Thank you for
being my Lord Jesus and Savior and I am ready to come home.
Mental Retardation and the Death Penalty
Dudley Sharp, Justice For All,
October 18, 2001
During Texas' last
legislative session, in the spring of 2001, supporters of HB236, a
bill to ban execution of the mentally retarded, held a public rally
at the capital in Austin and invoked the case of Mario Marquez,
executed in 1995, as one of those 6 cases and stated that Marquez
was exactly that kind of murderer which HB236 was designed to
protect. Supporters of that bill could not have provided a better
case for Texans to oppose this bill and for Governor Perry to veto
Marquez was angry that his wife was leaving him,
so, in retaliation, he murdered his wife's 14-year-old niece, Rachel
and his 18-year-old estranged wife, Rebecca. They were beaten and
raped, orally, anally and vaginally, then strangled to death.
Rebecca was sodomized with a large perfume bottle which was forced
into her anus. Blood loss from both victims indicated that they were
alive during these acts. Marquez then waited for his mother-in-law,
to return home, beat and sexually assaulted her -- then presented
the two brutalized bodies of the two girls to her -- as trophies for
There is little doubt but that he was also going
to murder his mother-in-law, but Marquez' continued assault on her
was interrupted and he fled from the scene.
Marquez's performance IQ was measured at 75 -- 16
points above the minimum number required to establish that arbitrary
"mental retardation" standard, using the plus or minus 10 point
variable. And Marquez's life and crimes, spanning many years, fully
support that Marquez knew exactly what he was doing.
When given the facts of specific crimes, like
Marquez's, many would agree with the jury -- that such mentally
competent, guilty capital murderers should face the death penalty,
as a sentencing option.
Texas Executes Man in Slaying Of His Niece
The New York Times
January 17, 1995
Texas early today put to
death a man who raped and strangled his 14-year-old
niece but whose lawyers said should be
spared because he is retarded.
The man, Mario Marquez,
36, died by injection just after midnight. A
sixth-grade dropout with an I.Q. of 65, he
was also accused of raping and strangling
his estranged wife in the attack but was
never tried for the crime.
Mr. Marquez's lawyers
argued that retarded people should not be
put to death. "The public in the country
overwhelmingly does not want mentally
retarded people to be executed," one lawyer,
Robert McGlasson, said. "We believe there is
plenty of evidence now to show that
evolution has come about."
Edwin Springer, who
prosecuted Mr. Marquez, argued that the
defendant was not "so mentally retarded he
didn't know right from wrong."
"He's a very dangerous
individual," Mr. Springer said.
The United States Supreme
Court rejected the appeal on Monday without
comment and without any recorded dissent.
In 1989, the Supreme
Court, in a 5-to-4 decision, said the
Constitution's ban on cruel and unusual
punishment does not prohibit the execution
of juveniles as young as 16 or adults with
the reasoning capacity of children.
At least four other
convicted killers who were considered
retarded or contended that they were
retarded have been put to death in recent
years in Texas, which has executed 86 men
Defense lawyers argued
that Mr. Marquez was beaten by a father who
thought he was "slow." Once abandoned to the
streets at age 12, he turned to sniffing
paint and taking drugs.
He was arrested in the
1984 slayings of his wife, Rebecca, 19, and
her niece, Rachel Gutierrez. Testimony
indicated that Mr. Marquez killed his
estranged wife because he believed she had
been unfaithful. The bodies were found at
the Gutierrez home in a San Antonio housing
project, where Mrs. Marquez was living with
Argument Escalates on Executing Retarded
By Raymond Bonnet - The New York Times
July 23, 2001
WASHINGTON, July 22 - Mario Marquez did not deny
raping and murdering his 18-year-old wife and her 14-year-old niece,
the crimes for which he was convicted in 1984 and executed 11 years
But on appeal, Mr. Marquez's lawyers presented
evidence that he was mentally retarded and suffered from severe
brain damage, the result of beatings by his father, with sticks,
whips and clubs. When he was 25, Mr. Marquez had difficulty counting
money and thought the five largest cities in the United States were
Montana, Oregon, Wisconsin, New York and New Orleans, according to a
test given to him by a state-appointed psychologist.
The State of Texas did not dispute any of this. A
Texas district court, in ruling on one of Mr. Marquez's appeals,
found that he was "a damaged child functioning in an adult life" and
that he was "mildly mentally retarded," with an intelligence
quotient of 65 to 70, compared with a normal I.Q. of about 100.
Mr. Marquez was one of six retarded inmates
executed since 1990 by Texas, according to the Death Penalty Information
Center, a nonprofit organization in Washington. Alabama, Florida,
Louisiana and Virginia each executed four retarded inmates and South
Carolina executed three, according to the center. In all, the center
lists 35 such cases in 12 states.
The debate about whether any mentally retarded
person should be executed has intensified recently, as state
governments and the Supreme Court are addressing the issue.
In June, Gov. Rick Perry of Texas went against
the trend in other states when he vetoed a bill that would have
barred the execution of the mentally retarded. Mr. Perry denied that
Texas had executed anyone who was mentally retarded.
This month, when he signed legislation that
prohibits the execution of the mentally retarded, Gov. Bob Holden of
Missouri said, "I realize this is now a national issue since the
governor of Texas refused to sign a similar bill, but I believe this
is the right thing to do." Two weeks later, Connecticut
enacted a similar law.
Of the 38 states with the death penalty, 17
prohibit the execution of the mentally retarded, as do the federal
government and the District of Columbia.
In the fall, the Supreme Court will hear
arguments from the lawyers who say that executing someone who is
mentally retarded is cruel and unusual punishment, in violation of
the Eighth Amendment. The death row inmate in the case is Ernest P.
McCarver, who was convicted in North Carolina for the murder of a
fellow cafeteria worker. Mr. McCarver has an I.Q. of 67. In general
terms, people are considered mentally retarded if they have I.Q.'s
below 70, have difficulty performing everyday tasks and have shown
signs of the condition before age 18.
In 1989, when only two states barred the
execution of the retarded, the Supreme Court ruled, in the case of
Johnny Paul Penry, a Texas death row inmate whose I.Q. is 51 to 63,
that the Eighth Amendment does not proscribe execution of the
mentally retarded. But the court said procedural flaws in Mr.
Penry's case precluded his execution, and this year, after he was
sentenced to death again, the court again spared him, ruling that
the jury had not been properly instructed on how to consider the
evidence of Mr. Penry's retardation when deciding on the sentence.
One month after the 1989 decision in the Penry
case, Alabama executed Horace Dunkins, who had been convicted of
raping and murdering a 26-year-old mother of four. Mr. Dunkins had
an I.Q. of 69 and the reasoning skills of a 12-year-old, but this
evidence was never presented to a jury.
After one juror learned of it later, she signed an affidavit saying
she never would have voted for the death penalty had she known of Mr.
Dunkins's mental retardation.
The first state to pass a law to protect the
mentally retarded was Georgia, largely because of a public outcry
following the execution in 1988 of Jerome Bowden, who was convicted
of robbing and killing a 55-year old woman and severely beating her
mother. Mr. Bowden's school records showed he had an I.Q. of 59. As
an adult he could not count to 10, and he worked mopping floors at
Goodwill Industries, in a program for the mentally retarded.
At trial, Mr. Bowden's lawyers presented none of
the evidence of his mental retardation to the jury. When his
appellate lawyers, who found the school records and other evidence
of retardation, tried to raise the issue in federal court, they were
barred from doing so, because the issue had not been
raised during the trial.
In rejecting Mr. Bowden's appeal for clemency,
the Georgia Board of Pardons and Paroles said he "knew right from
wrong." That is often the standard that officials give when they
assert that no mentally retarded person has been executed in their
states. Governor Perry of Texas said the six inmates executed in his
state who experts say were mentally retarded were not because they "knew
what they were doing was wrong."
But this is confusing two tests of a defendant's
mental state. Whether a defendant knows right from wrong is the test
for criminal insanity - a defendant who does not know right from
wrong may be found not guilty by reason of insanity. Most mentally
retarded people are not insane, and they know right from wrong. In
states that prohibit the execution of the mentally retarded, the
question of whether a person is mentally retarded is raised in the
sentencing phase of the trial, after the defendant has been found
Although there is no question of his sanity, Mr.
Bowden's appellate lawyers say there is a good chance he was
An accomplice received a life sentence in
exchange for testifying against Mr. Bowden. Initially, Mr. Bowden
denied having killed the woman, saying his friend had done it. But
then the police brought a document to him in his cell. He could not
read it. But he signed it. It was a confession.
Confessions by a person who is mentally retarded
are highly problematic, mental health experts say, because retarded
people often are susceptible to suggestion and eager to please the
"You can talk them into things," said Timothy
Derning, a psychologist who has been an expert witness in capital
cases around the country. "They may know right from wrong, but they
don't trust their own opinions. For this reason, they often confess."
The execution of Mr. Bowden, in 1988, was "such a
hideous occurrence that it shamed the Legislature into passing the
retardation law," said August Siemon, an Atlanta lawyer who
represented Mr. Bowden in his appeals. But it is not a very
satisfactory law from the view of defendants who are mentally
retarded, Mr. Siemon said, because it requires them to prove their
retardation beyond a reasonable doubt.
Most of the states that have laws banning the
execution of the mentally retarded, including New York, only require
defendants to prove their condition by a "preponderance of the
The law in Arizona, which the governor signed in
April, requires the court to appoint a psychologist to examine a
defendant in a capital case, and if the defendant's I.Q. is below
75, then further testing by psychologists is required. Ultimately,
the judge, not the jury, decides if a defendant is mentally retarded.
In 1996, Arizona executed Luis Mata, who was
convicted of rape and murder. He had been born with water on the
brain, and he fractured his skull when he was 6. He had an I.Q. of
between 65 and 70, and as an adult he could only count on his
fingers. None of this evidence was presented to the
jury, and years later, when the prosecutor learned of it, he said he
was "shocked and upset."
In an affidavit, the prosecutor, Michael Donovan,
said that had he been aware of the evidence of Mr. Mata's mental
retardation, "I would not have requested or pursued a death sentence."
Outrage follows execution of
Mario Marquez in Texas
By Allen Harris
"I do want
to say that I am not responsible for all that has happened in my
life. I am truly sorry and I am paying with my life."
Those were the last words of Mario Marquez before he was put to
death on January 17 at the end of 36 years of misery, torture and
They included a declaration of love
for his two brothers who were witnessing his execution on Texas'
lethal injection machine. Marquez also expressed his forgiveness for
"those who brought me here tonight."
exhaled deeply and died shortly after midnight. One of the witnesses
to the state-sponsored murder was Ted Koppel of the ABC News program
Marquez became the second person to
be executed in Texas in 1995 and the 87th in 13 years. Texas killed
him knowing fully that he was retarded. Texas has executed more
people than any other state.
There are 19 men
scheduled for execution between now and June 1.
Outraged reactions came from many quarters.
executed a five-year-old child last night," said Maria Elena
Castellanos of the Binational Network Against the Death Penalty
(Mexico-USA) to the People's Tribune later that morning.
"We are appalled that Texas is about to execute Mario Marquez, who
is mentally retarded, severely brain damaged and the victim of child
abuse so severe that it was child torture," said Jimmy Dunne of the
Death Penalty Education Center late on January 16. "Has Texas no
compassion, no humanity?"
Marquez' lawyer, Robert
L. McGlasson, said on "Nightline" January 17 that the death penalty
is not being used against the Ted Bundys of society, but against
whoever the state decides to kill.
is carrying out a much more cold-blooded, premeditated murder" than
any that the accused were being put to death for, said Castellanos.
She said that the main goal of Texas is not punishment and
retribution, but genocide and repression against a rising class of
Texans and Americans crushed by poverty and forced to fight for
Marta Glass, a leading death
penalty abolitionist in Texas, told the People's Tribune:
"The Marquez case was an absolute tragedy all around. He was born
retarded and absolutely tortured as a child and the state of Texas
executed him to put a cap on a hard life."
everyone of conscience to appeal to Texas politicians by fax,
telephone and show that we're mad.
holds this country up as the moral leader of the world and yet there
is no atrocity that you can name that's taking place in a Third
World country that is not taking place in the United States of
America," said Glass.
As one form of protest,
"If anyone has plans to visit
Texas or do business, we want you to write the governor and tell
them you're canceling your trip and canceling your business and are
doing it because of the death penalty. Say that you will not buy
Texas products as long as you continue this outrage."
The execution of Mario Marquez:
An american tragedy
Robert L. Mcglasson
[Editor's note: Below we
reprint a statement issued by the attorney for Mario Marquez. The
statement was sent to us just days before Marquez was executed in
Texas on January 17.]
Mario Marquez is a mentally
retarded, severely brain-damaged, illiterate Hispanic man scheduled
to be executed by the state of Texas on January 17, 1995. All
parties involved in the case agree as to Mr. Marquez' mental
condition: indeed, the San Antonio court in which he was tried and
sentenced to death found as fact that Mr. Marquez is mentally
retarded and brain-damaged. The only dispute concerns whether Mario
Marquez, a man with the emotional and intellectual functioning of a
five-year-old child, should be put to death.
Marquez' mental impairments are not the only problems he has had in
life. Although the jury that sentenced him to die had no information
about his mental problems or his past, it is now clear that Mr.
Marquez' seemingly inexplicable conduct in this offense was rooted
in violent fits of torture meted out to him by his own father
routinely since infancy.
Mr. Marquez was convicted
of the murder of his niece during an outburst of jealous anger
toward his wife, who was also killed during the incident. Throughout
his childhood, Mario's father beat him mercilessly, using boards,
sticks, and fists. Occasionally, he whipped him with a horsewhip.
And on several occasions, his father bound his hands and legs and
hung him from a pole or tree and horsewhipped him until he was
This torture was a daily experience
for Mario. It appears the father's horrendous conduct toward Mario
was prompted by the fact that Mario was "slower" than the other
children, a fact the significance of which was lost on this poor,
uneducated family: Mario was singled out among the other 16 children
in his family for his father's wrath because of his mental
Despite his deficits, Mario
contributed as best he could to the family's meager livelihood. From
before he was born and throughout his childhood, the family worked
as migrant farm laborers picking cotton and other crops throughout
the southwestern part of the United States. Mario worked in the
fields himself from the time he was a small child.
When he was 12 years old, Mario's parents separated and abandoned
him. For the remainder of his childhood, from the age of 12 on,
Mario was left to raise himself. He had no parenting or adult
supervision of any kind. Mario lived in an abandoned house during
this time. For at least a year after his parents separated and left
him, Mario was required to take care of several younger children as
well as himself. At some point, local county authorities came to the
house and retrieved the other children;
inexplicably, they left Mario alone to fend for himself, without
adult care or supervision of any kind.
father's ritual horsewhippings, hangings and beatings, which
frequently left Mario unconscious, not only permanently arrested his
emotional development; they also severely damaged Mario's cerebral
cortex. Contributing to the severe brain damage was Mario's
addiction to sniffing spray paint, which began soon after he was
abandoned by his parents at age 12. This addiction acted as a
psychological anesthetic for Mario's desperate situation.
As a result of his mental retardation, brain damage, and arrested
emotional development stemming from severe childhood trauma, Mario
Marquez has the emotional and intellectual maturity of a five-year-old. His mental deficiencies rendered him incapable of
exercising judgment and learning from past mistakes and behaviors,
and impaired his control over strong emotions, especially in
The jury that sentenced
Mario Marquez to die knew nothing about his background or character
and virtually nothing about why the crime was committed.
At the time of his trial, his attorneys were faced with an
impossible Catch-22 situation: They could either present this
information to the jury, and under the existing Texas capital
sentencing statute (which was later found unconstitutional by the
U.S. Supreme Court) guarantee a finding of "future dangerousness"
(which automatically results in a death sentence), or they could
fail to present the information and leave the jury with no
understanding of who Mario was or why he could have committed the
violent offenses he was convicted of. The trial attorneys chose the
latter, and the jury was left with no reason to spare his life.
Appeals courts have refused to consider any of the above information
as relevant to the legal claim that Mario should be allowed to have
a jury consider this information before he is executed.
Instead, the courts have ruled that, because the trial attorneys
failed to present this information at trial, no reviewing tribunal
should consider it either. In short, Mario Marquez is about to die
despite the fact that no tribunal or body with sentencing authority
has ever considered his mental retardation, his severe
childhood abuse, his other intellectual impairments, or any of the
other facts mentioned above in deciding his appropriate punishment.
Citizens of the state of Texas, consistent with national polls,
overwhelmingly disfavor the execution of the mentally retarded. A
1989 independent poll found that over 70 percent of Texans were
against the execution of the mentally retarded. Consistent with
public opinion, many states, such as Georgia, Arkansas, Tennessee
and Kentucky now prohibit the execution of the mentally retarded.
The Texas legislature has yet to pass a bill prohibiting the
execution of the mentally retarded, despite substantial public
support for such a law.
From Nightline Jan. 17,
KOPPEL: It's five
minutes before midnight when the witnesses to the
Marquez execution are escorted into a holding room of an
imposing old building that is used now as a prison-processing
center. There are two kinds of witnesses, those who have
seen an execution before, and those who have not. Among
our group, several of us are first-timers. Three of
those are already inside. Two are brothers of the
condemned man, the third is his lawyer.
As the witnesses are searched - more
for hidden microphones than for weapons, one of the
officers tells me - as we're being searched, the
condemned, Mario Marquez, is having a needle inserted
into his right forearm, inside the actual execution
chamber, he is strapped to a gurney, straps across his
chest and waist, thighs and shins, another strap around
each ankle, both wrists strapped to boards that stick
out on either side of the gurney.
Texas law requires that executions be
carried out on the specified day, but before the hour of
sunrise. After midnight, then, but before dawn. The
family members and the lawyer have been kept apart from
the reporters and other witnesses, but when word comes
that Marquez has been secured on the gurney and that the
intravenous tube has been attached to the needle in his
arm, the witnesses are summoned to the death use.
Marquez is lying on his back, a
microphone suspended over his head so that his final
words can be heard in the observation room, where we
stand. We're just a few feet away, separated by a sheet
of glass. When he tilts his head to the right, Marquez
can see his brothers, arms draped around one another,
and next to them, his lawyer.
Inside the execution chamber, the
warden stands near the head of the condemned; the prison
chaplain stands by his feet. The executioners - there
are three of them - who will release a mixture of three
chemicals into the IV, are invisible behind one-way
Much has been made of the fact that
Marquez is mildly retarded, with the mind of a seven
year old, but his final words are composed and organized.
He apologizes to his brothers for the pain he has caused
them and the family. He apologizes to the family of the
victims. 'I hold nothing against anyone,' He says, 'not
even the prosecutors. I just want to come home to Him.
Thank you, Lord Jesus.'
With that, the signal is given to the
executioners. Marquez released a short explosion of
breath, like an involuntary cough. That was it. That was
all there was to be seen. The brothers wept softly. The
attorney, Robert McGlasson, looked crushed. Inside the
chamber, there was no movement for several minutes. Then
a doctor examined the body and at 12:21 am, pronounced
Mario Marquez dead.
Compared to the death that he
inflicted on his victims, Marquez dies painlessly and,
apparently, at peace with himself and his god. Life in
prison seems a far more devastating punishment than this
relatively tranquil death.
As we left the death house on the way
back to our own lives, there was absolute silence. If I
had been expecting a moment of revelation, it did not
James A. Collins, Director,
Department of Criminal Justice,
Institutional Division, et al.,respondents-appellees
United States Court
of Appeals, Fifth Circuit.
Jan. 10, 1994
Appeal from the
United States District Court for the
Western District of
HIGGINBOTHAM, SMITH, and DeMOSS,
HIGGINBOTHAM, Circuit Judge:
In his first federal habeas
Marquez urges that his
conviction of capital murder and
sentence of death imposed by a
jury must be set aside for four
constitutional errors. He first
contends that he has been denied
due process and a fundamentally
fair trial because he was
handcuffed behind his back and
forced to wear leg irons during
the sentencing phase of his
trial, arguing that the district
court failed to hold a required
hearing and that there was no
justification for the restraints.
Marquez urges that his
trial counsel was precluded from
presenting mitigating evidence
by the structure of the
capital sentence jury questions.
urges that the jury was
precluded from considering
mitigating evidence contrary to
Penry v. Lynaugh, 492 U.S. 302,
109 S.Ct. 2934, 106 L.Ed.2d 256
Finally, he contends that the
trial judge allowed the jury to
consider prior unadjudicated
offenses during the sentencing
phase of his trial without
requiring that the jury find
that the state had proven their
factual basis beyond a
reasonable doubt, denying his
rights under the Fifth, Eighth,
and Fourteenth Amendments.
Court of Criminal Appeals on
direct appeal rejected
contentions regarding the trial
restraints, and we reject his
contentions for essentially the
Marquez v. State, 725 S.W.2d
217, 226-231 (Tex.Crim.App.,
cert. denied, 484 U.S. 872, 108
S.Ct. 201, 98 L.Ed.2d 152
(1987). We agree with
that the appearance of a
defendant in shackles and
handcuffs before a jury in a
capital case requires careful
scrutiny. Shackling carries the
message that the state and the
judge think the defendant is
dangerous, even in the courtroom.
It is not that shackling signals
the prosecutor's opinion--indeed,
there is nothing subtle about
the prosecutor's view. A jury
knows and understands that. It
is obvious that an accused does
not enjoy unfettered freedom and
may in fact not be on bail. It
follows that because an accused
is led away each day does not
unduly tax his claim of
Apart from the risk of prejudice
to the defendant, the indecorous
appearance of a shackled
defendant in an American trial
demands close scrutiny of the
practice. Solemnity and that
indefinable but knowable
ambiance of evenhanded judicial
disinterest and respect for the
dignity of individuals are
components of a fair trial.
Rules will not alone create them
but rules can maintain the
conditions in which they
When the complained of restraint
comes only in the sentencing
phase of a capital charge, a
jury has just convicted of a
violent crime--so the risk of
prejudice is lessened from the
risk of such events during the
guilt phase. At the same time,
the defendant's life turns on
the same jury's answer to the
question of future dangerousness,
so the risk, although less, is
not eliminated. Restraint at
trial may carry a message that a
defendant continues to be
On the other hand, shackling a
defendant may be necessary to
preserve the dignity of the
trial and to secure the safety
of its participants. It is
immediately apparent that any
rule that would accommodate
these competing interests rests
on the word "necessary". The
required scrutiny must balance
the state's interest of safety
and decorum against these
concerns. Simply put, a
defendant must not be shackled
before his jury unless the
restraint is necessary to
protect the safety of the trial
participants or the sanctity of
the trial itself.
We need not detail the images
conjured by the range of
restraints of a defendant in the
courtroom to conclude that the
threats to a fair trial posed by
visible restraints are
sufficiently large and
sufficiently likely that due
process secures to the defendant
a right to contest their
necessity. Elledge v. Dugger,
823 F.2d 1439, 1451-52 (11th
Cir.1987), cert. denied, 485
U.S. 1014, 108 S.Ct. 1487, 99
L.Ed.2d 715 (1988); Zygadlo v.
Wainwright, 720 F.2d 1221,
1223-24 (11th Cir.1983), cert.
denied, 466 U.S. 941, 104 S.Ct.
1921, 80 L.Ed.2d 468 (1984).
The process due must reflect the
inherent case-specific character
of the trial court's decision to
restrain a defendant and the
reality that the issue is
usually collateral to the trial
itself. Relatedly, because the
trial judge is uniquely situated
to make this judgment call he
must be given considerable
discretion. Given this
discretion, it is not a question
of whether, looking back, lesser
restraints might have been
adequate, although that is
Rather, it is a question of
whether it was reasonable to
conclude at the time that the
restraint was necessary. Put
another way, necessity does not
here trigger a type of "least
means" analysis. That in
retrospect some lesser restraint
might have sufficed is not
determinative. The trial judge
must only have acted reasonably
in responding to the scene
before him using no more
restraint than appeared
Finally, in this federal habeas
context we will not upset a
state trial judge's decision
absent a clear abuse of
discretion. In a practical sense,
our review is analogous to
review of a state trial judge's
ruling on a Witherspoon
objection. See Wainwright v.
Witt, 469 U.S. 412, 426-30, 105
S.Ct. 844, 854, 83 L.Ed.2d 841
Court of Criminal Appeals
described the events leading to
Marquez as follows:
[D]uring the afternoon session
of the first day of the
punishment phase, the trial
judge ordered that appellant be
handcuffed and shackled for the
remainder of the trial. The
judge made the following
findings as justification for
the order on November 26, 1984,
just prior to instructing the
jury on punishment.
THE COURT: ... I will go ahead
and make my findings of fact at
this time. The defendant has
been found guilty of choking the
complainant to death. At the
same time he choked his former
wife to death. The defendant
while in jail has carried deadly
weapons on his person. The
Defendant while in jail stabbed
a fellow inmate with a ballpoint
pen. The Defendant while in jail
choked a fellow prisoner. In
1983 the Defendant attempted to
murder a uniformed officer
driving a marked autombiles
[sic] while trying to evade
arrest for four burglaries. The
Defendant endangered the lives
of many innocent people while
trying to evade arrest by
driving on the wrong side of the
found guilty of capital murder
while being transferred from the
courtroom the Defendant attacked
a television cameraman by
knocking his television camera
to the floor and on the same
occasion, spit on another
cameraman or spit on a camera.
In fact, since being found
guilty of capital murder the
Defendant threatened prosecutor
Ed Garcia in the courtroom.
on numerous occasions since
being found guilty of capital
murder has threatened to run and
cause the officers to have to
shoot him and kill him. Unless
his legs are chained there is a
danger he will do so.
is young, powerful and very
quick and there is a grave
danger he might grab the
firearms of an officer and kill
officers of the court and
onlookers unless he is kept in
May I add something to the
court's findings, Your Honor?
I believe that the Court was
correct that the Defendant did
have the leg brace on at the
time that he assaulted the
That failed to restrain him from
assaulting a cameraman who was
anywhere from three to five feet
away and while counsel for
Defendant has frequently
referred to the situation as
being a circus atmosphere, the
court finds that no such
atmosphere has existed either in
the courtroom or in the hall
except that which was brought on
by the Defendant himself when he
attacked the cameraman.
In fact, two
disputes took place in the hall
and the court immediately
removed people that [sic]
engaged the defendant in an
argument. And there has been
absolutely no circus atmosphere
tolerated and none will be
tolerated. All right. Anything
Yes. I believe that the
Defendant has told the court
that he was thinking about
committing suicide and has told
the bailiffs and everybody he
wasn't afraid of the needle and
he was not afraid to die, which
shows that he is an extremely
Well, the court adopts those
statements as part of the
findings and there is at least
one more in the courtroom that
has four young children that
[sic] is an officer of the court
whose life would be in danger.
There's several others with
children to be raised. There's
numerous officers of the court,
bystanders, people whose lives
would be in danger if this
Defendant were allowed to not be
handcuffed. There is no doubt in
this court's mind that he is a
grave danger to the people in
this courtroom as well as to
At the time the trial judge made
his findings he had already
heard all of the evidence
presented at both the guilt/innocence
and punishment phases of trial.
Some of his findings were based
on the evidence then presented
and summarized at the outset of
this opinion. In the interests
of time and space we will not
review that evidence here.
However, certain other evidence,
presented close to the time and
at the time of trial, obviously
bore on the judge's findings and
it will be reviewed.
On July 12, 1984, a hearing was
held on a motion for withdrawal
of appellant's counsel because
of appellant's inability to pay.
During that hearing the
following testimony was elicited.
THE COURT: Obviously you don't
have the money so I'm going to
appoint a lawyer to represent
That's okay, sir, because I
ain't got to talk to him. I
ain't got to talk to no State's
attorney. I would rather be dead
than talk to a State's attorney.
That may be exactly the problem
you face. You understand you are
charged with capital murder
which could result in the death
penalty for you?
That's okay.THE COURT: So its
not one of these things that can
be taken lightly. It is a very--
Anyway I was going to take my
life last night. I was about to
do it last night.
THE COURT: I
see you didn't do it. All right.
I want to thank you all very
On October 18, 1984, a pretrial
hearing was held on appellant's
motion to suppress certain oral
statements made while in custody.
During the course of that
hearing Detective Anton Michalec
testified as to remarks made by
appellant at the police station
shortly after his arrest.
Q. [by the State's Attorney]:
Did he say anything else about--
A. Well, he did indicate that
the police officer that [sic]
apprehended him where he was
apprehended was yellow for not
shooting him and he said he
wished he would have shot him
and just got it over with and he
indicated that--by his actions
and so forth that--I took it he
might try to commit suicide, and
I called the jail and notified
the jail that he may have some
suicidal tendencies at the time,
so 'watch him.'
Q. Did he say whether or not he
told the officer that the
officer was yellow for not
A. He just told me in his own
words that he felt that the
officer should have shot him
when he apprehended him and just
gotten it over with then and
Q. Did he say why the officer
should have shot him?
A. No, he said he wasn't a man,
though, for not shooting him ...
* * * * * *
Q. [by appellant's counsel] All
right. 'He said after this he
wanted to commit suicide and
would hang himself?'
Q. Did he specifically mention
that he wanted to hang himself?
A. Yes, ma'am. It would not be
in my report if he didn't.
Q. All right. What did you say
A. Well, I made no reply, but
like I said earlier, I did call
the jail because he made those
threats. I was concerned that he
might try to harm himself and I
told him what he said.
Q. All right. Then also he
talked of how he wanted the
police officer that caught him
to shoot him?
Later during the hearing
evidence was presented to show
that appellant was the subject
of a prior outstanding arrest
warrant for robbery involving a
bodily injury. The outstanding
warrant was issued three weeks
before the murder in the instant
On November 26, 1984, one of the
State's Attorneys, Edward Garcia,
stated in closing argument that,
[A]fter the altercation that was
had Monday at the doorway1
Marquez was brought in
and sat down by the bailiffs, he
was cursing in Spanish and he
said something to the effect
that 'I'm tired of people
treating me like an animal.' And
I was sitting to his left and
looked at me and glared at me
and said, 'That goes for that
guy sitting at the table there.'
Earlier on November 26, 1984,
the court, outside the presence
of the jury heard the following
testimony from Lieutenant
Billhartz of the Bexar County
THE COURT: All right. Have you
been supervising the handling of
Marquez, through the time
he has been charged with the
Yes, I have.
All right. Let me ask you this.
In your opinion are the threats
and actions of the Defendant
such that you feel it is
necessary that he be handcuffed
and have leg irons during the
rest of this trial?
Yes, I believe they are.
* * * * * *
Q. [by appellant's counsel]: Are
you familiar with the leg brace
is wearing right now?
Q. What is the purpose of that
A. To keep a person from running.
Q. Okay. Do you have any
information that Mr.
has actually run off anytime
during this trial?
A. Not yet, but he's made
statements to the effect.
Q. Okay. But no actual running?
MR. STEVENS: That's all we have.
THE COURT: If he were not
handcuffed, would there not be a
danger of his grabbing the
pistol of one of these bailiffs.
MR. BILLHARTZ: I think that is
THE COURT: And would the lives
of all the court officers be
After this testimony the trial
judge made the findings above
and overruled appellant's final
objection to the handcuffs and
leg irons. Appellant was not
displayed to the jury in leg
irons and handcuffs prior to
their convicting him of capital
725 S.W.2d at 228-31.
able counsel argues that the
prior acts of violence were not
so violent, but does not rest
Marquez contends that he
was denied an opportunity to be
fully heard before he was
shackled. The argument points
Marquez was ordered
shackled in the afternoon of the
first day of the sentencing
phase of the trial; that the
state trial judge did not make
his findings regarding the
safety risks of an unshackled
until shortly before instructing
the jury at the close of the
The argument goes that this was
a shackle now, explain later,
approach that denied
a fair arbiter. When the trial
court made his findings he was
justifying a decision earlier
made, it is said, and therefore
was not about the business of
fair decisions. We are not
persuaded. The trial court did
decide to shackle
before he issued his reason from
the bench. There is nothing
untoward about that--if
had a reasonable opportunity to
be heard on the subject of
restraint before it was a fact.
never requested a hearing. We
doubt that the state trial judge
was constitutionally obliged to
conduct a hearing in the absence
of a request for one. We do not
rest here because we further
conclude that the state judge
had a reasonable basis for the
order to put on leg irons and
Marquez at the time he
ordered it. We are also
Marquez had a
opportunity to participate in
the development of the facts
underpinning the state judge's
The state trial judge had, in
presence and with his full
opportunity to cross-examine,
heard the following evidence in
open court before ordering the
Marquez pleaded guilty on
January 11, 1984 to four
separate indictments for
burglary and an earlier theft in
1977; (ii) defendant fled police
in an automobile and exchanged
gunfire with the pursuing police
while going the wrong way on a
major thoroughfare at speeds up
to 100 mph; (iii) as a juvenile
was charged with "robbery by
assault, strongarm, ungovernable,
unlawfully carrying a knife,
paint sniffing and burglary of a
nonhabitation"; (iv) he had that
morning assaulted television
cameramen in the hallway while
wearing leg braces; and (v) he
said he was going to run and the
bailiffs would have to shoot him.
The trial judge knew that the
bailiffs were each armed; that
the defendant had the quickness
and strength to seize a bailiff
and perhaps take his weapon
placing at risk persons in the
courtroom. The possibility of
this occurring loomed large in
the trial judge's thinking. Less
may have been enough, but we are
persuaded that these facts, with
the fresh conviction for capital
murder entailing proof of two
vicious murders and a violent
sexual assault, were enough.
also asserts that the
capital sentencing scheme
violated the Eighth Amendment by
restricting his opportunity to
present mitigating evidence. See
Penry v. Lynaugh, 492 U.S. 302,
109 S.Ct. 2934, 106 L.Ed.2d 256
(1989). He also claims that this
constraint deprived him of his
right to effective assistance of
counsel guaranteed by the Sixth
Amendment by unduly narrowing
the options available to him at
sentencing. See Strickland v.
Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674
(1984). He asserts that he had
no meaningful opportunity to
present mitigating evidence that,
inter alia, he is mentally
retarded and was abused as a
We cannot reach the merits of
claims because he made the
tactical decision not to present
the mitigating evidence on which
he bases this appeal. "We have
previously ruled that a
defendant's deliberate failure
to introduce mitigating evidence
as a tactical decision ... does
not come within the requirements
announced in Penry." May v.
Collins, 904 F.2d 228, 232 (5th
Cir.1990), cert. denied, 498
U.S. 1055, 111 S.Ct. 770, 112
L.Ed.2d 789 (1991) (citations
and internal quotation marks
argues that he made this
decision under troubling
circumstances. At the time of
his trial, the only use that the
jury could have made of his
evidence would have been adverse
to his case and he had no reason
to believe he was entitled to a
special instruction to the jury.
This circuit has considered this
argument already, however, and
has ruled in a manner that
no relief under the Eighth
Amendment. The same is true of
Sixth Amendment claim. See May
v. Collins, 948 F.2d 162, 166-68
(5th Cir.1991), cert. denied,
--- U.S. ----, 112 S.Ct. 907,
116 L.Ed.2d 808 (1992).
also argues that the trial court
did not afford the jury the
opportunity to consider all of
the mitigating evidence that
proffered. In particular, the
trial court refused to submit to
the jury the issue "whether the
conduct of the defendant in
killing the deceased was
unreasonable in response to the
provocation, if any, by the
wanted the jury to consider
whether he perpetrated his
heinous acts of physical and
sexual violence in response to
infidelity by his wife. As
stood accused of murdering his
niece, not his wife, under
law there was no provocation "by
the deceased" and therefore no
basis for submitting the issue
to the jury. See Hernandez v.
State, 643 S.W.2d 397, 401 (Tex.Crim.App.1982),
cert. denied, 462 U.S. 1144, 103
S.Ct. 3128, 77 L.Ed.2d 1379
argues that the fact that he was
in a jealous rage could have
mitigated the wrong he committed
by inflicting physical and
sexual violence on his innocent
niece. Whether or not this claim
has merit, he is wrong in
asserting that the jury had no
vehicle for considering it.
The jury could have concluded
killed in an angry response to
infidelity and therefore that he
would be unlikely to be
dangerous in the future. We have
noted in the past that "Penry
does not require that a
sentencer be able to give effect
to a defendant's mitigating
evidence in whatever manner or
to whatever extent the defendant
desires." White v. Collins, 959
F.2d 1319, 1322 (5th Cir.1992).
In light of this standard, we
have held that the special issue
addressing future dangerousness
meets the constitutional
requirements for considering the
relevance of youth, even though
no special provision is made to
reflect the fact that the young
may be less culpable. Id. at
1324. We conclude that the jury
had an adequate opportunity to
consider that infidelity may
Marquez's violent acts.
Marquez argues that the
trial court erroneously allowed
the court to hear evidence of
Marquez's misdeeds that
were unrelated to the murder for
which he stood trial. As the
jury had no obligation to find
that the state had proven beyond
a reasonable doubt that
had committed these acts,
asserts that consideration of
this evidence was
unconstitutional. We have
rejected this claim in the past.
Milton v. Procunier, 744 F.2d
1091, 1097 (5th Cir.1984), cert.
denied, 471 U.S. 1030, 105 S.Ct.
2050, 85 L.Ed.2d 323 (1985). We
need not consider it again now.
We AFFIRM the district court's
Marquez's petition and
VACATE the stay pending appeal.