Smart Enough to Die
~~By Jordan Smith

In 2002, the US Supreme Court banned the death penalty for mentally retarded defendants. Still, Texas finds a way.

Elroy Chester was the worst one-man crime wave Port Arthur had ever seen.

Paroled in 1997 from prison, where he was serving time for burglary, Chester, then 27, embarked on an 11-month crime spree – more than two dozen crimes, including multiple burglaries, sexual assaults, shootings, and, ultimately, in February 1998, the murder of a well-liked local fireman.

Elroy Chester

On that occasion, Chester walked through the unlocked front door of a residence where 17-year-old Erin DeLeon was home alone with her one-year-old son. Chester held her at gunpoint as she collected from around the home various items of value; when her 14-year-old sister Claire arrived home accompanied by her boyfriend, Ches­ter made each of them strip and blindfolded all three with duct tape before raping Erin. He then made each of the girls perform oral sex on him. When the girls' uncle, Willie Ryman, a local firefighter, stopped by, Chester shot him and ran out of the home. Claire locked the door behind Ches­ter; after trying unsuccessfully to re-enter the home, Chester fled the scene.

When he was arrested, Chester confessed to Ryman's murder and to assaulting Erin and Claire in addition to a host of other crimes. Ultimately, he pleaded guilty to capital murder in connection with Ryman's death, forgoing a trial and instead leaving only his fate – death or, at the time, life in prison with the (very unlikely) possibility of parole – in the hands of a jury.

To say that Chester was a difficult client to defend would be an understatement; transcripts from the sentencing hearing reflect that Chester had little, if any, rapport with his defense counsel. Against the advice of his attorney, Chester opted to testify on his own behalf, delivering a rambling and inflammatory rant wherein he claimed variously that he hadn't acted alone in committing his many crimes, and that if sentenced to death he would have his "homeboys" on the outside commit additional crimes in his honor, and that he should've killed additional victims – including a 10-year-old who had survived his attack, and a police officer who had previously arrested him for burglary. He refused to allow his attorneys to present any witnesses that might help mitigate his culpability, says attorney Susan Orlansky, pro bono counsel from an Alaskan law firm, who currently represents him. "He doesn't get what's important," she says of Chester's ability in 1998 to grasp the gravity of his legal situation. "He tells his lawyer not to put on a mitigating case."

And that is a key issue, because Chester is mentally retarded, says Orlansky, a circumstance that should make him ineligible for execution, based on a 2002 decision by the U.S. Supreme Court barring execution of the mentally impaired as cruel and unusual punishment. "He has a compelling case for mental retardation," she says. "I think the evidence is, essentially, undisputed." (Although the term "mentally retarded" is steadily being replaced by "intellectually disabled" in the general lexicon, it remains the standard term in matters of criminal liability.)

Chester repeatedly scored below 70 on IQ tests – the generally accepted upper limit for mental impairment; spent almost his entire childhood in special education classes; never learned to read, to shop or cook, or to live on his own, or even to distinguish among colors, according to court testimony; and was placed in the Texas Department of Criminal Justice's Mentally Retarded Offenders Program during his previous stays in the pen. Nonetheless, the courts have repeatedly determined that Chester has not proven he is mentally retarded, and is thus eligible for execution – a sentence the state intends to carry out on April 24. [Update: After this story went to press, Chester's execution date was postponed to June 12, due to a "technical defect" in the death warrant documentation.]

Perry: See No Evil

Chester's case highlights an ongoing tension in Texas between the Supreme Court's prohibition of the execution of intellectually disabled offenders and the state's process for determining who it believes is so impaired. To Orlansky and other defense lawyers, the state has devised a system for determining retardation that focuses almost exclusively on the nature of a person's crimes and not on the nature of his handicap, a circumstance that they say regularly allows mentally impaired defendants to be cleared for execution.

The state, however, has argued that while the Supreme Court imposed a ban, it let the states design procedures for determining mental impairment, affording Texas the flexibility to impose a definition of mental retardation that takes into consideration factors beyond those relied upon by medical experts. "Underlying his petition is Chester's belief that the legal definition of mental retardation ... should match the clinical definition," Assistant Solicitor Gen­er­al Beth Klusmann wrote in opposition to Chester's 2012 appeal for a review by the Supreme Court. But that is not the case, Klusmann argued, as precedent reflects that clinical and legal definitions are not always the same. "Thus, the States are tasked with defining mental retardation."

Late last year, the Supremes declined to accept Chester's appeal, but for criminal attorneys practicing in Texas, the central questions raised in his case remain unanswered: Who should decide, and how, whether Chester, and others like him, are too impaired to be killed?

Texas' struggle with the criticisms of defense lawyers – and the federal courts – over how the state handles mentally retarded defendants is nothing new. Long before the case of Elroy Chester, and before the 2002 Supreme Court decision in Atkins v. Virginia that banned execution of the mentally impaired, there was Johnny Paul Penry, sentenced to die for the 1979 rape and murder in Livingston of Pamela Mose­ley Carpenter. Penry had been considered mentally impaired since childhood, never scoring more than 60 on an IQ test, and until age 16 was enrolled in a state school for the mentally retarded.

Penry appealed his death sentence to the Supreme Court, and in 1989 the justices ruled in his favor. Although the court concluded at that time that there was no "national consensus" against the execution of the mentally impaired, and that the practice did not violate the Eighth Amendment, it also opined that the state must provide a jury some way to consider whether mental impairment might mitigate a defendant's criminal culpability. Penry was subsequently retried, and again sentenced to death. Once more he appealed, arguing that the state's scheme for offering mitigating evidence was insufficient and violated the court's previous ruling; in 2001 the high court again ruled in Penry's favor, holding that Texas' jury instructions covering mitigating evidence were inadequate.

Just a year later, before the state determined how to proceed in Penry's case, the court decided Atkins, reversing the substance of its original Penry opinion and barring the execution of the mentally impaired, opining that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," now-retired Justice John Paul Stevens wrote for the court. "Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct," he continued. "Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants."

(Following that ruling, in 2008 the state declined to try Penry a third time and instead, in a curious transaction, agreed to impose life if Penry would stipulate that he was not retarded. He agreed to the deal.)

Rick Perry
Photo by Jana Birchum

Even before Atkins was decided, since the late Nineties some Texas lawmakers had already been working on the issue, and in 2001, a measure carried by Sen. Rodney Ellis, D-Houston, and then-Rep. Juan "Chuy" Hinojosa, D-McAllen, created a process for enforcing a ban on the execution of the intellectually disabled; the bill passed both houses before being vetoed by Gov. Rick Perry.

That measure would have required a capital defendant to inform the court a month in advance of trial that he would raise the issue of mental retardation; would require the court to provide jurors with a special instruction at sentencing regarding mental retardation; and, should the jury still find the defendant not mentally impaired and sentence him to death, it would allow the defendant to ask for a special post-conviction hearing on the question – independent experts would be appointed to examine the defendant, and the judge would ultimately decide.

With hindsight, it reads like a clunky process (though it is mostly the process by which these things are currently determined), and the notion that it would remove from jurors the power to decide whether a person is too mentally impaired to die is in part what prompted Perry's veto – though his rejection of the measure was also based on an expressed belief that Texas had "numerous safeguards" in place to protect the mentally impaired and that the state had not, and does not, execute the intellectually disabled. "This legislation is not about whether to execute mentally retarded murderers," he wrote in a veto statement. "We do not execute mentally retarded murderers today. It is about who determines whether a defendant is mentally retarded in the Texas justice system."

Since that veto, Ellis has repeatedly filed legislation to codify the ban – offering up on more than one occasion (including in the current session) a version that would address Perry's concerns by having a separate jury decide the issue in a pretrial setting. Still, for more than a decade the legislation has barely moved, and no proposal has since been voted upon by both chambers.

As a consequence, the answer to whether the state has done enough to ensure that it has not, and will not, execute a mentally impaired defendant in violation of the Constitution depends on who you ask. "I think the answer to that is we have not done what we need to do, which is why I continue to file this legislation," Ellis wrote in an email to the Chronicle. "The fact is that we have not really established clear standards in the wake of Atkins, we have essentially said, 'we don't execute the mentally retarded, so there,' and called that policy."

Indeed, in the absence of legislation, the state's highest criminal court, the Court of Criminal Appeals, in 2004 devised a framework for determining which capital defendants are intellectually disabled. That action is at the heart of the current controversy over not only Chester's case, but more broadly over whether the state can actually ensure that it has not, post-Atkins, continued to execute the mentally retarded.

From Atkins to Briseño

What is not in dispute is that there is a basic trifecta of conditions – enumerated by the more-than-a-century-old American Assoc­i­a­tion on Intellectual and Devel­op­ment­al Disabilities and by the American Psychiatric Association, and adopted in the Atkins opinion – that should be considered when determining whether an individual is intellectually disabled. First, whether a person has an IQ score of 70 or below (though the AAIDD notes that a score of up to 75 is still borderline); second, whether a person has significant limitations of adaptive functioning; and third, whether these limitations manifested during childhood.

Rodney Ellis
Photo by Jana Birchum

The first and third prong are the most straightforward – though not always without controversy, particularly when a person has had multiple IQ tests throughout life with varying results. The most uncertainty – at the center of the legal wrangling in Chester's case – rests on the second prong, related to adaptive functioning. A person's deficits in adaptive behavior should be evaluated via standardized tests, according to an amicus brief filed with the Supreme Court in support of Chester's case by UT Law professor Jordan Steiker on behalf of the AAIDD, and should consider "deficits in three discernible skill areas," involving conceptual skills (including language and the use of money), social skills (including interpersonal relationships, gullibility, and naivete), and practical skills (including independent living skills). That standard is reflected in the Atkins decision, though the Supreme Court did not mandate a specific test for each condition, instead leaving up to the individual states the manner in which the ultimate determination of mental retardation should be made.

In an unrelated case, the CCA expanded the adaptive skills prong to include a list of seven factors it deemed worthy of consideration – a list known as the Briseño factors, named after the case under which they were devised. According to the CCA, fact-finders should consider: 1) whether those who knew the defendant best "during the developmental stage" – family, friends, teachers, employers – "think he was mentally retarded"; 2) whether the defendant has "formulated plans and carried them through"; 3) whether a defendant is a "leader" or a follower; 4) whether a defendant's conduct in response to "external stimuli is rational ... regardless of whether it is socially acceptable"; 5) whether a defendant responds "rationally and on point" in response to oral or written questions; 6) whether a defendant can "hide facts or lie effectively in his own or others' interests"; and, importantly, 7) whether the commission of the crime in question required "forethought, planning, and complex execution."

To Orlansky and others, including Stei­ker, the use of the Briseño factors has, in effect, turned the Atkins ruling on its ear, taking the determination of mental retardation out of the realm of science, the basis of the AAIDD and APA definitions and tests for mental retardation, and into the realm of subjective considerations – where the nature of a person's abilities, instead of his deficits, and the nature of a defendant's crime, overshadow clinical considerations. Steiker does not mince words: He says the CCA devised the Briseño factors "really, out of whole cloth, to focus on criminal conduct and not the person's impairment."

In sum, critics of the CCA and its Briseño factors argue that by supplanting scientific acumen with a subjective catalog of skills an offender may possess, the CCA's seven-factor test effectively creates a class of defendants who may clinically be considered mentally retarded, as discerned via normative testing – with IQ and other skills tests – but whom the state nonetheless deems not retarded enough to deserve Constitutional protection. "Briseño is saying that some mentally retarded people you can execute," says David Dow, founder and co-director of the Texas Innocence Network at the University of Houston Law Center, who during his career has represented more than 100 death row inmates. "As a decision, [Briseño] has effectively made Atkins inapplicable in Texas."

Blinded by the Crime

Indeed, in Chester's case that is exactly what happened, argues Orlansky. Chester's mental impairment was first raised at his 1998 sentencing hearing. The state did not challenge the determination, although prosecutors argued in closing before the jury that Chester's mental disability might actually be considered an aggravating factor, warranting his execution; the jury deliberated for 11 minutes before sentencing Chester to death. After Atkins, Chester appealed his sentence, and the court held a four-day hearing to determine whether he was entitled to relief because of his mental retardation.

In the end, the CCA agreed that Chester had "met his burden in regard to demonstrating significant limitations in intellectual functioning," based on five separate IQ scores measured throughout his life, beginning in 1977. (The trial court judge who presided over the hearing had concluded that Chester's IQ was probably higher than his tests reflected, that he was probably learning disabled and not retarded, and that his assignment to TDCJ's Mentally Retard­ed Offenders Program didn't mean he was actually retarded.) The CCA agreed with the trial court, ruling that Chester had not satisfied several of the Briseño factors. According to the court, Chester had been able to converse well with a state-hired expert during an interview, his actions were not "entirely impulsive," and his crimes "demonstrated forethought, planning, and complex execution of purpose." Although Chester's defense offered evidence of Ches­ter's adaptive functioning deficits based on standardized tests and definitions provided by the AAIDD, the trial court did not address any of the clinical standards in its ruling, instead focusing entirely on the Briseño factors. That was enough for the CCA, which in its opinion denying Chester relief, focused extensively on the facts of his crimes. "It's all about his crimes," says Orlansky.

Of course, that mentally retarded defendants might commit heinous crimes is a given; if they didn't, Dow notes, there would be no need for the Supreme Court to weigh in and place a ban on the execution of mentally disabled defendants. And that those crimes may reflect some aspects of forethought or planning certainly isn't odd either; that was exactly the case with the abduction and robbery that originally sent Atkins to death row. "The whole problem is, frankly, that lots of these guys, mentally retarded or not mentally retarded, are not sympathetic characters," says Dow. And courts and jurors "are blinded by what they did," and not who they are. (Research being conducted at University of Houston reflects that when jurors are asked first about whether there is mitigating evidence in a case, and then specifically about whether the defendant is retarded, jurors "always answer no," Dow says.)

Who Needs Experts?

Steiker says the state has misinterpreted a line in Atkins in order to claim authority to ignore the clinical in favor of the subjective standard for mental retardation, to allow it to decide which impaired defendants should remain eligible for execution. "Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus," reads Stevens' opinion. In context, Steiker says it is obvious what the sentence means: That not everyone who claims to be mentally impaired is actually mentally impaired.

Texas, however, appears to interpret the sentence differently, to mean that there are classes of impairment – some too impaired to die and others intellectually disabled yet nonetheless culpable. "Most Texas citizens might agree that Steinbeck's Lennie [in Of Mice and Men] should, by virtue of his lack of reasoning ability and adaptive skills, be exempt," Judge Cathy Cochran wrote for the CCA in Briseño. "We, however, must define that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty."

The Supreme Court "did say it would leave it to the states to [devise] procedures" for implementing Atkins, says Steiker, and diverse approaches to administering it have cropped up. Yet only in Texas has that meant adopting a test for retardation that is not based on the scientific understanding of what is, at its core, a medical term, Steiker and others argue. There are different burdens of proof – as in Georgia, where a defendant must prove impairment beyond a reasonable doubt instead of by a preponderance of the evidence (that standard has caused its own legal wrangling) – but that is "just a part of federalism," says Steiker. But under the CCA's rulings, Texas is "actively ... narrowing the substantial reach of [Atkins] under the guise of procedural diversity."

That is not so, the state has argued, including in Chester's case. The court left to Texas the job of defining "terms of medical nature that have legal significance," and in the case of mental retardation, that means leeway in determining who is mentally retarded, Klusmann wrote in response to Chester's 2012 appeal. Indeed, Klusman notes that the Briseño factors were crafted from language that Stevens used in his Atkins opinion to describe certain diminished capacities associated – even by professionals within the AAIDD – with the intellectually disabled; as such, Texas rulings about mentally retarded offenders "remain faithful to the principles identified in Atkins," she wrote. "Chester's argument would take the decision of whether a defendant is mentally retarded out of the hands of the fact-finder and place it into the hands of medical professionals." And that is not the standard that the Supreme Court has required, the state argues. "For this reason, it is left to judges and juries to decide mental retardation based on the facts presented by the parties. They are not bound by a clinical diagnosis from an expert." Asked to elaborate, the attorney general's office declined to comment either on Chester's case or on the larger issue of how Texas implements the requirements of Atkins.

Of course, leaving the decision of who is intellectually disabled to fact-finders, who may use or ignore whatever evidence they choose, renders very inconsistent results. Consider the case of Juan Lizcano, tried for capital murder in the 2005 shooting death of Dallas Police Officer Brian Jackson. At his trial, Lizcano's defense offered expert testimony undisputed by the state that Lizcano had never scored higher than 62 on an IQ test and had major deficits in adaptive functioning – including that he couldn't dress or bathe himself appropriately, and that his communication skills were equivalent to those of an eight- or 10-year-old. Instead of expert testimony, the state countered with lay opinions: A jailer said that Lizcano kept his cell tidy; a used car salesman said he detected nothing wrong with Lizcano that would've kept him from selling the defendant a pickup truck. Lizcano was sentenced to death.

For Chester, the clock is running out. Unless the Board of Pardons and Paroles recommends relief, and Perry agrees, he will be put to death next Wednesday evening, April 24. That Chester's crime spree left fear and devastation in its wake is clear; what is not so clear, says Orlansky, is whether Chester's execution is legal. Ches­ter has "a real ugly set of crimes behind him," she says. But that is not enough to confirm his mental culpability – and that's precisely why the Supreme Court issued the ban. With its processes, she says, Texas has made mental retardation "almost an empty set."

Courtesy: The Austin Chronicle