December 18, 1995
 
 

 The Honorable Allen Place

Chairman, House Committee on Criminal Jurisprudence

Box 2910

Austin, TX 78768-5896

Dear Chairman Place:
 
 

The death penalty was intended for the most morally culpable persons in the worst murder cases. Out of the 24,000 murders that are committed annually, less than 1 percent are deemed blameworthy of execution. Among the criminal defendants few are sentenced to die.
 
 

Death penalties fail their purpose unless punishments are proportionate and the executions are examples that are most likely to deter crime. Condemned inmates who have severe mental illnesses and mental retardation, such as Emile Pierre Duhamel, have less moral culpability than mentally typical prisoners. Because of his diminished mental capacity, he would not likely be deterred from a criminal act by the threat of execution. Also the spectacle of Duhamel's execution is unlikely to deter a mentally typical person. A life sentence without parole for forty years would be a better match to his moral culpability than a death sentence.
 
 

Duhamel's pretrial and execution competency hearings, where standards differed for each legal determination, exemplify the procedural vacuum that precipitated his sentence to die on January 24, 1996. Condemned prisoners with mental disabilities like Emile Duhamel's have, are and will be caught in this procedural vacuum.
 
 

Addressing this vacuum, the Texas Court of Criminal Appeals challenged the legislature in Ex Parte Jordan in 1988 to resolve at the earliest opportunity five procedural issues on execution competency: (1) how possible incompetence is brought to the court's attention; (2) what fact finding procedures are necessary to determine competence; (3) what is the proper legal test for incompetence for execution; (4) upon a finding of incompetence, what treatment is necessitated and where such treatment is to take place; (5) how and upon what intervals the possibility of regained competency is brought to the court's attention. After more than seven years the Texas Legislature still has not resolved these important procedural issues. Among other states that have the death penalty, at least thirty have such procedures.
 
 

Duhamel's mental disabilities include paranoid schizophrenia and major depression with an IQ of 56 on the Wechsler scale, indicating serious mental retardation. His dual diagnosis compounds his mental disabilities. An Anglo, age 47, "white headed looking older than his years," he also has organic brain dysfunction, seizures, alcohol dependency and dementia. Since his incarceration, in July, 1984, he has deteriorated to often not controlling his bowels, being delusional, reclusive, and experiencing auditory hallucinations.
 
 

Growing up, Duhamel attended parochial school regularly and "tried very, very hard." He received conduct marks only. "He was like a little rabbit, scared to death of everything." His teachers held him back in the first and seventh grades and then socially promoted him. "They did not have a special education program, but if they did, he would have been a prime candidate." They held him back from high school because of worries "that he might be in some physical danger from the older kids if he was promoted to high school." "He could barely write his name" and "he never had his homework because he had no idea how to do it." Because…he was so timid, slow and did not fit in socially," his teachers gave him "special assignments." They also believed "he was emotionally disturbed in some way." When he was 16, the nuns gave him a certificate of attendance through the ninth grade and transferred him "home."
 
 

As an adult in Texas, he lived in the woods near a trailer camp. Also he was a patient in a mental hospital.
 
 

While there was no known eyewitness, Duhamel says he confessed in order "to bring out the real murderers (whom he witnessed)." He said "a police officer would testify on his behalf."
 
 

Over the past eleven years Duhamel's competency hearings have never adequately considered his dual diagnosis (mental illness with mental retardation) as a register of either his incompetence or his limited moral culpability. The consistent focus in all his hearings was his mental illness even though Dr. James Ray Hayes testified in 1988 that Duhamel's mental retardation "has and always will prevent him from understanding his crime and sentence." Not once in all the hearings for competency--to stand trial and to be executed--was the compounding effects of his dual diagnosis mentioned.
 
 

His competency determination processes were woefully inadequate and unfair. In 1984 Judge Darrell Hester appointed Dr. Jorge Cardenas to evaluate Duhamel for competency to stand trial and to assist his attorney in his defense. On first examination, Dr. Cardenas found Duhamel competent, without any ongoing "psychotic process." Five months later and prior to trial, Duhamel was shackled and taken to Dr. Cardenas' office. Dr Cardenas changed his evaluation, reporting to the court that Duhamel now talked to Jesus, argued with the devil, and suffered from schizophrenia reaction "which (would) probably develop into Schizophrenia Paranoid type." Cardenas maintained and testified to this same view before the jury.
 
 

The state answered that Duhamel had the capacity to communicate with his attorney about his defense but refused. Duhamel never communicated with his attorney. He repeatedly denied his appointed lawyer's presence and deluded that a non-existent lawyer was his attorney.
 
 

The state, which has the burden of proof on the question of Duhamel's competency to stand trial, argued that Duhamel "was faking his mental illness" to his attorney and offered no mental health testimony, but only the testimony of jail guards who stated that Duhamel "seemed fine to them." Two of the three guards testifying in March had not observed Duhamel since the prior December. On the basis of the guards testimony, the jury found Duhamel competent to stand trial.
 
 

Before Duhamel stood trial in 1986, he had deteriorated in jail for more than two years and he was untreated for mental illness for more than a year. At his trial, he was promptly convicted of capital murder, and sentenced to die. He transferred to Ellis I, death row. As a legally competent person, he entered the psychiatric unit and was treated with psychotropic medications.
 
 

Continuing mismanagement of Texas pretrial competency hearings negatively affects incarcerations, paroles, probation and executions of severely mentally disabled inmates. For example, inmates labeled competent who become eligible for parole hearings, may not be able to perform to the satisfaction of the Board of Pardons and Paroles because of their mental impoverishment. The Board cannot parole them unless they show improvement. They cannot show improvement when their disability hides under a label of competence. With the status quo, mentally disabled persons will continue to enter our penal processes and to be incarcerated in situations that only exacerbate the harmful effects of their illness and incapacity.
 
 

Duhamel's execution competency hearings did not have the attorney assistance standard that was required in pretrial determination. The legislature left out the section on execution competency when it rewrote Article 46.02 in 1975 and it has not "reenacted a more specific and directive update of the old statute." Hence in order to meet the standard for execution competency, Duhamel only needs to say these "magic words" to the examining physician: "I know I will be executed and I know the reasons why."
 
 

Judge Hester appointed Dr. Robert Collier in 1988 to evaluate Duhamel. Dr Collier found that Duhamel met the standard. He assessed Duhamel by a process of his choice and the court approved his finding.
 
 

The judge again appointed Dr. Collier in October 1995 to evaluate Duhamel. Dr. Collier didn't test Duhamel; rather "his evaluation consisted of approximately one hour of psychiatric interview, history taking, and mental status evaluation. He concluded that Duhamel "qualifies for these psychiatric diagnoses (Axis I, II, III)." He writes "it is my opinion that Emile Pierre Duhamel is competent to be executed and that Mr. Duhamel knows the facts of his impending execution and knows the reason for it."
 
 

On November 20, at 9:33 a.m., the Bailiff said the court was in session. Duhamel's hearing began. Neither counsel nor a mental health expert were appointed for Duhamel's defense. He was alone. Dr. Collier testified to his competence which was uncontested. Judge Hester approved Dr. Collier's evaluation, set the execution for December 27, which he later changed to January 24, excused the assisting attorney and closed the hearing at 9:47 a.m., fourteen minutes later.
 
 

The case of Emile Duhamel strikingly illustrates a compelling need for a legislative interim study on competency hearings as proposed by the Texas Planning Council for Developmental Disabilities and for the procedural safeguards to ensure reliable execution competency determinations. Also would you kindly support a request to the Governor to stay Duhamel's execution for a competency hearing that includes his counsel and mental health experts for his defense?
 
 

I would like to meet with you or your designee in January. Thank you.
 
 

Sincerely yours,
 
 

Genevieve T. Hearon
 
 

Enclosure
 
 

Cc: Governor George Bush

Lt. Governor Bob Bullock

House Speaker Pete Laney

Antonio Alvarado, President, Texas State Bar Association

Bill Wischkaemper, President, Association of Criminal Defense Lawyers