Terry Lenamon on the Death Penalty : Lawyer & Attorney Terry Lenamon on Capital Punishment Defense, Death Penalty Trials & Appeals | Law Firm

There's a story that's brewing in Texas which is growing in national prominence -- just this week, the Huffington Post published an excerpt from an article entitled "Cracked" from the Texas Observer, an exposé revealing that the state of Texas is continuing to execute mentally retarded individuals despite the constitutional prohibition against doing so. (Grits for Breakfast also helped to spread the word this past weekend.)

Written by Renée Feltz, the Observer’s expose throws the doors open on Texas’ Death Row to reveal that seventeen (17) men have had their IQ scores bumped up to levels that allow them to suffer the penalty of death under state and federal law. Apparently, forensic psychologist Dr. George Denkowski has used several tools of "junk science" to improperly alter the intelligence scores of these convicted men and according to Feltz’s investigation, Dr. Dankowski has done this intentionally.

In a disgraceful disregard of the spirit and intent of Atkins v. Virginia, Dr. Dankowski has testified in 29 death cases since 2002 (at a rate of $250 per hour), providing expert testimony for the prosecution in over two-thirds of the capital cases appealed in Texas from 2002 forward. Now, a federal judge has ruled that Dr. Dankowski has skewed intelligence testing results, and all his findings "must be disregarded due to fatal errors."

According to Atkins, it is unconstitutional to execute someone who scores 70 or less on a standard IQ test and demonstrates "deficits in adaptive behavior" before the age of 18 years. Texas law adds a seven question test in the determination of mental retardation as an attempt to make the label less subjective ("the Briseño standard”).

Where’s the National Media on this Story? Bloggers are taking the lead here.…

Interesting that this story is slow to gain coverage in the national media, with bloggers like those at the Huffington Post and Grits for Breakfast leading in the current search results for this story.

One wonders when the national news media will take the lead on this important and evolving revelation of injustice – and thank God for the tenacity of reporter Renee Feltz and those at the Texas Observer for their efforts to get this message out to the public.

What about Michael Richard and Chief Justice Sharon Keller?

Another thought to ponder: what does this mean for Texas' Chief Justice Sharon Keller, if anything? She awaits the fact findings from her trial this past August (Judge Berchelmann has not issued anything as yet), and Dr. Dankowski was the expert who provided the requisite testimony in the Michael Richard case, allowing Mr. Richard to be executed that fateful afternoon when Justice Keller was too busy to hear his motion for stay (“the clerk’s office closes at five.”) 

More on this story as it unfolds ....

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Sale of organs "illegal" in China after July 2006

In 2006, the government enacted the provisions on the "Entry and Exit of Cadavers," which officially banned the commercial sale of human organs. [136] However, the 2006 provisions failed to address the harvesting of organs from executed prisoners, leaving the 1984 order intact.[137]

The drafter of the 2006 provisions stated, "The guideline will specifically not mention the use of executed prisoners' organs, even though it's the main source of organs in China . . . . The executed prisoners' organs will not be specifically banned in this guideline or in the coming Human Organ Transplant Rule."[138]

This new legislation became effective July 1, 2006, banning the sale of human organs, requiring donors to provide written permission for the transplantation of their organs, limiting transplant surgery to certain institutions, compelling an ethics committee to review and approve all transplants in advance, and requiring institutions performing transplant surgery to verify that the organs are from legal sources. [139] The provisions attempt to regulate the transportation of cadavers.[140]

However, the provisions still provide the Chinese government with the ultimate authority on all decisions related to export matters. [141] For example, Article 8 of the provisions states, "It is strictly prohibited to trade in cadavers, and to make use of cadavers to engage in commercial activities." [142] However, Article 7 states that if Chinese customs officials are presented with a valid certificate issued by the Chinese government to approve the transport of cadavers, the body is released.[143]

In China, enacting legislation does not mean enforcing it.[144]

In China today, the reality is that the abstract principle of law is often corrupted by the wish for personal gain or the interests of the Communist Party. [145] It has been reported that organs are still being sold following this 2006 legislation.[146]

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Last month, the pending case of Michael Bies was discussed here - Bies, held to have an IQ of 63, had been sentenced to die by the State of Ohio and advocates for Bies took his case to the highest court in the land in protest. Testimony had been provided that Michael Bies was functionally mentally retarded.

We don't execute the mentally retarded in this country; this has been held to violate the Eighth Amendment as being cruel and unusual punishment in Atkins v. Virginia, 536 U.S. 304 (2002).

Supreme Court Rules That Bies' Case Goes Back to Ohio for Further Proceedings

Nevertheless, today the U.S. Supreme Court has announced that the Bies case can return to Ohio for another trial on the appropriate sentence for his crime. (Bies has been found guilty of the kidnap and murder of a 10-year-old boy.) Why? The Court has found that the federal appellate court was too speedy in throwing out capital punishment for Michael Bies because the federal court acted before the 2002 ruling by the U.S. Supreme Court on the subject.

"Mental retardation was not a conclusive or necessary determination in any Ohio court proceeding to date," according to Justice Ruth Bader Ginsburg.

Attorneys for Michael Bies will return to the Ohio courtroom, where another sentencing trial will be had. At that proceeding, they'll argue once more that Bies must be spared the death penalty because of his mental retardation - and the prosecution will once again fight for the death of Michael Bies.

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This morning, at 11:00 EST, oral arguments will begin before the United States Supreme Court on whether or not a federal appeals court (the 6th Circuit) interfered with a state court death penalty case where the defendant was found to be mentally retarded. And while that sounds very procedural and legalistic, whether or not Michael Bies will be executed by the State of Ohio is the real issue here.

The case, Bobby v. Bies (08-598), has the Solicitor General of Ohio, Benjamin C. Mizer, arguing for the warden. Professor John Blume, of Cornell Law School, is advocating for Michael Bies.

It's Already Been Decided that the Death Penalty Cannot Be Imposed Upon Mentally Retarded Individuals

Back in 2002, the Supreme Court already held that the execution of mentally retarded individuals violates the due process provisions of the Eighth Amendment (Atkins v. Virginia). Today, the High Court is looking at double jeopardy protections. Specifically, in the Bies case, the focus will be whether or not double jeopardy protects a defendant at a state (not federal) post-conviction hearing where mental competency is being assessed pursuant to Atkins, when the issue of the defendant's "borderline mental retardation" had already been recognized earlier, by the state supreme court.

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