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Prosecutorial Misconduct Putting Mentally Disabled People on Death Row

Posted by Joseph Tully | Oct 10, 2017

In 1992, Ricky Ray Rector went to his execution in Arkansas, telling the corrections officers who came to take him to his lethal injection that he wanted to save the dessert of his last meal “for later.” After killing two people, Rector turned the gun on himself, but failed to commit suicide. Instead, he destroyed the right frontal lobe of his brain.

His execution, and the involvement of then Governor and presidential candidate Bill Clinton, made national headlines about condemning mentally disabled people to death.

In 2002, the United States Supreme Court ruled 6-3 in Atkins v. Virginia that executing intellectually disabled inmates violates the Eighth Amendment's prohibition on cruel and unusual punishments. The Court held that three conditions were necessary: Low IQ scores; lack of basic practical and social skills and the presence of both these conditions before the inmate turned 18.

The Court determined a low IQ score was generally below 70, but allowed the states to determine the level of intellectual disability in order to execute someone. In 2014, the Court decided in Hall v. Florida that a “bright line IQ threshold” for determining whether a person may be executed was unconstitutional.

If an inmate's IQ score was borderline for intellectual disability, the state must now allow the defense to present other evidence of intellectual disability, since IQ scores have a margin of error.

In his 2012 book Mental Disability – the Shame of the States, Michael L. Perlin, a professor emeritus at New York Law School and internationally recognized expert on mental disability law, writes that mentally ill defendants “receive substandard counsel, are treated poorly in prison, receive disparately longer sentences, and are regularly coerced into confessing to crimes (many of which they did not commit).”

Prosecutor Friendly State Psychiatrists and the Death Penalty

Former prosecutor Trey Gowdy, who now serves as a congressman from South Carolina's 4th district, tried hard to put a mentally disabled man on Death Row.

You may recall Gowdy as the head of the House Select Committee on Benghazi. In his days as a district attorney, Gowdy prided himself on winning death penalty cases. In 2014, one of those death penalty cases, that of Fredrick Evins, was overturned on appeal after Evins' appellate attorneys uncovered evidence that their client suffered from a “serious intellectual disability.”

However, at Evin's trial, an expert witness stunned the courtroom – and presumably Gowdy – by stating that the defendant was possibly mentally deficient. Gowdy then asked the judge to allow another expert witness to testify about Evins' mental abilities as it related to the death penalty. The state psychiatrist who then testified said Evins' did not meet South Carolina's definition of mentally disabled.

The prosecution requested the judge determine whether Evins was mentally fit to receive the death penalty, and wouldn't you just know it, that's the sentence Evins received.

Judicial Sanctions Rare for Prosecutors

Why do prosecutors continue to ignore the law and press for the death penalty in situations where a defendant is almost certainly mentally disabled?

Because they can get away with it, that's why.

That's true for all kinds of prosecutorial misconduct.

In California, out of 4,741 disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only ten involved prosecutors. Of these, only six involved conduct in criminal case handling. If prosecutors don't have to worry about judicial sanctions – and such sanctions, when they occur, usually amount to the proverbial slap on the wrist – why not just do whatever they please to “win?”

Mentally Disabled on California's Death Row

There are still 747 individuals sitting on Death Row in California. The state hasn't conducted an execution in more than a decade, but voters passed Proposition 66 in last year's election to expedite the killings.

At least 20 of these Death Row inmates are certifiably insane. Insanity differs from mental disability, as it is a legitimate defense. However, both are reasons for incompetence to stand trial. California law looks at whether a defendant understands the criminal proceedings and can rationally aid their lawyer in his or her defense.

Any sort of developmental disability, such as mental retardation, autism, cerebral palsy or similar conditions can preclude a defendant from standing trial. It's virtually a given that some of the people currently on California's Death Row are mentally disabled, perhaps in a way that was not recognized at the time of their trial.

Most inmates have been in prison for years, and far less was known about autism spectrum and other developmental disabilities when they were convicted.

Did prosecutors know or suspect that some of these people were mentally disabled?

Do fish swim?

The political incentives for seeking the death penalty by prosecutors far outweigh whether the defendant possessed the intellectual ability to understand the consequences of their actions. That's especially true anywhere prosecutors are elected, as in California.

Unfortunately, it appears the majority of California voters agreed with them last year, as Proposition 66 passed by a 51-49 percent margin.

Maybe the execution of a mentally challenged inmate will put a face on these prosecutorial crimes and allow the public to wake up.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...