Death row inmate argues fetal alcohol spectrum disorder renders him unfit for execution
2 weeks after the 5th U.S. Circuit Court of Appeals stayed the execution of mentally disabled Dexter Johnson, another Texas death row inmate is hoping for the same outcome.
Mark Soliz filed several documents with the same court on Friday, Aug. 30, in hopes of staving off his upcoming execution on Sept. 10.
Soliz was sentenced to death in 2012 for the murder of Nancy Weatherly during a botched robbery of her home following a weeklong crime spree. Since the trial, Soliz's counsel has argued that fetal alcohol spectrum disorder renders him mentally unfit for execution under the U.S. Supreme Court's holding in Atkins v. Virginia. Soliz now argues, as did Johnson, that recent changes to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) make his diagnosis the "'functional equivalent' of conditions already recognized as disqualifying exemptions to the death penalty."
During his initial state appeals, Soliz's Atkins claim was dismissed on the basis of his IQ score, but the APA's changes mean "higher IQ scores no longer bar a diagnosis of an intellectual disability," according to Soliz's filing, which continues: "Expansion of the Supreme Court's holding in Atkins to protect offenders suffering from FASD is a constantly evolving doctrine that merits further consideration." Soliz seeks permission from 5CA to file a 2nd appeal for relief in the U.S. District Court in Dallas.
The filing credits the 5CA's ruling in another Texas case – that of Eric Dewayne Cathey, who also filed an Atkins claim – for paving the way for Johnson's stay by considering "changes in the standards for psychiatric evaluation." Soliz's recent evaluation, paid for by his counsel, found he has an IQ of 75, squarely in the 70-84 range considered "borderline intellectual functioning."
Soliz's current requests ask the 5CA simply to decide if he can file additional appeals, not whether his claims entitle him to relief. On Sept. 4, Texas Attorney General Ken Paxton filed a 71-page response, arguing that Soliz is asking for a do-over; while Johnson did not actually raise an Atkins claim until the DSM-5 changes suggested he deserved one, Soliz "seeks an extension of Atkins" to include FASD.
Soliz's attorney Seth Kretzer told the Chronicle that his client's execution "should certainly be stayed. ... Mr. Soliz is a victim of his mother's ingestion of harmful substances in the womb. Supreme Court doctrine will not permit the execution of people who are functionally developmentally impaired."
The 5CA appeals were filed shortly after the Texas Court of Criminal Appeals in August denied Soliz's requests for a stay and to appeal his sentence, ruling he failed to "satisfy the requirements" of state law and thus ignoring the specifics of his claim. In April, the U.S. Supreme Court denied Soliz's previous round of appeals.
Without intervention from the courts, Soliz will be the 6th man executed by the state in 2019. As we went to print Wednesday night, Billy Crutsinger was killed after SCOTUS denied his stay request filed earlier in the day. Another nine men are slated to die by lethal injection before the end of the year.
Source: Austin Chronicle, Sarah Marloff, September 5, 2019
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