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Swimming upstream: the execution of Marvin Wilson

Guest post by Professor Lee Kovarsky

Marvin Wilson in 2006.
Photo: Texas Department Of
Criminal Justice / AP
This past Tuesday, Texas executed my client of 6.5 years, Marvin Wilson. Marvin had mental retardation (“MR”).  When I talked to Marvin three hours before Texas administered a lethal dose of pentobarbital, I tried to keep the conversation light. Inmates facing execution get a last meal; I asked Marvin what he was going to eat. He said, “Mr. Lee” (Marvin has never been able to pronounce or spell my last name), “I got me some good food but I told ‘em not to make it too nice ‘cause the Supreme Court might give me that stay you been askin’ for.”

That response broke my heart. I knew that Marvin’s request for an eleventh-hour stay would almost certainly fail. The issue was not that Marvin lacked a good case for a stay; it was that the Supreme Court almost never intervenes to stop Texas from executing inmates in Marvin’s situation. In capital crisis litigation, inmates swim against a punishing upstream current. That current is strongest where Texas imposes a death penalty, the United States Court of Appeals for the Fifth Circuit reviews it, and the currently-composed Supreme Court makes a last minute decision about whether to halt the state machinery of death.

The problem starts with Texas, and ends with federal abstention that many people find incomprehensible. Marvin’s case was, in all respects, a textbook example of how a dreadful Texas execution concludes with the ritualized drama and media coverage anticipating Supreme Court intervention that almost never materializes. I want to try to explain why.

Atkins and the Eighth Amendment exemption

The victim, a police informant, was murdered in 1992. In 1998, Texas convicted Marvin of murdering the victim because the victim had provided the police with information leading to Marvin’s narcotics arrest. Marvin and his co-defendant bumped into the victim at a convenience store, an altercation ensued, the two defendants forced the victim into a car, and the victim’s body was found the next day. The only evidence that Marvin was the shooter was the testimony of the co-defendant’s wife, stating that Marvin confessed his role to her, telling her not to “be mad” at her husband. Her husband got a life sentence; Marvin was sentenced to die.

In 2002, the Supreme Court decided Atkins v. Virginia, which announced a categorical Eighth Amendment exemption from capital punishment for offenders with MR. Atkins used a definition of MR from the leading standard-setting bodies, but delegated to the states the particulars of enforcing the Court’s categorical mandate. Atkins stated that the exemption not only reflected a national consensus that offenders with MR were less culpable, but also the concern that, because of their cognitive limitations, they were particularly vulnerable to wrongfully-imposed capital sentences. Offenders with MR don’t communicate well with their lawyers, they reject plea bargains that they should accept, they disproportionately take the fall for more-sophisticated accomplices, they don’t learn from their mistakes, they make terrible witnesses, and they are usually unable to express remorse in the terms necessary to avoid a capital sentence.

Swimming against the current

In the years following Atkins, almost every state legislature passed a statute defining MR. Not Texas. In 2004, the Texas Court of Criminal Appeals (“TCCA”—basically, the state criminal supreme court) stepped into the breach. In judicially defining MR for Texas Atkins litigation, it gestured at the accepted clinical definitions, but questioned the wisdom of using scientific definitions with which a majority of Texans might express disagreement. To address the gap between MR-as-defined-by-science and MR-as-defined-by-Texans, the TCCA devised seven “Briseño factors,” named after the TCCA case announcing them.

The Briseño factors involve questions such as whether an offender can “lie in his own self interest” and whether a person “is coherent and rational.” I don’t want to belabor a point that this week’s coverage has exhausted, but the Briseño factors have the imprimatur of no doctor or scientist, anywhere. They are self-evidently premised on stereotypes about people with the most profound variants of MR—the decision invokes John Steinbeck’s Lennie—but they continue to metastasize, and they now dominate the Texas MR inquiry. Their elasticity allows judges to narrow the Atkins exemption so that it protects only the most severely-incapacitated offenders.

The Briseño factors allowed Texas to execute Marvin, because he had MR under any clinical standard. He got a 61 on the clinically-accepted tool for intellectual assessment, his Wechsler full-scale IQ (“FSIQ”) test. When Marvin was examined by a board-certified neuropsychologist who had evaluated thousands of patients with MR, Marvin was diagnosed, based on years and years of corroborative data, as having mild MR. Marvin failed his special ed classes for years; he read and wrote at a second-grade level; he was still sucking his thumb when he became a father; he cinched his belt so tightly that it impaired his circulation. In short, Marvin’s intellectual and adaptive functioning was not close to borderline.

I’ve read the argument that intellectual functioning was a closer issue because there were other, MR-inconsistent FSIQ tests. That’s incorrect. There was an MR-consistent FSIQ score of a 73 on a test Marvin took when he was 13; the rest of “scores” in the briefing and circulating on the Internet are scores on tests that are not FSIQ assessment instruments. Moreover, those scores corroborated MR insofar as they confirmed Marvin’s effort on the nonverbal portions of his FSIQ testing.

What did Marvin in was the Briseño test. Marvin could “lie in his own interest” because he denied his guilt, the state court said. He was “coherent and rational” because the neuropsychological evaluators said that Marvin understood that he was being asked questions and tried to answer them. He was convicted of murdering the victim after a chance encounter at a convenience store, which the state court described as a crime exhibiting “complex execution of purpose.” Marvin did not have adaptive deficits, the Texas court reasoned, because he had a wife and a child. Apparently most Texans do not believe that people with MR can have families and love people.

The federal courts, especially the Supreme Court, would avoid this result, right? No. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) is the federal “habeas corpus” statute passed in the wake of the Oklahoma City bombing. AEDPA restricts the authority of federal courts to vacate state capital sentences. AEDPA reads like a straightjacket in need of a spell check; federal courts can’t intervene to stop executions that they consider to be “merely” erroneous. Under AEDPA, the capital sentence must be “unreasonable” before a federal court can even consider vacating the penalty.

The currently-composed Supreme Court will issue a stay to halt the execution in only a small subset of those cases—cases involving a recurring legal issue that the Court wants to address. The days where one or more Justices have an appetite for mounting a sustained campaign against the death penalty seem to have passed us by. Some Justices used to dissent from orders denying Supreme Court review of capital cases on the ground that capital punishment was in all cases unconstitutional. Naturally, Justices expressing such views in mine-run cases were also Justices promoting more energetic intervention in particularly problematic executions. Like Marvin’s. There are none of those Justices left on the Court.

The phone call

Our ritualized executions end with a needle, but the legal fight usually concludes with a phone call from a dutiful clerk to a lead attorney (me), explaining that “the Court” has denied review and a stay. I sometimes make the mistake of referring to the Court as an “it” when I talk to families—rather than as a collection of “hes” and “shes.” The families find this impossible to understand; they want to know “who” is killing their son, father, uncle, or brother. But my answers can only give them “what.”

I try to explain that the state has imposed the sentence, and that a series of institutions subsequently decides whether to exercise a veto. One court is bound by statute to defer to another one, and that the Texas court had discretion to make up its own definition of MR, that the Justices don’t do “mere error correction,” and so on and so forth.

I hate this part of it; these explanations don’t make sense to normal people. The Supreme Court is a “they,” not an “it.” The Justices that comprise it are men and women who, like every other judge and jury member involved in the imposition of a capital sentence, base their decisions about what MR “is” on varied cultural, political, and personal experience.

After I told Marvin he was going to die, I told him it would not be in vain. I told him that he might not have changed the minds of “courts”, but that his story would eventually change the minds of living, breathing people—that his story would help highlight a particularly impoverished state of discourse about how we punish people like him.

Lee Kovarsky is Assistant Professor of Law at the University of Maryland Carey School of Law. Professor Kovarsky regularly represents capital prisoners during federal appellate and Supreme Court review of their sentences.