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Executing supposedly (but not really) retarded murderers

There is much huffing and puffing about Texas's planned execution of Marvin Wilson.  The AP story begins:

A Texas death row inmate scheduled to die later Tuesday for the killing of a police informant 20 years ago is hoping the U.S. Supreme Court agrees with his attorneys that he's too mentally impaired to qualify for execution.

Marvin Wilson, 54, was found to have a 61 IQ on a 2004 test, putting him below the generally accepted minimum competency standard of 70, his attorneys contend in an appeal before the justices.

You have to get halfway down the story, to a quote from AAG Ed Marshall, before you find any doubt expressed that Wilson is, in fact, retarded.  And how about that 61 IQ test?  Here is an excerpt from the USCA5 opinion:

Five I.Q. scores are reflected in those reports.  The first I.Q. test, the Lorge-Thorndike, was administered by Wilson's school when he was approximately 13 years old.  Wilson's full-scale score on this test was 73.  At age 29, Wilson was given an I.Q. test by the Texas Department of Criminal Justice and scored 75.  In April 2006, when Wilson was 46 and during the post-conviction proceedings, Wilson scored 61 on the WAIS III I.Q. test.  On further testing by the defense, Wilson scored 75 on the Raven Standard Progressive Matrices and 79 on the TONI-II I.Q. tests.  A score of 70 or below supports a finding of mental retardation.
There are five tests, four of which show Wilson is not retarded.  The one outlier is the one that gets prominent mention in the AP story.
And how reliable is that one test?  First, it is important to know that the test was given after Atkins, when Wilson had a powerful incentive to score low.  Second, anybody who wants to can score low on an IQ test by simply not trying hard.  How well did Wilson's testifying expert account for these factors?  Another excerpt from the USCA5 opinion:

The state court's opinion quotes extensively from the state's cross-examination of Wilson's expert Dr. Trahan, challenging Dr. Trahan's reliance on his assumption that the WAIS-III was administered by a "well-respected and well-trained psychologist" when in fact the test was given by an intern and Dr. Trahan conceded that no records were available to indicate Wilson's motivation, attentiveness or cooperativeness or the test surroundings.
Wow.  That really should be sanctionable misconduct for a scientific professional.  Failure to take appropriate measures to determine whether the subject in malingering in a context where he has a powerful incentive to malinger is not science, it is prostitution.

As bad as the AP story is, other coverage is worse.  Liliana Segura writes in The Nation (which is no longer Communist):

If 54-year-old Marvin Wilson is put to death on Tuesday, it will not be because Texas denies that he is intellectually disabled, or as the legal literature puts it, "mentally retarded." This much, the state recognizes. It just does not believe that Wilson is disabled enough not to be executed in Texas--a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that "the mentally retarded should be categorically excluded from execution," period.
That is simply a bald-faced lie.  The state very much denies that Wilson is "mentally retarded."

The UPI story is headlined, "Texas set to execute mentally retarded man."  The story says that the conclusion that Wilson is retarded "was never challenged."  The USCA5 opinion quotes the conclusion of the Texas CCA opinion (which does not appear to be available online):

The defendant has the duty and burden to demonstrate by a preponderance of the evidence that he is mentally retarded.  While there is some evidence to support that conclusion, the overwhelming weight of the credible evidence indicates that he is not.
Why are all these stories uncritically reporting what Wilson's lawyers say when the contrary holdings of two courts are easily available?

It would be easy to ascribe this to ideological bias, but I think that is too simplistic.  There are likely three factors at work here.  Ideological bias is one of them.  A second is "big story" bias.  The execution of a clearly guilty murderer who claims to be retarded, but in fact is not, is not a big story.  That is an inconvenient truth when your job is writing about big stories.  A third is just plain laziness.  The anti-death-penalty movement spoon-feeds the press.  The pro side doesn't.  The lawyers actually working on the case are government attorneys who typically don't actively seek out the press.  Some won't even talk to the press when asked.  Organizations on the pro side (including CJLF) are small and sparsely funded.  We can't launch PR operations on every case.  When these three factors converge, the press coverage becomes profoundly distorted.

All is not lost, though.  Rodger Jones at the Dallas Morning News reads the claims with appropriate skepticism.

At SCOTUS, the docket for Wilson's certiorari petition is here, and the stay petition is here.

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