Home / General / Supreme Court Winks At Texas’s Nullification Of Its Own Decision

Supreme Court Winks At Texas’s Nullification Of Its Own Decision


You may remember that Texas ignored clear Supreme Court precedent and upheld a death sentence for Marvin Wilson, a man with an I.Q. of 61. Well, yesterday the Supreme Court refused to grant a stay and Texas executed Wilson, and for all intents and purposes Atkins is a dead letter.

One reason I can never get upset about the “scandal” of Supreme Court leaks is that the institution should be more transparent, and this is an excellent example. The votes for the denial of a stay were not made public — but in a literal matter of life or death I have no idea why this should be the case. Is (my guess) Kennedy a complete fraud? Do one or both of Obama’s nominees think it’s acceptable for Texas to violate the Eight Amendment in open defiance of the Supreme Court’s binding precedent on the matter? I for one would like to know the answer to these questions.

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  • elm

    Is it possible the ACA deliberations has caused Kennedy to go full wingnut? I was surpised he sided with such an extreme opinion and now he is likely the 5th vote to deny the stay (I guess it could be Kagan, but Kennedy is much more likely) eviscerating his own precedent.

    Maybe I’m reading too much into very little evidence, but I don’t think replacing Kennedy with Roberts as the swing vote is a particularly good deal.

    • firefall

      So now you have 5 child-murderers sitting on the Supreme Court? In what way is anyone supposed to sustain the least shred of respect or belief in the moral authority of these vicious scumbags?

  • Malaclypse

    Digby seems to be saying this was a solo decision of Scalia. Was denying the motion a solo thing, or was there a vote?

    • Anderson

      I thought emergency stays like this went to the sole justice assigned to the circuit (lucky me, my 5th gets Scalia), but I am not going to pretend to competence in SCOTUS practice.

    • Scott Lemieux

      Digby and Dayen are (understandably!) wrong. Scalia referred the decision to the whole Court, as would be expected in a case like this.

      • Malaclypse


  • superking

    cf. the Supreme Court’s summary reversal of the Montana Supreme Court on Campaign Finance.

  • Captain Haddock

    From the Fifth Circuit’s opinion:

    Five I.Q. scores are reflected in those reports. The first I.Q. test, the Lorge-Thorndike, was administered by Wilson’s school when he was approximately 13 years old. Wilson’s full-scale score on this test was 73. At age 29, Wilson was given an I.Q. test by the Texas Department of Criminal Justice and scored 75. In April 2006, when Wilson was 46 and during the post-conviction proceedings, Wilson scored 61 on the WAIS III I.Q. test. On further testing by the defense, Wilson scored 75 on the Raven Standard Progressive Matrices and 79 on the TONI-II I.Q. tests. A score of 70 or below supports a finding of mental retardation.

    . . .

    The state court’s opinion quotes extensively from the state’s cross-examination of Wilson’s expert Dr. Trahan, challenging Dr. Trahan’s reliance on his assumption that the WAIS-III was administered by a “well-respected and well-trained psychologist” when in fact the test was given by an intern and Dr. Trahan conceded that no records were available to indicate Wilson’s motivation, attentiveness or cooperativeness or the test surroundings.

    Why are Wilson’s motivation, attentiveness, or cooperation important? Because the WAIS-III was administered after the Atkins decision while Wilson’s post-conviction proceedings were underway. In other words, he had every incentive to score low.

    The death penalty should be outlawed. There are many cases of mentally retarded or probably innocent people getting executed. This is not one of them.

    • John

      If that’s all true, it does rather sound like a case where the guy may not have actually met the legal standard for mental retardation – the fact that all but one test show him in the 70s suggests that the other test was an outlier.

      • Njorl

        Your IQ is not necessarily what you score on an IQ test. There is error involved. If you take a test and score 75, you may have a 69 IQ.

        If the ruling prevents execution of the mentally retarded, it becomes important how mental retardation is defined. Is it someone with an IQ below 70, or is it someone who scores below 70 on an IQ test?

        • John

          Sure, but when you see that he took a bunch of tests where he averaged around 75, and then one test where he got a 61, that suggests the one test is an outlier, doesn’t it?

          And it seems reasonable to me that we would want someone to have to demonstrate to a preponderance of the evidence that they are mentally retarded, rather than just saying that anyone who scores below a 70 on any single IQ test can’t be executed, which would create perverse incentives. The other IQ tests seem like relevant evidence to suggest that Wilson was not actually mentally retarded.

          I’ll note that I am also opposed to the death penalty, and I’d not have been at all upset if a stay had been granted, or his sentence commuted, or whatever. But this doesn’t seem like a clear outrage.

          • Anonymous

            Perhaps Texas should establish a legal, statutory state, like a competent state would have? Rather, they base it on ad hoc guesses

            • John

              There should certainly be statutory guidelines.

            • firefall

              That would interfere with their god-given right to murder people of any age, colour or IQ, so long as they’re … you know, not white.

          • firefall

            To my understanding, anyone with an IQ of 75 (or less) is pretty much incapable of sufficient guile to deliberately cheat an IQ test.

    • rosmar

      And IQ test of 75 (which seems to be about the average of these scores) would still be “borderline mentally retarded.” For children, below 75 is considered “developmentally disabled.”

      But regardless, I agree the death penalty should be outlawed.

    • Joe

      The fact this might not be the best fight for what amounts to court libs to use is open to debate (though Sotomayor and others have used dissents from denial in criminal cases to make a point; Breyer has repeatedly in DP areas) & I think focus should be placed on the CA5, not just Texas.

      Still, the full Dr. Trahan report is useful [see link here], not just selective summaries by a conservative appeals court. This “court-appointed, board certified neuropsychologist with 22 years of clinical experience as an Mental Retardation specialist” discusses each of the tests & explains why the lowest score was in his opinion the most accurate.

      The report also discusses the criteria for this judgment, one not just based on possible malingering by the test subject. Also, “court-appointed, board certified neuropsychologist with 22 years of clinical experience as an Mental Retardation specialist” know about that sort of thing, so like those who some think will trick an expert to label the person insane, that would be taken into consideration.

      As to the comment about “no records being available,” the report sends quite an opposite message. It is unclear who to rely on (and justices might rely on federal judges), but it is not really out of the realm of possibility that the CA5 is the one wrong here.

  • efgoldman

    What a sick fuck of a state. They just love to lead the world in croaking people.
    Their new state motto: Fry ’em All!
    They’d go back to the chair or public hangings, if they could. And a big fucking help SCOTUS is, also too.
    Tell you what: they’re so fucking bloodthirsty, next time we want to send troops to some sandy or jungly place to get their asses shot at, lets start with all the white boys from TX, led by all the current and former GOBP politicians and state officials.
    [My company has a large and expanding office in TX, and employees are encouraged to move from New England. Bull shit. I’ll be the one that turns the lights out up here.]

    • Lee

      Ah, but think how educational public hangings would be? Nobody would every commit a crime if they knew their death would be public entertainment.

      (Note: This is supposed to be sarcastic).

      • prufrock

        I wish I could find a clip of the hanging scene from “The Great Train Robbery” to put here.

        Instead, I think I’ll just go with, “Oh my, think I’m going to die!”

      • Furious Jorge

        I got into a discussion with a friend of mine on Facebook the other day in which he made this precise argument.

        Only he was serious.

        • Lee

          Why not bring back the stocks while we’re at it? I really shouldn’t be but I’m constantly surprised by the sheer amount of stupid things that humans believe in. Public executions and humiliation did not deter crime in the past. There isn’t any reason to think they’d work now.

          Plus, modern media will make public executions and humiliations a real nightmare. More so than the past version, which was at least localized.

          • rhino

            I would be in favour of the stocks for politicians, public officials, and officers of the law found guilty of corruption… Maybe some facial branding as well. /s, but just barely.

    • Angel Gutierrez

      …next time we want to send troops to some sandy or jungly place to get their asses shot at, lets start with all the white boys from TX

      Calling out racism whenever it rears its ugly head….

      • Anonymous

        I did that on purpose.
        It isn’t the blacks or Hispanics who are lining up for a turn to pull the lever.
        (I’m white, FWIW)

  • bradp

    I’m against the death penalty no matter what, but your argument seems a little one-sided. He was competent enough to be a street-gambler and drug dealer that supported himself.

    He also kidnapped and killed a man because he thought the man snitched on him when the police found 24 grams of cocaine in Wilson’s apartment.

    Not many 1st graders are capable of managing 1000 bucks worth of cocaine and conspiring to commit murder.

    He seemed competent enough to understand his crime and punishment.

  • Glenn

    Sometimes an order denying a stay will also note that “Justice [X] would grant the application for a stay” or something like that. I don’t know if that’s consistently done, but if so then it seems like this was unanimous. At least, no Justice cared to publicly announce they voted for it.

    • Scott Lemieux

      You can’t infer unanimity from this;judges don’t always make dissenting votes public in such cases.

      • Glenn

        Fair enough. It would be interesting, though, to know why a Justice would choose in some cases to announce the dissenting vote (not talking about dissenting opinions, just a notation like I mentioned) but not in others. I’d particularly be curious to know why, if a Justice only selectively released dissenting votes, he or she would not do so in this case, of all cases.

      • David M. Nieporent

        True, but they do make dissenting opinions public. Apparently not one justice actually agreed with Campos’s tendentious description of what Texas is doing; it seems unlikely that if they actually thought that Texas was “nullifying” their decision, that they would have remained silent.

        The Supreme Court explicitly left it to the states to decide how to assess mental retardation. The state of Texas came up with a way — the fact that it was through caselaw rather than statute has approximately nothing to do with anything. Perhaps the AAMR disagrees with Texas’s methodology, but the Eighth Amendment does not enact Mr. Herbert Spencer’s the AAMR’s definition of mental retardation.

  • Joe

    Do one or both of Obama’s nominees think it’s acceptable for Texas to violate the Eight Amendment in open defiance of the Supreme Court’s binding precedent on the matter?

    The CA5 ruled that a reasonable judgment could be made that the test that resulted in the lowest score could be deemed not the best judge of his mental state, citing the district ruling on the matter. I am not an expert in this field & quite honestly would lean far to the side of not executing the guy.

    But, there is room for debate here, Atkins is not quite a dead letter and “Texas” really shouldn’t be your only concern here.

  • bradp

    Question: When it comes to judging competency in regards to sentencing, how much do the circumstances of the crime come into play?

    His crime was pretty heinous and doesn’t seem particularly indicative of someone who has the intelligence of a first grader:

    Wilson was convicted of murdering 21-year-old Jerry Williams in November 1992, several days after police seized 24 grams of cocaine from Wilson’s apartment and arrested him. Witnesses testified that Wilson and another man, Andrew Lewis, beat Williams outside of a convenience store in Beaumont, about 80 miles east of Houston. Wilson, who was free on bond, accused Williams of snitching on him about the drugs, they said.

    Witnesses said Wilson and Lewis abducted Williams, and neighborhood residents said they heard a gunshot a short time later. Williams was found dead on the side of a road the next day, wearing only socks, severely beaten and shot in the head and neck at close range.

    Wilson was arrested the next day when he reported to his parole officer on a robbery conviction for which he served less than four years of a 20-year prison sentence. It was the second time he had been sent to prison for robbery.

    • How many 1st graders have you known? This sounds very much like the kind of violent, impulsive, self-centered, short-sighted behavior 1st graders would engage in if they were larger and had access to adult weapons.

      • bradp

        I’m not talking about the impulsivity but the capacity.

        He had a driver’s license, a gun, and about $1000 worth of cocaine. That may imply 1st grade impulsivity, but I’m doubting too many first graders have the capacity to put themselves in that situation, or we would see a lot more 7yo on 7yo drug killings.

        • Furious Jorge

          I imagine a large degree of that has to do with the difference in physical size between a 7 year old and this guy.

          I mean, who the hell is going to give a 7 year old a thousand dollars?

          • Is the 7 year old Mitt Romney?

        • Getting a driver’s license isn’t beyond the capacity of a 1st grader: they play video games with more rules, requiring greater coordination. We don’t allow it because their ability to take the test is not going to be reflective of their likely behavior in real life situations.

          Getting a gun in Texas also isn’t that hard, I’m told. Once you’ve got that, getting set up as a drug dealer isn’t much harder than getting set up with a lemonade stand, if you meet the right folks and they decide you’re useful.

    • I don’t think heinousness is a mark of intellectual capacity.

      • bradp

        It seems like it was pre-meditated evil that he knew was wrong.

        I also believe he said something like “I’m gonna show you what happens to snitches in this neighborhood” or something.

        I don’t really know enough about it to comment much more.

        I really am curious as to whether the nature of the crimes could outweigh a professional evaluation.

    • L2P

      In Hollywood, we had a monkey selling drugs. A guy with a 3rd floor apartment was sending the monkey out with bindles and a bag for money and the monkey was climbing down three times a day at a certain hour, and climbing back up after the sales. I’m told by the cops who watched that the monkey would screech at people who didn’t put money in the bag.

      In South LA, a 3 year old was going up and down a block south of Manchester doing the same thing.

      What makes you think that selling drugs and getting angry is some sign of adult-level intelligence?

      • Scott Lemieux

        Especially when he had an accomplice?

        • bradp

          How does an accomplice make the incompetence more plausible?

          1. Jerry Williams leaves Wilson’s apartment. Immediately after the police conduct a raid that found 24 grams of cocaine. Wilson, after release on bond tells people he’s gonna get the snitch.


          3. Andrew Lewis and Marvin Wilson beat and execute Jerry Williams.

          Now there could be facts I don’t know about, but what events occur at step 2 that lead Andrew Lewis to decide to execute a police informant with a mentally challenged individual?

          • Malaclypse

            Step 2: If we get caught, I can get a plea bargain if I pin it on the dummy.

            • bradp

              Lewis is serving life in prison for the killing and doesn’t seem to have any sort of motive.

              Plus, how do you not get caught in that situation?

              • Malaclypse

                Plus, how do you not get caught in that situation?

                You are using the stupidity of the crime to argue against the retardation of the perpetrator?

                • bradp

                  No, I’m saying that, presumably, the accomplice was not mentally retarded and would probably not choose a guy with 6th year old intelligence to be his wingman in a murder.

                • Holden Pattern

                  No, I’m saying that, presumably, the accomplice was not mentally retarded and would probably not choose a guy with 6th year old intelligence to be his wingman in a murder.

                  Do you understand even the barest basics of blue-collar criminality in the United States? Most violent criminals have very poor impulse control, and aren’t very good about thinking through the consequences of their actions. So, yeah, it’s totally believable that a criminal of average intelligence would pick this guy to be his accomplice. Dude probably never even thought about it.

              • L2P

                Wow, Brad.

                Is the monkey the mastermind of our Hollywood drug deal?

                When the three year old’s mom tried to say the kid was selling drugs on his own (and she DID, she DID) did you believe her and put the kid in jail for the next 10 years?

                I almost feel like a lot of “lock them up and throw away the key” people have never actually talked to a person.

                • bradp

                  When the three year old’s mom tried to say the kid was selling drugs on his own (and she DID, she DID) did you believe her and put the kid in jail for the next 10 years?

                  You are begging the question.

                  There doesn’t seem to be any evidence that Wilson was put up to selling drugs or beating and executing a cop informant.

                  We can be quite sure that the three year old did not plan out the drug deals, but whether or not Wilson had the capacity to knowingly conspire to commit murder is very much the question.

      • bradp

        What makes you think that selling drugs and getting angry is some sign of adult-level intelligence?

        It has more the police finding 24 grams of cocaine in Wilson’s apartment, and that he coordinated the premeditated attack with Andrew Lewis.

        That would take some doing from a monkey or first grader.

        • Malaclypse

          My child invents social games that are a whole lot more complicated than “two people attack one” fairly easily, and has since she was three or so.

          • DrDick

            I have the sense that Brad is in for a very stressful and revelatory 18 years pretty soon. I wish him the best in his upcoming learning experience regarding the nature and capacities of children.

            • bradp

              Well, if my first grade child is willing and able to rent his own apartment and live on his own, more power to him/her.

              So it will be more like a very stressful six years.

        • L2P

          When I was in kindergarten, Mark Knodsen (bad ass second grader – he must of failed second grade a three times) bullied everybody in our class. We got together and decided to gang up on him after school and we beat the snot out of him. If one of us could have gotten a gun, I’m sure he’d of shot him. I was a whopping 5.

          Did you skip elementary school?

    • rea

      Because you can’t execute people without first convicting them, there is necesarily a gap bettween the mental capacity necessary to commit a crime and the mental capacity necessary to be subject to execution. Otherwise, the issue never arises.

      • John

        There might, however, be particular crimes that it would basically be impossible for a mentally retarded person to do. For instance, what if somebody was murdered by means of a poison synthesized by the defendant through a complex process in a lab? Even if the defendant scored a 61 on an IQ test, I think there would be good reason to think that his ability to commit the crime suggests that that can’t possibly be right.

        I don’t think that circumstance applies here, though.

    • Anonymous

      o, no one knows who even pulled the trigger?

      • Paul Campos

        Well according to the wife of the guy who copped a plea the retarded guy told her that he did.

        • Anderson

          That’s the IQ test that matters, right there: who’s going to cop a plea and finger his partner first?

          • Holden Pattern


        • bradp

          There’s also the people who heard Wilson was going to get the snitch. The fact that Williams snitched on Wilson, not Lewis. The multiple witnesses who saw Wilson standing over Williams beating him and subsequently chasing him down into a field while Lewis was gasing up the van.

  • Gone2Ground

    This case was profiled on Democracy Now. Here is what the defendant’s attorney said:

    LEE KOVARSKY: Sure. Marvin and his accomplice, Terry Lewis, had a chance encounter with the victim at a gas station. As you noted, the victim in your introduction, the victim had –was a confidential informant, won’t was not that confidential at that particular time, and he had given information to the police that led to Marvin’s arrest the week before. So when they bumped into Williams at the gas station, an altercation ensued. The two men forced Williams into a car. What happens after that is very unclear. There’s no forensic evidence. There’s no eyewitness testimony. The next morning, the body is found by the side of the road in the manner that you described. There’s testimony from one witness that right after the incident at the convenience store that there was a sound that could have either been a gunshot or discharge from a nearby refinery. There’s no — the forensics experts says at trial that, no, Mr. Williams actually died the next morning, so it wouldn’t have been whatever sound the person heard. More importantly, Marvin is on death row and his accomplice has a life sentence because the only evidence that Marvin and not the accomplice was the shooter is the testimony of the accomplices wife saying that Marvin admitted to her that he did it.

    Sounds pretty thin, even by Texas standards of evidence….

    • firefall

      By Texas standards, his eyes are too close together, is sufficient

    • Just Dropping By

      Sounds pretty solid to me unless Wilson and Lewis have decent explanations for what happened after they were observed forcing the victim (whom it appears to be undisputed Wilson had motive to kill) into their car.

    • David M. Nieporent

      Kovarsky is trying to relitigate guilt when that simply wasn’t at issue on appeal. It is very rare that someone commits a crime on videotape, such that there are no possible arguments as to innocence. Presenting those arguments — that a witness has a motive to lie, for instance, or that the gunshot a witness testified he heard may have been something else — is what the trial is for. The fact that one wished the jury would have accepted those arguments is not grounds for treating those arguments as if they were correct.

      I have not reviewed the trial transcript, but I have read the briefs and reviewed coverage of the case, and I have seen no argument as to what Lewis’s motive would have been for being the shooter, while Wilson had a clear motive.

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