A little more than two hours before he was scheduled to be put to death here, a convicted murderer was granted a stay of execution by a federal appeals court on Tuesday so the courts could review his claim that he is mentally disabled — a disability, his lawyers argued, that state agencies had long known and concealed.
The United States Court of Appeals for the Fifth Circuit in New Orleans granted the request from lawyers for Robert James Campbell, 41, who had been set to be the first inmate put to death in America since a botched execution in Oklahoma last month drew attention to the methods, drugs and secrecy surrounding lethal injections.
The court had refused to intervene in the execution based on Mr. Campbell’s lawyers’ contention that the state was withholding crucial evidence on the drug to be used. But it issued the stay on a second argument made by Mr. Campbell’s lawyers on what the law refers to as mental retardation.
“We have been presented with evidence that Campbell, who will soon be executed unless we intervene, may not constitutionally be executed,” wrote Judge James L. Dennis for the unanimous three-judge panel.
The Supreme Court has long banned the execution of those whom the law refers to as mentally retarded, and has said that an I.Q. of under “approximately 70” indicates retardation.
Mr. Campbell’s lawyers said that information uncovered in state files in recent weeks showed that he was ineligible for execution because of a low I.Q. They said state officials withheld the results of two I.Q. tests given to Mr. Campbell — a 68 when he was a child and a 71 shortly after he arrived on death row at the age of 19. Testing done last month on behalf of the defense produced a score of 69.
Mr. Campbell was convicted of the abduction, rape and murder of Alexandra Rendon in 1991. The Texas Court of Criminal Appeals last week refused Mr. Campbell’s challenge based on the disability claim; over the weekend his lawyers filed a request with the Fifth Circuit to allow a federal case to go forward.
The state, in a filing on Monday, argued that Mr. Campbell’s time to file an appeal — known as an Atkins claim because of the Supreme Court’s 2002 decision in the case Atkins v. Virginia — had long passed, and that “Campbell has provided no legitimate excuse, let alone compelling reason, to justify his waiting over twelve years since Atkins was announced long before seeking testing or presenting the evidence he now asserts.” Within the prison, the state argued, “Campbell was not seen as mentally retarded or as having subaverage intellectual functioning.”
The Fifth Circuit panel, in a tone that suggested unhappiness with the state’s actions, wrote: “It is regrettable that we are now reviewing evidence of intellectual disability at the eleventh hour before Campbell’s scheduled execution. However, from the record before us, it appears that we cannot fault Campbell or his attorneys, present or past, for the delay.”