WASHINGTON - April 22 - The National Coalition to Abolish the Death Penalty Thursday called on Gov. Rick Perry and the Texas Board of Pardons and Paroles to commute the death sentence of James Clark, a mentally retarded man scheduled to be executed April 27.

"Texas may not flout the highest court in the United States," said David Elliot, NCADP communications director. "Prosecutors and judges may not like the outcome of Atkins. But to allow this execution to proceed would create a stain of embarrassment that will not be easily hidden or soon removed."

In 2002, the U.S. Supreme Court in Atkins v. Virginia ruled that the execution of persons with mental retardation is unconstitutional, but left the definition of mental retardation up to the states. Although, for the purposes of the death penalty, the Texas Legislature has neither defined mental retardation nor outlined the procedures to be followed in pursuing a mental retardation claim, experts generally define a person with mental retardation as having an IQ of 70 or lower and having two or more adaptive deficiencies.

In Nov. 2002 the issue of Clark's mental retardation went before Texas courts, and an evidentiary hearing to determine whether Clark is mentally retarded was held during the summer of 2003. Both defense and prosecution experts found him to be mentally retarded. Dr. George Denkowski, the prosecution's expert on mental retardation, diagnosed Clark with a 65 IQ and three adaptive behavior deficits. Dr. Denis Keyes, the defense expert, diagnosed Clark with an IQ of 68 and several adaptive behavior deficits.

Dr. Denkowski, a leading expert on mental retardation, was promptly dismissed after he found Clark to be mentally retarded, and prosecutors hired Dr. Thomas Allen to "consult." As Denton County Assistant District Attorney Vicki Foster said in open court, "we hired another doctor, who I'm sure you can anticipate is going to testify that [James Clark's] not mentally retarded..."

Unlike Dr. Denkowski and Dr. Keyes, the expert hired by the defense, Dr. Allen never tested James Clark before he testified that he was mentally competent.

Elliot noted that another person recently scheduled for execution, Robert Smith, saw his death sentence commuted, ironically based on the testimony of Dr. Denkowski, who was fired by the prosecution in Clarks's case for declaring him mentally retarded.

"There is no meaningful distinction between James Clark's level of mental retardation and Robert Smith's level of mental retardation," Elliot said. "Allowing Clark's execution to proceed would be a perfect example of an arbitrary and capricious application of the death penalty. The U.S. Supreme Court disallowed such treatment in its 1972 Furman ruling - meaning Texas is in danger of flouting not one but two U.S. Supreme Court decisions."

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