Sept. 9, 2010 -- Teresa Lewis, a woman diagnosed with borderline mental retardation, is scheduled to be the first woman executed in Virginia since 1912, unless Governor Robert McDonell or the U.S. Supreme Court step in.
According to court records, in 2002, Lewis participated in a plan with two hitmen to kill her husband and stepson in order to get a life insurance payout. Lewis stood in another room, as Matthew J. Shallenberger and Rodney L. Fuller shot Julian Lewis and his son C.J., at close range.
After the hitmen fled, Lewis waited 45 minutes while her husband lay dying, before calling the police. She claimed that an unknown intruder had shot the men.
When sheriff's deputies arrived on the scene Julian Lewis told them, "My wife knows who done this do me." He died soon after.
Teresa Lewis eventually pled guilty to her role in the plan. In court, she apologized to the judge for her actions saying she was "truly sorry, from the bottom of my heart."
Shallenberger and Fuller were sentenced to life in prison. But the trial judge found that Lewis was the mastermind behind the crimes and sentenced her to death. The judge pointed out that after her husband was shot, Lewis went to his room and searched his pants for money. The judge found that Lewis' conduct "fits the definition of the outrageous or wantonly vile, horrible act."
But lawyers for Lewis, who appealed her sentence, have argued that new evidence has come to light that provides more information about Lewis' role in the crimes and that her original lawyers provided her with ineffective counsel because they didn't fully explore the ramifications of her low IQ. Lewis was tested by a board ceritifed forensic psychiatrist who found her IQ to be in the "borderline range " of intellectual functioning, but not at the level of mental retardation.
Those claims have been rejected by the Virginia Supreme Court and the U.S. Court of Appeals for the 4th Circuit. Now her lawyers have filed a petition for clemency with the Governor and an appeal with the U.S. Supreme Court.
"We think Teresa has an extremely strong case for clemency because evidence has been developed that no court has looked at before, " said James E. Rocap III, a lawyer for Lewis.
Rocap points to statements from Shallenberger , after his conviction, suggesting that he was the mastermind of the plot, not Lewis.
"The evidence shows without a doubt that Teresa was being used by Shallenberger," said Rocap. "Teresa has never engaged in any violent activity throughout her life, she has an exemplorary prison record , deep remorse, and we think it is simply not right for the triggerman to get life, while Teresa is facing the death penalty."
The case also raises an ongoing discussion in the legal community about the issue of mental retardation. In 2002 the U.S. Surpeme Court forbid the execution of the mentally retarded.
Richard Dieter, the executive Director of the Death Penalty Information Center which opposes the death penalty says that because Lewis is on the borderline of mental retardation the Governor should step in. "It would be grossly unfair," he said, "if the one person among those involved who is probably the least danger to society, who is certainly no more guilty than those who carried out the murders, and whose disabilities call out for mercy, is the only person scheduled to die for this crime."
Lewis was found to have an IQ of 72. In Virginia, 70 is the number used to determine mental retardation, among other factors.
Elisabeth Semel , Director of the Death Penalty Clinic at Berkley Law, questions the use of absolute numbers to determine someone's level of mental retardation. "So many factors can contribute to the reliability or unreliability of a numerical score. " she said. "If you have this absolute as a number you can't take into account how severely intellectually disabled someone might be."
But victim's rights advocate Kent S. Scheidegger of the Criminal Justice Legal Foundation said, "Simply being on the slow end of the intellectual scale, but not retarded is not by itself, a compelling reason to overturn the death penalty."
Lewis' appeal to the U.S. Supreme Court is further complicated by Virginia law that sets execution dates before the Supreme Court decides whether it will take a case.
Lewis is scheduled to die on September 23rd, and under normal circumstances the high court would only consider her case on September 27th. Rocap has filed an emergency application asking the Court to suspend her execution until the court can decide whether to take the case.
There are currently 61 women on death row. Only 12 have been put to death since 1976.