Edward N. Bell, a Black Jamaican national, was convicted by an all-white small-town Virginia jury in 2001 in the shooting death of a popular police officer, Ricky Timbrook. You can learn more about his case on his clemency website -- www.clemency4Eddie.net or by reading local coverage of the case by the Northern Virginia Daily at http://www.nvdaily.com/...
Eddie has completed his appeals and is facing execution on February 19, 2009. We are petitioning Governor Tim Kaine (Virginia) for clemency. Over the next few days I will be focusing on various aspects of his case in diaries. At the bottom of this diary I will provide Action options -- links to an Online Petition, and Amnesty International. Each diary will focus on just one aspect of his case. We also have very strong arguments regarding his innocence, perjured testimony at the trial, and the severely deficient performance of his court appointed counsel during the penalty phase. Our full clemency brief will be available online.
It is no accident that Virgina has executed more people than any other state save Texas. The Virginia review process is willfully blind. And these findings and holdings of the Virginia supreme court are fiercely protected by the byzantine AEDPA, particularly as interpreted by the 4th Circuit. Had this crime been committed in Winchester Georgia instead of Winchester Virginia, the 11th Circuit precedent would have resulted in Bell being granted a new penalty phase trial, at the very least. Bell would also likely have prevailed in the 3rd, 5th, or 8th Circuit.
One example of Virginia’s deliberate efforts to subvert the constitutional protections we’ve worked for is its handling of Eddie’s mental retardation claim. In 1996, in the landmark case of Atkins v. Virginia, the Supreme Court of the United States held that executing the mentally retarded is unconstitutional.
That shouldn’t have been controversial. None of the "justifications" that purportedly excuse the death penalty apply to the mentally retarded. The death penalty is only constitutional because it’s reserved for the most heinous of offenders, and that means the people who form the most deliberate and malicious intentions. But, as the Supreme Court recognized, mentally retarded people just can’t do that. They may commit crimes, and when they do, punishment is appropriate, but they lack the mental capacity to form the truly egregious malicious intent ("mens rea" in lawyer) that the death penalty is reserved for. And, how do you "deter" someone with the mental capacity of a grade school child? Worse yet, because of their mental limits, the mentally retarded are far more likely to be wrongfully convicted—they can’t assist their defense lawyers the way a person of even average intelligence can.
None of that troubles Virginia. Virginia fought hard in Atkins for the right to kill mentally retarded citizens, and when it lost that fight, its courts simply took to evading Atkins by denying due process.
"Retarded" in Virginia means a low IQ, plus adaptive functioning deficits that onset before age 18. OK, so what happens if you’ve never taken an IQ test? Suppose, for example, you’re an immigrant who came from a dirt poor school in rural Jamaica. Assume, also that you now can’t get one—because (A) you’re now indigent (hard to hold down a job in a Virginia supermax prison) and (B) the prison won’t let a doctor in to test you without a court order.
In that case, Virginia law says, you have to make a "non frivolous" showing that he might be retarded in order to get an IQ test and a hearing. Here’s what Eddie (OK, really Eddie’s lawyer) presented as evidence that Eddie might be retarded:
• He proved that Eddie’s parents used to give him drugs and alcohol as a toddler, and submitted an affidavit by a nationally recognized expert on psychopharmacology explaining that if a toddler is dosed with drugs and alcohol while his brain is forming, brain damage and hence retardation is very likely to result
• He got a general practitioner to perform the basic screening test they do to decide whether to test for retardation. The GP’s opinion was that, if Eddie were his patient, he’d order diagnostics because Eddie is likely retarded.
• He got a host of people to testify that Eddie has always acted like he was mildly retarded – he speaks slowly, is terribly slow understanding basic concepts, and often simply doesn’t get even the simplest ideas.
And, Eddie even had an IQ score. At trial, he was tested for competency, and the psychologist administered a test called the Raven’s Progressive Matrices. Eddie scored well below the retarded level – so low, in fact, that the tester thought he must be malingering. Now, in point of fact, there’s an excellent reason Eddie scored badly – Eddie is functionally illiterate, and having grown up in Jamaica, he doesn’t have the cultural reference points that the test relies on.
The tester administered a test for malingering, called the Reyes 15 Item test. Basically, they show you 15 things for about 10 seconds, then take them away and ask you to recall what you saw. Sounds difficult, but it’s really easy because the 15 things come in sets of three: A B C, 1 2 3, triangle square circle, I II III, etc. If you score 7 or above, you’re not malingering. Eddie scored a 6, and missed all the Roman numerals – because they don’t teach Roman numerals in dirt poor rural Jamaican schools.
By now the pattern should be pretty clear – to test the IQ of an illiterate person from a foreign culture requires special testing methods. You can’t treat a farm working immigrant from Jamaica like a kid who goes to a NOVA private school. Virginia didn’t care.
Here’s what Virginia said:
• You have to have an IQ score from a specific qualifying test – one on our list. Eddie doesn’t, so we think his application is frivolous, so we won’t fund a qualifying test or allow it to happen.
• You have to show adaptive functioning deficits, and since Eddie reads the Bible, we think his application is frivolous, so again, we won’t fund a test or allow it to happen.
That kind of Catch-22 is Virginia’s way of circumventing Atkins, and refusing to play by the rules the Supreme Court laid down.
ACTION ITEMS
It would be a travesty for Virginia to be allowed to circumvent the law in this manner. Join us in urging Governor Kaine to commute Eddie’s death sentence to life without parole.
Please sign our Online Petition at: http://www.thepetitionsite.com/...
Alternatively, you can write or email Governor Kaine through Amnesty International’s Action page.
If you have suggestions for other forums where I can seek signors for the petition, please include them in the comments or email me at my gmail address – clemency4eddie. If you want to help in other ways, please contact me.