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Lone Star state gets go ahead for second execution this week

Arthur Brown Jr. made a Hail Mary to the Supreme Court to stop his Thursday execution for a 1992 quadruple murder that he denies having committed/

WASHINGTON (CN) — The Supreme Court declined Thursday to halt Texas’ second execution of the week, ruling against an inmate with troves of evidence indicating a mental disability, including school records that classified him as "mentally retarded."

Arthur Brown Jr. has been on death row for over 30 years over a robbery and shooting in Houston. According to Texas, a drug deal led Brown and two accomplices to enter Jose Guadalupe Tovas’ home in June 1992. The state claims Brown and Marion Dudley tied Tovas and five others up and then shot each of them in the back of the head, killing four. 

Brown asked Justice Samuel Alito to halt his execution in an emergency application on Wednesday afternoon, arguing it would violate his Eighth Amendment rights. The high court has ruled that prisoners with mental disabilities cannot be executed under the Eighth Amendment. 

Alito referred Brown’s application to the full court, which declined it with no explanation. 

While intellectual disability is at the center of Brown’s Supreme Court appeal, his attorneys also claim he is innocent. They say his conviction rests entirely on sloppy police work, prosecutorial suppression of exculpatory evidence, corrupted eyewitness identifications and false forensic testimony. 

Prosecutors used firearms analysis in Brown’s conviction, and authorities say Brown was carrying a loaded 9mm pistol when he was arrested. But Brown’s attorneys say the firearm analysis was thrown out in 2016 because it was not found to support Brown’s conviction. 

Without the firearms evidence, Texas’ case against Brown rested on the two surviving eyewitnesses — Rachel Tovar and Nicolas Cortez. Tovar and Nicolas Cortez identified Brown as one of the assailants but their testimony was partially impeached at trial due to suggestive police procedures. Brown’s attorneys also point to Brady disclosures that showed the witnesses suffered from brain damage that could have impaired their memory of the crime. 

Brown was denied at each attempt to obtain postconviction relief. A judge denied a DNA test request this week that Brown’s attorneys argued could have exonerated him.  

None of Brown’s post-conviction relief focused on his intellectual disability. This was first brought after the Office of Capital and Forensic Writs took over his representation in July of last year. Bringing a habeas claim, Brown now argues the Eighth Amendment should bar his execution. 

Brown’s attorneys point to his school records for the first evidence of his disability. In the third grade, Brown was diagnosed as “mentally retarded.” Another IQ test given to Brown when he was a student found him to be "in the 1% percentile for reading recognition, 0.8% percentile for spelling, and 14% percentile in arithmetic," according to Brown’s petition. Brown was placed in special education but still failed the ninth grade and did not graduate. 

A school psychologist, Dr. David Price, evaluated Brown for adaptive functioning — how well a person meets standards related to personal independence and social responsibility performed by people in their daily lives — and found he failed to meet all three categories. 

Brown relies on accounts from former teachers and babysitters to back up his claims. Brown's babysitter claims he did not speak until he was 3 or 4 years old, while his teachers remembered him as “slow” and nearly illiterate until the age of 19.

While Brown’s deficits in practical, social and conceptual skills would qualify him as intellectually disabled, his attorneys claim they do not meet criteria that the Texas Criminal Court of Appeals uses to halt an execution for mental illness. 

“Mr. Brown has displayed significant practical domain deficits as well as significant deficits in social skills and in conceptual skills, any one of which would meet the second prong for a diagnosis of intellectual disability,” Benjamin Wolff, an attorney with the Office of Capital & Forensic Writs representing Brown, wrote in his petition. “However, the evidence establishing these deficits would not meet the criteria set forth in the TCCA’s decision Ex Parte Briseno, criteria since held by this Court in Moore I to create an unacceptable risk that a person with intellectual disability will be executed.” 

Texas argued Brown did not present a compelling reason for the Supreme Court to review his case. 

“Brown has not furnished a single reason to grant a writ of certiorari, let alone a compelling one,” Tomee Heining, Texas deputy chief of criminal appeals, wrote in the state’s brief. “Brown merely raises a claim based on evidence that was available, and indeed was presented as an exhibit at his trial. Further, this evidence fails to demonstrate even a prima facie showing that he is intellectually disabled and thus ineligible for the death penalty.” 

Six death row inmates in Texas including Brown filed a lawsuit against the state’s prison system for using allegedly expired and unsafe execution drugs. A federal judge enjoined prison officials from using expired drugs to execute the inmates, but the Texas Criminal Court of Appeals vacated that injunction. The appeals court then ordered the judge to refrain from issuing orders that interfered with the execution of various inmates. 

On Wednesday, Texas executed Gary Green for stabbing his estranged wife and drowning her 6-year-old daughter. 

Categories:Appeals, Criminal

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