News and Developments 2005: Mental Retardation

Though the U.S. Court of Appeals for the Fifth Circuit assumes that Texas death row inmate Marvin Lee Wilson is mentally retarded, it ruled that he cannot raise the issue in federal court because his defense attorney missed a filing deadline. The U.S. Supreme Court has banned the execution of those with mental retardation, but the Fifth Circuit stated that "however harsh the result may be" their hands are tied by deadlines established in the 1996 Antiterrorism and Effective Death Penalty Act.

Ruling that jurors in the most recent retrial of Johnny Paul Penry may not have properly considered his claims of mental impairment, the Texas Court of Criminal Appeals sent Penry's case back for re-sentencing. The Texas court's decision marks the third time that Penry's death sentence has been overturned during the past 16 years. The U.S. Supreme Court overturned his capital conviction in 1989 in Penry v. Lynaugh, a decision upholding the execution of defendants with mental retardation, but striking down the way that Texas courts considered this issue.  Penry was again sentenced to death, but in 2001 the Supreme Court threw out Penry's new death sentence because the jury was still not properly instructed about mental retardation. In 2002, as the Supreme Court was handing down its decision that the mentally retarded are exempted from the death penalty (Atkins v. Virginia), a trial court sentenced Penry to death for a third time.  The recent Texas Court of Criminal Appeals decision overturned this third sentence because the jury may not have understood that it could consider mental impairments beyond mental retardation as mitigating evidence. Penry was convicted of the 1979 rape and murder of Pamela Moseley Carpenter in East Texas. Defense experts have consistently noted that Penry's IQ is below 70, one indicia for those considered to be mentally retarded, and experts state that Penry remains very childlike in his abilities.

On August 9, 2005, the Court of Common Pleas Criminal Division in Hamilton County, Ohio, held that Darryl Gumm, a death row inmate, is mentally retarded. The decision came after Mr. Gumm filed a post-conviction petition in the state court following the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Gumm's case appears to be the first Ohio death row inmate to be declared mentally retarded and therefore unexecutable. (State v. Gumm, No. B-9205608)