Only in Texas: the Grave Error of Using Literature Rather than Scientific Methodology to Assess Mental Retardation in a Capital Sentence Case
posted by Danielle Citron
On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation (MR). His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.
Despite enrolling in special education classes throughout his childhood, Mr. Wilson failed the 7th grade. He received mostly Ds and Fs when he repeated it, as well as when he was socially promoted to 8th and 9th grades. He dropped out of school for good in the 10th grade. Friends and family swore affidavits stating that, as a child, he frequently clamped his belt so tightly that he cut off blood circulation, that he couldn’t use simple toys such as tops and marbles, and that he sucked his thumb into adulthood. According to the MR expert who assessed him, Mr. Wilson continues to be unable to perform even the simplest tasks without assistance.
In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Supreme Court observed that people with MR are less culpable for their crimes and that they are not equipped to mount effective criminal defenses. As a result, they are particularly vulnerable to wrongful convictions, inflated culpability assessments, and erroneous findings of leadership in multi-party crimes. In defining MR, Atkins relied on the scientific criteria set forth by the leading clinical authorities, including what was then known as the AAMR (the American Association on Mental Retardation). The AAMR thereafter changed its name to the AAIDD (the American Association on Intellectual and Developmental Disabilities).
Texas has executed more than four times as many people as any other state in the modern era. It is now poised to carry out the particularly egregious execution of Mr. Wilson—one that underscores the jurisdiction’s ongoing status as this country’s most extreme outlier on all issues pertaining to capital sentencing. Mr. Wilson was diagnosed with MR by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. (See this addendum to his report as well). At Mr. Wilson’s MR hearing, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. The state court actually reasoned that Mr. Wilson did not have MR because he “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child.” In the absence of judicial or executive intervention, Texas will execute Mr. Wilson next Tuesday, pursuant to the bizarre criteria that its state courts use to identify offenders with MR.
Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild MR.
Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind. Although literature can tell us much about society and law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation. That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.
As the AAIDD wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.”
I’m thankful to my colleague Lee Kovarsky, an extraordinary habeas scholar and tireless advocate, who has been representing Mr. Marvin and for his incredibly hard work on Mr. Marvin’s cert petition.