Editor’s Note: This article has been updated to reflect a Correction.
After a nine-day hearing that concluded yesterday with the testimony of the last of 11 witnesses, a federal judge will now rule on whether a man convicted of killing two undercover police officers in 2003 is mentally retarded and thus cannot be executed.
Eastern District Judge Nicholas Garaufis (See Profile) gave no indication of how he might rule.
Attorneys for Ronell Wilson, whose conviction was affirmed by the U.S. Court of Appeals for the Second Circuit but whose death sentence was vacated, claim he is mildly retarded.
An IQ score of approximately 70 is considered by the American Psychiatric Association to be the ceiling for a finding of mild mental retardation, and Wilson’s scores ranged from 70 to 84. But the defense argued that no cutoff score could be applied and raised questions about the tests’ administration and interpretation.
Disputing the retardation claim, prosecutors in the Eastern District U.S. Attorney’s Office emphasized the test results and insisted that other conditions, such as learning disabilities, Attention Deficit Hyperactivity Disorder and conduct disorders, account for any behavioral deficiencies the defense highlighted.
“The scores are the scores. The scores are clear,” Assistant U.S. Attorney James McGovern argued at one point, prompting Wilson’s attorney, Michael Burt of San Francisco, to later respond that “a certain amount of clinical judgment” about Wilson’s behavior was needed.
Garaufis now has to sift the evidence—often couched in highly technical language—and rule on what a number of experts apparently could not agree on: Is Wilson, in fact, mildly retarded?
The so-called Atkins hearing was held pursuant to a 2002 U.S. Supreme Court decision, Atkins v. Virginia, 536 U.S. 304, barring the execution of mentally retarded defendants.
The Eastern District hearing is thought to be the first such federal hearing to occur in New York state, according to a spokesman for the U.S. attorney’s office.
The last New York execution on the verdict of a federal jury was the 1954 death of Gerhard Puff, a bank robber who shot and fatally injured an FBI agent.
The proceedings arose from Wilson’s March 2003 murders of NYPD Detectives James Nemorin and Rodney Andrews on Staten Island. The officers were posing as gun buyers for a sting operation. Wilson, a member of the violent Stapleton Crew and known as “Rated R,” shot both men in the head after the gang previously decided to rob the purported buyers for $1,200 instead of delivering the merchandise.
In December 2006, Wilson was convicted of all 10 counts against him, including murder and robbery. In March 2007, Garaufis sentenced Wilson to death after a jury voted for capital punishment.
Garaufis touched on Wilson’s mental capacity during the sentencing, according to a transcript.
During closings in the penalty phase, one juror allegedly smirked or smiled at the defense claim of Wilson being “borderline mentally retarded.”
Garaufis defended his refusal to remove the juror, saying the jury had become very familiar with the evidence, which included several audio recordings of Wilson.
In those recordings, Garaufis said Wilson “sounded confident, strategic and within the framework of his criminal aspirations, perfectly rational. Nobody who heard these recordings could reasonably believe that Wilson is mentally retarded.”
In the same transcript, Garaufis pointed out that Wilson’s defense had cost federal taxpayers $1.2 million. According to court records, since 2008, Wilson’s defense has cost another $965,000, and experts and Burt have yet to put in vouchers.
In June 2010, the Second Circuit vacated the death sentence and remanded the case for a new sentencing phase. The 2-1 majority faulted the prosecution for statements undermining Wilson’s Sixth Amendment rights and said Garaufis should have given a limiting charge in connection with an unsworn statement from Wilson expressing his remorse (NYLJ, July 1, 2010).
‘Limited Intellectual Skills’
During the just-concluded Atkins hearing, each side worked hard to poke holes in the opposition’s arguments.
For instance, John Giglio testified for the defense about his work with Wilson while Giglio was a psychologist at Brookwood Secure Center, where Wilson stayed from 1997 to 1999 when he was 15- to 17-years-old as the result of a robbery he committed.
In his admission report, Giglio wrote that Wilson presented as a youth of “limited intellectual skills who has been emotionally battered.”
Consensus among the treatment team, said Giglio, was that Wilson was intellectually four to five years behind his chronological age.
But on cross-examination, McGovern noted, for example, that Wilson himself alerted staff to medical issues like his food allergies, but someone with mental retardation might not be so self-aware about such personal health matters.
Giglio said Brookwood officials did not use the term “mental retardation” to label residents.
McGovern at one point asked Giglio if he was testifying that his use of the phrase “limited intellectual skills” was a “direct synonym” for “mental retardation.”
Giglio replied that when looking at Wilson’s “constellation of behavior…you could describe that as a mild mental retardation.”
“You could?” McGovern pressed.
“You could,” Giglio replied.
“You did,” McGovern said.
“Now we’re talking semantics,” Giglio responded.
At another point during the defense’s case, the prosecution questioned the fact that Wilson has a Facebook page he updates maintained via an intermediary outside of prison. (The Facebook page lists “writing” and “vocabulary” among his interests. It also presents slight variations on quotes from Henry Ford, Martin Luther King Jr. and Ralph Ellison.)
Doesn’t running a Facebook page demand “a certain level of abstract thinking”? McGovern inquired.
The defense’s witness, psychiatrist George Woods Jr., disagreed, saying Wilson, with his intermediary, had the “supports” someone with mild retardation needs to carry out the task.
McGovern said having such a page required a memory of people he wanted to accept as “friends,” yet memory problems, he said, were something that afflicted people with retardation.
Woods said such “broad generalizations…are inaccurate.”
When the prosecution put on its case, one of its experts was Raymond Patterson, a psychiatrist and associate professor of psychiatry at Howard University and Georgetown University, whose experience included being one of would-be Ronald Reagan assassin John Hinckley Jr.’s treating psychiatrists.
Patterson diagnosed Wilson with a range of conditions such as conduct disorder, Attention Deficit Hyperactivity Disorder and anti-social personality disorder with narcissistic features.
Patterson noted that Wilson was aware of the legal circumstances when Patterson asked why Wilson thought he was being interviewed.
Yet on cross-examination, Burt pointed to Patterson’s testimony in another case about a mildly mentally retarded woman’s competency to stand trial. There, he said the woman was capable of comprehending legal concepts and incorporating newly-learned concepts.
The difference, Patterson insisted, was that woman “was mildly mentally retarded. Mr. Wilson is not.”
With the hearing concluded, Garaufis will now be accepting follow-up briefs on the proceedings through Jan. 11.
Burt, who was appointed by the court for the Atkins hearing, declined to comment on the case in an interview after the proceedings.
A spokesman for the Eastern District declined to comment.
With McGovern, Assistant U.S. Attorney Celia Cohen also appeared for the prosecution.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.