A CAPITAL CASE, AND A DEFENDANT WHO MAY BE RETARDED

BINGHAMTON, N.Y. - While strangers around him discuss the possibility of
his execution, Christopher Lloyd McMillian sits as calmly as if he were
waiting for a bus. He kills time by copying letters on a legal pad, or
asking one of his lawyers how to spell a simple word, or staring somewhere
beyond the clock that hangs on the far-side courtroom wall.

He is 33 years old, and solidly built, with heavy-lidded eyes like those of
a boxer who forgets to put his hands up. He is African-American, with roots
on the pavements of Brooklyn and in the sharecropping fields of North
Carolina. He is accused, along with two other men, of murdering a drug
dealer in a tired little house here three years ago. And, his lawyers say,
he is mentally retarded.

Last June, Mr. McMillian's lawyers traveled to Washington to dissuade the
Justice Department from seeking the death penalty against him. In a
15-minute presentation before a committee that advises Attorney General
John Ashcroft on capital cases, they argued that Mr. McMillian was
identified as brain-injured when very young; that he has great difficulty
synthesizing information; that federal statutes prohibit the execution of
the mentally retarded.

A month later, Mr. Ashcroft instructed local prosecutors to seek the death
penalty against Mr. McMillian and his two co-defendants, essentially
rejecting the prosecutors' recommendation that a sentence of life without
parole be sought in the case. The decision meant more litigation, expense
and anxiety.

But a recent development may disrupt the government's design to have Mr.
McMillian convicted and executed. One of his lawyers has filed a motion
saying that two experts have concluded that Mr. McMillian is mentally
retarded. One is the defense's expert; the other, he says, is the government's.

"Because both experts agree, there is no factual dispute that the defendant
is mentally retarded," the lawyer, Terence L. Kindlon, wrote. Since it is
against the law to execute the mentally retarded, he added, the option of a
death sentence should be removed from Mr. McMillian's case.

It may not be that simple, legal experts say; the often-misunderstood issue
of mental retardation can increase, rather than lessen, the complexity of a
death penalty case. In addition, they say, neither the judge nor the
prosecution is required to act on the basis of expert opinion, which means
that the question of Mr. McMillian's mental capacity - and his fate - could
be left for a jury to decide.

"Clearly, I'm trying to force the issue," Mr. Kindlon said. "To seek a
death penalty prosecution for a person in Lloyd's position is - I think
it's meanspirited, is what it is."

Judge Thomas J. McAvoy of United States District Court plans to hear
arguments on Mr. Kindlon's motion on April 14. Glenn T. Suddaby, the United
States attorney for New York's Northern District, declined to discuss the
development, and a spokeswoman for the Justice Department did not return a
call seeking comment.

Lawyers opposed to the death penalty say the McMillian case is an extreme
example of how critical nuances get lost in the Justice Department's plan
to establish nationwide consistency in decisions regarding capital
punishment. According to the Federal Death Penalty Resource Counsel
Project, Mr. McMillian is one of 30 defendants in federal cases in which
Mr. Ashcroft has sought the death penalty against recommendations of local
prosecutors.

"What all this demonstrates to me is the folly and the danger of calling
the shots from a thousand miles away based on a paper file," said Kevin
McNally, a lawyer in Kentucky who helps to run the death-penalty project.

The Crime
Beyond the matter of Mr. McMillian's mental capacity, prosecutors say that
he is a killer.

They say that he and two other men - Lavin Matthews, a childhood friend
from Brooklyn, and Tebiah Tucker of Fayetteville, N.C. - lured a drug
dealer named Carlton Rose to a house on Front Street here in January 2000
and then, at gunpoint, beat, robbed and strangled him. Then, prosecutors
say, they used the victim's sport utility vehicle to dump his body near a
park. A fourth defendant, a woman named Caron Johnson, is cooperating with
the authorities.

The government contends that the slaying occurred in the context of a
gang-related interstate conspiracy among the three men to sell crack
cocaine. It also charges that Mr. McMillian robbed other people at
gunpoint, including a woman in North Carolina, and that because of two
prior felony convictions - one for the attempted sale of illegal drugs, the
other for attempted burglary - he had violated a federal law prohibiting
possession of a firearm by a felon.

But Mr. Kindlon, his lawyer, said that Mr. McMillian is a dutiful, almost
childlike follower who has little ability to think abstractly. "He is the
kind of guy who you know is destined to be described as a model prisoner,"
he said.

Mr. Kindlon, whose practice is based in Albany, first met Mr. McMillian in
the summer of 2001, through the plexiglass partition that separates
visitors from inmates at the Broome County jail. "The conditions were not
ideal," Mr. Kindlon recalled. "I didn't realize in that first meeting that
he was retarded."

The Investigation
In potential death penalty cases, defense lawyers routinely hire
"mitigation investigators" to unearth every possible reason a defendant
should not be executed. They gather school and medical records, delve
several generations into family histories, and conduct interviews to create
as complete a portrait of a defendant as possible.

To do this work, Mr. Kindlon chose Joan Kline Podkul, a mitigation
investigator from Buffalo.

One day in March 2002, she called to say that she strongly suspected their
client was mentally retarded. "We should develop that," Mr. Kindlon
recalled Ms. Podkul saying.

In early June, Mr. Kindlon presented federal prosecutors with an 18-page
document that laid out the history of Christopher Lloyd McMillian. His
father was a North Carolina farmboy turned heavy-machine operator; his
mother, from Brooklyn, was often absent or neglectful. Their son was
shuttled back and forth between North Carolina and New York.

The document described a boy who, by the age of 5, was being medicated with
Valium to curb his hyperactivity; who rocked and banged his head; whose
chaotic world was "a puzzle in which none of the pieces fit." According to
New York City school records that Ms. Podkul uncovered, Mr. McMillian's low
I.Q. and "severe cognitive deficits" had been documented throughout his
childhood and adolescence.

By the age of 16, he was determined to be reading at a first-grade level
and to have limited math and language skills. He dropped out of school,
worked at a series of manual jobs, fathered several children, ran afoul of
the law a few times, and lost family members, particularly his
grandparents, who were dear to him.

"Lloyd continues to live in a fantasy world with Rosie, Hervy, Delores and
all of his 'cousins' in 'the country,' where life is calm and simple and
Rosie takes care of him and his 'Moms,' " Mr. Kindlon wrote. "The child who
was unable to understand and organize his environment is now the adult
whose world has spun totally out of his control."

Mr. Kindlon made a similar presentation later in June during a brief
appearance before the Attorney General's Review Committee on Capital Cases.
Mr. Kindlon said he left Washington feeling fairly confident, in part
because he knew that federal prosecutors back in Binghamton had not
recommended capital punishment.

In addition, the United States Supreme Court had just declared the
execution of mentally retarded people to be cruel and unusual punishment,
and therefore unconstitutional, in the case Atkins v. Virginia. The
decision reinforced federal statutes already barring the execution of
mentally retarded offenders and, to Mr. Kindlon's mind, further bolstered
his arguments.

The Response
On July 25, the federal prosecutors in Binghamton sent notification to Mr.
Kindlon and the other defense lawyers that the attorney general "has
authorized and directed that the government intends to seek the death
penalty as to all three of the following defendants: Lavin Mathews;
Christopher McMillian; and Tebiah Tucker."

Barbara Comstock, a spokeswoman for the Justice Department, did not return
a call seeking comment on the McMillian case. But she has said in the past
that the Justice Department is trying to establish nationwide consistency
in the application of the death penalty. "What we are trying to avoid is
one standard in Georgia and another in Vermont," she said.

The notice complicated the case "fiftyfold," Mr. Kindlon said. It meant an
exhaustive jury-selection process, in which potential jurors with strong
feelings for or against the death penalty would have to be culled. It meant
two lawyers and teams of investigators for each defendant, all paid for by
the government. It meant that a murder conviction would lead to a kind of
second trial before the same jury on the government's request for the death
penalty. It meant a lot of pressure.

"You think of the needle all the time; you're the person between your
client and the needle," Mr. Kindlon said. That is why, he said, Ms. Podkul
continued to dig into the matter of Mr. McMillian's mental capacity, and
why he retained Dr. Jerid M. Fisher, a neuropsychologist from Rochester, to
examine his client.

The American Association on Mental Retardation defines the disability as
being characterized by "significant limitations both in intellectual
functioning and in adaptive behavior as expressed in conceptual, social and
practical adaptive skills." It also says that the disability originates
before the age of 18, and that mental retardation is thought to be present
"if an individual has an I.Q. test score of approximately 70 or below."

Dr. Fisher's examination, completed in February, concluded that Mr.
McMillian's level of functioning fell in the "mild mental retardation
range"; that he had an I.Q. of about 67; and that he had extensive
cognitive difficulties dating back to childhood. Dr. Fisher also noted that
Mr. McMillian did not seem to understand the concept of his Miranda right
against self-incrimination. When asked to define "afford" - from "If you
cannot afford a lawyer" - the defendant replied: "Like a Ford car... I like
Cadillacs."

Mr. Kindlon shared Dr. Fisher's report with prosecutors, who then chose Dr.
Daniel Martell, a neuropsychologist in California and a veteran government
expert, to review the matter. Federal prosecutors declined to discuss the
case, and Dr. Martell did not return a call seeking comment. But defense
lawyers say that prosecutors have told them that Dr. Martell would soon
file a report in which he essentially agrees with Dr. Fisher's conclusions,
and that the Justice Department would be revisiting the matter.

Stephen B. Bright, a lawyer and the director of the Southern Center for
Human Rights in Atlanta, said that the withdrawal of the death notice in
Mr. McMillian's case is not a given. For example, he said, the judge might
wait to see whether Mr. McMillian is convicted, and then deal with the
matter during the trial's penalty phase. Or the Justice Department might
decide to argue that Mr. McMillian is not mentally retarded based on the
facts of the crime, and "try to play on the jury's revulsion of the crime."

And, he said, even though mental retardation is an objective assessment -
"If you're mentally retarded, you're always mentally retarded" - it is
often misunderstood and is not always readily apparent.

"The prosecution could immediately get off the mental condition of the man
and go to the goriness of the crime," Mr. Bright said. "Some people would
say punish the person regardless."

While Mr. McMillian and his advocates wait for the next step - Will the
government withdraw the death notice? Will the judge leave the matter in
the hands of the jury? - a capital case grinds on in a Binghamton courtroom
where spectators are rare.

At the moment, lawyers for both sides are slogging through the laborious
jury-selection process for a capital case, a process requiring that
hundreds of people be questioned, one at a time, about everything from
their home life to their feelings about race, about capital punishment,
about mental retardation.

It is all to find 12 jurors and six alternates who say that if they had to,
they could deliberate fairly on whether a man should be put to death.

The question seems much harder to answer while under oath in a courtroom
than at home in casual conversation. One potential juror said that he could
vote for the death penalty because it was necessary "to eliminate violence
in this world." Another waffled - no, he couldn't; yes, he could - until he
finally shrugged his shoulders.

All the while, the flesh-and-blood subject of these theoretical questions,
Christopher Lloyd McMillian, sat in a chair with his legs shackled, looking
up, looking down, looking away.