Unequal justice: preserving the rights of the mentally retarded in the criminal justice system.

It can happen quickly." writes advocate Robert Perske. A brutal crime is committed, outraging an entire community. Local police, under pressure to solve the case, latch onto a suspect, perhaps someone tangentially related to the victim, someone seen as "peculiar" or "retarded" and considered by police to be "fringe" or "abnormal." The suspect is brought to a police station, persuaded to waive the right to remain silent and to have an attorney present, and signs a confession. Even though the suspect might subsequently recant, a jury, confronted with a signed confession, votes to convict.

Perske has made it his mission to defend people with mental disabilities whom he feels are being railroaded by the criminal justice system. Leigh Ann Reynolds, project associate at the National Arc (formerly the Association for Retarded Citizens), calls him "the only person, that I'm aware of, who's been tracking this problem on a national level." Perske has collected data on more than 100 cases of people with mental retardation who have been convicted of capital crimes. In some of these cases, the defendants have been convicted of crimes they did not commit; in others, while the defendants may have been involved in the crimes, they may have had no conception of the harm they were committing or were under the influence of a nondisabled career criminal. Either way, the bottom line for Perske is: Did that person receive equal justice? Whether guilty or innocent, did the system treat that person as other citizens are treated when charged with the same crime? Often the answer appears to be "no."

Take, for example, the case of Richard Lapointe, convicted of the 1987 rape and murder of his wife's eighty-eight-year-old grandmother, Bernice Martin. There was no physical evidence linking Lapointe to the crime. The sole basis of his conviction was a confession, written by the police, that Lapointe signed in the early morning hours of July 5, 1989, after a nine-and-a-half-hour interrogation. Lapointe waived his Miranda rights, but Perske doubts that he understood what this meant. Lapointe has Dandy-Walker syndrome, a congenital brain malformation affecting his ability to think abstractly, as well as his eyesight, his hearing in both ears, and his balance.

According to the detective in charge of the investigation. Lapointe was targeted as a suspect--a full two years after the crime--because he acted "strange," asking police officers he saw if they'd solved the case and if he was a suspect. "People who know him," comments Perske, "say that's just the way he is. He was concerned about what happened to his wife s grandmother and was friendly with the police who came into the places where he worked as a dishwasher." In addition, Lapointe's denial when asked if he had committed the murder was, according to the police, "passive,"instead of the "very strong affirmative objection you would expect.

Lapointe's style, however, has never been "affirmative." In school he was taunted by classmates as "Mr. Magoo" because of his thick glasses and bumbling manner. The diminutive, five-foot-four-inch Lapointe also uses a hearing aid and is incapable of strenuous activity because of a shunt surgically implanted into his skull to remove excess brain fluid. Whoever murdered Bernice Martin bound her tightly around the neck and wrists with strips of torn clothing, sexually assaulted her, stabbed her, and then set fire to her cottage apartment. Perske calls the crime "a raging, athletic murder," while Lapointe has been described as "short, chubby, weak, and awkward."

To obtain Lapointe's confession, police perpetrated what journalist Tom Condon, in an article for the Hartford Courant, calls "an elaborate ruse." Condon recounts how, on July 4, 1989, Lapointe was taken to the Manchester, Connecticut, police station for "a chat":

Two rooms in the station were festooned with props--pictures,

charts, lists, and diagrams--that portrayed

Lapointe as the killer. A chart said his fingerprints were

found on the knife used in the crime. Another linked him

to the crime through DNA testing. There was a list of

detectives [including "Detectives Friday and Cannon"]

who were on the "Bernice Martin Homicide Task Force."

None of this was true.

There were no fingerprints and no DNA evidence, while the "task force" consisted of one detective, Paul Lombardo, new to the case and eager to use his recent FBI training in "criminal profiles."

Most of us, brought into a police station for questioning about a murder, would ask to see an attorney. Certainly, we'd be skeptical of a homicide task force including Dragnet detectives Friday and Gannon. Lapointe, however, trusted authority figures and considered the police to be his friends. At any rate. his poor eyesight prevented him from seeing much of the placards. Told that there was conclusive evidence linking him to the murder, he asked if it were possible for someone to commit such a crime but not remember. He was told it was. After several hours, Lapointe signed a statement that read: "On March 8 I was responsible for Bernice Martin's death and it was an accident. My mind went blank." Afterward, Lapointe said he signed this confession in exchange for being allowed to use the bathroom. He retracted this first confession, but over the next several hours signed two more, each written by the police and each more detailed than the last.

"There is nothing illegal about the police lying to a suspect," says Perske. Indeed, Timothy J. Sugrue, executive assistant state's attorney for Connecticut, acknowledges that misleading suspects "is a common investigative technique." Nor is there any requirement that the police make video or audio tapes, or even keep written notes, when conducting an interrogation. Oddly enough, having obtained a confession from Lapointe, police allowed this supposed perpetrator of a brutal rape and murder to leave the station and return home to his disabled wife and small child. He wasn't arrested until late the next day.

Perske heard about the case from someone familiar with his work. "I got a call about somebody being railroaded in Manchester, Connecticut, which is my own state. So I called the public defender in charge of the case, read some of the early motions, and became convinced that it was very much like the other cases I'd observed. I showed up for the first day of the trial and stayed for forty-eight court days, watching it all transpire." At first, Perske was the only spectator sitting behind Lapointe on the left side of the courtroom. "Everybody else was sitting on the right side, behind the prosecutor," he said. "I suffered a lot of panic after the first week because the prosecution was asking for the death penalty, and it looked like they were going to kill this guy." He began making phone calls, "getting onto everybody's answering machine, saying you have to come and see what's happening here; you have to be a witness.

Perske and the others in the newly formed Friends of Richard Lapointe were hopeful that the jury would acquit. Instead, it found Lapointe guilty. "Basically, the jurors took the word of the police, that Ritchie knew what he was doing when he confessed," Perske said. "Juries tend to believe that no one would confess to a crime they didn't commit." Lapointe was sentenced to life in prison plus sixty years, with no possibility of parole.

Why would someone confess to a crime that someone else committed? Advocates point out that many people with mental retardation are taught to trust and obey authority figures: parents, teachers, and the police. Dick Sobsey, author of Violence and Abuse in the Lives of People with Disabilities describes how institution staff, for example, use behavior modification techniques to make residents easier to manage. According to Sobsey, the resulting "learned helplessness," in which compliance to authority becomes second nature, is one reason why people with cognitive and developmental disabilities are more at risk for sexual abuse and exploitation. Dennis Heath of People First, a national advocacy organization of people with mental disabilities, puts it another way "Under pressure, our people often knuckle under. They're generally not taught to stand up for their rights."

"Most of my clients confess, whether they did it or not, says Suzanne Lustig, director of the Developmentally Disabled Offenders Program in North Brunswick, New Jersey, a state-funded advocacy program that designs "personalized justice plans" for people with mental retardation who are convicted of a crime, as an alternative to serving time in prison. She says most of her clients are on the third-grade reading level and the fourth-grade math level. "The only thing they know how to write is their name," Lustig says, just enough to sign a confession or a waiver of their Miranda rights. "They want to confess, they want to make people happy. They're also good at sensing what it is that authority figures want from them and then providing it." Lustig and others maintain that this willingness to please. together with the leading manner in which some interrogations are conducted, can result in detailed confessions from people who are entirely innocent.

An example of this dynamic at work can be found in the transcript of the interrogation of David Vasquez, found in Perske's book, Unequal Justice: What Can Happen When Persons with Retardation or Other Developmental Disabilities Encounter the Criminal Justice System. Vasquez was picked up by police in Arlington, Virginia, on January 4, 1984, for questioning about the murder of a woman who had been raped in her home and then strangled with the cords of a Venetian blind:

Interrogator: Did she tell you to tie her hands behind her back?

Vasquez: Ah, if she did, I did.

Interrogator: Whatcha use?

Vasquez: The ropes?

Interrogator: No, not the ropes. Whatcha use'

Vasquez: Only my belt.

Interrogator: No, not your belt ... Remember cutting the Venetian blind

cords?

Vasquez: Ah, it's the same as rope.

Interrogator: Yeah.

Later, Vasquez is asked how he committed the murder. He starts to say that he stabbed the victim. The police interrogator. losing his temper, screams, "You hung her!" Vasquez replies, "What?" "You hung her!" the interrogator repeats. "Okay," says Vasquez, "so I hung her." Vasquez was convinced by his public defender to accept a plea bargain and was given a forty-year sentence for second-degree murder. He was pardoned in 1989--after being incarcerated for five years--when the real perpetrator was finally apprehended.

A further example is Johnny Lee Wilson. On April 18, the twenty-year-old Wilson, diagnosed with "organic brain damage and mental retardation, was brought into the police station in Aurora Missouri, for questioning about the murder of seventy-nine-year-old Pauline Martz. Unequal Justice contains portions of the transcript of a police interrogation which, unlike Richard Lapointe s, was taped:

Interrogator: You can swear to God or whoever you like,

that ain't going to get you out of trouble.

Wilson: Uh huh.

Interrogator: For you are in serious trouble right now.

Murder is what you're in. Murder! Premeditated, willful.

malicious, burning up an old lady in her house!

That's what you're in on Wilson. Ain't no sense kidding

around it!

Wilson: I wasn't near that house, though.

Interrogator: I think it's despicable!

Later in the questioning, the interrogator asks about the color of the victim s blouse:

Wilson: I'll say it was white, kind of white or bluish blouse.

Interrogator: Okay, how about bluish? I'll go for that.

Wilson: Yeah.

Interrogator: How about bluish-green, maybe.

Wilson: Yeah.

The questioning then turns to the way the victim was tied:

Wilson: I'm thinking.

Interrogator: What are some of the things that could be used?

Wilson: Handcuffs, I think.

Interrogator: No. No. Wrong guess. [The victim was tied

with duct tape.]

It's important to note here that, during trial, prosecutors often point to details in the defendant's description of the crime that "only the perpetrator could know" as evidence of the validity of the confession.

On April 30, 1987. Wilson appeared in court to plead guilty to first-degree murder

Judge Elliston: Why are you pleading guilty, Johnny?

Wilson: I don t know.

Elliston: You don't know why you're pleading guilty?

Wilson: Just for first-degree murder.

Elliston: Well, that's what you're pleading to, but why are

you wanting to enter the plea?

Wilson: I don t know....

Elliston: Do you know that the death penalty is a possibility

in this case'

Wilson: Yes.

Elliston: Do you want the death penalty"

Wilson: No.

Elliston: Do you want to avoid the death penalty'

Wilson: Yes.

Elliston: Are you admitting that you committed this murder?

Wilson: Yes.

On the basis of his "confession" and plea, Wilson was sentenced to life in prison without the possibility of parole. In 1991, convicted murderer Chris Brownfield, serving time in a Kansas prison, admitted that he and an accomplice had committed the murder for which Wilson was convicted. Nevertheless, motions to reopen the case were denied. Missouri Governor Mel Carnahan pardoned Wilson on September 29, 1995.

One factor contributing to these kinds of scenarios is the crushing isolation often endured by people with mental retardation or brain injury. Like Lapointe, they are often taunted as "retards" and "morons" and made the butt of cruel jokes. This leaves them vulnerable to those who pretend to be their friends. whether it be police detectives looking to snare a confession or criminals hoping to exploit them. For this reason, some of the cases Perske has investigated involve a developmentally disabled person who has been maneuvered into taking the blame for a nondisabled criminal mastermind. "The criminal befriends the person, and then involves them in their criminal activity." Perske says. "Then, when it comes time for charges and trials. the nondisabled criminal makes a deal with the prosecutor. agreeing to testify against the disabled defendant for a reduced sentence." An example of this would be the case of Jerome Bowden, sentenced to death for the 1976 murder of Kathryn Stryker. According to Perske, "The so-called normal accomplice really was the solo perpetrator, but he managed to bring in Jerome Bowden. Jamie Graves, the guy who fingered him, did not get the death penalty. I can name three or four more cases like that."

In their pursuit of a confession, the police in some instances are not above using threats to a suspect's family or friends--threats to which individuals with mental disabilities may be particularly vulnerable. Disabled parents, for example, because of the social prejudice against them, often have a heightened fear of losing custody of their children. "Ritchie told me," says Perske, "that the police said that if he didn't confess they'd take his kid away from him." This part of Lapointe's story is seemingly confirmed by a tape recording secretly made by police during an interrogation of his wife, Karen, which took place at their home while Lapointe was at the police station. "Richard is going to be arrested, okay?" says Detective Michael Morrissey to Karen Lapointe, who has cerebral palsy. Morrissey, like Lombardo, also lied to her about the existence of DNA evidence and fingerprints implicating her husband, saying, "I don't want that to happen to you, because you're going to have to deal with somebody else taking care of your son. Do you know that9" When Lapointe's family came to the station asking to see him, they were told his "interview" could not be interrupted.

Lapointe's public defender tried to convince the jury that his client's confession should not be taken at face value. Unfortunately, many jurors (as well as police, attorneys, and judges) have a limited understanding of mental disability. According to Timothy Sugrue, the trial record shows that Lapointe "has a normal range IQ [100 is considered "normal"; Lapointe scored 92]. There was no evidence produced that demonstrated that he suffered from any thought disorder or mental deficiency." Perske, Lustig, and others respond by saying that IQ scores are not a reliable measure of mental impairment, particularly not a person's ability to withstand psychological coercion.

"People think they know what mental retardation is," Lustig said, "but what they think is mental retardation is generally Down syndrome, where there are obvious physical characteristics." The vast majority of people with mental retardation have no discernible physical characteristics, nor is their demeanor obviously "retarded." According to Lustig, "Our biggest problem is ignorance, and getting [mentally disabled defendants] identified." In addition, even when the police and the courts know that a defendant is disabled, as in the Lapointe case, they may know little or nothing about the impact of that individual's particular disability. "We've learned a lot more about the effects of Dandy Walker since the trial," Perske says, knowledge that might have made a difference in the verdict. Unfortunately, such new evidence is irrelevant in any appeal, unless an entirely new trial is ordered.

Another complicating factor is that people with mental retardation will often go to great lengths to cover their difficulties in understanding and communicating, even denying that they have a disability. "Police officers don't know how to pick up on this," Lustig said. "Attorneys and judges don't know the right questions to ask. [People with mental retardation] don't want to tell anyone that they have mental retardation. There's a stigma attached."

Indeed, simply being seen as retarded (or mentally ill) is often all it takes to turn someone from a functioning member of the community into a "suspicious character." In Unequal Justice, Perske recalls an interview with a "patrolman fumed investigator" who described his job as keeping an eye "on the garbage of humanity"--the "fringe people." Perske writes that these turned out to be

any "strange-acting" people--usually retarded, or poor.

or ethnic, or any combination of the three. [The detective]

understood that "some of the better people" had

family members with retardation as well. He did not

doubt, however, that if they ever moved away from the

control of their families, they too would become part of

the criminal element in town.

But efforts to "pass" can have disastrous consequences. Jerome Bowden often denied that he was retarded. In his last conversation with his attorneys, Bowden told them, "I did the best I could" on the IQ test the state administered to determine whether he was competent to be executed. (At his trial, he testified that he signed a confession after being told it was the only way he could avoid the death penalty.) Bowden was sent to the Georgia electric chair on June 24, 1986. Asked for his final words, he told the assembled audience: "I am Jerome Bowden and I would like to say my execution is about to be carried out. I would like to thank the people of this institution. I hope that by my execution being carried out, it will bring some light to this thing that is wrong."

Perske is currently pressing for changes in the law to minimize the potential for the abuses he's seen. One recommendation is that all police interrogations be video taped, so that juries have access to the process of confession and not just a typed end-product. He also sees DNA testing, where possible, as a way of helping to ensure that only the guilty are punished. And both Perske and Lustig believe that police, attorneys, and judges need to be educated about mental disability.

"In every neighborhood there's a case like this," Perske said. "What I hope is that people will become involved, will show up at the courtroom, will organize into citizens' groups to ensure that the prosecution isn't browbeating someone into making a confession, and that we don't punish people who clearly have no understanding of the crime they committed or the punishment to which they may be subjected." To this end, Dennis Heath reports that People First will take up the Lapointe case in particular, and this entire issue in general, at the organization's next annual convention in November.

In the meantime, things do not look good for Richard Lapointe. In July 1996, the Connecticut Supreme Court rejected his appeal, and in November 1996 the U.S. Supreme Court refused even to hear it. The final hope of the Friends of Richard Lapointe is a habeas corpus suit that was filed in federal district court this past June.

"Rich has one bite of the apple on this," Perske said. "If this fails, I'm afraid we'll be visiting him in prison for the rest of our lives." Connecticut law does not permit the state's governor to grant pardons.

Fred Pelka is a freelance writer and the author of The ABC-CLIO Companion to the Disability Rights Movement. Those interested in finding out more about the Lapointe case and others like it can contact Robert Perske, 159 Hollow Tree Ridge Road, Darien, CT 06820; fax [phone].