LITTLE ROCK — A federal judge tasked with deciding whether an Arkansas death-row inmate is mentally retarded, and thus should not be executed, heard testimony Friday from two psychologists - one who believes Alvin Bernal Jackson is retarded and another who isn’t sure.
Since the clock ran out Friday before testimony was complete, U.S. District Judge Susan Webber Wright said she won’t begin deciding the issue until the hearing’s conclusion, most likely before the end of the year.
The uncertain ending constituted another frustrating delay for relatives of Jackson’s two murder victims, a Little Rock businessman and a prison guard. The family members attended the day-long hearing in Wright’s Little Rock courtroom butrefrained from commenting publicly.
Jackson, 41, was first convicted of capital murder in 1990 for the July 31, 1989, murder of Charles Colclasure, 47, who was ambushed at his Little Rock business by robbers who shot him six times, repeatedly ran over him with a vehicle and finally threw him into the Arkansas River.
A Pulaski County Circuit Court jury sentenced Jackson to life in prison without parole for the savage attack.
Then in 1996, Jackson was again convicted of capital murder, and this time sentenced to death by lethal injection, for killing a prison guard, 41-year old Sgt. Scott Grimes, inside the Arkansas Department of Correction’s Tucker Unit in 1995.
Jackson stabbed Grimes - the only prison guard in the state’s history to be killed by an inmate - with a large homemade knife as Grimes tried to protect another prisoner he was escorting back to his cell.
In court Friday, Jackson testified that he got the homemade knife from another prisoner after trading a $20 compass for it.
Later, Capt. Mark Stevens,chief commander of the prison’s Varner Unit, which now houses death-row inmates, said that after he recently stumbled upon a letter-mailing scheme through which Jackson sent a letter to another inmate, in violation of prison rules, Jackson threatened to kill him as well.
Stevens quoted Jackson as saying, “If I don’t get off death row, you know my history. I killed Grimes, and I’ll kill again.” Stevens said Jackson paused and then added, ‘I hope it’s you.’”
Jackson testified that he used the mail trick and the help of prison guards who sometimes shuffle papers among inmates to file grievances and legal documents that were actually written by the other prisoners. He said he isn’t smart enough to compile his own documents.
Reports about Jackson’s academic skills, particularly in the years he attended public schools before being imprisoned, were among the items considered by psychologists in evaluating his mental status.
In 2002, the U.S. Supreme Court held in a case called Atkins v. Virginia that the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, categorically bars the execution of mentally retarded offenders.
The high court declined to uniformly define the term “mental retardation,” leaving that to the states. So in 2009, when faced with Jackson’s petition for post-conviction relief on the retardation issue, Wright looked for guidance toward an Arkansas law enacted before the Atkins decision and found that Jackson arguably met the first of three conditions for being mentally retarded, but not the second condition. She dismissed his petition for an Atkins hearing without considering the third condition.
In August 2010, a three judge panel of the 8th U.S. Circuit Court of Appeals reversed Wright, saying testimony in the Colclasure murder trial sufficiently demonstrated that Jackson had limitations that satisfied the second condition. The appellate judges also said Jackson’s situation appeared to satisfy the third condition.
They remanded the case to Wright for the Atkins hearing that began Friday with a focus on the second and third conditions.
The first condition is “significantly sub-average general intellectual functioning” that manifested itself before the defendant turned 18. The second condition concerns a “significant deficit or impairment in adaptive functioning,” which also must be manifested before the defendant turns 18. The third condition is “a deficit in adaptive behavior.”
Jackson’s attorney, Jeff Rosenzweig of Little Rock, took testimony from psychologist James Moneypenny of Little Rock, who said Jackson appears to be mentally retarded on the basis of his school records, psychological evaluations for his earlier trials and recent evaluations that Moneypenny administered.
Later, Assistant Attorney General Pamela Rumpz called a Greenville, Miss., forensic psychologist, Gilbert Macvaugh III, who testified that he also reviewed Jackson’s medical, educational, psychological and criminal history, as well as trial testimony and the results of tests that Macvaugh personally administered, to reach inconclusive results.
“I think his academic abilities are quite impaired,” Macvaugh testified. But, he said, Jackson was clearly “malingering,” meaning faking or exaggerating his mental lapses, during previous interviews, including those with Moneypenny.
Macvaugh said the obvious malingering, combined with Jackson’s widely varying scores between the verbal and overall components of certain tests, and a lack of opportunity to test his functional skills outside of prison, made a diagnosis difficult.
While he believes that Jackson has a language disorder, Macvaugh said it doesn’t necessarily constitute mental retardation. When factoring in standard margins of error, he said, Jackson is in a murky zone, “but generally, the pattern suggests he is above the cut of mental retardation.”
Macvaugh noted that it’s impossible to know whether Jackson was medicated for his attention deficit hyperactivity disorder when he took tests during various intervals in school.
Jackson’s fraternal twin, Calvin Jackson, who is a successful businessman and father without a criminal history, testified that when growing up in a very economically depressed household, the boys’ mother often couldn’t afford Alvin’s medication, so he would often go without it.
“There are many problems with the data in this case,” Macvaugh testified. He added that when a person has been incarcerated as long as Jackson, “it is next to impossible to adequately address the second [condition], which is adaptive functioning.”
Ultimately, he said, “it could go either way.”
Arkansas, Pages 11 on 10/29/2011