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Texas relies on ‘Of Mice and Men’ to execute man on Thursday

UPDATE 7:05 p.m. The U.S. Supreme Court rejected both appeals and has cleared the way for Ladd’s execution tonight.

In a petition filed Wednesday seeking a stay of execution, an attorney representing Robert Ladd claims he has been “intellectually disabled” since he was 13 and a psychiatrist has concluded Ladd who has an IQ of 67, has “mild to moderate mental retardation.”

In any other state Ladd would be ineligible for execution because of his intellectual disability and low IQ score, however, Texas is the only state that permits relying on standards for gauging intelligence crafted from Of Mice and Men and other non-scientific sources.

According to the highly criticized Texas appeals case of Ex Parte Briseno, defendants who are able to “lie effectively,” show leadership” skills or have the ability to plan for the future may not be exempt from execution even though they are intellectually disabled and have a low IQ score.

Texas Court of Criminal Appeals Judge Cathy Cochran wrote in the Briseno decision, “Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt,’ referring to the novel Of Mice and Men,, referring to Lennie Small a mentally disabled strong, yet kind man who enjoys petting mice.

Texas relies on such readily non-scientific factors as the lay opinion of family members, friends, associates and teachers whether a defendant was mentally impaired before he was 18 years old. Can the defendant plan and carry through on his plans? Does his conduct show leadership or does it show the defendant is easily led? These so-called adaptive factors have been rejected by numerous medical and scientific organizations, according to the petition.

Twice, first in 2002 in Atkins v. Virginia and most recently in 2014 in Hall v. Floridia the Supreme Court has ruled that intellectually disabled defendants are exempt from capital punishment. According to court papers and reports from doctors Ladd was said to be in 1970, “fairly obviously retarded.”

“The Texas Courts should not be permitted to circumvent Atkins’ constitutional prohibition by totally supplanting the definition of adaptive functioning,” Ladd’s attorney wrote in the court filing.

When Ladd, 13 at the time, was sent to the Texas Youth Commission in 1970 for evaluation a psychiatrist concluded that he “was functioning at a 4th grade level,” and by the time, “Ladd was 19 he had still not progressed past a fourth grade academic record,” court papers say.

By the time Ladd was 37, according to the petition, he was living in a group home for mentally disabled persons and required the assistance of a case worker to buy the simplest items. “Significantly, [the worker] had to take Ladd to buy clothes and food and to pay his bills because Ladd would not buy the proper items, and would not get the proper sizes and he often would get the wrong change back,” Ladd’s ACLU attorney wrote in the petition.

Yet, according to a response filed by the Texas Attorney General’s Office Thursday afternoon, Ladd had actually obtained a GED, completed barber school and scored an 86 on subsequent IQ testing.

In April 2003, following the U.S. Supreme Court decision in Atkins that mentally disabled defendants are exempt from execution, Ladd petitioned the Texas Court of Criminal Appeals seeking a reversal of the death penalty claiming he too is disabled and has an IQ of 67. Ten days later, the court dismissed his appeal saying he failed to prove he was mentally disabled.

In 2014 the Supreme Court decided in Hall that essentially limits the “unfettered discretion” of states to adopt definitions that defeat valid claims of intellectual disability, which is precisely what the decision in Briseno does and said that states definitions of mental disability “may not deny the basic dignity the Constitution protects.” On Tuesday a Texas appeals court again rejected an appeal from Ladd where he claimed he wasn’t eligible for the death penalty because of the Hall decision.

In a strongly-worded news release the ACLU said Wednesday, “In any other state in the country Ladd’s condition would make him ineligible for execution. Texas, however, uses non-scientific factors to narrow the field of persons with intellectual disability who qualify for exemption from execution, drawn in part from the character of Lennie Small in Of Mice and Men by John Steinbeck.”

Ladd was convicted of sexually assaulting, strangling and setting the 38-year-old woman’s body on fire in 1996. It took a jury selected from the rural and highly conservative Smith County area just 18 minutes to sentence Ladd to death by lethal injection.

As of late Wednesday the court had not decided whether or not it will stay the execution planned for 6 p.m. CST Thursday.

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