USA (Texas) James Lee Clark (m), white, aged 38

05 April 2007
UA 80/07 Death penalty / Legal concern

USA (Texas) James Lee Clark (m), white, aged 38

James Clark is scheduled to be executed in Texas on 11 April
2007. He was sentenced to death in May 1994 for the rape and
murder of 17-year-old Shari Catherine Crews in June 1993.

James Clark's clemency petition seeks commutation of his
death sentence to life imprisonment on the grounds that he
has mental retardation. In 2002, in Atkins v Virginia, the
US Supreme Court outlawed the execution of people with
retardation. The Court did not define retardation, although
it pointed to the definition used by the American
Association of Mental Retardation (AAMR). Under such a
definition, mental retardation is a disability, manifested
before the age of 18, characterized by significantly sub-
average intellectual functioning (generally indicated by an
IQ of less than 70) accompanied by limitations in two or
more adaptive skill areas such as communication, self-care,
work, and functioning in the community. The Supreme Court
noted that ''not all people who claim to be mentally
retarded will be so impaired as to fall within the range of
mentally retarded offenders about whom there is a national
consensus.'' The Court left it up to individual states to
develop ''appropriate ways'' to comply with the ruling. This
opened the door to further inconsistency in the application
of the death penalty in the USA.

In an assessment in April 2003, clinical psychologist Dr
George Denkowski, hired by the state, concluded that James
Clark had retardation – he assessed Clark's IQ at 65 and
concluded that he had adaptive skill deficits in three areas
(health and safety, social, and work). This was the fifth
post-Atkins case that Dr Denkowski had worked on – in one
other case he found that the defendant had mental
retardation, in the other three he concluded that they did
not have this level of impairment. Dr Denkowski found that
Robert Smith had mental retardation, and an IQ of 63. The
Harris County prosecutor accepted this, citing Denkowski's
expertise, and Smith's death sentence was commuted. In 2006
and 2007 Dr Denowski found that death row inmates Darrell
Carr, Demetrius Simms, and Exzavier Stevenson had mental
retardation. In each case, the Harris County prosecutor
accepted Dr Denkowski's finding and the death sentences were
commuted. In two other Harris County cases, those of Coy
Wesbrook in 2006 and Brian Davis in 2004, Dr Denkowski
concluded that the inmate did not have retardation. They
remain on death row.

In James Clark's case, the Denton County prosecution did not
accept Dr Denkowski's finding of retardation. Instead it
hired another psychologist, Dr Thomas Allen. He concluded
that Clark was faking retardation to avoid execution. The
defense had an assessment done by Dr Denis Keyes, an expert
whose studies were among those cited in the Atkins ruling.
Dr Keyes concluded that James Clark has retardation (and an
IQ of 68). He noted that Dr Denkowski's findings in Clark's
case were ''credible and correct''. In contrast to this, Dr
Keyes noted that Dr Allen ''did no standardized testing
(which is required for diagnosis and for ruling out a
diagnosis).'' Neither Dr Keyes nor Dr Denkowski found that
James Clark had faked his mental retardation during their
assessments, something that these experts specifically
tested for.

An evidentiary hearing was held in the trial court in 2003,
during which James Clark was shackled, handcuffed and forced
to wear an electro-shock stun belt. When his lawyer asked
for the stun belt to be removed, the judge refused. The
judge deferred to Dr Allen's conclusions, rejecting those of
Drs Keyes and Denkowski. She held that an IQ score of 74
that Clark achieved in 1983 in youth custody was ''the most
reliable indicator'' of his IQ because he then had no reason
to fake retardation, whereas a finding now would determine
whether he was executed or not. The judge ruled that the
1983 score did not meet the AAMR's first criterion (IQ 70 or
under) of mental retardation, even though with the generally
accepted margin of error, a score of 74 falls within the
range of 69-79. In addition, Dr James Flynn, an expert on
assessing IQ scores to take account of changes over time,
has concluded that ''the best estimate'' of James Clark's
1983 score in terms of up-to-date norms would be about 68.57
(that is, very similar to Dr Keyes' finding), and ''it is
almost certain that [Clark's IQ] is not 70 or above''. In
another post-Atkins case in 2006, the importance of the so-
called ''Flynn effect'' and the margin of error was
recognized by the Texas Court of Criminal Appeals (TCCA),
when it remanded a case of an inmate with an IQ assessed at
81 to the trial court level for further evidentiary
development on the retardation question.

In March 2004 in James Clark's case, the TCCA upheld the
trial judge's findings. Without holding any further
evidentiary hearings, the federal courts have upheld the
death sentence, with the Supreme Court refusing to take the
case in February 2007.

BACKGROUND INFORMATION
Nearly five years on, the Texas legislature has not enacted
a law to comply with the Atkins ruling. In the absence of
legislation, the TCCA has taken it upon itself to issue
guidelines for trial courts in making retardation
determinations. In February 2004, the TCCA wrote: ''The
Texas legislature has not yet enacted legislation to carry
out the Atkins mandate… [W]e must act during this
legislative interregnum to provide the bench and bar with
temporary judicial guidelines in addressing Atkins claims''.
It asked: ''Is there, and should there be, a 'mental
retardation' bright-line exemption from our state's maximum
statutory punishment?... [W]e decline to answer that
normative question without significantly greater assistance
from the citizenry acting through its Legislature''. In
February 2007, the TCCA emphasised that its 2004 guidelines
''were intended only to be guidelines for trial courts to
work with until the Legislature was to reconvene and
establish conclusively both the substantive laws and the
procedures that would bring our codes into compliance with
the mandate issued by Atkins. Yet to this day, no such
guidance has been provided by the Legislature.''

Amnesty International opposes the death penalty in all
cases, unconditionally. Today, 128 countries are
abolitionist in law or practice. In contrast, there have
been 1,069 executions in the USA since it resumed judicial
killing in 1977, of which 390 (37 per cent) have been
carried out in Texas. Eleven of the 12 executions in the USA
so far in 2007 have been carried out in Texas. One hundred
and fifty-one people have been put to death in Texas since
Rick Perry became governor in 2001. The five-year
governorship of his predecessor, George W. Bush, saw 152
executions. There are 385 men and women on death row in
Texas.

RECOMMENDED ACTION: Please send appeals to arrive as quickly
as possible in your own words (please include James Clark's
inmate number, #999095):
- expressing sympathy for the family of Shari Catherine
Crews, and explaining that you are not seeking to condone
the manner of her death or to deny the suffering caused;
- noting that two experts, including Dr George Denkowski
hired by the state in a number of other cases in which his
assessments for and against findings of retardation have
been accepted, concluded that James Clark has mental
retardation, and should be exempted from execution under the
Atkins v Virginia decision;
- noting that these experts conducted thorough assessments,
and ruled out malingering;
- expressing concern that Texas has still not enacted
legislation to comply with the Atkins ruling, and decisions
on mental retardation are being made on the basis of
''temporary judicial guidelines'' formulated by the Texas
Court of Criminal Appeals, which has expressed concern at
the lack of legislative guidance;
- noting that assessing mental retardation is not an exact
science, and that in this regard, executive clemency is an
important failsafe against error and inconsistency,
especially in the absence of legislation;
- calling for the clemency for James Clark.



APPEALS TO:
Rissie Owens, Presiding Officer,
Board of Pardons and Paroles,
Executive Clemency Section
8610 Shoal Creek Boulevard, Austin, TX 78757
Fax: 1 512 463 812
Salutation: Dear Ms Owens

Governor Rick Perry, Office of the Governor
P.O. Box 12428, Austin, Texas 78711-2428
Fax: 1 512 463 1849
Salutation: Dear Governor


PLEASE SEND APPEALS IMMEDIATELY.

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