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August 6, 2012

Will Texas go forward with scheduled execution of inmate with recorded IQ of 61?

Last month, Georgia was poised to execute Warren Hill, who has a pretty strong claim that he is mentally retarded and thus ineligible for execution under the Supreme Court's 2002 Atkins ruling.  That execution was ultimately stayed based on concerns about Georgia's lethal injection protocols (some blog reporting on the case can be found here and here and here).  Now, as reported in this detailed article, Texas is the state seemingly ready to execute a condemned defendant  who who has a pretty strong claim that he is mentally retarded.  Here are the basics:

Death row inmate Marvin Wilson's attorneys petitioned the U.S. Supreme Court to stay his execution, set for Tuesday, arguing the convict's date with a lethal injection runs contrary to a 2002 ruling by the nation's highest court.  The catch, and what Wilson's lawyers hope will spare his life, remains his I.Q. of 61 coupled with a medical diagnosis of mental retardation.

Texas' counter?  Wilson is wholly dissimilar to a fictional character created by novelist John Steinbeck.

The 54-year-old was convicted in 1992 of murdering a police drug informant.  His planned execution is becoming another linchpin in the exhaustive battle over capital punishment, this time calling into question who or what exactly determines "mental retardation."...

The [Supreme Court's Atkins] decision lacked a formal definition for "mentally retarded," which the Supreme Court intentionally ignored to avoid codifying a means to test mental retardation.  "The Supreme Court doesn't like to micromanage," said Richard Deiter, Executive Director of the Death Penalty Information Center.  "Still, it's not a blanket recipe for 'do anything want.'"...

The Texas Court of Criminal Appeals ... used the absence of strict orders as license to set a threshold which ignores recognized medical testing; ... it concocted seven criteria called "Briseno factors," which were based upon the character Lennie Small from Steinbeck's novel Of Mice And Men.  In short, the measuring stick allows executions to be carried out if a judge determines the crime was complex enough to require forethought, planning and intricate execution.  Wilson met all the criteria....

During his stint in prison, Wilson was subjected to a battery of tests to determine the borders of his mental limitations, including a 2004 report by Dr. Donald Trahan with the Center for Behavioral Studies in Texas.  "It is evident that the deficiencies in general intelligence and adaptive behavior have been present since early childhood and well before the age of 18," Trahan wrote.  "My evaluation of Mr. Marvin Lee Wilson reveals that he does meet the criteria for a diagnosis of mild mental retardation."

His ultimate medical I.Q. of 61 puts him in the lowest percentile of the population, with the literacy level of a 7-year-old.  "If Wilson is executed on Tuesday, Texas will be rendering the US supreme court's Eighth Amendment prohibition on the execution of mentally retarded prisoners a prohibition in name only," said Lee Kovarsky, Wilson's lawyer...

Several factors could change Wilson's fate over the next 24 hours.  The Supreme Court could offer a stay of execution, a lower court could push back as well.  Texas Gov. Rick Perry could also intervene -- though the prospect remains unlikely.  He vetoed a bill that would have banned the execution of mentally retarded inmates, as well as defined the term, in 2009.

August 6, 2012 at 03:02 PM | Permalink


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That who is crazy may ask to be exempted from the death penalty, but that who asks to be exempted from the death penalty is not crazy

Posted by: Claudio Giusti | Aug 6, 2012 3:19:11 PM

The circumstances of a crime certainly can be weighed in evaluating an MR claim--that seems to have been done here. What's the issue?

Posted by: federalist | Aug 6, 2012 6:27:54 PM

|| His ultimate medical I.Q. of 61 puts him in the lowest percentile of the population, with the literacy level of a 7-year-old. ||

We have inmates here with the "literacy level of a 7-year-old", so we should give them jail time credits.
|| || ||

Certainly a stupid murderer can't be punished for his murder to the same extent as a brilliant murderer because he doesn't appreciate how murderous his murder was to the same extent.
|| || ||

|| The Texas Court of Criminal Appeals ... determine[d] the crime was complex enough to require forethought, planning and intricate execution. Wilson met all the criteria.... ||

forethought, smorethought...He's just not as culpable. Only the most barbaric state in the most barbarous country would make such a rational decision--like executing deliberate murderers.

Posted by: Adamakis | Aug 7, 2012 10:18:16 AM

If he took the IQ test after being sentenced to death, and after the Atkins decision was handed down, then there was clearly a huge incentive for him to purposely botch the test.

Posted by: alpino | Aug 7, 2012 10:29:04 AM


I would even have to wonder if the tests given were designed to produce such an outcome. Certainly the name "Center for Behavioral Studies" does not inspire me with a great deal of confidence on that point.

Posted by: Soronel Haetir | Aug 7, 2012 1:31:56 PM

Kent Scheidegger puts the lie to this story in his posting here, http://www.crimeandconsequences.com/crimblog/2012/08/executing-supposedly-but-not-r.html#more

The deceptiveness of the story as stated here is astounding. For one thing, the 61 score was one of five. The four others, two before Atkins and two after, ALL showed scores above 70. And for the one test below, the person administering it admitted that no steps were taken to counteract or even detect malingering, which (obviously) Wilson had a strong incentive to do.

When you don't have an honest case against execution, the answer from abolitionists appears to be at the ready: use a dishonest one. And these are the people who give the rest of us lectures about morality.


Posted by: Bill Otis | Aug 7, 2012 3:42:51 PM

The susceptibility of IQ tests to inmates intentionally flunking them has never been fully explored. It would, however, explain the anomalously large number of inmates convicted of premeditated crimes than now claim to have the minds of children.

Posted by: MikeinCT | Aug 7, 2012 5:15:46 PM

The person here was executed.

A court-appointed, board certified neuropsychologist with 22 years of clinical experience as an Mental Retardation specialist provided the report that is referenced by various people with the low score.


Though I wouldn't know it from KS' analysis, the report discusses each of the five tests cited. No need to cite the court opinion here. The report noted that "I saw no evidence of malingering or inadequate effort-on Mr. Wilson's part during the course of testing." The CA5 cites some evidence contrary to this so it is unclear what the truth is there.

There is sometimes a fear that -- though we are talking experts in the field here -- that crafty people will "malinger" and trick the experts. Like professors catching plagiarists, however, twenty year experts in the field are well aware of such things. Anyway, as the report notes, the analysis was not just the result of some testing that can be thrown but "based upon the sum of all information received and reviewed up to this point in time."

Anyway, as noted, the report discusses each of the five tests and determines [again as a court appointed expert, not merely one sought out by the defense as an outlier that supports their case] that the "61" was the result of the most accurate test used. I'm sure this is debatable but it is not a matter of being immoral to accept it as reasonable and oppose the death penalty here -- not necessarily in each case but at least here -- based at least partially on it.

It's academic in the sense that he was executed.

Posted by: Joe | Aug 7, 2012 11:41:38 PM

Oh, the OP notes "a pretty strong claim that he is mentally retarded" appears to be present. The OP is written not by an "abolitionist" but someone who has noted he supports the DP in various cases. Apparently, some think he is misinformed here or perhaps naive, since he thinks there is a "pretty strong claim" present.

I don't claim any special knowledge here & am less inclined to be as strongly assured about things as some who I tend to agree with on the death penalty generally, but there seems to be some slanted analysis on both sides of this cause.

Posted by: Joe | Aug 7, 2012 11:47:44 PM

Joe writes, "The report noted that 'I saw no evidence of malingering or inadequate effort-on Mr. Wilson's part during the course of testing.'"

Trahan did not personally conduct the test on which Wilson scored 61, so he wasn't in a position to observe inadequate effort.

The main point here is that this case is being misrepresented in the press as a case of clear retardation. If fact, whether Wilson was or was not retarded was highly debatable, and the claim was fully litigated and fairly considered.

Posted by: Kent Scheidegger | Aug 8, 2012 12:24:52 AM

The weight of the evidence was that Wilson was competent. As Kent notes, this was concealed in the article which started off this entry. That is dishonest, there's just no other way to put it.

Think about it. If the government had done five tests, four of them were below 70, one was above, and the government spokesman went public only with the one favorable to the prosecution, the defense bar would be screaming with a decibel level that could be heard on Mars.

Finally, I would note that the crime -- offing an informant -- is not the act of a retarded mind. If you're a criminal, it's good for business. It does, after all, send a message to those who might be thinking of cooperating with the cops, which complicates your supply and demand. It's hardly retardation to be protecting your profit margin.

Posted by: Bill Otis | Aug 8, 2012 8:06:41 AM

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