IQ debate unsettled in death penalty cases

Five years after the Supreme Court declared in Atkins vs. Virginia that the death penalty was unconstitutional for those who are mentally retarded, Daryl Atkins still sits on death row.

In August, lawyers for the man who won the landmark ruling will try again to convince a jury here that he is indeed mentally retarded and therefore deserves a life term in prison, not execution.

Three times before, the county prosecutor has persuaded juries here to condemn Atkins to die, and she expects to win a fourth time as well. “Daryl was a slow reader. He was lazy, and he came to school stoned. But until he committed this murder, no one thought he was mentally retarded,” said Eileen M. Addison, the prosecutor.

His case is not unique. Though the high court found that there was a “national consensus” against executing the mentally retarded, it left it to the states to decide which murderers would qualify for that exemption.

Determined prosecutors have had little trouble convincing juries that a convicted killer with a low IQ is not necessarily retarded. The definition of retardation is imprecise; test results can vary, giving prosecutors an opportunity to produce additional scores and other evidence to make the case that an inmate is actually smart enough to die.

The result is that the Supreme Court’s ruling has had less effect than many had foreseen.

“There has been more resistance than I expected,” said University of New Mexico law professor James Ellis, an expert on mental retardation who represented Atkins before the Supreme Court.

A few states moved off of death row several inmates who had IQ scores in the 60s or low 70s, he said. But states where capital punishment has strong support, including Virginia and Texas, have let juries decide. And “it’s an uphill fight with the jury” to establish mental retardation, Ellis said.

In 2002, he told the high court there were no reliable numbers on how many of the nation’s more than 3,000 death row inmates were mentally retarded. Some experts predicted several dozen inmates would qualify for the exemption. Human Rights Watch said the number could be as high as 300.

Since then, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, only a handful of inmates that he knows of have been found to be mentally retarded and had their death sentences commuted.

The Atkins decision “has had an effect, but not a sweeping effect,” said Dieter, whose center opposes capital punishment. “His case is emblematic because in a lot of states, it has resulted in case-by-case litigation.”

California has the largest death row population, 660 inmates. “We have not seen a substantial impact,” said Dane Gillette, the state coordinator for capital punishment. “We anticipated some would claim to be retarded, and it has been raised in a handful of cases. But it has not yet resulted in a determination of retardation” requiring that the inmate be removed from death row, he said.

The greatest effect of the court’s ruling may have been in cases that followed. Some prosecutors probably chose not to seek the death penalty when a murder suspect had low IQ scores, legal experts said.

Before the Atkins decision, the Supreme Court’s major rulings on mental retardation came in the case of Johnny Paul Penry, a Texas murderer who was said to have the mental age of a 6 1/2 -year-old.

In 1979, at age 22, he raped a woman and stabbed her to death with a pair of scissors. He confessed and was sentenced to death. The fact that he could not read or write or name all of the days of the week made little impact.

But when his execution drew near, the high court in 1989 and again in 2001 overturned his death sentence on the grounds that Texas law had wrongly prevented jurors from fully weighing his mental disability as a reason for leniency.

Nonetheless, Penry sits on death row in Texas. In the fall, he will go before a jury for a fourth time. As with Atkins, this trial will focus exclusively on whether he is retarded.

Polk County prosecutor Lee Hon also expects to prevail again.

“Penry is a not-too-bright, sexually violent predator,” Hon said. “It’s true he never made it out of first grade. He was educationally deprived. But when he got into the Texas prison system, he began to achieve a lot. He learned to read and write. He had a calculator in his cell. We had a lot of testimony to that effect.”

The brutal murder of the 22-year-old woman still hangs over the case, said John Wright, Penry’s lawyer. “We offered a deal that would keep him in prison for life, but they won’t take it,” Wright said. “The prosecutors are bound and determined to kill him.”

Historically, the law has exempted from criminal punishment people who are mentally ill. If they were disturbed or delusional when they committed the crime, they presumably could not understand the consequences of their acts and therefore would not be considered legally responsible.

People with mild mental retardation are judged to be competent to stand trial. They presumably understand when they have done wrong. They “should be tried and punished when they commit crimes,” Justice John Paul Stevens said in the Atkins decision. “Because of their disabilities in areas of reasoning, judgment and control of their impulses, however, they do not act with the level of moral culpability” that puts them among the small group of the worst offenders who deserve to die.

The Atkins case shows the difficulty of deciding whether a criminal is mentally retarded: a condition that Stevens, quoting the American Assn. on Mental Retardation, defined in part as “significantly subaverage intellectual functioning” -- measured, perhaps, by an IQ of 70 or below -- and difficulty in adapting to the ordinary tasks of life.

By August of 1996, Atkins, then 19, had a long criminal record, including the shooting and wounding of a woman in her frontyard in Hampton, Va.

Late one evening, he and a friend were “panhandling” for beer money at a convenience store when Atkins put a gun to the head of Eric Nesbitt, a 21-year-old airman stationed at the nearby Langley Air Force Base.

They forced their way into Nesbitt’s truck and made him drive to a bank and take $200 from an automated teller machine. The scene was captured on camera: the frightened young airman with Atkins holding a gun to his head. Next, the criminal pair drove him to a thickly wooded area near Yorktown, where Atkins took Nesbitt from the truck and shot him eight times.

He was tried at the York County Courthouse about four miles from the murder scene. A psychologist hired by the defense interviewed Atkins in jail and gave him a standard intelligence test, and said his IQ was 59.

The psychologist testified Atkins was “mildly mentally retarded.” The jury unanimously sentenced him to death. The Virginia Supreme Court reversed this sentence because of a technical error on the jury form; a new jury was convened and also voted for a death sentence.

The case was appealed to the Supreme Court in 2001, and the 6-3 decision in Atkins’ favor put his name into constitutional history. In dissent, Justice Antonin Scalia said the ruling would turn the “process of capital trial into a game” and that “the symptoms of this condition can readily be feigned.”

Scalia’s prediction was borne out in part. The prosecution and defense hired dueling psychologists to testify that Atkins was or was not mentally retarded. The defense appeared to have more trouble.

The psychologist who had first described Atkins as mentally retarded reevaluated and retested him two years ago and scored his IQ at 74, slightly above the cutoff for retardation.

On the witness stand, the psychologist explained that IQ scores could fluctuate and that Atkins’ exposure to a team of lawyers and psychologists probably helped to raise his intelligence score. “We have an individual who is in much better intellectual shape now ... ironically due to the stimulation he had received while in confinement,” Evan Nelson told the jurors.

If Atkins was trying to feign retardation, he did a poor job. He correctly answered a series of questions about history and culture. He knew that “Abe Lincoln” was president during the Civil War, that the physicist known for the theory of relativity was “Einstein,” and that the artist who painted the Sistine Chapel was “Michelangelo.” When another psychologist asked him whether he had had relationships with more than one woman, Atkins asked: “Like a menage a trois?”

Addison, the prosecutor, also poked holes in the 59 IQ score. The psychologist had said Atkins answered incorrectly when asked to identify Martin Luther King Jr. -- “Preacher,” Atkins had replied. “For civil rights.” The psychologist was hard-pressed to explain why that had been considered wrong.

Ellis, the law professor from New Mexico, interviewed Atkins before the Supreme Court hearing. “I thought he was a good example. His testing was clearly in the range of mental retardation. And his life showed a lot of problems with adaptive behavior. He didn’t drive a car because he couldn’t pass the written exam.”

Teachers testified he had difficulty in school and was held back a grade. One example was repeated: When he copied a friend’s homework paper in eighth grade, he also copied the friend’s name at the top.

Ellis worries that jurors may look for a sign that the defendant is different. “They may be looking for a physical manifestation of Down’s syndrome. That’s the stereotype,” he said.

Defense lawyers also say they are stymied by the need to prove the defendant is mentally retarded. “We think that is the wrong test,” said attorney Richard Burr, a veteran opponent of capital punishment. “We think the state should have the burden of proving the defendant does not have mental retardation.”

In 2005, 12 jurors agreed with Atkins’ prosecutors and said he did not qualify as retarded. A year later, however, the Virginia Supreme Court said the judge had erred by informing jurors that Atkins had been sentenced to death previously.

This decision set the stage for still another trial this summer in the same courthouse.

“It’s been five years, but this issue is far from being resolved,” said Dieter of the Death Penalty Center. “It’s been a battle of wills, and no one is conceding.”

david.savage@latimes.com