Testimony Before Texas State House of Representatives
Committee on Criminal Jurisprudence
Re: HB 614

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Nowhere in these criteria do you find any specific attention to the defendant's awareness of what death, for example, actually is, or what it means to kill someone, or why such an action is significant. For more intellectually disabled persons such as the 20's IQ defendant I pointed out earlier, they truly have no idea. For others, who are now typically categorized in the "mildly retarded" range, they may well know.

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In Sen. Ellis' bill, special interests group hit the jackpot. They can even abandon the pretense of definitions of deficits in adaptive skills, for Sen. Ellis bill does not even require that the defendant have any adaptive deficits at all! What a country!

That said, I do want you to register my concerns even with the existing wording of Representative Keel's Bill, which I otherwise support.

A bill that establishes a cutoff of "significant deficits in adaptive behavior," with criteria that are open ended, is still very easily exploited by attorneys and professionals with an agenda. Anyone who can't hold a job has problems in adaptive behavior. But was it his intellect? Or are adaptive problems due to a personality disorder? Or drugs?

While adaptive measures have been studied in the context of determining community needs, they have not been explored with respect to offender populations. In reality, every offender has adaptive problems under the clinical definitions for mental retardation.

With no specific guide beyond "significant deficits in adaptive behavior," which your entire penal system has, you will create criteria that are so wide a net, that were I to be advising a defense attorney about an appeal, and I'm telling you now I will be, you are going to see a lot of game playing of defendants who file spurious retardation claims. Get ready.

If you have no criteria at all, such as under the Ellis bill, you can even have a bad lawyer and an expert witness who's even inartful at being dishonest fool a smart jury into erroneously calling a far greater number of generic defendants.

The consequence you will see in Texas, with a vague definition of "adaptive functions," is a far greater eligible class of convicted capital defendants who will assert that they are entitled to post-conviction hearings on retardation simply because of bad performance in school in their developmental years, and "significant deficits in adaptive behavior," that they can now point to. Is the legislature comfortable with creating a monster that has nothing to do with protecting the retarded?

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I do not believe in the execution of people who do not know what they are doing. That does not equate with the ever changing definition of retardation.

The fact is, the US Supreme Court, in Atkins, never defined retardation - but has mandated the states to define it for themselves. The continued shifting of the definition demonstrates how states might do well to come up with their own definitions. Want something more specific?

I propose that the best way to resolve this discrepancy in distinguishing adaptive skills would be to use the terminology of the US Supreme Court majority opinion of Justice Stevens in Atkins. It is certainly more specific, in terms of what adaptive deficits are relevant. I mean, not for nothing, but should a jury really care if a person has deficits in leisure activities?

Specifically, the Court cited, "diminished capacities to process and understand information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others' reactions." And, including the Court's appreciation that, "there is abundant evidence that these individuals often act on impulse rather than pursuant to a premeditated plan." To use this wording to distinguish the retarded is actually more scientifically specific and relevant that "adaptive functions" of no apparent relevance to forensic situations.

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Ladies and gentlemen of the legislature, I am here because of the remarkable opportunity you have to demonstrate how Texas is a progressive state that leads the way. By passing additional legislation that:

v spells out exactly what needs to be done to ascertain retardation;
v merges the realities of crime facts and moral judgment with the science that otherwise has neglected these core concepts before you, and will continue to neglect it;
v ensures that all defendants have a right to access expertise that competently, ethically can provide assessment of retardation;
v ensures that future courts will have clearly defined protocols for what information is to be gathered, and what checks and balances are to be employed;
v protects the courts of Texas from the risk of biased experts derailing justice and seizing decision-making from the jury;
v ensures that the retarded and morally incompetent will not be executed in Texas;
v ensures the deviously amoral will not be protected simply because of their testing incompetence.

You will address this issue to dovetail with the guidelines of the US Supreme Court, reflecting the limits of scientific understanding and adherence to justice and accountability for those who are more able.

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I conclude my comments by summarizing that I support the passage of Rep. Keel's bill instead of Sen. Ellis' bill for a number of reasons:

Legislation needs to include a clear consideration of the facts of the crime in any evaluation, as they reflect the defendant's level of sophistication - or lack thereof -- on a variety of functional domains. Rep. Keel's bill allows for this, Sen. Ellis' does not.

Intelligence testing defines intellectual deficiency as greater than two standard deviations below the norm for the sample studied. Rep. Keel's bill adheres to this reality. Sen. Ellis adopts a simplistic cutoff of an IQ of 70 that ignores the potential flaws and limits of the WAIS-R, which measures the IQ, and which includes a number of others who are not retarded as capital ineligible, without mandate from the US Supreme Court, Governor of Texas, or your State Senate or House.

Significant deficits in adaptive function are part of any definition of retardation. Rep. Keel's bill includes the finding of these as a necessity. Sen. Ellis' does not, and therefore does not resemble a definition for mental retardation accepted by any professional or practitioner body.

A diagnosis of retardation is only made in those who manifest the condition prior to age 18. Rep. Keel's bill parallels this definition. Sen. Ellis' ignores it altogether, allowing for a non-specific definition that substantially widens the number of capital murderers who would nevertheless claim they are ineligible to be held fully accountable for their crime, solely on the basis of their unmonitored performance on a psychological test. This bears no resemblance to the standardized science which I or my colleagues practice.

Corruption in the system of determining mental retardation is rampant and unfettered among consulting expert witnesses. Rep. Keel does not allow experts to be the final arbiter of retardation, but the people of Texas. Sen. Ellis bill empowers an expert witness to be the trier of fact.

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It is also my professional opinion, with strong medical certainty, the appropriate way to protect the intellectually disabled from injustice and to account for moral culpability is to enact additional legislation as soon as possible that addresses the following:

¨ The state should develop guidelines for questioning the mentally retarded suspect so as to safeguard against any possibility of forced confessions by the innocent. This would, specifically, include videotape questioning of all interrogations - of anybody.

¨ The state must mandate guidelines for the assessment of retardation - including a clear reliance upon corroborated history, testing under standardized and validated conditions, and full disclosure of information relied upon by experts, including the interpretive models used in arriving at results.

¨ Legislation must distinguish an accurate definition of retardation, based upon the facts of the crime as responsible for the defendant's inability to conform his conduct.

¨ Any legislation that considers an exemption for retardation for someone convicted of first-degree murder has to establish that such guidelines will be far more specific than just "impairment in adaptive behavior."

¨ The court must require verified evidence, with access to all parties, of scholastic, social and intimate, interpersonal, and vocational impairments in adaptive behavior, and testing that controls for faking, poor education, and poor acculturation.

¨ Given the muddiness with which the existing criteria specific to retardation are formulated, and potential for chicanery in the form of evidence hiding, malingering, and expert witness fraud, the burden of persuasion should be by clear and convincing evidence. The same should be extended to consideration of these matters in post-conviction proceedings, especially since some of these cases are raised by defendants who could not even impress their own original attorneys that they were retarded.

¨ Alternatively, under a lower burden of persuasion, the legislature should authorize sanctions against expert witnesses for prosecution or defense who defraud the court on such determinations, in the form of mandated community service to families of homicide victims or treating correction officers or prisoners from maximum security facilities housing the most violent people who have been declared capital-ineligible. Enforcing such sanctions inspires accountability in those who take the oath before the jury.

¨ It takes time for a lot of the necessary history to be collected and interpreted. Therefore, the forensic examination should be initiated at the pre-trial phase, in order to resolve the questions with sufficient time for both sides to review evidence, and for plea negotiations, when appropriate, to be influenced by said findings.

¨ The question of retardation is decided by the jury after hearing all of the evidence that caused experts to arrive at that conclusion.

¨ Juries must be given the opportunity to also weigh the relative influence of co-existing antisocial personality and other personality disorders consistent with criminal thinking, as to what accounted for the crime.

The vulnerable should be further protected by asking for the following aggravator to be added to the Texas death penalty statute:

Namely: A crime in which the defendant has singled out for victimization an individual who was mentally retarded.

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Every defendant is different. Legislation that promotes careful, individualized assessment keeps the heavy hand of ulterior agendas from intruding upon the good sense of jurors to think for themselves and to administer fair and fitting justice in keeping with the US Supreme Court's ruling in Atkins.

Thank you for your attention. I am happy to answer any questions at this time, and in the future, to make myself available to assist you to address the important legislative shortcomings as soon as possible. The law-abiding citizens of Texas deserve it; the people of America who appreciate the example of Texas in the person of your former Governor will take notice and come to follow Texas' lead.

Michael Welner, M.D.
Chairman, The Forensic Panel
224 West 30th St. #806
New York, NY 10001
212.535.9286
drwelner @ forensicpanel.com

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