Texas is Set to Execute a Mentally Retarded Man On April 11, 2007 - PLEASE ACT

Texas is Set to Execute a Mentally Retarded Man On April 11, 2007. U.S. Supreme Court Atkins Decision be Damned.

On February 26, 2007 the Supreme Court of the United States denied James Clark's Petition for Writ of Certiorari on a Mental Retardation Claim. On February 28, 2007 Texas District Judge Lee Gabriel ordered the State of Texas to execute James Clark on April 11, 2007.

NOTE: On June 20, 2002 in Atkins v. Virgina, 536 U.S. 304 (2002), the U.S. Supreme Court ruled that it is unconstitutional to execute the mentally retarded.

This makes James Clark's case a horrible injustice, for each of the psychological experts who thoroughly tested Mr. Clark swear that he's mentally retarded. Amazingly, Judge Gabriel thinks that she knows better than the experts and ruled that James Clark is not mentally retarded. Just as amazingly, all of the appellate courts affirmed Judge Gabriel's decision -- the Texas Court of Criminal Appeals, the U.S. District Court, the U.S. Court of Appeals for the Fifth Circuit and now the Supreme Court of the United States.

James Clark meets the Texas legal definition of mental retardation. [See Texas Persons With Mental Retardation Act -- Texas Health & Safety Code, Chapter 591.] Yet trial judge Lee Gabriel has been allowed to supercede these laws and rule that for the purpose of the death penalty James Lee Clark is not mentally retarded.

BACKGROUND SUMMARY

After James Lee Clark exhausted his first round of Texas State and U.S. Federal appeals, the State of Texas set Mr. Clark to be executed on November 21, 2002. Mr. Clark had been sentenced to death for the June 7, 1993 capital murder of 17-year old Shari Catherine "Cari" Keeler Crews in Denton County, Texas. Jesus Gilberto Garza, 16 years old, was killed along with Miss Crews. Mr. Clark's co-defendant James Richard Brown was tried for the capital murder of Mr. Garza, but was instead found guilty of robbery.

NOTE: James Brown wasn't convicted of aggravated robbery, but simple robbery. Even though Miss Crews and Mr. Garza were murdered, the jury felt that Mr. Brown had not caused anyone serious bodily injury, nor had Mr. Brown used or exhibited a deadly weapon.

However, in 2002 there was evidence that Mr. Clark is mentally retarded. Under U.S. Supreme Court decision Atkins v. Virginia the mentally retarded are ineligible for execution, and on November 18, 2002 the Texas Court of Criminal Appeals stayed that execution date, also ordering the original trial court to determine whether Mr. Clark was in fact mentally retarded.

An application for Executive Clemency was filed on October 31, 2002. However, it was rendered mute when the Texas Court of Criminal Appeals issued it's stay on November 18, 2002.

A three day evidentiary hearing was held and on November 20, 2003 Lee Gabriel found that Mr. Clark is not retarded. [See Judge Gabriel's Findings of Fact and Conclusions of Law] On March 3, 2004 the Texas Court of Criminal Appeals affirmed Judge Gabriel. [See Ex Parte James Lee Clark, WR-37,288-02.] Another execution date was set for April 27, 2004.

Another application for Executive Clemency was filed on April 6, 2004 to the Texas Board of Pardons and Paroles. It was unanimously denied on April 23, 2004.

On April 23, 2004 the U.S. Court of Appeals for the 5th Circuit stayed Mr. Clark's April 27th execution date because there was sufficient evidence that the State of Texas may have misapplied Atkins v. Virginia. The U.S. Court of Appeals ordered the U.S. District Court to determine whether Lee Gabriel and the Texas Court of Criminal Appeals were correct to deny Mr. Clark's claim of mental retardation.

On January 20, 2005, without having an evidentiary hearing, the U.S. District Judge David Folsom denied Mr. Clark his claim of mental retardation. [See Memorandum Opinion, Case No. 5:04cv124] On February 4, 2005 James Clark's attorney filed a Motion to Alter or Amend Judgment. On February 16, 2005 that Motion to Alter was denied. However, on March 16, 2005 the U.S. District Judge Folsom did grant Mr. Clark permission to appeal his claim of mental retardation to the U.S. Court of Appeals for the Fifth Circuit. [See Order Granting Application for Certificate of Appealability.]

On July 20, 2006 the U.S. Court of Appeals for the Fifth Circuit affirmed the ruling of the U.S. District Court and ultimately Texas District Judge Lee Gabriel. [See James Lee Clark v. Nathaniel Quarterman, Case No. 05-70008.] On August 2, 2006 James Clark's attorney filed a Petition for Rehearing En Banc, which was denied on August 29, 2006. Thus, and once again, Mr. Clark's claim of mental retardation was denied in spite of the fact that the only two psychologocial experts who thoroughly tested James Lee Clark found him mentally retarded.

On November 21, 2006 James Clark's attorney filed a Petition for Writ of Certiorari with the Supreme Court of the United States. On February 26, 2007 the Supreme Court denied James Clark's Petition for Writ of Certiorari.

On February 28, 2007 Texas District Judge Lee Gabriel signed an Order setting April 11, 2007 for James Clark's execution.

OVERVIEW

In spite of the U.S. Supreme Court’s ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which outlawed the execution of the mentally retarded, Texas appears determined to execute a mentally retarded man. Two different and independent psychological experts on mental retardation thoroughly tested Mr. Clark -- the only two experts who have thoroughly examined Mr. Clark -- and each diagnosed him as mentally retarded.

In April of 2003 Dr. George Denkowski diagnosed James Clark as mentally retarded, a person with a 65 IQ and three adaptive behavior deficits. In July of 2003 Dr. Denis Keyes diagnosed James Clark mentally retarded, a person with a 68 IQ and several adaptive behavior deficits. [All psychological reports on James Clark are available on the link to the left entitled "Expert Psychologist Reports".] A person with mental retardation is traditionally a person with an IQ of 70 or below with two or more adaptive behavior deficits.

Per the U.S. Supreme Court Atkins decision, it is illegal to execute Mr. Clark. He's mentally retarded. But this is Texas. For example, Texas didn’t let the slaves know they were free until almost 3 months after the U.S. Civil War ended. And then it wasn't really Texas that notified the slaves of their freedom. It was the Union soldiers who arrived in Galveston about three months after Robert E. Lee surrendered.

Similarly, it's been almost five years and the Texas Legislature still has not yet enacted laws to enforce the June, 2002 mandate from Atkins v. Virginia. The Texas Court of Criminal Appeals took it upon itself to create law "during this legislative interregnum to provide the bench and bar with temporary judicial guidelines in addressing Atkins claims." [See Ex Parte Briseno, Feb. 11, 2004.]

James Clark was set to be executed on November 21, 2002, and on November 15th his attorneys filed an appeal under Atkins v. Virginia, presenting evidence that James Clark is mentally retarded. In 1983, when James Clark was 15 years old and in custody of the Texas Youth Council Child Care System, James Clark was given a psychologist evaluation by psychologist Dick Clark and was diagnosed with an IQ of 74. [See Nov. 1983 Texas Youth Council Child Care System Psychological Assessment.]

NOTE: taking into consideration the Standard Error Measurement in IQ testing and the Flynn Effect (a recognized IQ inflation factor), James Clark's true IQ at age 15 was surely below 70.

On November 18, 2002 the Texas Court of Criminal Appeals agreed that this Atkins claim should at least be investigated. The Texas Court of Criminal Appeals issuesd a stay and ordered the original trial court in Denton, Texas to determine whether Clark is in fact mentally retarded. [See Texas Court of Criminal Appeals Nov. 18, 2002 Order.]

A three-day evidentiary hearing was held. [The full hearing transcript is available on the link to the left entitled "James Clark's Atkins Hearing".]

In preparation for this court ordered hearing, the Denton County, Texas District Attorney's Office hired Dr. George Denkowski, a leading Texas State licensed psychologist on mental retardation, to examine James Clark. Using the Wechsler Adult Intelligence Scale-III (WAIS-III) and other tests, Dr. Denkowski performed a 6-hour examination. WAIS-III is the most widely used individually administered IQ test for adults. Dr. Denkowski found that James Clark has an IQ of 65. Dr. Denkowski used the Adaptive Behavior Assessment System (ABAS) to find that James Clark has three adaptive behavior deficits. Dr. Denkowski also tested to make sure that James Clark wasn't faking dumb, or malingering. [See Dr. Denkowski's Forensic Psychological Evaluations Report on James Clark.]

A 65 IQ with 3 adaptive behavior deficits plainly meets the Texas statutory defintion of a person with mental retardation. [See Texas Persons with Mental Retardation Act (Chapter 591 of the Texas Health & Safety Act).] In brief and general terms, a person with mental retardation means anyone diagnosed by a licensed physician or psychologist as having a 70 IQ or less, concurrent with two or more adaptive behavior deficits, onset before age 18.

But Dr. Denkowski's diagnosis that James Clark is mentally retarded and therefore exempt from execution is not what the Denton County District Attorney Bruce Isaacks wanted to hear. Dr. Denkowski was fired and a second “expert” was hired in his place, Dr. Thomas Allen. NOTE: Bruce Isaacks was voted out of office in 2006. The current Denton County District Attorney is Paul Johnson. SPECIAL NOTE: Paul Johnson's main campaign promise was to bring integrity back to the Denton County District Attorney's Office.

Denton County Assistant District Attorney Vicki Foster’s own words about Dr. Allen are apropos: “we hired another doctor, who I'm sure you can anticipate is going to testify that [James Clark’s] not mentally retarded”. [Ex Parte James Clark, Atkins hearing, Vol. 2, pg. 201, lines 7-9.] Interestingly, Dr. Allen considered himself nothing more than a consultant: “Basically they hired me to consult with them.” [Ex Parte James Clark, Atkins hearing, Vol. 3, pg. 13, line 3.]

And consult is pretty much all that Thomas Allen did. He didn’t perform a thorough standardized examination of James Clark to make his diagnosis. He read some background information, including James Clark's 1983 psychological examination, then in May of 2003 he chatted with James Clark for a couple of hours. From this Thomas Allen reported that James Clark is not mentally retarded after all. [See Thomas Allen's Forensic Psychological Consulation.] NOTE: Thomas Allen himself used the term "Forensic Psychological Consultation".

Next James Clark’s attorneys hired an expert psychologist on mental retardation of their own, Dr. Denis Keyes, who just as Dr. Denkowski, performed a thorough standardized examination of James Clark. Dr. Keyes administered the Kaufman Adolescent & Adult Intelligence Test, the Vineland Adaptive Behavior Scale and other tests. This examination was done in two parts, lasting a total of 7.5 hours. And again, consistent with Dr. Denkowski, Dr. Keyes diagnosed James Clark mentally retarded: an IQ of 68 with several adaptive behavior deficits. [See Dr. Keyes Psychoeducational Report.]

Two psychologists experts on mental retardation thoroughly and comprehensively test James Lee Clark, and both experts diagnose James Clark mentally retarded. A "consultant" chats with James Clark for a couple of hours and says Mr. Clark's not mentally retarded. Even though Dr. Denkowski was fired by the Denton County District Attorney's Office, his diagnosis of James Clark was entered into the record. Dr. Denkowski was called to testify on James Clark's behalf during the hearing.

To further counter the diagnoses of Dr. Denkowski and Dr. Keyes, the Denton County District Attorney’s Office introduced a series of anecdotal and incidental evidence. For example, James Clark paid his rent (or often his ex-wife paid it for him), did chores in return for rent reduction and could play a card game similar to UNO, therefore he must not be mentally retarded.

Even though this evidence is not compelling at all, the trial court and the Texas Court of Criminal Appeals gave it weight in spite of the fact that it was given by a woman who readily admitted that she has memory problems. [Ex Parte James Clark, Atkins hearing, Vol. 3, pg. 184, lines 13-23.] Similarly, other untrained laypeople also provided anecdotal and incidental testimony, which was given inappropriate weight by Judge Gabriel and the Texas Court of Criminal Appeals.

Sec. 591.003(16) of the Texas Persons With Mental Retardation Act expressly provides a " '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." That is, only a licensed physician or psychologist may determine who's mentally retarded. Anecdotal information, or the opinions of untrained laypeople is not meaningful.

The trial court's official Findings of Fact and Conclusions of Law is available at the link on the left entitled "Finds of Fact and Conclusions of Law". That link also contains a more detailed analysis than presented here.

The Texas Court of Criminal Appeals decision in James Clark's Atkins appeal, formally styled Ex Parte James Lee Clark, is available at the link on the left entitled "Texas Court of Criminal Appeals Decision". That link also contains a more detailed analysis than presented here on the Texas Court of Criminal Appeals decision in James Clark's case.

The Denton County District Attorney’s Office also entered into evidence an inventory of Mr. Clark’s property from his Texas Death Row prison cell. Mr. Clark had a copy of the books Lord Jim and A Tale of Two Cities, a newspaper clipping about the Atkins decision, various crossword puzzles, letters from people overseas, 36 magazines, etc., therefore, reasoned the Denton County District Attorney, James Clark must not be mentally retarded.

First, it's wrong to think that mental retardation is a function of the types of property a person owns. Just as it would be wrong to think: this person is well dressed, therefore he or she can't be mentally retarded; or, this person is good looking, therefore he or she can't be mentally retarded.

Second, the trial court and the Texas Court of Criminal Appeals refused to consider Mr. Clark's living environment. He lives on Texas Death Row. He is locked alone in a prison cell 23 hours a day. Under normal circumstances he is only allowed out of his cell for one hour a day, and even then handcuffed and under close prison guard escort, to either bathe or enter his cell block's recreation area. He is only allowed to use the telephone with his attorney, and then only when his attorney initiates the call.

Rightfully, Mr. Clark doesn't have the freedom to go to his local WAL-MART to buy the things he likes. Similarly, Mr. Clark doesn't have the freedom to go to the his local convenience store to buy newspapers or magazines. Separately, but just as important, Mr. Clark doesn't have any money of his own. Everything Mr. Clark has in his prison cell was either given to him by the prison, or was a gift in some way, shape or form from a friend, family member or charitable well-wisher.

Plain and simple, the books Lord Jim and A Tale of Two Cities were a gift from a friend. James Clark didn't ask for those books. He didn't know anything about them until he received them in the mail. These books were Amazon.com order #002-7414259-2434446, ordered on September 19, 2002. James Clark didn't place that order; he has no access to the Internet from Texas Death Row.

The trial court and the Texas Court of Criminal Appeals didn't care that prison records showed that James Clark never checked a book out of the general prison library. He had checked a few things out of the prison law library, but nothing out of the prison general library. James Clark had no interest in general reading. His interest is picture magazines. He had 36 magazines in his cell, but the trial court and the Texas Court of Criminal Appeals didn't care, nor did they explain, that the magazines were mostly pictures of cars, motorcycles and girls.

The newspaper clipping was also a gift from a friend. The letters from overseas were from well-meaning anti-death penalty activists worldwide. Also, the trial court and the Texas Court of Criminal Appeals didn’t explain that none of the crossword puzzles were completed and most of the crossword puzzles inventoried from Mr. Clark’s Death Row Prison cell had the answer sheets attached to them. [Ex Parte James Clark, Atkins hearing, Vol. 4, pg. 19, line 14 to pg. 20, line 6.]

Also, the Texas Court of Criminal Appeals didn’t mention that the Texas Dept. of Criminal Justice (TDCJ) employee who testified to authenticate James Clark’s property inventory subsequently committed Violations of The Civil Rights of Person in Custody: "engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual in custody". [See Texas Penal Code § 39.04(a)(2).]

This employee's criminal acts were unrelated to James Clark, but this employee's moral turpitude goes to show a complete absence of integrity and complete lack of credibility. There are also multiple allegations that she stole property from Texas Death Row prisoners.

Of special note, during the whole three-day hearing, James Clark was handcuffed, shackled and forced to wear a stun belt. There's broad consensus that stun belts should never be used on anyone, nevertheless on someone who is mentally retarded. Stun belts shock a person with 50,000 volts of electricity for 8 seconds.

"The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures." [People v. Mar, 28 Cal. 4th 1201 (2002).]

But Judge Gabriel didn't care. When James Clark's attorney asked that the stun belt be removed from Mr. Clark, Judge Gabriel simply said, "That's not my decision to make. " [Ex Parte James Clark, Atkins hearing, Vol. 3, Pg. 9, Ln. 2.] She wanted to leave the decision as to whether James Clark should be forced to wear a stun belt, even though he was already handcuffed and shackled, to the then Denton County Sheriff Weldon Lucas.

NOTE: Weldon Lucas left office as of January 1, 2005. Similar to the election campaign against former Denton County District Attorney Bruce Isaacks, the main campaign promise of current Denton County Sheriff Bennie Parkey was to bring integrity back to the Denton County Sheriff's Office.

However, and although local indictments for bribery, aggravated perjury and abuse of official capacity against Weldon Lucas have been dropped, media reports provide that Lucas is still being investigated by the FBI. He is being accused of taking kickbacks from private vendors, lying about it under oath and having jailees work to help rebuild the church to which he has been a longtime member. [Dallas Morning News newspaper report posted to www.dentonrc.com, 09:11 PM CST on Monday, March 29, 2004.]

The church work may appear charitable, or at least harmless, but it is illegal for private interests (such as Sheriff Lucas's church) to benefit from free jail labor. Jail labor is restricted to approved county government projects.

And this is the sort of man that Judge Gabriel wanted, someone being accused of repeated acts of official misconduct, to decide whether James Clark should be forced to wear a stun belt in court. Judge Gabriel effectively wanted this type of man to decide when and when not to activate a stun belt upon a handcuffed, shackled and mentally retarded man.

Amazingly, on March 3, 2004 the Texas Court of Criminal Appeals accepted Judge Lee Gabriel's finding in an 8-1 ruling. For the purpose of the death penalty, James Lee Clark isn't mentally retarded, so says the Texas Court of Criminal Appeals and the Great State of Texas.

The Texas Court of Criminal Appeals' full written opinion in James Clark's case is available on the link to the left entitled "Texas Court of Criminal Appeals Decision". The Briseno opinion, the first opinion the Texas Court of Criminal Appeals gave on an Atkins claim, is also available on that link.

The Texas Court of Criminal Appeals didn't care that a person with a 65 IQ and three adaptive behavior deficits would otherwise be classified as mentally retarded. Instead, the Texas Court of Criminal Appeals ruled that “[a]lthough experts may offer insightful opinions on the question of whether a particular person meets the psychological diagnostic criteria for mental retardation, the ultimate issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility.”

The Texas Court of Criminal Appeals in effect told every trial judge and every jury in Texas that it's perfectly OK to ignore expert psychological diagnosis in death penalty cases involving mental retardation. In criminal cases in Texas it is either the trial judge or the trial jury that is the "finder of fact". However, in capital cases in which the prosecution is seeking the death penalty, then only the jury may be the "finder of fact".

But Texas' legal treatment of James Clark becomes all the more reprehensible when compared to the Texas legal treatment of former Texas Death Row inmate Robert Smith.

There was evidence that Robert Smith is mentally retarded, so the Harris County presiding trial court convened a hearing to determine whether Robert Smith is in fact mentally retarded. Harris County District Attorney Chuck Rosenthal hired a psychological expert, interestingly it was Dr. George Denkowski, and the defense hired their own psychological expert, Dr. Jerome Brown. [A more detailed analysis than presented here is available on the link to the left entitled "Comparison with Former Texas Death Row Inmate Robert Smith's Case".]

Dr. Denkowki and Dr. Brown thoroughly examined Mr. Smith, and each expert diagnosed Robert Smith as mentally retarded, concurring that Smith has a 63 IQ with two or more adaptive behavior deficits. Dr. Brown used the Wechsler Adult Intelligence Scale-III (WAIS-III) to determine Robert Smith's IQ. The exact same test that Dr. Denkowski used to determine James Clark's IQ, and even though Dr. Denkowski himself didn't perform the WAIS-III on Robert Smith, he concurred with the results after a thorough examination of his own. Dr. Denkowski didn't just chat with Robert Smith for a couple of hours.

Amazingly, all of the government officials involved with Robert Smith's case called for and got an immediate commutation of Mr. Smith's death sentence to life in prison: the prosecutor, the judge, the unanimous membership of the Texas Board of Pardons and Paroles and the Texas Governor. Dr. Denkowski's diagnosis of Robert Smith was given complete credence, if not total deference. And Harris County District Attorney Chuck Rosenthal, the Texas Board of Pardons and Paroles, and Texas Governor Rick Perry have no reputation for kindness or mercy when it comes to the death penalty.

But Denton County District Attorney Bruce Isaacs, Denton County District Judge Lee Gabriel and 8 of the 9 members of the Texas Court of Criminal Appeals treated Dr. Denkowski's diagnosis of James Clark as worthless.

Robert Smith has a tested IQ of 63 with two or more adaptive behavior deficits, and the State of Texas rushed to commute his death sentence to life in prison. James Clark has a tested IQ of 65 with two or more adaptive behavior deficits, and the State of Texas is rushing to have him executed.

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On March 10, 2004 Judge Lee Gabriel signed a court order setting Mr. Clark's execution for April 27, 2004. On April 23, 2004 the U.S. Court of Appeals for the 5th Circuit stayed Mr. Clark's April 27th execution date because there was sufficient evidence that the State of Texas may have misapplied the law. The U.S. Court of Appeals ordered the U.S. District Court to determine whether Texas's denial of Mr. Clark's claim of mental retardation was correct.

On January 20, 2005, without having an evidentiary hearing, the U.S. District Judge David Folsom denied Mr. Clark his claim of mental retardation. [See Memorandum Opinion, Case No. 5:04cv124] On February 4, 2005 James Clark's attorney filed a Motion to Alter or Amend Judgment. On February 16, 2005 that Motion to Alter was denied. However, on March 16, 2005 the U.S. District Judge Folsom did grant Mr. Clark permission to appeal his claim of mental retardation to the U.S. Court of Appeals for the Fifth Circuit. [See Order Granting Application for Certificate of Appealability.]

On July 20, 2006 the U.S. Court of Appeals for the Fifth Circuit affirmed the ruling of the U.S. District Court and ultimately Texas District Judge Lee Gabriel. [See James Lee Clark v. Nathaniel Quarterman, Case No. 05-70008.] On August 2, 2006 James Clark's attorney filed a Petition for Rehearing En Banc, which was denied on August 29, 2006. Thus, and once again, Mr. Clark's claim of mental retardation was denied in spite of the fact that the only two psychologocial experts who thoroughly tested James Lee Clark found him mentally retarded.

On February 26, 2007 the Supreme Court of the United States denied James Clark's Petition for Writ of Certiorari.

On February 28, 2007 Texas District Judge Lee Gabriel signed an Order setting April 11, 2007 for James Clark's execution.

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In brief summary, Texas has a statutory definition of mental retardation. Also, the American Association on Mental Retardation has an accepted standard clinical definition of mental retardation. The 2002 American Association on Mental Retardation's definition of mental retardation was cited by the U.S. Supreme Court in Atkins v. Virginia, and it has clinical national consensus.

Note, Texas's statutory definition for mental retardation was written in 1991, amended in 1993, to be used within the realm of public health. The State of Texas has not yet passed specific legislation to address the requirements of U.S. Supreme Court decision Atkins v. Virginia.

The Texas statutory definition of mental retardation is contained in the Texas Health and Safety Code. It is specifically called the Persons with Mental Retardation Act.

§591.003(1) - "Adaptive behavior" means the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person's age and cultural group.

§591.003(13) - “Mental retardation" means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.

§591.003(16) - "Person with mental retardation" means a person determined by a physician or psychologist licensed in this state or certified by the [Texas Dept. of Mental Health and Mental Retardation] to have subaverage general intellectual functioning with deficits in adaptive behavior.

§591.003(20) - "Subaverage general intellectual functioning" refers to measured intelligence on standardized psychometric instruments of two or more standard deviations below the age-group mean for the tests used.

The American Association on Mental Retardation’s 1992 definition of mental retardation is mentioned in Atkins v. Virginia: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18."

However, in 2002 the American Association on Mental Retardation refined and enhanced their definition: “Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.” Coupled with this definition are “Five Assumptions Essential to the Application of the Definition: 1) Limitations in present functioning must be considered within the context of community environments typical of the individual's age peers and culture; 2) Valid assessment considers cultural and linguistic diversity as well as differences in communication, sensory, motor, and behavioral factors; 3) Within an individual, limitations often coexist with strengths; 4) An important purpose of describing limitations is to develop a profile of needed supports; 5) With appropriate personalized supports over a sustained period, the life functioning of the person with mental retardation generally will improve.”

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Even though trial judge Lee Gabriel and an 8-1 majority of the Texas Court of Criminal Appeals used the Texas Persons with Mental Retardation Act to define mental retardation in James Clark's case, they conveniently ignored §591.003(16) of that Act, the very definition of a "person with mental retardation".

And the reason is that James Clark satisfies the statutory definition of a "person with mental retardation". That definition is "a person determined by a physician or psychologist licensed in this state or certified by the [Texas Dept. of Mental Health and Mental Retardation] to have subaverage general intellectual functioning with deficits in adaptive behavior."

Dr. George Denkowski is a licensed psychologist in Texas. Dr. Denkowski determined by thorough standardized examination that James Clark has subaverage general intellectual functioning with deficits in adaptive behavior. Thus, by Texas law James Clark is a "person with mental retardation".

Judge Lee Gabriel and the Texas Court of Criminal Appeals can't pick and choose what parts of the Texas Persons with Mental Retardation Act that they want to use and what parts of the Texas Persons with Mental Retardation Act that they want to ignore. That's called a violation of due process and a denial of equal protection under the law.

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Separately, but just as importantly, James Clark has other important issues. There is, briefly,

A Wiggins Claim: In Wiggins v. Smith (2003) the U.S. Supreme Court ruled that during the penalty phase of a capital trial the defendant's legal counsel must perform a reasonably thorough investigation before deciding a defense strategy. Anything less is an unconstitutional deprivation of the right to effective assistance of counsel.

In James Clark's original trial his defense attorneys -- Richard Podgorski and Henry Paine -- made no opening arguments, called no witnesses for the guilt-innocence or for the punishment phases of the trial. During their investigation of James Clark's background there's no evidence that either Podgorski or Paine tried to contact James Clark's mother, his brothers, his stepfather, any of his elementary school teachers or his middle school teachers, etc. [A more detailed analysis than presented here is available on the link to the left entitled "Claim Under Wiggins v. Smith, 2003".]

This is information from Ward Larkin and can be read here :

http://www.adelante.com/clark/index.html