Death-row inmate Alvin Bernal Jackson isn't "intellectually disabled" enough to make him ineligible for the death penalty, U.S. District Judge Susan Webber Wright said last week in a ruling that has been pending for more than four years.
But before the ink was even dry on Wright's 50-page order, defense attorney Jeff Rosenzweig of Little Rock filed a notice of appeal to the 8th U.S. Circuit Court of Appeals in St. Louis.
Twice before, Wright has rejected Jackson's efforts to be heard on his quest to have his death sentence voided, and each time, the 8th Circuit has reversed her.
Meanwhile, the Arkansas Department of Correction inmate, who is now 45 years old, is protected from immediate execution by a lawsuit pending before the Arkansas Supreme Court that challenges Act 1096 of 2015, which spelled out execution protocols and shielded the source of the lethal drugs from the public. The lawsuit, filed by Rosenzweig on the day the law was passed, names nine death-row inmates, including Jackson, as plaintiffs.
In February, the Supreme Court granted the plaintiffs more time to make their case despite arguments by state attorneys that the plaintiffs are trying to "run the clock" before one of the three drugs in the state's lethal-injection cocktail will expire in June. Prison officials have said the supplier is unwilling to sell more drugs to the state, and another supplier hasn't been found.
Because of various legal challenges and difficulties in obtaining proper execution drugs, Arkansas hasn't executed a prisoner since 2005.
On Oct. 27, 2003, Jackson filed a federal petition citing seven grounds for relief from his death sentence.
On Jan. 4, 2007, Wright dismissed the petition, saying Jackson didn't take advantage of an opportunity to air his complaints in state court.
But after the 8th Circuit declared in 2010 that Jackson was entitled to pursue his federal petition on one of the grounds he cited, mental disability, Wright considered written briefs on the matter from Rosenzweig and attorneys for the state. She concluded that Jackson hadn't proved a need for an evidentiary hearing on the matter and said there was nothing left of the case to consider, but Jackson appealed once again to the 8th Circuit.
The appeals court reversed Wright a second time, directing her to hold a hearing on whether Jackson's mental impairments entitled him to relief under a 2002 U.S. Supreme Court decision, Atkins v. Virginia, which held that the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, categorically bars the execution of mentally disabled offenders.
At the hearing in late 2011, psychologist James Moneypenny of Little Rock said he believed Jackson is mentally disabled. But Gilbert Macvaugh III, former chief forensic psychologist at the Mississippi State Hospital, said Jackson appeared to be "above the cut of mental retardation." Macvaugh said his "clinical" opinion was that Jackson doesn't qualify as intellectually disabled, but that he was unable to render a "forensic" opinion on whether Jackson is intellectually disabled as defined by Atkins v. Virginia and under Arkansas law.
He explained that the standards are "much, much higher" in a forensic setting, "and in this case, it's very difficult to offer an opinion to a reasonable degree of certainty" about whether Jackson has an intellectual disability.
The U.S. Supreme Court hasn't uniformly defined the term "mental retardation," leaving that to the states.
Citing a state law that was in place before the Atkins decision, Wright said Thursday that "Jackson has failed to show that he is intellectually disabled according to the standard set forth under Arkansas law."
Jackson was first convicted of capital murder in 1990, for the July 31, 1989, murder of Charles Colclasure, a 47-year-old Little Rock business owner. Colclasure was ambushed at his International Business Forms office in East End by robbers who shot him six times, repeatedly ran over him with a vehicle and threw him in the Arkansas River. A Pulaski County Circuit Court jury sentenced Jackson to life in prison without parole for the attack.
Then in June 1996, Jackson was again convicted of capital murder, and this time sentenced to death by lethal injection, for killing prison guard Scott Grimes, 41, with a homemade knife inside the department's Tucker Unit on Nov. 29, 1995.
Wright's order noted evidence that Jackson plotted to kill an inmate, Anthony Griffin, because Griffin had fought with another inmate who shared Jackson's faith. The order noted that Jackson "prepared for the deadly attack by removing a piece of metal from his cell door, which allowed him to kick the bottom of the door open during the short window of time when Griffin was being escorted to his cell" after a shower.
"The evidence also showed that Jackson had sharpened his weapon by rubbing it on the floor of his cell and that he wrapped the handle with plastic and wore a glove during the attack," the order notes.
It said that as Grimes escorted Griffin, Jackson "escaped from his cell at the opportune time and ran toward Griffin." Grimes got between the two prisoners, and Jackson stabbed him twice in the left side of his chest, piercing his heart.
"Gravely injured but alive, Sergeant Grimes held Jackson in a headlock until another officer arrived, at which point Sergeant Grimes collapsed and died," the order said.
Wright's order noted that under the law, Jackson had the burden of proving by the greater weight of evidence that he meets four criteria under Arkansas law to be considered intellectually disabled.
While Moneypenny found that Jackson met the criteria, Macvaugh said he believed that Jackson "is squarely in the mid borderline of intelligence, and he has other issues."
Jackson's ability to plan and prepare for the other prisoner's murder was one thing Wright cited in siding with Macvaugh.
While both psychologists were qualified to assess Jackson's intellectual status, she said, "the Court believes that Dr. Macvaugh conducted a more comprehensive investigation and provided more reliable testimony."
Metro on 04/03/2016