Taking ownership of “the Atkins issue”
Leslie Cooley ’05 and Jim Maxwell ’66
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| Maxwell and Cooley attempted to get Abner Nicholson off North Carolina’s death row. |
Having been intimately involved as a second year law student in the clemency petition of Joseph “Timmy” Keel, Leslie Cooley ’05 learned a lot about the law regarding capital punishment and mental retardation, as well as the standards by which retardation is measured. She and her partner in the Law School’s Death Penalty Clinic were unable to persuade North Carolina Governor Mike Easley that Keel met the state’s criteria for retardation, and Keel was put to death in Raleigh’s Central Prison on November 2, 2003. While she describes her experience with Keel’s case as mentally and emotionally challenging, Cooley says it gave her “ownership of the Atkins issue.”
She’s referring to the 2002 U.S. Supreme Court decision in Atkins v. Virginia, which ruled the execution of mentally retarded criminals to be unconstitutional. While the Court did not expressly define mental retardation, Cooley observes it did endorse the general theories of retardation of the American Association on Mental Retardation (AAMR) and American Association of Psychiatry (APA), including their statements that an IQ of 70 or below can be an indication of retardation.
“They never said it’s a ‘bright line,’” argues Cooley. But because North Carolina’s 2000 statute barring such executions sets that bright line, and years earlier Keel had been found to have an IQ score of 78–the clemency petition challenged the veracity of his score on several grounds–the Governor was apparently not persuaded that Keel should have his sentence commuted. It did not seem to matter that Keel met the other criteria for retardation: adaptive skill deficiencies in more than two areas that manifested before age 18, and prior to the murder for which he had been convicted.
Cooley challenged the bright line in her paper for the Death Penalty Clinic, canvassing all other states’ statutes, noting their formulations for determining retardation both before and after Atkins, as well as how they were interpreted. Only six states have bright lines like North Carolina’s.
“There are several that mention a number but don’t draw a bright line, and others that say the determination should be made on a case-by-case basis. I argued that Atkins supports the theory that there’s a ‘gray area.’ Did Atkins really mean that it’s okay to execute those people in the gray area?”
Cooley is pursuing the subject further as a 3L, through an independent study project narrowly focused on North Carolina’s statute, and what facts judges in the state find persuasive.
“What I’m hoping to have at the end is a set of [retardation] criteria that attorneys who are practicing death penalty litigation in North Carolina can use: These are the criteria that the state courts feel constitute mental retardation here.”
Given her level of interest in and familiarity with the subject, Cooley was a natural to assist Durham attorney Jim Maxwell ’66 on a pro bono case. As president of the North Carolina Bar Association in 2000, Maxwell was instrumental in persuading its members to support the ban on executions of mentally retarded inmates, as well as other death penalty legislation.
“What I’m hoping to have at the end is a set of [retardation] criteria that attorneys who are practicing death penalty litigation in North Carolina can use.” Leslie Cooley
Because of his interest and commitment, Maxwell agreed to assist in the mental retardation hearing for Abner Nicholson, who had been convicted and sentenced to death for the 1995 murder of his estranged wife, as well as the police chief of Sharpsburg, NC. Although Nicholson’s mental capacity was raised at his 1999 trial, and estimated to be that of a 13-year-old, a jury sentenced him to death. Because of the 2000 legislation banning the execution of mentally retarded defendants, Nicholson was entitled to a hearing on that issue.
Prior to his first trial, Nicholson had been evaluated by State psychiatrists on the issue of his competency to stand trial. One of those experts had determined that he had an IQ of 66, found adaptive skill deficiencies in two areas, and established that there was no neurological or other brain injury in Nicholson’s adulthood that would have caused them; the low IQ and skill deficits were therefore found to be present prior to age 18. Another psychologist made similar findings, with still more adaptive skill deficits.
Cooley prepared a memo for the judge, setting out the standards on the various tests and the evidence.
“It needed to be very pithy, very direct: ‘Judge, this is the law; here are the relevant facts; and this is why under these facts, under this law, you should determine that this man is mentally retarded and should not be executed,” says Maxwell. “She wrote a good brief, taking a complex issue that’s relatively novel, and putting it in a straightforward format that was logical and followed the law.
“Because of her past work in the Keel case, Leslie brought a perspective to this case that would have been difficult for a student who had never been so exposed. She knew what the stakes were and what the issues in a mental retardation/death penalty case would entail. It was very helpful.”
Cooley’s independent study work will also be very helpful for lawyers handling these sorts of cases, Maxwell adds.
“There haven’t been many hearings on this to date, and to my knowledge, only one that has gone to the appellate level–where the trial judge didn’t find mental retardation, but the North Carolina Supreme Court did. To this point, all of these hearings have been handled at the trial level, and we need to take those cases and try to learn from the facts of each of them, as they are applied to this relatively new law: ‘This works, this doesn’t work, this is going to help you.’ Leslie did some of that [in the Nicholson case.]”
Cooley says it was incredibly helpful to her to see a post-conviction mental retardation hearing, to witness the mutual cooperation between Maxwell and the Wilson County prosecutor, and to undertake writing the memo.
“This memo wasn’t based on case law–there isn’t any. So it was really interesting for me to see how you work to convince certain judges in different geographic areas.”
That dearth of case law may change as a result of the Nicholson case; the motion for the imposition of a life sentence based on retardation was denied in early January, and is under appeal to the North Carolina Supreme Court.
Passionately committed to a career in criminal law, Cooley had decided, after Keel’s execution, that death penalty litigation was too emotionally draining to consider pursuing after law school. Working with Maxwell on the Nicholson case–at the suggestion of Senior Associate Dean for Academic Affairs James Coleman–has made her reconsider.
“I could definitely do the sort of thing Jim Maxwell was called in to do on this case. Now I understand it much better than I did before.”