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But the CCA went beyond Atkins' clinical definition of mental retardation, and also allows juries to consider seven "Briseno factors," at least one of which focuses on the commission of the crime (in Lizcano's case, an unprovoked cop killing) rather than the mental disability of the defendant (Lizcano's IQ was below 70). Other factors deal with the defendant's rationality, his premeditation and skill at deception. The problem is, says John Tatum, the Dallas attorney who appealed Lizcano's conviction, mentally retarded people are capable of rational thought. They can understand the difference between right and wrong. "People think mentally retarded people sit in the corner drooling, but that's not the case," Tatum says. "They drive cars. Mow lawns." Moreover, Tatum emphasizes, "Mentally retarded people can commit crimes and still be mentally retarded."
Although the prosecution, the jury and a majority of the CCA thought otherwise, Lizcano and his attorneys maintain in a writ of habeas corpus that he is mentally retarded and sentencing him to death violates the Eighth Amendment's ban on cruel and usual punishment. He also claims that the state's procedure for determining mental retardation in capital cases is flawed. In Texas, a defendant is only allowed to present evidence of his retardation as mitigation in the punishment phase of the trial, after the jury has found him guilty of a capital crime. There is no pre-trial procedure to take the death penalty off the table altogether. And with a "death-qualified" jury, whose members are chosen for their willingness to dole out the death penalty, focusing on the nature of the crime instead of the intellectual disability of the defendant can result in egregious constitutional violations, Tatum argues—such as the execution of the mentally retarded.
"That's a really perilous way to set up the procedure," adds Clinical Professor of Law Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas at Austin. Individual trial judges, says Owen, might be more reliable in making determinations of mental retardation, but many choose to pass on the question to juries. There simply is no procedural statute in Texas that provides consistency in mental retardation cases. "The more we use the death penalty," Owen says, the more important it becomes to have a "meaningful vehicle" for resolving retardation claims. Owen estimates that as much as five to six percent of the United States prison population is mentally retarded—and as many as 25 prisoners on death row in Texas, out of 323.
Tatum also feels a Texas statute would add more clarity and direction to an already complicated appeals process. In May 2010, nearly five years after Lizcano's arrest, the CCA denied his direct appeal, holding that although Lizcano was intellectually substandard with an IQ of 70 or less, he did not prove the second prong of the definition of mental retardation—that he had significant deficits in adaptive functioning. Failing this proof, the jury could justifiably find that Lizcano was not mentally retarded.
To comply with scheduling deadlines, his lawyers brought a habeas corpus writ challenging the legality of Lizcano's confinement, even before the CCA had ruled. The writ was filed in Judge Andy Chatham's 282nd District Court in Dallas, the same judge who presided over Lizcano's original trial. Respected Houston capital defense lawyer David Dow, founder of the Texas Innocence Network, now leads Lizcano's habeas team, which is conducting a top-to-bottom investigation of the case, including Lizcano's troubled upbringing in Nuevo Leon, Mexico, where he was born into abject poverty. (Dow has declined comment for this story citing pending litigation.) Gathering affidavits and testimony, these lawyers are searching for risk factors known to contribute to mental retardation: among them poor nutrition, maternal substance abuse, and limited access to educational resources. In their petition, they allege they have discovered new evidence that will further prove that Lizcano possessed the adaptive deficiencies requisite to finding him mentally retarded.
As a result of the habeas team's efforts, at least one juror has sworn in an affidavit that if she had been presented with certain pieces of evidence—a family history of intellectual disability, alcoholism and Lizcano's inclination to be a follower—she would have been convinced of his retardation and voted to save him from the death chamber.
Lizcano has fallen into a treacherous gray area in Texas, with defense medical experts diagnosing him as mildly mentally retarded, while he seeks relief from a Court of Criminal Appeals known for its reluctance to grant death row appeals. If Juan Lizcano manages to cheat the executioner, his sentence commuted to life without parole, it will mark a break in the chain of misfortune that troubled his family even before his birth in Mexico.
In 1976, Juan Lizcano's mother, Alejandra, gave birth to him, her eighth child, alone, squatting, as she did with all her 11 children. Estranged from her family and living on a rancho, sharing land and limited resources with nine other houses, Alejandra and her children often went hungry. Her husband, Sabino, had suffered a stroke and was too sick to work, so it fell upon Alejandra to feed her family. They all slept together on the dirt floor of a one-room house without running water or electricity in rural Nuevo Leon, east of Monterrey.