By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
There was both a public and private outpouring of grief for the officer, with memorial services in Dallas and in Rhode Island. American Airlines chartered a plane and crew, flying 200 of Jackson's fellow officers to Newport to mourn their fallen brother. In Dallas, thousands attended a public funeral for Jackson, who was remembered as quiet, funny, committed to the job. Frequently, he acted as a liaison to DPD's gang units, encouraging teenagers he met on the street to straighten out their lives.
"He would try to settle the kids down a little," his father recalls. "He was just an all-around good guy."
In the wake of the tragic murder, multiple editorials and letters to the editor in The Dallas Morning News called for immigration reform. A crackdown on illegal immigration would have prevented Jackson's death, they said, and letter-writers asserted that police should be required to report offenders who are illegal immigrants to immigration officials for deportation whenever they are arrested. Maybe then, Lizcano would have been in jail—or on his way back to Mexico—instead of firing shots at officers.
When the trial began in October 2007, investigator Debbie Nathan, a mitigation expert who assisted Lizcano's lawyers by trying to help "humanize him," says she was stunned by the many police officers who sat through Lizcano's trial alongside the Jackson family. Captain Jackson and his wife made the trip from Rhode Island and stayed for six weeks to watch the trial. "The police presence really dominated," Nathan said, while Lizcano's side was "nearly empty." A handful of family members were brought up from Mexico to testify, but on the whole, Nathan stated in a habeas affidavit, the police officers "reminded [her] of an army," seated very close to the jury box.
A mannequin dressed in Officer Brian Jackson's bloodied uniform stood before the jury throughout the trial. The guilt or innocence phase was relatively straightforward, as jurors heard testimony from Jackson's tearful widow and fellow officers at the scene the night he was murdered. Though Lizcano's lawyers, Brooke Busbee and Juan Sanchez, did question whether Jackson had adequately identified himself as a police officer before Lizcano shot him, jurors quickly found him guilty of capital murder.
Only after his conviction in the punishment phase of the trial did the court allow testimony of Lizcano's intellectual disabilities. But John Tatum, Lizcano's appellate lawyer, considers it a better practice to let a separate jury hear the mitigation evidence of mental retardation, rather than a "death-qualified jury." "There's six to eight more weeks of psychological priming for giving the death penalty," during capital trials when graphic photographs, bloody clothing and masses of victim supporters might appear before the jury, as they did in Lizcano's trial.
The burden of proving retardation fell on the defendant, whose lawyers called his ex-girlfriend Marta Cruz to the stand. Through her, they attempted to prove that Lizcano had significant limitations in adaptive functioning, the second prong of the Supreme Court's clinical definition. Ten years his senior, Cruz said she acted more like Lizcano's mother than anything else. She testified that she taught him how to clean his ears, noticing that after showering, he'd always have grass in them from his landscaping job. She would find him clothes that fit, since clothing sizes confused him—Lizcano, if left unassisted, would wear oversized shirts and pants that would swallow him up. And after tiring of trying to teach him to read a clock, Cruz finally got him a digital watch so he could just read the numbers.
Mitigation expert Nathan had found Lizcano's former sixth-grade teacher, Aleida Reyes Lucio, who testified that Lizcano was a slow learner who couldn't master an elementary school education, and a Mexican nurse who once treated Lizcano for the flu. She testified that it was common among women of the region to lack prenatal care and that Lizcano's nutrition as a child was "totally deficient." Her account was backed up by Lizcano's mother, Alejandra, who described the poverty-stricken conditions of his childhood and his trip to the United States, from where he would send home money every 15 days to help support the family he left behind.
Because Lizcano could not count change as a 10-year-old at the cooperativa store on the rancho, his older brother Reyes Lizcano Ruiz told him he could no longer work there. And while Lizcano could be trusted to work and send money home to his family, a cousin testified that Lizcano often didn't understand jokes and laughed inappropriately.
In addition to testimony from family and friends, two medical experts testified to Lizcano's deficits in intellectual functioning, the first prong in the Atkins definition. According to these defense experts, Lizcano functions at the intellectual level of an 8- to 10-year-old. Various tests reported his IQ at 62, 60 and 48, though prosecutors argued in cross-examination that the scores might be adjusted upward due to cultural and language issues.
Prosecutors were confident that the jury would see, as they did, that Lizcano was functional enough in his everyday life to disprove any mitigating claims of retardation. After all, he could hold a job, drive a car, and had friends and girlfriends. Because of this, says assistant district attorney Patrick Kirlin, the lead prosecutor in the case, they had no qualms about asking the jury to return a death sentence.
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