Inmate may be retarded, but his death sentence stands


Though the Supreme Court has prohibited the execution of the mentally retarded, a Texas death row inmate who might be retarded cannot raise the issue in federal court because his lawyer missed a filing deadline, a federal appeals court ruled this week.

The inmate, Marvin Lee Wilson, has "made a prima facie showing of mental retardation," a unanimous three-judge panel of the 5th U.S. Circuit Court of Appeals wrote in an unsigned decision on Tuesday, meaning that the court presumed Wilson to be retarded for purposes of its ruling.

But the panel said it was powerless to consider the case because Wilson's lawyer had filed papers concerning his retardation in a federal trial court without first obtaining required permission from the appeals court, which he did not seek until a deadline had expired.

"However harsh the result may be," the panel said, its hands are tied by deadlines established in a 1996 federal law, the Antiterrorism and Effective Death Penalty Act. The same law now forbids Wilson, convicted of killing a police informant, to appeal the 5th Circuit's ruling to the Supreme Court.

The 5th Circuit Court, which hears appeals from Texas, Louisiana and Mississippi, has been frequently criticized by the Supreme Court for its decisions in capital cases. Still, said James W. Marcus, executive director of the Texas Defender Service, the Wilson decision surprised him.

"Executing someone who is categorically exempt from the death penalty," Marcus said, "would be new ground, even for Texas."

The Supreme Court ruled in 2002 that executing the mentally retarded was unconstitutional. But it gave the states little guidance about how to make that determination.

In Texas, under a 2004 decision of its Court of Criminal Appeals, judges consider three things: whether defendants have "significantly subaverage" intelligence, using "an IQ of about 70 or below" as a benchmark; whether they lack fundamental social and practical skills; and whether they can demonstrate that both conditions existed before age 18. Other states look to similar factors, though some use an IQ of 75 as a rough cutoff.

At a hearing in state court in 2004, Wilson's lawyers presented evidence from a psychologist, Donald Trahan, who said Wilson's IQ had most recently been measured at 61. A 1971 test had measured it at 73. In 1987, it was 75.

Trahan said Wilson read at a first- or second-grade level, did not understand how bank accounts worked and had trouble with simple financial tasks such as making change.

Prosecutors presented no evidence of their own at that hearing. In court papers, they said the nature of Wilson's crime itself proved that he was not retarded. The Supreme Court's 2002 decision, they wrote, "was never intended to protect capital murderers who commit execution-style killings."

Wilson, now 47, was convicted in 1998 of kidnapping and killing the police informant, Jerry Williams, in 1992. Information from Williams had led to Wilson's arrest for cocaine possession.

In August 2004, Judge Larry Gist of the state District Court in Beaumont, Texas, ruled that Wilson had failed to prove that he was mentally retarded. The Court of Criminal Appeals affirmed that ruling in a three-paragraph decision three months later.

Wilson's lawyer, Jim Delee, then sought review in the federal courts but became tangled in the procedures and deadlines set out in the 1996 law.

This year the Supreme Court banned the execution of people who were under 18 at the time of their crimes. Marcus, of the Texas Defender Service, said it would be inconceivable to execute a juvenile offender even if his lawyer failed to raise the issue of his age at the proper time.

"If Mr. Wilson had been 14 years old at the time of the crime but, in the eyes of the court, the issue was raised late, would it be OK for Texas to kill him?" Marcus said. "The question in this case is no different."

Adam Liptak writes for The New York Times.

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