Ignoring Supreme Court Ruling, Texas Prepares to Execute Mentally Retarded Prisoner

Democracy Now*

HAVANA TIMES — Texas is preparing to kill death row prisoner Marvin Wilson tonight despite a 2002 Supreme Court ruling against the execution of the mentally retarded.

Wilson was convicted of murdering Jerry Williams during a 1992 fight. His IQ is just 61, far below the cutoff of 70 that proves he is mentally impaired and therefore ineligible for the death penalty.

But Texas argues the IQ test was improperly administered and federal appeals courts have declined to overturn the state’s decision. We’re joined by attorney Lee Kovarsky, who has spent the past six years working on Wilson’s appeals, largely pro-bono; and by Richard Dieter, Executive Director of the Death Penalty Information Center, a nonprofit group that works to educate the public about capital punishment.

AMY GOODMAN: As we turn now to the case of man set to be executed in Texas tonight, despite a test that shows he has an IQ of 61. That’s far below the cutoff of 70 that proves he is mentally impaired and therefore ineligible for the death penalty. Marvin Wilson was convicted of murdering Jerry Williams during a 1992 fight. Witnesses say Wilson and an accomplice abducted Williams because they thought he’d given police details that previously led to Wilson’s arrest on drug charges. Williams was on the next day on the side of the road, he’d been beaten and shot in the head and neck. After Wilson was sentenced to die, the Supreme Court later barred states from executing prisoners with mental retardation. Noting that they are less culpable for their crimes and are not equipped to mount an effective defense in court. But despite claims by Wilson’s family members that he sucked his thumb into adulthood, Texas argues the IQ test showing he’s developmentally disabled was impartially administered.

Federal appeals courts have declined to overturn the state’s decision. In the meantime, several major newspapers have published editorials opposing the execution. Texas State Senator Rodney Ellis, Democrat of Houston, was cited in a New York Times op-ed piece saying, “We do not execute children in the state of Texas therefor we should not execute those that have the mental capacity of a child. The ultimate penalty should be reserved for those that can clearly comprehend why they are going to die.” Well, unless Texas Governor Rick Perry or the Supreme Court intervenes, 53-year-old Marvin Wilson will be put to death tonight, shortly after 6:00 p.m. Central time. He will be the second prisoner executed in Texas using a single drug protocol. For more we’re joined in Baltimore by attorney Lee Kovarsky, who spent the last six years working on Marvin Wilson’s appeals, largely pro bono, and is an Assistant Professor at the University of Maryland Law School. We’re also joined in Washington, D.C. by Richard Deiter, Executive Director of the Death Penalty Information Center, a non-profit group that works to educate the public on capital punishment. We welcome you both to Democracy Now!. Let’s first go to Baltimore, to Lee Kovarsky. Talk about Marvin Wilson’s case, the man slated to die tonight at six Texas time.

LEE KOVARSKY: Thanks, Amy. Marvin fits comfortably within any clinical definition of mental retardation. He’s got significantly average intellectual functioning, his adaptive functioning is even worse. If you believe that the Supreme Court decision at Adkins means that we don’t execute mentally retarded offenders because, as you said, there are less culpable and their less capable of mounting defenses that prevent them from being subjected to the death penalty, if you take that ruling seriously, then this is sort of the quintessential case in which you would not impose that sentence.

AMY GOODMAN: So, what are the possibilities today of a reprieve?

LEE KOVARSKY: Well, there are a few things going on, each with varying degrees of likelihood. The most important thing that is we need the Supreme Court of the United States to intervene and issue a stay, so that it can provide orderly consideration to the issue of whether the Texas factors for considering mental retardation unreasonably apply at Adkins. There are some other preceding pending before the Governor and before the State Supreme Court but those are ancillary.

AMY GOODMAN: Lee Kovarsky, very briefly, can you describe the murder that Marvin Wilson was convicted of?

LEE KOVARSKY: Sure. Marvin and his accomplice, Terry Lewis, had a chance encounter with the victim at a gas station. As you noted, the victim in your introduction, the victim had –was a confidential informant, won’t was not that confidential at that particular time, and he had given information to the police that led to Marvin’s arrest the week before. So when they bumped into Williams at the gas station, an altercation ensued. The two men forced Williams into a car. What happens after that is very unclear. There’s no forensic evidence. There’s no eyewitness testimony. The next morning, the body is found by the side of the road in the manner that you described. There’s testimony from one witness that right after the incident at the convenience store that there was a sound that could have either been a gunshot or discharge from a nearby refinery. There’s no — the forensics experts says at trial that, no, Mr. Williams actually died the next morning, so it wouldn’t have been whatever sound the person heard. More importantly, Marvin is on death row and his accomplice has a life sentence because the only evidence that Marvin and not the accomplice was the shooter is the testimony of the accomplices wife saying that Marvin admitted to her that he did it.

AMY GOODMAN: Richard Deiter, is this part of a pattern, the story of Marvin Wilson, of executing people who’ve been determined to be mentally retarded? In Texas and around the country, and also since really have a minute, if you could talk about the issue of the one drug execution, drug going to be used?

RICHARD DEITER: This is absolutely a pattern in Texas. They have resisted the Supreme Court’s rulings on Mental retardation for decades. In this case, have usurped the Supreme Court’s ruling by defining mental retardation their own way outside of the scientific community. So, that is the key issue here. Generally, I don’t think that’s what other states are doing. They have adopted the standard scientific definition for mental retardation. A lot of people have been taken off of death row and not executed because of this ruling. But Texas stands pretty much alone in this. With respect to lethal injection, Texas is perhaps leading the way, but also experimenting with new drugs, new processes on human subjects. So, that’s disturbing. So, the trend is toward one drug, toward using a drug called Pentobarbital, an anesthetic, and that’s the way the execution is planned tonight. It seems to be the way states are going right now.

AMY GOODMAN: And this Pentobarbital, the way Texas got it, even that has been an issue with the court demanding that they reveal this information. It’s increasingly hard for states to get this as the company that makes this product in Europe says they don’t want used in the United States to execute people.

RICHARD DEITER: That is right. It turns out a lot of our drugs are made in Europe and of course Europe has a strong position against the death penalty in Europe. In this case, the drug was produced by a company in Denmark. They have clearly they do not want it to be used that way. It goes to wholesalers and it’s sometimes hard to track the use of this. But I think that’s going to be a problem, ongoing as states try to find the drug that is available and that carries out their wishes to kill the inmate.

AMY GOODMAN: Well, I want to thank you both for being with us, again of course, we’ll continue to follow this case through the day, the case of Marvin Wilson. Will he be executed by the state of Texas? Thank you so much to Richard Deiter of the Death Penalty Information Center and Lee Kovarsky, Marvin Wilson’s Attorney.

(*) See this interview on Democracy Now.