An Unprecedented Move on Death Penalty for the Retarded

Oklahoma Gazette | December 15, 2005
Defense attorneys were elated. The attorney general was peeved. But all agreed it was a historic moment for the state of Oklahoma.

In an unprecedented move of handing down decisions on six death row cases in one day, the Oklahoma Court of Criminal Appeals established a new chapter for the state on capital punishment. It wasn’t just what the court did, but how the judges ruled and where it may lead.

All six cases dealt with the issue of mental retardation. Since the U.S. Supreme Court ruled in 2002 it is unconstitutional to execute the mentally retarded, states have wrestled with defining the illness and how it should be measured. Oklahoma’s appeals court did just that.

“What I think the Oklahoma Court of Criminal Appeals did was to make clear they were going to enforce that rule,” said University of Tulsa law professor Lyn Entzeroth. “They were not going to allow the system to be manipulated so that people who are mentally retarded slip through the cracks and actually be executed.”

Entzeroth formerly clerked for current appeals court Presiding Judge Charles Chapel.

Three death row inmates — Darrin Lynn Pickens, Maximo Lee Salazar and Robert Wayne Lambert — were spared lethal injection and given life without parole by the court. Two other defendants — Victor Wayne Hooks and Karl Lee Myers — were denied post-conviction relief. Another defendant, Patrick Dwayne Murphy, had his case sent back to district court to determine mental retardation.

Attorney Vicki Werneke with the Oklahoma Indigent Defense System called the rulings historical and extremely shocking.

“The fact that we won three cases in one day, where they not only granted relief but modified the death sentence, is extraordinary,” said Werneke, who represented several of the defendants.

In most death penalty cases where the appeals court overturns the conviction or sentence, the court usually sends the case back to a jury. But with Lambert, Salazar and Pickens, the court skipped the procedure and commuted their sentences.

“The court could just rubber stamp these cases and say a jury has to decide this,” Entzeroth said. “But the evidence in Lambert and Pickens was overwhelming they suffered from mental retardation. The court made clear that when the evidence supports mental retardation, they are not going to be executed.”

But for state Attorney General Drew Edmondson, the court not only made the wrong decisions, it overstepped its authority.

“They’re supposed to look for errors of law,” Edmondson told Oklahoma Gazette, referring to the appeals court. “They are not supposed to be the triers of fact. The trier of fact in these cases was a jury below, and when a jury tried the facts, they found the defendants were not mentally retarded.”

In each of the cases, the appeals court previously granted new trials for the determination of mental retardation. All six defendants were found by a jury to not be mentally retarded.

In Pickens’ case, the court said the jury’s verdict was contrary to the evidence. With Lambert, the court found factual and legal errors with the case. He was convicted for two murders, with both sentences modified by the court to life in prison without parole.

In the Salazar case, the court took issue with the prosecution’s expert witness on intelligence testing, Dr. John Call. The court said there were serious flaws with Call’s testing methods and believed they were crucial to the jury’s verdict. Writing for the majority, Judge Charles Johnson scorned defense attorneys for not pointing out the flaws.

“We cannot fathom, in a case which boiled down to a battle of experts, why (Salazar’s) counsel failed to research the tests Dr. Call performed on (defendant) to confirm the origins of and the scientific validity of those tests before (Salazar’s) mental retardation hearing,” Johnson wrote.

“Further, we are bothered that this state’s witness seemingly, intentionally misled the trial court and the parties about the reliability of his own tests to strengthen the state of Oklahoma’s case against Mr. Salazar.”

In each case in which the court overturned the death sentence, Judge Gary Lumpkin dissented. He was particularly disturbed at the Pickens decision.

“I vigorously dissent to the Court’s troubling decision which vacates (Pickens’) death sentence and modifies that sentence to life imprisonment without parole,” Lumpkin wrote. “The court’s opinion represents both a miscarriage of justice and an abuse of judicial power.”

Which is why Edmondson is seeking his own relief with the state Legislature.

“We need the Legislature to establish the procedures for making these determinations rather than doing it by court rule,” Edmondson said. “There should be a statute.”

All sides agreed the court was forced into these decisions because lawmakers have failed to provide guidance. A bill was passed by the Legislature in 2002 only to have former Gov. Frank Keating veto the bill. After the U.S. Supreme Court ruled it unconstitutional to execute the mentally retarded that same year, another attempt was made to pass a bill in Oklahoma. But the bill bogged down in the House of Representatives.

Edmondson also complained in the cases which were modified, the state was not allowed to respond to the defendant’s briefings. Both sides had to submit their opinions simultaneously, which Edmondson believes gives an unfair advantage to the defense.

But Werneke pointed out that in two of the cases under the same conditions, the state won. And in some cases, the state failed to file any briefs.

“I find very curious that is their complaint,” Werneke said. “If that was their objection, they could have asked the court for an opportunity to respond. It just seems a little disingenuous to complain about it now.”

While concurring with the court’s decisions to grant relief from the death sentence in Lambert’s, Salazar’s and Pickens’ cases, Judge David Lewis disagreed with modifying the sentences to life without parole. He believed the decision should be put back in the hands of a jury.

Oklahoma Gazette

In its inaugural issue of Oct. 15, 1979, Oklahoma Gazette, at that time an upstart, bimonthly publication with a mere 2,000 circulation, featured a page-one story about the Oklahoma City Council’s recent passage of an urban conservation district. Hardly sexy...
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