Mary Kelly Tate *

This symposium essay is a thought experiment—a “back to the future” re-imagining of the capital murder trial of Tommy David Strickler, an indigent man deemed borderline mentally retarded.[1] In 1990, Strickler was convicted and sentenced to death for the robbery, abduction, and murder of a young African American woman.[2] On July 21, 1999, Strickler became the sixty-eighth person executed in Virginia in the death penalty’s modern era.[3]

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*  Associate Clinical Professor of Law, Director of Institute for Actual Innocence. J.D., 1991, University of Virginia. I thank Professor Corinna Barrett Lain, my dear friend and colleague, for her generous spirit and invaluable assistance during the writing process. I also extend my appreciation to my research assistant Zachary MacDonald for his able research and editing support.

[1].    See Strickler v. Greene, 57 F. Supp. 2d 313, 318 (E.D. Va. 1999) (granting Strickler’s counsel’s application for lawyer’s fees in post-conviction clemency proceedings in recognition of Strickler’s indigent status); see also Ian Record, Strickler Gets Death Sentence, Breeze, Sept. 20, 1990, at 2 (“Strickler has an IQ of 74, Warren testified. People with IQs of 70 can be considered mentally retarded, she said.”).

[2].    See Strickler v. Greene, 527 U.S. 263, 266 (1999).

[3].    Searchable Execution Database, Death Penalty Info. Ctr., http://www.deathpe federal=All&foreigner=All&juvenile=All&volunteer=All (last visited Feb. 27, 2015) (listing Strickler as the sixty-eighth person executed in Virginia since 1976). Furman v. Georgia is a 1972 Supreme Court decision holding, through a fractured plurality opinion, that arbitrariness in imposing the death penalty rendered it unconstitutional in violation of the Eighth and Fourteenth Amendments. 408 U.S. 238, 240 (1972) (Douglas, J., concurring); id. at 295 (Brennan, J., concurring). In 1976, the Supreme Court overturned its Furman decision with Gregg v. Georgia, holding that new statutory schemes adding procedures for courts and juries in applying the death penalty limited its arbitrariness, which made it permissible under the Eighth and Fourteenth Amendments. 428 U.S. 153, 169, 204–07 (1976). Accordingly, the “modern era” refers to cases decided after the Supreme Court’s decision in Gregg v. Georgia.