The U.S. 5th Circuit Court of Appeals issued a last-minute stay of execution on Aug. 6 for Texas death-row inmate Jose Alfredo Rivera based on the unresolved question of whether Rivera is mentally retarded. Rivera was convicted for the 1993 rape and strangulation death in Brownsville of 3-year-old Luis Daniel Blanco. Rivera was convicted largely on the testimony of his alleged accomplice, Veronica Zavala, who implicated Rivera in the killing. Rivera also confessed, but claimed he was coerced into doing so by police and was beaten until he complied. Zavala has since recanted, saying she was pressured into naming an accomplice; she now says that she acted alone.
Last summer the U.S. Supreme Court banned execution of the mentally retarded, eight years after Rivera was convicted. Reportedly, the question of Rivera’s mental competency was never addressed during his 1994 trial. On July 25, Texas’ Court of Criminal Appeals denied Rivera’s request to stay his execution until the question of his competency could be addressed, ruling that Rivera’s attorneys had not supplied enough specific information suggesting that Rivera may be mentally deficient. Rivera’s attorneys subsequently supplied the court with specifics, including the opinions of two experts — including that of Richard Garnett, a psychologist from Fort Worth who Gov. Rick Perry has appointed to sit on a state board on autism and other developmental disorders. Each expert claims that Rivera’s history is consistent with a possible diagnosis of mental retardation. On Aug. 5 the CCA declined to consider the additional information. Although the 5th Circuit had previously denied Rivera’s stay, on Aug. 6 they halted the execution and sent the case to federal district court for adjudication.
Meanwhile, the Legislature has yet to come up with any system for addressing the Supreme Court’s ruling. Two competing proposals — one authored by state Rep. Terry Keel, R-Austin, and one proposed by Sen. Rodney Ellis, D-Houston — each died in committee this spring. Keel has proposed that the determination of mental retardation be made after a defendant’s trial, by the same jurors who adjudicated guilt. In contrast, Ellis proposes that a separate pretrial jury be impaneled solely to decide mental competency. Opponents of Keel’s measure argue that it is likely unconstitutional — a charge Keel hasn’t adequately addressed. If Keel’s proposal were to become law, it would likely take years before any claim adjudicated under the law would make it to the U.S. Supreme Court for review. However, if the high court ultimately nullifies the scheme, it would retroactively affect any and every capital case during which it was used.
This article appears in August 15 • 2003.