In Texas, another execution, another miscarriage of justice

While Texas Gov. Rick Perry (R) continues to boost his national political ambitions by boasting about Texas' track record on the death penalty, state officials there are poised later today to execute an intellectually disabled man — a convicted murderer whose prosecutors failed to disclose key evidence of his disability for over a decade. (Update: the execution has been stayed. Scroll to the bottom for details.)

If the execution of Robert James Campbell proceeds as planned tonight, it won't just mean that Texas hid from view the results of long-ago cognitive testing that suggests the condemned man has been intellectually disabled his whole life. It also will mean that the state's judges, recently alerted to the delayed disclosure of this evidence, did nothing to remedy it. This is lawlessness disguised as law.

Twelve years ago, in Atkins v. Virginia, the United States Supreme Court declared that the Eighth Amendment's prohibition against "cruel and unusual" punishment precluded the execution of anyone whose intellectual disabilities makes them less morally culpable because they struggle to understand the nature of the punishment being imposed upon them. There is now strong evidence — new evidence, discovered by defense attorneys on May 1 — that Campbell is so disabled. And yet Texas still plans to execute him.

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But there have long been unanswered questions about Campbell's cognitive abilities. In 2000, a defense attorney conducting an investigation in advance of a federal filing in the case sought Campbell's school records. The lawyer received just two pages of records in response — with no evidence of any testing. Then, in 2003, after the Atkins ruling, that lawyer sought records from the Texas Department of Criminal Justice (TDCJ). The state agency responded by saying Campbell's IQ had been calculated at 84, but that there were no records of any testing. "[I]nmates sentenced to death receive no intellectual testing upon incarceration,” the TDCJ told defense attorneys at the time.

Campbell's attorneys went to court and argued that their client fell under the Atkins standard — that he was "mentally retarded" (as the Supreme Court still calls it) and could not be executed. State lawyers opposed this argument, telling one court after another that the evidence of Campbell's cognitive disability simply wasn't enough to satisfy the Supreme Court's test. The state and federal courts that reviewed the matter agreed. Campbell was not "mentally retarded" and was still on track for an execution.

Fast forward to March of this year. Campbell's current attorneys found evidence that the trial prosecutor had subpoenaed the defendant's school records but that this information was not turned over by prosecutors to Campbell's trial attorney. His current attorneys then asked prosecutors to disclose the results of that subpoena. What Campbell's attorneys received in response shocked them. Campbell, indeed, had been tested for cognitive disability while at school, and the results of those long-ago tests suggested that he was cognitively impaired, with a test score of 68, below the commonly accepted standard for "retardation."

This means that Texas had in its possession for over 20 years strong evidence that Campbell may have satisfied the Atkins' standard. State officials knew or should have known of this evidence from the prosecution's own file at the time of Campbell's trial and at the time the Atkins' issue was litigated in 2003. And yet Texas did not share this information with Campbell's attorneys or bring it to the attention of the courts.

It gets worse. Earlier this month, the TDCJ finally produced evidence proving that Campbell indeed had been tested for cognitive disability upon his incarceration — and that the testing suggested that he was impaired. This means that the TDCJ had misrepresented a material fact about a life-or-death issue with vital constitutional ramifications. Between the school records and the prison records, there is now viable evidence that Campbell is "mentally retarded" under constitutional standards.

Campbell's attorneys brought all of this new information to the Texas courts. The defense argued, in effect: "Here is this new information. It has never been fully examined. Campbell's execution must be delayed so that this new evidence can be evaluated at a hearing."

Texas officials argue that this new information is legally irrelevant because it comes too late in the appellate process. Campbell's attorneys should have discovered it all earlier, Texas argues, and even if they couldn't it doesn't matter. Campbell still isn't "mentally retarded."

Indeed, last week, in a 5-4 vote, the Texas Court of Criminal Appeals rejected Campbell's claim. The judges who rendered their ruling did not even have the courtesy or the courage to explain their ruling. "We have reviewed the application and find that the allegations do not satisfy the requirements of [Texas law]," they wrote. "Accordingly, the application is dismissed…"

Texas is about to kill a man whose execution may be precluded by the Constitution, and by Supreme Court precedent, in circumstances in which key evidence that might spare his life was hidden from the defense for two decades.

And while all this was going on, Texas was fighting — and winning — the battle to keep its lethal injection protocols hidden from public view. This is the regime Gov. Perry and others have been preening about in the wake of Oklahoma's botched execution. But it is nothing to boast about. It is instead the arbitrary and capricious exercise of power by the state, sanctioned by a complicit judiciary, revealing in this case the lengths to which Texas will go to implement capital punishment — in spite of justice.

UPDATE: Late this afternoon, for many of the reasons set forth above, the 5th U.S. Circuit Court of Appeals stayed the execution of Robert Campbell. The opinion was unanimous and can be found here. The judges found that Campbell had raised a valid issue in claiming that his execution is precluded by the Eighth Amendment and by Supreme Court precedent that outlaws the execution of people with intellectual disabilities. The 5th Circuit, which rarely intercedes on behalf of capital defendants, noted that Campbell and his lawyers were not at fault for not discovering evidence of his disability, evidence that had been in the custody and control of state officials who for years failed or refused to share it with the defense. This case will now likely be set for a hearing, at which time Campbell will be permitted to present evidence that could spare his life.

Photo Embed: (REUTERS/Texas Department of Criminal Justice/Handout via Reuters)