5th Cir. Stays Execution Because Texas D.A. Withheld IQ Tests - U.S. Fifth Circuit
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5th Cir. Stays Execution Because Texas D.A. Withheld IQ Tests

Robert James Campbell was about two and a half hours away from being executed, the first scheduled execution in the United States since a botched execution in Oklahoma led to 43 minutes of apparent agony for a now-deceased inmate.

Now, thanks to recently discovered IQ tests that Texas officials failed to turn over to the defense years ago, and some equitable tolling, the allegedly mentally impaired inmate, whose IQ was recently determined to be 69, will get a shot at habeas relief.

Evidence Withheld

In 2002, the Supreme Court held in Atkins that execution of the mentally disabled is prohibited by the U.S. Constitution. Campbell's counsel immediately sought to confirm his suspicions of Campbell's disability by requesting records from his childhood schools and from the Texas Department of Criminal Justice.

The schools turned over a few records, which included failing grades, but lacked any records of standardized intelligence testing. The Texas Department of Criminal Justice turned over a bare score from a test allegedly administered while he was in prison on a robbery charge in the 1990s, which measured an IQ of 84 -- though no test, materials, or methodology were provided.

An undisclosed 1992 test measured 71, but was a short-form variant known to "overestimate" intelligence. (A score of 70 is generally the unofficial marker for the legal standard of mental retardation.)

Meanwhile, the District Attorney was sitting on tests obtained in 1991 from Campbell's schools, one of which provided a score of 68. The second test placed him the "lowest range of the 'Metropolitan Readiness Test.'"

Other Evidence

If bad grades and withheld tests aren't enough, the Fifth Circuit also discusses his "limitations in adaptive functioning," one of the criteria mentioned by the Supreme Court:

  • He never obtained a driver's license (though he did drive);
  • He couldn't read his own gas gauge;
  • He couldn't accurate calculate change from a purchase;
  • He wore a watch, but couldn't read it;
  • He never completed high school.

In short, it's a prima facie showing in intellectual disability.

Equitable Tolling

Generally, per the Antiterrorism and Effective Death Penalty Act, a habeas claim has to be brought within one year of a final judgment in the case or an intervening Supreme Court case that announces a new rule of law that is retroactive.

For Campbell, the latter was applicable, and indeed, his attorney did try to bring such a claim in 2003. Unfortunately, the only evidence he could locate were the poor school grades, as the District Attorney had possession of the childhood IQ tests and the Texas Department of Criminal Justice was sitting on the prison tests. The District Attorney's office, by the way, opposed that 2003 claim, while the records were in its possession.

The Fifth Circuit, while noting that the nearly 12-year delay in filing the claim of mental disability gave it pause, gave Campbell leave to file a successive habeas petition due to the undisclosed evidence and granted a stay of execution -- for now.

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