Three cases are hot listed this week. Ohio v. Were leads off the edition with a reversal on concerns about the failure to hold a competency hearing. Failing to disclose a prosecution witness's plea agreement in Conyers v. State finds the Maryland Court of Appeals reversing for Brady error. In the third case, Georgia v. Bell, the Georgia Supreme Court holds a dismissal is required for the state failing to timely bring the accused to trial in a murder prosecution.

Part two of Prof. Liebman's examination of the American death penalty in "A Broken System, Part II: Why There is So Much Error in Capital Cases, and What Can be Done About It" was released this week. The principal finding of the study is that the high rate of mistakes in death penalty cases are directly related to aggressive overuse of the punishment, the undue politicization of the death penalty, and the continuing influences of race. (http://www.law.columbia.edu/brokensystem2.)

In Texas the opposition to the Thomas Miller-El execution is mounting. Strikes by the prosecutors against 10 of 11 black prospective juror in light of a history of such practices are at issue. Dallas County prosecutors, like those in several other large metropolitian areas (most notably Philadelphia) purportedly used manuals advocating striking members of racial and ethnic minorities in capital cases.

Continuing with the series on mitigation and mental health issues, Focus this week examines mental retardation. Portions of "Mental Retardation: A Symptom & Syndrome" of S. Netherton, D. Holmes, & C. E. Walker, (Eds.), Comprehensive Textbook of Child and Adolescent Disorders (http://www.uab.edu/cogdev/mentreta.htm), appears this week.

The story of death row clergyman Kobutsu Malone, an American-born Zen Buddhist priest, received wider circulation this week. Kobutsu and his Engaged Zen Foundation support death row and general population prisoners through out the country. Kobutsu & EZF's outreach is now in danger. Kobutsu was recently seriously beaten by police at a recent anti-death penalty rally here in the northeast. Due to the severe beating Kobutsu, who has supported his outreach by off-loading trucks, can not now work. The Engaged Zen Foundation, and its corresponding services, are now asking for any help you can offer. http://engaged-zen.org/. EZF is a 501(c)(3).

Special thanks to Jeff Gamso for the information on the Leslie Martin stay in Louisiana.

Since the last edition there have been the no domestic executions.

Executions slated and considered likely for February & March 2002:

This week's edition is at http://www.capitaldefenseweekly.com/archives/020211.htm

HOT LIST CASES

State v. Were, 94 Ohio St.3d 173 (Ohio 02/06/2002) Trial court's failure to conduct a competency hearing requires a retrial.

Defense counsel filed a pretrial motion requesting a competency hearing on March 27, 1995. Although the trial court ordered a competency evaluation, the requested hearing was not held or waived. Instead, on August 23, 1995, the trial court issued a journal entry that determined competency without a hearing . . . .

Thus, based on the examiners' report, the trial court concluded that appellant was competent. Since appellant refused to meet with the examiners, this determination was made without the benefit of a psychiatric evaluation. Also, the court's decision was made without a defense stipulation to the report or a hearing on the matter. We find this to be error. The issue was raised prior to trial; thus, in accordance with the express language of the statute, the trial court was required to hold a competency hearing. Accordingly, we find that the trial court did not satisfy the requirement of a hearing in former R.C. 2945.37(A).

Moreover, the record supports a further finding that the failure to hold a competency hearing was a constitutional violation. In Berry, supra, we stated, "The right to a hearing on the issue of competency rises to the level of a constitutional guarantee where the record contains `sufficient indicia of incompetence,' such that an inquiry into the defendant's competency is necessary to ensure the defendant's right to a fair trial." Berry, 72 Ohio St.3d at 359, 650 N.E.2d at 438, quoting Drope v. Missouri (1975), 420 U.S. 162, 175, 95 S.Ct. 896, 905, 43 L.Ed.2d 103, 115. We hold that an evidentiary competency hearing is constitutionally required whenever there are sufficient indicia of incompetency to call into doubt defendant's competency to stand trial. (State v. Berry [1995], 72 Ohio St.3d 354, 650 N.E.2d 433, followed.)

Here, the record is replete with suggestions of appellant's incompetency. Defense counsel directly raised the issue and asked for a competency hearing on several occasions: (1) in the previously mentioned pretrial motion, (2) after opening arguments, (3) during the trial, and (4) before the mitigation phase began. While defense counsel was afforded the opportunity to offer reasons in support of their request for a competency hearing at these various points, they were never afforded an evidentiary hearing.

Also, on many occasions, defense counsel directly or indirectly represented to the court that they believed appellant to be incompetent. For instance, at a status conference held on July 18, 1995, defense counsel John Mackey stated that he had served for the past eight years as a part-time referee in probate court handling civil commitments. Based on this experience, he believed that appellant exhibited signs of paranoia and harbored suspicion against the defense team that, in counsel's view, could not be overcome.

Additionally, defense counsel filed two separate motions to withdraw and a motion for a continuance. As grounds for these motions, counsel cited appellant's bizarre belief that counsel was taping confidential conversations and turning the tapes over to the state. Counsel also cited appellant's refusal to speak with them or any member of the defense team and his refusal to accept their correspondence. Counsel consistently claimed that appellant's failure to cooperate seriously hampered their ability to present a defense.

Appellant's own letters and statements to the court suggest that appellant's paranoia centered on defense counsel. In addition to other pro se filings, appellant filed six pro se motions to dismiss his attorneys. He stated that his attorneys were racially biased, had threatened his life, were conspiring with the prosecution, and had failed to adequately prepare for the mitigation phase. The last argument ignored his refusal to speak with the mitigation specialist. . . .

The court of appeals found that appellant's "intransigence" was to blame for the trial court's failure to hold the statutorily mandated hearing. However, the appellate court does not explain how appellant's refusal to speak with appointed mental health experts prevented the judge from conducting a hearing. Even without an interview, experts could have reviewed counsel's problems and the many letters and motions written by appellant. In addition, appellant could have been moved to a mental facility in order to be observed as requested by defense counsel. Moreover, the record does not support the lower court's conclusion that appellant was engaged in a "calculated effort to avoid prosecution by delaying the progress of the trial." In fact, the contrary may be true in light of appellant's stated desire to be brought to trial earlier.

Understandably, appellant's intransigence and lack of cooperation were frustrating to the trial court. However, "[c]ommon sense dictates that no defendant can make a record of lack of competency absent the findings and hearings contemplated by R.C. 2945.37 and 2945.371." Bock, 28 Ohio St.3d at 113, 28 OBR at 212, 502 N.E.2d at 1021 (Wright, J., dissenting).

Based on these facts, we conclude that the trial court violated appellant's constitutional and statutory right to a competency hearing. We find appellant's proposition VIII to be well taken. Accordingly, we vacate appellant's convictions and sentence, reverse the judgment, and remand for a new trial.

Conyers v. State, 2002 Md. LEXIS 38 (Md. 02/05/2002) "The State's failure to disclose material, exculpatory impeachment evidence relating to the full circumstances preceding and precipitating an important State's witness's plea agreement, specifically, that the witness requested a benefit and subsequently refused to sign his written statement, absent an immediate commitment, was a violation of Petitioner's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and its progeny." In overcoming the failing to raise the issue below the court notes:

This Court, in limited circumstances, however, may review an argument not made and preserved in the lower court. See Bell, 334 Md. at 188-89, 638 A.2d at 113 (noting [*35] that use of the word "ordinarily" contemplates circumstances where appellate review of issues not previously raised is appropriate); Richmond v. State, 330 Md. 223, 236, 623 A.2d 630, 636 (1993) (recognizing that there are limited circumstances in which an appellate court may consider arguments not raised in the court below). Appellate review under these exceptional circumstances is discretionary, not mandatory. See Bell, 334 Md. at 188, 638 A.2d at 113. See also, e.g., Md. Rule 4-325(e) (conferring discretion on an appellate court acting "on its own initiative or on the suggestion of a party . . . [to] take cognizance of any plain error in the [jury] instructions, material to the rights of the defendant, despite a failure to object"); Rubin v. State, 325 Md. 552, 587, 602 A.2d 677, 694 (1992) (noting that "as the cases hold with respect to errors of law generally, an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court") (citation omitted); Robeson v. State, 285 Md. 498, 502, 403 A.2d 1221, 1223 (1979) (discussing [*36] exceptions to the general principle that an appellate court will not ordinarily consider an issue not previously raised).

We often have stated that the primary purpose of Rule 8-131(a) is "'to ensure fairness for all parties in a case and to promote the orderly administration of law.'" Bell, 334 Md. at 189, 638 A.2d at 113 (quoting Brice v. State, 254 Md. 655, 661, 255 A.2d 28, 31 (1969) (alteration in original) (citation omitted)). The State had an opportunity to raise its waiver claim during the post conviction proceedings, but instead chose to argue Petitioner's Brady claims on the merits. As a result, the post conviction court did not address waiver in connection with these arguments. While this Court may decide, in its discretion and under exceptional circumstances, matters not raised in the proceedings below, the State's contention does not merit exceptional treatment here. Nor has the State referred us to any legal authority that would support exempting the State from any of the general waiver rules in the present case.

Moreover, the State's assertion that Petitioner's Brady claims were waived pursuant to Art. 27, § 645A(c)(2) [*37] , is misguided. In pertinent part, § 645A(c)(2), states:

When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), . . . in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation. (Emphasis added).

The fundamental question the State advances here is whether Petitioner's allegations of prosecutorial misconduct relating to the testimony of Charles Johnson have been waived by his failure to challenge the violations at trial or in the direct appeals. Petitioner argues that it is axiomatic that you "cannot waive what [you] could not reasonably know." We agree with Petitioner.

Inherent in the language of § 645A(c)(2) is the presupposition that an opportunity to raise the challenge existed at the time of the lower court proceeding. See, e.g., Hunt v. State, 345 Md. 122, 142, 691 A.2d 1255, 1265 (1997) (noting that "defense counsel's acceptance of the jury panel [*38] was sufficient to bar any subsequent objection thereto"); Oken v. State, 343 Md. 256, 271, 681 A.2d 30, 37 (1996) (recognizing that Oken's counsel's decision not to raise the adequacy of the voir dire on appeal was a deliberate one); Walker v. State, 343 Md. 629, 647, 684 A.2d 429, 437-38 (1996) (noting that petitioner's post conviction challenge to a jury instruction was waived by his failure to raise it when it was given). See also, e.g., Wyche v. State, 53 Md. App. 403, 407, 454 A.2d 378, 380 (1983) (noting that if a right alleged to have been violated is a non-fundamental right, "waiver will be found if it is determined that the possibility existed for the petitioner to have raised the allegation in a prior proceeding, but he did not do so"). (Emphasis added). In each of these instances the factual basis for the defendant's claim was available to the defendant, but was not properly preserved. That is not the circumstance in the case sub judice.

Petitioner's trial and sentencing counsels, surmising from the known fact of the plea bargain, argued inferentially that Johnson's testimonial motivation, rather than the truth [*39] for its own sake, was entirely self-interest. The discrepancies between Johnson's testimony denying he requested a favor (when he did) and Detective Marll's corroborating testimony, however, were not revealed until Detective Marll's post conviction testimony. Similarly, there was no apparent discrepancy concerning police verification, vel non, of Johnson's 1994 statements regarding non-public information regarding the crimes until Detective Marll's post conviction testimony revealed otherwise.

The State cannot frustrate trial counsel's access to the factual basis for making a Brady claim, then cry foul when Petitioner does not raise such a challenge on direct appeal. This Court is satisfied from review of the relevant portions of the record that the factual predicate underlying Petitioner's Brady claims relating to the testimony and examination of Charles Johnson did not arise until the post conviction evidentiary hearing, at which point Petitioner properly raised these issues. Indeed, the State provides no evidentiary support for its bald allegation that Petitioner waived his claim under the waiver provision of § 645A(c)(2). Accordingly, we shall review Petitioner's [*40] Brady claims on the merits.

Georgia v. Bell, 2002 Ga. LEXIS 67 (Ga 2/4/2002) (dissents) Relief granted on state law speedy trial motion.

The State contends that Bell's 1996 motion does not satisfy the requirements of O.C.G.A. § 17-7-171 [*2] , because it did not provide the prosecution with adequate notice that he was seeking a speedy trial and not merely a jury trial. Although the pleading does not expressly reference the statute or demand a "speedy" trial, such specifics are unnecessary. "No particular form is required 'so long as the demand can reasonably be construed as a demand for trial under the provisions of [the statute].' [Cit.]" Baker v. State, 212 Ga. App. 731, 732 (442 S.E.2d 815) (1994) (dealing with O.C.G.A. § 17-7-170, which applies to non-capital cases). The motion in this case was not misleadingly styled as simply a demand for a jury trial. Compare Kramer v. State, 185 Ga. App. 254 (363 S.E.2d 800) (1987). The caption identifies it as a request that the State "set" Bell's case for a jury trial, and correctly specifies the number of the indictment which charged him with murder. In the body of the motion, he requested that a jury trial be held "in his capital case within the next two terms of court ...." This is a demand that the prosecution comply with O.C.G.A. § 17-7-171 (a). The pleading, considered in its entirety, [*3] was clear as to its purpose and the right which it sought to enforce. A motion is sufficient to invoke the extreme sanction of O.C.G.A. § 17-7-171 so long as it constitutes a demand to be tried within the next two succeeding terms of court. See Forbus v. State, 250 Ga. 24 (295 S.E.2d 530) (1982) (approving Court of Appeals' construction of O.C.G.A. § 17-7-170 in State v. Adamczyk, 162 Ga. App. 288, 289 (290 S.E.2d 149) (1982)).

The dissent correctly notes that a defendant who seeks a speedy trial pursuant to O.C.G.A. § 17-7-171 must comply strictly with the applicable statutory requirements. In determining what those requirements are, however, we must adhere to applicable legal principles, one of which is that "there is no magic in mere nomenclature, even in describing pleadings. [Cit.] Under our rules of pleading[,] substance, not mere nomenclature, controls. [Cit.]" Marshall v. State, 229 Ga. 841 (1) (195 S.E.2d 12) (1972). The style of Bell's pleading clearly identified it as a request for the scheduling of a jury trial, and not as a simple request [*4] that he be tried by a jury whenever the trial might be held. Compare Bennett v. State, 244 Ga. App. 149, 150 (1) (534 S.E.2d 881) (2000). The document expressly requested that a jury trial on the murder charge be held within the next two terms of court. Compare Bennett, supra. Under the applicable rules of construction of pleadings, the trial court correctly found that Bell's motion strictly complied with the requirements of O.C.G.A. § 17-7-171.

The State asserts that Bell waived his statutory right to a speedy trial by failing to appear at the timely call of his case in September 1996. At the hearing on the motion to dismiss, however, Bell and his trial counsel testified that they were present and announced "ready" when the case was called on that occasion. The State presented evidence to the contrary, but the trial court expressly found that the testimony of Bell and his counsel was more credible. "The finder of fact, in this case the superior court judge, is the final arbiter of the weight of the evidence and the credibility of witnesses." Hughes v. Cobb County, 264 Ga. 128, 130 (1) (441 S.E.2d 406) (1994). [*5] The State had the burden to show that Bell waived his statutory right to a speedy trial. Sykes v. State, 236 Ga. App. 518, 520 (2) (511 S.E.2d 566) (1999). The trial court's finding that the State did not meet that burden will not be disturbed.

SUPREME COURT CASES & NEWS

Leslie Martin in Louisiana received a stay in the minutes prior to his scheduled execution. The issues appear to be a Micken's claim (conflict of interest) and putative Kyles error. More to follow as it becomes available.

POSITIVE CAPITAL CASE RESULTS

Ghent v. Woodford, 2002 U.S. App. LEXIS 2007 (9th Cir 2/8/2002) The admission of testimony in violation of Ghent's Miranda rights in the special circumstances retrial was error.

Dr. Shoor's testimony was not prejudicial with respect to the first trial does not apply, however, with respect to the special circumstances retrial; to the contrary, it is clear that the introduction of Dr. Shoor's testimony at that proceeding was prejudicial. At the retrial, the finding of special circumstances required that the State prove beyond a reasonable doubt that Ghent's murder of Mrs. Bert was willful, deliberate, and premeditated. See Cal. Penal Code § 190.2(c)(3). Accordingly, the issue of premeditation and deliberation was the central issue of the special circumstances retrial. The prosecutor himself repeatedly characterized that issue as "the major issue in this case." See Henry v. Kernan, 197 F.3d 1021, 1030 (9th Cir. 1999) (noting that, "importantly, the prosecutor referred to[defendant's] motivation [and subject of erroneously admitted testimony] as 'the crux of the case'").

Dr. Shoor's testimony was critical to the theory that Ghent premeditated and deliberated with respect to the murder. In his opening statement, the prosecutor stated that Dr. Shoor gave Ghent a mental examination and "determined that this guy is fine. He has no diminished [*18] capacity. "Contrary to the State's argument, Dr. Shoor's testimony was not solely general in nature. Rather, it clearly included his opinion as to Ghent's mental state at the time of the murder. He testified that "Mr. Ghent had the mental capacities at that time which were well within the range of normal reasonable thinking." (emphasis added). Dr. Shoor also testified that Ghent had "the mental capacities to premeditate whatever he did." (emphasis added). Although Dr. Shoor spoke specifically in terms of Ghent's capacity to premeditate, given the context of his testimony and the fact that he had met with Ghent shortly after the crimes took place, it is clear that Dr. Shoor's evidence was offered to and did provide strong support for the State's theory that Ghent in fact premeditated and deliberated with respect to the murder, and that his testimony would be so construed by reasonable jurors. The prosecutor himself stated that Dr. Shoor's testimony would be given to assist the jury "in determining what David Ghent's state of mind was at the time of the incident." Although Dr. Shoor's statements at the special circumstances retrial were comparatively brief, they were direct and [*19] to the point: they constituted the only direct evidence offered by the prosecution as to Ghent's state of mind. n5

The defense relied heavily on the testimony of two mental health experts, both of whom disagreed with Dr. Shoor's assessment. Dr. Raffle (forensic psychiatrist) testified that Ghent did not deliberate the murder and Dr. Delman (psychologist) testified that Ghent did not premeditate or deliberate the murder. In his closing argument, defense counsel relied on the testimony of these two defense experts to show that Ghent did not premeditate or deliberate with respect to the murder. Dr. Shoor's testimony was introduced to immunize the jury against this crucial defense evidence. Indeed, Dr. Shoor's testimony went to the heart of Ghent's defense. See Henry, 197 F.3d at 1030 (holding error prejudicial because State's use of erroneously admitted testimony went to "the root of their burden to prove . . . intent"); People v. Walker, 29 Cal. App. 3d 448, 105 Cal.Rptr. 672, 676-77 (Cal. Ct. App. 1972) (finding it prejudicial error to admit testimony of police psychologist whose interview violated defendant's Fifth Amendment rights because testimony went "directly to the heart of the defense" of diminished capacity).

The prosecutor not only used Dr. Shoor's [*21] testimony to discredit the testimony and theories of the two defense expert witnesses but also to attack Ghent's credibility and truthfulness. In the special circumstances retrial, Ghent's credibility was a critical issue; Ghent himself testified regarding his memory loss surrounding the crimes. The two defense experts, Drs. Raffle and Delman, also attempted to explain Ghent's memory loss and his untruthfulness to the jury. Thus, Dr. Shoor's testimony was admitted to counter directly both the defense theory and Ghent's credibility and truthfulness. The prosecutor introduced Dr. Shoor's testimony by stating that Dr. Shoor would tell the jury that Ghent is" a liar, he's dishonest." Moreover, the California Supreme Court stated, in justifying its finding of harmlessness, that the jury's finding of special circumstances was based in part on its" rejection of the 'lost memory' theories of Drs. Raffle and Delman." Ghent, 739 P.2d at 1259. The only expert mental health testimony presented by the State that could have enabled the jury to reject those theories was the erroneously admitted testimony of Dr. Shoor. See Eslaminia v. White, 136 F.3d 1234, 1238 (9th Cir. 1998) [*22] (stating that when credibility is a central issue in trial and erroneously admitted evidence casts doubt on that credibility, such error is prejudicial); cf. Arizona v. Fulminante, 499 U.S. 279, 298, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991) (holding error prejudicial as jury's assessment of another of defendant's statements could have depended in part on erroneously admitted evidence).

The State's own actions at trial belie its current arguments regarding the importance of Dr. Shoor's testimony. Its actions demonstrate just how critical the State believed the erroneously admitted evidence to be. See Kyles v. Whitley, 514 U.S. 419, 444, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995); United States v. Bauer, 132 F.3d 504, 512 (9th Cir. 1997). The prosecutor in this case fought vigorously for the admission of Dr. Shoor's statements. Furthermore, he relied heavily on Dr. Shoor's testimony during both opening and closing arguments, n6 emphasizing the credibility of the doctor's opinion. The prosecutor qualified Dr. Shoor as an expert in psychiatry and stressed Dr. Shoor's experience, truthfulness, and Stanford University training. It is [*23] clear that the State recognized the importance of Dr. Shoor's testimony, not only from an examination of the prosecutor's own statements, but also from the fact that the State reordered its proof in the special circumstances retrial so as to make Dr. Shoor its second witness in its case-in-chief (instead of using him only as a rebuttal witness, as it did at the first trial). This trial strategy reflects the State's firmly held belief that Dr. Shoor's testimony was critical to proving that Ghent premeditated and deliberated with respect to the murder of Mrs. Bert. In light of all these circumstances, we view "with some skepticism," indeed with considerable skepticism, the State's argument that Dr. Shoor's testimony was tangential. United States v. Brooke, 4 F.3d 1480, 1488 (9th Cir. 1993) (quoting United States v. Hill, 953 F.2d 452, 459 (9th Cir. 1991)).

We would add, finally, that we find it highly significant that the prosecutor argued that one reason that Dr. Shoor's testimony was highly credible was that he had interviewed Ghent before Ghent was able to contact his lawyers. The State made use of -- and sought to benefit from -- this unconstitutional attribute of Dr. Shoor's behavior. By doing so, it only emphasized and exacerbated the violation. Moreover, the State's claim that Dr. Shoor's testimony merely" duplicated that of the defense," is patently erroneous, particularly as the prosecutor himself emphasized the uniqueness of that testimony.

In sum, it is clear that Dr. Shoor's testimony in the special circumstances retrial had "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. His testimony "stands out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message. " Satterwhite v. Texas, 486 U.S. 249, 259, 100 L. Ed. 2d 284, 108 S. Ct. 1792 (1988). Accordingly, the special circumstances verdict cannot stand. n7 Without the special circumstances finding, Ghent [*25] is ineligible for the death penalty. See Cal. Penal Code § 190.2. Therefore, we vacate his death sentence and remand the matter so that the State may conduct a new special circumstances trial, if it so elects. n8 See People v. Roy, 207 Cal. App. 3d 642, 255 Cal.Rptr. 214, 223 (Cal. Ct. App. 1989); see also Wade v. Calderon, 29 F.3d 1312, 1322-23 (9th Cir. 1994). Otherwise, it shall resentence Ghent on the charge of first degree murder, without any special circumstance finding.

Simpson v. Arkansas, 2002 Ark. LEXIS 89 (2/7/2002) The trial court, while sitting in post-conviction review, relied upon the wrong rule of court to determine timeliness.

CAPITAL CASES - RELIEF DENIED

Smith v. State, 2002 Ala. Crim. App. LEXIS 26 (Ala.Crim.App. 02/01/2002) (dissent) Relief denied most notably on the prosecution's use of 14 of its 15 peremptory challenges to remove women from the venire. (Not available on the web at the time of transmittal)

Hamm v. State, 2002 Ala. Crim. App. LEXIS 35 (Ala.Crim.App. 02/01/2002) Examining at length the most recent example of the crisis in Alabama capital litigation caused by that state's medieval post-conviction appointment statute. Holding no IAC on post-conviction counsel, trial or appellate counsel, the trial court's adoption of the Attorney General's proposed order verbatim is ratified by the CCA. (Not available on the web at the time of transmittal)

Whitney v. Horn, 2002 U.S. App. LEXIS 1734 (3d Cir. 02/05/2002) The district court concluded that Whitney was entitled to habeas relief because the trial judge erred in instructing the jury on the defense of voluntary intoxication under Pennsylvania law. Counsel, however, failed to present this issue to the state court system. The issues is deemed procedurally defaulted as no exception to the general rule of default is noted.

Texas v. Medrano, 2002 Tex. Crim. App. LEXIS 23 (Tex Crim App2/6/2002) Relief denied on claims relating to: [a] three categories of sufficiency: accomplice witness corroboration, legal sufficiency, and factual sufficiency; [b] use of purportedly perjured testimony; [c] evidence of gang affiliation; and [d] denial of a continuanc.

Illinois v. Ramsey, 2002 Ill. LEXIS 14 (Ill 2/8/2002) As a reasonable trier of could have found that the defendant was at least 18 there is no bar to a retrial during which death is a possible punishment.

Baker. v. Maryland, 2002 Md. LEXIS 44 (Md. 2/7/2002) "Based on our holding in Borchardt v. State, we hold that Apprendi does not apply to Maryland's death penalty statutes. We also hold that the indictment filed by the State was not defective, Baker's waiver of his right to be sentenced by a jury was knowing and voluntary, and the trial court did not abuse its discretion in finding that Baker's newly discovered evidence would not have affected the outcome of his sentencing proceeding. "

Pizzuto v. Arave, 2002 U.S. App. LEXIS 1787 (9th Cir. 02/06/2002) Relief denied, most notably, on whether the trial court relied on Idaho's unconstitutional HAC aggravating factor and on unconstitutional, non-statutory aggravating factors that should have been considered mitigating and the use of uncounseled, non-Mirandized statements made in presentence interviews

McNabb v. State, 2002 Ala. Crim. App. LEXIS 33 (Ala.Crim.App. 02/01/2002) On return to prior remand for correction of sentencing order, the court holds the trial court did not fail to give proper weight to his cocaine intoxication and the sentence is proportional to the crime. (Not available on the web at the time of transmittal)

Owsley v. Luebbers, 2002 U.S. App. LEXIS 1731(8th Cir. 02/05/2002) Motion to recall denied most notably on the state trial court erred in denying Owsley the right to introduce evidence of his intoxication at the time of the act for which he was sentenced to death.

Utah v. Kell, 2002 Utah LEXIS 25; 2002 UT 19 (UT 2/8/2002) The defendant was not denied the right to a public trial, to the presumption of innocence, to a fair trial, or to equal protection by being tried in the courtroom at the CUCF. The trial court did not abuse its discretion or deny defendant the right to a fair trial as a result of the jury voir dire process. The trial court's failure to instruct the jury on the lesser included offense of imperfect self-defense manslaughter was harmless. The trial court did not err in allowing the jury to view a videotape of the homicide. If any evidentiary errors occurred during the guilt and penalty phases of [*45] the trial, they were harmless. The prosecutor's arguments to the jury did not violate the Eighth Amendment of the United States Constitution. The jury did not have to consider mercy and sympathy as mitigating factors during the penalty phase of the trial. Admitting victim impact evidence in this case was harmless. Section 76-5-202 of the Utah Code is not unconstitutional. Utah's death penalty statutes are not unconstitutional. The capital sentencing proceedings were not flawed. Prison disciplinary proceedings do not preclude criminal prosecution of the same crime and do not violate the double jeopardy provisions of the Fifth Amendment of the United States Constitution.

Oregon v. Compton, 2002 Ore. LEXIS 72 (Ore 2/7/2002) Relief denied on claims that: [a] the indictment under which he was charged was defective as vague as to mens rea; [b] the trial court should have prohibited the jury from considering whether to impose a death sentence because ORS 163.150(1) (1995) fails to inform the jury that it is entitled to consider aggravating factors only insofar as they relate to a defendant's character or to the circumstances of the crime; [c] the trial court erred in failing to excuse a prospective juror for cause; and [d] that contention that a law that excluded nonregistered voters and felons from the jury pool violated his right to a jury drawn from a fair cross-section of the community. Regarding the penalty phase relief denied on statements that the prosecutor made during closing arguments and that the trial court lacked authority to submit the case to the jury because the question whether Compton's conduct that caused the death of the victim was committed deliberately was an element of the crime that had not been pleaded in the indictment.

Martin v. Mitchell, 2002 U.S. App. LEXIS 1827; 2002 FED App. 0050P (6th Cir 2/7/2002) Relief denied on procedural default and on the merits for claims relating to: " (A) ineffective assistance of trial counsel, Herbert Adrine and James Carnes, for their failure to (1) challenge Martin's warrantless arrest; (2) investigate and otherwise prepare for trial; (3) interview witnesses; (4) subpoena Rieves-Bey; (5) effectively cross-examine witnesses; (6) investigate and otherwise prepare for the mitigation phase; (7) object to jury instructions; (8) object to the use of presentence investigation and psychiatric clinic reports at mitigation; (B) ineffective assistance of appellate counsel [*11] for failing to make the transcript of his hearing on his motion for a new trial part of the record on his direct appeal; (C) prosecutorial misconduct at trial by improperly commenting on his failure to testify; and (D) insufficiency of the evidence supporting his conviction.

Gilliam v. Moore, 2002 Fla. LEXIS 168 (FL 2/7/2002) Relief denied: "(1) outstanding public records requests; (2) the trial court's erroneous exclusion of evidence indicating that the victim was a prostitute; (3) the State's violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); (4) ineffective assistance of counsel during the guilt phase; (5) ineffective assistance of counsel during the penalty phase; (6) the instructions on aggravating circumstances failed to give the jury adequate guidance; (7) the statute setting forth aggravating circumstances is facially vague and overbroad; (8) an unconstitutional automatic aggravating circumstance; (9) an erroneous heinous, atrocious, or cruel finding (HAC); (10) the trial court's improper consideration of nonstatutory aggravating circumstances; (11) improper use of statutory rape conviction to support prior violent felony aggravator; (12) penalty phase jury instructions and arguments improperly diminished jury's sense of responsibility; (13) burden shifting penalty phase jury instructions; (14) the trial judge's failure to disqualify himself; (15) erroneous admission of Gilliam's statements; (16) failure to suppress physical evidence obtained from warrantless seizure; (17) the penalty phase jury instructions diminished the jury's sense of responsibility; (18) improper admission of hearsay testimony during the guilt phase; (19) the trial court's failure to find mitigating factors; (20) a bailiff's improper contact with the jury denied Gilliam a fair trial; (21) cumulative error; (22) the State's violation of Brady and presentation of misleading evidence; and (23) failure to obtain a competent mental health expert."

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

No cases noted.

OTHER NOTABLE CASES

Miranda v. Nevada, 2002 U.S. App. LEXIS 2004 (9th Cir 2/8/2002) Indigent client in a criminal case may not resort to the federal civil rights statute, 42 U.S.C. § 1983, to challenge the manner in which he was represented by his public defender.

FOCUS

Continuing with the series on mitigation and mental health issues, this week touches mental retardation. In light of Virginia v. Atkins currently before the Supreme Court on the issue of mental retardation, as well as several gripping mental retardation coming before the court, the first half of the chapter "Mental Retardation: A Symptom & Syndrome" of S. Netherton, D. Holmes, & C. E. Walker, (Eds.), Comprehensive Textbook of Child and Adolescent Disorders. New York: Oxford University Press (http://www.uab.edu/cogdev/mentreta.htm) is run this week. While the chapter is aimed at mental health practitioners, especially those who practice in an age group younger than most of clients, the chapter provides a good background read on the subject.

Mental retardation is an idea, a condition, a syndrome, a symptom, and a source of pain and bewilderment to many families. Its history dates back to the beginning of man's time on earth. The idea of mental retardation can be found as far back in history as the therapeutic papyri of Thebes (Luxor), Egypt, around 1500 B.C. Although somewhat vague due to difficulties in translation, these documents clearly refer to disabilities of the mind and body due to brain damage (Sheerenberger, 1983). Mental retardation is also a condition or syndrome defined by a collection of symptoms, traits, and/or characteristics. It has been defined and renamed many times throughout history. For example, feeblemindedness and mental deficiency were used as labels during the later part of the last century and in the early part of this century. Consistent across all definitions are difficulties in learning, social skills, everyday functioning, and age of onset (during childhood). Mental retardation has also been used as a defining characteristic or symptom of other disorders such as Down syndrome and Prader-Willi syndrome. Finally, mental retardation is a challenge and potential source of stress to the family of an individual with this disorder. From identification through treatment or education, families struggle with questions about cause and prognosis, as well as guilt, a sense of loss, and disillusionment about the future.

The objective of this chapter is to provide the reader with an overview of mental retardation, a developmental disability with a long and sometimes controversial history. Following a brief historical overview, the current diagnostic criteria, epidemiological information and the status of dual diagnosis will be presented. Comprehensive assessment and common interventions will also be reviewed in some detail.

Historical Perspective

The plight of individuals with developmental disabilities has been dependent on the customs and beliefs of the era and the culture or locale. In ancient Greece and Rome, infanticide was a common practice. In Sparta, for example, neonates were examined by a state council of inspectors. If they suspected that the child was defective, the infant was thrown from a cliff to its death. By the second century A.D. individuals with disabilities, including children, who lived in the Roman Empire were frequently sold to be used for entertainment or amusement. The dawning of Christianity led to a decline in these barbaric practices and a movement toward care for the less fortunate; in fact, all of the early religious leaders, Jesus, Buddha, Mohammed, and Confucius, advocated human treatment for the mentally retarded, developmentally disabled, or infirmed (Sheerenberger, 1983).

During the Middle ages (476 - 1799 A.D.) the status and care of individuals with mental retardation varied greatly. Although more human practices evolved (i.e., decreases in infanticide and the establishment of foundling homes), many children were sold into slavery, abandoned, or left out in the cold. Toward the end of this era, in 1690, John Locke published his famous work entitled An Essay Concerning Human Understanding. Locke believed that an individual was born without innate ideas. The mind is a tabula rasa, a blank slate. This would profoundly influence the care and training provided to individuals with mental retardation. He also was the first to distinguish between mental retardation and mental illness; "Herein seems to lie the difference between idiots and madmen, that madmen put wrong ideas together and reason from them, but idiots make very few or no propositions and reason scarce at all (Doll, 1962 p. 23)."

A cornerstone event in the evolution of the care and treatment of the mentally retarded was the work of physician Jean-Marc-Gaspard Itard (Sheerenberger, 1983) who was hired in 1800 by the Director of the National Institutes for Deaf-Mutes in France to work with a boy named Victor. Victor, a young boy, had apparently lived his whole life in the woods of south central France and, after being captured and escaping several times, fled to the mountains of Aveyron. At about age 12, he was captured once again and sent to an orphanage, found to be deaf and mute, and moved to the Institute for Deaf-Mutes.

Based on the work of Locke and Condillac who emphasized the importance of learning through the senses, Itard developed a broad educational program for Victor to develop his senses, intellect, and emotions. After 5 years of training, Victor continued to have significant difficulties in language and social interaction though he acquired more skills and knowledge than many of Itard's contemporaries believed possible. Itard's educational approach became widely accepted and used in the education of the deaf. Near the end of his life, Itard had the opportunity to educate a group of children who were mentally retarded. He did not personally direct the education of these children, but supervised the work of Edouard Seguin (Sheerenberger, 1983). Seguin developed a comprehensive approach to the education of children with mental retardation, known as the Physiological Method (Sheerenberger, 1983). Assuming a direct relationship between the senses and cognition, his approach began with sensory training including vision, hearing, taste, smell, and eye-hand coordination. The curriculum extended from developing basic self-care skills to vocational education with an emphasis on perception, coordination, imitation, positive reinforcement, memory, and generalization. In 1850, Seguin moved to the United States and became a driving force in the education of individuals with mental retardation. In 1876, he founded what would become the American Association on Metal Retardation. Many of Seguin's techniques have been modified and are still in use today.

Over the next 50 years, two key developments occurred in the United States: residential training schools were established in most states (19 state operated and 9 privately operated) by 1892, and the newly developed test of intelligence developed by Binet was translated in 1908 by Henry Goddard, Director of Research at the training school in Vineland, New Jersey. Goddard published an American version of the test in 1910. In 1935, Edgar Doll developed the Vineland Social Maturity Scale to assess the daily living skills/adaptive behavior of individuals suspected of having mental retardation. Psychologists and educators now believed that it was possible to determine who had mental retardation and provide them with appropriate training in the residential training schools.

During the early part of the 20th century, residential training schools proliferated and individuals with mental retardation were enrolled. This was influenced by the availability of tests (primarily IQ) to diagnose mental retardation and the belief that, with proper training, individuals with mental retardation could be "cured". When training schools were unable to "cure" mental retardation, they became overcrowded and many of the students were moved back into society where the focus of education began to change to special education classes in the community. The training schools, which were initially more educational in nature, became custodial living centers.

As a result of the disillusionment with residential treatment, advocacy groups, such as the National Association of Retarded Citizens and the President's Commission on Mental Retardation, were established in the 1950's through the 1970's. The Wyatt-Stickney federal court action, in the 1970's, was a landmark class action suit in Alabama establishing the right to treatment of individuals living in residential facilities. Purely custodial care was no longer acceptable. Concurrent with this case, the United States Congress passed the Education for the Handicapped Act in 1975, now titled the Individuals with Disabilities Education Act. This Act guaranteed the appropriate education of all children with mental retardation and developmental disabilities, from school age through 21 years of age. This law was amended in 1986 to guarantee educational services to children with disabilities age 3 through 21 and provided incentives for states to develop infant and toddler service delivery systems. Today, most states guarantee intervention services to children with disabilities between birth and 21 years of age.

Definition/Diagnosis/Classification.

According to Sheerenberger (1983), the elements of the definition of mental retardation were well accepted in the United States by 1900. These included: onset in childhood, significant intellectual or cognitive limitations, and an inability to adapt to the demands of everyday life. An early classification scheme proposed by the American Association on Mental Deficiency (Retardation), in 1910 referred to individuals with mental retardation as feeble-minded, meaning that their development was halted at an early age or was in some way inadequate making it difficult to keep pace with peers and manage their daily lives independently (Committee on Classification, 1910). Three levels of impairment were identified: idiot, individuals whose development is arrested at the level of a 2 year old; imbecile, individuals whose development is equivalent to that of a 2 to 7 year old at maturity; and moron, individuals whose mental development is equivalent to that of a 7 to 12 year old at maturity.

Over the next 30 years, the definitions of mental retardation focused on one of three aspects of development: the inability to learn to perform common acts, deficits or delays in social development/competence, or low IQ (Yepsen, 1941). An example of a definition based on social competence was proposed by Edgar Doll who proposed that mental retardation referred to "social incompetence, due to mental subnormality, which has been developmentally arrested, which obtains at maturity, is of constitutional origin, and which is essentially incurable" (Doll, 1936 p. 38). Fred Kuhlman, who was highly influential in the early development of intelligence tests in the United States, believed mental retardation was "a mental condition resulting from a subnormal rate of development of some or all mental functions" (Kuhlman, 1941 p. 213).

As a result of the conflicting views and definitions of mental retardation, a growing number of labels used to refer to individuals with mental retardation, and a change in emphasis from a genetic or constitutional focus to a desire for a function-based definition, the American Association on Mental Deficiency (Retardation) proposed and adopted a three part definition in 1959. "Mental retardation refers to subaverage general intellectual functioning which originates in the developmental period and is associated with impairment in adaptive behavior" (Heber, 1961). Although this definition included the three components of low IQ (<85), impaired adaptive behavior, and origination before age 16, only IQ and age of onset were measurable with the existing psychometric techniques. Deficits in adaptive behavior were generally based on subjective interpretations by individual evaluators even though the Vineland Social Maturity Scale was available (Sheerenberger, 1983).

In addition to the revised definition, a five level classification scheme was introduced replacing the previous three level system which had acquired a very negative connotation. The generic terms of borderline (IQ 67-83), mild (IQ 50-66), moderate (IQ 3-49), severe (16-32), and profound (IQ <16) were adopted.

Due to concern about the over or misidentification of mental retardation, particularly in minority populations, the definition was revised in 1973 (Grossman, 1973) eliminating the borderline classification from the interpretation of significant, subaverage, general intellectual functioning. The upper IQ boundary changed from <85 to < 70. This change significantly reduced the number of individuals who were previously identified as mentally retarded impacting the eligibility criteria for special school services and governmental supports. Many children who might have benefitted from special assistance were now ineligible for such help. A 1977 revision (Grossman, 1977) modified the upper IQ limit to 70 - 75 to account for measurement error. IQ performance resulting in scores of 71 through 75 were only consistent with mental retardation when significant deficits in adaptive behavior were present.

The most recent change in the definition of mental retardation was adopted in 1992 by the American Association on Mental Retardation. "Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18" (American Association on Mental Retardation, 1992). On the surface, this latest definition does not appear much different than its recent predecessors. However, the focus on the functional status of the individual with mental retardation is much more delineated and critical in this definition. There is also a focus on the impact of environmental influences on adaptive skills development that was absent in previous definitions. Finally, this revision eliminated the severity level classification scheme in favor of one that addresses the type and intensity of support needed: intermittent, limited, extensive, or pervasive. Practically, a child under age 18 must have an IQ < 75 and deficits in at least 2 of the adaptive behavior domains indicated in the definition to obtain a diagnosis of mental retardation.

Educational Classifications. While the medical and psychosocial communities were developing an acceptable definition and classification system, the educational community adopted their own system of classification. Their three level system separated school age children with mental retardation into three groups based on predicted ability to learn (Kirk, Karnes, & Kirk, 1955). Children who were educable could learn simple academic skills but not progress above fourth grade level. Children who were believed to be trainable could learn to care for their daily needs but very few academic skills. Children who appeared to be untrainable or totally dependent were considered in need of long term care, possibly in a residential setting. Some form of this scheme is still in use today in many school systems across the country.

DSM-IV. DSM-IV attempts to blend the 1977 and 1992 definitions put forth by the American Association on Mental Retardation. It adopts the 1992 definition, but retains the severity level classification scheme from the 1977 definition. The upper IQ limit is 70, and an individual must have delays in at least two of the 10 areas outlined in the 1992 definition. In general, the overview of mental retardation in DSM-IV is thorough and easy to follow. However, it should be noted that comprehensive cognitive and adaptive skill assessment is necessary to make the diagnosis; it should not be made on the basis of an office visit or developmental screening.

ICD-10. ICD-10 is the tenth revision of the International Classification of Diseases (World Health Organization, 1993). It is currently in use in some countries around the world but will not be adopted for use in the United States until after the year 2000. ICD-10 differs from ICD-9 in at least two key ways. First, it includes more diagnoses and is, consequently, much larger. The second major change is the coding scheme. The diagnostic codes have been changed from numeric codes to codes that begin with an alphabet letter and are followed by two or more numbers (e.g., mild mental retardation has changed from 317 to F70).

ICD-10 characterizes mental retardation as a condition resulting from a failure of the mind to develop completely. Unlike DSM-IV and the Classification Manual of the AAMR, ICD-10 suggests that cognitive, language, motor, social, and other adaptive behavior skills should all be used to determine the level of intellectual impairment. ICD-10 also supports the idea of dual diagnosis, suggesting that mental retardation may be accompanied by physical or other mental disorders.

Four levels of mental retardation are specified in ICD-10: F70 mild (IQ 50 - 69), F71 moderate (IQ 35 - 49), F72 severe (IQ 20 - 34), and F73 profound (IQ below 20). IQ should not be used as the only determining factor. Clinical findings and adaptive behavior should also be used to determine level of intellectual functioning. Two additional classifications are possible: F78 other mental retardation and F79 unspecified mental retardation. Other mental retardation (F78) should be used when associated physical or sensory impairments make it difficult to establish the degree of impairment. Unspecified mental retardation (F79) should be used when there is evidence of mental retardation but not enough information to establish a level of functioning (e.g., a toddler with significant delays in development who is too young to be assessed with an IQ measure).

Epidemiology

Over the past 50 years the prevalence and incidence of mental retardation have been affected by changes in the definition of mental retardation, improvements in medical care and technology, societal attitudes regarding the acceptance and treatment of an individual with mental retardation, and the expansion of educational services to children with disabilities from birth through age 21. The theoretical approach to determining the prevalence of mental retardation uses the normal bell curve to estimate the number of individuals whose IQ falls below the established criterion score. For example, 2.3% of the population of the United States has an IQ score below 70, and 5.5% has an IQ score below 75. However, this estimate does not account for adaptive behavior skills. Based on empirical sampling, Baroff (1991) suggested that only 0.9% of the population can be assumed to have mental retardation. Following a review of the most recent epidemiological studies, McLaren and Bryson (1987) reported that the prevalence of mental retardation was approximately 1.25% based on total population screening. When school age children are the source of prevalence statistics, individual states report rates from 0.3% to 2.5% depending on the criteria used to determine eligibility for special educational services, the labels assigned during the eligibility process (e.g., developmental delay, learning disability, autism, and/or mental retardation), and the environmental and economic conditions within the state (U.S. Department of Education, 1994). It is estimated that approximately 89% of these children have mild mental retardation, 7% have moderate mental retardation, and 4% have severe to profound mental retardation. In addition, McLaren and Bryson (1987) report that the prevalence of mental retardation appears to increase with age up to about the age of 20, with significantly more males than females identified.

Etiology. There are several hundred disorders associated with mental retardation. Many of these disorders play a causal role in mental retardation. However, most of the causal relationships must be inferred (McLaren & Bryson, 1987). The American Association on Mental Retardation subdivides the disorders that may be associated with mental retardation into three general areas: prenatal causes, perinatal causes, and postnatal causes. For a complete listing of these disorders, the reader is referred to Mental retardation: Definition, classification, and systems of support (AAMR, 1992). It should be noted that some causes can be determined much more reliably than others. For example, chromosomal abnormalities such as Down syndrome can be assumed to be causal with more certainty than some postnatal infections. It should also be noted that mental retardation is both a symptom of other disorders as well as a unique syndrome or disorder.

Causes associated with level of mental retardation. The most common factor associated with severe mental retardation (including the moderate, severe, and profound levels of mental retardation) has been chromosomal abnormality, particularly Down syndrome (McLaren & Bryson, 1987). In approximately 20 to 30% of the individuals identified with severe mental retardation the cause has been attributed to prenatal factors, such as chromosomal abnormality. Perinatal factors such as perinatal hypoxia account for about 11%, and postnatal factors such as brain trauma account for 3 to 12% of severe mental retardation. In 30 to 40% of cases, the cause is reported to be unknown.

The etiology of mild mental retardation is much less delineated. Between 45 and 63% of the cases are attributed to unknown etiology. Fewer cases of prenatal and perinatal causes are reported, with the largest number attributed to multiple factors (prenatal) and hypoxia (perinatal). Very few postnatal causes have been linked to mild mental retardation (McLaren & Bryson, 1987).

Associated disorders. A variety of disorders are associated with mental retardation. These include: epilepsy, cerebral palsy, vision and hearing impairments, speech/language problems, and behavior problems (McLaren & Bryson, 1987). The number of associated disorders appears to increase with the level of severity of mental retardation (Baird & Sadovnick, 1985).

Psychopathology

Studies estimating the prevalence of mental health disorders among individuals with mental retardation suggest that between 10 and 40% meet the criteria for a dual diagnosis of mental retardation and a mental health disorder (Reiss, 1990). The range in prevalence rates appears to be due to varying types of population sampling. When case file surveys are conducted, the prevalence rates are consistently around 10%. The use of psychopathology rating scales in institutional or clinic samples produces the much higher 40% prevalence rate (Reiss, 1990). The actual prevalence may lie somewhere in between these two estimates. This may be the case due to the tendency of mental health professionals to consider behavior disorders in individuals with mental retardation as a symptom of their delayed development. Nevertheless, individuals with mental retardation appear to display the full range of psychopathology evidenced in the general population (Jacobson, 1990; Reiss, 1990). Individuals with mild cognitive limitations are more likely to be given a dual diagnosis than children with more significant disabilities (Borthwick-Duffy & Eyman, 1990).

Assessment

Assessment of a child suspected of having a developmental disability, such as mental retardation, may establish whether a diagnosis of mental retardation or some other developmental disability is warranted, assessing eligibility for special educational services, and/or aid in determining the educational or psychological services needed by the child and family. At a minimum, the assessment process should include an evaluation of the child's cognitive and adaptive or everyday functioning including behavioral concerns, where appropriate, and an evaluation of the family, home, and/or classroom to establish goals, resources, and priorities.

Globally defined, child assessment is the systematic use of direct as well as indirect procedures to document the characteristics and resources of an individual child (Simeonsson & Bailey, 1992). The process may be comprised of various procedures and instruments resulting in the confirmation of a diagnosis, documentation of developmental status, and the prescription of intervention/treatment (Simeonsson & Bailey, 1992). A variety of assessment instruments have been criticized for insensitivity to cultural differences resulting in misdiagnosis or mislabeling. However, assessments have many valid uses. They allow for the measurement of change and the evaluation of program effectiveness and provide a standard for evaluating how well all children have learned the basic cognitive and academic skills necessary for survival in our culture. Given that the use of existing standardized instruments to obtain developmental information as part of the assessment process may bring about certain challenges, there does not appear to be a reasonable alternative (Sattler, 1992). Thus, it becomes necessary to understand assessment and its purpose so that the tools which are available can be used correctly, and the results can be interpreted in a valid way.

The four components of assessment (Sattler, 1992), norm-referenced tests, interviews, observations, and informal assessment, complement each other and form a firm foundation for making decisions about children. The use of more than one assessment procedure provides a wealth of information about the child permitting the evaluation of the biological, cognitive, social and interpersonal variables that affect the child's current behavior. In the diagnostic assessment of children, it is also important to obtain information from parents and other significant individuals in the child's environment. For school-age children, teachers are an important additional source of information. Certainly, major discrepancies among the findings obtained from the various assessment procedures must be resolved before any diagnostic decisions or recommendations are made. For example, if the intelligence test results indicate that the child is currently functioning in the mentally retarded range, while the interview findings and adaptive behavior results suggest functioning in a average range, it would become necessary to reconcile these disparate findings before making a diagnosis.

Developmental Delay or Mental Retardation

In diagnosing infants or preschoolers, it is important to distinguish between mental retardation and developmental delay. A diagnosis of mental retardation is only appropriate when cognitive ability and adaptive behavior are significantly below average functioning. In the absence of clear-cut evidence of mental retardation, it is more appropriate to use a diagnosis of developmental delay. This acknowledges a cognitive or behavioral deficit, but leaves room for it to be transitory or of ambiguous origin (Sattler, 1992). In practice, children under the age of 2 should not be given a diagnosis of mental retardation unless the deficits are relatively severe and/or the child has a condition that is highly correlated with mental retardation (e.g., Down syndrome).

Cognitive/Developmental Assessment Tools

Bayley Scales of Infant Development - Second Edition (Bayley, 1993): The Bayley Scales is an individually administered instrument for assessing the development of infants and very young children. It is appropriate for children from 2 months to 3½ years. It is comprised of three scales, the Mental Scale, the Motor Scale, and the Behavior Rating Scale. The Mental Scale assesses the following areas: recognition memory, object permanence, shape discrimination, sustained attention, purposeful manipulation of objects, imitation (vocal/verbal and gestural), verbal comprehension, vocalization, early language skills, short-term memory, problem-solving, numbers, counting, and expressive vocabulary. The Motor Scale addresses the areas of gross and fine motor abilities in a relatively traditional manner. The Behavior Rating Scale is used to rate the child's behavioral and emotional status during the assessment. Performance on the Mental and Motor Scales is interpreted through the use of standard scores (mean = 100; standard deviation = 15). The Behavior Rating Scale is interpreted by the use of percentile ranks. The Bayley Scales were standardized using a stratified sample of 1,700 infants and toddlers across 17 age groupings closely approximating the U.S. Census Data from 1988. The manual includes validity studies and case examples. The Bayley Scales is one of the most popular infant assessment tools. It can also be used to obtain the developmental status of children older than 3 ½ who have very significant delays in development and cannot be evaluated using more age- appropriate cognitive measures (e.g., a 6 year old with a developmental level of 2 years).

The Differential Ability Scales (DAS) (Elliott, 1990): The DAS consists of a battery of individually administered cognitive and achievement tests subdivided into three age brackets: lower preschool (2 ½ years to 3 years, 5 months), upper preschool (3 ½ years to 5 years, 11 months), and school age (6 years to 17 years, 11 months). The cognitive battery focuses on reasoning and conceptual abilities and provides a composite standard score, the General Conceptual Ability (GCA) score. Verbal and Nonverbal cluster standard scores and individual subtest standard scores are also available. The DAS has several advantages over other similar measures. It has a built-in mechanism for assessing significantly delayed children who are over the age of 3 ½ years. It can also provide information comparable to other similar instruments in about half the time. Finally, it is very well standardized and correlates highly with other cognitive measures (i.e., the Wechsler Scales).

Wechsler Preschool and Primary Scale of Intelligence-Revised (WPPSI-R) (Wechsler, 1989): The WPPSI-R can be utilized for children ranging in age from 3 years to 7 years, 3 months. Though separate and distinct from the WISC-III (discussed below), it is similar in form and content. The WPPSI-R is considered a downward extension of the WISC-III. These two tests overlap between the ages of 6 and 7 years, 3 months. The WPPSI-R has a mean of 100 and standard deviation of 15, with scaled scores for each subtest having a mean of 10 and a standard deviation of 3. It contains 12 subtests organized into one of two major areas: the Verbal Scale includes Information, Similarities, Arithmetic, Vocabulary, Comprehension, and Sentences (optional) subtests; the Performance Scale includes Picture Completion, Geometric Design, Block Design, Mazes, Object Assembly, and Animal Pegs (optional) subtests. The WPPSI contains 9 subtests similar to those included in the WISC-III (Information, Vocabulary, Arithmetic, Similarities, Comprehension, Picture Completion, Mazes, Block Design, and Object Assembly) and 3 unique subtests (Sentences, Animal Pegs, and Geometric Design). Three separate IQ scores can be obtained: Verbal Scale IQ, Performance Scale IQ, and Full Scale IQ. The WPPSI-R was standardized on 1,700 children equally divided by gender and stratified to match the 1986 U.S. census data. This instrument cannot be used with severely disabled children (IQ's below 40) and, with younger children, may need to be administered over two sessions due to the length of time required to complete the assessment.

Wechsler Intelligence Scale for Children-III (WISC-III) (Wechsler, 1991): The WISC-III can be utilized for children ranging in age from 6 years through 16 years of age. It is the middle childhood to middle adolescence version of the Wechsler Scale series. It contains 13 subtests organized into two major areas: the Verbal Scale includes Information, Similarities, Arithmetic, Vocabulary, Comprehension, and Digit Span (optional) subtests; the Performance Scale includes Picture Completion, Picture Arrangement, Block Design, Object Assembly, Coding, and the optional subtests of Mazes, and Symbol Search. Three separate IQ scores can be obtained: Verbal Scale IQ, Performance Scale IQ, and Full Scale IQ. Each of these separate IQ's are standard scores with a mean of 100 and a standard deviation of 15, with scaled scores for each subtest having a mean of 10 and a standard deviation of 3. The WISC-III was standardized on a sample of 2,200 American children selected as representative of the population on the basis of 1988 U.S. census data.

Wechsler Adult Intelligence Scale - Revised (WAIS-R) (Wechsler, 1981): The WAIS-R covers an age range of 16 years, 0 months to 74 years, 11 months. The revised version contains about 80% of the original WAIS and was modified mainly due to cultural considerations. There are 11 subtests: Verbal Scale - Information, Similarities, Arithmetic, Vocabulary, Comprehension, and Digit Span; Performance Scale - Picture Completion, Picture Arrangement, Block Design, Object Assembly, and Digit Symbol. The WAIS-R was standardized in the 1970's on a sample of 1,880 white and non-white Americans equally divided among gender. The WAIS-R has a mean of 100 and a standard deviation of 15 with the scaled scores for each subtest having a mean of 10 and a standard deviation of 3.

Stanford-Binet:Fourth Edition (SB: FE) (Thorndike, Hagen, & Sattler, 1986): The SB: FE is appropriate for use on individuals ranging in age from 2 to 23. It is comprised of 15 subtests, though only 6 (Vocabulary, Comprehension, Pattern Analysis, Quantitative, Bead Memory, and Memory for Sentences) are used in all age groups. The other 9 subtests (Picture Absurdities, Paper Folding and Cutting, Copying, Repeating Digits, Similarities, Form-Board Items, Memory for Objects, Number Series, and Equation Building) are administered on the basis of age. Unlike previous editions, the SB: FE uses a point scale similar to that of the Wechsler Scales, is more culturally sensitive, and includes some new items in the areas of memory for objects, number series, and equation building.

Once administered, the SB: FE yields three types of scores: age scores (or scaled scores), area scores (general intelligence, crystallized intelligence and short-term memory, specific factors, and specific factors plus short-term memory), and a Composite Score (similar to the Full-Scale IQ of the Wechsler). The SB: FE Composite Score has a mean of 100 and a standard deviation of 16 (unlike the Wechsler's standard deviation of 15).

Overlap between the WISC-III and the Stanford-Binet:Fourth Edition: The WISC-III is appropriate between the ages of 6-16, while the Stanford-Binet: Fourth Edition is appropriate between the ages of 2 and 23. While the child is between 6 and 16, either test is appropriate. Correlations range from .66 to .83 between the WISC-R Full Scale IQ and the Fourth Edition composite. Results from Thorndike, Hagen, and Sattler (1986) show that while the two tests yield approximately equal scores, they are not interchangeable. This is partly due to the fact that they operate on different standard deviations (Sattler, 1992).

Overlap between the WAIS-R and the Stanford-Binet:Fourth Edition: Results for individuals with and without mental retardation are similar in that the WAIS-R yields higher scores than the Stanford-Binet Fourth Edition.

Special Note: Assessment Tools for Individuals with Mental Retardation. The Stanford-Binet: Fourth Edition and the Wechsler Scales are useful instruments in assessing mild mental retardation; however, neither is designed to test individuals with severe/profound mental retardation. In addition, due to the high floor on the Wechsler Scales the publisher recommends that a child obtain raw score credit in at least 3 subtests of the Verbal Scale and the Performance Scale before assuming they provide useful information. Raw score for 6 subtests, 3 Verbal and 3 Performance are recommended for a valid Full Scale IQ.

McCarthy Scales of Children's Abilities (McCarthy, 1972): The McCarthy Scales can be used with children between the ages of 2 ½ years and 8 ½ years. It contains six scales: Verbal Scale, Perceptual-Performance Scale, Quantitative Scale, Memory Scale, Motor Scale, and General Cognitive Scale. In addition to yielding a General Cognitive Index (GCI), the McCarthy Scales provide several ability profiles (verbal, non-verbal reasoning, number aptitude, short-term memory, and coordination). The overall GCI has a mean of 100 and a standard deviation of 16 and is an estimate of the child's ability to apply accumulated knowledge to the tasks in the scales. The ability profiles, in particular, make the McCarthy Scales useful for assessing young children with learning problems. The GCI is not interchangeable with the IQ score rendered by the Wechsler Scales; therefore, caution is advised in making placement decisions based on the GCI, especially in the case of children with mental retardation (Sattler, 1992).

Assessing Adaptive Behavior

Adaptive behavior is an important and necessary part of the definition and diagnosis of mental retardation. It is the ability to perform daily activities required for personal and social sufficiency (Sattler, 1992). Assessment of adaptive behavior focuses on how well individuals can function and maintain themselves independently and how well they meet the personal and social demands imposed on them by their cultures. There are more than 200 adaptive behavior measures and scales. The most common scale is the Vineland Adaptive Behavior Scales (Sparrow, Balla, & Cicchetti, 1984).

Vineland Adaptive Behavior Scales (VABS) (Sparrow, Balla, & Cicchetti, 1984): The VABS is a revision of the Vineland Social Maturity Scale (Doll, 1953) and assesses the social competence of individuals with and without disabilities from birth to age 19. It is an indirect assessment in that the respondent is not the individual in question but someone familiar with the individual's behavior. The VABS measures four domains: Communication, Daily Living Skills, Socialization, and Motor Skills. An Adaptive Behavior Composite is a combination of the scores from the four domains. A Maladaptive Behavior domain is also available with two of the three forms of administration. Each of the domains and the Composite has a mean of 100 and a standard deviation of 15. Three types of administration are available: the Survey Form (297 items), the Expanded Form (577 items, 297 of which are from the Survey Form), and the Classroom Edition (244 items for children age 3-13). The Survey and Expanded Forms were standardized on a representative sample of the 1980 U.S. census data including 3,000 individuals ranging in age from newborn to 18 years, 11 months. There are norms for individuals with mental retardation, children with behavior disorders, and individuals with physical handicaps. The Classroom Edition was standardized on a representative sample of the 1980 U.S. census data including 3,0000 students, ages 3 to 12 years, 11 months. Caution is advised when using this scale with children under the age of two because children with more significant delays frequently attain standard scores that appear to be in the low average range of ability. In this case more weight should be placed on the age equivalents that can be derived.

The American Association on Mental Retardation (AMMR) Adaptive Behavior Scale (ABS): The ABS has two forms which address survival skills and maladaptive behaviors in individuals living in residential and community settings (ABS-RC:2; Nihira, Leland, & Lambert, 1993) or school age children (ABS-S:2; Lamber, Nahira, & Leland, 1993). It is limited in scope and should be used with caution. A new scoring method has recently been devised that can generate scores consistent with the 10 adaptive behavior areas suggested in the 1992 definition of mental retardation (Bryant, Taylor, & Pedrotty-Rivera, 1996). The results of this assessment can be readily translated into objectives for intervention.

Achievement Tests

Intelligence tests are broader than achievement tests and sample from a wider range of experiences, but both measure aptitude, learning, and achievement, to some degree (Sattler, 1992). Achievement tests (such as reading and mathematics) are heavily dependent on formal learning, are more culturally bound, and tend to sample more specific skills than do intelligence tests. Intelligence tests measure one's ability to apply information in new and different ways, whereas achievement tests measure mastery of factual information (Sattler, 1992). Intelligence tests are better predictors of scholastic achievement contributing to the decision-making processes in schools and clinics, and they are a better predictor of educability and trainability than other achievement tests because they sample the reasoning capacities developed outside school which should also be applied in school.

To determine if learning potential is being fully realized, results from an IQ test and standardized tests of academic achievement can be compared. If there is a significant difference between IQ and achievement, the child may benefit from special assistance in the academic area identified.

Achievement Assessment Tools That Can Be Used With Children With Mild Learning Disorders.

Woodcock-Johnson Psycho-Educational Battery - Revised (Woodcock & Johnson, 1990): The Woodcock-Johnson is comprised of 35 tests assessing cognitive ability (vocabulary, memory, concept formation, spacial relations, and quantitative concepts) and achievement (reading, spelling, math, capitalization, punctuation, and knowledge of science, humanities, and social studies). Though the test batteries can be used with individuals from age 2 through adulthood, not all tests are administered at every age. The Cognitive Ability Battery and the Achievement Battery each have a recommended standard and supplemental batteries. The Achievement Battery can be used with preschool children (4 or 5 year olds) through adults. They each provide scores which can be converted into standard scores with a mean of 100 and a standard deviation of 15. By comparing the Tests of Cognitive Ability and the Tests of Achievement, the Woodcock-Johnson allows for the assessment of an Aptitude/achievment discrepancy. The discrepancy reflects disparity between cognitive and achievement capabilities. The Woodcock-Johnson was standardized on a representative sample of 6,359 individuals ranging in age from 2 to 95 from communities throughout the United States.

The Wide Range Achievement Test - Revised (WRAT-R) (Jastak & Wilkinson, 1984): The WRAT-R is a brief achievement test and contains three subtests: Reading, Spelling, Arithmetic. The WRAT-R is divided into two levels: Level One (ages 5 years, 0 months to 11 years, 11 months), and Level Two (ages 12 years, 0 months to 74 years, 11 months). The WRAT-R has a mean of 100 and a standard deviation of 15. It also provides T scores, scaled scores, grade-equivalent scores, and percentile ranks. It was standardized on a sample of 5,600 individuals in 28 age groups (5-74 years).

A variety of other achievement tests are available for assessing academic performance. These include, but are not limited to, the Kaufman Test of Educational Achievement (Kaufman & Kaufman, 1985) and the Wechsler Individual Achievement Test (1992).

Other Assessment Tools

Peabody Picture Vocabulary Test - Revised (PPVT-R) (Dunn & Dunn, 1981): The PPVT-R is appropriate for individuals between the ages of 2½ and adulthood and measures receptive knowledge of vocabulary. It is a multiple choice test requiring only a pointing response and no reading ability, thus making it useful for hearing individuals with a wide range of abilities, particularly children with language based disabilities. The revised edition is more sensitive to gender-based stereotypes and cultural issues; in fact only 37% of the original items were retained. The PPVT-R has two forms, L and M, with 175 plates in each form in ascending order of difficulty. Each plate consists of four clearly drawn pictures, one of which is the correct response to the word given by the experimenter. Standard scores have a mean of 100 with a standard deviation of 15. The PPVT-R was standardized on a national sample of 4,200 children (2½ - 18) and 828 adults (19 - 40) equally divided among gender and based on 1970 U.S. census data. The PPVT-R was designed to assess breadth of receptive vocabulary and not as a screening tool for measuring intellectual level of functioning. PPVT-R scores are not interchangeable with IQ scores obtained via the Stanford-Binet: Fourth Edition or the Wechsler Tests.

Columbia Mental Maturity Scale: The Columbia Mental Maturity Scale (Burgemeister, Blum, & Lorge, 1972) is a test of general reasoning ability that can be used with children who have significant physical limitations. It is appropriate for children between the ages of 3 ½ years and 9 years, 11 months. The Columbia has a mean of 100, a standard deviation of 16, and can be interpreted using age equivalents. When used in conjunction with the Peabody Picture Vocabulary Test - Revised, it can provide reasonably accurate cognitive status information comparable to the more common intelligence tests.

Leiter International Performance Scale: The Leiter International Performance Scale (Leiter, 1948) is a nonverbal assessment of intelligence. Although the norms are dated, it provides useful information about the cognitive status of children with hearing impairments or severe language disabilities. It can be used with children aged 2 through adults. It is currently under revision and will likely be a useful tool in the future (Roid & Miller, 1997).

For a description of a wide range of other specialty tests, the reader is referred to the Assessment of Children by Jerome Sattler (1992).

Dual Diagnosis

Appropriate assessment of psychopathology in people with dual diagnosis is important because: a) it can suggest the form of treatment; b) it may ensure access to and funding for special services; and c) it can be used to evaluate subsequent interventions (Sturmey, 1995). Brain damage, epilepsy and language disorders are risk factors for psychiatric disorders and are often associated with mental retardation (Rutter, Tizard, Graham, & Whitmore, 1976; Sturmey, 1995). Social isolation, stigmatization, and poor social skills put individuals with mental retardation at further risk for affective disorders (Reiss & Benson, 1985). The relationship between emotional disorders and mental retardation has been noted by many researchers (Bregman, 1991;Menolascino, 1977; Reiss, 1982). Rates of emotional disorders are more prevalent in children with mental retardation than children without mental retardation (Bregman, 1988; Lewis & MacLean, 1982; Matson, 1982, Russell, 1985). As noted previously, epidemiological studies of psychiatric disorders in individuals with mental retardation show that this population experiences higher rates of psychopathology (Corbett, 1985; Gostason, 1985). Though children with mental retardation are diagnosed with psychiatric disorders more often than children without mental retardation, they are usually diagnosed with the same types of disorders. However, uncommon psychiatric disorders may be found in children with severe and profound levels of mental retardation (Batshaw & Perret, 1992).

An additional problem is the application of DSM-IV criteria to individuals with mental retardation. Though the DSM has proven useful in diagnosing individuals with mild or moderate mental retardation (especially when the criterion are modified in some way, leading to problems in clearly operationalized definitions), many psychologists and psychiatrists rely more on biological markers, observable signs, and patterns of family psychopathology to diagnose individuals with severe and profound mental retardation thus implying that the DSM may not be as useful with this population (Sturmey, 1995). The mismatch between behaviors scripted in the DSM-IV and psychopathology presented in individuals with mental retardation can lead to under diagnosing of these individuals (Sturmey, 1995). Because the DSM is so widely used by psychiatrists, psychologists, health insurance companies, and because of the way it is coordinated with the International Classification of Diseases (ICD), it will continue to be the main diagnostic source. Practitioners should take care not to modify the DSM criteria for their own use and instead should use the criteria as they are prescribed and document cases where the criteria are inadequate to make a comprehensive diagnosis (Sturmey, 1995).

Most psychologists in the mental health field have little exposure to individuals with mental retardation and are sometimes uncomfortable treating these individuals; in fact, many professionals seem unaware that this group can experience mental health problems (Reiss & Szyszko, 1983). Mental health and mental retardation systems have been separated in this country for many years making it difficult to administratively serve people with both mental retardation and mental health disorders (Matson & Sevin, 1994). Recently, there has been a heightened awareness of need to pursue behavioral-psychiatric assessment, diagnosis, and treatment of people with mental retardation and mental health problems (Bregman, 1991; Eaton & Menolascino, 1982; Reiss, 1990).

A variety of behavioral assessment tools are available and provide key information for practioners in this area. A few of the commonly used measures or checklists include: the Child Behavior Checklist (Achenbach & Edelbrock, 1986), the Conners Parent (or Teacher) Rating Scale (Conners, 1990), the Revised Behavior Problem Checklist (Quay & Peterson, 1987), and the Social Skills Rating System (Gresham & Elliott, 1990). These measures are only as reliable as the parent, guardian, or teacher completing them. However, they can provide useful information about the nature of the behavioral problems or competencies of the child. All of the scales noted above focus primarily on behavioral difficulties with the exception of the Social Skills Rating System which includes items that address prosocial behaviors.

Interdisciplinary Approach

Because children with mental retardation often have other problems, it is necessary to involve a team of practitioners from different areas (e.g., child psychiatrist, social worker, child psychologist, special education teacher, speech and language specialist, and community agencies), in the comprehensive diagnosis. This type of interdisciplinary team approach is relatively new but is considered to be imperative for comprehensive assessment, treatment, and management of children with mental retardation (Lubetsky, Mueller, Madden, Walker, & Len, 1995). A natural extension of the interdisciplinary approach is the involvement of the family in the decision-making process. In fact, recent government and educational initiatives such as Public Law 99-457 and Public Law 102-119 require the involvement of parents and professionals in early intervention services (Lubetsky et al, 1995). A family-centered interdisciplinary approach begins with an assessment of the child (including school history, obtained from parents and school records), family (family marital and parenting history), and community resources. Medical, developmental and psychiatric histories are obtained. Behavioral analysis, psychoeducational, speech and language testing are completed. Medical and neurological assessments are performed. The team presents these results to the parents who are actively involved in evaluating and implementing treatment recommendations (Lubetsky, et al, 1995).

ERRATA

From the Death Penalty Information Center

Prominent Organizations Voice Opposition to Upcoming Execution of Mentally Ill Juvenile Offender in Georgia

Alexander E. Williams, a juvenile offender who suffers from paranoid schizophrenia, is scheduled for execution in Georgia on February 20. The Georgia Board of Pardons and Paroles has received pleas for clemency for Williams from organizations and individuals such as the American Bar Association, former First Lady Rosalynn Carter, the French Presidency of the European Union, the National Alliance for the Mentally Ill, and the National Mental Health Association.

Williams's trial lawyer failed to present available mitigating evidence to the sentencing jury, including the fact that Williams suffers from severe mental illness, and that his childhood was plagued with chronic physical, sexual, and emotional abuse. Five of the eight living jurors from his original trial have signed affidavits stating that they would not have sentenced Williams to death if they had known about his history of abuse and mental illness. (ABA Juvenile Justice Center, Action Alert, 2/13/02)

To read a selection of clemency appeals and news articles written about Williams's case, visit the ABA Juvenile Justice Center's Web site. See also, Amnesty International's report "USA: Crying out for clemency: The case of Alexander Williams, mentally ill child offender facing execution."

Currently, legislation to ban the execution of juvenile offenders is pending in Arizona, Florida, Indiana, Kentucky, and Missouri. See also, Changes in the Death Penalty Laws and Juveniles and the death penalty.

Oregon Life for a Life Campaign

The Life for a Life 2002 campaign, an initiative to replace Oregon's death penalty with a sentence of life imprisonment without release, has raised far more money than any other 2002 initiative campaign in the state. The initiative, headed by former Senator Mark Hatfield, is now allowed to advance to the signature-gathering phase, which, if enough signatures are gathered, will qualify it for the November 2002 ballot. (Statesman Journal, 2/7/02) For more information, visit the Life for a Life Web site. See also, Changes in the Death Penalty Laws.

Texas Prepares for Execution Despite Claims of Racial Discrimination

Thomas Miller-El, a black man convicted of the murder of a white man, is scheduled to be executed in Texas on February 21. Miller-El is petitioning the Texas Board of Pardon and Paroles for clemency and appealing to the U.S. Supreme Court. In his appeal, Miller-El is presenting evidence that at the time of his trial, Dallas County prosecutors engaged in unconstitutional, race-based jury selection tactics in an effort to exclude African-American jurors.

In his clemency petition, Miller-El cited a 1986 Dallas Morning News investigation that examined the 15 Dallas County capital murder trials from 1980 through 1986, including that of Mr. Miller-El. The investigation found that prosecutors excluded 90 percent of blacks who qualified for jury selection. In Miller-El's case, prosecutors struck 10 of 11 black prospective jurors. Miller-El's attorneys say his case highlights the continuing exclusion of minorities from juries. "What's at stake in this case is the fundamental right of citizens of all races to participate in the justice system," said his lawyer, Jim Marcus, the executive director of the Texas Defender Service. (New York Times, 2/13/02)

To watch a streaming video from the Texas Defender Service regarding the prosecution's jury selection in Miller-El's case, visit the appropriate link for your Internet connection:

http://easylink.playstream.com/txds/millerel.28.rm (28.8 Modem Connection)

http://easylink.playstream.com/txds/millerel.56.rm (56K Modem Connection)

http://easylink.playstream.com/txds/millerel256.rm (Cable/DSL)

Since the death penalty was reinstated, 11 whites have been executed for killing a black victim and 167 blacks have been executed for killing a white victim. See also, Race and the Death Penalty.

EDITORIAL: Florida Newspaper Urges Death Penalty Study Commission

In a recent editorial, the Orlando Sentinel recommends that Governor Bush impanel a commission to study the state's death penalty, stating:

The U.S. Supreme Court action that forced Florida to suspend executions presents an excellent opportunity for the state to take a critical look at capital punishment.

. . .

When this newspaper -- which has supported the death penalty for many years -- suggested such a commission last year, Mr. Bush shrugged off that notion. Now he has another chance to do the right thing.

. . .

Florida's system of capital punishment clearly has problems. Florida leads the nation in the number of people -- 22 -- whose death sentences were vacated because the defendants later were exonerated, or because of serious flaws in the way cases were handled. Those flaws included misconduct by police and prosecutors and by inept defense lawyers. During that same period, the state executed 51. The possibility of executing an innocent person should alarm any fair-minded person.

(Orlando Sentinel, editorial, 2/10/02) See also, Editorials and New Voices.

Follow-up of Major Death Penalty Study Examines Causes of Error in Capital Cases A new report released today (Feb. 11) by Columbia University, "A Broken System, Part II: Why There is So Much Error in Capital Cases, and What Can be Done About It," explains the factors that lead to errors in death penalty cases. The study uses a variety of statistical techniques to identify factors explaining why some states and counties have more capital error than others. The principal finding of the study is that the high rate of mistakes in death penalty cases is related to aggressive overuse of the punishment. Instead of using the death penalty for the "worst of the worst" cases, other influences related to race and political pressure lead to an error-prone expansion of capital punishment. "What our study shows is that aggressive death sentencing is a magnet for serious error," said Professor James Liebman, the leading researcher for the study. The report is a follow-up to a June 2000 study, "A Broken System, Error Rates in Capital Cases 1973-1995," which revealed that 68% of all capital judgments were reversed by the courts due to serious error. (Columbia University Press Release, 2/11/02 and New York Times, 2/11/02).

Prof. James Liebman

The entire study is available on line at www.law.columbia.edu/brokensystem2. For more information about the initial study, see DPIC's Web page summarizing the first the report, with links to the entire study and related articles.