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June 8, 2006

Modern capital concerns in scheduled Virginia execution

As detailed in this Washington Post article, some of the latest modern concerns about the death penalty surround an execution scheduled for Thursday in Virginia.  According to the Post story, there is broad agreement that death-row inmate Percy Levar Walton "is mentally retarded and schizophrenic," and mental illness issues have now dovetailed with a challenge to the lethal injection protocol. 

But, as detailed in this AP story, the latest lethal injection scrummage has not (yet) stopped Virginia's execution plans:

A federal appeals court on Wednesday overturned a lower court's decision to temporarily halt the execution of a triple killer a day before he was scheduled to die.  Earlier in the day, a federal judge said authorities should wait until the U.S. Supreme Court rules in a separate case that challenges the way states execute killers....

U.S. District Judge Rebecca Beach Smith said she had based her ruling Wednesday on the Supreme Court case and on arguments by Percy Walton's attorneys that Virginia's protocols surrounding lethal injection are unconstitutional.  But the 4th U.S. Circuit Court of Appeals ruled to overturn Smith's decision, allowing Virginia to move forward with Walton's death sentence according to a spokesman for the attorney general's office.

It will be interesting to see if SCOTUS or Virginia's new governor might step in on Thursday before Walton's scheduled evening execution.

June 8, 2006 at 03:15 AM | Permalink

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I was puzzled by the statement in the story that "experts agree [Walton] is mentally retarded and schizophrenic...." Although schizophrenia does not necessarily equate to incompetence to be executed, retardation is a categorical bar. If the experts are all agreed he is retarded, why doesn't the state stipulate to relief and why doesn't the court order it, stipulated or not? Well, let's look at the opinion.

http://pacer.ca4.uscourts.gov/opinion.pdf/0419A.P.pdf

It turns out (pp. 5-9), the two sides' experts had quite different views of Walton's mental condition. The state's expert testified he is not schizophrenic.

"After hearing the divergent testimony regarding Walton’s mental competence, the district court decided to appoint a neutral expert to interview Walton and assess his mental condition. The district court attempted to obtain an expert agreeable to both sides by having each side appoint a psychiatrist who in turn advised the court on suitable neutral candidates. These two psychiatrists ultimately recommended Dr. Mark Mills, a highly qualified forensic psychiatrist, and the district court adopted their recommendation. Virginia later objected to the appointment of Dr. Mills after coming to believe that he could not be neutral because of his personal opposition to the death penalty. Virginia also noted that Walton’s counsel had previously retained Dr. Mills in another similar death penalty case....

"After Dr. Mills interviewed Walton and submitted his report, the district court held a second evidentiary hearing. At the hearing, Dr. Mills testified that he found Walton to be 'odd,' of low intelligence but not mentally retarded, and probably suffering from a significant psychiatric disorder, quite possibly schizophrenia. According to Dr. Mills, a person suffering from schizophrenia can, nevertheless, be 'competent to stand trial, competent to make a will, [and] competent to be executed.'

"5. Dr. Mills did not definitively diagnose Walton’s psychiatric disorder because making such a diagnosis was not within the scope of the district court’s instruction to him. However, Dr. Mills stated that he did not believe that making a diagnosis was necessary to answer the court’s questions, because making such a diagnosis and determining competency are two separate issues that must be assessed differently."

So the statement that the experts are agreed he is schizophrenic is false. The prosecution expert says he is not, and the neutral expert doesn't know.

On retardation, at note 21, the opinion says, "Nevertheless, Drs. Pandurangi and Gur [the defense experts] have never opined that Walton is mentally retarded." At note 24, the opinion says, "In addition, Dr. Mills testified that Walton is not mentally retarded and that he would estimate Walton’s IQ at around 80. Also, although Dr. General initially thought that Walton appeared to be mentally retarded, she later opined that Walton is not mentally retarded."

Dr. Mills, again, is the neutral expert appointed with the approval of Walton's counsel. Dr. General is an expert they called as a witness. The statement that the experts are agreed Walton is retarded is also false.

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