Prosecutors fear flood of death penalty appeals after Supreme Court ruling

<br>AUSTIN, Texas (AP) _ The Supreme Court's ban on executing mentally retarded killers has prosecutors across the country bracing for a flood of appeals from inmates hoping to avoid the death chamber.

Friday, June 21st 2002, 12:00 am

By: News On 6

AUSTIN, Texas (AP) _ The Supreme Court's ban on executing mentally retarded killers has prosecutors across the country bracing for a flood of appeals from inmates hoping to avoid the death chamber.

``All of a sudden everybody on death row is going to become retarded,'' said Mississippi Assistant Attorney General Marvin ``Sonny'' White, who prosecutes death row appeals for the state. ``It means new rounds of appeals.''

The high court ruled 6-3 on Thursday that executing mentally retarded murderers is unconstitutionally cruel. The decision _ the biggest shift in the court's stance on capital punishment in a quarter-century _ offers the possibility of reprieve to scores of inmates.

Louisiana Attorney General Richard Ieyoub said the ruling creates a dilemma because the court left it to the states to legally define mental retardation. Those definitions will likely be tested in court, he said.

As states scrambled to figure out how the ruling would affect them, death penalty opponents lauded Thursday's opinion and victims' advocates criticized it.

``It's a Pandora's box, and it's deep and wide,'' said Dianne Clements, president of Justice For All, a Texas victims' rights group. Her son was murdered in 1991.

``It has opened the door to years of litigation,'' Clements said. ``And there are plenty of people who are going to walk through it.''

Texas Attorney General John Cornyn declined to comment Thursday, but the ruling was already making waves in the nation's leading death penalty state. Texas is one of 20 states that theoretically allow execution of retarded people.

Hours after the ruling, lawyers for convicted killer John Paul Penry, who is considered mentally retarded, asked for a mistrial. The judge denied the motion and continued a hearing to determine whether Penry should be sentenced to death a third time for a rape-slaying that happened more than 22 years ago.

Texas has executed 256 people since the death penalty was reinstated in 1976. Sixteen people have died by lethal injection this year; three executions are scheduled next week.

Eighteen of the 38 states that allow the death penalty exempt mentally retarded people. Twelve states and the District of Columbia do not impose the death penalty. There are more than 3,700 death row inmates nationwide.

Some defense attorneys hope the ruling will apply in cases where the defendant is not retarded. Attorneys for a Missouri death row inmate who killed as a teen-ager said the ruling is relevant to their case because both retarded people and the young have underdeveloped mental capacities.

Missouri Attorney General Jay Nixon said Thursday's ruling is about retardation, not age.

Steve Hall, director of the anti-death penalty group StandDown Texas, rejected the argument that the ruling will allow murderers to fake retardation to escape the death penalty. He said defense attorneys must use medical and school records and other evidence including IQ tests to prove retardation.

In Texas and Utah, mental retardation is among several factors jurors can consider before deciding whether to impose a death sentence.

Texas Sen. Rodney Ellis, a Houston Democrat, last year filed a bill to ban the execution of the mentally retarded in Texas, but it was vetoed by Republican Gov. Rick Perry.

Ellis said Thursday he plans to file the same piece of legislation in January.

``Just as we don't execute children in this country or in this state, we ought not execute someone who has the mind of a child,'' Ellis said.

Perry on Thursday stood by his veto of the bill, saying Texas already follows the standards cited in the Supreme Court's decision.

David Elliot, spokesman for the Washington D.C.-based National Coalition to Abolish the Death Penalty, said Perry is wrong.

``If Texas continues to pretend that mentally retarded people are not on its death row, the Supreme Court will step in and make them understand,'' Elliot said. ``This ruling means Texas is going to have to once again pass a bill banning the execution of mentally retarded and this time the governor is going to have to sign it.''

The Death Penalty Information Center claims Texas has executed at least six mentally retarded inmates since 1982, a number disputed by death penalty proponents.

One case often cited is that of Carl Kelly, who was put to death Aug. 20, 1993, for a $30 convenience store robbery in which two people were killed.

Lawyers for Kelly, who was 34 at the time of his death, argued that their client was of below average intelligence and had a long history of drug use.

Rob Owen, one of Kelly's lawyers, said Thursday he has Kelly's elementary school picture on his desk.

``I kept it as a reminder that the person they killed had the mind of a child,'' he said.