Criminal Law
November-December 2008

The Atkins ambush

The prosecution of a capital murderer got tricky when, just before the jury returned a guilty verdict, the defense filed an Atkins1 motion. In spite of the lastminute curve ball, justice prevailed.

Rose Zebell

Assistant Criminal District Attorney in Bexar County

Kevin Yeary

Assistant Criminal District Attorney in Bexar County

On November 22, 2004, a couple of days before Thanksgiving, Diane Tilly, a schoolteacher from the Alamo Heights area of San Antonio, was preparing to leave town to visit her boyfriend. She was packing her bags when there was a knock at the front door. It was 15-year-old Pearl Cruz.

Diane had seen Pearl once before. She recognized her as the daughter of a man who had come by offering to mow her lawn. Diane had told Pearl’s father, Ronnie Joe Neal, that she didn’t need her lawn mowed. Neal had introduced Diane to his daughter, Pearl, and Diane told them that they could have her old swingset.

Now on Diane’s doorstep, Pearl said that her car had broken down and asked to use the phone. It was a ruse just to get inside. While Pearl was pretending to call someone and Diane’s back was turned, the teenager pulled out a gun and told Diane to get on the floor. Pearl then let her father, Neal, into the house through the back door.

The two tied up Diane’s wrists with a shoelace, then began searching through her house for things to steal. Neal found a handgun and an ATM card, and he demanded that Diane give him the PIN, firing gunshots into the floor of the living room and threatening to kill her cat. He also took Diane to her bedroom and sexually assaulted her. (When Pearl saw this happening, she got angry and started throwing things—she was jealous. It would later come to light that, although Pearl was Neal’s daughter, she was also pregnant with his child.)

They loaded Diane into her car and drove to a secluded area. After the three walked deep into a field, Neal and Pearl made her kneel down. Diane was saying, “You don’t have to do this; please don’t do this.” Neal then shot her over and over with the handgun he had taken from her house.

With the killing done, Neal and Pearl drove back to the motel. The next morning, they got up and went to a Valero station to get more money from Diane’s account. Upon returning to the motel, however, they saw reports on television that Diane and her car were missing. Neal and Pearl panicked. They took Diane’s car out to the same general area where they had killed her, drove it off the road into a culvert, doused the car with lighter fluid, and set it on fire.

Coworkers alerted police after Diane did not attend a Thanksgiving luncheon the next day, and officers obtained video from a gas station where Diane’s ATM had been used. Knowing they were searching for a white truck and a tall, thin black man with a shorter Hispanic girl, they canvaseed the area in two-man teams. They found Neal and Pearl loading up their pickup truck at a local motel and took both into custody.

While Neal was in jail waiting to see a magistrate judge, he talked to a cellmate about the crime, saying he went to a woman’s house and that he shot her. Neal identified his victim as the missing teacher. He also revealed details about items he took as well as how he shot Diane and covered up her body.

Pearl eventually struck a deal with the State. She gave a statement, led officers to Diane’s body, and agreed to give truthful testimony. In return it was agreed that the State would try her as a juvenile and seek a determinate sentence rather than try her as an adult for capital murder.

By the time Pearl took officers to Diane’s body, it had already begun to decompose. Nearby they found an earring, shell casings, and a bullet or two lodged in a tree. The bullets and the shell casings were matched through ballistics to the gun that Neal abandoned in the field when he was being chased by officers. Neal’s DNA was matched with the DNA recovered from semen inside Diane’s body.

Preparation for trial

The Bexar County prosecution team included Catherine Babbitt, Jill Mata, and Rose Zebell. Neal’s case was worked up like every other capital case: Witnesses were interviewed, defense counsel was permitted access to the State’s file, and prosecutors prepared to present their best case to the jury.

Neal was initially represented by an attorney hired by his family. While represented by that attorney, in January 2005, he had a bond reduction hearing at which his cellmate testified about what Neal had told him about the crime and a medical examiner testified about the autopsy. At the end of that hearing, Neal was remanded without bond. Neal’s first attorney was also allowed a hearing on a motion to suppress physical evidence in July 2005, and the trial court denied that motion.

Eventually, the attorney hired by Neal’s family was released and, in October 2005, the trial judge appointed two highly qualified and experienced local capital defense attorneys who filed a new motion to suppress evidence, which was heard and denied in November 2005. Jury selection for trial began in January.

In all of that time, it never became apparent to the prosecution team that the defense was preparing to raise an Atkins claim.

The trial and ambush

Opening statements and testimony began February 21. The trial lasted two weeks, and closing arguments on guilt-innocence were delivered relatively uneventfully March 1. Then the team received word that the jury had a verdict.

When the prosecution team went to receive the verdict, there was an unexpected surprise. They were notified at that point, with the verdict waiting, that the defense had filed an Atkins motion. The motion was nothing too complicated; it simply alleged:

Counsel has become aware that the issue of mental retardation exists in this cause and needs additional time in which to adequately prepare for and present an Atkins claim to this court for a preliminary determination by the trial judge and potential determination by the jury should the need arise.

The prosecutors were told that the defense found out about the jury’s verdict while they were filing their Atkins motion.

 Needless to say, an Atkins motion just before the jury’s verdict is a game-changer, and all manner of questions arose. As a result, before receiving the verdict, the trial court opened a hearing on the Atkins motion.

At the hearing, defense counsel proffered to the court that, as soon as they were appointed—in October 2005—they issued subpoenas for records relating to Neal and that the records had been trickling in ever since. Counsel explained that the last of those records came in only the preceding month and that their expert had been reviewing those records and had informed them only “last week” (meaning in the middle of the guilt-innocence phase of trial) that, in his opinion, Neal was mentally retarded. As a result, the defense requested a 30-day continuance between the guilt-innocence phase and punishment so they could “re-interview all of the witnesses” they had spoken to and seek additional witnesses to help them prove up the mental retardation claim.

At the conclusion of the hearing, the court announced its preliminary conclusion that some kind of continuance would be granted if Neal were found guilty, which he was. With the parties’ consent, the court had the bailiff interview the jury about their schedules, and, armed with that information and input from both the prosecution and defense, the court decided that the trial would be re-convened for punishment four weeks later on Monday, April 3, 2006.

The continuance and arguments

During the continuance, the prosecution team educated themselves on Atkins jurisprudence, mental retardation in general, and the law relating to it. They contacted Dr. Richard Coons of Austin to consult on the issue of mental retardation. Coons is both a psychiatrist and a lawyer, has a private medical practice, and testifies from time to time as an expert.

Because Neal had a history of incarceration, the prosecution team also consulted with Drs. John Sparks and Cesar Garcia, both psychiatrists who worked at the University Health System to provide care for inmates at the Bexar County Adult Detention Center. Both had previously interacted with Neal in a professional capacity while he was incarcerated as an adult for other offenses. The team also consulted Dr. James Sherman, a psychologist who had performed psychological evaluations and testing on Neal when he had been arrested as a juvenile.

On March 28, the court convened a formal pre-punishment hearing. At this hearing the defense team argued that, because the legislature had been through two sessions since Atkins was decided and had failed to establish a vehicle affording the protections enunciated under Atkins, the trial court was without any authority on its own to “come up … with a procedure” to afford those protections. The defense also argued that, if the trial were to proceed, it should do so only after a separate jury was seated to determine whether Neal was mentally retarded, emphasizing that the sitting jury had not been voir-dired on the issue of mental retardation. The defense also contended that the court should make its own determination about whether Neal was mentally retarded, and, if it agreed with the defense, it should prohibit the imposition of the death penalty as a matter of law. Finally, the defense claimed that the burden of proof on the issue of mental retardation should be placed on the State to show that Neal was not mentally retarded beyond a reasonable doubt.

By the time the pre-punishment hearing was convened, the prosecution team had enlisted the help of the late Dan Thornberry, an attorney in the office’s appellate division, who directed the trial court to the Court of Criminal Appeals’ opinions in Ex parte Briseno2 and Hall v. State.3 Thornberry contended that the procedures approved by the Court of Criminal Appeals in Briseno and Hall were sufficient to protect Neal’s rights and that the trial court could implement those procedures in the absence of legislation. Thornberry argued that, based on the Court of Criminal Appeals’ holdings in those cases, it was clear that mental retardation was in the nature of an affirmative defense that a defendant must establish by a preponderance of the evidence. He also argued that there was no reason why the same jury that decided guilt could not also decide the mental retardation issue. Therefore, he continued, if the court found some evidence of mental retardation, the issue should be submitted to the jury on punishment, placing the burden of proof on the defense by a preponderance of the evidence.

The defense tried to distinguish Briseno and Hall, arguing among other things that Briseno was a habeas case and did not involve an Atkins claim raised for the first time at trial, but in the end, the trial court agreed with the State.

The punishment phase

When the punishment phase of trial resumed, the prosecution team was ready. The defense called Neal’s mother, who testified that Neal had behavioral and school problems, stole things, eventually dropped out of school, had suffered a head injury, and showed signs of depression. The defense also called two experts, but only one of them specifically opined that Neal was a person with mental retardation.

Dr. Richard Garnett testified for the defense that Neal had taken three IQ tests before he turned 18: When Neal was 11 years old, he scored a 70; when he was 15 years old he scored a 72; and when he was 17 years old he scored an 87. Garnett contended that, applying a concept called the “Flynn effect,” Neal’s scores were actually lower than they appeared.4 He identified several areas of Neal’s life before age 18 that, in his opinion, tended to show limited adaptive functioning, specifically, Neal’s problems in school, learning difficulties, failing sixth grade, poor adjustment to parole, juvenile probation officers’s recommendation he be put in special placement, difficulty following rules, poor organizational and decision-making skills, history of getting into fights, and susceptability to being manipulated or taken advantage of by others. Based on these observations, Garnett concluded that Neal satisfied all the criteria to be diagnosed as mentally retarded.

In rebuttal, the State called two inmates who testified that Neal bragged about faking his mental retardation claims. The State also called Drs. Sherman, Sparks, Garcia, and Coons to rebut the defense expert’s testimony, all of whom testified the defendant was not mentally retarded. Dr. Sherman based his conclusion on a number of sources, including Neal’s school records, juvenile detention records, and his own clinical evaluation of the defendant. Dr. Sparks conceded that Neal had low intelligence and that he had sustained a head injury, but he also was of the opinion that Neal had no organic brain syndromes. Dr. Sparks observed that Neal could cooperate with people and give reasonable answers to questions, and he concluded that Neal’s problems were rooted in anger, depression, and a “conduct disorder and antisocial personality.”

Dr. Garcia had been Neal’s doctor, and he based his testimony on his observations while treating the defendant. He observed that Neal was articulate and organized and that he could navigate systems, had “executive functioning skills,” could write out an adequate grievance statement, and had even developed a detailed plan to escape from jail.

Finally, Dr. Coons also concluded that Neal’s problems were personal as opposed to intellectual. Coons explained that Neal’s poor performance on IQ tests appeared to be related to extraneous problems such as anxiety, depression, or lack of motivation. He observed that Neal was adaptive to society, able to express his thoughts, able to accomplish tasks when motivated, and that he fit in with the standards of his cultural group. He was also a capable worker and a “prolific writer.” The doctor also explained that the Flynn effect, on which the defense expert had relied, is properly applied only to groups, not individuals.

At the close of evidence, the trial court permitted both sides to submit arguments outside the jury’s presence on the mental retardation question. After hearing the evidence and arguments of counsel, the court made findings of fact on the record rejecting Neal’s claim. The court then instructed the jury in the court’s punishment charge—in addition to those other instructions and issues provided for by law for capital punishment charges in Texas—in the following way concerning the mental retardation issue:

You are instructed that the Defendant must prove Issue No. 1 submitted to you by a preponderance of the evidence.
    You may not answer Issue No. 1 “No” unless you agree unanimously, and you may not answer Issue No. 1 “Yes” unless ten (10) or more of you agree to do so.
    Members of the jury need not agree on what particular evidence supports an affirmative answer to Issue No. 1.  
    By the term “Preponderance of the evidence” is meant the greater weight of the credible evidence.
    With respect to Issue No. 1, you are instructed that mental retardation means significantly sub-average general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.
    Mental retardation means significantly sub-average intellectual functioning of a person that is concurrent with deficits or impairments in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.  The onset of the deficits or impairments must originate before the age of 18.  
    Sub-average general intellectual functioning refers to measured intelligence on standardized psychometric instruments of two or more standard deviations below the age-group mean for the tests used.
    In regard to standardized psychometric instruments you are instructed that the recognized standard error of measurement is a range of five points higher or lower.
    Adaptive behavior is defined as the effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person’s age and cultural group.
    Issue No. 1 is:  Do you find by a preponderance of the evidence that the Defendant, Ronnie Joe Neal, is a person with mental retardation?
    Answer: We, the jury, because at least ten (10) jurors find and determine by a preponderance of the evidence that the defendant is a person with mental retardation find the answer to Issue No. 1 is “Yes.”
    Answer: We, the jury, unanimously find that the answer to Issue No. 1 is “No.”
    You are instructed that if you return a verdict of “Yes” to Issue No. 1 then you shall cease your deliberations. You are further instructed that if you return a verdict of “No” to Issue No. 1, only then are you to answer Issue No. 2.5

The jury answered Issue No. 1, the mental retardation issue, “No.” The jury also answered the other issues in a manner that called for death; immediately thereafter, the trial court sentenced Neal to death for the capital murder of Diane Tilly.


The defendant addressed many of the arguments he made in trial to the Court of Criminal Appeals on direct appeal from his judgment of conviction and sentence. On June 18, 2008, the court rejected his arguments in a published opinion.6 As of this writing, he has a petition for writ of certiorari pending before the U.S. Supreme Court.

Some valuable lessons can be gleaned from the prosecutors’ experience in the Neal case. First, unless and until the state legislature devises a different procedure, the issue of mental retardation should be treated in the nature of an affirmative defense to the death penalty that the defendant must raise and prove at punishment by a preponderance of the evidence. Second, also unless and until the legislature devises a different procedure, the court may properly craft a charge issue to protect the defendant’s rights in relation to the prohibition against execution of persons with mental retardation.7 Third, the same jury that decides guilt in a capital case can also answer an issue at punishment concerning whether the defendant is mentally retarded. Fourth, never think that a capital defendant won’t resort to an Atkins defense, even in the middle of trial when he has given no previous indication that he will raise it. Lastly, on the chance that a capital defendant may raise an Atkins defense at trial, it is prudent to fully explore the defendant’s history ahead of time because you never know. ✤


1 Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that execution of a person with mental retardation violates the Eighth Amendment of the United States Constitution).
2 Ex Parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).
3 Hall v. State, 160 S.W.3d 24 (Tex. Crim. App. 2004).
4 In re Salazar, 443 F.3d 430, 433 (5th Cir. 2006) (explaining, “[The Flynn effect] attributes the general rise of I.Q. scores of a population over time to the use of outdated testing procedures, emphasizing the need for the repeated renormalization of I.Q.-test standard deviations over time.”); see also Ex parte Blue, 230 S.W.3d 151, 166 n. 7 (Tex. Crim. App. 2007) (quoting from In re Salazar).  
5 Beginning with Issue No. 2, the trial court gave the statutorily mandated instructions for capital murder cases in Texas, provided for by Texas Code of Criminal Procedure article 37.071.
6 Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008).
7 Over a year after Neal was sentenced, the Court of Criminal Appeals decided Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007), cert. denied, 2008 U.S. LEXIS 6609, 77 U.S.L.W. 3198 (U.S. Oct. 6, 2008). In that opinion, the Court of Criminal Appeals explained, “Although a jury determined the issue of mental retardation in this case, it is important to note at the outset that a jury determination of mental retardation is not required.” Id., at 667 (emphasis added). The court’s conclusion was direct and clear.  Also, the U.S. Supreme Court denied certiorari in the Hunter case, but it might be wise to continue to let juries decide this issue, at least until the U.S. Supreme Court expressly agrees with the Court of Criminal Appeals’ statement in Hunter.