Amidst a flurry of appeals and paperwork, defense attorneys are pursuing multiple legal avenues to stop the execution of Timothy Keel, whom they allege to be mentally retarded. N.C. Gov. Mike Easley listened to arguments from the state and defense at a clemency hearing Wednesday.
Traditionally, the governor waits until all legal avenues have been exhausted before granting clemency, which means Easley's decision could come as late as moments before Friday's 2 a.m. scheduled execution. Easley has previously granted clemency in two cases.
"I came away [from the hearing] knowing that the governor will give a very thoughtful and careful decision," said defense lawyer Jay Ferguson. "I'm very optimistic."
Keel was sentenced to death 10 years ago for the 1990 murder of his father-in-law, John Simmons. The North Carolina Supreme Court decided last September to dismiss the stay on Keel's execution.
Keel's lawyers have filed petitions with the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court questioning the constitutionality of Keel's execution.
In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that the execution of mentally retarded persons violated the Eighth Amendment of the U.S. Constitution. Although the ruling referenced the American Psychiatric Association's established intellectual quotient range of 70-75 for classifying people as mentally retarded, the interpretation of mental retardation levels has largely been left to states. In North Carolina, a person must have an IQ of 70 or below to be legally classified as mentally retarded.
Prosecutors say Keel has an IQ of 87, but defense experts say his IQ is only slightly above 70. So far, no courts have granted a hearing based on the issue of mental capacity.
"The governor ought to join others who have called for a moratorium so that these kinds of issues can be decided," said Jim Coleman, senior associate dean for academics at Duke Law School. "If they permit Keel to be executed and the court later determines that the IQ can be as high as 75 they will have executed a person who has a constitutional right to live because he is mentally retarded."
Coleman said a 1996 federal statute, which was designed to streamline the legal proceedings in death penalty by devolving the responsibility for deciding some federal issues to state courts, is partly responsible for Keel's failure to obtain a federal hearing. Whereas death row convictees would have previously had the right to file a claim with a federal circuit court, now they can only file claims at the discretion of the court.
"Because [the mental retardation issue] comes up when Keel is under a death warrant it means everything has to be rushed," Coleman said. "In the past, the courts would have undoubtedly reviewed the issues he's raising about what the level of mental retardation is."
Aside from the mental retardation issue, the defense is following up on the question of an alternate juror who was alleged to have illegally taken part in deliberations that resulted in Keel's 1987 conviction of involuntary manslaughter of his infant son. The conviction made it possible for the prosecution to pursue the death penalty in 1993.
The state Court of Appeals granted no relief on this issue at a hearing Tuesday afternoon. Keel's defense is appealing the decision--a ruling on the appeal is expected sometime this morning.
"I was disappointed in the results of the hearing but I think Timmy's best chance for relief is going to be from the governor," Ferguson said.
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