-Item Memory Test, Beck
Anxiety Inventory (BAI), Beck Depression Inventory – Second Edition (BDI-II),
Structured Clinical Interview for DSM-IV Axis I Disorders (SCID-I), Wide Range
Achievement Test – Third Edition (WRAT-3), and Adaptive Behavior
Assessment System (ABAS).
On December 26, 2006 Dr. Denkowski’s issued his assessment: Mr.
Stevenson attained a full-scale IQ of 41 and was deficit in six adaptive behavior
assessments: functional academics, communication, community use, health and
safety, leisure and social. Dr. Denkowski provided that Exzavier Lamont
9
Stevenson "is mentally retarded in accord with the criteria that are applicable in
Texas criminal proceedings".
In light of Dr. Denkowski’s expert examination, and in spite of no available
prior IQ test scores, the Harris County District Attorney re-evaluated its
opposition to Mr. Stevenson’s Atkins claim. The Harris County District Attorney
filed Proposed Findings of Fact and Conclusion of Law saying that Exzavier
Lamont Stevenson is mentally retarded and therefore exempt from execution.8
On January 12, 2007, without modification, trial judge Vanessa Velasquez signed
the Harris County District Attorney’s proposed Findings of Fact and Conclusions
of Law. On March 21, 2007 the Texas Court of Criminal Appeals affirmed that
trial court, officially commuting Mr. Stevenson’s death sentence to life in prison.
Exzavier Lamont Stevenson was convicted and sentenced to death for the
murders of Khalid Masroor and Syed Medhi after an argument at a convenience
store.
THE CASE OF COY WAYNE WESBROOK
In the case of Coy Wayne Wesbrook, after Mr. Wesbrook’s attorneys
claimed mental retardation under Atkins, the Harris County District Attorney’s
first response was to oppose it.
Prior to Atkins Mr. Wesbrook had full-scale IQ test scores above 70. On
January 29, 1968 (two days short of his tenth birthday) Mr. Wesbrook was tested
with the Wechsler Intelligence Scale of Children and attained a full-scale IQ of
90. The Flynn Effect probably overstated Mr. Wesbrook’s IQ by 5 points. Mr.
8 Exhibit 12 contains the Findings of Fact and Conclusions of Law in Exzavier Lamont Stevenson’s case.
10
Wesbrook was subsequently administered the Primary Mental Abilities (PMA)
tests, and obtained scores of 65 (at age 11) and 84 (at age 14). The PMA is a group
test of general intelligence given by schools to help make administrative
decisions about what sort of assistance to provide struggling students. The PMA
does not establish IQ, but instead scholastic aptitude.
On June 2, 2004 Dr. Stephen Martin administered Mr. Wesbrook (then age
46) the WAIS-III. Mr. Wesbrook attained a full-scale IQ of 74. However, Dr.
Martin found that score problematic. Mr. Wesbrook didn’t perform well on the
Rey 15-Item test, a test to determine whether Mr. Wesbrook was giving a good
effort. Dr. Martin also determined that Mr. Wesbrook had been depressed for
several years. Depression is known to decrease motivation, and therefore
provide understated full-scale IQ test results.
On July 25-6, 2006 Dr. Denkowski administered to Mr. Wesbrook the
following: Test of Memory Malingering (TOMM), Wechsler Adult Intelligence
Scale – Third Edition (WAIS-III), Structured Clinical Interview for DSM-IV Axis I
Disorders (SCID-I), Dot Counting Test, Rey 15-Item Memory Test, Beck Anxiety
Inventory (BAI), Beck Depression Inventory – Second Edition (BDI-II), Wide
Range Achievement Test – Third Edition (WRAT-3), and Adaptive Behavior
Assessment System (ABAS).
On August 8, 2006 Dr. Denkowski’s issued his assessment:9 Mr. Wesbrook
attained a full-scale IQ of 66 and was deficit in one adaptive behavior
9 On January 19, 2007 Dr. Denkowski issued some minor corrections to his August 8, 2006 assessment of
Coy Wayne Wesbrook. These corrections are included in Exhibit 15.
11
assessments: functional academics. Dr. Denkowski provided that "when
nonintellectual factors are accounted for, Mr. Wesbrook’s adult measured mental
ability is conveyed best by the Full Scale IQ of 74 to 79, and his actual adult
general intelligence functioning is estimated to be of about 84 IQ quality. Mr.
Wesbrook’s general intellectual functioning is therefore not significantly
subaverage." (Emphasis is in original statement.) Thus, in conclusion, Dr.
Denkowski provided that Coy Wayne Wesbrook "is not considered to be
mentally retarded for Atkins purposes".
Even though Mr. Wesbrook’s full scale IQ score from July 25, 2006 was 66
(well below the 70 threshold for the mental ability prong of mental retardation
dignosis), Dr. Denkowski used proven and accepted psychological procedure to
readjust that full-scale 66 IQ score to an actual IQ score of between 74 and 79. In
short, Dr. Denkowski did what he was supposed to do as a trained professional
psychologist: provide relevant and reliable evidence based on accepted empirical
testing.
Likewise, the Harris County District Attorney and trial judge Marc Carter
did what they were supposed to do, they accepted the relevant and reliable
diagnosis of the psychological experts. Note: Dr. Stephen Martin also said that
Mr. Wesbrook’s 2004 full-scale IQ score of 74 should be "viewed with caution".
Trial judge Marc Carter issued Findings of Fact and Conclusions of Law10
providing that Coy Wayne Wesbrook is not mentally retarded. On March 21,
2007 the Texas Court of Criminal Appeals affirmed that trial court, officially
10 Exhibit 15 contains the Findings of Fact and Conclusions of Law in Coy Wayne Wesbrook’s case.
12
denying Mr. Wesbrook Texas state habeas relief under U.S. Supreme Court case
Atkins v. Virginia. Mr. Wesbrook has the discretion to appeal this denial of Atkins
relief to the U.S. federal courts. Coy Wayne Wesbrook was convicted and
sentenced to death for the murders of Gloria Jean Coons, Antonio Cruz, Anthony
Ray Rogers, Diana Ruth Money and Kelly Hazlip.
THE CASE OF BRIAN EDWARD DAVIS
In the case of Brian Edward Davis, after Mr. Davis’ attorneys claimed
mental retardation under Atkins, the Harris County District Attorney’s first
response was to oppose it.
Prior to Atkins Mr. Davis had full-scale IQ test scores above 70. In 1980 (age
11 years, 1 month) Brian Davis took the WISC-R. However, the only available
result was simply "low average", which indicates an IQ range of 80-90. In 1983
(age 14 years, 5 months) Brian Davis took the Woodcock-Johnson Test of
Cognitive Ability. He scored a full-scale IQ of 88. At the age of 15 years, 5
months, and while in custody of the Texas Youth Council, Mr. Davis took a
partial WISC-R and attained a full-scale IQ of 74. The Flynn Effect probably
overstated Mr. Davis’s WISC-R IQ test score by 3 points. However, according to
both Dr. Denkowski (the state’s expert) and Dr. Gilda Kessner (the defense
expert) the standard error of measurement for a partial WISC-R is high, to the
point of making that 74 IQ score unreliable.
In 2004 Dr. Gilda Kessner administered the Reynolds Intellectual
Assessment Scales (RIAS) to Mr. Davis, and he achieved a Composite
Intelligence Index score of 77. On September 27-8, 2004 Dr. Denkowski
13
administered to Mr. Davis the Stanford-Binet Intelligence Scales – Fifth Edition
(SB-5). Mr. Davis attained a full-scale IQ score of 80. On July 25, 2005 trial court
judge Belinda Hill accepted Dr. Denkowski’s diagnosis and found that Brian
Davis did not meet the general intellectual functioning prong of mental
retardation diagnosis. That is, a significantly subaverage IQ, generally at or
below 70. On March 29, 2006 the Texas Court of Criminal Appeals affirmed
Judge Hill, officially denying Mr. Davis’ Atkins claim in Texas state courts. Mr.
Davis has the discretion to appeal this denial of Atkins relief to the U.S. federal
courts.
Brian Eugene Davis was convicted of capital murder and sentenced to
death for the murder-robbery of Michael Alan Foster.
TEXAS PERSONS WITH MENTAL RETARDATION ACT § 591.003(16)
I just learned that the Texas Court of Criminal Appeals made an
interesting ruling in Ex Parte Lewis, Cause No. WR-38,355-03 (Tex. Crim. App.
Dec. 6, 2006). The Texas Court of Criminal Appeals ruled that Texas Persons
With Mental Retardation Act § 591.003(16) is not relevant for the determination
of who’s mentally retarded and who’s not mentally retarded as it pertains to
capital punishment.
Texas Person With Mental Retardation Act § 591.003(16) provides
"Person with mental retardation" means a person determined
by a physician or psychologist licensed in this state or
certified by the department to have subaverage general
intellectual functioning with deficits in adaptive behavior.
14
Clearly, the greatest significance of § 591.003(16) is that the Texas
Legislature wants mental retardation determinations to be made by licensed
professionals, and not based on anecdotal or otherwise non-scientifically relevant
or reliable evidence. Ex Parte Lewis demonstrates all of the more that the Texas
State Legislature needs to enact law so as to place Texas in compliance with
Atkins v. Virginia. In the meantime all executions of condemned with at least
prima facie evidence of mental retardation should be suspended.
GENERAL CLEMENCY ISSUES
This is the third application for executive clemency I’ve filed in James Lee
Clark’s behalf. The first application was filed on October 31, 2002 for a November
21, 2002 execution date. It was rendered mute because the Texas Court of
Criminal Appeals issued a stay before the Texas Board of Pardons and Paroles
voted. The second application was filed on April 6, 2004 for an April 27, 2004
execution date. The Board voted 5-0 to deny. Soon then after the U.S. Court of
Appeals for the Fifth Circuit issued a stay.
THE CASE OF ROBERT SMITH
Naturally, I was (and still am) disappointed that the Texas Board of
Pardons and Paroles voted against James Clark in April of 2004. And, I’m still
baffled as to how the Board could unanimously split the hair distinguishing
former Texas Death Row offender Robert Smith’s case from James Clark’s. Just
weeks earlier the board had voted unanimously to recommend clemency for Mr.
Smith. On March 12, 2004 Texas Governor Rick Perry accepted the Board’s
15
recommendation and officially commuted Robert Smith’s death sentence to life
in prison because Mr. Smith is mentally retarded.
In Robert Smith’s case Texas licensed psychologist Dr. George Denkowski
diagnosed Robert Smith as mentally retarded: IQ 63, 5 adaptive behavior
deficits.11 In James Clark’s case the exact same Dr. George Denkowski diagnosed
James Clark as mentally retarded: 65 IQ and 3 adaptive behavior deficits.12 Mr.
Smith and Mr. Clark were each, according to the expert opinion of Dr.
Denkowski, unquestionably mentally retarded. Yet, in Robert Smith’s case the
Texas Board of Pardons and Paroles voted unanimously to recommend
commutation of death sentence to life in prison. In James Clark’s case, the Texas
Board of Pardons and Paroles voted unanimously to reject commutation of death
sentence to life in prison. Again, I’m baffled that Dr. Denkowski’s diagnosis in
Robert Smith’s case received universal acceptance, and Dr. Denkowski’s
diagnosis in James Clark’s case received universal rejection.
THE CASE OF DOIL LANE
Now there’s also the case of Doil Lane. On March 9, 2007 Texas Governor
Rick Perry commuted Doil Lane’s death sentence to life in prison because Doil
Lane is mentally retarded. This was upon a 5-2 vote from Texas Board of Pardons
and Paroles in favor of commutation.
It’s proper that Doil Lane’s death sentence was commuted to life in prison.
Doil Lane is clearly and plainly a person with mental retardation. But again, to
11 Exhibits F1 and F1 from the 2004 Clemency Application for James Clark contain Dr. Denkowski’s
psychological assessment of Robert Smith.
12 Exhibit G from the 2004 Clemency Application for James Clark contain Dr. Denkowski psychological
assessment of James Clark.
16
compare, Doil Lane has had Full Scale IQ scores of 67, 78 and 65. James Clark’s
full-scale IQ scores have been 74, 65 and 68. I don’t see much difference there.
Regarding adaptive behavior deficits, Doil Lane has amble deficits to qualify as
mentally retarded, as does James Clark. Dr. Denkowski provided in 2003 that
James Clark is deficit in Health and Safety, Social and Work. [See Dr.
Denkowski’s Psychological Assessment of James Clark, Exhibit G, 2004
Clemency Application.]
THE FOX IS GUARDING THE HENHOUSE
As far as I’m aware, eight mentally retarded Texas Death Row offenders
have had their death sentences commuted to life in prison: Walter Bell, Darrell
Carr, Doil Lane, Willie Moddon, Demetrius Simms, Robert Smith, Exzavier
Stevenson, Albert Valdez. As far as I’m aware, psychologist Dr. George
Denkowski diagnosed four of these men: Darrell Carr, Demetrius Simms, Robert
Smith and Exzavier Stevenson. As far as I’m aware the only time in which a
Texas Death Row offender is found sufficiently mentally retarded to satisfy
Atkins v. Virginia is when the presiding prosecutor says he or she is sufficiently
mentally retarded. That is, if the presiding prosecutor concurs that a person on
Texas Death Row is mentally retarded, then the courts or the Texas Board of
Pardons and Paroles follow suit.
There is one partial exception. The Texas Court of Criminal Appeals did
grant Alberto Valdez Atkins relief even though the Nueces County District
Attorney's Office opposed it. Strangely, however, even in it's opposition, the
Nueces County District Attorney's Office conceded that Alberto Valdez is
17
mentally retarded. The Nueces County District Attorney's Office opposed
granting Atkins relief to Alberto Valdez on procedural grounds, not on factual
grounds. Specifically, The Nueces County District Attorney argued that Atkins
should not apply to Alberto Valdez because Valdez was sentenced to death years
before Atkins was decided. At best this argument is spurious. The Atkins decision
is about limiting executions, not strictly about limiting who may get sentenced to
death. Thus, even in the Alberto Valdez case, the prosecution agreed that the
defendant is mentally retarded.
As far as I know, in every Atkins claim the trial court simply did what the
prosecution wanted. In turn the Texas Court of Criminal Appeals affirms the trial
court. Thus, as it stands now, compliance with Atkins in Texas is completely up
to the prosecutor. Whatever the prosecutor wants, the prosecutor gets. The fox is
guarding the henhouse. If the prosecutor is benevolent (i.e. believes in due
process of law and equal protection under the law), then an Atkins claim is going
to be treated fairly by that prosecutor, and also by that trial court. However, if
the prosecutor is hostile, and that prosecutor sees Atkins as an injustice, a way to
getting away with murder, then that Atkins claim is always going to fail.
That’s not how it’s supposed to be. The fundamental principle of our
American criminal justice system is rule of law. Official discretion is supposed to
be limited. This is to prevent arbitrary, capricious, and otherwise oppressive
treatment of, not only criminal suspects, but the convicted, too. James Clark
didn’t lose his Atkins claim in the courts because he’s not mentally retarded. He
is mentally retarded. James Clark lost his Atkins claim in the courts because his
18
prosecutor was hostile, and the Texas courts haven’t and don’t do anything to
stop it.
VICTIM IMPACT
I have not spoken with any member of the Cari Crews family. My hope is
that the Victim Services Office of the Denton County District Attorney’s Office is
providing them counsel and assistance.
CONCLUSION
Finally, I’m confident that the Texas Board of Pardons and Paroles has
solicited information about James Lee Clark from many other sources. For
example, information has been solicited from the Denton County trial officials:
trial judge, district attorney and sheriff. NOTE: not one of these current sitting
trial officials is the same as those who were originally involved at James Clark’s
trial. Ira Sam Houston was the trial judge. Now the presiding judge is Lee
Gabriel, specially assigned. The trial district attorney was Bruce Isaacks. The
current Denton County District Attorney is Paul Johnson. The sheriff at the time
of the trial was Lucas Welton. It’s now Benny Parkey.
Also, I know that the Texas Board of Pardons and Paroles has asked the
Texas Department of Criminal Justice (TDCJ) for information about James Clark,
but I’m afraid that TDCJ’s opinions about mental retardation will be all over the
map. Their conclusions will be personal, subjective and therefore void of
scientific meaning. I’m confident to some TDCJ corrections officers, if the
offender doesn’t cause them any trouble, then offender is not mentally retarded.
Similarly, to some corrections officers, an offender is not mentally retarded if the
19
offender is at least moderately well groomed, and keeps his or her cell at least
moderately clean. In other words, if the offender doesn’t cause the corrections
officer any trouble, then the offender is not mentally retarded.
Whereas the Texas Board of Pardons and Paroles should seek as much
meaningful information as possible when deciding James Clark’s request for
commutation of death sentence to life in prison. However, that information must
truly be meaningful: that is, accurate, relevant and reliable. There’s the rub. Also,
I’m extremely bothered that I don’t get to know or confront any of this other
information. I’m afraid that the Board of Pardons and Paroles will give meaning
to evidence that is scientifically irrelevant.
The State of Texas is about to execute a mentally retarded man on April 11,
2007. Stop this madness.
Respectfully submitted,
Ward Larkin
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