Texas man's execution won't be stopped, even though new evidence shows he has an MR diagnosis

From The Dallas Morning News:

Bruce Carneil Webster helped kidnap, rape, torture and bury alive Arlington teen Lisa Rene.

A judge on the 5th U.S. Circuit Court of Appeals agrees that new evidence, including psychological examinations, appears to show that Webster is mentally retarded.

But although the U.S. Supreme Court banned the death penalty for the mentally retarded eight years ago, 5th Circuit Judge Jacques Wiener Jr. and his two colleagues agree that they can't stop Webster's execution. The panel says he exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent.

And since everyone agrees he's guilty, Webster still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," Wiener wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Experts say the case is headed for a constitutional showdown.

"It's an outrageous situation," said David Bruck, a death penalty expert at Washington and Lee University law school in Virginia. "Sometimes the law just doesn't fit the facts. This is one of those times."

Steven Wells, Webster's attorney, said he plans to ask the Supreme Court to untangle the mess.

"If we're allowed to bring this new evidence before a fair and impartial judge, they will find that Bruce Webster is mentally retarded," Wells said.

On Sept. 24, 1994, Webster and three other men from Pine Bluff, Ark., went to the Polo Run apartments in Arlington. They were hunting two drug dealers who had taken $5,000 but failed to deliver a load of marijuana.

The dealers weren't home. Their sister, Lisa, a high school honor student, was.

The men crashed through a glass patio door, put her in a car and drove her to Arkansas. They repeatedly raped her over the next two days in motel rooms, and then led her to a nearby park.

Webster and the others hit her on the head with a shovel until she lost consciousness. Webster then gagged her, dragged her into a grave they had dug, stripped her, doused her with gasoline and buried her alive.

One other man, Orlando Hall, also is on death row. Three others – including a man not involved in the kidnapping but charged in her death – also were convicted in the murder and sent to prison.

Evidence claiming Webster is mentally retarded was a major part of his 1996 criminal trial, and has been a part of his appeals.

At his trial, jurors heard defense experts and Webster's family say he is mentally retarded. Prosecutors acknowledged his low IQ, but argued that he was able to adapt to his lack of intellect and knew right from wrong. A fellow inmate testified he saw Webster appear to be reading law books and making notes from them while in prison.

After the jury found him guilty, jurors were asked whether they thought Webster was or could be mentally retarded. Four of the 12 answered "yes."

U.S. District Judge Terry Means ruled then that Webster was not mentally retarded and sentenced him to death. His attorneys appealed.

In 2002, the Supreme Court clarified laws on mental retardation and execution in Atkins vs. Virginia, ruling that executing the mentally retarded constitutes cruel and unusual punishment. Webster's attorneys cited that decision in their appeal, but the 5th Circuit soon upheld Webster's death sentence, relying on the same arguments and evidence used at trial.

In February 2009, Webster's attorneys received records from when Webster applied for Social Security benefits to treat a sinus condition and headaches.

Those records, from a year before the killing, show that three doctors who examined him had found him to be mentally retarded.

The Social Security forms show that Webster had answered questions in nearly illegible, childlike handwriting: "I sleeps look at cartoon," he scrawled in answer to a question asking how he spent most days. When asked what books he liked, he answered, "Playboy naked books."

The records also show that Webster had been in special education classes as a child, contrary to what government witnesses told jurors at his trial.

In a motion opposing Webster's request for a hearing on the new evidence, prosecutors noted that one of the Social Security doctors said Webster was a "somewhat mild retarded con man, but very streetwise."

They also argued that Webster had just as much motivation to lie about his retardation to get Social Security benefits as he did to get out of the death penalty.

Richard Roper, who prosecuted Webster in his original Fort Worth trial, said the new evidence is not conclusive.

"This was extensively litigated at trial," he said. "I don't agree that this new evidence clearly establishes mental retardation."

It doesn't matter. The 5th Circuit found that because Webster had no new information showing he was innocent of the killing, it interpreted the law to mean it could not grant the new hearing.

The "Kafkaesque" situation, as Wiener describes it, arises out of changes made to federal criminal law in 1996. After the Oklahoma City bombing and the first World Trade Center attack, Congress put strict limits on the number of times federal inmates can challenge their sentences.

To file more than one appeal, an inmate has to have new information "sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the [defendant] guilty of the offense," the law states.

In the 5th Circuit's ruling, Wiener wrote: "If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded."

Roper, who is now in private practice, acknowledged that if the Supreme Court does not choose to hear the case, "it could still be up to President Obama as to whether an execution should go forward."

Lisa's mother, Agnes Rene, who lives in the Virgin Islands, said Webster deserves no mercy.

"He's just wicked," she said. "He claimed he was mentally retarded because he knew what was coming for him. He hit my daughter with a shovel. He buried her alive. The courts better know what they are doing. He was guilty. He is guilty. And he knew what he was doing."

John Blume, a law professor and director of the Cornell Death Penalty Project, said the case is a test of the legal system's evenhandedness.

"Is it fair to say that, because we don't like what this guy did, it's OK to not follow the law that says you can't execute someone who is mentally retarded?"