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.

Background

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.

Disability in the Trial and Appeals

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.

Commentary on Arridy's Testimony

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).

Did Joe Arridy Have Intellectual Disability?

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 different.

A major reason for doing this subclassifying, which occurred during an initial 10-day assessment period, was to determine what (unpaid) job to give residents. Institutions during that period in American history were expected to be self-supporting, and many of the residents were assigned to do work that either brought in revenue or produced food and clothing for the residents. Arridy was not assigned to work either in the institution's factory (producing rugs, basketry, furniture, and brushes) or in its extensive farming and ranching operations. Nor was Arridy allowed to enroll in academic classes, which were open to many of the residents. This suggests that his actual everyday functioning (what today we term adaptive behavior) was more severe than the one assigned him by L. Hopkirk. Instead, after awhile he was taken under the wing of a kitchen worker named Mrs. Bowers, who allowed him to do “small chores and errands” and “tasks of not long duration,” such as mopping floors and washing dishes. In short, Joe was considered substantially impaired, even when compared to the majority of other residents of the institution. This view of Arridy as less intelligent than most of the residents was reflected in Superintendant Jefferson's description of him as a high–low imbecile.

Joe Arridy would today clearly qualify for exemption from the death penalty under the Supreme Court of the United States ruling in Atkins v. Virginia (2002). Unlike most Atkins proceedings, which tend to be contested and lengthy affairs, Arridy's petition for execution exemption would likely (but not necessarily, unfortunately) be uncontested because of the severity and obviousness of his impairments. Even by the legal standards in place at the time of his trial, however, Arridy could and probably should have been acquitted on the basis of the Idiot Not Guilty principle embedded in Colorado law.

In chapter 105, Volume 4, '35 C.S.A., 1921, 549, under the title “Lunatics and Other Mental Defectives,” is the following definition:

The term ‘insane person’, as used in this article, shall be construed to include idiots, and any person so insane and distracted in his mind as to endanger his own person and property, or the person and property of another, or others, if allowed to go at large.

People with a less severe form of mental deficiency were, however, specifically excluded from the insanity class. Thus, the definition goes on to say:

The phrases ‘incompetent’, ‘mental incompetent’, ‘incapable’ and ‘feeble-minded’, as used in this article, shall be construed to mean any person who, though not insane, is by reason of old age, disease, weakness of mind, feebleness of mind, or from any other cause, incapable, unassisted to properly manage and take care of himself or his property, and by reason thereof, would be likely to be deceived or imposed upon by artful or designing persons.

The 1921 statute was a continuation of an earlier statute, enacted shortly after Colorado became a state in 1876. In the General Statutes of the State of Colorado (1883, No. 694), under the title “Idiot Not Guilty,” there was the following provision: “An idiot shall not be found guilty or punished for any crime or misdemeanor with which he or she may be charged.” In the above definition, all persons considered to be idiots (roughly equivalent to moderate and severe intellectual disability today) were automatically considered as insane and, thus, viewed as “persons incapable of crime.” People with less severe forms of intellectual disability were still considered capable of crime and, thus, subject to incarceration or other legal punishments, even though the law recognized that they might be needing protections against social or physical danger.

Was Joe Arridy Easily Influenced by Others, Particularly Authority Figures?

The four psychiatrists all testified about Joe Arridy's suggestibility. This theme was developed as a general characteristic of people with Arridy's intellectual level (a point made by Dr. Zimmerman) and about Arridy in particular. Dr. Jefferson, the Superintendent of the Colorado State School in Grand Junction, and someone who testified that he had interacted with Joe every morning over a period of over 5 years, testified that Arridy was a “mimic” who would do whatever was asked. The point of that testimony, given that attorney Barnard had conceded his client's involvement in the crimes, was to show how Arridy could have easily been made a passive participant in the crime without having criminal intent, by following the lead of the actual killer, Frank Aguilar.

The connection between Arridy's suggestibility and the possibility of giving a false confession to a crime of which he was actually innocent was barely touched upon by Barnard in the direct examination of the experts or in the cross-examination of Sheriff Carroll. However, Barnard did raise the issue in his appeal, where he referred to Arridy as a “confession maniac” who was extremely suggestible in his mainly yes and no responses to the Sheriff's leading questions. The suggestibility issue also came up in the trial in relation to his leaving the institution and getting to Pueblo and Cheyenne by train. The prosecution attempted to use this accomplishment as evidence that Arridy was more competent than he was painted by the defense. In his testimony, Dr. Wolf stated that in his opinion there was no way that Arridy could have gotten to Cheyenne on a freight train through his own volition and that it was either by accident or, more likely, by following the lead of others. Evidence for such a scenario can be found in the repeat round trips back and forth between Pueblo and Grand Junction, which suggests that Arridy lacked an independent plan and was following along with what others were doing.

Today, it is well known that people with intellectual disability can be talked easily into admitting to things that are not true, even including crimes that they did not commit (Greenspan, Loughlin, & Black, 2001; Perske, 2008). This problem was actually cited by the United States Supreme Court in the majority opinion in the 2002 Atkins v. Virginia ruling, in which research by Perske and colleagues was mentioned. In my professional opinion, the term false confession accurately characterizes the self-incriminating statements attributed to Joe Arridy by Sheriff Carroll. Although defense attorney Barnard did not make any real effort in the trial to attack the veracity of Carroll's testimony regarding Arridy's confession, he hit the nail on the head in his appellate brief when he described Joe Arridy as someone who could easily be talked into confessing to anything. In my opinion, Arridy's cognitive limitations, in combination with a compliant and suggestible personality, made it very easy for Sheriff Carroll to have manipulated Arridy into making self-incriminating statements. This, of course, is in addition to the strong likelihood that Sheriff Carroll—who admitted on the stand that he had to “draw the story out” of Arridy through leading questions—made up, or strongly exaggerated, many if not all of the quotes.

To me, the most persuasive evidence against the veracity of the confessions is the elaborate language attributed to Arridy by Sheriff Carroll. All of the testimony by experts about Arridy emphasized that his language was very primitive, consisting mainly of yes or no responses to questions or very simple two- or three-word sentences. Such primitive language—which Arridy demonstrated in his testimony in the first sanity hearing—is characteristic of people with moderate or severe intellectual disability but is not characteristic of people with mild intellectual disability. It simply strains credulity to believe, as Sheriff Carroll testified, that Arridy went into great detail in describing the Drain sisters' bedroom, the pattern of the wallpaper, the exact placement of various objects, and his own feelings of remorse and regret.

Was Joe Arridy Competent to Be Tried or Executed?

If Joe Arridy were being tried today, he likely would be found incompetent to stand trial, even given that this is typically a difficult standard to meet. In an affidavit dated December 31, 1938, Arridy's appellate attorney Gail Ireland testified as follows:

During the month of November, 1938, affiant visited Joe Arridy at the State Penitentiary and spent most of one morning with him endeavoring in every way to obtain intelligent answers and some expression of understanding from Joe Arridy; that despite the fact that affiant had represented Joe Arridy for approximately one year, affiant was unable to make Joe Arridy understand that affiant was his attorney or to make him understand what affiant was attempting to do, namely to save his life; further, affiant was unable to make Joe Arridy understand what it meant to be put to death and affiant was unable to discover that Joe Arridy possesses reasoning powers of any kind; that Joe Arridy is so insane that it will be a violation of the laws of the State of Colorado to execute him.

Such a view of Joe's inability to comprehend his legal situation was shared by psychiatrist Paul S. Wolf in his testimony during the first sanity hearing. Asked by defense attorney Barnard, “Would you say he understands what is going on [in the hearing]?” Dr. Wolf replied “No, I wouldn't … he has no concentrating powers at all.”

Current research shows that approximately half of all defendants with mild intellectual disability are found incompetent, whereas defendants with moderate intellectual disability, such as Joe Arridy, are almost never found competent to stand trial (Bonnie, 1990). More important than the subcategory, however, is the evidence—from the testimony of attorney Ireland and others—of Arridy's lack of understanding of his legal situation and of his attorneys' roles and his complete inability to provide them with relevant information. Warden Roy Best—a childless man who developed fatherly feelings towards Arridy—was also quite definite in stating in news interviews that Joe Arridy did not understand what it meant to be executed or the permanence of such a sentence. For example, in a story in the Grand Junction Daily Sentinel, on the eve of the execution, Best referred to the “smile of non-comprehension that had greeted [my] repeated efforts to convince the condemned man of his fate.” This goes to the matter of competence to be executed, a fundamental legal principle in place at that time. The essence of this principle is that the whole purpose of execution as punishment loses meaning if a defendant fails to understand the reasons for or finality of the sentence. For that reason alone, it is very likely that Joe Arridy would today be ruled ineligible to be executed.

References

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Author notes

Stephen Greenspan, PhD (e-mail: stephen.greenspan@gmail.com), Clinical Professor of Psychiatry, University of Colorado, PO Box 620550, Littleton, CO 80162.