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UPDATE: A 3-Judge panel from the U.S. Fifth Circuit has unanimously ruled in favor of a stay of execution for Robert Campbell because the State of Texas suppressed evidence that supported Campbell’s claim to being intellectually disabled. Specifically, the Fifth Circuit found that Campbell’s attorney was thwarted in his ability to properly collect and present school records that supported the intellectual disability claim, while the Harris County District Attorney’s office had possession of such records the whole time…

“What Campbell’s attorney did not know was that the Harris County District  Attorney’s office had, in 1991, subpoenaed Campbell’s school records, specifically requesting “psychological testing” results, and, at that time, received evidence that Campbell had taken at least two intelligence tests as a child. When he was nine years old, Campbell received a “deviation IQ” of 68 on the “Otis-Lennon Mental Ability Test.” And, when he was seven years old, he performed in the lowest range of the “Metropolitan Readiness Test.” In the period immediately following Atkins, this evidence of intellectual disability was, apparently, in the exclusive possession of the District Attorney’s office.”

When Campbell’s attorney asked for any results in the State’s possession in 2003, the prosecutors on the case sat on these results. Furthermore, the Texas Department of Criminal Justice suppressed its own test scores, taken when Campbell was first put in prison.

The Court found, “Throughout this litigation in the state and federal courts regarding Campbell’s ability to assert an Atkins claim on the merits, the State never disclosed that it was in possession of evidence of three intelligence tests suggesting that Campbell was intellectually disabled.”

Read the Fifth Circuit’s unanimous opinion ordering a stay of execution here.

Attorney for Campbell, Robert Owen, said:

“Today the Fifth Circuit has ruled that Texas may not proceed with the scheduled execution of Robert Campbell, a man whose lifelong mental retardation was not proven until new evidence, long hidden by prosecutors and the Texas Department of Criminal Justice, very recently came to light.

The Fifth Circuit’s decision today creates an opportunity for Texas to rise above its past mistakes and seek a resolution of this matter that will better serve the interests of all parties and the public. Mr. Campbell has been fully evaluated by a highly qualified psychologist – a member of the Texas Board of Examiners of Psychologists, appointed to that post by Governor Rick Perry – who confirms he is a person with mental retardation. Therefore, according to the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, he is ineligible for the death penalty.  Given the state’s own role in creating the regrettable circumstances that led to the Fifth Circuit’s decision today, the time is right for the State of Texas to let go of its efforts to execute Mr. Campbell, and resolve this case by reducing his sentence to life imprisonment.  State officials should choose the path of resolution rather than pursuing months or years of further proceedings.”

***

Our original post on the case, written prior to the stay:

Today, at 6 pm CT, the state of Texas is scheduled to execute Robert James Campbell, a person with mental retardation, despite the fact that information which would have supported his claims for relief under Atkins was suppressed by both prosecutors and the Texas Department of Criminal Justice.

Mr. Campbell was incarcerated prior to the Atkins ruling. A recent comprehensive evaluation by a highly qualified psychologist – a member of the Texas Board of Examiners of Psychologists, appointed to that post by Governor Rick Perry – has now confirmed that he has intellectual disability.

In 2003, in Mr. Campbell’s habeas application, he had only two pages of school records to establish his history of intellectual disability: a partial record from middle school and evidence of his failure to complete the ninth grade. However, according to Mr. Campbell’s attorneys, the State of Texas failed to disclose two prior I.Q. test scores that tended to prove Mr. Campbell’s intellectual disability.  The Harris County District Attorney’s Office did not provide counsel with public school records, including the results of a score of 68 from an I.Q. test administered to Mr. Campbell when he was a schoolchild.

The Texas Department of Criminal Justice similarly failed to disclose that Mr. Campbell scored a 71 on an I.Q. test administered by a state-employed prison psychologist shortly after Mr. Campbell arrived on death row at age 19.   Even more egregious is the fact that TDCJ flatly told Mr. Campbell’s attorney in 2003 that no such IQ tests existed for death row prisoners.

To read more about the suppression of evidence in this case, here is Mr. Campbell’s recent state habeas filing.

Last week, the Texas Court of Criminal Appeals (CCA) denied Mr. Campbell’s habeas application in a 5-4 vote. A powerful dissenting opinion by Judge Elsa Alcala correctly called the evidence of Mr. Campbell’s mental retardation‘compelling.’  She zeroed in on the fundamental unfairness of the court’s decision to reject his claim – the reason why this evidence was not available in 2003, when the CCA first turned away Mr. Campbell’s mental retardation claim.

In her dissent, Judge Alcala states, “It would be unjust to penalize [Mr. Campbell] for not uncovering such a falsehood previously, when he had no basis to believe that a falsehood had been conveyed to him. . . . This Court should not base its decisions that determine whether a person will live or be executed based on misinformation or wholly inadequate information.”

Mr. Campbell faces imminent execution despite the fact that no court has given meaningful consideration to extensive evidence that he has intellectual disability. Without intervention today, following suppression of key evidence in his case, Texas may execute a man who is mentally retarded, in violation of the Supreme Court’s now decade-old ban on such executions.

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