• In 2002 the U.S. Supreme Court outlawed the execution of the mentally retarded, and there's compelling evidence that Michael Richard is mentally retarded [See Definition of Mental Retardation], but Mr. Richard is set to be executed on September 25, 2007 anyway. [more]
  
  
• All attorneys are prohibited from coercing witnesses. However, after the state's psychological expert provided under oath that Michael Richard is mentally retarded [See Definition of Mental Retardation], that same psychological expert changed his mind after what appeared to be coercion from the Harris County District Attorney's Office. [more]
  
  
• In 1996 the U.S. Federal Anti-Terrorism and Effective Death Penalty Act was passed. One of the things this law assures is that any person under sentence of death who wants to appeal into federal court will have assistance of counsel. Yet on May 15, 2007 Michael Richard's court appointed attorney was allowed to withdraw from Richard's case and no other attorney was appointed as replacement counsel. Michael Richard hasn't had an attorney since May 15, 2007 and he's set to be executed on September 25, 2007. [more]
  
  
• HOW TO HELP.

Definition of Mental Retardation: Generally, the definition of a person with mental retardation is someone who has significantly subaverage general intellectual functioning (defined as having an IQ of 70 or below), existing concurrently with significant limitations in adaptive functioning (defined as having significant limitations in two or more of the following adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure skills and work skills) both of which were manifested before the age of 18.

In 2002 the U.S. Supreme Court outlawed the execution of the mentally retarded, and there's compelling evidence that Michael Richard is mentally retarded [See Definition of Mental Retardation], but Mr. Richard is set to be executed on September 25, 2007 anyway.

Michael Richard was found guilty of the henious 1986 rape and murder of Marguerite Dixon and sentenced to death. Richard also stole two television sets and a van. In 1992 Richard's conviction was reversed. In 1995 Richard was tried a second time, again being convicted and sentenced to death. Prior to his first trial psychologist Dr. Jerome Brown diagnosed Michael Richard as mentally retarded. However, in 1995 mental retardation wasn't an issue regarding the death penalty.

In 2002 the U.S. Supreme Court outlawed the death penalty for the mentally retarded in Atkins v. Virginia. The U.S. Supreme Court ruled that the death penalty for the mentally retarded was unconstitutionally cruel and unusual punishment. The mentally retarded may still be convicted of capital murder. They are, however, exempt from execution.

Texas Death Row inmate Michael Wayne Richard still has a strong claim that he is mentally retarded. Dr. Jerome Brown (also the defense psychological expert on Mr. Richard's mental retardation appeal) swore that Mr. Richard is mentally retarded -- IQ 62, deficient in most of the ten adaptive skill areas, onset before age 18. However, after an evidentiary hearing on his mental retardation claim, the trial court (182nd District Court in Harris County, Judge Jeannine Barr presiding) recommended that Texas Court of Criminal Appeals rule that Michael Richard is not mentally retarded. On March 21, 2007 the Texas Court of Criminal Appeals accepted that recommendation.

After the Texas Court of Criminal Appeals denied Michael Wayne Richard state habeas Atkins relief on March 21, 2007, attoreny Leslie Ribnik filed a timely request for a Certificate of Appealability with the 5th Circuit. This was to ask permission to allow Michael Richard to present a full appeal on mental retardation to the federal courts. All that Michael Richard's attorney needed to show in order to be granted this permission was reliable evidence that Michael Richard may be mentally retarded. Mr. Ribnik didn't have to prove that Michael Richard was mentally retarted. Mr. Ribnik just needed to provide reliable evidence that Michael Richard may be mentally retarded.

However, on May 15, 2007 the U.S. Court of Appeals for the 5th Circuit denied Mr. Richard permission to file a successive habeas petition on his Atkins claim. That is, the 5th Circuit refused to allow Mr. Richard to file a full mental retardation appeal in the federal courts. This three judge 5th Circuit panel consisted of Edith Jones, Jerry Smith and James Dennis.

It reprehensible that they felt that a 62 IQ, deficit in most of the 10 adaptive skill areas and onset before age 18 didn't provide prima facie evidence of mental retardation. But it's even more reprehensible because the 5th Circuit allowed Texas Death Row inmate Kenneth Wayne Thomas (IQ 67, two adaptive behavior deficits, onset before age 18) permission to file a full mental retardation appeal in the federal courts.

The basic details Kenneth Wayne Thomas' Atkins appeal are: 

• On December 13, 2006 the Texas Court of Criminal Appeals denied Mr. Thomas state habeas relief on his Atkins claim.
• On March 30, 2007 the 5th Circuit granted Mr. Thomas a certificate of appealability to file a successive federal habeas application on his Atkins claim.
• Mr. Thomas’ state and federal Atkins claims were based on the professional evaluations of Dr. Gilda Kessner and Dr. Richard Garnett -- Mr. Thomas has an IQ of 67, two adaptive deficits (functional academics and social skills) and onset before 18.
• This three judge panel with the 5th Circuit consisted of Fortunato P. Benavides, Carl E. Stewart and W. Eugene Davis.

In sum, on March 30, 2007 5th Circuit Judges Fortunato P. Benavides, Carl E. Stewart and W. Eugene Davis ruled that a person professionally tested to have an IQ of 67, with two adaptive behavior deficits and onset before 18 is prima facie evidence of mental retardation, but on May 15, 2007 5th Circuit Judges Edith Jones, Jerry Smith and James Dennis rule that a person professionally tested to have an IQ of 62, with adaptive deficits in most of the 10 adaptive skill areas, and onset before 18 is not prima facie evidence of mental retardation.

This is absolutely unacceptable judical inconsistency.

The Harris County District Attorney's Office hired Dr. George Denkowski as their psychological expert and he performed a comprehensive psychological examintion of Michael Richard. Originally Dr. Denkowski swore that Mr. Richard was mentally retarded - IQ 64, deficient in 9 of the 10 adaptive skill areas, onset before age 18. [See definition of mental retardation.]

Clearly this was not the testimony the Harris County Assistant District Attorney Lynn Hardway wanted to hear, so she pressed Dr. Denkowski to reconsider his testimony. Dr. Denkowski apparently relented and now feels that Michael Richard is not mentally retarded, that Mr. Richard is not deficient in two or more adaptive skill areas.

The appearance of coersion is unmistakable.

Apparently Dr. Denkowski's change of mind was based on some TDCJ Polunsky Unit prison guard testimony that Dr. Denkowski hadn't considered when he'd previously evaluated Michael Richard. In addition to the prison guards' personal experiences with Mr. Richard and their layman opinions about mental retardation, this new evidence included a detailed itemized list of the property in Mr. Richard's Texas Death Row prison cell. That is, Mr. Richard's paperwork, books, magazines, a typewriter, a radio, etc.

Testimony from four fellow Texas Death Row inmates (Sheldon Jones, Williams Mason, Arthur Brown and Charles Mamou) provided that they helped Mr. Richard write his letters, read his mail, file grievances with the prison and fill out prison commissary forms. Apparently that was disregarded, but two telling pieces of evidence presented to the court on state mental retardation appeal are a generic love letter handwritten in an unknown person's hand, and a duplicate copy of that exact same generic letter written in Michael Richard's hand. [See original generic love letter.] [See Michael Richard's copy of the same letter.] Clearly, fellow Texas Death Row inmate testimony that Michael Richard got help writing letters to pen-pals is true and correct.

Houston attorney Leslie Ribnik was Mr. Richard's attorney of record. U.S. District Judge David Hittner appointed Mr. Ribnik on March 28, 2001. Sadly, Mr. Ribnik was diagnosed with Parkinson’s disease, intermediate stage, on August 3, 2006.

Thus, it's more than understandable that on December 29, 2006 Mr. Ribnik filed a motion with U.S. District Judge David Hittner to withdraw as Mr. Richard’s attorney. However, Judge Hittner ruled that he had no jurisdiction to make that decision and ordered Mr. Ribnik’s motion to withdraw from Mr. Richard’s case transferred to the 5th Circuit. The 5th Circuit docketed that motion on March 28, 2007, the same date in which Mr. Ribnik filed Mr. Richard’s motion for authorization to file a successive habeas petition on Atkins. In conjunction with the motion to withdraw, Mr. Ribnik also filed a motion to have attorney Jerome Godinich appointed in Mr. Ribnik’s place.

On May 15, 2007 -- in addition to denying Mr. Richard authorization to file a successive federal habeas application on Atkins -- the 5th Circuit also ruled on Mr. Ribnik's other two motions: 1) Mr. Ribnik was allowed to withdraw as attorney of record, and 2) appointment of successor counsel Jerome Godinich was ruled unnecessary. Per letter of the law, Michael Wayne Richard was not allowed to appeal the May 15, 2007 5th Circuit decision against him. Thus, without a right to appeal, apparently the 5th Circuit felt there was no need to appoint Michael Richard a new attorney. [See associated 5th Circuit Docket Sheet, May 15, 2007 docket entry.]

Admittedly, Federal statute 28 U.S. Code § 2244(b)(3)(B) specifically provides that "[a] motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals" and Federal statute 28 USC § 2244(b)(3)(E) further provides that "[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari."

However, two other U.S. Court of Appeals circuits have specifically concluded on their own motions that full circuit court review of a request for permission to file a second or successive 28 USC § 2254 habeas petition is appropriate despite 28 USC § 2244(b)(3)(E). [See In re Byrd, 269 F.3d 585, 585 (6th Cir. 2001) (en banc), and Thompson v. Calderon, 151 F.3d 918, 922 (9th Cir. 1998) (en banc).] Furthermore, one U.S. Court of Appeals circuit has concluded on its own motion that a three judge panel rehearing is appropriate despite 28 USC § 2244(b)(3)(E). See Triestman v. United States, 124 F.3d 361, 367 (2d Cir. 1997). Also, such emergency relief as Michael Wayne Richard requires may also be sought via Rule 60(b) of the Federal Rules of Civil Procedure.

In other words, even though federal statute 28 USC § 2244(b)(3)(E) provides that an application for a Certificate of Appealability on a successive habeas claim is not appealable, the 2nd, 6th and 9th Circuit Courts of Appeals have (admittedly, on their own motions) allowed and considered such appeals. Because of this precedent, Michael Wayne Richard’s attorney should have tried something to get the 5th Circuit to reconsider its May 15, 2007 decision to deny Mr. Richard authorization to file a successive federal habeas claim on Atkins.

But nothing was done, and the reason nothing was done is because the 5th Circuit allowed attorney Leslie Ribnik to withdraw as Mr. Richard’s attorney without replacement. Yes, it was understandable, even correct, that Mr. Ribnik was allowed to withdraw. But it was also wrong that the 5th Circuit refused to appoint Mr. Richard a competent replacement attorney.

In short, since May 15, 2007 Michael Wayne Richard hasn’t had an attorney. When Mr. Richard most needed a skilled attorney to navigate the tricky circumstances associated with bypassing the requirements of 28 USC 2244(b)(3)(E), the 5th Circuit allowed Leslie Ribnik leave without replacement and by so doing left a mentally retarded man alone to defend himself against the State of Texas.

Michael Wayne Richard should have had effective legal representation at all times.