By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
"The philosophy of this office is that typically the death penalty is merited when a person kills a police officer in the line of duty," Kirlin says in a phone interview. "The bad guys have to know that if you murder a peace officer, that the ultimate punishment must be sought."
"Ladies and gentlemen," Kirlin says he told the jury, "[the defense wants] you to believe he was mentally retarded, but think of what he did that night." Kirlin argued that Lizcano's actions were not those of a mentally retarded man. His threats to Cruz showed premeditation and planning. He was able to elude officers who had Cruz's home surrounded. Kirlin says that "clearly, his actions that night negate the whole mental retardation issue."
Getting the jury to focus on the facts of a crime, how deliberate they were, how premeditated rather than on just the clinical definition of mental retardation is permissible under the Briseno which is why the case is bad law, UT law professor Owen argues. "The Court of Criminal Appeals is confusing retardation with mental illness." Irrationality, Owen says, is "one of the hallmarks of certain kinds of mental illness," but not of retardation. Whereas an "unbiased professional observer" might say that certain behaviors are attributable to adaptive dysfunction, adds Owen, the jury may see them as "willful misbehavior, anti-social conduct."
Certainly Lizcano's jury saw his behavior that way. On November 1, 2007, after a lengthy trial, it only took jurors three hours to sentence him to death.
"They had every opportunity to give him life," Kirlin says. "They reviewed and heard all the evidence." But Lizcano's habeas appeal argues otherwise, claiming that a deeper investigation into Lizcano's background would have revealed more details that, if teased out during the trial, could have made a difference between life and death.
When they were dating, Marta Cruz would count out Lizcano's car payments in cash for him. Every Friday, she would lay out six $20 bills and tell him, "That's $120." Lizcano rolled up the bills and stuck them deep in his wallet, reminding himself not to touch this money because it was for his car.
Habeas attorney David Dow and his investigators are sussing out little stories like these from Lizcano's trial witnesses, family and friends in hopes of convincing Judge Chatham that Lizcano had the kinds of significant limitations on his adaptive functioning to render him retarded and ineligible for execution. They maintain his death sentence is unconstitutional, even when taking into account Briseno factors. Most of all, they argue that Lizcano categorically fits the clinical definition of mental retardation set out in Atkins by the Supreme Court.
Combining affidavits from trial witnesses and others that reflect new evidence not presented at trial, the habeas appeal presents a picture of a man who began life in the worst possible conditions and, to this day, only possesses a childlike grasp of what is happening to him.
In his habeas affidavit, Mexican Vice Consul Luis Lara Benjamin Escobedo, who assists Mexican nationals accused of crimes in the United States, says that other Hispanics on death row are protective of Lizcano, often saying, "Este chavo esta bien bruto. Pobrecito, no entiende nada"—"This guy is really slow. Poor guy, he doesn't understand anything."
Escobedo stated that Lizcano asked repeatedly why his mother couldn't come to visit him, not understanding the lengthy visa process required by the U.S. government. When Escobedo took Lizcano a fourth-grade Mexican history book to read, Lizcano seemed ashamed to read it in front of him, asking for more time to read it later.
In her affidavit, mitigation investigator Nathan said she witnessed Lizcano struggle with the basic concepts of his trial. After a long day in court, he could not recall much of what happened nor remember "anything his attorneys had said." But her affidavit may be more useful in pointing out evidence she had developed that his trial lawyers didn't use. (Both attorneys declined to comment, citing the ongoing litigation).
Nathan had traveled to Mexico on more than one occasion, and found a long history of alcoholism in Lizcano's family. But his attorneys, she said, seemed uninterested in her findings that most of his male relatives would binge drink for days on end, until they ran out of liquor. Nathan says she discussed "a wealth of information" with Lizcano's former sixth-grade teacher about his extreme poverty and malnutrition that was not sufficiently brought out in trial. On the stand for only 20 minutes, Aleida Reyes Lucio was not given time to "explain the nuances" of these "important" facts, Nathan said in her affidavit.
Citing already-established indicators of mental retardation—IQ tests and adaptive deficits—Lizcano's habeas application also paints a picture of an upbringing riddled with retardation risk factors, from maternal substance abuse to an extensive family history of mental retardation on his father's side.
If juror Nikki Dawn Mitchell had been presented with more testimony about his poverty-stricken past, his family history of mental retardation and alcoholism, and evidence that Lizcano was a follower and taken advantage of by others, she would have found him mentally retarded, according to her affidavit filed in the habeas proceeding. Such testimony, she said, "would have been very persuasive" during the trial.