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May 13, 2014

Fifth Circuit panel grants last-minute capital stay due to key IQ evidence hidden by Texas prosecutors

As reported in this AP article, headlined "Court halts execution over mental health claims," the Fifth Circuit "halted a convicted Texas killer's scheduled execution Tuesday so his attorneys can pursue appeals arguing he's mentally impaired." The reason this is coming up in this way now, as the Fifth Circuit explain in In re Campbell, No. 14-20293 (5th Cir. May 13, 2014) (available here) is because Texas prosecutors hid key IQ evidence from the defense for a decade. Here is how the Campbell opinion starts and a key paragraphs from its closing pages:

Robert James Campbell, a death-row prisoner whose execution is scheduled for Tuesday, May 13, 2014, contends that he is intellectually disabled (formerly called “mentally retarded”) and is, therefore, constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).  He has filed with this court a motion for authorization to file a successive federal habeas corpus petition asserting his Atkins claim and a motion for stay of execution pending the resolution of that claim. For the reasons that follow, we grant both motions....

The evidence presented by Campbell at this stage indicates that, in 2003, the District Attorney’s office had in its possession evidence reflecting Campbell’s IQ score of 68, yet the State opposed Campbell’s 2003 motion to authorize a successive habeas claim based on Atkins on the basis that the “sparse” school records failed to establish intellectual disability.  The State also asserted that there was no “credible evidence” of intellectual disability.  Also in 2003, Campbell sought funds for intellectual-function testing, which the State opposed even though the District Attorney had evidence of the IQ score of 68.

Moreover, according to Campbell, the Texas Department of Criminal Justice informed Campbell’s prior attorney that, during Campbell’s earlier robbery incarceration, he received an IQ test result of 84.  As Campbell now argues, that was not true and contrary to the actual evidence.  It is not facially unreasonable that Campbell’s prior attorney relied upon the department’s statement and was persuaded that it was fruitless to pursue this claim further.  Indeed, as Judge Alcala of the Texas Court of Criminal Appeals stated in her dissent, “it would be unjust to penalize an applicant for not uncovering such a falsehood previously when he had no basis to believe that a falsehood had been conveyed to him.”...

It is regrettable that we are now reviewing evidence of intellectual disability at the eleventh hour before Campbell’s scheduled execution.  However, from the record before us, it appears that we cannot fault Campbell or his attorneys, present or past, for the delay.  According to Campbell, in the period immediately after Atkins was decided, his attorney diligently searched for evidence of intellectual disability.  And, when the Texas Department of Criminal Justice failed to turn over the results of the intelligence test they had administered on Campbell upon the attorney’s request for “any and all intellectual functioning tests,” the State gave the attorney incorrect and incomplete information. Thus, although the delay is regrettable, we do not see it as militating against a stay of execution in this case

May 13, 2014 at 08:20 PM | Permalink


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I would assert a defense of estoppel. The state is estopped to deny his mental retardation due to their conduct in destroying and hiding evidence. Estoppel by conduct. If 68 IQ is low enough to get him removed from death row then the state is estopped from denying that this is indeed his IQ number. Parties, including the Great State of Texas must be subject to the doctrine of estoppel. In this case, estoppel by conduct. There are other varieties, by deed (as in a real estate deed of conveyance), by judgment (as in a prior judgment adjudicating same issues). Any other folks out there have views on this topic?

Posted by: Liberty1st | May 14, 2014 12:55:32 AM

Another example of the prosecutors hiding evidence favorable to the defense. Shame on them. And people wonder why support for the death penalty continues to decline.

Posted by: 20 23682564 | May 14, 2014 9:26:00 AM

The Texas prosecutor in this case is like the Texas prosecutor in the case of Michael Morton. Misplaced and misguided zeal leads to the suppression of favorable evidence from the defense. Just as the Morton prosecutor was sanctioned, so should the prosecutor here.

Posted by: Michael R. Levine | May 14, 2014 10:58:55 AM

Compare the prosecutor in the "Bernie" murder case.

Posted by: Joe | May 14, 2014 11:39:18 AM

so in English the Great State of Texas lied though it's teeth. Hid Evidence and committed Fraud and Purjery7 to the court!

So why is this man still in prison. Sorry the liers in the criminal state of texas has forfeited any right to do shit to this individual except write a check with lots of zero's

as for the gov't criminals who did it. They are now legal targets for anyone who want's to remove their criminal asses from this world.

Posted by: rodsmith | May 14, 2014 1:40:58 PM

“ Moreover, according to Campbell, the … IQ test result of 84. As Campbell now argues, that was not true and contrary to the actual evidence.”
  You dupes can simply buy what cunning Campbell sells, uncritically .. 
   OR 
consider how “▼intellectually disabled▼" was the object of your protection whilst planning and conducting his crimes, i.e. murderer/kidnapper/rapist R.J. Campbell:

• Campbell and his accomplice, Leroy Lewis, abducted the young Bank One teller as she fueled her car … The men drove her to a muddy field
in the 9700 block of Knight Road, where she was sexually assaulted and ordered to run.
• Campbell, [on parole] after serving 4 months of a 5-year sentence for two robberies, fired a shot at Rendon's head - and missed.
The second shot slammed into the woman's back with deadly effect.

'Boasted to friends':
• Campbell's friends later told authorities he had boasted of the crime.
• Police recovered Rendon's coat from Campbell's mother; her watch and high school class ring from the killer's girlfriend.

• The attack on the diminutive [tiny] Rendon was so brutal that even death penalty foes say they appreciate … Rendon was planning to marry
in April, and the family was busy making preparations.
• "She always said she couldn't wait to get us the invitations," Rendon … was buried in her wedding gown ...

'Another Abduction by Campbell':
• As Rendon's family members searched for the missing woman, court documents indicate, Campbell and a companion abducted a woman [another]
and her 8-year-old son
from the parking lot of toy store. Campbell drove the pair to an isolated field in southwest Houston, ▼ intending to fatally shoot
the woman and ▼ drown her son in a lake. Campbell abandoned the plan, leaving them at the site bound with shoe strings, after his partner pleaded
that their lives be spared.

'Beyond words'
• David Atwood, founder of the Texas Coalition to Abolish the Death Penalty, described the crime as "beyond words"
• "But he showed no mercy ... no remorse. He's an animal." -- Houston trial lawyer Israel Santana
• "The rape and murder of Alexandra Rendon was particularly heinous," said Josh Reiss a lawyer with the Harris County District Attorney's post-conviction
writ division. "It is safe to say that Robert James Campbell preyed on the most vulnerable members of society."

'A calming way'
Campbell declined to be interviewed for this article, but death penalty opponent Angie Agapetus, a member of the anti-death penalty coalition who has visited him
on death row since 2008, described him as "pretty calm and centered."

| Family of slain bank teller awaits killer's execution - and hopes for 'closure' | By Allan Turner | May 4, 2014 | Copy shot of Alexandra Rendon, 20, a bank teller who went missing Jan. 3, 1991. www.houstonchronicle.com/news/houston-texas/houston/article/Family-of-slain-bank-teller-awaits-killer-s-5452698.php

Posted by: Adamakis | May 14, 2014 2:28:18 PM

Well after reading the comment by Adamakis I now say kill all those who have an IQ below 65. "Three generations of imbeciles are enough." Buck v. Bell, Justice Holmes.

Posted by: Liberty1st | May 14, 2014 3:17:49 PM

This history of Buck vs. Bell, is from Wikipedia:

"The ruling was written by Justice Oliver Wendell Holmes, Jr. In support of his argument that the interest of the states in a "pure" gene pool outweighed the interest of individuals in their bodily integrity, he argued:

“ We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ”

Holmes concluded his argument by declaring that "Three generations of imbeciles are enough".[5] The sole dissenter in the court, Justice Pierce Butler, a devout Catholic,[6] did not write a dissenting opinion: the practice of a Justice's noting a dissent without opinion was much more common than it would be in the late 20th and early 21st centuries.

Carrie Buck was operated upon, receiving a compulsory salpingectomy (a form of tubal ligation). She was later paroled from the institution as a domestic worker to a family in Bland, Virginia. She was an avid reader until her death in 1983. Her daughter Vivian had been pronounced "feeble minded" after a cursory examination by ERO field worker Dr. Arthur Estabrook,[7] thus the "three generations" of the majority opinion. It is worthy of noting that the child did very well in school for the two years that she attended (she died of complications from measles in 1932), even being listed on her school's honor roll in April 1931.[8]"

Posted by: Liberty1st | May 14, 2014 3:24:18 PM

good plan liberty. With one small change.

I say we kill everyone with an IQ under 68 and over 101.

Posted by: rodsmith | May 15, 2014 1:03:32 AM

Adamakis -- maybe you are right. But in law we don't draw factual conclusions from triple hearsay blog posts about media articles quoting third parties. We have an evidentiary process from which we draw factual conclusions. If the issue is so clear cut, it shouldn't be too hard for that process to conclude that this guy is not MR. Too bad the Texas authorities apparently didn't trust the legal process and attempted to defraud it. Maybe, as you suggest, this was the equivalent of framing a guilty man -- i.e., he was never qualified for an MR finding, and they were just overzealous in making sure that his claim was denied. But we are rightly concerned about this sort of conduct in any case, because it is unethical and degrades the truthfinding process in general. Just as we would be concerned with doctored evidence used to convict a guilty man, we should be concerned about the officials' behavior here -- regardless of the ultimate finding on MR.

Also, I would note that a large proportion of the information you cite is inflammatory and irrelevant to the narrow issue of MR. For example, that the victim was engaged and was buried in her wedding dress is unspeakably sad but it does not have any rational effect on one's judgment of whether the murderer is mentally retarded. Certainly, other aspects of those reports, such as the supposed sophistication of the crimes, are relevant, but that is precisely the sort of thing that needs to be run through the adversary/evidentiary process to see how much of that narrative is legitimate, how much is media/prosecution spin, and what the contrary evidence (if any) shows.

Perhaps your broader point is that the crime is heinous and the suffering of the victims immense, and that is enough to justify the offender's death, full stop. That is a view point shared by some. But that is not the law with regard to people who are MR. And while you may be free to question the normative validity of current MR law, the Texas officials involved here assuredly were not.

Posted by: BB | May 16, 2014 3:14:47 PM

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