He’s sore about being on the losing end of an historic decision and is doing something about it. On Aug. 13, a Texan named Brian Davis who is arguably mentally retarded-and possibly innocent of the crime-is scheduled to die.
Davis was convicted of stabbing Michael Foster to death in Foster’s apartment in 1991, then leaving a chilling signature. Here’s the confession: “I stabbed Michael several more times in the chest and stomach area and he collapsed in the living room in front of the breakfast bar. Unsure what to do next, I tried to make the scene look like skinheads had been there. I carved a swastika on his abdomen.”
Pretty sick stuff. The only problem is, that confession comes from Davis’s ex-wife, Tina McDonald. Every single piece of physical evidence pointed to McDonald, not Davis. In fact, McDonald, who is clearly much smarter than her ex, wrote two longhand confessions, one as recently as last October. Unfortunately for Brian Davis, he, too, confessed (I’ve seen that videotape); he now says that prosecutors told him they’d send her-a mother-away forever but he could get out after 20 years or so and he agreed to take a bullet for the woman he loved. On the basis of Davis’ confession alone, he was convicted and sentenced to die in Texas.
I received a letter from Tina McDonald recently saying that Davis did kill Foster and that her two confessions were bogus. Maybe so. All of the confessions and recantations by this lowlife pair (they were both neo-Nazis for a time and convicted of other crimes) make my head hurt. But they also introduce reasonable doubt, especially when you’re talking about a man’s life. This is particularly true because there is a history of mentally impaired suspects confessing to crimes they did not commit. What if Tina McDonald turns around and confesses a third time but Brian Davis has already been executed? Too late.
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.
Davis’s life may well be spared; the Texas Court of Criminal Appeals-now under scrutiny on this issue-could back down, though that court has been mighty tough in the past. But returning to fact finding is unlikely, because if the executioners do it on mental retardation, then they might have to allow “reasonable doubt” to be introduced after the trial stage. Most people don’t know that, right now, it cannot be. If a jury convicts based on a flimsy confession and nothing else-tough luck in Texas. You die.
The Davis case is not a good case for reinforcing Atkins. The evidence of mental retardation is too cloudy. It’s not a good “actual innocence” case either. He might not be innocent. But it’s a good example of the kinds of cases that are making it all the way to the execution stage. We’re executing people in this country when we don’t know the facts. There’s something sick about that.
