Wednesday, August 8, 2012

Update: Of mice and men

So what if the man's mentally retarded. Who cares about our pronouncement that it violates the Eighth Amendment to execute a man who's mentally retarded? That's a matter for the states to decide and we won't dirty our hands trying to decide who's retarded and who isn't.

We need closure. The victim's family needs closure. We need people to understand that if you take a life in Texas that you're going to lose yours. That is, unless you're white and wealthy. If he was mentally retarded, how was he able to plan a murder? Besides, he wasn't nearly as bad as that Lenny character in that Steinbeck book.

Maybe that's not what the justices on the Supreme Court said and maybe that's not what Governor Rick Perry said. But it's certainly what they meant.

Whatever the actual language used, Marvin Wilson, a man with an IQ of 61, was murdered by the State of Texas last night. He was murdered despite the fact he is mentally retarded. He was murdered despite the fact the Supreme Court said it's cruel and unusual to execute a mentally retarded person.

Prosecutors maintain that Mr. Wilson wasn't retarded. After all there were two trials in this case - and in both cases the judge decided that Mr. Wilson was competent to stand trial. Nevermind that Texas courts base their decisions on the way John Steinbeck described Lenny Small in his novel Of Mice and Men. Nevermind that the state has never used science to establish the threshold for mental retardation.

Of course if a defendant is mentally retarded, can he even be found mentally culpable for the crime in the first place?

As I was driving home from the office last night I was listening to Execution Watch on KPFT-FM and the show's resident legal resident, Jim Skelton, raised a very troubling point in capital cases. In Texas a defendant convicted of capital murder is afforded an automatic direct appeal to the Court of Criminal Appeals. Should that appeal be unsuccessful the next step is the filing of a writ in the trial court alleging that something about the workings of the trial violated the defendant's rights. Guess who presides over the writ hearing?

If you guessed the trial judge you guessed right. Just let that sink in for a second. You're filing a writ in your client's case alleging that he was not afforded a fair trial and the person you're asking to make that determination is the judge that oversaw the trial in the first place. See the problem?

There is plenty to ponder with the death of Mr. Wilson and there are plenty of questions left unanswered. I just hope Rick Perry feels like more of a man for having murdered a mentally retarded man last night. How much fun could that have been, Governor, when the man you were killing wasn't even aware of what was happening to him?

It just leaves a black mark on everyone involved in the decision to strap Mr. Wilson down on that gurney and jab that needle in his arm.

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