Oliver David Cruz

HUNTSVILLE, Texas (AP) - Two convicted killers, including a prisoner described by death penalty opponents as mentally retarded, were executed Wednesday in the nation's busiest death chamber.

 Before he was given the lethal injection, Brian Keith Roberson, 36, condemned for the 1986 stabbing deaths of an elderly couple who lived across the street from him in Dallas, lashed out at family members and police officers who testified against him at his trial.

``You ain't got what you want,'' he said.

 The second inmate, Oliver David Cruz, 33, was executed about an hour later for the 1988 abduction, rape and fatal stabbing of a 24-year-old woman stationed at Kelly Air Force Base in San Antonio.

 Cruz's IQ tested as low as 63, leading death penalty opponents to argue that he should not be executed. The Supreme Court, which has allowed other mentally ill or retarded inmates to be executed, voted 6-3 Wednesday to allow the execution to go on.

The court also rejected an appeal by Roberson.

 The injections were to be the first multiple executions in Texas since 1997. The execution dates were set by separate local judges, so the timing is a coincidence, said Heather Browne, a spokeswoman for the Texas Attorney General's office.

 The Texas Board of Pardons and Parole, in identical 18-0 votes this week, refused to recommend to Gov. George W. Bush (news - web sites) that he halt Wednesday's executions, the 27th and 28th in Texas this year. That left the Republican presidential nominee the option of granting the inmates one-time, 30-day reprieves to pursue further appeals.

 Cruz and an accomplice abducted a Kelly Air Base linguist, Kelly Donovan. Cruz raped her and stabbed her to death.

 Cruz blamed the attack on his drug use, which he said began at age 13. He said he and his accomplice, who testified against him in exchange for a 65-year prison term, had taken LSD and drank ``a couple of bottles of liquor.''

 Cruz's attorney, Jeff Pokorak, argued that the jury was not given enough information about his client's lifelong mental impairment. An IQ under 70 is considered at least mildly retarded, but prosecutors noted that Cruz scored 83 when he entered prison in 1989.

 Among the 25 states that allow the execution of retarded killers, some are considering laws prohibiting the practice. The Texas Legislature, which killed a bill last session outlawing the execution of someone whose IQ is below 65, will revisit the issue in 2001.

 In the other case, Roberson stabbed James Boots, 79, and his wife, Lillian, 75, while robbing their home. Roberson said he was ``juiced up'' on PCP and liquor.

 The double execution is a far cry from Feb. 8, 1924, when Texas prison officials, taking over execution duties from the counties for the first time,  inaugurated the electric chair in Huntsville by putting five inmates to death.

Oliver Cruz was put to death in Texas this evening, hours after the Supreme Court refused to block his execution, for raping and killing a young woman in his hometown of San Antonio more than a decade ago.

Mr. Cruz, 33, was given a lethal injection in the state prison at Huntsville. In a recent interview with The New York Times, he accepted responsibility for his crime, which he said he committed while drunk
and on LSD.

"I'm not going to use this as an excuse for what happened," he said.

Mr. Cruz's fate was intensely debated in recent weeks because of his mental condition. His I.Q. had been described as 64 or 76 or 83, depending on when he was tested and by whom, but prosecutors and defense lawyers alike agreed that he was of borderline intelligence, and perhaps was mentally retarded.

The defense argued that it was wrong to execute him because of his mental condition. The prosecution argued that he was smart enough to know what he was doing, and that he was highly dangerous.

Of the 38 states that have capital punishment, 13 have laws prohibiting the execution of someone who is mentally retarded. Federal law bars the execution of people convicted in federal courts. Texas lawmakers have debated similar legislation but have not acted on it.

On Monday, the Texas Board of Pardons and Paroles voted 18 to 0 to deny Mr. Cruz clemency. The vote was no surprise; since Gov. George W. Bush took office in 1995, the panel has rejected all but 1 of 74 clemency requests from death row inmates.

This morning, the Supreme Court voted, 6 to 3, to deny a stay of execution, with Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer dissenting.

The high court's decision was not unexpected, since the justices rarely intervene at the 11th hour, and it was issued without comment, as is customary. That left Mr. Cruz's fate in the hands of Lt. Gov. Rick
Perry, sitting in for the campaigning Governor Bush.

Under Texas law, the state's chief executive can grant only a 1-time 30-day delay of execution. The American Bar Association and the European Union called on Governor Bush to stop the execution, but he declined. His spokeswoman, Linda Edwards, said last week that Mr. Bush believes it is up to the jury to weigh the evidence about a defendant's mental capabilities, and whether a death sentence is appropriate.

Because Mr. Bush is seeking the presidency, and because of the protests from Europe, where capital punishment has virtually disappeared in recent years, Mr. Cruz was in the spotlight longer than many death row inmates.  In 1988, Mr. Cruz and another man abducted Kelly Donovan, who was 24 and stationed at an Air Force base in San Antonio. She was raped repeatedly, then stabbed to death. The other suspect accepted a plea bargain and got a 65-year sentence (with the possibility of parole after a quarter of that) in return for testifying against Mr. Cruz.

Mr. Cruz's lawyers argued that it was unfair for the other defendant to get a break at Mr. Cruz's expense.

Mr. Cruz's execution overshadowed that of Brian Roberson, 36, who was put to death earlier tonight for the 1986 robbery-slayings of an elderly couple who lived across the street from him in Dallas. The double
execution, the result of bureaucratic coincidence, was the 1st in Texas in 3 years.

For all the attention it got, Mr. Cruz's case was like all capital punishment cases in one respect. At the heart of it was a terrible deed that could not be undone. Whatever Mr. Cruz's mental condition, he
understood that much. "I know I was wrong," he said in the recent interview. "There's nothing I can do to change it, bring that person back."

Cruz becomes the 28th condemned inmate to be put to death this year in Texas and the 226th overall since the state resumed capital punishment on Dec. 7, 1982.

Cruz becomes the 58th condemned inmate to be put to death this year in the USA and the 656th overall since America resumed executions on Jan. 17, 1977.

And Cruz becomes the 140th condemned inmate to be put to death during thetenure of Governor George W. Bush, who took office in January 1995.

(sources:  New York Times & Rick Halperin)

As President of the American Bar Association, I write to express the Association's strong opposition to the execution of anyone who has been determined to be mentally retarded, as defined by the American
Association on Mental Retardation in 1989 (the "Act"), at the time of the offense, sentencing or execution. Further, I write to express the Association's opposition to the execution of Oliver David Cruz, presently scheduled for August 9, 2000. I understand that counsel for Mr. Cruz has submitted a clemency petition to the Board of Pardons and Paroles. I am sending a similar letter to Governor George W. Bush.

The American Bar Association takes no position on the death penalty per se. Our opposition to Mr. Cruz's execution is based upon the Association's long-standing policy that the death penalty should not be imposed upon any person who is mentally retarded. It is our understanding that Mr. Cruz's mental capacity falls within the definition of mental retardation as set forth in the Act. I have been informed of the
following:

1. The issue of Mr. Cruz's mental retardation is uncontested;

2. School officials determined that he was mentally retarded early on in his schooling;

3. He had to repeat the 7th grade 3 times without improvement;

4. Mr. Cruz's comprehension abilities are very low, in the medium to severe range of mental retardation; and

5. One psychologist, Dr. Jack Ferrell, testified that Mr. Cruz was illiterate and that 99.96 percent of the population could read and comprehend better than he was able to do.

In 1989, after much research and deliberation, the ABA adopted its policy opposing the execution of mentally retarded persons, finding such a practice to be unacceptable in a civilized society, irrespective of their guilt or innocence. In 1997, the Association called for a moratorium on executions throughout the nation until certain defined policies and procedures could be ensured. The continued imposition of the death penalty on the mentally retarded was among the reasons for the moratorium.

In 1989, when the United States Supreme Court first considered the issue, it was not prepared to hold that execution of the mentally retarded was ``cruel and unusual punishment'' under the Eighth Amendment. The Court, however, acknowledged the role of societal consensus in determining whether or not a particular criminal penalty offends evolving standards of decency to the extent it is prohibited by the Eight Amendment. Penry v. Lynaugh, 492 U.S. 302, 335 (1989).

Since the Court's decision in Penry, an international consensus and a growing national movement against the execution of the mentally retarded has emerged. The United Nations Commission on Human Rights by resolution has called upon those nations that still permit capital punishment not to
impose the death penalty on any person suffering from any form of mental disorder or to execute any such person. When Penry was decided, only 3 jurisdictions prohibited the execution of the mentally retarded. 13 states presently have this ban. The federal death penalty statute also bars execution of the mentally retarded. Although 25 states still theoretically allow the execution of the mentally retarded, such executions are in fact quite rare. Bills to prohibit the execution of the mentally retarded have been introduced in several more states.

The ABA's view is shared by organizations in this country and around the globe with the greatest knowledge about people with mental retardation. The groups include the American Association on Mental Retardation (the oldest and largest interdisciplinary professional organization in the
field, which has opposed the execution of people with mental retardation since at least 1988); the Arc of the United States (a national, voluntary association of families of people with mental retardation); the
International Association for the Scientific Study of Intellectual Disabilities; and TASH (an international advocacy association of people with disabilities).

Compassionate consideration for the families of victims of violent crime is important in a civilized society. Just as important, however, the execution of persons who are mentally retarded serves no principled purpose and demeans our system of justice.

We urge you to use your power and influence to recommend to Governor Bush that he grant clemency to Oliver David Cruz.

Thank you for your consideration of this request.

(source:  American Bar Association)

As Oliver D. Cruz nears his date with the executioner Wednesday, he becomes more than another death-row statistic. He's the center of a debate about when people with diminished mental capabilities should pay the ultimate punishment.

Mr. Cruz, 33, sentenced to death for the 1989 brutal rape-murder of a young woman, has an IQ ranging from 64 to 76, depending on the tests used, roughly equivalent to the mental and emotional development of a 12-year-old, says his attorney, Jeff Pokorak. Prosecutors, however, stress that Mr. Cruz has been deemed "educable" and capable of knowing right from wrong.

And being held accountable for his crimes.

"It's a real act of cruelty to execute Cruz. Currently, 12 states outlaw execution of the mentally retarded. The Texas legislature nearly passed a similar law last session and will almost certainly do so next session," said Mr. Pokorak, co-director of clinical programs at St. Mary's University Law School in San Antonio. "Cruz could be the last mentally retarded person executed in Texas. That will be a horrible moment for the state and personally devastating if that happens."

Mr. Cruz's fate rests with a final appeal before the U.S. Supreme Court and with a bid for clemency before Gov. George W. Bush, the Republican presidential nominee.

These last-ditch appeals for mercy have rekindled the legislative debate over the legality of executing the mentally retarded and underscore an older argument about how to balance the legal rights of convicted killers vs. justice for their victims.

5 separate appeals, including one in 1994 before the U.S. Supreme Court, found no justification for halting Mr. Cruz's execution.

"Mr. Cruz voluntarily confessed. There is no new evidence and no legal flaws in his trial," said Bexar County District Attorney Susan B. Reed. "The jury heard evidence of Mr. Cruz's mental retardation and still found him guilty of a vicious rape and murder. That same jury unanimously agreed that death was the appropriate penalty. We see no reason why heshould not be executed."

In 1989, in a Texas case involving death-row inmate John Paul Penry, the U.S. Supreme Court ruled that execution of mentally retarded people does not violate the "cruel and unusual punishment" clause of the Eighth Amendment of the U.S. Constitution, as long as the jury receives instructions from the trial judge on how to consider the mitigating factors of the disability.

                                                Voluntary confession

The heart of the Cruz case deals more with the morality of the law, not the correctness of its procedures, Mr. Pokorak said. "We're asking whether it's right to execute the mentally retarded for their crimes. I
don't see how any culture can say that it is."

No one denies it was a vicious crime. Or that Mr. Cruz did it.

On a hot August night in 1989, Airman Kelly Donovan, 24, an Air Force linguist at Kelly Air Force Base, left work at 11 p.m. and took her nightly walk. Mr. Cruz and a friend, Jerry Daren Kemplin, who had been on a drinking and LSD binge, drove through the base. They stopped, forced the young woman into the car and drove to a lonely section of Loop 1604 west of town. There, while Mr. Kemplin stayed in the car, listening to the radio, Mr. Cruz repeatedly raped her.

Mr. Cruz then stabbed the young woman 20 times. Mr. Kemplin testified that Mr. Cruz said, "The last thing I need to do is go to jail for rape." They left her body alongside the road.

In the following days, Mr. Cruz told several people what he had done. When he heard that police were looking for him, he called the police and voluntarily offered a confession. He also gave blood and saliva samples, which tied him to the crime.

At trial, the jury heard evidence that Mr. Cruz had been tested in the 3rd grade at San Antonio's Edgewood School District with an IQ ranging from 64 to 76, marking him as mildly retarded but "educable." Police detectives who took Mr. Cruz's confession acknowledged that he couldn't
read and had trouble understanding words in the Miranda warning.

On Oct. 27, 1989, the jury returned a guilty verdict and sentenced Mr. Cruz to death. At Mr. Cruz's trial, the judge, in an effort to meet the requirements of the Penry decision, crafted a directive to the jury,
called "special instructions," on how to determine whether Mr. Cruz's retardation mitigated his actions. In subsequent appeals, the state found the judge's instructions adequate.

Last month, the federal 5th Circuit Court of Appeals said the instructions weren't enough. But the 5th Circuit wouldn't set aside the Cruz death sentence, saying his attorneys should have presented evidence
during trial to show how "the disability relates to the crime charged."

                                                Political perspective

The court ruling meant that the existence of Mr. Cruz's retardation alone was insufficient to let jurors determine whether it was a mitigating circumstance in the rape and murder of Airman Donovan. The justices, instead, said that there must be evidence that the disability was a more direct cause of the criminal act.

That creates an unfair burden on the defendant, Mr. Pokorak said, an argument that he has presented in Mr. Cruz's latest appeal to the U.S.Supreme Court - one that the attorney offers only a slim chance of
success.

In the overheated atmosphere of a presidential season, Mr. Bush already finds himself in the eye of national media coverage of the state's record-breaking run of executions. No one is counting on politics,
however, as the deciding factor in granting clemency.

"The political pressure cooker often means the case gets more exposure and a better hearing, which is helpful," Mr. Pokorak said.

District Attorney Reed likewise isn't concerned with the politics of clemency. "While the political atmosphere has heightened media interest in the case, I would not expect the governor to substitute one man's opinion for that of the jury," she said.

Mr. Bush has overseen 138 executions throughout his term and is preparing for his 3rd double execution Wednesday - Mr. Cruz and Brian Roberson, convicted in a Dallas County case. Both are scheduled to die by injection after 6 p.m., about an hour apart.

Mr. Bush can grant clemency only if he receives a favorable recommendation from the Texas Board of Pardons and Paroles. The governor also has the power to grant a 30-day reprieve.

If Mr. Bush's presidential campaign takes him out of the state, any action on clemency falls to the lieutenant governor, Rick Perry.

Nationwide, 34 mentally retarded offenders have been executed since the death penalty was reinstituted by the Supreme Court in 1976. 5 of those were in Texas, which resumed executions in 1982.

The American Association of Mental Retardation estimates that 4 % to 10 % of prison inmates are mentally retarded. By comparison, 1.5 % to 2.5 % of the general public is mentally retarded. Texas Department of Criminal Justice officials said they don't know how many of the 453 people on
death row have below normal IQs.

Mental retardation authorities define the disability as consisting of 3 components: significantly sub-average intellectual function, accompanying impairment of adaptive skills, and manifestation of the
disability before the age of 18.

                                              Seeking acceptance

A facet of the legal debate on mentally retarded criminals centers on what constitutes sub-average intelligence and how that affects an individual's ability to adapt to society - particularly to distinguish
right from wrong.

Like many mildly retarded people, Mr. Cruz has a deep need to be accepted as "normal," Mr. Pokorak said.

"He doesn't like being talked about as being retarded or different," Mr. Pokorak said. "He has difficulty understanding legal issues or what people are asking of him. But he pretends to understand. He knows he is on death row and that he is scheduled for execution. And he's remorseful for what he did. But he also talks about how he could work with kids or something once he's released from prison."

During a death-row interview with The New York Times, Mr. Cruz reiterated his remorse. "I know I was wrong," he told The Times. "I feel real bad about it. There's nothing I can do to change it, bring that person back. I want to make things right. Keep me locked up, but don't kill me. I know I could help people." He then bowed his head and wept.

District Attorney Reed, however, stresses that Mr. Cruz was able to function adequately in society. And that his confession shows he clearly knew right from wrong. "There is nothing to indicate from the record that he didn't have intent to kill that girl, or that the crimes weren't committed deliberately or that he was competent to stand trial," she said. "Not everyone in prison has a 130 IQ."

12 states - Arizona, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, New Mexico, New York, South Dakota, Tennessee and Washington - and the federal government, have passed laws banning the execution of the mentally retarded.

Barring a last-minute intervention by the courts or Texas Governor George W. Bush, a condemned
murderer said to have the mental capacity of a 12-year-old will be executed Wednesday evening.

Oliver David Cruz, 33, is scheduled to die by lethal injection for the 1988 rape and murder of Air
Force linguist Kelly Elizabeth Donovan. Psychology tests show Cruz has an IQ of between 64 and
76, a finding the state did not dispute at the time of his trial.

The pending execution has prompted a flurry of legal challenges, pleas for clemency and renewed
calls for legislation banning the execution of the mentally retarded. Bush, the Republican presidential
nominee, opposes a ban.

"The execution of persons who are mentally retarded serves no principled purpose and demeans our
system of justice," wrote Martha Barnett, president of the American Bar Association, in a letter to
Bush on Monday. "We urge you to use your power and influence to spare Mr. Cruz's life from
execution on August

Bush's run for the presidency has focused a brighter spotlight on the Texas death chamber, the most
active in the nation by far.

However, discussion of the death penalty has been muted on the campaign trail because Bush's
opponent, Democratic Vice President Al Gore, also supports capital punishment.

Bush will be campaigning in California when Cruz is scheduled to die, aides said. Acting in his place
is Republican Lieutenant Governor Rick Perry, who is expected to carry out Bush's wishes. The
governor has the power only to issue a one-time, 30-day delay.

Aides for both Perry and Bush said they would not likely make any statements until all legal
proceedings are exhausted. Cruz's lawyer, who argues that his client does not have the mental
capacity to understand his fate, has an appeal pending before the U.S. Supreme Court.

It is not the first time Cruz has appealed his conviction. Five appeals, including one in 1994 before
the U.S. Supreme, have been unsuccessful.

Cruz was sentenced to death for repeatedly raping Donovan and stabbing her 20 times. He later
confessed to the killing, while an accomplice who testified against Cruz was sentenced to 65 years in
prison.

During the trial, jurors were told that Cruz had been classified as mildly mentally retarded in high
school but was considered educable.'' Police testified that he could not read and was unable to fully
understand when authorities explained his rights to him at the time of arrest.

In a recent interview in The New York Times, Cruz again admitted to the killing but said he was high
on drugs at the time.

Prosecutors contend that, despite his low mental capacity, Cruz should still be given the ultimate
punishment for his crime.

"You have to look at whether someone understands what is acceptable behavior and what the
consequences for that behavior will be," said SanAntonio-area chief prosecutor Susan Reed, in an
interview with the Fort Worth Star-Telegram. "In this case, the jury and numerous appeals courts
decided that he did."

Twelve states ban executions of the mentally retarded, and several others are actively considering it.
But last year, Bush expressed opposition to such legislation, saying juries -- not lawmakers -- should
ultimately weigh the importance of a person's mental capacity.

"I like the law the way it is right now," he said.

HOUSTON (Reuters) - Texas, which leads the nation in capital punishment, was scheduled to execute two convicted murderers on Wednesday night, one of whom may be mentally retarded, officials said on Monday.

The executions could present another death penalty controversy for Texas Gov. George W. Bush (news - web sites), the Republican presidential candidate in the Nov. 7 election who is running as a ``compassionate conservative'' but has faced repeated criticism for his home state's many executions.

Unless the courts or Bush himself intervene, Brian Roberson, 36, and Oliver Cruz, 33, are set to die by lethal injection in consecutive executions at the state prison in Huntsville, Texas.

``We think it's a go for both of them,'' said Texas Department of Criminal Justice spokesman Larry Todd. ``We're preparing as we do for any execution.''

Even in Texas, multiple executions are rare and the question of whether mentally retarded people should be put to death has been discussed in the Texas Legislature. Thirteen states prohibit executing the retarded.

 Texas has executed 225 people since resuming capital punishment in 1982 after a national death penalty ban was lifted, but only twice in that time have two people been put to death on the same day. Two other U.S. states, Illinois and Arkansas, have performed multiple executions on one day during the same period.

Roberson was sentenced to die for the 1986 murder of two people during a Dallas burglary and Cruz for the rape and murder of a woman in San Antonio in 1988.

Their execution dates were set by separate judges and are the same day only by happenstance, Todd said.

Both men have appealed to the U.S. Supreme Court to stop their executions and have requested clemency from the Texas Board of Pardons and Paroles, said Heather Browne, spokeswoman for Texas Attorney General John Cornyn.

                                    Lawyer Says Killer Is Retarded

Cruz's attorney, Jeffrey Pokorak, told Reuters his client is mentally retarded because he scored less than 70 on an IQ test.

He said he hopes to delay Cruz's execution because he has been told by members of the Texas Legislature that they are likely to pass legislation next year banning the execution of retarded people.

``That's the terrible tragedy of this case. The law is going to prevent the execution of people like Cruz in six to eight months, so he would be the last retarded person to die under the old law,'' Pokorak said.

Last year, the legislature turned down a similar proposal. Bush took no stand on the issue, but is satisfied that ``current Texas law already contains protections to make sure that a person who's mentally incompetent isn't executed,'' said Bush spokesman Mike Jones.

 Bush could grant a 30-day reprieve in both cases, but Jones said he would not take action until all legal appeals had been exhausted. Bush has granted only one temporary reprieve, which came on June 1 when he gave convicted murderer Ricky McGinn a stay so DNA tests could be performed.

Since Bush took office in 1995, 138 people have been executed in Texas, the most recent coming on July 26.

In June, Bush came under political fire for the execution of Gary Graham, who was put to death amid doubts by some critics of the death penalty about his guilt in a 1981 murder. Bush did not intervene in the case, saying he believed Graham was guilty.

Should both executions go forward on Wednesday, Todd said they would be performed one after another about an hour apart, with Roberson going into the death chamber first because prison officials received his execution order first.

Oliver Cruz can barely read and write. He has an IQ of either 64 or 76, depending on the test. He failed Year Seven three times.

He was rejected by the army after failing the entrance exam three times and, unable to decipher
a job application, he did whatever menial work came his way.

Now, at 33, he has spent 12 years on death row in Livingston for the rape and murder of a 24-year-old woman, Kelly Donovan, who was stationed at the air force base in Cruz's hometown, San Antonio.

Cruz, who in an interview last week took full responsibility for his crime and expressed anguished remorse, is scheduled to die by lethal injection tomorrow.

He was in special education classes in school, and has been classified as intellectually disabled by psychologists for the defence. The prosecution did not dispute this at the trial.

Cruz awaits execution at a time when there is growing opposition across the United States to the
execution of people with intellectual disabilities.

Federal law, approved by former president Ronald Reagan, bars the execution of intellectually disabled people convicted in Federal courts.

Of the 38 states that permit capital punishment, 13 have laws that prohibit execution of the intellectually disabled.

While most Americans support the death penalty, state polls show that most of those supporters make an exception for people with intellectual disabilities, even in the fiercely pro-death penalty Texas.

The Texas Governor, Mr George W. Bush, who is the Republican Party presidential candidate, has opposed laws that would prohibit the execution of people with intellectual disabilities, a position that he still held, a spokeswoman, Ms Linda Edwards, said.

Mr Bush believed that the jury should consider all the evidence regarding mental impairment and decide whether a death sentence was appropriate, she said.

Legislation barring the execution of a defendant whose IQ is below 65 passed the Republican-dominated Texas Senate last year, but died in the House of Representatives.

In Florida, Governor Jeb Bush - who, like his uncle George, the former president, is a strong supporter of the death penalty - said in April that "people with clear mental retardation should not be
executed", and a spokesman said recently that Mr Jeb Bush still held that position.

The American Bar Association is opposed to executing the intellectually disabled and has written to Mr George W. Bush asking that he grant Cruz a reprieve.
 

Return to Texas Double Homicide Webpage

                 The CCADP offers free webpages to over 500 Death Row Prisoners
                                               Contact us for more information.
                                                  info@ccadp.org
            
                                                       "The Eyes Of The World Are Watching Now"