FIFTH CIRCUIT DENIES ATKINS APPEAL

Virgilio Maldonado was sentenced to death by a Texas Court for murder. His counsel filed a petition for habeas corpus in Federal Court, claiming that he was mentally retarded. The Supreme Court ruled in Atkins v. Virginia that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment to execute the mentally retarded.

But the Supreme Court did not set parameters to determine who is mentally retarded. It left this up to the states to decide. Presumably if the states develop different definitions the Supreme Court will settle issue at some time in the future.

In Maldonado, last week,the Fifth Circuit Court of Appeals accepted the Texas definition. It require three factors: 1) significantly subaverage general intellectual functioning, 2) deficits in adaptive behavior, and 3) that the problem developed during the defendants developmental period. Furthermore, the Texas courts put the burden on the defendant by a clear and convincing standard to prove the elements.

Maldonado attacked the psychologist, Dr. George Denkowski, appointed by the state to test him. The psychologist did two basic tests. He performed the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III) and the Adaptive Behavior Assessment Scale (ABAS) The WAIS-III measured intellectual ability. A score below 70 is considered proof of mental retardation and the ABAS measures adaptive ability. But Denkowski’s method of interpreting the tests have been questioned. In other cases his interpretation has been excluded and he currently charged before the State Board for his unscientific methods of interpretation. He raises scores on the tests without scientific support and without legitimate measurements based upon unfounded criteria.

But the Court ruled that even without Denkowski’s report Maldonado failed to prove that he was retarded. His own experts were unable to provide WAIS tests of below 70 and the testimony regarding his adaptive ability did not show that he was unable to cope. He was able to hold jobs, write letters, file reports, and raise a family. As a result the Fifth Circuit upheld the Texas decision denying Maldonado’s petition for habeas corpus.