[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

Jan. 29



TEXAS----impending execution

Texas set to execute 'intellectually disabled' inmate----Robert Ladd is 
scheduled to be killed on Thursday after an appeals court refused a stay



A man deemed by medical professionals to be intellectually disabled looks set 
to be put to death on Thursday evening, after the Texas Court of Criminal 
Appeals rejected a request to stay the procedure. A panel of judges ruled that 
Robert Ladd - a convicted murderer once given an IQ score of 67, so low as to 
indicate a mental impairment - had failed to meet the state's standard for 
intellectual disability.

The American Civil Liberties Union, which is representing Ladd on his appeal, 
responded on Wednesday by petitioning the U.S. Supreme Court for a stay of 
execution.

"Robert Ladd's life is full of evidence of his intellectual disability, and he 
doesn't belong on death row," said ACLU attorney Brian Stull in a statement. 
"We will continue to ask the courts to uphold the protections of Atkins and 
Hall to spare him from execution."

The Supreme Court ruled in the 2004 case Atkins v. Virginia that executing 
mentally disabled inmates violated the Eighth Amendment's ban on cruel and 
unusual punishment. The ruling, however, gave state governments broad latitude 
to determine who counts as intellectually disabled.

Texas has a particularly narrow definition of who is sufficiently disabled to 
be exempt from the death penalty, according to Jordan Steiker, director of the 
University of Texas Law School's Capital Punishment Center.

"There's a professional definition of intellectual disability that is embraced 
by psychologists and psychiatrists, and the Supreme Court referenced the 
professional definition in its opinion," he said. "But Texas has taken the view 
that the definition of intellectual disability used broadly is not appropriate 
in a criminal context because it might just exempt too many people."

Thus while a Texas psychiatrist who evaluated Ladd in 1970 found him "obviously 
retarded," the state's courts were able to argue that he did not meet the 
required threshold under their definition.

Under Texas criminal law, as established in the 2004 case ex parte Briseno, 
defendants might not be exempt from execution if the are able to "hide facts or 
lie effectively," "show leadership" or demonstrate an ability to make plans for 
the future. But the line in the ex parte Briseno decision that attracted the 
most public outcry was the one in which the Texas Court of Criminal Appeals 
cited the John Steinbeck novel "Of Mice and Men" to make its case.

"Texas citizens might agree that Steinbeck's Lennie should, by virtue of his 
lack of reasoning ability and adaptive skills, be exempt," according to the ex 
parte Briseno opinion, referring a character in the book who kills animals and 
a woman before finally being killed himself. "But, does a consensus of Texas 
citizens agree that all persons who might legitimately qualify for assistance 
under the social services definition of mental retardation be exempt from an 
otherwise constitutional penalty?'

The ruling was subsequently denounced by the author's son, Thomas Steinbeck, 
who said he was "deeply troubled" at the book being used "as a benchmark to 
identify whether defendants with intellectual disabilities should live or die."

The Supreme Court has shown some willingness to limit states' ability to define 
the threshold for claiming an exemption to the death plenty. In the 2014 case 
Hall v. Florida, the justices overruled Florida's legal standard, which at the 
time held that defendants would not be considered mentally incapacitated if 
they scored anywhere above 70 on an IQ test.

Yet Steiker said he found it "extremely unlikely" that the Supreme Court would 
spare Ladd, who was convicted in 1996 of beating a woman to death in Texas.

"I don't think the court seems all that eager to police what's going on in the 
state courts," he said.

(source: Al Jazeera)

*****************

Texas poised to execute intellectually disabled prisoner within hours



Robert Ladd's lethal injection to come days after Georgia's execution of 
another intellectually disabled man; lawyer condemns policy based on fiction



Texas is hours away from executing the second intellectually disabled prisoner 
in the US this week, in what lawyers say is a clear violation of the 
constitutional protection against cruel and unusual punishment.

The convicted murderer Robert Ladd, 57, will be killed with a lethal injection 
at 6pm Central Time on Thursday barring last-minute action by the US supreme 
court, where the case now resides. He was first found to have what was then 
called "mental retardation" when he was 13, and has repeatedly been diagnosed 
with the condition throughout his life.

In 2002, the supreme court banned executions for mentally impaired prisoners 
under the 8th amendment of the constitution, which prohibits cruel and unusual 
punishment. But Texas says it is not bound by this ruling because it claims 
Ladd does not conform to the state's unique, and bizarre, method of defining 
"mental retardation".

Under what are known as "Briseno Factors", the state sets out the profile of an 
individual whom ordinary Texans would agree was intellectually disabled. It 
points to Lennie Small, the lumbering and childlike character in John 
Steinbeck's 1937 novel Of Mice and Men, identifying him as the legal yardstick.

Ladd's lawyer, Brian Stull of the American Civil Liberties Union, said that his 
client's fate should not "depend on a novella. Instead of sticking to the 
standards set by science, they refer to a character in Of Mice and Men."

Ladd was convicted of the 1996 murder of Vicki Ann Garner in east Texas. 
Previously, he had served 16 years of a 40-year prison sentence for murdering 
another woman and setting her Dallas apartment on fire, killing her 2 children.

Ladd would be the second intellectually impaired prisoner to be executed this 
week, should the supreme court allow the procedure to go ahead. On Tuesday, 
Georgia executed Warren Hill , 54, a convicted murderer who had been found to 
be mentally disabled by every medical expert who had examined him.

Stull said that in light of the earlier Hill execution, "if Robert Ladd is put 
to death tonight, it will become clearer than ever that we are in the midst of 
a complete systems failure in terms of honouring the constitutional protections 
the supreme court ordered for intellectually disabled people."

On Wednesday, the supreme court ordered a stay of execution in 3 pending cases 
in Oklahoma as a result of the court's earlier decision to consider the use of 
the sedative midazolam in lethal injections. Midazolam has been linked to a 
spate of recent botched executions in Oklahoma, Arizona, Florida and Ohio.

The review does not touch upon Texas's procedures, as the state has chosen to 
use pentobarbital, a barbiturate it is believed to have acquired from a 
relatively unregulated compounding pharmacy.

(source: The Guardian)

*****************************

Texas Uses Of Mice and Men Standards to Execute Mentally Disabled Man



Barring a last-minute intervention from the U.S. Supreme Court, Texas will 
execute a man with an IQ score of 67 tonight.

Robert Ladd is scheduled for execution by lethal injection at 6 p.m. Thursday 
for the 1996 murder of Vicki Ann Garner. This is despite the fact that the 
Supreme Court ruled in 2002 that executing a mentally disabled person for 
murder is unconstitutional. Stranger still, Texas has once again used standards 
derived from John Steinbeck's classic 1937 novella, Of Mice and Men, to justify 
executing a man that meets the clinical definition of intellectually disabled.

"Anywhere else in the country, Mr. Ladd's IQ of 67 would have meant a life 
sentence, not death," Brian Stull, Ladd's attorney, said in a statement. "But 
the Texas courts insist on severely misjudging his intellectual capacity, 
relying on standards for gauging intelligence crafted from 'Of Mice and Men' 
and other sources that have nothing to do with science or medicine. Robert 
Ladd's fate shouldn't depend on a novella."

And yet.

Texas has been executing people as fast as it can since the death penalty was 
reinstated in 1976. However, the question of whether or not anyone should be 
executing the intellectually disabled has come up a bit since then. The U.S. 
Supreme Court made a broad decision on the issue back in 2002 with Atkins v. 
Virginia. The high court ruled that executing an intellectually disabled person 
for murder was a violation of the Eighth Amendment which prohibits "cruel and 
unusual punishment."

Here's what Justice John Paul Stevens wrote in his opinion (and yes, they used 
the term "retarded" back then):

"Construing and applying the Eighth Amendment in the light of our 'evolving 
standards of decency,' we therefore conclude that such punishment is excessive 
and that the Constitution 'places a substantive restriction on the State's 
power to take the life' of a mentally retarded offender."

However, the Supremes left the actual definition of what constitutes 
intellectually disabled up to the states. In Texas, after the 2003 state 
legislature failed to lay out the rules that would clearly prevent the 
execution of intellectually disabled people convicted of murder, it fell to the 
Texas Court of Criminal Appeals to pin down the requirements. Judge Cathy 
Cochran was the one to write the opinion, and she came up with a doozy.

This is where Steinbeck enters the legal picture. Cochran was born in 
California and decades ago she and her husband lived in Monterrey near Cannery 
Row, the area that Steinbeck immortalized. Cochran started reading his books 
since she was living in the place that inspired so much of his writing. One of 
the books she picked up was, of course, Of Mice and Men.

For those who dozed off in high school English class, Of Mice and Men is the 
story of George, a vagabond ranch hand, and his friend Lennie, a mentally 
disabled giant of a man. George and Lennie travel together working and George 
struggles throughout the book to keep Lennie, who is fascinated with soft 
things and doesn't realize the damage he is capable of, from getting in 
trouble. Eventually this leads to an accidental murder and George finds Lennie 
hiding from a vigilante group. George knows the men will find his friend and 
will execute him, so he kills Lennie himself. It's a brutal, tragic and 
incredibly moving work of fiction, and it turns out that the story stayed with 
Cochran, though probably not in the way Steinbeck would have intended.

Cochran landed on the Court of Criminal Appeals in 2001. In 2004 she was 
working out how to apply the Supreme Court's Atkins ruling in Texas and she 
found herself thinking of Lennie, according to Life of the Law. She even 
mentions Lennie in the opinion she wrote in Ex Parte Briseno, the 1st Texas 
case post-Atkins that saw the court working out how to handle convicted 
murderers who might be intellectually disabled.

And for a second, it reads like she actually got the point of the book, but 
then she goes on:

"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of 
his lack of reasoning ability and adaptive skills, be exempt from execution. 
But does a consensus of Texas citizens agree that all persons who might 
legitimately qualify for assistance under the social services definition of 
mental retardation be exempt from an otherwise constitutional penalty?"

Cochran concluded Texans would not want to exempt every convicted murderer with 
a low IQ from being executed. John Blume, a law professor at Cornell University 
who has studied how states have actually applied Atkins, says Cochran basically 
undid everything Atkins was supposed to do. "If you read the Briseno opinion 
itself it's clearly an attempt on its own terms to circumvent Atkins. It says 
we understand that the Supreme Court decided on Atkins but we have some room to 
operate here and we're going to use it."

So Cochran, in writing the opinion for the Court of Criminal Appeals, 
essentially took Atkins and worked around it to create new very flexible 
guidelines for the courts in Texas. She came up with what would come to be 
known as the Briseno Factors.

There are 7 factors. Translated out of legalese, the Briseno Factors 
essentially mean a person who has tested as intellectually disabled but is 
still able to get an idea and follow through on it, or is not clearly being 
manipulated by others, or can handle a social situation without drooling, or is 
able to tell a lie and remember the lie long enough to keep telling it is 
mentally competent enough for execution. The same goes if he or she can talk 
coherently and was able to, you know, actually plan the crime in question.

Blume says that in practice the Briseno factors can undo almost any legal 
acknowledgment of intellectual disability, making Atkins just this side of 
worthless in preventing a mentally disabled person who may not entirely 
understand what they've done -- hence why the Briseno Factors are also known as 
the Lennie test -- from being executed.

Using the Lennie test almost anyone can be proved competent enough to be 
executed. "That's where Texas is really an outlier and where people really seem 
to lose when it comes to the adaptive functioning," Blume says. "The courts use 
the Briseno factors despite the fact that they are at odds with the clinical 
definition of intellectual disability, and when it comes to the Briseno factors 
it's almost impossible to win."

Translated into practical terms this workaround led to the execution of Marvin 
Wilson in 2012. Wilson was a man who sucked his thumb and who couldn't make 
change or use a phone book. He had an IQ of 61, but he had also held a job, 
married and had a child. Wilson was convicted in 1994 in the shooting death of 
Jerry Williams, 21, who had identified him to police as a drug dealer, 
according to the Huffington Post. Despite his low IQ the court system found 
that he should be executed according to the Lennie test since he was able to 
hold a job and marry, as Atlantic noted.

That was when Steinbeck's son Thomas Steinbeck found out that his father's work 
was being used as justification for executing convicted murderers with low IQs. 
He issued a statement vehemently decrying the entire thing. "To judge anything 
based on a piece of fiction, I think, is a stretch," he told Studio360 in 2013. 
"And I think it would've made my father extremely angry."

Thomas Steinbeck pointed out his father was decidedly against the death 
penalty. He noted that his father once told him that if you have to take 
another man's blood to make your point, you haven't thought out the question 
very thoroughly.

Last year, the Supreme Court made a more narrow decision on the issue in Hall 
v. Florida, ruling that states have to actually stick to the clinical 
definition of intellectual disability when measuring who can and can't be 
executed. However, this ruling has had virtually no apparent effect on how 
judges in Texas handle these cases, Blume says.

And the thing is lawmakers -- perhaps the ones who read Of Mice and Men and get 
how ridiculous it is that the state currently executing the most people in the 
country should cite this particular work to justify some of the most morally 
questionable executions -- have been trying to get the Lennie test replaced 
with actual state legislation for years.

State Sen. Rodney Ellis has been working on getting a bill passed outlining how 
to determine whether someone is mentally competent enough to be executed for 
more than a decade. The bill he filed in the 2013 legislative session never 
made it out of senate committee. "I've actually had to preside over executions 
when I was the acting governor in 1999 and 2000, so I know firsthand the 
importance of getting it absolutely right when it comes to the ultimate 
punishment," Ellis stated via email. "Texas' current system falls far short of 
that standard, so I hope that my 16 year quest to pass this bill is finally 
successful this session."

Ellis has already filed a similar bill for the 84th legislative session. Ellis 
says his bill is designed to get Texas away from the Lennie list and into line 
with, well, the law. "To ensure compliance with the Constitution, my bill would 
put in place a clear standard to determine whether a defendant is eligible for 
the death penalty." There's no telling if the bill will gain any traction this 
time around.

Either way time is running out for Ladd. Ladd was acknowledged in court as 
someone who met the clinical criteria of intellectually disabled, Blume says, 
but Briseno cancelled that consideration out, something that has often happened 
when it is applied in Texas.

Ladd, who previously pled guilty and served 14 years for killing his cousin and 
her two children in Dallas back in 1978, beat Vicki Ann Garner to death in 
1996. Garner was also intellectually disabled, according to the Daily Tribune. 
There's no question of Ladd's guilt, only of whether he ever possessed the 
mental capacity to understand what he was doing. Ladd's lawyers say he did not. 
After the Court of Criminal Appeals denied Ladd's death penalty appeal, his 
lawyers filed with the Supreme Court on Wednesday, asking them to step in.

At this point the entire issue is in the hands of the Supremes. If the Supreme 
Court doesn't make Texas stop using these standards to work around Atkins, 
Blume says it looks like Texas will keep using the Lennie test to allow the 
execution of the intellectually disabled. And so far there have been no signs 
of any change on the horizon in Texas courts. "They're continuing to apply 
these factors in state and federal courts in Texas and nobody says no. They've 
been in effect for a number of years and they've been used by judges in a lot 
of different courts," Blume says. "I'd like to think the legislature will do 
something, but that doesn't seem likely, so it will have to fall to the Supreme 
Court. Until the Supreme Court steps in and says no, you can't do this, they're 
going to keep doing it."

(source: Houston Press)

********************

Death-Row Inmate Files Last-Minute Appeal



A Texas inmate scheduled to die by lethal injection today asked a federal judge 
to spare his life until prison officials produce evidence their drugs will not 
cause him "excruciating pain."

Robert Charles Ladd sued Texas Department of Criminal Justice officials Brad 
Livingston and William Stephens, Huntsville prison warden James Jones and 
Unknown Executioners, on Jan. 27 in Federal Court.

Ladd's co-plaintiff, Texas inmate Garcia Glen White, was scheduled to die by 
lethal injection Wednesday, but the Texas Court of Criminal Appeals stayed his 
execution.

White's lawyers claim he may have been impaired by habitual cocaine use when he 
waived his right to an attorney during police questioning, but the Court of 
Criminal Appeals did not explain its ruling, according to The Associated Press.

White was sentenced to death for fatally stabbing twin teenage girls in 1998.

Upon getting word from the appeals court, White dropped his request for a 
temporary injunction in the lawsuit he filed with Ladd.

Ladd was sentenced to death in 1997 for murdering Vicki Ann Gardner, whom he 
beat to death with a hammer inside her Tyler home before setting her body on 
fire and stealing her electronics and jewelry.

Ladd opens his lawsuit with a reference to the Supreme Court's Jan. 23 decision 
to review Oklahoma's lethal injection methods.

The Supreme Court on Wednesday delayed the scheduled execution of 3 Oklahoma 
death-row inmates, pending the outcome of a hearing before the justices in late 
April.

Ladd claims Texas is running low on its supply of compounded pentobarbital, the 
only drug it uses now to kill inmates, and that it "recently purchased large 
quantities of midazolam, hydromorphone, and potassium chloride."

The sedative midazolam is of particular concern, Ladd says, because it was used 
in the botched execution of Oklahoma inmate Clayton Lockett in April 2014.

After 3 drugs were administered to Lockett he "he began to speak, raised his 
head, writhed, groaned and took 43 minutes to die, reportedly from a heart 
attack," according to Ladd's complaint.

Lockett's execution is one of five bungled lethal injection executions that 
Ladd cites in his lawsuit.

Ladd also questions the viability of the pentobarbital that Texas has, claiming 
the state's supply "over the past 6 months has been in constant flux, with 
vials coming and going in odd increments" and an expired batch could cause him 
excruciating pain.

He asked U.S. District Judge John Rainey to stay his execution until Texas can 
show its methods will not subject him to cruel and unusual punishment in 
violation of the Eighth Amendment.

Rainey denied Ladd's request for an injunction Tuesday, and Ladd appealed to 
the 5th Circuit in New Orleans.

If the 5th Circuit does not step in Ladd, will be executed at 6:00 p.m. Central 
time on Thursday.

(source: Courthouse News)

***********************

DA LaHood: I Prayed Over Decision Not to Seek Death Penalty



In the 1st controversial decision, Bexar Counjty District Attorney Nicholas 
LaHood says he will not seek the death penalty for the 24 year old who is 
charged with murdering Elmendorf Police Chief Michael Pimentel during a traffic 
stop last summer, News Radio 1200 WOAI reports.

Josh Lopez, who is described as a local troublemaker, shot and killed Pimental 
during a routine traffic stop. The chief was investigating reports that Lopez 
had been scrabbling graffiti on city property.

LaHood says the elements to win a capital punishment verdict don't exist in 
this case, and he feels it would be safer to instead ask for life without 
parole.

"Our job is not to throw things against the wall and see if it sticks," LaHood 
said. "Our job is not to do the political thing but to do the right thing."

LaHood says the trend in Bexar County is to seek the relatively new sentence of 
life without the possibility of parole because juries are more likely to grant 
that sentence.

LaHood says it was a tough decision to make, and it was equally tough to 
explain his decision to Pimentel's family.

"I was up all night, and I have been criticized for talking aobut my faith, 
keep criticizing. I'm a Christian, I'm a man of faith. I prayed about it all 
night, and I prayed about it this morning when I came into the office before 
the meeting."

LaHood's decision is in line with current trends. There were fewer people 
executed in Texas in 2014 than in any year for the last 20 years. Juries are 
less likely to sentence people to death, due to concerns about exonerations and 
the likelihood of future evidence affecting their verdict.

(source: WOAI news)