Despite a Supreme Court ban, mentally retarded Texas inmates await execution

By Rita Radostitz - The Austin Chronicle

October 17, 2003

Doil Edward Lane shuffles into the small cage that is the visiting room for death row inmates at the Polunsky Unit in Livingston. His head hangs down as he turns to let the guards remove his handcuffs. When he looks up, his eyes are red, his cheeks splotchy and wet. He crinkles up his face, picks up the telephone that allows him to talk with the visitors on the other side of the window, and says, "It's hard to talk about." So hard, in fact, that Lane sets down the phone, puts his face in his hands, and cries.

Lane is weeping not because he is facing execution, nor even because of his incarceration on death row. He's broken-hearted because prison officials have moved him to another cellblock -- away from his best friend, Marion. Now he has no one to talk to, no one to read and write letters for him. "I really miss him," Lane says more than once, whining like a 7-year-old whose best friend just moved out of town. He cries intermittently, and then asks, "Do you want to see a picture I drew?" When he's sure no guard is watching, he pulls from the waistband of his pants a pencil drawing of his two best friends, Marion Dudley and Leo Little. Lane says Dudley is the only other inmate who will take the time to read and explain things to him. Little helped Lane get books from the prison library -- not books to read (Lane is essentially illiterate), but books with good pictures so that Lane could look at them, trace the images, and color them in with his pencils. His favorite book is The Apple Tree. "It has really good pictures," he says.

Lane has been on death row for more than nine years. He was found guilty and sentenced to death by a jury in San Marcos in 1994 for the kidnapping and murder of 8-year-old Bertha Martinez. The crime was a parent's worst nightmare -- Bertha was in her neighborhood playing with some friends when she went off with a couple who said they needed help looking for their lost dog. Her battered and bruised body was found many days later in a small shack not far from her home.

Almost 12 years later, Lane confessed to the crime, saying that his stepfather and mother forced him to participate (neither was ever prosecuted). His confession came while he was being questioned in Kansas about the disappearance of 9-year-old Nancy Shoemaker, who had also been kidnapped and killed. Lane also confessed to having participated in that crime, this time saying that his friend Donnie Wacker made him do it.

Lane's confessions were unusual in a number of ways. His statements about what happened changed frequently during questioning; details he recounted were inconsistent with facts already known to the police; and there was neither physical evidence nor eyewitness testimony linking Lane to either crime. But the most unusual thing about Lane's confession was his situation when he gave it: Lane, then 30 years old and rather burly, was sitting in the lap of the police officer taking his statement, with his arm around the officer's neck and his face buried in the officer's chest, weeping.

Doil Lane is mentally retarded; doctors believe his brain may have been deprived of oxygen during his birth. His biological father was 74 years old and died shortly after Lane was born. His mother and her new husband neglected him, and later abused him both psychologically and sexually. Lane was placed in
special-education classes at school, and consistently did poorly there.

Eventually the state of Kansas stepped in, removed him from his home and sent him to the Brown School in San Marcos, a residential treatment center for children with developmental disabilities. Testing from his time at the Brown School, and later for his appeals, shows that his intellectual functioning is
significantly impaired, that his full scale IQ is 65-67 -- among the lowest 1% of the population -- and that his mental and emotional development is that of an 8- to 10-year-old child.

Slow Wheels Turning

In 2001, the Texas Legislature passed a bill that would have banned the execution of the mentally retarded. Gov. Rick Perry called it unnecessary and vetoed it, saying, "We do not execute mentally retarded murderers today." The governor's statement was inaccurate on its face -- nobody involved in the capital cases of Mario Marquez and Terry Washington disputes that both were mentally retarded at the time of their Huntsville executions in the late 1990s -- but at the time, Perry could at least have argued that no national standard required Texas to refrain from such executions.

Then last year, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the "evolving standards of decency" in this country would no longer tolerate the execution of people with mental retardation, noting that no other Western democracy allows their execution. The court thereby officially abolished capital punishment for the mentally retarded.

Since the national reinstatement of the death penalty in 1976, prosecutors had been acting under the assumption that seeking a death sentence for a person with mental retardation was permissible as long as the jury was able to consider the issue in deciding whether to impose a sentence of death. The Atkins decision changed that -- but the Supreme Court left it to the individual states to adopt procedures for ensuring that no person with mental retardation would be executed. The court gave scant guidance as to what those procedures should be, but did suggest that a finding of mental retardation require that the defendant have subaverage intellectual functioning, significant limitations in adaptive skills, and that the deficiencies manifest before the age of 18 -- requirements consistent with both medical and governmental definitions of mental retardation.

Whatever their opinions of the death penalty, Texans should wonder why, more than a year after the Atkins decision, Doil Lane remains on death row.

The prosecution in Lane's case has never disputed that he is mentally retarded. In fact, at trial, Hays Co. District Attorney Michael Wenk presented the fact of Lane's mental retardation as part of the expert opinion regarding whether Lane would be a danger to the community if he were not sentenced to death. In his questioning of the state's expert witness on the issue of future dangerousness, Wenk asked the expert to assume "that [Lane] has been diagnosed as borderline or mildly retarded, with an IQ in the range of 70." Wenk told the jury: "There is no question that there is something wrong with [Lane]. ... He's mildly retarded; he comes from a dysfunctional family. We're not disputing that."

Last August, Lane's attorney, Austin lawyer and UT law professor Bill Allison, filed a motion asking the trial court to remove Lane from death row because of his mental retardation. According to Rick Wetzel, former chief counsel for the Court of Criminal Appeals, the statutory process requires that the trial court forward such motions to the CCA within a short period of time. However, for reasons that the Hays Co. clerk's office can't explain, that has not been done in Lane's case.

The prosecutor's office has never responded to Lane's motion, and District Attorney Wenk declined comment, replying instead that "pursuant to the Code of Professional Responsibility ... all prosecutors are ethically mandated not to discuss the facts or other substantive matters relevant to 'ongoing' criminal prosecutions [emphasis in original]." Wenk did not respond to a question regarding what obligations the Code of Professional Responsibility might place on a prosecutor when the Supreme Court declares that a person he has prosecuted is no longer eligible for the punishment imposed. So, 16 months after the Supreme Court ruled that a person with mental retardation cannot be executed, Doil Lane remains on death row, and the prosecutor has yet to move to comply with the court's ruling.

Whatever Wenk's inaction means to Doil Lane, it is costing Texas taxpayers at least an extra $6,500 a year. The Texas Department of Criminal Justice estimates that the cost of housing an inmate on death row is about $22,500 per year, while the yearly cost of housing somebody in the general prison population is around $16,000.

According to Bryce Benjet of Texas Defender Service, a private nonprofit capital defense firm in Austin, nobody knows exactly how many people with mental retardation remain on death row in Texas. No state agency is required to track whether an inmate on death row is mentally retarded, and prosecutors have taken the position that it is up to the defense to raise the issue. Unfortunately, most defense counsels do not have sufficient resources to do the required testing, nor to hire an investigator to search for the required records.

According to the statute governing appointment of counsel in post-conviction proceedings, if an inmate wants to rely on a new ruling of the Supreme Court issued after he filed his first round of appeals, the inmate must first make a showing that he may be entitled to relief before he is entitled to appointment of counsel. As Benjet says, "The inmate has to prove that he is mentally retarded in order to be appointed an attorney who will be paid to develop the evidence of mental retardation."

In part because Texas Defender Service attorneys have helped a number of inmates gather the materials to make the initial showing of mental retardation, the Court of Criminal Appeals has ruled since last June in 38 cases raising the issue, and found in 28 cases that the inmate is entitled to a hearing to see whether he meets the standard set in the Atkins case. However, not a single inmate has been removed from death row based on an Atkins claim.

The Motton Exception

The person most likely to be the first removed from death row based on Atkins is Willie Mack Motton. Motton was convicted and sentenced to death for the 1984 robbery and murder of Deborah Davenport in Lufkin. Davenport was working at a gas station when Motton and two friends robbed her, and according to prosecutors, Motton stabbed and killed her in order to eliminate witnesses. (For unknown reasons, all the pleadings in Motton's case misspell his name, as either "Moddon" or "Modden.")

Motton's initial 1984 conviction was reversed on appeal because evidence regarding his mental retardation had not been properly admitted at his first trial. In 1993, he was again convicted and sentenced to death during a trial in which the fact that he is mentally retarded was not contested by the state. Last June, Motton's attorney, Greg Wiercioch of Texas Defender Service, filed a motion for a stay of his execution and relief based upon the Atkins decision. The stay was granted, and at a March hearing Wiercioch and the prosecutors began discussing a settlement. Wiercioch suggested that in return for dropping the death penalty, Motton would plead guilty to other as yet uncharged offenses and waive any right he has to parole.

Angelina Co. District Attorney Clyde Herrington had been involved in Motton's first trial and was lead prosecutor in the second. He had a great deal of time and energy invested in securing the conviction and the death sentence. He also had a personal reason to be interested in the outcome of the case -- he had gone to high school with Deborah Davenport, and was in the same graduating class as her sister Pam.

Perhaps because of Herrington's potential conflicts, Assistant District Attorney Janet Cassels was assigned to research the options in the Motton case. Cassels says she "couldn't find anybody who could tell me what the procedure should be." She was troubled by the Atkins decision, not only because it dramatically changed the law in capital cases, but because she believes the Supreme Court was somewhat disingenuous in declaring a categorical exemption prohibiting the execution of people with mental retardation because it "doesn't lend itself to a bright-line [precise] rule."

Cassels believes that the Supreme Court's reasoning for adopting a prohibition against the execution of the mentally retarded -- that their abilities to reason and control their impulses are diminished and therefore their moral culpability is also diminished -- does not take into account that there is a great disparity in abilities even among those officially diagnosed as mentally retarded.

But despite her misgivings about Atkins, Cassels -- and later Herrington as well -- came to believe that it was likely that the courts would grant relief to Motton, and their biggest concern became that he would then be eligible for release on parole as early as 2005. Herrington met with the victim's family members and explained the situation. The family eventually agreed that they would feel more secure with a deal which would, with certainty, keep Motton in prison for the rest of his life, rather than take the risk that they would not prevail on the mental retardation issue and Motton could be out of prison in just a few years.

In April, Motton pled guilty to a number of previously uncharged crimes, including arson, aggravated assault with a deadly weapon (in prison), and possession of a deadly weapon in a penal institution. He also agreed to consecutive life sentences, meaning that he will spend the rest of his life in prison. In exchange, prosecutors agreed to recommend that Motton's death sentence be overturned on the grounds of mental retardation. The case has been pending in the Court of Criminal Appeals for six months. Assuming that the CCA affirms the trial court decision, Motton should soon be moved from death row into the general TDCJ population.

According to Rick Wetzel of the CCA, Motton's case is thus far unique -- the only Texas instance in which prosecutors have agreed that Motton meets the standard for mental retardation and, based on Atkins, a trial court has recommended that the death sentence be overturned. In future cases raising an Atkins claim, the court will have to determine exactly what relief should be granted should an inmate be able to show that he is mentally retarded. The question then will be whether the sentence should be automatically changed to a life sentence, or whether the case should be sent back for a retrial. The law seems to allow either result. But, adds Wetzel, it would be "kind of ridiculous. Why would they want to retry the case when the best they could get would be a life sentence?"

The confusion over these cases -- and any future cases affected by a question of mental retardation -- could have been resolved by the Legislature. In the 2003 regular session, Sen. Rodney Ellis, D-Houston, offered a bill virtually identical to the 2001 bill vetoed by the governor that would have created a procedure allowing a jury to make a pretrial determination whether a defendant claiming mental retardation met the definition set forth in Atkins.

The mental health and mental retardation communities, as well as the criminal defense bar, supported the bill; however, the state district attorneys largely supported a bill drafted by former prosecutor and Austin Rep. Terry Keel. Under Keel's bill, the issue of mental retardation would be decided by the jury after a capital trial's penalty phase -- after the same jury had already convicted the defendant of capital murder, determined that he or she was a future danger, and agreed on a sentence of execution. Only then, if the same jury agreed on a finding of mental retardation, would the defendant be ruled ineligible for execution.

Ultimately, the House and Senate could not agree on a compromise, and no bill made it to the floor. Andrea Keilen, who was on the team which tried to reach a compromise piece of legislation, described the Keel bill this way: "That legislation was not about complying with Atkins, but about not letting Atkins affect the way we handle death penalty cases in Texas." By failing to act, the Legislature undermined at least part of the intent of the Atkins decision -- removing people with mental retardation from death row.

How Many Wait?

Both Lane and Motton express frustration with life in the Polunsky Unit -- they say the staff is disrespectful, and they are isolated 24 hours a day, even during recreation time. Lane complains that his crayons were taken from him when death row was moved from the Ellis Unit in Huntsville. In a questionnaire he completed last year, in his barely legible handwriting he wrote: "You tuck away my clores when you can not hurt no one with a box [of] 24 cloros." Asked what he might look forward to should he be removed from death row, Lane is uncomprehending. "But where would they take me?" he asks.

Willie Motton says he doesn't really care where TDCJ puts him when he is removed from death row -- "Anywhere is better than here." He is looking forward to having a little more room to move around, and a chance to play checkers or dominos. He is mostly looking forward to being able to attend church, which has not been allowed since death row moved to Livingston. Motton says that his strong faith has helped him survive on death row, but he wants to be able to worship with other inmates.

Doil Lane -- and perhaps dozens like him among the 449 inmates in the Polunsky Unit -- will remain on death row, essentially ignorant of the political and legislative turmoil that surrounds him. For now, Lane spends his days coloring his drawings, looking at his picture books, and waiting, until some court finally gets around to deciding whether -- and when -- he will be released from death row.

"You tuck away my clores when you can not hurt no one with a box [of] 24 cloros." -- Death row inmate Doil Lane (Photo By Jana Birchum)