Pubdate: Tue, 18 Mar 2003
Source: New York Times (NY)
Copyright: 2003 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Dan Barry

A CAPITAL CASE, AND A DEFENDANT WHO MAY BE RETARDED

BINGHAMTON, N.Y. - While strangers around him discuss the possibility of 
his execution, Christopher Lloyd McMillian sits as calmly as if he were 
waiting for a bus. He kills time by copying letters on a legal pad, or 
asking one of his lawyers how to spell a simple word, or staring somewhere 
beyond the clock that hangs on the far-side courtroom wall.

He is 33 years old, and solidly built, with heavy-lidded eyes like those of 
a boxer who forgets to put his hands up. He is African-American, with roots 
on the pavements of Brooklyn and in the sharecropping fields of North 
Carolina. He is accused, along with two other men, of murdering a drug 
dealer in a tired little house here three years ago. And, his lawyers say, 
he is mentally retarded.

Last June, Mr. McMillian's lawyers traveled to Washington to dissuade the 
Justice Department from seeking the death penalty against him. In a 
15-minute presentation before a committee that advises Attorney General 
John Ashcroft on capital cases, they argued that Mr. McMillian was 
identified as brain-injured when very young; that he has great difficulty 
synthesizing information; that federal statutes prohibit the execution of 
the mentally retarded.

A month later, Mr. Ashcroft instructed local prosecutors to seek the death 
penalty against Mr. McMillian and his two co-defendants, essentially 
rejecting the prosecutors' recommendation that a sentence of life without 
parole be sought in the case. The decision meant more litigation, expense 
and anxiety.

But a recent development may disrupt the government's design to have Mr. 
McMillian convicted and executed. One of his lawyers has filed a motion 
saying that two experts have concluded that Mr. McMillian is mentally 
retarded. One is the defense's expert; the other, he says, is the government's.

"Because both experts agree, there is no factual dispute that the defendant 
is mentally retarded," the lawyer, Terence L. Kindlon, wrote. Since it is 
against the law to execute the mentally retarded, he added, the option of a 
death sentence should be removed from Mr. McMillian's case.

It may not be that simple, legal experts say; the often-misunderstood issue 
of mental retardation can increase, rather than lessen, the complexity of a 
death penalty case. In addition, they say, neither the judge nor the 
prosecution is required to act on the basis of expert opinion, which means 
that the question of Mr. McMillian's mental capacity - and his fate - could 
be left for a jury to decide.

"Clearly, I'm trying to force the issue," Mr. Kindlon said. "To seek a 
death penalty prosecution for a person in Lloyd's position is - I think 
it's meanspirited, is what it is."

Judge Thomas J. McAvoy of United States District Court plans to hear 
arguments on Mr. Kindlon's motion on April 14. Glenn T. Suddaby, the United 
States attorney for New York's Northern District, declined to discuss the 
development, and a spokeswoman for the Justice Department did not return a 
call seeking comment.

Lawyers opposed to the death penalty say the McMillian case is an extreme 
example of how critical nuances get lost in the Justice Department's plan 
to establish nationwide consistency in decisions regarding capital 
punishment. According to the Federal Death Penalty Resource Counsel 
Project, Mr. McMillian is one of 30 defendants in federal cases in which 
Mr. Ashcroft has sought the death penalty against recommendations of local 
prosecutors.

"What all this demonstrates to me is the folly and the danger of calling 
the shots from a thousand miles away based on a paper file," said Kevin 
McNally, a lawyer in Kentucky who helps to run the death-penalty project.

The Crime
Beyond the matter of Mr. McMillian's mental capacity, prosecutors say that 
he is a killer.

They say that he and two other men - Lavin Matthews, a childhood friend 
from Brooklyn, and Tebiah Tucker of Fayetteville, N.C. - lured a drug 
dealer named Carlton Rose to a house on Front Street here in January 2000 
and then, at gunpoint, beat, robbed and strangled him. Then, prosecutors 
say, they used the victim's sport utility vehicle to dump his body near a 
park. A fourth defendant, a woman named Caron Johnson, is cooperating with 
the authorities.

The government contends that the slaying occurred in the context of a 
gang-related interstate conspiracy among the three men to sell crack 
cocaine. It also charges that Mr. McMillian robbed other people at 
gunpoint, including a woman in North Carolina, and that because of two 
prior felony convictions - one for the attempted sale of illegal drugs, the 
other for attempted burglary - he had violated a federal law prohibiting 
possession of a firearm by a felon.

But Mr. Kindlon, his lawyer, said that Mr. McMillian is a dutiful, almost 
childlike follower who has little ability to think abstractly. "He is the 
kind of guy who you know is destined to be described as a model prisoner," 
he said.

Mr. Kindlon, whose practice is based in Albany, first met Mr. McMillian in 
the summer of 2001, through the plexiglass partition that separates 
visitors from inmates at the Broome County jail. "The conditions were not 
ideal," Mr. Kindlon recalled. "I didn't realize in that first meeting that 
he was retarded."

The Investigation
In potential death penalty cases, defense lawyers routinely hire 
"mitigation investigators" to unearth every possible reason a defendant 
should not be executed. They gather school and medical records, delve 
several generations into family histories, and conduct interviews to create 
as complete a portrait of a defendant as possible.

To do this work, Mr. Kindlon chose Joan Kline Podkul, a mitigation 
investigator from Buffalo.

One day in March 2002, she called to say that she strongly suspected their 
client was mentally retarded. "We should develop that," Mr. Kindlon 
recalled Ms. Podkul saying.

In early June, Mr. Kindlon presented federal prosecutors with an 18-page 
document that laid out the history of Christopher Lloyd McMillian. His 
father was a North Carolina farmboy turned heavy-machine operator; his 
mother, from Brooklyn, was often absent or neglectful. Their son was 
shuttled back and forth between North Carolina and New York.

The document described a boy who, by the age of 5, was being medicated with 
Valium to curb his hyperactivity; who rocked and banged his head; whose 
chaotic world was "a puzzle in which none of the pieces fit." According to 
New York City school records that Ms. Podkul uncovered, Mr. McMillian's low 
I.Q. and "severe cognitive deficits" had been documented throughout his 
childhood and adolescence.

By the age of 16, he was determined to be reading at a first-grade level 
and to have limited math and language skills. He dropped out of school, 
worked at a series of manual jobs, fathered several children, ran afoul of 
the law a few times, and lost family members, particularly his 
grandparents, who were dear to him.

"Lloyd continues to live in a fantasy world with Rosie, Hervy, Delores and 
all of his 'cousins' in 'the country,' where life is calm and simple and 
Rosie takes care of him and his 'Moms,' " Mr. Kindlon wrote. "The child who 
was unable to understand and organize his environment is now the adult 
whose world has spun totally out of his control."

Mr. Kindlon made a similar presentation later in June during a brief 
appearance before the Attorney General's Review Committee on Capital Cases. 
Mr. Kindlon said he left Washington feeling fairly confident, in part 
because he knew that federal prosecutors back in Binghamton had not 
recommended capital punishment.

In addition, the United States Supreme Court had just declared the 
execution of mentally retarded people to be cruel and unusual punishment, 
and therefore unconstitutional, in the case Atkins v. Virginia. The 
decision reinforced federal statutes already barring the execution of 
mentally retarded offenders and, to Mr. Kindlon's mind, further bolstered 
his arguments.

The Response
On July 25, the federal prosecutors in Binghamton sent notification to Mr. 
Kindlon and the other defense lawyers that the attorney general "has 
authorized and directed that the government intends to seek the death 
penalty as to all three of the following defendants: Lavin Mathews; 
Christopher McMillian; and Tebiah Tucker."

Barbara Comstock, a spokeswoman for the Justice Department, did not return 
a call seeking comment on the McMillian case. But she has said in the past 
that the Justice Department is trying to establish nationwide consistency 
in the application of the death penalty. "What we are trying to avoid is 
one standard in Georgia and another in Vermont," she said.

The notice complicated the case "fiftyfold," Mr. Kindlon said. It meant an 
exhaustive jury-selection process, in which potential jurors with strong 
feelings for or against the death penalty would have to be culled. It meant 
two lawyers and teams of investigators for each defendant, all paid for by 
the government. It meant that a murder conviction would lead to a kind of 
second trial before the same jury on the government's request for the death 
penalty. It meant a lot of pressure.

"You think of the needle all the time; you're the person between your 
client and the needle," Mr. Kindlon said. That is why, he said, Ms. Podkul 
continued to dig into the matter of Mr. McMillian's mental capacity, and 
why he retained Dr. Jerid M. Fisher, a neuropsychologist from Rochester, to 
examine his client.

The American Association on Mental Retardation defines the disability as 
being characterized by "significant limitations both in intellectual 
functioning and in adaptive behavior as expressed in conceptual, social and 
practical adaptive skills." It also says that the disability originates 
before the age of 18, and that mental retardation is thought to be present 
"if an individual has an I.Q. test score of approximately 70 or below."

Dr. Fisher's examination, completed in February, concluded that Mr. 
McMillian's level of functioning fell in the "mild mental retardation 
range"; that he had an I.Q. of about 67; and that he had extensive 
cognitive difficulties dating back to childhood. Dr. Fisher also noted that 
Mr. McMillian did not seem to understand the concept of his Miranda right 
against self-incrimination. When asked to define "afford" - from "If you 
cannot afford a lawyer" - the defendant replied: "Like a Ford car... I like 
Cadillacs."

Mr. Kindlon shared Dr. Fisher's report with prosecutors, who then chose Dr. 
Daniel Martell, a neuropsychologist in California and a veteran government 
expert, to review the matter. Federal prosecutors declined to discuss the 
case, and Dr. Martell did not return a call seeking comment. But defense 
lawyers say that prosecutors have told them that Dr. Martell would soon 
file a report in which he essentially agrees with Dr. Fisher's conclusions, 
and that the Justice Department would be revisiting the matter.

Stephen B. Bright, a lawyer and the director of the Southern Center for 
Human Rights in Atlanta, said that the withdrawal of the death notice in 
Mr. McMillian's case is not a given. For example, he said, the judge might 
wait to see whether Mr. McMillian is convicted, and then deal with the 
matter during the trial's penalty phase. Or the Justice Department might 
decide to argue that Mr. McMillian is not mentally retarded based on the 
facts of the crime, and "try to play on the jury's revulsion of the crime."

And, he said, even though mental retardation is an objective assessment - 
"If you're mentally retarded, you're always mentally retarded" - it is 
often misunderstood and is not always readily apparent.

"The prosecution could immediately get off the mental condition of the man 
and go to the goriness of the crime," Mr. Bright said. "Some people would 
say punish the person regardless."

While Mr. McMillian and his advocates wait for the next step - Will the 
government withdraw the death notice? Will the judge leave the matter in 
the hands of the jury? - a capital case grinds on in a Binghamton courtroom 
where spectators are rare.

At the moment, lawyers for both sides are slogging through the laborious 
jury-selection process for a capital case, a process requiring that 
hundreds of people be questioned, one at a time, about everything from 
their home life to their feelings about race, about capital punishment, 
about mental retardation.

It is all to find 12 jurors and six alternates who say that if they had to, 
they could deliberate fairly on whether a man should be put to death.

The question seems much harder to answer while under oath in a courtroom 
than at home in casual conversation. One potential juror said that he could 
vote for the death penalty because it was necessary "to eliminate violence 
in this world." Another waffled - no, he couldn't; yes, he could - until he 
finally shrugged his shoulders.

All the while, the flesh-and-blood subject of these theoretical questions, 
Christopher Lloyd McMillian, sat in a chair with his legs shackled, looking 
up, looking down, looking away.
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