A week after the 5th Circuit Court of Appeals issued it, I'm calling attention to Robert James Campbell's stay of execution (two hours before he was to die) because I see something missing from the media and blog discussions of this case. There's tons of talk about the degree to which compounded death drugs are "cruel and unusual," and the right of death row inmates to know what drugs from what sources are to be administered when they are put to death, and how heinous Campbell's crime was, and the pros and cons of the death penalty. Hunter talked eloquently about the execution when it was still pending, but I find no discussion on DailyKos after it was stayed.
I'm finding nothing in this case about another needed prosecution in the name of justice under 18 U.S. Code § 1117.
There were people in the Texas legal and corrections system ... who knew the state was likely going to kill a man in violation of his constitutional rights. LA Times May 13, 2014
I believe the Houston District Attorney in 2003 - and many of his predecessors and subordinates involved in the Campbell case - should be charged with conspiracy to commit murder.
I know - Daily Kos is generally unappreciative of "conspiracy theories," and this is indeed a theory of a possible conspiracy. But I believe that multiple parties within the Texas judicial system deliberately withheld information they knew might foist their plans to execute a man whose constitutional rights excluded him from capital punishment. For me, that's attempted murder, for which many in Texas conspired.
In 2003, defense attorneys for Robert James Campbell subpoenaed the Texas Department of Criminal Justice for information regarding his intellectual capacity. The year before, the U.S. Supreme Court had ruled that mentally retarded individuals could not be executed. Reportedly, Campbell's defense was told that no intelligence testing had been done when he was sentenced to death row in 1992, but that some unidentified document from 1990 (from an unrelated criminal case) indicated that his IQ had been measured at 84. This apparently led Campbell's defense to accept that his intelligence was borderline, not meeting criteria for mental retardation, which could have been used as an argument against the death penalty in his case.
This information was incorrect. Campbell's intelligence had been tested in 1992, when he was imprisoned, and an IQ of 71 was produced. That is one point higher than the cutoff for a diagnosis of mental retardation, but well within the margin of error for the test, so that mental retardation could not have been ruled out. Even more damning is evidence that the prosecutors had obtained 3rd grade school records that measured Campbell's IQ at 68; this information was apparently withheld from his defense.
Now, malingering is understandably a real issue with psychological testing in forensic cases of criminals. It would make sense that someone facing serious adverse consequences and arguing that they had some significant mental disorder would be inclined to present themselves to legal authorities in an unrealistically negative light. They might exaggerate disorders, and they would be likely to minimize their skills and abilities. But, we would expect that a third grader would have no incentive to appear intellectually impaired, and that scores from those tests would probably be the best indicator of his innate intelligence. Campbell's defense teamâs argument that he could not be executed constitutionally due to mental retardation would have been a very strong one.
So, there is a strong possibility that the Houston DA in 2003 was well aware of the test results which showed mental retardation, but denied this evidence, instead claiming that some undocumented testing had shown Campbell's intelligence to fall in a borderline range. In doing so, he would have conspired to allow the execution of a mentally retarded person, which was constitutionally prohibited. In my layperson's view, this renders him culpable to the crime of attempted murder.
And who was this District Attorney? From January 2001 to mid-February 2008, it was Chuck Rosenthal.
In early January 2008, Rosenthal announced that he would not seek reelection as DA. His office was under subpoena investigating an extramarital affair he allegedly had with his secretary, along with racist emails and use of government computers for campaigning. These were in a broader context of controversy, including his identification as the DA seeking the death penalty in more cases than any other prosecutor in the US.
Rosenthal was preceded in office by Johnny Holmes, another aggressive advocate of capital punishment. Holmes was undoubtedly aware of Campbell's intellectual deficits, but when Campbell arrived on death row in 1992, Holmes didn't have to take into account his mental retardation, since Atkins vs. Virginia would not require this for another ten years.
After Rosenthal left office, he was succeeded by Kenneth Magidson. It seems improbable that Magidson would have known the details of Campbell's intelligence test results from more than a decade or more before, so he was unlikely part of this conspiracy. But, it seems certain that someone at his office, perhaps an assistant, would have known the story, and that they kept this information from Campbell's defense team as stays of execution were sought on other grounds. Are they not culpable, as well?
Obviously, at a minimum, withholding this essential information is unprofessional and unethical, and probably warrants legal sanctions. But I believe the Texas judiciary intended to impose a death sentence when it was clearly unconstitutional, and this (in my view) is homicidal intent. Now, it seems unlikely that the current Texas DA would actively prosecute his predecessor for some malfeasance on his watch. If I knew more about the law, I might call for federal investigation and prosecution, such as under Rico.
I am not considering questions of whether or not intelligence should be a factor in sentencing. (I'm a clinical psychologist, and having administered several thousand such tests over thirty years, I have many doubts about the validity of most IQ measures, even for the concept of intelligence itself.) For me, intellectual deficits do not excuse heinous criminal behavior, nor do I believe execution is any more cruel for a mentally retarded person than for someone of average intelligence.
Nor am I inviting debate about capital punishment. (I will state, however, that I believe it is unjustifiable, ethically, legally and financially, and that it does nothing to discourage criminals from committing heinous crimes. In fact, I believe it models and reinforces killing in vengeance, which makes the more disturbed and limited among us more likely to murder in what they regard as desperate circumstances.) But the Campbell case is really not about the inappropriateness of death sentences.
I really want to see Rosenthal and his henchpersons charged and tried for conspiracy to commit murder. It is my hope that such legal action might compel other gung-ho-micidal prosecutors to redefine their malicious notions of "justice," and might impose some badly-needed checks and balances on our judicial system.