Texas Executes Inmate With Mental State of a Child

Update: RIP Marvin Wilson. The Texecution proceeded, and Mr. Wilson was pronounced dead 14 minutes after it began.

Bump and Update: The Supreme Court has refused to intervene.

Barring intervention by the Supreme court, Marvin Lee Wilson, age 54, will be executed in Texas at 6:00 pm tonight. What's wrong with Texas?

At 54, Marvin Wilson can't use a telephone book. He reads and writes on a first- or second-grade level. Those who know the Southeast Texas man say he can't match socks, he doesn't understand what a bank account is for, he's been known to fasten his belt to the point of nearly cutting off his circulation. The day his son was born, one sister recalled, he reverted to the familiar habit of sucking his thumb. His IQ, according to the most valid indicator of human intelligence, is 61, below the first percentile.


Here is Mr. Wilson's psychological report. It's the only report submitted in the case, and was written by a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an Mental Retardation specialist. Texas hasn't contested it or filed a different one. But they claim Mr Wilson is an exception to their mental retardation rules and must die.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court banned execution of the mentally retarded as contrary to the 8th Amendment. But it left the procedures for determining whether a defendant is mentally retarded up to the state. And Texas' procedures are wacky to the point of being fiction. They are called the "Briseno Factors" and they permit some persons with retardation to be executed, in violation of the Supreme Court's ruling.

Texas State Senator Rodney Ellis released this statement:

'We do not execute children in the state of Texas, therefore we should not execute those who have the mental capacity of a child. The ultimate penalty should be reserved for those that can clearly comprehend why they are going to die.'

Law Professor Paul Campos has this article in Salon opposing Mr. Wilson's execution. He also aptly describes Texecutions in general:

The state of Texas likes killing people, and it’s not terribly particular about whom it kills. In recent years Texas has executed people who were severely mentally ill, represented by frighteningly incompetent lawyers, and almost certainly innocent. The latest innovation in justice Texas-style is illustrated by the state’s plan to execute Marvin Wilson, a mentally retarded prisoner with an IQ of 61.

Here is Mr. Wilson's petition for writ of certiorari to the Supreme Court to stop the execution.

During all nine years of Atkins litigation, the State has never put on a single witness or introduced a single piece of evidence to contest the MR claim.

On the Briseño factors:

The Briseño factors specify, within the universe of inmates with MR, the subset that receive Atkins protection — they identify which claimants have the “level and degree of [MR] at which a consensus of Texas citizens” would prefer the death penalty imposed.

The Briseno factors are:

(1) whether those knowing the offender best during the developmental stage thought he was retarded and whether they acted consistent with that belief; (2) whether the offender thought about his plans or acted impulsively; (3) whether the offender’s conduct suggested leadership; (4) whether an offender’s responses to external stimuli were rational or whether they were merely socially inappropriate; (5) whether his responses to questions are coherent or are wandering; (6) whether the offender is capable of lying in his self -interest; and (7)whether the criminal offense required forethought, planning and complex execution.

What's wrong with them?

[T]he Briseño factors lack any scientific foundation, violate the basic diagnostic principle that adaptive strengths and limitations coexist, exclude inmates from Atkins coverage on the basis of MR-consistent behavior, and marginalize expert evaluation...[yet]courts invariably use them to deny relief to claimants with mild MR.

In addition, recently disclosed evidence from the DA's office indicates Wilson may not have been the shooter or known about the plan to kill the victim (a police informant.)

On June 18, 2012, the DA’s Office disclosed that it had information suggesting that Mr. Williams may indeed have been killed by gunshots in the early-morning hours of November 10, that Mr. Wilson was not a shooter, that he had planned only to participate in an assault, and that he was not otherwise a principal assailant.

The Texas trial court, acting sua sponte, convened a hearing on July 2. On July 6, the trial court issued an Order refusing to withdraw the execution date on the grounds that “it is not clear” that the newly discovered evidence “would definitely have been admissible at trial,” and that because Mr. Wilson was convicted as a co-party—there was not “clear and convincing evidence that no reasonable juror would have convicted him at trial in light of this newly[-]available evidence.” Order, Texas v. Wilson, No. 63940 (Jul. 6, 2012).

But that's what was used to sentence him to death:

In short, Mr. Wilson received his sentence under precisely the circumstances that make the capital punishment of offenders with MR problematic: he was one of multiple perpetrators, the eyewitness identification of the primary assailant shifted over time, the more mophisticated accomplice fingered Mr. Wilson as the leader, and evidence of Mr. Wilson’s “confession” came from the accomplice’s wife.

Atkins lists three clinical criteria for mental retardation: (1) significantly sub-average intellectual functioning (low FSIQ); (2) adaptive deficits; and (3) onset during the developmental period.

Wilson fits them all. He reads and writes at a second grade level. He failed in attempts to get a GED or vocational trade certificate. He could never pay bills or manage a bank account. He couldn't do basic tasks like cutting the grass or using a ladder. He can't dress himself properly or perform many basic living tasks. He has trouble distinguishing left from right.

But the State Court, when finally holding an Atkins hearing, ruled against him, finding he "functioned sufficiently in his younger years to hold jobs, get a driver’s license, marry and have a child."

The 5th Circuit upheld the state court's application of the Briseno factors as "not a unreasonable application of Atkins."

Wilson argues in his petition for cert:

One of the cardinal rules of MR diagnosis is that it must reflect typical functioning. See 2002 AAMR MANUAL 74-87. The Briseño factors generally require a court to ignore typical functioning and to instead focus almost entirely on the level of functioning that might be inferred from the criminal conduct adjudicated at the guilt phase of a capital proceeding.

...The entire point of Atkins, however, is that offenders with MR are often convicted of criminal behavior that is not indicative of their actual moral culpability: “Because [claimants with MR have impaired] reasoning, judgment, and control of their impulses,” they lack the “moral culpability that characterizes the most serious adult criminal conduct” and “their impairments can jeopardize the reliability and fairness of capital proceedings against” them. Atkins, 536 U.S. at 306-07.

Atkins observed that offenders with MR confess to roles in crimes they did not have, that they cannot effectively testify in their own defense, that “their demeanor may create an unwarranted impression of lack of remorse,” and that they are frequently unable “to make a persuasive showing of mitigation[.]” Id. at 320-21.

No other state applies Atkins like Texas:

The Briseño factors render Texas and the Fifth Circuit extreme outliers in Atkins adjudication. Atkins observed that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.”

Texas, however, has misread this passage as a license to exclude certain offenders with mild MR from Atkins coverage: “[W]e established guidelines in [Briseño] for determining whether a defendant had that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” Sosa, 364 S.W.3d at 891.

If we can't get Texas to secede from the nation, maybe someone can introduce a constitutional amendment to strip them of their electoral college votes in presidential elections until they comply, like most of us, with the norms and evolving standards of decency in a civilized society.

Texas Death Row information and statistics are available here.

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  • Display: Sort:
    Speaking of (5.00 / 2) (#1)
    by lentinel on Tue Aug 07, 2012 at 06:07:43 AM EST
    standards of decency in a civilized society, I remember how I felt when Bill Clinton, the Governor of Arkansas and Presidential candidate, "made a point" of overseeing the execution of Ricky Ray Rector. It seemed to me that he did so in order to enhance his credentials with the pro-death penalty crowd and show that he warn't no soft-on-crime librul.

    Rector's mental state was so deficient that he left the dessert from his "last meal" aside so that he could eat it after the execution.

    Bill was undeterred.

    Politics, ambition and ambitious politicians will do just about anything to get elected or stay elected.

    As for why this behavior is still so prevalent in Texas, it seems to me that they have a long history of executing people on a regular basis. Maybe they enjoy it. Or maybe, the politicians are all pro-death penalty - so the people have no say in the matter.

    Shameful. (5.00 / 6) (#2)
    by Angel on Tue Aug 07, 2012 at 07:58:27 AM EST

    This Texan is Ashamed (5.00 / 3) (#3)
    by ScottW714 on Tue Aug 07, 2012 at 09:47:28 AM EST
    But if the SCOTUS does not intervene, this will be a shame beyond our borders.

    John Steinbeck's family is a bit (5.00 / 6) (#12)
    by Anne on Tue Aug 07, 2012 at 06:01:31 PM EST
    perturbed, as well.  David Dayen says he got this statement from Steinbeck's son:

    "On behalf of the family of John Steinbeck, I am deeply troubled by today's scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson's case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."

    This case is just heartbreaking, and makes me feel like the people making these decisions aren't exactly showcasing their own intelligence.

    Then again, we have become a nation that sends drones into other countries to kill; I think it's time we made up our minds what kind of people, what kind of country, we want to be.


    Oh, if I could give (5.00 / 2) (#15)
    by Zorba on Tue Aug 07, 2012 at 06:32:48 PM EST
    a "ten" or even way, way more to this, I would.  Thanks, Anne!

    I Think We Have (5.00 / 1) (#33)
    by ScottW714 on Wed Aug 08, 2012 at 11:30:09 AM EST
    But we DON'T live in a civlized society (5.00 / 4) (#4)
    by Dadler on Tue Aug 07, 2012 at 10:05:48 AM EST
    We live in an edited VERSION of one, reserved for a few people. From an out of control Military Industrial Complex we were warned about 60 firggin' years ago by a former General turned President, serial murder by drone (which you and I both know are coming to kill at home soon), to the Prison Industrial Complex, to a financial system as corrupt as any and cheating almost all of us, to being the champion of mass murders, to any number of other abhorrent things that are done in our name and that we all live in comfy denial about most of the time...I repeat, we are NOT a civilized nation.  To even suggest it with two massacres in the recent past, with our warmongering and so what attitude about innocent deaths, come on.  

    Texas is merely a horrific symptom of something much worse and more widespread.

    It was a very bad precedent (5.00 / 1) (#5)
    by jondee on Tue Aug 07, 2012 at 11:47:49 AM EST
    electing someone governor (and maybe more than one), with the seeming-at-times "mental state of a child"..

    And maybe worse than that was the fact that both Bush and Perry got elected for, in part, promising to Judge Roy Bean lots and lots of people..

    ..hain't no yankee liberals gonna tell Texas they cain't string up whoever they want: it's our culture 'n heritage..

    To riff on one of my favorite films: (5.00 / 2) (#6)
    by Donald from Hawaii on Tue Aug 07, 2012 at 02:40:21 PM EST
    "Forget it, Jeralyn. It's Texas."

    Simply suspending Texas' electoral votes would be too good for them. The the Lone Star State should be made to suffer the indignities of territorial status, with a presidentially-appointed governor and various federal commissions to oversee public affairs in the region -- not unlike what happened to Hawaii for the better part of the nearly seven decades between the U.S. Navy-led overthrow of Queen Liliuokalani's government in 1893 and statehood in 1959.

    Capital punishment is nothing less than a modern-day civilized barbarity. That can never be said enough.


    Thanks, Donald. (5.00 / 1) (#19)
    by Angel on Tue Aug 07, 2012 at 09:30:44 PM EST
    I'm a Texan and I'm opposed to the death penalty.  Texas isn't the only state that condones killing those convicted of crimes.  Your suggestions about suspending our electoral votes and giving us an appointed governor is incredibly sanctimonious.  Last time I checked the death penalty was a state issue, not a federal one.  As much as I hate the death penalty, I abhor a holier-than-thou attitude.

    am I wrong or did you just say (none / 0) (#23)
    by TeresaInPa on Wed Aug 08, 2012 at 01:06:25 AM EST
    you prefer the death penalty to a a holier-than-thou attitude.

    You're wrong - at least as I read it. (5.00 / 2) (#24)
    by Anne on Wed Aug 08, 2012 at 06:33:22 AM EST
    Hating one thing and abhoring another doesn't mean you prefer one over the other, it means you found a synonym for a strong negative feeling.

    Hate, abhor, loathe, detest...if you wanted to split hairs, I'm sure you could find people who rank those terms and assign them accordingly, but I don't get the sense that Angel was trying to say that she "prefers" the death penalty over a holier-than-thou attitude - especially given her other comments on the subject.

    But I don't presume to speak for her; perhaps she does find a holier-than-thou attitude to be more repulsive than state-sanctioned killing.  </snark>


    You're wrong, didn't say that. (none / 0) (#44)
    by Angel on Wed Aug 08, 2012 at 09:57:18 PM EST
    yes (none / 0) (#46)
    by TeresaInPa on Tue Aug 14, 2012 at 07:52:16 AM EST
    based on the last sentence, "as much as I", you did say that.  I accept that you did not mean it that way.

    No place to go. (1.00 / 1) (#7)
    by lentinel on Tue Aug 07, 2012 at 03:07:13 PM EST
    Capital punishment is nothing less than a modern-day civilized barbarity.

    And Obama and Romney are both for it.
    So was Clinton. So was W.

    Not much "evolution" from either political party on this issue.


    please comment on this case (5.00 / 1) (#9)
    by Jeralyn on Tue Aug 07, 2012 at 05:22:56 PM EST
    and don't hijack the thread to Obama, Bush and Clinton.

    Sorry. (none / 0) (#11)
    by lentinel on Tue Aug 07, 2012 at 05:35:11 PM EST
    Why are you always so insistent .. (2.75 / 4) (#8)
    by Donald from Hawaii on Tue Aug 07, 2012 at 05:11:35 PM EST
    ... on calling attention to your full-feathered display of moral superiority, like a peacock in rut?

    More to the point, did I include any caveat about Bill Clinton, Barack Obama and Democrats -- or any other politician or political party, for that matter -- when I first offered my statement above about the barbarity of capital punishment?

    You know, I don't believe I did -- but then, I'm not in the habit of reading between the lines of my own prose to discern what I'm really trying to say, subliminally or otherwise, about the subject at hand.

    It should therefore go without saying that I believe the policy of capital punishment to be wrong, no matter where it occurs or who's in office when it's carried out. And I find it to be rather a shame that I have to come back in order to further clarify that for you.



    Yeah Lentinel (none / 0) (#34)
    by ScottW714 on Wed Aug 08, 2012 at 11:42:28 AM EST
    Moral superiority is only for dumping on Texas.

    Donald doesn't think I deserve to be counted in the voting process, never mind that I detest the death penalty, but you are the one with the superiority complex.

    Not really sure why the other 33 don't make the morality cut, or that Donald understands that his Nation has the death penalty.  Which of course makes him the same as me, living under a jurisdiction with a death penalty...  But burn Texas to the ground and scold everyone else about morality.


    I thought (none / 0) (#36)
    by lentinel on Wed Aug 08, 2012 at 12:13:41 PM EST
    that the man from Hawaii made himself quite clear.
    He said he thought the death penalty was barbaric.

    I pointed out that the candidates from both major parties are all in favor of the death penalty. It seemed to me that if we want to end a practice that many consider barbaric, we need to elect public officials that do not support it.

    My comment is considered off topic unless I refer to the specific barbarity of the execution of a man with an IQ of 61 in the state of Texas yesterday. I will emphatically do so.

    It was barbaric.


    The U.S. Supreme Court (5.00 / 3) (#21)
    by shoephone on Tue Aug 07, 2012 at 11:49:56 PM EST
    is morally bankrupt, and legally hypocritical to the very constitution which founded it.

    from the link (3.00 / 2) (#17)
    by diogenes on Tue Aug 07, 2012 at 08:17:28 PM EST
    "Wilson was convicted of murdering 21-year-old Jerry Williams in November 1992, several days after police seized 24 grams of cocaine from Wilson's apartment and arrested him. Witnesses testified that Wilson and another man, Andrew Lewis, beat Williams outside of a convenience store in Beaumont, about 80 miles east of Houston. Wilson, who was free on bond, accused Williams of snitching on him about the drugs, they said.
    Witnesses said Wilson and Lewis then abducted Williams, and neighborhood residents said they heard a gunshot a short time later. Williams was found dead on the side of a road the next day, wearing only socks, severely beaten and shot in the head and neck at close range.
    Wilson was arrested the next day when he reported to his parole officer on a robbery conviction for which he served less than four years of a 20-year prison sentence. It was the second time he had been sent to prison for robbery."

    Funny how no one disputed that he was able to aid in his own defense (understanding the nature of the court, etc) at either trial for robbery or in the murder trial.  Or how no one says even now that he was "not guilty by reason of insanity".

    The above might be reasons for appeal.  I have in the past evaluated defendants who indeed had mental retardation and judged that they could not aid in their own defense.  If Wilson were as impaired as is being depicted, perhaps he should have appealed saying that his legal counsel failed to address these points.
    Or maybe someone who racked up two robbery convictions, possessed about seven eightballs of cocaine (dealing? using while on parole?) managed to report to his parole officer after release from prison, and knew enough to murder a "snitch" wasn't functioning at such a low level in the real world after all.

    Dunno if Wilson actually... (1.00 / 1) (#20)
    by Gandydancer on Tue Aug 07, 2012 at 09:44:17 PM EST
    ...wrote this, but saying that you play chess and requesting pen pals wasn't a good move if your primary claim on avoiding execution was that you're too dumb to be executed.

    Letting him out last time got someone killed. Couldn't see doing that again any time soon. And warehousing him for nearly 20 years was a waste. There may be hard cases but this doesn't look like one of them.


    I don't know enough (5.00 / 1) (#22)
    by TeresaInPa on Wed Aug 08, 2012 at 12:28:02 AM EST
    about this guy to argue, yet, whether he is or is not retarded.  But I don't think we kill people because we don't want to warehouse them.  A life lived in prison can still be a life in which someone redeems him/herself.  
    I am against the death penalty under any circumstances.  I think people, though many will not, should be given every chance to add something of value to this world.  That some people never will is no reason to deny them the chance.  Besides, the death penalty puts us on a level with some really unsavory nations. I find it shameful.

    If he deserves the death penalty... (1.00 / 4) (#28)
    by Gandydancer on Wed Aug 08, 2012 at 10:00:05 AM EST
    ...I don't want him warehoused longer than necessary. Which he was. And I'm not interested in his "redemption", whatever that means. The time for that was before he murdered someone.

    The whole point of this discussion is (5.00 / 2) (#39)
    by Anne on Wed Aug 08, 2012 at 01:41:59 PM EST
    that this blog takes the position, as do many of us who comment here, that no one "deserves" the death penalty, that imposing a barbaric punishment as retribution for an alleged barbaric act makes no one whole again, does not elevate us as a people, does not serve as a deterrent to crime, and that by reason of there being so many documented cases of the wrong person being put to death by the state, or saved from death by technology proving the state's mistake, and given the irrevocable nature of death, the death penalty needs to be removed from the list of possible sentences that can be imposed.

    No one's asking you to care about anyone's redemption or rehabilitation, but I find it interesting that those who thirst so for blood are the same ones who routinely close their eyes to the societal ills that are the nexus for much of the crime that occurs in this country, and are also the ones who scream the loudest for cutting programs that make some effort to address those ills.  Poverty, poor nutrition, homelessness, lack of education, lack of jobs and job training - these are all things that lead too many people into lives of crime.

    The truth is, you don't care about any of it, do you?  If one person can overcome life's obstacles on his or her own, everybody can and the government should stop spending your tax dollars on giveaway programs for people who are too lazy to help themselves.

    Yeah, I'm one of those bleeding-heart liberals, but at least I have a heart.


    One exception to your post (5.00 / 1) (#41)
    by NYShooter on Wed Aug 08, 2012 at 05:26:09 PM EST
    I think it's reasonable for some good people to feel that someone who commits a particularly heinous crime "deserves" the death penalty.

    I'm completely, and totally, against the D.P for another reason. This penalty is conceived by, adjudicated by, and imposed by human beings. I would like to re-address this issue once humanity rids itself of bias, racism, bigotry, illiteracy, religion, agendas, politics, and human error.

    Until then, the death penalty should be thought of for what it is: Barbaric vengeance.


    "...once humanity rids itself... (none / 0) (#45)
    by Gandydancer on Thu Aug 09, 2012 at 03:48:29 AM EST
    ...of bias, racism, bigotry, illiteracy, religion, agendas, politics, and human error" then vengeance, deterrance, incapacitation, etc. won't be necessary or desirable. Not holding my breath.

    I have read a lot today about Wilson. (2.33 / 3) (#13)
    by sarcastic unnamed one on Tue Aug 07, 2012 at 06:06:35 PM EST
    Not all accounts are as supportive of his lack of competence to stand trial as TL. This is all immaterial, of course, if you are against CP...

    How many accounts are needed? n/t (none / 0) (#25)
    by lilburro on Wed Aug 08, 2012 at 07:09:40 AM EST
    More accounts than... (2.00 / 1) (#29)
    by Gandydancer on Wed Aug 08, 2012 at 10:10:22 AM EST
    ...the one provided here, apparently.

    "n/t" is unintelligible, btw.


    But, sure, you're right (5.00 / 1) (#31)
    by lilburro on Wed Aug 08, 2012 at 10:35:58 AM EST
    Jeralyn's essay with varied citations about a man with a 61 IQ is of similar merit to a letter that Wilson "maybe" wrote, thus it's a toss-up, and hey, if it's a tossup, why not kill him?

    Erring on the side of the death penalty is clearly the most ethical thing to do.


    Exactly (1.00 / 6) (#37)
    by Gandydancer on Wed Aug 08, 2012 at 12:18:15 PM EST
    Jeralyn's essay about a man about whom it was once unreliably and tendentiouly asserted he had an IQ of 61 has, on other evidence, exactly as much probative value as his letter requesting penpals. Which is to say, very little. But it's not a tossup. There's almost no reason to think that the only injustice is that the sentence was unreasonably delayed in its execution.

    Wow. (none / 0) (#40)
    by shoephone on Wed Aug 08, 2012 at 02:39:11 PM EST
    n/t (none / 0) (#30)
    by lilburro on Wed Aug 08, 2012 at 10:31:34 AM EST
    is a commonplace in online discussions.  much like "btw."  link

    Aside from the fact that (none / 0) (#26)
    by lilburro on Wed Aug 08, 2012 at 07:13:48 AM EST
    how Texas determines competency is problematic to say the least...

    Food for thought (1.00 / 2) (#27)
    by Lacy on Wed Aug 08, 2012 at 08:51:54 AM EST
    Interestingly, in Panama City a man's pet pit bull chewed a woman's arm off a week or so ago. The dog is now to be put down, though he clearly did not know what he did was wrong and was possibly provoked. One could hardly question his being "put to sleep".

    In  Texas, the state executes(more like "puts to sleep" since hanging and electrocution are out) a murderer who wasn't of normal intelligence.

    In Florida, a White man stalks an innocent Black man for being Black, accosts him, and kills him.  State thinks something wrong has occurred and acts to seek justice.  Liberal lawyers are incensed and outraged.

    So I Should Lock Up My Dog at County... (5.00 / 3) (#35)
    by ScottW714 on Wed Aug 08, 2012 at 11:54:47 AM EST
    ...when he lifts some food from the counter ? Should I be able to do my business on anyone's lawn so long as I clean it up ?

    Using your example, you want humans killed every time they attack a person, because that's what they do for animals, doesn't matter if the victim lives or dies.

    Worse analogy ever for validating the DP.


    And the Homeless... (5.00 / 2) (#38)
    by ScottW714 on Wed Aug 08, 2012 at 12:21:06 PM EST
    ....do we round them up and euthanize therm when no one claims or adopts them ?

    Speculate much? (none / 0) (#32)
    by jbindc on Wed Aug 08, 2012 at 10:36:05 AM EST
    Marvin Wilson (none / 0) (#16)
    by Zorba on Tue Aug 07, 2012 at 07:28:49 PM EST
    Was executed and pronounced dead at 6:27 PM, Texas time, according to Reuter's.

    sad, sick, and stupid... (none / 0) (#18)
    by fishcamp on Tue Aug 07, 2012 at 08:36:17 PM EST