On August 7, 2012, a 54-year-old man named Marvin Lee Wilson is scheduled to die by lethal injection. The state of Texas will execute him for the 1992 murder of Jerry Robert Williams.  Wilson was convicted of shooting Williams and leaving him to die allegedly because Williams was a drug informant for the police.  Wilson’s execution has gone through a long appeals process, but after nearly 18 years on death row an execution date approaches.

While executions in the state of Texas aren’t necessarily newsworthy, as the state executes convicted criminals at a rate four times higher than any other state, this particular execution stands out because Wilson is reportedly mentally disabled.

Wilson has an I.Q. of only 61 on the Wechsler test which falls well under the legal standard for mentally disabled.  During the appeals process Wilson was diagnosed with mental retardation by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as a mental retardation specialist.

Previously, Wilson’s mental disability was not allowed to factor into his case in federal court because his  lawyer at the time missed a filing deadline.  His current attorney, Lee Kovarsky Assistant Professor at the University of Maryland Law School, told theGrio that Wilson’s current defense team has filed a petition for writ of certiorari with the U.S. Supreme Court.

“We currently have a petition before the Texas Board of Pardons and Paroles, which asks for an order commuting the sentence from death to life in prison.  As an alternative we will also request a 120 reprieve, a recommendation that goes to the governor [Rick Perry] who can grant that or issue his own 30 day reprieve.”

“This is a very unique case,” says Kovarsky, “This is about as strong of an Atkins claim as you will see” referring to the 2002 U.S. Supreme Court case Atkins v. Virginia where the Court held that executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment.

“Usually [Atkins] claims this strong don’t lose,” says Kovarsky.  One of the unique factors in Wilson’s case which might prove a challenge in terms of reprieve from Governor Perry’s office is that, “historically his office has shown an interest in cases where there is innocence alleged.  In certain Atkins claims, the mentally [disabled] are wrongly assigned leadership roles in multi-party crimes, and it’s possible that Wilson was simply, “part of the group that committed the crime but was not the shooter or principle party.”  It is not known for certain whether Wilson was the shooter or simply a party to the crime.

Despite the fact that the Supreme Court announced standards under the Eighth Amendment in Atkins, the holding did not include any specific standard or set of standards that all states were required to adopt.  This opened the door for states like Texas with vigorous death penalty activity to adopt their own standards under which to consider the legality of executions of defendants claiming mental incapacity.  While the Supreme Court relied on the standard clinical test approved by the American Association on Intellectual and Developmental Disabilities that has around for 100 years, Texas has its own factors called the Briseño factors (named after a Texas defendant).    The Briseño factors are not used by any scientists or clinicians to determine mental capacity and include things such as a defendant being married, having children, working, and lying for in their own self-interest.

“They said that Marvin [Wilson] was not retarded because he was able to work construction and get married and have a child.  They said he lied in own self interest because he denied his own guilt,” says Kovarsky, “How far outside scientific consensus can you go?”

Wilson’s petition before the U.S. Supreme Court presents the question to the Court as to whether the Briseño factors used by the state of Texas are too narrow a standard with which to consider Wilson’s mental capacity in violation of the rule set by the Court in Atkins.  It is now up to the Supreme Court — or less likely Governor Rick Perry — to determine whether Wilson’s life may be sparred before next week’s scheduled execution.

Follow Zerlina Maxwell on Twitter at @zerlinamaxwell