Texas courts try to set rules for executing mentally retarded inmates

BY MARTHA DELLER AND MAX B. BAKER
Knight Ridder Newspapers

FORT WORTH, Texas - (KRT) - For three days, Elkie Lee Taylor sat beside his attorney in a Texas courtroom as psychologists debated whether he was smart enough to die for the 1993 robbery-slaying of a Fort Worth man.

Taylor shuffled a yellow legal pad, but his writing skills were limited, and he didn't take notes. He looked at copies of his statements to police, but he couldn't read them.

"He did pay attention to the testimony," said his attorney, James Rasmussen. "Mentally retarded people are not like tables or chairs.

"He observes things that you don't, but his depth of understanding is lacking."

Experts agree that Taylor is mildly retarded, with an IQ identified since childhood as below 70, at least 20 points below what is considered the low end of the normal range.

At issue, however, is whether Taylor's social and living skills are sufficiently advanced to make him eligible for the death penalty in the killing of Otis Flake, a 65-year-old Korean War veteran.

It's an issue that Texas courts and lawmakers have struggled with since 2002, when the U.S. Supreme Court banned execution of the mentally retarded but did not define competency or set guidelines for courts to follow.

"I'm not saying what he did was right," said Taylor's sister, Sarah Rogers, who traveled from Mississippi to testify at her brother's hearing in late June.

"If he did anything wrong, he ought to be punished," Rogers said. "But I don't believe he ought to get the death penalty. I'm putting this in God's hands."

Hugh Flake, the victim's brother, said it's "a travesty" that Taylor is being given a chance to avoid the death penalty.

"I understand that the courts want to cross the t's and dot the i's so you can't come back and say you didn't give him a fair hearing," said Flake, a retired California educator. "But I do feel it's a waste. This guy has been living off the state too long."

State District Judge Everett Young is expected to decide in coming months whether Taylor should be spared the death penalty. Young has already concluded once before that he should not.

Taylor is one of 19 Texas death row inmates whose cases were set aside after the Supreme Court's ruling in the case of Daryl Renard Atkins, a mentally retarded man who had been scheduled to die in Virginia.

At least 33 other death row inmates whose cases were under appeal at the time of the Atkins ruling have been referred to courts for mental health hearings.

Taylor, a crack addict with a prior burglary conviction, was sentenced to die for strangling Flake while ransacking Flake's southeast Fort Worth home in April 1993.

Taylor had burglarized Flake's home before, during a 1991 spree that sent him to prison the first time. Witnesses said he had vowed revenge on Flake's family for petitioning the court to keep him behind bars - and pledged that his next prison term would be for something more than burglary.

He kept both promises.

Police say Taylor and a partner, Darryl Birdow, broke into Flake's home, bound and gagged him, rifled his belongings for jewelry and cash and, at some point, strangled him with two wire coat hangers.

The two men propped open Flake's door so they could return to retrieve more items to sell for crack. Taylor was spotted leaving the house three days later and was arrested after leading police on a circuitous, 120-mile chase that ended in Waco, Texas, when an officer shot out the tires of the stolen semi-trailer truck he was driving.

In considering whether to hand down the death penalty, jurors were told about the slaying 11 days earlier of Ramon Carrillo, an 87-year-old Mexican immigrant who was beaten and strangled when Taylor and Birdow burglarized his house for the third time.

Taylor had bragged to neighbors about both killings. He later acknowledged the burglaries to police but blamed Birdow for the killings.

Birdow pleaded guilty to aggravated robbery in the Flake case and was sentenced to life in prison. Neither man stood trial in Carrillo's slaying.

Taylor was evaluated and determined to be competent, said his trial attorney, Louis Sturns, who testified at the June hearing.

The Supreme Court's ruling left it up to the states to decide who is mentally retarded and therefore exempt from the death penalty.

"They left everyone hanging," said Shannon Edmonds, an attorney for the Texas District and County Attorneys Association. "They identified the most important question, but they didn't answer it."

Texas is one of 12 states that has not passed legislation to comply with the Atkins ruling, which has left the Texas Court of Criminal Appeals to set guidelines.

Defense attorneys say the state court's rulings have circumvented the intent of the Supreme Court.

The requirements have been set so high that few inmates will qualify, said Andrea Keilen, deputy director in Austin for the Texas Defender Service, a nonprofit legal defense group.

The Texas definitions were set forth in a February 2004 opinion upholding the death sentence of Jose Briseno for the 1991 slaying of Dimmitt County Sheriff Ben Murray.

Briseno, a career criminal, shot Murray with the sheriff's own pistol and hid money he took from the home. He later helped plan a successful jailbreak.

Justice Cathy Cochran, who wrote the appellate court's majority opinion, cited those details as evidence of Briseno's ability to formulate plans and adapt to his surroundings.

Texas judges have used the Briseno guidelines to decide mental retardation issues in other death row cases. Most have found that the inmates should not be spared.

The appellate judges who wrote the guidelines, however, appear to be struggling with the issue. In a June ruling in another case, Cochran expressed doubts about the Supreme Court's Atkins ruling and the resulting Briseno guidelines.

"As schoolchildren, we were taught that King Solomon weighed all of the evidence before him and made a reasoned decision; Nero divined merit on whim and just pointed his thumb up or down," Cochran wrote.

"I fear that, under Atkins ... we are moving farther from King Solomon and closer to Nero."

In September, the district judge relied on the Briseno guidelines in recommending that Taylor not be spared the death penalty.

The recommendation was based on sworn statements submitted to the court. The recent hearing was scheduled after an appellate court ordered the judge to consider the evidence through direct testimony.

The three-day hearing was filled with often-conflicting opinions from experts.

Rogers, one of three Taylor sisters who attended the hearing, and two defense psychologists testified that the 43-year-old man had been "slow" mentally since he grew up in Mississippi, where he dropped out of the sixth grade at age 15.

State expert Randy Price agreed that Taylor's IQ was below 70 and that he had been identified as mentally retarded when he was a child. But Price said Taylor's adaptive behavior - established by his planning, leadership and other skills used in the robbery-murders - allows him to overcome his low IQ.

Price said Taylor's long flight from police in the 18-wheeler and his other efforts to evade and mislead police are evidence that he does not fall under the court guidelines for mental retardation.

Defense expert Denis Keyes disagreed. He testified that Taylor is impulsive, "a follower" and incapable of planning two murders. Keyes suggested that Birdow was the leader who came up with the plan.

Assistant District Attorney Michael Casillas said Taylor should die for his actions.

"A lot of defendants are mentally retarded but are completely morally culpable for what they did," he said.

The judge is expected to issue a written recommendation to the appellate court after attorneys file written legal arguments by Aug. 22.

Julie Malone, Carrillo's granddaughter, said she has mixed feelings about whether Taylor should be executed.

"I can see where his IQ is low, but I'm still not clear whether it's because he didn't finish school or because he had a learning disability," said Malone, a teacher.

"I just want to see that the justice system has done everything it's supposed to do, whether he's executed or not."

For years Texas lawmakers have struggled unsuccessfully to set guidelines for determining whether mentally retarded inmates should be executed.

Rep. Terry Keel, a Republican from Austin, has repeatedly pushed a bill that would allow a jury to consider mental retardation when deciding punishment during a trial.

Sen. Rodney Ellis, D-Houston, has authored bills that called for a judge to decide before trial whether a capital murder defendant is mentally retarded.

In 2001, Gov. Rick Perry vetoed a compromise bill that would have allowed a judge to decide after conviction if a mentally retarded defendant should be executed.

"We joke here there's going to be a Texas office for cases reviewed by the Supreme Court," said Jeremy Warren, Ellis' communications director.

"It's incumbent on the Texas Legislature to pass laws that reflect the mandates of that court. We need to get this done now before another Texas case is overturned and we have another black eye for the Texas criminal justice system."

Keel said he believes there is little likelihood the Legislature will pass a law on the issue in the next two years, even if Perry includes it in a special session.

It's more likely, he said, that the Court of Criminal Appeals will fashion procedures for deciding mental retardation claims in new capital murder cases, as it did in the Briseno case.

"Death penalty cases will not stop," said Keel, a trial attorney and former prosecutor. "It's not unusual for courts to fashion new procedures on appeal and the Legislature to come back and put it into law."

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DEFINING MENTAL RETARDATION IN DEATH PENALTY CASES

Although definitions vary, psychologists, psychiatrists, educators and others who diagnose mental retardation have published standards defining it as a disability characterized by three major symptoms:

_Significantly subaverage general intellectual functioning. Recently, that has been defined as an IQ of 70 or below.

_Accompanying deficits or limitations in adaptive behavior, skills or functioning in such areas as self-care, home living, social skills, community use, self-direction, health and safety, communication, functional academics, leisure, and work.

_An onset that originates during the developmental period. Most states, including Texas, have defined this as age 18 or younger, although a few states have extended it to 22, the age limit for schools to educate mentally retarded students.

SOURCE: Star-Telegram research