Update at 4:09 p.m.: The Fifth Circuit Court of Appeals just stayed Campbell's execution on the grounds that he may legally be mentally retarded/intellectually disabled.
It is regrettable that we are now reviewing evidence of intellectual disability at the eleventh hour before Campbell's scheduled execution. However, from the record before us, it appears that we cannot fault Campbell or his attorneys, present or past, for the delay. According to Campbell, in the period immediately after Atkins was decided, his attorney diligently searched for evidence of intellectual disability.12 And, when the Texas Department of Criminal Justice failed to turn over the results of the intelligence test they had administered on Campbell upon the attorney's request for "any and all intellectual functioning tests," the State gave the attorney incorrect and incomplete information. Thus, although the delay is regrettable, we do not see it as militating against a stay of execution in this case.
Campbell's habeas corpus claim now goes back to trial court.
Original post: At 6 this evening, Robert James Campbell will, odds are, become the first U.S. prisoner executed since Oklahoma spectacularly botched the lethal injection of Clayton Lockett two weeks ago. His lawyers have filed a last-ditch appeal, citing Lockett's death and the mysterious source of Texas' supply of pentobarbital, but Oklahoma used a different drug and different procedure, and the 5th Circuit Court of Appeals has in the past proven unsympathetic to complaints of drug secrecy.
The legalistic debate over whether Texas should be forced to reveal the source of its pentobarbital is important, but it obscures a more fundamental problem with Campbell's case and, more generally, the state's death-row machine: Campbell, the evidence suggests, may be mentally retarded, which, under current U.S. Supreme Court precedent, would make his execution unconstitutional.
The Texas Court of Criminal Appeals last week denied Campbell's request for a stay of execution.
Campbell, 41, is on death row for the January 1991 kidnapping, rape and murder of a Houston bank employee.
Significantly, though, four of the nine justices disagreed. In a dissent, they wrote that Campbell's case presented "prima facie evidence of mental retardation."
Mental retardation is a slippery thing to define, particularly in capital cases. A dozen years after deciding that executing mentally retarded prisoners is unconstitutional, the Supreme Court is still grappling with exactly what legally constitutes mental retardation.
For now, the threshold in Texas is an I.Q. score of 70. Above that, the state is free to kill. Below, it's unconstitutional.
Campbell's I.Q. has fluctuated over the years, from 68 when he was tested in elementary school to 84 when the Texas Department of Criminal Justice tested him in 1990, when he was locked up for an unrelated crime, to 71 in 1992, when he was on death row.
Particularly troubling to the dissenting justices in Campbell's case is the fact that the state neglected to mention the two lower scores -- which, when one considers the margin of error, could both fall below the mental retardation threshold -- telling his attorneys that there had been only one I.Q. test and that Campbell had scored an 84.
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The dissenting opinion doesn't definitively claim that Campbell is mentally retarded, just that there's a considerable amount of uncertainty that needs to be sorted out by the courts.
"This Court should not base its decisions that determine whether a person will live or be executed based on misinformation or wholly inadequate information," the dissenting judges write. "By reviewing applicant's claim on the merits, this Court would fulfill its ultimate obligation to ensure that Texas abides by the constitutional prohibition against the execution of a mentally retarded person."
Then again, Texas hasn't been terribly troubled by mental retardation questions in the past.
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