Execution of Joe Arridy: comments of a forensic expert.

03Original abstract

This is an abbreviated version of an affidavit, submitted in the fall of 2010, in support of a petition to grant a posthumous pardon for Joe Arridy, a man with intellectual disability who was executed in Colorado's gas chamber in 1939 at the age of 23. In this affidavit I focus mainly on Arridy's intellectual disability. In another article in this issue (also derived from an affidavit), Robert Perske focuses more on the tainted prosecution and trial as well as evidence for Arridy's innocence. On January 7, 2011, outgoing Colorado governor Bill Ritter, Jr., granted that posthumous pardon, citing both of these factors: the great likelihood that Joe Arridy did not commit the crime for which he was executed and the impact of Arridy's very significant cognitive deficits that affected his ability to receive a fair trial. Readers should be cautioned that I use now-offensive terminology, not because I find it acceptable but to accurately reflect the historical record. I acknowledge my tremendous debt to Robert Perske for bringing this case to light (and helping me understand Joe Arridy) and Denver attorney David Martinez for leading the legal fight to secure this long-overdue pardon.I am a psychologist and authority on developmental disabilities. I have testified often as an expert witness in Atkins v. Virginia hearings and have published widely cited papers on the proper conduct of experts involved in such proceedings (Greenspan, 2009; Greenspan, in press; Greenspan & Switzky, 2006). In 2009, Attorney Martinez asked me to examine materials related to the trial and disability status of Joe Arridy. Specifically, the request was to express an opinion regarding Mr. Arridy's intellectual capacity, ability to distinguish right from wrong, susceptibility to influence by other adults, capacity to make a confession with sustained understanding and credible recall, ability to commit the crime for which he was convicted, competence to stand trial, and other matters relevant to understanding Joe Arridy and the posthumous request for clemency made by a committee of concerned citizens, led by the ARC of the Pikes Peak Region.At his trial, Joe Arridy was represented by a court-appointed attorney, C. Fred Barnard, who made no opening statement and did not challenge the state's claim that Arridy raped and murdered 15-year-old Dorothy Drain. Instead, Mr. Barnard based his whole defense on the claim that Joe should be declared not guilty by reason of insanity. Prior to the sanity hearing and criminal trial, after Barnard raised the insanity defense, the judge, Harry Leddy, committed Arridy to the Colorado State Hospital in Pueblo and appointed three of the hospital's psychiatrists to evaluate him. The experts were asked to address the single question of whether Arridy was able to “tell good from evil and right from wrong.” If a jury found that he was able to do so, then he would be tried before another jury on the question of his actual guilt or innocence. If he was found to be insane, then he would be confined to a state facility for the criminally insane.The three psychiatrists who evaluated Arridy were F. H. Zimmerman, MD, the hospital's superintendent, and two of his associates, J. L. Rosenblum, MD, and Paul S. Wolf, MD. Each psychiatrist interacted with Arridy and observed him in the hospital setting over the span of several weeks. Because they were all physicians, and, therefore, lacked training and qualifications in psychological assessment, they did not administer any norm-based tests of intelligence or cognition. Instead, they relied on qualitative and descriptive methods to reach their conclusions, although they did ask some questions of a nonstandardized nature. Today, there would certainly be one or more doctoral level psychologists involved in the evaluation, and multiple tests using population norms would be administered.The competence trial convened in February 1937 before an all-male jury. All three experts testified that Arridy was mentally deficient, in the imbecile (mild intellectual disability) subcategory, just barely above the idiot (moderate and severe intellectual disability) subcategory. In line with the practice of the day, imbecile was defined as an adult with a mental age (MA) between 5 and 9. Zimmerman described Arridy as generally functioning like a 6-year-old child, although in some respects he was functioning closer to an idiot (adult MA of 5 or less). This assessment, which put Arridy at the cusp of the two subcategories, was seconded by the other two psychiatrists. (It would today be unusual to use a team that worked at the same agency because one could hardly expect the two more junior members to come up with an opinion that contradicted that of their boss).After the psychiatrists testified, Attorney Barnard decided to put Joe Arridy himself on the stand. This turned out to be the only time Arridy ever testified. His testimony consisted mainly of two- and three-word responses, with a few longer utterances mainly being echolalic (as when asked “Do you like it better in Grand Junction?” he replied, “I like it better in Grand Junction.”) An example of Arridy's typical response pattern occurred in this exchange with defense attorney Barnard: Q: Joe, can you read? A: Not very good. Q: (showing paper) Can you see that? A: Yes. Q: What does it say? Do you know what it says? A: No. Q: Can you write? A: Sure. Q: Can you write anything beside your name? A: My name. [Note: a full transcript of Arridy's testimony can be found in Robert Perske's (1995) book Deadly Innocence.]The prosecution put on four witnesses, all police officers who had interacted with or observed Arridy for brief periods—in one case, for only an hour. They all indicated that in their opinion, Arridy knew right from wrong. The last of the state's witnesses, George Carroll, Sheriff of Cheyenne (where Arridy was arrested for loitering in a railroad yard), gave as evidence for this opinion the fact that “he … stated that he was very sorry for what had happened, so much so that he cried and shed copious tears.” After deliberating for less than 2 hours, the jury was deadlocked six to six; but an hour later they reached the unanimous verdict that Arridy was legally sane. It is not known what circumstances may have contributed to such a dramatic jury shift in such a short period of time.The trial regarding guilt or innocence commenced 2 months later, on April 12, 1937, before the same judge but a different jury. As mentioned, defense attorney Barnard chose—in spite of the shaky case against Arridy—to concede his guilt. Consequently, Barnard did no investigating, put on the three state hospital doctors, and B. L. Jefferson, superintendent of the State Home for the Mentally Defectives, as witnesses and did only the most cursory cross-examining of the state's witnesses. Before the trial started, Barnard succeeded in convincing Judge Leddy to set aside on technical grounds the earlier jury verdict that Arridy was sane. The judge agreed that a second sanity hearing would be held before the current jury at the close of the guilt phase of the trial.Jefferson, an employee of the State Home and Training School who succeeded the institution's founding superintendent, Carl W. Plumb, upon the latter's death, testified that he had observed Arridy over a period of several years and knew him well. He testified that Joe had an MA of about 6.5 years; could do only simple jobs, such as scrub dishes or carry water; had very limited language, which consisted mainly of yes or no responses to questions; would agree to any request or suggestion; in the past had accepted blame for wrongs committed by others; and lacked an understanding of right or wrong. Jefferson testified that he had classified Arridy as a high–low imbecile. By that he meant that he was more impaired than most people classified as imbeciles, in that Joe could not do any tasks requiring judgment, such as delivering messages. On the other hand, Arridy was a hard worker who would do simple tasks, but only after being shown how by higher functioning residents.Barnard, in his appellate brief, continued to concede Arridy's guilt, at least as a passive participant in the crime. For instance, Barnard wrote that “counsel for Arridy do not in any manner condone or deny that Arridy was present when the crime was committed, nor that Arridy would have been an accessory thereto if he were sane enough within the eyes of the law to be knowingly guilty as such.” Instead, Barnard's emphasis continued to be on Arridy's lack of mens rea, stemming from his cognitive impairments. It is interesting that although Barnard did very little in the trial to attack the credibility of Sheriff Carroll's testimony and the confession he claimed to have obtained, In his appellate brief Barnard hit away at the theme that Arridy was extremely suggestible and that his confession was involuntary. Barnard even went so far as to label Arridy a “confession maniac,” who would agree to whatever was suggested to him.Joe's subsequent appellate lawyer Gail Ireland (a future state attorney general) privately believed Arridy to be innocent, but he pursued aggressively the same insanity argument raised by Barnard. Along with his junior colleague James D. Doyle, Ireland was able to win Arridy an unprecedented nine stays of execution. An interesting legal ploy by Ireland after all else had failed was to get Bishop Leonard Schwinn, who as Abbot of Cañon City's Holy Cross Monastery, was considered the second most important Roman Catholic prelate in Colorado, to request another lunacy hearing to be held in Fremont County. Ireland's justification was that because Arridy was currently residing in Fremont County, Pueblo County (where passions over the crime made a fair hearing less likely) was not the appropriate jurisdiction to determine Arridy's fate. This argument was rejected by the Colorado Supreme Court. Before Ireland could re-file this motion in Pueblo County, the trial judge, Harry Leddy, reportedly made a surprise visit to Arridy in his cell and opined that he seemed sane to him.A peculiarity of the Arridy insanity hearing, as in modern “Atkins” hearings (death penalty exemption due to mental retardation), is that the Arridy jury and, later, the judge, were put in the position of having to diagnose a disorder of which they lacked a sophisticated understanding. The main risk in this is that a judge and jury will fall back on popular misconceptions and stereotypes regarding what a person with a particular disability is like. The main prosecution strategy, simply put, was to portray Arridy as possessing a fair degree of competence and, thus, as someone who should be held morally and legally accountable for a murder that the defense had already conceded he had committed. This competence was depicted both by asking Arridy if he could do various things (as with most people with intellectual disability, his initial tendency was to say “sure, I can do that” even when he could not) and by cleverly enabling him to have a coherent conversation by putting questions to him in which his cognitive and linguistic limitations (yes or no, or echolalic responses) were not as obvious as they would have been with more open-ended questions. A secondary strategy was to make Arridy's incompetence appear as evasiveness (as in his denying recognizing people in the courtroom, including his father) and to tarnish him with other crimes (as in questions about his never-proven involvement in other sexual assaults).When Arridy was initially admitted to the Grand Junction institution at age 10, he was administered the 1916 Stanford revision of the Binet-Simon Intelligence Scale (later known as the Stanford-Binet). The tester, identified only as L. Hopkirk, reported Joe's IQ as 46. Because at that time IQ was calculated through the (no longer-used) ratio method in which an obtained raw score, termed mental age—MA (because it corresponded to the raw score population mean for a specific age) was divided by chronological age (CA), with the resulting ratio multiplied by 100. With such an IQ and CA, Arridy's MA, thus, had to have been a little over 4 years, 6 months (Hopkirk reported it at 4 years and 10 months). Qualitative items recorded on the test protocol are what one would expect of a 4- or 5-year-old and indicate the extent of Arridy's limitations. For example, when asked “What do you do when you are sleepy,” his answer was “eat”; when shown the color red he said it was black; and he could not answer when asked the day of the week or tell the difference between wood and glass. A notation in Arridy's record stated that his language was quite primitive, consisting mainly of two- or three-word incomplete sentences.Hopkirk gave Arridy the classification of imbecile, which is roughly equivalent to today's subclassification of mild mental retardation. In fact, his IQ was more in line with the more severe then-used subcategory of idiot. It is not clear why Hopkirk did not use the more severe subcategory, but I suspect it was because Arridy looked relatively normal (in fact, he was quite handsome), whereas most people given the more severe label had quite obvious physical and facial signs and symptoms. According to a 1931 report, the population of the Colorado State Home and Training School for the Mentally Defectives consisted of 266 residents, distributed as follows: (a) 64 labeled idiots, (b) 131 labeled imbeciles, and (c) 71 labeled “morons” (the equivalent of the obsolete borderline mental retardation subcategory). Thus, the population at the Colorado State Home and Training School tended to have relatively mild impairments, which is a major reason why Arridy having resided there was not accepted by the courts as prima facie evidence for why he should be spared the death penalty. In fact, there was another state facility in Colorado at that time that served mainly a lower functioning clientele, and it is likely (as is actually noted in a Supreme Court ruling) that if Arridy had resided at the other facility, the court's rulings likely would have been major reason for this which occurred an initial was to determine what to that period in were to be and of the were to do that in or and for the Arridy was not to in the institution's and or in and was Arridy to in which were to of the This that his actual functioning today was more severe than the one him by L. Instead, after he was the of a worker who him to do and and of not such as and In Joe was considered even when to the of other of the This of Arridy as less than most of the was in of him as a high–low Arridy would today for exemption from the death penalty the Supreme Court of the in Atkins v. Virginia most Atkins which to be and Arridy's petition for exemption would likely not be because of the and of his impairments. by the legal in at the time of his trial, Arridy could and should have been on the of the Not in Colorado the and is the as in this be to idiots, and any person so and in his as to his person and or the person and of or if to at with a less severe of mental from the insanity Thus, the on to and as in this be to mean any person not insane, is by reason of of of or from any other to and of himself or his and by reason would be likely to be or upon by or was a of an earlier after Colorado a state in In the of the State of Colorado No. the Not there was the idiot not be found guilty or for any crime or with which he or may be In the above all considered to be equivalent to and severe intellectual disability were considered as and, thus, as of with less severe of intellectual disability were considered of crime and, thus, to or other legal even the law that they be against or physical four psychiatrists all testified about Joe Arridy's This theme was as a of people with Arridy's intellectual level (a made by and about Arridy in Jefferson, the of the Colorado State School in Grand and someone who testified that he had interacted with Joe over a period of over 5 years, testified that Arridy was a who would do whatever was The of that given that attorney Barnard had conceded his involvement in the was to how Arridy could have been made a passive participant in the crime having criminal by the of the actual between Arridy's and the of a confession to a crime of which he was actually was barely upon by Barnard in the of the experts or in the of Sheriff Barnard did the issue in his he to Arridy as a “confession who was extremely suggestible in his mainly yes and no responses to the leading questions. The issue up in the trial in to his the institution and to Pueblo and Cheyenne by The prosecution to use this as evidence that Arridy was more than he was by the In his stated that in his opinion there was no that Arridy could have to Cheyenne on a through his and that it was by more by the of for such a can be found in the back and between Pueblo and Grand which that Arridy lacked an and was with what were it is well known that people with intellectual disability can be to things that are not even including crimes that they did not commit (Greenspan, & This was actually cited by the Supreme Court in the opinion in the Atkins v. Virginia in which by Perske and was In my opinion, the confession accurately the to Joe Arridy by Sheriff defense attorney Barnard did not make any in the trial to attack the of Carroll's testimony regarding Arridy's he hit the on the in his appellate brief when he described Joe Arridy as someone who could be to In my opinion, Arridy's cognitive in with a and suggestible made it very for Sheriff to have Arridy of is in to the likelihood that Sheriff admitted on the stand that he had to the of Arridy through leading or if not all of the the most evidence against the of the is the language to Arridy by Sheriff All of the testimony by experts about Arridy that his language was very primitive, consisting mainly of yes or no responses to questions or very simple two- or three-word Arridy in his testimony in the sanity of people with or severe intellectual disability but is not of people with mild intellectual disability. It simply to as Sheriff testified, that Arridy went great in the the pattern of the the of various and his of and Joe Arridy were being tried he likely would be found to stand trial, even given that this is a to In an affidavit Arridy's appellate attorney Gail Ireland testified as the of Joe Arridy at the State and most of one with him in to and some of understanding from Joe that the fact that had represented Joe Arridy for one was to make Joe Arridy understand that was his attorney or to make him understand what was to to his was to make Joe Arridy understand what it meant to be put to death and was to that Joe Arridy of any that Joe Arridy is so that it will be a of the of the State of Colorado to a of Joe's to his legal was by psychiatrist Paul S. in his testimony the sanity by defense attorney Barnard, you say he what is on the I … he no at that of all with mild intellectual disability are found whereas with intellectual disability, such as Joe Arridy, are found to stand trial important than the subcategory, is the the testimony of attorney Ireland and Arridy's lack of understanding of his legal and of his and his to with relevant man who quite in in that Joe Arridy did not understand what it meant to be executed or the of such a For example, in a in the Grand Junction on the of the to the of that had to the man of his This to the of competence to be a legal in at that The of this is that the whole of as if a to understand the for or of the For that reason it is very likely that Joe Arridy would today be to be

Intellectual and developmental disabilities, 2011 · doi:10.1352/1934-9556-49.3.197