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Wednesday, April 11, 2007

Person with Low IQ about to Become 152nd Rick Perry Execution

Write Gov Perry to Protest the Execution of James Clark on April 11, 2007


APPLICATION FOR COMMUTATION OF DEATH SENTENCE TO LIFE IN PRISON - JAMES CLARK TEXAS - RETARDATION




SUPPLEMENTAL INFORMATION

BEFORE THE GOVERNOR OF THE STATE OF TEXAS

AND

TEXAS BOARD OF PARDONS AND PAROLES

–––––––––––––––––––––– . –––––––––––––––––––––

JAMES LEE CLARK

DENTON COUNTY CRIMINAL CASE No. F-93-0713-C

APRIL 11, 2007 EXECUTION DATE

–––––––––––––––––––––– . –––––––––––––––––––––

APPLICATION FOR

COMMUTATION OF DEATH SENTENCE

TO LIFE IN PRISON

––––––––––––––––––––––––––––––––––––––

PUBLIC HEARING REQUESTED

––––––––––––––––––––––––––––––––––––––

Ward S. Larkin

15327 Pebble Bend Dr.

Houston, TX 77068-1839

Phone: 281-444-3840

Email: ward@adelante.com

AUTHORIZED REPRESENTATIVE FOR

JAMES LEE CLARK [SEE EXHIBIT 1]

This Application for Commutation of Death Sentence to Life in Prison is presented in

behalf of James Lee Clark in compliance with 37 TAC 143.57.

No interview with a member of the board per 37 TAC 143.57(e) is requested.

Table of Contents

Table of Exhibits i

Application for Commutation of Death Sentence to Life in Prison 1

Supplemental Information 1

Other Atkins Claims Involving Dr. George Denkowski 1

The case of Darnell Glenn Carr 4

The case of Demetrius Lott Simms 6

The case of Exzavier Lamont Stevenson 7

The case of Coy Wayne Wesbrook 9

The case of Brian Edward Davis 12

Texas Persons With Mental Retardation Act § 591.003(16) 13

Clemency Issues 14

The Case of Robert Smith 14

The Case of Doil Lane 15

The Fox is Guarding the Henhouse 16

Victim Impact 18

Conclusion 18

Exhibits

1

Table of Exhibits

Exhibit 12 Findings of Fact and Conclusions of Law for Exzavier Lott

Stevenson

Exhibit 13 Findings of Fact and Conclusions of Law for Darrell Glenn

Carr

Exhibit 14 Findings of Fact and Conclusions of Law for Demetrius Lott

Simms

Exhibit 15 Findings of Fact and Conclusions of Law for Coy Wayne

Wesbrook

Exhibit 16 Findings of Fact and Conclusions of Law for Brian Edward

Davis

2

March 27, 2007

To the Governor and Honorable Members of the Board Of Pardons & Paroles:

Application for Commutation of Death Sentence to Life in Prison

Supplemental Information

OTHER ATKINS CLAIMS INVOLVING DR. GEORGE DENKOWSKI

On February 28, 2007 the Texas Court of Criminal Appeals ruled that

Darrell Glenn Carr1 and Demetrius Lott Simms2 are mentally retarded and

pursuant to U.S. Supreme Court case Atkins v. Virginia, 536 U.S. 304 (2002) are

therefore exempt from execution. On March 21, 2007 the Texas Court of Criminal

Appeals similarly ruled that Exzavier Lott Stevenson3 is mentally retarded, but

that Coy Wayne Wesbrook4 is not. On March 29, 2006 the Texas Court of

Criminal Appeals ruled that Brian Edward Davis5 is not mentally retarded, and

therefore not exempt from execution.

These cases are important to James Clark’s Application for Executive

1 Exhibit 13 contains the Findings of Fact and Conclusions of Law in the case against Darrell Glenn Carr:

Harris County Criminal Case No. 0644434-B, Texas Court of Criminal Appeal Case No. WR-55,033-02.

Exhibit 13 also contains the Texas Court of Criminal Appeals Order dated February 28, 2007, commuting

Mr. Carr’s death sentence to life in prison.

2 Exhibit 14 contains the Findings of Fact and Conclusions of Law in the case against Demetrius Lott

Simms: Harris County Criminal Case No. 0605233-B, Texas Court of Criminal Appeal Case No. WR-

56,811-01. Exhibit 14 also contains the Texas Court of Criminal Appeals Order dated February 28, 2007,

commuting Mr. Simms’ death sentence to life in prison.

3 Exhibit 12 contains the Findings of Fact and Conclusions of Law in the case against Exzavier Lamont

Stevenson: Harris County Criminal Case No. 0836855-A, Texas Court of Criminal Appeal Case No. WR-

57,059-02. Exhibit 12 also contains the Texas Court of Criminal Appeals Order dated March 21, 2007,

commuting Mr. Stevenson’s death sentence to life in prison.

4 Exhibit 15 contains the Findings of Fact and Conclusions of Law in the case against Wayne Coy

Wesbrook: Harris County Criminal Case No. 0768395-B, Texas Court of Criminal Appeal Case No. WR-

52,120-02. Exhibit 15 also contains the Texas Court of Criminal Appeals Order dated March 21, 2007,

ruling that Mr. Wesbrook is not mentally retarded.

5 Exhibit 16 contains the Findings of Fact and Conclusions of Law in the case against Brian Edward Davis:

Harris County Criminal Case No. 616522-E, Texas Court of Criminal Appeal Case No. WR-40,339-05.

Exhibit 16 also contains the Texas Court of Criminal Appeals Order dated March 29, 2006, ruling that Mr.

Davis is not mentally retarded.

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Clemency because Dr. George Denkowski was the state’s psychological expert

for determining mental retardation in each of these cases. Dr. Denkowski was the

psychological expert on mental retardation first hired by the Denton County

District Attorney to evaluate James Clark, but was fired after he diagnosed James

Clark as mentally retarded. More so, these other cases are important to James

Clark because in each of these other cases the presiding trial court did what it’s

supposed to do regarding expert scientific testimony: accept and consider the

relevant and reliable scientific evidence and ignore the non-relevant, non-reliable

scientific evidence. [See page 26 of Clemency Application filed on March 21,

2007, analysis of U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993).]

In each of these cases, as is required by Daubert, the presiding trial judge

used only the reliable and relevant expert psychological testimony when

deciding who is mentally retarded and who is not mentally retarded. Anecdotal

evidence and scientific evidence that didn’t comply with proven and accepted

empirical standards wasn’t considered. Similarly, Dr. Denkowski was especially

cautious about test taking underperformance, and the courts recognized this

caution. Atkins claimants do, admittedly, have a vested interest in being

diagnosed with mental retardation.

However, and unlike James Clark’s case, where the trial judge allowed the

prosecutor to hire and fire expert psychologists until the prosecutor found the

testimony he wanted to hear, where the trial judge ignored the only two experts

who performed accepted standardized testing on mental retardation, where the

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standard error of measurement was ignored, in these cases of Exzavier Lott

Stevenson, Darrell Glenn Carr, Demetrius Lott Simms, Coy Wayne Wesbrook

and Brian Edward Davis the various trial judges properly considered the

relevant and reliable expert psychological testimony.

Dr. Denkowski’s expert opinions were found relevant, reliable and

credible. And this is how it should be. This is how it must be. The courts must

defer to the relevant, reliable and credible expert psychological evidence when

determining who is mentally retarded and who is not. To do otherwise is

arbitrary and capricious, a violation of the law. One of the fundamental

principles of the American criminal justice system is to prevent arbitrary or

otherwise oppressive treatment of persons suspected, accused or convicted of

criminal offenses, not to encourage or facilitate oppression.

To quickly recap, mental retardation is a disability characterized by, (1)

significantly subaverage general intellectual functioning (2) accompanied by

related limitations in adaptive functioning, (3) the onset of which occurs prior to

the age of 18.

THE CASE OF DARRELL GLENN CARR

In the case of Darrell Glenn Carr, after Mr. Carr’s attorneys claimed mental

retardation under Atkins, the Harris County District Attorney’s first response

was to oppose it: "Applicant has failed to prove facts which would entitle him to

relief".

Prior to Atkins Mr. Carr had full-scale IQ test scores above 70. On April 2,

1981 (at the age of 11 years, 6 months) Mr. Carr took the WISC-R and attained a

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full-scale IQ of 80. On January 11, 1983 the WISC-R was re-administered, and Mr.

Carr attained a full-scale IQ of 68. On October 23, 2003 Dr. Rosana Rosin gave

Mr. Carr the WAIS-III, and he attained a full-scale IQ of 50. On August 17, 2006

Dr. Denkowski re-administered the WAIS-III and Mr. Carr attained a full-scale

IQ score of 53.

Also during August 17-8, 2006 Dr. Denkowski administered to Darrell

Glenn Carr the following: Test of Memory Malingering (TOMM), Dot Counting

Test, Rey 15-Item Memory Test, Beck Anxiety Inventory (BAI), Beck Depression

Inventory – Second Edition (BDI-II), Wide Range Achievement Test – Third

Edition (WRAT-3), and Adaptive Behavior Assessment System (ABAS).

On November 24, 2006 Dr. Denkowski’s issued his assessment: Mr. Carr

attained a full-scale IQ of 53 and has deficits in the four adaptive behavior

assessments: community use, functional academics, health and safety, and self

care. Dr. Denkowski provided that Darnell Glenn Carr "is mentally retarded in

terms of the criteria that apply in Texas criminal proceedings".

In light of Dr. Denkowski’s expert examination, and in spite of a full-scale

IQ score as high as 80, the Harris County District Attorney re-evaluated its

opposition to Mr. Carr’s Atkins claim. On December 15, 2006, the Harris County

District Attorney filed Proposed Findings of Fact and Conclusion of Law saying

that Darrell Glenn Carr is mentally retarded and therefore exempt from

execution.6 Without modification, and on December 20, 2006, the trial judge Brian

Rains signed the Harris County District Attorney’s proposed Findings of Fact

6 Exhibit 13 contains the Findings of Fact and Conclusions of Law in Darrell Glenn Carr’s case.

6

and Conclusions of Law. On February 28, 2007 the Texas Court of Criminal

Appeals affirmed that trial court, officially commuting Mr. Carr’s death sentence

to life in prison. Darrell Glenn Carr was convicted of capital murder and

sentenced death for the robbery-murder of 16-year old Priscilla Rangel.

THE CASE OF DEMETRIUS LAMONT SIMMS

In the case of Demetrius Lott Simms, after Mr. Simms’ attorneys claimed

mental retardation under Atkins, the Harris County District Attorney’s first

response was to oppose it: "Applicant fails to prove, by a preponderance of the

evidence, that he meets the first prong of the three-part definition of mental

retardation"; "Applicant fails to demonstrate, by a preponderance of the

evidence, that he has such limitations in adaptive functioning as would satisfy

that prong of the diagnostic criteria for mental retardation".

Prior to Atkins Mr. Simms had full-scale IQ test scores above 70. On

August 2, 1989 (at the age of 18 years, 5 months) Dr. Orloff gave Mr. Simms the

Weshsler Adult Intelligence Scale – Revised Edition (WAIS-R), and Mr. Simms

attained a full-scale IQ of 71. In 1994 Dr. Nelson determined that Mr. Simms has

a full-scale IQ of 66. On February 29, 1996 Dr. Lehman assessed Mr. Simms

attained a WAIS-R full scale IQ of 68. Then on August 20, 1998 Dr. Nelson also

tested Mr. Simms with WAIS-R, full-scale IQ 73.

On July 27-8, 2006 Dr. Denkowski administered to Demetrius Lott Simms

the following: Test of Memory Malingering (TOMM), Weshsler Adult

Intelligence Scale – third edition (WAIS-III), Dot Counting Test, Rey 15-Item

Memory Test, Beck Anxiety Inventory (BAI), Beck Depression Inventory –

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Second Edition (BDI-II), Wide Range Achievement Test – Third Edition (WRAT-

3), and Adaptive Behavior Assessment System (ABAS).

On November 24, 2006 Dr. Denkowski’s issued his assessment. Mr. Simms

attained a full-scale IQ of 63 and was deficit in the five adaptive behavior

assessments: communication, community use, functional academics, health and

safety, and social. Dr. Denkowski provided that Demetrius Lott Simms "is

mentally retarded in accord with the criteria that are applicable in Texas criminal

proceedings".

In light of Dr. Denkowski’s expert examination, and in spite of other IQ

scores above 70, the Harris County District Attorney re-evaluated its opposition

to Mr. Simms’ Atkins claim. On December 20, 2006, the Harris County District

Attorney filed Proposed Findings of Fact and Conclusion of Law saying that

Demetrius Lott Simms is mentally retarded and therefore exempt from

execution.7 Without modification, and on the same day, the trial judge Michael

McSpadden signed the Harris County District Attorney’s proposed Findings of

Fact and Conclusions of Law. On February 28, 2007 the Texas Court of Criminal

Appeals affirmed that trial court, officially commuting Mr. Simms’ death

sentence to life in prison.

Demetrius Lott Simms was convicted and sentenced to death for the

murder of 4-year old Monique Miller.

7 Exhibit 14 contains the Findings of Fact and Conclusions of Law in Demetrius Lott Simms’ case.

8

THE CASE OF EXZAVIER LOTT STEVENSON

In the case of Exzavier Lamont Stevenson, after Mr. Stevenson’s attorneys

claimed mental retardation under Atkins, the Harris County District Attorney’s

first response was to oppose it.

There are no full-scale IQ test scores for Mr. Stevenson prior to Atkins.

However, on January 1, 1989 (at the age of 20) the U.S. Social Security

Administration determined that Mr. Stevenson was mentally retarded for the

purpose of Supplemental Social Security Income (SSI). On January 23, 2002 Dr.

Jerome Brown administered the WAIS-III, and Mr. Stevenson attained a full-scale

IQ score of 55. On February 2, 2004 Dr. Rosana Rosin re-administered the WAISIII,

and Mr. Stevenson attained a full-scale IQ score of 51.

Then on July 27-8, 2006 Dr. Denkowski administered to Mr. Stevenson the

following: Test of Memory Malingering (TOMM), Stanford-Binet Intelligence

Scales – Fifth Edition (SB-5), Dot Counting Test, Rey 15-Item Memory Test, Beck

Anxiety Inventory (BAI), Beck Depression Inventory – Second Edition (BDI-II),

Structured Clinical Interview for DSM-IV Axis I Disorders (SCID-I), Wide Range

Achievement Test – Third Edition (WRAT-3), and Adaptive Behavior

Assessment System (ABAS).

On December 26, 2006 Dr. Denkowski’s issued his assessment: Mr.

Stevenson attained a full-scale IQ of 41 and was deficit in six adaptive behavior

assessments: functional academics, communication, community use, health and

safety, leisure and social. Dr. Denkowski provided that Exzavier Lamont

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Stevenson "is mentally retarded in accord with the criteria that are applicable in

Texas criminal proceedings".

In light of Dr. Denkowski’s expert examination, and in spite of no available

prior IQ test scores, the Harris County District Attorney re-evaluated its

opposition to Mr. Stevenson’s Atkins claim. The Harris County District Attorney

filed Proposed Findings of Fact and Conclusion of Law saying that Exzavier

Lamont Stevenson is mentally retarded and therefore exempt from execution.8

On January 12, 2007, without modification, trial judge Vanessa Velasquez signed

the Harris County District Attorney’s proposed Findings of Fact and Conclusions

of Law. On March 21, 2007 the Texas Court of Criminal Appeals affirmed that

trial court, officially commuting Mr. Stevenson’s death sentence to life in prison.

Exzavier Lamont Stevenson was convicted and sentenced to death for the

murders of Khalid Masroor and Syed Medhi after an argument at a convenience

store.

THE CASE OF COY WAYNE WESBROOK

In the case of Coy Wayne Wesbrook, after Mr. Wesbrook’s attorneys

claimed mental retardation under Atkins, the Harris County District Attorney’s

first response was to oppose it.

Prior to Atkins Mr. Wesbrook had full-scale IQ test scores above 70. On

January 29, 1968 (two days short of his tenth birthday) Mr. Wesbrook was tested

with the Wechsler Intelligence Scale of Children and attained a full-scale IQ of

90. The Flynn Effect probably overstated Mr. Wesbrook’s IQ by 5 points. Mr.

8 Exhibit 12 contains the Findings of Fact and Conclusions of Law in Exzavier Lamont Stevenson’s case.

10

Wesbrook was subsequently administered the Primary Mental Abilities (PMA)

tests, and obtained scores of 65 (at age 11) and 84 (at age 14). The PMA is a group

test of general intelligence given by schools to help make administrative

decisions about what sort of assistance to provide struggling students. The PMA

does not establish IQ, but instead scholastic aptitude.

On June 2, 2004 Dr. Stephen Martin administered Mr. Wesbrook (then age

46) the WAIS-III. Mr. Wesbrook attained a full-scale IQ of 74. However, Dr.

Martin found that score problematic. Mr. Wesbrook didn’t perform well on the

Rey 15-Item test, a test to determine whether Mr. Wesbrook was giving a good

effort. Dr. Martin also determined that Mr. Wesbrook had been depressed for

several years. Depression is known to decrease motivation, and therefore

provide understated full-scale IQ test results.

On July 25-6, 2006 Dr. Denkowski administered to Mr. Wesbrook the

following: Test of Memory Malingering (TOMM), Wechsler Adult Intelligence

Scale – Third Edition (WAIS-III), Structured Clinical Interview for DSM-IV Axis I

Disorders (SCID-I), Dot Counting Test, Rey 15-Item Memory Test, Beck Anxiety

Inventory (BAI), Beck Depression Inventory – Second Edition (BDI-II), Wide

Range Achievement Test – Third Edition (WRAT-3), and Adaptive Behavior

Assessment System (ABAS).

On August 8, 2006 Dr. Denkowski’s issued his assessment:9 Mr. Wesbrook

attained a full-scale IQ of 66 and was deficit in one adaptive behavior

9 On January 19, 2007 Dr. Denkowski issued some minor corrections to his August 8, 2006 assessment of

Coy Wayne Wesbrook. These corrections are included in Exhibit 15.

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assessments: functional academics. Dr. Denkowski provided that "when

nonintellectual factors are accounted for, Mr. Wesbrook’s adult measured mental

ability is conveyed best by the Full Scale IQ of 74 to 79, and his actual adult

general intelligence functioning is estimated to be of about 84 IQ quality. Mr.

Wesbrook’s general intellectual functioning is therefore not significantly

subaverage." (Emphasis is in original statement.) Thus, in conclusion, Dr.

Denkowski provided that Coy Wayne Wesbrook "is not considered to be

mentally retarded for Atkins purposes".

Even though Mr. Wesbrook’s full scale IQ score from July 25, 2006 was 66

(well below the 70 threshold for the mental ability prong of mental retardation

dignosis), Dr. Denkowski used proven and accepted psychological procedure to

readjust that full-scale 66 IQ score to an actual IQ score of between 74 and 79. In

short, Dr. Denkowski did what he was supposed to do as a trained professional

psychologist: provide relevant and reliable evidence based on accepted empirical

testing.

Likewise, the Harris County District Attorney and trial judge Marc Carter

did what they were supposed to do, they accepted the relevant and reliable

diagnosis of the psychological experts. Note: Dr. Stephen Martin also said that

Mr. Wesbrook’s 2004 full-scale IQ score of 74 should be "viewed with caution".

Trial judge Marc Carter issued Findings of Fact and Conclusions of Law10

providing that Coy Wayne Wesbrook is not mentally retarded. On March 21,

2007 the Texas Court of Criminal Appeals affirmed that trial court, officially

10 Exhibit 15 contains the Findings of Fact and Conclusions of Law in Coy Wayne Wesbrook’s case.

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denying Mr. Wesbrook Texas state habeas relief under U.S. Supreme Court case

Atkins v. Virginia. Mr. Wesbrook has the discretion to appeal this denial of Atkins

relief to the U.S. federal courts. Coy Wayne Wesbrook was convicted and

sentenced to death for the murders of Gloria Jean Coons, Antonio Cruz, Anthony

Ray Rogers, Diana Ruth Money and Kelly Hazlip.

THE CASE OF BRIAN EDWARD DAVIS

In the case of Brian Edward Davis, after Mr. Davis’ attorneys claimed

mental retardation under Atkins, the Harris County District Attorney’s first

response was to oppose it.

Prior to Atkins Mr. Davis had full-scale IQ test scores above 70. In 1980 (age

11 years, 1 month) Brian Davis took the WISC-R. However, the only available

result was simply "low average", which indicates an IQ range of 80-90. In 1983

(age 14 years, 5 months) Brian Davis took the Woodcock-Johnson Test of

Cognitive Ability. He scored a full-scale IQ of 88. At the age of 15 years, 5

months, and while in custody of the Texas Youth Council, Mr. Davis took a

partial WISC-R and attained a full-scale IQ of 74. The Flynn Effect probably

overstated Mr. Davis’s WISC-R IQ test score by 3 points. However, according to

both Dr. Denkowski (the state’s expert) and Dr. Gilda Kessner (the defense

expert) the standard error of measurement for a partial WISC-R is high, to the

point of making that 74 IQ score unreliable.

In 2004 Dr. Gilda Kessner administered the Reynolds Intellectual

Assessment Scales (RIAS) to Mr. Davis, and he achieved a Composite

Intelligence Index score of 77. On September 27-8, 2004 Dr. Denkowski

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administered to Mr. Davis the Stanford-Binet Intelligence Scales – Fifth Edition

(SB-5). Mr. Davis attained a full-scale IQ score of 80. On July 25, 2005 trial court

judge Belinda Hill accepted Dr. Denkowski’s diagnosis and found that Brian

Davis did not meet the general intellectual functioning prong of mental

retardation diagnosis. That is, a significantly subaverage IQ, generally at or

below 70. On March 29, 2006 the Texas Court of Criminal Appeals affirmed

Judge Hill, officially denying Mr. Davis’ Atkins claim in Texas state courts. Mr.

Davis has the discretion to appeal this denial of Atkins relief to the U.S. federal

courts.

Brian Eugene Davis was convicted of capital murder and sentenced to

death for the murder-robbery of Michael Alan Foster.

TEXAS PERSONS WITH MENTAL RETARDATION ACT § 591.003(16)

I just learned that the Texas Court of Criminal Appeals made an

interesting ruling in Ex Parte Lewis, Cause No. WR-38,355-03 (Tex. Crim. App.

Dec. 6, 2006). The Texas Court of Criminal Appeals ruled that Texas Persons

With Mental Retardation Act § 591.003(16) is not relevant for the determination

of who’s mentally retarded and who’s not mentally retarded as it pertains to

capital punishment.

Texas Person With Mental Retardation Act § 591.003(16) provides

"Person with mental retardation" means a person determined

by a physician or psychologist licensed in this state or

certified by the department to have subaverage general

intellectual functioning with deficits in adaptive behavior.

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Clearly, the greatest significance of § 591.003(16) is that the Texas

Legislature wants mental retardation determinations to be made by licensed

professionals, and not based on anecdotal or otherwise non-scientifically relevant

or reliable evidence. Ex Parte Lewis demonstrates all of the more that the Texas

State Legislature needs to enact law so as to place Texas in compliance with

Atkins v. Virginia. In the meantime all executions of condemned with at least

prima facie evidence of mental retardation should be suspended.

GENERAL CLEMENCY ISSUES

This is the third application for executive clemency I’ve filed in James Lee

Clark’s behalf. The first application was filed on October 31, 2002 for a November

21, 2002 execution date. It was rendered mute because the Texas Court of

Criminal Appeals issued a stay before the Texas Board of Pardons and Paroles

voted. The second application was filed on April 6, 2004 for an April 27, 2004

execution date. The Board voted 5-0 to deny. Soon then after the U.S. Court of

Appeals for the Fifth Circuit issued a stay.

THE CASE OF ROBERT SMITH

Naturally, I was (and still am) disappointed that the Texas Board of

Pardons and Paroles voted against James Clark in April of 2004. And, I’m still

baffled as to how the Board could unanimously split the hair distinguishing

former Texas Death Row offender Robert Smith’s case from James Clark’s. Just

weeks earlier the board had voted unanimously to recommend clemency for Mr.

Smith. On March 12, 2004 Texas Governor Rick Perry accepted the Board’s

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recommendation and officially commuted Robert Smith’s death sentence to life

in prison because Mr. Smith is mentally retarded.

In Robert Smith’s case Texas licensed psychologist Dr. George Denkowski

diagnosed Robert Smith as mentally retarded: IQ 63, 5 adaptive behavior

deficits.11 In James Clark’s case the exact same Dr. George Denkowski diagnosed

James Clark as mentally retarded: 65 IQ and 3 adaptive behavior deficits.12 Mr.

Smith and Mr. Clark were each, according to the expert opinion of Dr.

Denkowski, unquestionably mentally retarded. Yet, in Robert Smith’s case the

Texas Board of Pardons and Paroles voted unanimously to recommend

commutation of death sentence to life in prison. In James Clark’s case, the Texas

Board of Pardons and Paroles voted unanimously to reject commutation of death

sentence to life in prison. Again, I’m baffled that Dr. Denkowski’s diagnosis in

Robert Smith’s case received universal acceptance, and Dr. Denkowski’s

diagnosis in James Clark’s case received universal rejection.

THE CASE OF DOIL LANE

Now there’s also the case of Doil Lane. On March 9, 2007 Texas Governor

Rick Perry commuted Doil Lane’s death sentence to life in prison because Doil

Lane is mentally retarded. This was upon a 5-2 vote from Texas Board of Pardons

and Paroles in favor of commutation.

It’s proper that Doil Lane’s death sentence was commuted to life in prison.

Doil Lane is clearly and plainly a person with mental retardation. But again, to

11 Exhibits F1 and F1 from the 2004 Clemency Application for James Clark contain Dr. Denkowski’s

psychological assessment of Robert Smith.

12 Exhibit G from the 2004 Clemency Application for James Clark contain Dr. Denkowski psychological

assessment of James Clark.

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compare, Doil Lane has had Full Scale IQ scores of 67, 78 and 65. James Clark’s

full-scale IQ scores have been 74, 65 and 68. I don’t see much difference there.

Regarding adaptive behavior deficits, Doil Lane has amble deficits to qualify as

mentally retarded, as does James Clark. Dr. Denkowski provided in 2003 that

James Clark is deficit in Health and Safety, Social and Work. [See Dr.

Denkowski’s Psychological Assessment of James Clark, Exhibit G, 2004

Clemency Application.]

THE FOX IS GUARDING THE HENHOUSE

As far as I’m aware, eight mentally retarded Texas Death Row offenders

have had their death sentences commuted to life in prison: Walter Bell, Darrell

Carr, Doil Lane, Willie Moddon, Demetrius Simms, Robert Smith, Exzavier

Stevenson, Albert Valdez. As far as I’m aware, psychologist Dr. George

Denkowski diagnosed four of these men: Darrell Carr, Demetrius Simms, Robert

Smith and Exzavier Stevenson. As far as I’m aware the only time in which a

Texas Death Row offender is found sufficiently mentally retarded to satisfy

Atkins v. Virginia is when the presiding prosecutor says he or she is sufficiently

mentally retarded. That is, if the presiding prosecutor concurs that a person on

Texas Death Row is mentally retarded, then the courts or the Texas Board of

Pardons and Paroles follow suit.

There is one partial exception. The Texas Court of Criminal Appeals did

grant Alberto Valdez Atkins relief even though the Nueces County District

Attorney's Office opposed it. Strangely, however, even in it's opposition, the

Nueces County District Attorney's Office conceded that Alberto Valdez is

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mentally retarded. The Nueces County District Attorney's Office opposed

granting Atkins relief to Alberto Valdez on procedural grounds, not on factual

grounds. Specifically, The Nueces County District Attorney argued that Atkins

should not apply to Alberto Valdez because Valdez was sentenced to death years

before Atkins was decided. At best this argument is spurious. The Atkins decision

is about limiting executions, not strictly about limiting who may get sentenced to

death. Thus, even in the Alberto Valdez case, the prosecution agreed that the

defendant is mentally retarded.

As far as I know, in every Atkins claim the trial court simply did what the

prosecution wanted. In turn the Texas Court of Criminal Appeals affirms the trial

court. Thus, as it stands now, compliance with Atkins in Texas is completely up

to the prosecutor. Whatever the prosecutor wants, the prosecutor gets. The fox is

guarding the henhouse. If the prosecutor is benevolent (i.e. believes in due

process of law and equal protection under the law), then an Atkins claim is going

to be treated fairly by that prosecutor, and also by that trial court. However, if

the prosecutor is hostile, and that prosecutor sees Atkins as an injustice, a way to

getting away with murder, then that Atkins claim is always going to fail.

That’s not how it’s supposed to be. The fundamental principle of our

American criminal justice system is rule of law. Official discretion is supposed to

be limited. This is to prevent arbitrary, capricious, and otherwise oppressive

treatment of, not only criminal suspects, but the convicted, too. James Clark

didn’t lose his Atkins claim in the courts because he’s not mentally retarded. He

is mentally retarded. James Clark lost his Atkins claim in the courts because his

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prosecutor was hostile, and the Texas courts haven’t and don’t do anything to

stop it.

VICTIM IMPACT

I have not spoken with any member of the Cari Crews family. My hope is

that the Victim Services Office of the Denton County District Attorney’s Office is

providing them counsel and assistance.

CONCLUSION

Finally, I’m confident that the Texas Board of Pardons and Paroles has

solicited information about James Lee Clark from many other sources. For

example, information has been solicited from the Denton County trial officials:

trial judge, district attorney and sheriff. NOTE: not one of these current sitting

trial officials is the same as those who were originally involved at James Clark’s

trial. Ira Sam Houston was the trial judge. Now the presiding judge is Lee

Gabriel, specially assigned. The trial district attorney was Bruce Isaacks. The

current Denton County District Attorney is Paul Johnson. The sheriff at the time

of the trial was Lucas Welton. It’s now Benny Parkey.

Also, I know that the Texas Board of Pardons and Paroles has asked the

Texas Department of Criminal Justice (TDCJ) for information about James Clark,

but I’m afraid that TDCJ’s opinions about mental retardation will be all over the

map. Their conclusions will be personal, subjective and therefore void of

scientific meaning. I’m confident to some TDCJ corrections officers, if the

offender doesn’t cause them any trouble, then offender is not mentally retarded.

Similarly, to some corrections officers, an offender is not mentally retarded if the

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offender is at least moderately well groomed, and keeps his or her cell at least

moderately clean. In other words, if the offender doesn’t cause the corrections

officer any trouble, then the offender is not mentally retarded.

Whereas the Texas Board of Pardons and Paroles should seek as much

meaningful information as possible when deciding James Clark’s request for

commutation of death sentence to life in prison. However, that information must

truly be meaningful: that is, accurate, relevant and reliable. There’s the rub. Also,

I’m extremely bothered that I don’t get to know or confront any of this other

information. I’m afraid that the Board of Pardons and Paroles will give meaning

to evidence that is scientifically irrelevant.

The State of Texas is about to execute a mentally retarded man on April 11,

2007. Stop this madness.

Respectfully submitted,

Ward Larkin

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