18 May 2006

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18 May 2006
UA 139/06 Death penalty / Legal concern

USA (Virginia) Percy Levar Walton (m)

Levar Walton, black, aged 27, who suffers from serious
mental illness, is scheduled to be executed in
Virginia on 8 June. He was sentenced to death in 1997
for the murders of an elderly white couple, Elizabeth
and Jesse Hendrick, aged 81 and 80, and a 33-year-old
black man, Archie Moore, in the town of Danville in
November 1996.

In 1999, three mental health experts concluded that
Levar Walton suffers from severe schizophrenia and was
probably suffering from this mental illness at the
time of the crime. Walton, who was 18 years and one
month old at the time of the murders, had displayed
signs of emerging mental illness since the age of 16.
He manifested bizarre beliefs and inappropriate
behavior after his arrest, in pre-trial custody, and
during the trial. In a 1999 affidavit, his lawyer
recalled how Levar Walton "did not meaningfully assist
us in preparing a defense". The lawyer recalled that
"we were unable to convince Mr Walton that he would
not come back to life" if he was executed.

At first Walton said that he wanted to plead guilty.
Then in September 1997 he told his lawyer that he
wanted to plead not guilty and have a jury trial
because he was innocent. Days later, he reverted to
admitting guilt. At end of that month, asked whether
he would plead guilty or not guilty, he refused to
speak, but responded by writing the word "chair" on a
piece of paper. He told his lawyer that he wanted to
be executed in order "to come back to life so he could
be with his honeys". In court in October 1997, he
pleaded guilty to the murders, the judge accepted the
plea and, after a sentencing phase at which no mental
health evidence was presented, sentenced him to death.

As Levar Walton's mental illness has worsened on death
row - prison records have described an inmate who is
"floridly psychotic" with little apparent concern
about his impending execution - the principal question
that has been raised is whether he is legally insane
and therefore "incompetent" for execution. The
execution of an insane prisoner violates the US
Constitution under the 1986 Supreme Court ruling, Ford
v. Wainwright. However, Ford protections have proved
minimal. At a bare minimum, it requires that a
prisoner be found to make a connection between his
crime and punishment. However, what if the connection
is highly tenuous or takes place in an inner world
that is delusional and the product of severe mental
illness? Precisely what the Ford decision means
continues to cause dissent in the lower courts.
Recent judicial decisions in Levar Walton's case have
illustrated this disagreement and highlight the need
for executive clemency to prevent the injustice of
killing a mentally ill man.

In May 2003, a District Court issued a stay of
execution in order to assess whether Levar Walton was
competent for execution under Ford. After holding
hearings, at which he heard conflicting professional
opinions on Walton's competence for execution, the
judge ruled him competent under a narrow
interpretation of the Ford ruling. Walton's lawyers
appealed to a three-judge panel of the US Court of
Appeals for the Fourth Circuit, arguing that the Ford
decision requires not only that the condemned inmate
understands that he is to be executed and why, but
also that this understanding is such that the prisoner
is able to prepare for his death. Two of the judges
agreed. Noting that the Ford decision "presents
challenges" because it had neither defined insanity
nor mandated the procedures for making competency
determinations, the panel's 2005 opinion stated that,
as in Walton's case, "a person who can only
acknowledge, amidst a barrage of incoherent responses,
the bare facts that he will be executed and that his
crime is the reason why does not meet the standard for
competence" under Ford.

The state successfully appealed for a rehearing in
front of the full Fourth Circuit court of 13 judges.
In March 2006 a majority of seven judges concluded
that the District Court had applied the correct legal
standard. The other six dissented, noting the
"substantial evidence that Percy Levar Walton does not
understand that his execution will mean his death,
defined as the end of his physical life". They noted
that "there is no dispute that since his sentencing,
Walton has fallen deeper and deeper into mental
illness". The only dispute for the Court was how to
establish whether he was competent for execution under
the Ford decision. Clearly this group of federal
judges was far from agreement on how to resolve this
issue. As the Fourth Circuit panel opinion noted,
"undoubtedly, determining whether a person is
competent to be executed is not an exact science." In
other words there will be errors and inconsistencies.
There can be no confidence that any sort of precision
has been achieved in this case.

There is also evidence that Levar Walton has at least
borderline mental retardation and the mental age of a
young child. If the crimes for which he was sentenced
to death had been committed five weeks earlier, Levar
Walton would have been 17 years old and his execution
would be illegal under US and international law. By
all accounts, Levar Walton is less developed
intellectually than most 18-year-olds.

In 2002, in Atkins v. Virginia, the Supreme Court
prohibited the death penalty for people with mental
retardation. The Court reasoned that the impairments
of defendants with mental retardation diminish their
personal culpability and their ability to understand
consequences, rendering the death penalty
unjustifiable on grounds of retribution or deterrence.
Amnesty International believes that there is a
profound inconsistency in exempting people with mental
retardation from the death penalty while those with
serious mental illness remain exposed to it. The same
rationale of diminished culpability, greater
vulnerability and limited capacity applies to
defendants afflicted with severe mental illness. For
further information, see USA: The execution of
mentally ill offenders (AMR 51/003/2006, January
2006),
web.amnesty.org/library/pdf/AMR510032006ENGLISH/$File/AMR5100306.pdf
(including further information on Percy Levar Walton's
case).

Virginia accounts for 95 of the 1,023 executions in
the USA since judicial killing resumed in 1977. In
1999, Virginia's then Governor, James Gilmore,
commuted the death sentence of Calvin Swann on grounds
of his schizophrenia from which he had suffered since
his late teens. Swann was tried in front of the same
judge, by the same prosecutor, and with the same
defence lawyer, as Percy Levar Walton.

RECOMMENDED ACTION: Please send appeals to arrive as
quickly as possible:

- expressing sympathy for the relatives of Elizabeth
and Jesse Hendrick and of Archie Moore, and explaining
that you are not seeking to minimize the suffering
their deaths will have caused;

- opposing the execution of Percy Levar Walton, noting
evidence that he had begun suffering from serious
mental illness more than a year before the crime, that
his illness has deepened on death row, and also that
he has borderline mental retardation and the mental
age of a young child;

- noting that six judges on the Fourth Circuit Court
of Appeals dissented in this case, and pointing out
that the power of executive clemency exists to
compensate for occasions when serious doubts about
legal process arise, as clearly has occurred here with
regard to the legal standard for determining
competency;

- recalling Governor James Gilmore's 1999 decision to
commute the death sentence of Calvin Swann because of
the prisoner's schizophrenia, and calling for clemency
for Percy Levar Walton.

APPEALS TO:

Governor Tim Kaine, Office of the Governor
Patrick Henry Building, 3rd Floor
1111 East Broad Street
Richmond, Virginia 23219
Fax: [phone]
Email via website:
www.governor.virginia.gov/AboutTheGovernor/con
tactGovernor.cfm
Salutation: Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.

Amnesty International is a worldwide grassroots
movement that promotes and defends human rights.

This Urgent Action may be reposted if kept intact,
including contact information and stop action date (if
applicable). Thank you for your help with this appeal.

Urgent Action Network
Amnesty International USA
600 Pennsylvania Ave SE 5th fl
Washington DC 20003
Email: [e-mail]
www.amnestyusa.org/urgent/
Phone: [phone]
Fax: [phone]