death penalty news—-TEXAS

Nov. 25


Possibly Retarded Prisoner Faces Execution

When Texas reopens its execution chamber after a Thanksgiving break, the
1st man set to die may be mentally retarded. A 2002 Supreme Court ruling
bans the execution of mentally retarded prisoners. But after years of
being represented by a discredited attorney who ruined any chance for an
appeal based on his disabilities, the fate of Bobby Wayne Woods rests with
the state Board of Pardons and Paroles which can recommend clemency or a
reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie
Levin says of the clemency request, "but I think it's very important to

Test scores during his childhood and incarceration show Bobby Woods has an
IQ that hovers at or below 70 the cut-off point for mental retardation.
He reads at a second grade level and writes childlike letters many of
which are photocopied and presented as evidence in his clemency request.
Levin asked the board to grant a 60-day reprieve so that she can produce a
videotape of Woods "to adequately present a full picture of his
limitations." She has sued Texas prison officials over their refusal to
allow her to record such a video herself. The Texas Observer captured
Woods on tape last week during an on-camera interview, and now you can
watch the video that Levin wants the clemency board to see.

Woods was sentenced to die in 1998 for kidnapping, raping and murdering
11-year-old Sarah Patterson. He disputes his guilt, saying his cousin is
responsible for cutting Patterson's throat. But the cousin committed
suicide the week following Woods' arrest. Levin acknowledges "the facts of
this crime are very difficult," but she notes the ban on executing the
mentally retarded applies no matter how heinous the offense. Levin and
students with the Capital Punishment Center at the University of Texas Law
School began working on Woods' case just before he was scheduled to be
executed in October 2008. Their efforts followed years of cringe-worthy
legal representation by Richard Alley, one of just two attorneys the Texas
Court of Criminal Appeals has removed from its list of lawyers qualified
to represent death row prisoners in their appeals. He visited Woods only
once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed from the
list who was being taken to task in a federal court at the very same time
he's being appointed to represent Bobby in his federal proceedings, and
then for Bobby a mentally retarded man to suffer the consequences of
that appointment is atrocious. It infuriates me," Levin says.

Alley had a habit of recycling direct appeal claims in his state capital
habeas cases. While he raised 28 issues in Woods' state habeas appeals,
just two were actually new and neither was backed by useful evidence. In
contrast, Levin and her students were able to contact family members who
described how Woods was a slow child who suffered from learning
disabilities and was called "retard" by his classmates, and "always needed
to live with someone who could take care of him" when he was older. Their
investigations revealed that while Woods had held a steady job as a
short-order cook at Waffle House, he had to have the orders read aloud to

Alley did file an appeal claiming Woods was mentally retarded, but it was
poorly put together and the court rejected it. Levin won a rare 2nd chance
to present new evidence in October 2008, but she was unable to reach a
higher bar set by the court because it was his 2nd time making the appeal.
This second appeal had to overcome the previous legal record established
on almost no investigation of Woods' mental capacity.

Levin could not claim that Woods suffered from ineffective assistance of
counsel either. While a Texas statute guarantees Woods an attorney to file
his habeas appeals, it doesn't require him to be competent. So Woods
remains scheduled to be executed on Dec. 3 pending a decision by the Board
to recommend that Perry have mercy and grant him clemency or a reprieve.
Below are additional videos that may be used in evidence. Woods has
reached the end of the legal process. His only opportunity now resides
with Perry and the parole board.

(source: Texas Observer)