Death Penalty USA – Garry T Allen Case an urgent appeal

In the landmark 2002 case Atkins v Virginia the US Supreme Court ruled that executions of people suffering ‘mental retardation’ (or Intellectual Disability as it is also known) would be a violation of the Constitution’s ban on ‘cruel and unusual punishment’ and thereby unconstitutional.

An execution falling into this category is scheduled to take place in Oklahoma next Thursday, 12th April 2012.

Garry T. Allen was convicted in Oklahoma for the murder of his partner, Lawanna Gail Titswoth in 1986; and is currently on death row, his execution by lethal injection is scheduled for Thursday 12th April 2012.

During the course of his incarceration, Allen has made a number of appeals against sentence including in 1996 and 2008. In both case the appeals were rejected and the courts found Allen to be mentally competent to face execution, despite in the 1996 case considering and accepting the original trial evidence which suggested that Allen had suffered from a lifelong series of serious mental health issues, as the following extracts from the 1996 appeal show:

 …..11. The record shows extensive mitigating evidence was presented by defense expert, Dr. Nelda Ferguson. She testified Allen was raised in poverty and hunger in an unstable family led by an alcoholic mother who rejected him. As a teenager Allen suffered debilitating mood swings which resulted in five or six suicide attempts. He began to abuse alcohol and drugs when he was seventeen or eighteen years old. All of Allen’s siblings are alcoholics. Even though Allen’s IQ indicates he is bright, he ultimately dropped out of high school after a six month placement in the Boley State School. While serving in the Navy, Allen was hospitalized for psychological problems, and the abuse of alcohol and drugs. He had also been admitted into the Oklahoma City Veteran’s Administration hospital for psychological problems.

12. Dr. Ferguson concluded the appellant was genetically predisposed to mental illness, and diagnosed Allen as having a personality disorder related to schizophrenia. He could not form and keep long-term relationships, he had little impulse control, and drinking greatly exacerbated these problems. Dr. Ferguson’s testimony was supported by Allen’s parents who testified to mental illness on both sides of the family, and Allen’s ex-wife who testified to Allen’s inability to control his temper. Allen himself testified he drank whenever possible.

13. Most of the evidence on which appellant bases this claim was in fact introduced: the maternal rejection; the drug and alcohol abuse; the hospitalization while in the Navy; and the personality disorder. The only challenged evidence not introduced is the possibility Allen suffered from Reye’s syndrome, the fact the environment of the Boley State Home was violent, and the specific label of organic brain damage. Given the very thorough mental health evidence presented by Dr. Ferguson, we find beyond a reasonable doubt the omission of this evidence did not undermine the validity of the re-sentencing hearing.

15. … this case the evidence of mental and social disability was credible, well developed, and uncontroverted…..’

There is therefore adequate evidence to suggest that at the time of the killing, Garry Allen was not only self-medicating an underlying mental illness with excessive drinking, but he had a history of mental illness, possible schizophrenia, diminished responsibility and control, and other potential illnesses which were never fully discussed including possible Reye’s Syndrome which can degeneratively affect the brain.

There are also suggestions that Allen is suffering from frontal lobe brain damage either through illness or through a gunshot injury sustained at the time of his apprehension for his crime and indications of dementia brought on by seizures, drug use and the gunshot wound as confirmed by psychological examination by a court appointed doctor as confirmed by an article by the Oklahoma Coalition to Abolish the Death penalty.

Allen also does not recall the killing now and did not appear to either during and shortly after the event although during the trial he did admit to his crimes and has since been highly remorseful. His mental health has however continued to deteriorate during his time on Death Row as is claimed on this extract from a 2005 Amnesty International article:

…..Garry Allen has epilepsy, which has apparently worsened during his time on death row. He has frequent seizures and doctors have said that he is so confused for periods after these seizures that he would not understand the reality of or reason for his impending execution. In 1993, Garry Allen’s IQ was measured at 111, above average. By 1999, it had dropped to 75. Doctors have reportedly put this down to his ongoing epileptic seizures combined with head injuries…..’

This examination was undertaken in 1999. it is probably fair to say that Allen’s condition has worsened since then bringing him within the remit of Atkins v Virginia.

In 2005 the Oklahoma board of Pardon and Parole (OPP) in light of the compelling facts regarding Allen’s mental health in an unprecedented move recommended that Oklahoma Governor Mary Fallin grant clemency for Allen. This has so far been refused.

However the fact that the OPP board voted 4 to 1 in favour of clemency and that the board included one member who consistently votes against clemency in many capital cases shows that there was and remains significant weight to the arguments and evidence establishing that Allen must not be executed, but should instead have his capital sentence commuted to life imprisonment.

As such, where the Supreme Court decision in Atkins v Virginia renders the execution of death row inmates suffering from mental retardation / impairment, proceeding with the execution of Allen now would not only be inhumane (as all executions in the USA are), but also very likely unconstitutional. It must not be allowed to proceed in light of the pressing evidence against.

The argument that Allen should not be executed on the basis of his mental impairment is a persuasive one but not the only one which may be relevant. The US Supreme Court held in Ford v. Wainwright (477 U.S. 399 (1986)) that executing the insane is unconstitutional, meaning those inmates who are so out of touch with reality that they cannot understand their punishment or the purpose of it. It could be, and has been, argued that Allen is incapable of understanding the punishment he faces and therefore his sentence should be commuted to life in prison.

In this unusual and disturbing case, it seems that even the family of the victim do not want the execution to take place. Speaking out last week, Jasmine Allen, granddaughter of Garry Allen said:

….Our efforts to persuade Governor Fallin to reconsider this decision are in full swing, with calls, letters, petitions to the Governor, letters to editors, news conference, etc.  My mother and I want to thank the OK-CADP (Oklahoma Coalition Against The Death Penalty), our friends and the public, for any energy, prayers, and assistance they can send our way…..”

What can you do now?

  • Please sign the NCADP petition for clemency for Allen available here
  • Email governor Fallin here (US residents only)
  • Tweet Governor Fallin here and here
  • Tweet this post to your followers or publicise through Facebook or to Governor Fallin
  • Publicise this in any way you can, twitter, Facebook, Linkedin, anywhere. Strength is in numbers in these cases. Allen is scheduled to be executed on Thursday 12th, time is therefore of the essence.

Post co-authored by Julliette Frangos & Mike Farrell-Deveau, April 9th 2012.


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About Mike Farrell-Deveau
Mike Farrell-Deveau is a Law graduate, Writer (Fiction, Copy and Journal), Business Professional and Musician with interests in Art, Politics, Human Rights, Social Justice, Access to Justice, Criminal Law, Employment Law, Clinical Negligence and making a lot of noise on an electric guitar.

3 Responses to Death Penalty USA – Garry T Allen Case an urgent appeal

  1. Oklahoma governor Mary Fallin also has a facebook page which can be accessed here

    I have left a couple of comments, I invite anyone else who agrees that Garry T Allen should not be executed to do the same please as well as signing the petitions mentioned above and tweeting to the Governor.

  2. Pingback: Death penalty USA – News « LawBlogOne

  3. Reblogged this on Wobbly Warrior's Blog and commented:
    This week, the Connecticut Legislature voted to end the death penalty in their state. They save taxpayers a fortune and eliminate the turmoil that victim’s families endure during the death penalty appeals process, and they will prevent their ever making the most hideous of mistakes – executing an innocent – along with the cruelty of executing the mentally ill and mentally retarded.