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Kathryn Kase, a senior staff attorney for the Texas Defender Service in Houston, whose colleagues have worked on Lizcano's case, says that presenting compelling evidence in cases where Mexican nationals are on trial in the United States is costly, time-consuming and particularly difficult in mental retardation cases because of cultural differences. Investigators and lawyers must travel across the border to find persons from a defendant's past who might be able to shed light on certain behaviors.
Kase did just that while defending a Mexican national named Daniel Plata, whose death sentence was recently reduced to life after an extensive investigation into his past and the de-credentialing of an oft-used medical expert, Mark Denkowski, who was found to have inflated IQ scores in the prosecution's favor.
The problem is, Kase says, ideas about mental retardation just don't translate, especially in rural Mexico. "In their communities, they accommodate people with retardation, but the label is not important to them." Getting solid information translatable into the American legal system is a challenge from people living in areas where "knowing the IQ of your baby is not as important" as simply making sure they have enough to eat.
Even Captain Jackson acknowledges that Lizcano's IQ tests were so "borderline, [the issue of mental retardation] could have gone either way." But until the lengthy habeas process concludes or the Texas legislature decides to step up and pass a statutory scheme to deal with the issue, the legal question of whether Lizcano suffers from low intelligence or mental retardation will remain unanswered.
Nevertheless, "the incident," as Jackson refers to the murder, has left its scars on both the Jackson and the Lizcano families. "Not a day goes by that you don't think more about what it would have been like had [Brian] been here," says his father, who dreams about the grandchildren he might have had, and the impact of Brian's loss on his family's tradition of public service. His daughter wanted to make a career out of the military like her father, but she changed her plans because she was fearful that if something happened to her, she would leave her parents childless. Jackson also worries that if the habeas petition should result in a new trial, he might have to relive his son's death again, and yet he takes comfort in the fact that no matter what, Lizcano will always be off the streets. "Whether it's execution or life in prison without parole," he says, "we think that he's being held accountable for his actions."
Lizcano's mother Alejandra, too sick to travel these days from her home in Nuevo Leon, gets dizzy spells and has trouble sleeping at night despite taking medication to alleviate her depression. When she can't fall asleep, she listens to the radio that Lizcano sent her when he was working in the States, and she cries. Like the Jacksons, but for different reasons, Alejandra will never see her son again.
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