Between The Lines Online: Supreme Misgivings

In retrospect, Davis's big mistake was not to introduce more evidence of mental impairment at his trial. One test showed his IQ at 74, four points above the threshold. And a psychologist at his trial asserted he was a slow learner but not retarded. But it turns out that another early test put his IQ at 67, and his elementary school report cards are full of Ds and reference to his impairment. None of this was learned until recently, when an intrepid Indiana investigator named Tina Church entered the case. With the help of Gregory Wiercoich of the Texas Defender Service, they fashioned a last-minute plea based on mental retardation that arrived at the high court at an opportune time.

On May 7, a mere two hours before Davis was scheduled to be executed by lethal injection, the Supreme Court got involved. The Court knew it was going to review the Atkins case and issue an historic decision, so it stayed Davis's case and another from Texas.

SORE LOSER?

By this time, Scalia knew that he was on the losing end of Atkins, where the court ruled 6-3 that executing the mentally ill was unconstitutional. What did he do? He took it out on Davis and the other condemned man. The stays were "unprecedented," Scalia wrote in dissent. "The court's granting of these stays not only disrupts settled law but invites meritless last-minute applications to disrupt the orderly state administration of the death penalty." Later, he got at least two other justices to agree with him on the procedural issue (the court didn't say which ones) and the stays were lifted.

Scalia's view makes some superficial sense. After Atkins, you can bet that every death penalty lawyer will try to assert that his client is mentally retarded. This will gum up the capital punishment machine, though from now on, the claim will likely be raised at trial. If you think executing the mentally retarded is OK, these stays are as reprehensible as Scalia says.

But the law of the land now is that such executions are unconstitutional. "Scalia, Thomas and Rehnquist still want to execute the mentally retarded even though they lost," Jim Davis, Brian's father, told me last week. It's actually worse than that. Scalia is basically saying, 'If you didn't raise this claim at trial-tough luck.' Is Davis any more or less retarded because of something his lawyers did or didn't do a decade ago at trial? Of course not-except in the mind of Justice Scalia. The real answer-the just answer-is to return to a finding of fact. Is Davis retarded or not? If he is, he cannot be executed; if he isn't, perhaps he can be.