LITTLE ROCK — Attorney General Dustin McDaniel said he will concede that a man sentenced to death in the 1997 shotgun slayings of two convenience store clerks should be spared from execution after a state-commissioned evaluation indicated the man is mentally retarded.
The evaluation by psychologist Roger Moore Jr. of Cary, N.C., found that death-row inmate Sedrice Simpson has an IQ of 59, six points below the threshold at which a capital murder defendant is presumed to be retarded under Arkansas law and is therefore ineligible for execution.
"I agree and I believe that it's beneath the dignity of the people of the state of Arkansas to execute someone who's retarded," McDaniel said. "I don't believe that Mr. Simpson meets that definition in the way that many people would think of it, but if I cannot overcome the statutory requirements, then we will have to admit that as a matter of law he's not eligible for execution."
One of Simpson's attorneys, Jeff Rosenzweig of Little Rock, said McDaniel's decision " substantiated what we had been arguing all along for several years."
"We appreciate Attorney General McDaniel doing the right thing rather than expending a lot of the state's time and the federal court's time where even their own expert says he's retarded," Rosenzweig said.
Relatives of the two victims, Wendy Pennington, 25, and Lena Garner, 18, said they don't believe Simpson is truly retarded and the decision will keep justice from being served.
"That was his last chance, and he played that card and won with it," said Wendy Pennington's father, Jimmy Smith of Camden.
Simpson, 37, of Sparkman was convicted in 1998 of fatally shooting the two women during a robbery of the H&H Grocery in Holly Springs, about 20 miles west of Fordyce in Dallas County.
A co-defendant, Ezekiel T. Harrison Jr., testified at the trial that he and Simpson had been driving around smoking crack cocaine for several hours before arriving at the store at 4:30 a.m. on June 20, 1997. After the killings, Simpson went to a friend's home, carrying blood-covered money, and said he had just "shot two bitches," according to testimony.
Harrison, who testified that he was outside the store during the robbery, pleaded guilty to second-degree murder and was sentenced to 40 years in prison. He was released on parole in February.
The Arkansas Legislature passed a law banning the execution of the retarded in 1993. The law, Arkansas Code 5-4-618, defines retardation as "significantly sub-average intellectual functioning accompanied by a significant deficit or impairment in adaptive functioning manifest in the developmental period, but no later than age 18," and a "deficit in adaptive behavior."
A defendant with an IQ of 65 or below is presumed to be retarded, but prosecutors can overcome the presumption if other evidence shows the defendant doesn't meet the law's definition. An IQ of 85 to 115 is considered normal.
In addition to the IQ test, McDaniel said the evaluation included information from school counselors, neighbors and former employers. Simpson's attorneys said in court filings that he is "functionally illiterate" and dropped out of school in Sparkman in the eighth grade.
"His grades, even at that level, were poor (Cs, Ds, and Fs,)," the attorneys wrote.
Simpson's trial attorneys didn't raise a defense of mental retardation during his 1998 trialor in his initial appeals, and U.S. District Judge Leon Holmes ruled in 2006 that he couldn't consider the claim because it hadn't been raised in state court. But in 2007, the 8th U.S. Circuit Court of Appeals in St. Louis reversed Holmes, saying a 2002 ruling by the U.S. Supreme Court had created a new legal defense that wasn't available during Simpson's trial. The Supreme Court ruling found that executions of the retarded violate the Eighth Amendment's protection against cruel and unusual punishment, but left it to the states to determine the definition of retarded.
"Mr. Simpson is raising a previously unavailable federalclaim, and that claim is separate and distinct" from the defense under Arkansas law, the U.S. appeals court found. The court sent the case back to Holmes and ordered himto hold a hearing on whether Simpson is retarded.
That District Court hearing is scheduled for Nov. 2, but Mc-Daniel said his office will file documents in court before then acknowledging that his office "cannot overcome the statutory requirements to rebut the presumption of mental retardation."
"We believe that the federal court will vacate his death sentence and give him life in prison without parole," McDaniel said.
McDaniel met with relatives of the two victims at the Ouachita County Courthouse in Camden on Monday to explain his decision. In phone interviews Thursday, the relatives said they don't fault McDaniel's handling of the case but also don't believe that Simpson is truly retarded.
Donald Pennington, who was married to Wendy Pennington when she was slain, said he worked with Simpson for a logging company for a few weeks and noted that Simpson was capable enough to sharpen a chain saw and cut down trees. One day during lunch, Simpson, who had spent three years in prison in the early 1990s for forgery and theft, mentioned that he never wanted to go back to the penitentiary "because of what he found out when he was in there the first time," Donald Pennington said.
"He's got sense enough to know right from wrong," Pennington said. "He may not be the smartest person in the world as far as book learning, but to call him retarded, he did not seem retarded to me."
He said Simpson was fired about a week before the murders for "being lazy."
Garner's cousin, Donna Doherty, also cited Simpson's ability to work as well as drive a car and carry out the crime as evidence that he isn't retarded.
"He knew what he was doing," Doherty said.
Doherty, Pennington and other relatives said they plan to press the Legislature to narrow the definition of mental retardation.
Justin Allen, McDaniel's chief deputy, said it may be possible to tweak Arkansas' law without running afoul of the Supreme Court's 2002 ruling. But, he said, such changes probably wouldn't have been enough to alter the outcome in the Simpson case. He said he didn't know whether McDaniel would support changing the law.
"We certainly share the frustration of the victims' families," Allen said. "We understand their concerns and their frustrations, and certainly, to the extent they want to explore potential changes to the Arkansas law that might make a difference, we certainly support the efforts to look into that."
If Simpson's death sentence is vacated, he would be the second death-row inmate in Arkansas to successfully raise a retardation defense citing the Supreme Court's 2002 decision. In 2004, the attorney general's office agreed with defense attorneys that Raphael Camargo is retarded, and U.S. District Judge Robert Dawson changed his sentence to life in prison without parole. A dozen of the 41 other inmates on death row have challenges pending that raise similar mental-retardation claims.
Front Section, Pages 1, 8 on 08/28/2009