Here is Mr. Wilson's psychological report. It's the only report submitted in the case, and was written by a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an Mental Retardation specialist. Texas hasn't contested it or filed a different one. But they claim Mr Wilson is an exception to their mental retardation rules and must die.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court banned execution of the mentally retarded as contrary to the 8th Amendment. But it left the procedures for determining whether a defendant is mentally retarded up to the state. And Texas' procedures are wacky to the point of being fiction. They are called the "Briseno Factors" and they permit some persons with retardation to be executed, in violation of the Supreme Court's ruling.

Texas State Senator Rodney Ellis released this statement:

'We do not execute children in the state of Texas, therefore we should not execute those who have the mental capacity of a child. The ultimate penalty should be reserved for those that can clearly comprehend why they are going to die.'

Law Professor Paul Campos has this article in Salon opposing Mr. Wilson's execution. He also aptly describes Texecutions in general:

The state of Texas likes killing people, and it’s not terribly particular about whom it kills. In recent years Texas has executed people who were severely mentally ill, represented by frighteningly incompetent lawyers, and almost certainly innocent. The latest innovation in justice Texas-style is illustrated by the state’s plan to execute Marvin Wilson, a mentally retarded prisoner with an IQ of 61.

Here is Mr. Wilson's petition for writ of certiorari to the Supreme Court to stop the execution.

During all nine years of Atkins litigation, the State has never put on a single witness or introduced a single piece of evidence to contest the MR claim.

On the Briseño factors:

The Briseño factors specify, within the universe of inmates with MR, the subset that receive Atkins protection — they identify which claimants have the “level and degree of [MR] at which a consensus of Texas citizens” would prefer the death penalty imposed.

The Briseno factors are:

(1) whether those knowing the offender best during the developmental stage thought he was retarded and whether they acted consistent with that belief; (2) whether the offender thought about his plans or acted impulsively; (3) whether the offender’s conduct suggested leadership; (4) whether an offender’s responses to external stimuli were rational or whether they were merely socially inappropriate; (5) whether his responses to questions are coherent or are wandering; (6) whether the offender is capable of lying in his self -interest; and (7)whether the criminal offense required forethought, planning and complex execution.

What's wrong with them?

[T]he Briseño factors lack any scientific foundation, violate the basic diagnostic principle that adaptive strengths and limitations coexist, exclude inmates from Atkins coverage on the basis of MR-consistent behavior, and marginalize expert evaluation...[yet]courts invariably use them to deny relief to claimants with mild MR.

In addition, recently disclosed evidence from the DA's office indicates Wilson may not have been the shooter or known about the plan to kill the victim (a police informant.)

On June 18, 2012, the DA’s Office disclosed that it had information suggesting that Mr. Williams may indeed have been killed by gunshots in the early-morning hours of November 10, that Mr. Wilson was not a shooter, that he had planned only to participate in an assault, and that he was not otherwise a principal assailant.

The Texas trial court, acting sua sponte, convened a hearing on July 2. On July 6, the trial court issued an Order refusing to withdraw the execution date on the grounds that “it is not clear” that the newly discovered evidence “would definitely have been admissible at trial,” and that because Mr. Wilson was convicted as a co-party—there was not “clear and convincing evidence that no reasonable juror would have convicted him at trial in light of this newly[-]available evidence.” Order, Texas v. Wilson, No. 63940 (Jul. 6, 2012).

But that's what was used to sentence him to death:

In short, Mr. Wilson received his sentence under precisely the circumstances that make the capital punishment of offenders with MR problematic: he was one of multiple perpetrators, the eyewitness identification of the primary assailant shifted over time, the more mophisticated accomplice fingered Mr. Wilson as the leader, and evidence of Mr. Wilson’s “confession” came from the accomplice’s wife.

Atkins lists three clinical criteria for mental retardation: (1) significantly sub-average intellectual functioning (low FSIQ); (2) adaptive deficits; and (3) onset during the developmental period.

Wilson fits them all. He reads and writes at a second grade level. He failed in attempts to get a GED or vocational trade certificate. He could never pay bills or manage a bank account. He couldn't do basic tasks like cutting the grass or using a ladder. He can't dress himself properly or perform many basic living tasks. He has trouble distinguishing left from right.

But the State Court, when finally holding an Atkins hearing, ruled against him, finding he "functioned sufficiently in his younger years to hold jobs, get a driver’s license, marry and have a child."

The 5th Circuit upheld the state court's application of the Briseno factors as "not a unreasonable application of Atkins."

Wilson argues in his petition for cert:

One of the cardinal rules of MR diagnosis is that it must reflect typical functioning. See 2002 AAMR MANUAL 74-87. The Briseño factors generally require a court to ignore typical functioning and to instead focus almost entirely on the level of functioning that might be inferred from the criminal conduct adjudicated at the guilt phase of a capital proceeding.

...The entire point of Atkins, however, is that offenders with MR are often convicted of criminal behavior that is not indicative of their actual moral culpability: “Because [claimants with MR have impaired] reasoning, judgment, and control of their impulses,” they lack the “moral culpability that characterizes the most serious adult criminal conduct” and “their impairments can jeopardize the reliability and fairness of capital proceedings against” them. Atkins, 536 U.S. at 306-07.

Atkins observed that offenders with MR confess to roles in crimes they did not have, that they cannot effectively testify in their own defense, that “their demeanor may create an unwarranted impression of lack of remorse,” and that they are frequently unable “to make a persuasive showing of mitigation[.]” Id. at 320-21.

No other state applies Atkins like Texas:

The Briseño factors render Texas and the Fifth Circuit extreme outliers in Atkins adjudication. Atkins observed that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.”

Texas, however, has misread this passage as a license to exclude certain offenders with mild MR from Atkins coverage: “[W]e established guidelines in [Briseño] for determining whether a defendant had that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” Sosa, 364 S.W.3d at 891.

If we can't get Texas to secede from the nation, maybe someone can introduce a constitutional amendment to strip them of their electoral college votes in presidential elections until they comply, like most of us, with the norms and evolving standards of decency in a civilized society.

Texas Death Row information and statistics are available here.