The Mind of Jamaal Howard: An Exhaustive Account

A note before you begin: this is a long piece, and your email may cut it off partway through. If it does, click through to the web version, where the whole essay and its notes are intact. The length is deliberate. Texas intends to execute Jamaal Howard on October 7. The one hearing that could stop it must be held before September 17. If nobody acts by then, what follows is the record of what the State knew about his mind and chose not to examine. I wanted that record in one place, quoted from the court filings themselves, so that no one can say afterward that the facts were unavailable. Read it now, while it can still be an argument. After September 17, it becomes a historical document.

Texas has set October 7, 2026 as the date it will kill Jamaal Howard.[1] He was twenty years old on the morning of May 12, 2000, when he walked into a Chevron station in Silsbee, a small town in Hardin County, and shot Vickie Swartout, the clerk, in the chest. The Court of Criminal Appeals told the story in a paragraph on direct appeal: he “stole a gun from his grandfather the night before the murder and hid it,” refused his family’s pleas to give it up, “walked several blocks from his house to the Chevron store,” peered in the windows, entered the office where she sat, “cocked the gun, and shot the victim in the chest.” He “stole $114.00 from the cash register and reached over the dying victim to steal a carton of cigarettes before leaving. The offense was recorded on videotape.”[2] The court added two more sentences: “The appellant denied committing the offense until he was told it was videotaped. He told the officer who took his statement that he was not sorry for committing the offense.”[3]

Nothing that follows disputes a word of that. A woman died. He killed her. Her family has carried her absence for twenty-six years, and they are owed the truth about the man who took her from them. The truth is what this essay is after.

Here is the question the truth turns on. What was the condition of the mind that did this? And has any court, in a quarter century, ever looked? The record answers the first question with a consistency that is almost eerie: every doctor who has examined Jamaal Howard, before trial and after, with one exception the State paid for, has found the same broken thing. The record answers the second question with a silence that runs through every courthouse that touched him.

The child

The story begins in the elementary schools of Silsbee, in records that nobody had a reason to falsify.

Dr. Fred Fason, the psychiatrist the defense retained before trial, found those records because the defense lawyer had not gone looking for them. Fason’s first encounter with his patient set him searching. As the Court of Criminal Appeals later recounted, “when he first met with the appellant and began to administer one of the psychological tests, the appellant did not know some of the words in the first few questions.” That was enough to make Fason “conclude that the appellant could not read at the sixth grade level and to question whether the appellant was mentally retarded.”[4] The words Jamaal did not know, according to the habeas record, were “mechanics” and “appetite.”[5] The test Fason could not finish was the MMPI-2, the most ordinary instrument in the psychiatric toolkit.[6]

So Fason went to the schools. What he found, in the court’s words, was that Jamaal “had started out in school as a very bright student; the appellant was in the ninetieth percentile in math in the second grade, but had dropped to about the thirtieth percentile in the fifth grade. Fason theorized that the appellant’s declining performance in school was due to the onset of schizophrenia.”[7]

Sixty percentile points in three years. That is not what laziness looks like. It is what a mind coming apart looks like, measured by public school teachers years before anyone had a case to make. When the prosecutor later tried to use Jamaal’s early achievement scores against him, the court-appointed psychologist, Dr. James Duncan, gave the only honest answer available: that would indicate deterioration.[8] The bright second-grader is not the State’s evidence. He is the measure of what was lost. The court noted that Duncan, an independent expert appointed by the judge rather than the defense, “reached a similar conclusion” to Fason’s.[9]

The State told a different story about those same years, and fairness requires hearing it in full. At punishment, the prosecution offered evidence that Jamaal “demonstrated a disregard for authority and school rules despite the continued efforts of his mother and educators,” that he “punched a pregnant teacher in the chest with his fist when she asked him to return to his seat,” and that in the alternative school “he refused to comply with its rules and standards, and he was defiant and disruptive.”[10] The State went on to present “evidence of the appellant’s possession of controlled substances, his fighting with police officers and resisting arrest, his committing of several burglaries as a juvenile, and his fighting with other inmates.”[11] Jamaal’s own appellate lawyer answered that “there was no evidence of premeditation to commit the instant murder and that he has no history of prior criminal violence.”[12] The court was unmoved: “The appellant’s actions in committing the crime were senseless and deliberate; his actions immediately following its commission were equally so.”[13]

Senseless and deliberate. The two words sit side by side in the court’s opinion without anyone pausing to ask whether a senseless act can also be a deliberate one, or what kind of mind produces both at once. The court itself saw the problem with the school-discipline evidence. It “was presented as bearing on the issue of whether the appellant was suffering from a mental illness, or whether his actions were, as the State contended, volitional.”[14] A boy who hits his teacher may be a bad boy. He may also be a sick one. Nobody qualified to tell the difference was ever asked to.

Then, at seventeen, Jamaal Howard was shot in the head.[15] The medical records of that injury sat in the file through the whole of his capital trial. The Fifth Circuit would later acknowledge the “records suggesting that Howard injured his head in 1997.”[16] The jury never heard of them. Three years after the bullet, in the fog of what every later physician would call schizophrenia, he walked into the Chevron.

The witnesses

The people who had known Jamaal longest saw the change before any doctor did, and their testimony is in the trial record.

Sandra Johnson had known him his whole life. In the months before the crime, she watched him turn into someone else: unwashed, vacant, unable to recognize her when they passed on the street. When she came to the courthouse, he did not recognize her there either.[17]

Tyre Thomas worked as a jailer, and he too had known Jamaal since childhood. The man he saw in custody was not the boy he remembered. Jamaal talked to himself. His moods swung without warning. He had to be told to bathe, told to brush his teeth, and when told, he complied. He gave the jailers no trouble. He was simply, in Thomas’s account, not fully present.[18]

Those two accounts are the baseline. Whatever the experts disagreed about, the people who knew him agreed that the Jamaal Howard sitting at the defense table was not the person they had watched grow up.

The examinations

Two doctors examined Jamaal before trial. They arrived at the same place by different roads.

Duncan was the court’s man, appointed to assess whether Jamaal was competent to stand trial. He gave Jamaal the verbal subtests of the Wechsler Adult Intelligence Scale, and his testimony at the competency hearing survives in the appellate record: “I gave [the appellant] some portions of an I.Q. test to arrive at that estimate, some of the verbal subtests of the Weschler [A]dult [I]ntelligence [S]cale.” Asked whether he could put a number on it, he answered: “I would say in the range of 70; but because I didn’t give the full test, that number would be-there would a range there. I would say that based on the-scoring the subtest that I gave and figuring out that number, would be a 65 to 70 kind of I.Q. range.”[19] He put it another way for the jury: Jamaal “tested in the borderline to mildly impaired range which Duncan said was the level of an eleven or twelve year-old.”[20]

Sit with those two phrases. An IQ of 65 to 70. The mind of a child of eleven or twelve. By the definition the Court of Criminal Appeals itself would later apply to Jamaal’s case, “’Significantly subaverage general intellectual functioning’ is defined as an IQ of 70 or below.”[21] Every number in Duncan’s range fell inside that line.

The State’s answer to the number was to attack its provenance. As the court noted, “[o]n cross-examination, however, it was emphasized that Duncan had given the appellant only portions of an I.Q. test on which he had based an estimate of the appellant’s I.Q.”[22] That is a fair point as far as it goes. It also raises the obvious reply: if the estimate was incomplete, someone should have completed it. The State did not. The defense did not. No court ever ordered it. Twenty-five years later, the only IQ measurement in Jamaal Howard’s file is still Duncan’s partial one, and it still says 65 to 70.

The number was only part of what Duncan saw. His report, as the habeas record describes it, is a portrait of a man who was barely reachable. Speech came out low and indistinct, when it came at all. Questions had to be repeated before any answer arrived, and the answers often failed to cohere. In the middle of the interview Jamaal would break into a smile or a soft laugh at something Duncan could not identify, and Duncan found himself wondering what, in that room, his patient was reacting to. His conclusion was that the deterioration was ongoing, that organic brain factors and schizophrenia were both at work, and that Jamaal’s capacity to help his own attorney was in serious doubt.[23]

Fason saw the same thing from a psychiatrist’s chair. The laughter that erupted at the wrong moments he recognized as a classic marker of schizophrenia. He tried to explain to Jamaal that the State could put him to death for what he had done, and Jamaal laughed at that as well. Nothing Fason asked produced an answer that connected to the question. His diagnosis was schizophrenia, and his conclusion was that Jamaal had no rational grasp of the charges or of what a conviction would bring.[24]

None of this is contested. Twenty years later, the Fifth Circuit summarized the trial record in its own words: “One of the evaluating psychologists—Dr. James Duncan—testified at the guilt phase that Howard was impaired and possibly schizophrenic. And Dr. Fason testified at punishment about Howard’s mental shortcomings, including that he may have been schizophrenic.”[25] The court called it “the bountiful testimony concerning Howard’s mental health.”[26] It described the parade of lay witnesses, “close family members, extended family, educators, coaches, neighbors, and friends,” who took the stand “regarding his mental decline and odd behavior throughout the years.”[27] It noted that the jury heard “lots of evidence during the guilt phase about Howard’s mental health and odd behaviors.”[28] It even observed, in a footnote, that although “Duncan was appointed to evaluate Howard’s competency for trial and not (specifically) to gather mitigation evidence,” nonetheless “much of what his evaluation revealed also counted as mitigation evidence of Howard’s mental issues.”[29]

And then there was Dr. Edward Gripon, who testified for the State “that the appellant was not suffering from schizophrenia, but rather was suffering from antisocial personality disorder.”[30] Gripon had an explanation for the school records too. Jamaal’s decline, he said, “stemmed solely from his attention-deficit disorder which was addressed when he took his medication; when the appellant refused to take his medication, his grades declined and his behavior deteriorated.” The court summed up Gripon’s view in one sentence: he “did not see any evidence that the appellant suffered from schizophrenia.”[31]

Hold that sentence. The next twenty-five years would answer it.

Two juries

In Texas, competency to stand trial is a jury question. In Jamaal’s case it was put to a jury twice.

The first panel heard Fason testify. Twelve people listened to a psychiatrist describe a defendant who laughed at the prospect of his own execution, and they could not reach a verdict. The proceeding ended in a mistrial.[32]

A second panel was seated within days. Fason was not on the witness list. Nothing in the record explains why the one expert who had produced a deadlock was left at home. The new jury, entirely white, took forty-seven minutes to find Jamaal Howard competent.[33]

The Fifth Circuit would later compress all of this into a single clause: “After two trials on the matter, a jury found Howard competent.”[34] The clause is true. It is also a way of not saying that the first jury, the one that heard the whole expert picture, refused. A capital trial went forward against a man whose fitness to be tried had deadlocked twelve of his neighbors, and whose second jury never heard the one witness who had deadlocked the first.

The lawyer

The State of Texas paid Tyrone Moncriffe $35,000 to stand between Jamaal Howard and the death chamber.[35] His client could not hold a conversation. What he did with that fact is written into the habeas filings, and some of it made its way into the Fifth Circuit’s own summary of the claims Jamaal later raised.

The Fifth Circuit listed the failures in one sentence. Moncriffe “’did not even consider competence until Dr. Fason urged him’”; he “failed to request an expert’s review of competency until Fason suggested”; he “’did not discuss’ Duncan’s report with Duncan ‘until the day [the lawyer] began opening his case on guilt’”; and he “failed to request a trial on competency but, instead, waited for the state to do so.”[36]

Each of those deserves a moment. The request for a competency evaluation came in spoken form, on the eve of jury selection, after Fason insisted on it.[37] Duncan’s report came back doubting that Jamaal could be tried at all; Moncriffe’s first conversation with Duncan about it took place on the morning Duncan testified, and Moncriffe admitted as much in front of the jury.[38] No written motion on competency, intellectual disability or insanity was ever filed, though those three questions were the entire defense.[39] Moncriffe declared an insanity defense from counsel table in the middle of voir dire, and no expert was ever asked to evaluate insanity.[40] Even the competency trial, the one proceeding that came close to sparing Jamaal, was not Moncriffe’s doing. The district attorney filed the motion. The office trying to kill Jamaal Howard was the office that asked whether he could follow his own trial.[41]

The federal courts would later give Moncriffe credit for the shape of his defense, and the credit is worth quoting because of what it leaves out. “In his first remarks during guilt-phase opening arguments, the lawyer emphasized Howard’s impairments,” the Fifth Circuit wrote. “And in closing arguments at the punishment phase, the lawyer stressed that the jury should consider Howard’s mental illness and give him life.”[42] The court noted that “Howard’s lawyer looped experts in, too,” that “counsel hired a psychiatrist—Dr. Fred Fason—to conduct an examination,” and that “twice counsel successfully moved the trial judge to appoint doctors to evaluate Howard’s competency to stand trial.”[43] All true. Moncriffe talked about mental illness. What he did not do was prove it.

Then came the guilt phase, and a moment the Court of Criminal Appeals recorded with some care. Duncan was on the stand. He had a number. Moncriffe never asked for it. In the court’s words, “although Duncan testified about the appellant’s ‘borderline to mildly impaired functioning,’ he neither testified specifically to his determination of the appellant’s I.Q., nor was he questioned by the appellant’s counsel about the I.Q. test he had administered.”[44] The jury that convicted Jamaal Howard never heard the words “65 to 70.”

The court excused this. Because Duncan had given only “portions” of the test to reach an “estimate,” the court wrote, “we presume that the appellant’s defense counsel was exercising reasonable trial strategy by not eliciting such testimony from Duncan before the jury, in light of the speculative weight of the testimony and its susceptibility to cross-examination.”[45] A presumption is not a finding. Nobody ever asked Moncriffe why. The court recited the rule that “[a]llegations of ineffectiveness must be firmly founded in the record as counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,”[46] which is a way of saying that the less a lawyer explains, the safer he is. The court added that Jamaal “has not shown that the outcome of the trial would have been different had the testimony been elicited,”[47] which raises a question the court did not answer: how does a man prove what a jury would have done with a number it never heard?

The punishment phase is where a capital lawyer earns his fee, and it is where Moncriffe did the least. Fason advised him, in so many words, to retain a mitigation specialist who could assemble Jamaal’s life history. No specialist was retained.[48] The hospital records from the 1997 shooting stayed in the file.[49] So did the notes written on the day of his arrest that pointed to active psychosis.[50] What the jury got instead, according to the habeas record, was a series of relatives and friends asked whether both families were in pain.[51] The record does document one subject Moncriffe pursued with energy: his own compensation, in a string of motions asking the court for more money.[52]

He never challenged the confession either, and the confession became the prosecution’s favorite weapon. Texas Ranger L.C. Wilson took Jamaal’s written statement, and his account of how it ended is preserved verbatim: “I asked him, you know, ‘Do you have any remorse for this?’ He said, ‘No.’ And I said, ‘You’re willing to sign that statement? You have no remorse?’ And he did.”[53] Wilson had prefaced the question, by his own account, with a speech no eleven-year-old could parse: “Jamaal, you know, in a year or so from now a jury is going to hear this and they are going to want to know why you did it. You know, now is your chance, you know. I’m asking you to explain to anybody.”[54] On cross-examination, Wilson “did not specifically remember asking the appellant if he understood the meaning of the word remorse, but he remembered asking him, ‘Do you feel sorry about what you did?’”[55] This from a man who did not know the word “appetite.”

The prosecutor took that exchange to the jury at punishment: “And since that time not one feeling of remorse, not one word of sorry. In fact, he told Ranger Wilson, ‘I’m not sorry.’ That’s the type of person you are dealing with in Jamaal Howard.”[56] The court acknowledged that “a prosecutor’s comment on a defendant’s failure to show remorse is tantamount to a comment on his failure to testify,” then found no error because “Wilson testified that the appellant told him he had no remorse.”[57] In a footnote it observed that “[t]he appellant did not complain at trial, nor does he complain in this appeal, about the admission of Wilson’s testimony.”[58] Moncriffe had not objected.

Years later, in federal court, Jamaal argued the obvious: that “if his lawyer had adequately explored his mental health, then the lawyer would have successfully contended that Howard lacked the capacity to waive his Miranda rights and confess.”[59] The harm was that the prosecutors used the statement “to demonstrate that Mr. Howard was calculating and had no remorse, something that was highlighted time and again . . . in seeking a death penalty.”[60] The Fifth Circuit brushed it aside. “Howard does not suggest that he would have been acquitted were the confession excluded,” it wrote, and he “does not explain how a better investigation of his mental health could somehow have led to a successful challenge to his confession.” He “fails to engage with the district court’s reasoning that the evidence showed that Howard understood his rights and was not coerced into waiving them and confessing.”[61] The evidence showed. Which evidence, the court did not say. The only evidence of Jamaal’s understanding of anything was the testimony of two doctors that he understood very little.

Even Fason’s own testimony was turned into a weapon. On cross, the prosecutor walked him through Jamaal’s juvenile history, asked whether “having charges related to delivery of cocaine, possession of cocaine, would that be important in making that diagnosis,” and got a careful clinical answer: “Well, it’s something you take into consideration; but it wouldn’t be-it’s not pathognomonic of-of any social personality disorder.”[62] The prosecutor pressed on: “And even the history that his mother gave you that he was stalking some young lady- ... would that be important in diagnosing antisocial personality?” Fason answered, “Not in the way it was presented, no. I mean it’s significant.”[63] Then the question the whole exchange was built to reach: whether “a history from the age of 13, from theft, to 15, 16, dealing drugs, to stalking, to capital murder, all that taken together doesn’t that kind of suggest that there may be an antisocial personality here?”[64] Fason answered like the clinician he was: “arriving at a diagnosis, in a way, is kind of like working a jigsaw puzzle. You take a whole bunch of different pieces and you see how they fit together to come out with a picture; and that would be a piece of the puzzle.”[65]

The court held that “Fason’s affirmative response to the prosecutor’s question made the suggestion become evidence, albeit slight,”[66] which licensed the prosecutor to tell the jury, “Then we find out that he was stalking a young lady. That’s a threat of violence.”[67] The prosecutor had more. “When he is not waiting for capital murder trial and not going to have to be on his best behavior, then what is he going to act like?” he asked the jurors. “Gang activity, 5-9 Hoover Crypts [sic], and Crypts [sic] are in prison, too. He will fall right in with his old buds; extortion, rape, drug trafficking-”[68] The defense objected that this was outside the record. The objection was overruled, and the court on appeal found “any error is harmless” because the prosecutor had already said similar things without objection.[69] Among them: that “drugs are a big factor with prison gangs,” that Jamaal “would have the opportunity, if he wants to, if he hadn’t learned his lesson,” and that he had “been stalking a girl,” which the prosecutor said he learned only when “Dr. Laine’s medical record came in through Dr. Fason.”[70] The defense’s psychiatric evidence became the State’s case for future dangerousness, and the court upheld that verdict in part on “the expert testimony that the appellant displayed an antisocial personality disorder.”[71]

Jamaal’s appellate lawyer also asked the court to review whether the mitigating evidence was sufficient to spare his life. The court’s answer was that it does not do that: “This Court has repeatedly declined to review the sufficiency of the mitigating evidence and has rejected the claim that it deprives a defendant of a meaningful appellate review.”[72] The one question that mattered most, whether the evidence of Jamaal’s mind should have saved him, is the one question the court has a standing policy of refusing to ask.

Jamaal’s federal lawyers described all of this in a sentence the Fifth Circuit quoted without disagreeing: “the record is replete with a picture of a bumbling attorney who was doing the bare minimum to get through a trial that could not end soon enough.”[73] They added what should have been obvious: “Had counsel’s performance not been deficient, there is a reasonable probability that Mr. Howard would have been sentenced to life instead of death.”[74]

The prison

What the courts would not find, the prison could not avoid finding.

Jamaal had been on death row only a few months when the Texas Department of Criminal Justice moved him to Jester IV, its psychiatric hospital.[75] The intake notes describe a man who had stopped speaking, who had withdrawn from everyone around him, who was relieving himself on the walls of his cell.[76] The doctors there started him on Haldol, an antipsychotic, along with Cogentin to manage its side effects and Zoloft for depression.[77] The pattern that followed is familiar to anyone who has watched schizophrenia up close: stabilization, release back to the row, collapse, readmission. At one point he cut himself.[78] The Haldol was pushed to the ceiling of what the prescribing guidelines allow.[79] Each new admission repeated the diagnosis of the last one until the file carried a single unbroken verdict: chronic schizophrenia.[80]

The antisocial personality disorder that Gripon had described for the jury turns up once in the early prison paperwork and then disappears from it for good.[81] From that point forward, no clinician who laid hands on Jamaal Howard came away with anything but the diagnosis Gripon had testified was unsupported. For a quarter century, Texas has been medicating the disease its own expert told a Hardin County jury did not exist. The person it means to execute on October 7 is a person whose hold on reality depends on a daily maximum dose of antipsychotic medication.

The courts

This is where the story turns from tragedy to indictment. Follow the chain link by link.

On direct appeal in 2004, Jamaal’s lawyer put the constitutional claim plainly: “[a] procedure that permits the death penalty to be inflicted on defendants with mental retardation despite their diminished personal culpability violates the Eighth Amendment to the United States Constitution.”[82] He argued, in the court’s paraphrase, “that an individual put to death must be able to rationally appreciate and evaluate the consequences of his actions,” and he pointed to Duncan’s testimony of “borderline to mildly impaired intellectual functioning.”[83] The Court of Criminal Appeals conceded the core fact and denied relief in the same breath. “Although experts for both the State and the defense testified that the appellant’s intellectual functioning and adaptive behavior were impaired to some degree,” it wrote, “the testimony was not sufficiently developed to establish that appellant was ‘mentally retarded’ under the guidelines we set in Briseno. Because the evidence does not support the appellant’s claim that he is mentally retarded, we reject his Eighth Amendment claim.”[84]

Read that again. Both sides’ experts agreed his functioning was impaired. The claim failed because the testimony “was not sufficiently developed.” Developed by whom? By the lawyer who had Duncan on the stand and never asked for the number. The court noticed the thinness of the record on adaptive behavior, “other than the testimony about his lack of personal hygiene which was presented by the defense as indicative of the appellant’s alleged schizophrenia.”[85] The gap was the lawyer’s gap. The court closed the door on the man.

There is a further problem with that ruling. The court described the Briseno test it applied as “a stop-gap measure for cases that we must decide in the absence of legislation,” a set of “temporary guidelines for determining mental retardation in the death penalty context.”[86] It acknowledged that Atkins had “left to the States ‘the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences,’”[87] and it recited a definition it said was “essentially the same as the one utilized by the American Association of Mental Retardation,” under which “’[a]daptive behavior’ means 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.”[88] In 2017, in Moore v. Texas, the United States Supreme Court struck the Briseno guidelines down as an unconstitutional departure from clinical standards, and in 2019 it reversed Texas again for continuing to apply them in substance.[89] Jamaal Howard’s intellectual disability claim was rejected under a test the Supreme Court has since declared illegitimate, on a record his own lawyer never built. The court’s own footnote supplies a final irony: “Atkins v. Virginia... was decided on June 20, 2002. Appellant was tried and convicted in April 2001.”[90] He was tried fourteen months before the Constitution caught up to him. Two judges, Meyers and Holcomb, dissented without writing a word.[91]

His state habeas application then sat for nine years.[92] The judge who had tried the case was replaced by one who had never seen a witness.[93] In December 2012, the Court of Criminal Appeals disposed of the whole thing in a page. “This is an application for writ of habeas corpus filed pursuant to the provisions of Article 11.071,” the order begins. “Applicant presents twenty-one allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court did not hold an evidentiary hearing. The trial court adopted the State’s proposed findings of fact and conclusions of law recommending that the relief sought be denied. This Court has reviewed the record with respect to the allegations made by applicant. We adopt the trial judge’s findings and conclusions.”[94] Nine of the claims, the court added, were “also procedurally barred because they could have been raised on direct appeal.”[95] The order closes with two words: “Do Not Publish.”[96]

Twenty-one claims. No hearing. Findings drafted by the district attorney’s office, signed by a judge who had never been in the same room as the defendant, adopted wholesale by the highest criminal court in Texas, and marked so that no one would ever cite them. Among the findings so adopted was the conclusion that Jamaal Howard was not mentally ill. By the time that finding was signed, the record in front of the court already held years of Jester IV admissions and a chronic schizophrenia diagnosis from every physician who had treated him.[97]

Then came federal court, and here a word about the rules is needed, because the rules are the story. A state prisoner who has lost in state court may ask a federal judge for a writ of habeas corpus, but under the Antiterrorism and Effective Death Penalty Act the federal judge may not simply decide whether the state court was wrong. The Fifth Circuit described the task: “to determine whether the state adjudications were contrary to, or unreasonably applied, clearly established federal law as determined by the Supreme Court, or unreasonably determined the facts.”[98] If the prisoner loses there too, he may appeal only with a certificate of appealability, which requires “a substantial showing of the denial of a constitutional right,” meaning “issues that are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further.”[99] And because the claim is ineffective assistance, a third layer of deference applies: “Courts strongly presume that the performance was good enough.”[100] The Fifth Circuit stacked all three and stated the resulting question: “in this posture, we ask whether it’s debatable that ‘there is any reasonable argument that counsel satisfied [Washington’s] deferential standard.’”[101]

Read that slowly. Not whether Moncriffe was ineffective. Not whether the state court was wrong to say he was not. Whether it is debatable that there is any reasonable argument that the state court was not unreasonable in saying he was not. That is the question the Fifth Circuit asked about Jamaal Howard’s life. It is a question designed to be answered no.

Jamaal’s federal petition raised three claims about his lawyer, which the Fifth Circuit summarized: “Howard complained that his lawyer had failed to investigate and proffer evidence of his mental illness that would have (1) resulted in a life instead of death sentence; (2) persuaded the jury that he was incompetent to stand trial; and (3) shown that his Miranda waiver was neither knowing nor intelligent.”[102] The district court “declined to issue the writ, holding that, though Howard had exhausted the claims, he had failed to show that the state courts unreasonably applied federal law.”[103] It also refused him an evidentiary hearing.[104] The Fifth Circuit’s opinion, written by Judge Jerry E. Smith for a panel that included Judges Costa and Ho, opens by announcing the result: “Because reasonable jurists would not dispute the issues, we deny the motion.”[105]

Jamaal said in federal court exactly what this essay has said. The Fifth Circuit recorded his argument that the state findings “were prepared by the State for a different Judge eleven years after the trial and were signed off by the new Judge without a hearing.”[106] The court did not say he was wrong. It said the argument was “forfeited” because “Howard never told the district court that he had a problem with the state courts’ method of factfinding.”[107] The specific failures of counsel on competency met the same end: Jamaal “did not, however, press those omissions in his federal petition,”[108] and the petition was “silent regarding how the state habeas court [wa]s unreasonable.”[109] “We cannot grant a COA,” the court concluded, “on an argument the district court had no chance to address.”[110] Other evidence Jamaal pointed to was waived for a different reason: he had referred the court to his district-court briefing, and “a COA applicant waives claims by directing the appellate court to briefing before the district court to support his request for a COA.”[111]

On the merits, the court dwelt on what Moncriffe had done rather than what he had not. It recited what Jamaal said a competent lawyer would have done: “(1) hired an expert to examine Howard and gather a life history ‘for mitigation purposes’; (2) discovered records suggesting that Howard injured his head in 1997; and (3) presented more witnesses and questioned them better.”[112] Against that, it quoted the district court’s finding that “Howard’s trial counsel did investigate and provide witnesses and records as to Howard’s childhood background, educational struggles, depression, and mental health issues.”[113] It noted that “counsel started and finished the proceedings by highlighting Howard’s mental issues.”[114] It agreed with the district court that “Howard’s case is plainly distinguishable ... from those in which a lawyer totally fails to examine mental health and life history,” and that “there is undeniably a reasonable argument that the lawyer satisfied Washington’s deferential standard. To say otherwise only second-guesses the lawyer’s performance as a matter of degree.”[115]

A matter of degree. The court found that Jamaal’s “protests of inadequate research fail to show a debatable issue when they are stacked against the lawyer’s investigative efforts and the bountiful testimony concerning Howard’s mental health.”[116] It invoked the rule that “[c]umulative testimony generally cannot be the basis of an [IAC] claim,” and held that “[t]he suggestion that counsel should have gone even further—say, by finding evidence of a head injury or by hiring yet another expert—does not show that the district court’s conclusion was debatable.”[117] In a footnote it reached back for older language: “Did counsel investigate enough? Did counsel present enough mitigating evidence? Those questions are even less susceptible to judicial second-guessing.”[118] Jamaal, it said, “only speculates that counsel would’ve obtained other evidence of mental illness, and jurists would not debate that that’s not enough.”[119]

Speculates. The gunshot records existed. The arrest-day notes existed. The Jester IV file existed. None of it was speculation. All of it was in the record the court was reading.

On the gunshot wound itself, the court reached for a doctrine that should trouble anyone who reads it. Evidence of brain injury, it observed, “is all ‘double edged,’” because “even if his recent claims about this evidence is true, it could all be read by the jury to support, rather than detract, from his future dangerousness.”[120] In plain language: a bullet through a teenager’s skull might have made the jury more eager to kill him, so his lawyer’s failure to mention it cannot be called prejudice.

The court even turned Jamaal’s own words against him. His “own state application,” it noted, “admitted that his ‘trial lawyer did a fairly good job of presenting some type of mental deficiency.’”[121] Some type. The phrase is its own indictment. The jury knew something was wrong with Jamaal Howard. It never learned what.

The remaining arguments fell like dominoes. Jamaal’s observation that the Eighth Amendment guarantees a capital defendant the right to present mitigation drew this reply: “that jurisprudence establishes the state’s obligation to permit Howard to submit such evidence—not his attorney’s obligation to present it.”[122] The ABA guidelines for capital defense: “waived for inadequate briefing.”[123] The evolution of Sixth Amendment law since 2001: “under professional standards from any era, reasonable jurists would not debate that the state courts reasonably applied federal law.”[124] The denial of an evidentiary hearing: “Because [Howard’s] constitutional claims fail, we need not address the merits of his evidentiary hearing claim.”[125]

The court had opened its analysis by reciting the rule for capital cases: “Because Howard sits on death row, we resolve doubts in favor of issuing a COA.”[126] It found no doubts to resolve. “The motion for a COA is DENIED. The order denying an evidentiary hearing is AFFIRMED.”[127] On January 11, 2021, the Supreme Court declined to hear the case.[128]

Now look at the whole chain. A trial court adopted the State’s findings without a hearing. The Court of Criminal Appeals adopted the trial court’s. The district court deferred to both and refused a hearing of its own. The Fifth Circuit deferred to the district court and affirmed the refusal. Every court in the sequence relied on the one before it, and the one at the bottom relied on the prosecutor. Not one of them took testimony. Not one of them heard from a doctor. Twenty-five years of litigation have produced a stack of orders and not a single hour of evidence on the only question that ever mattered, which is what is wrong with Jamaal Howard’s mind.

Why this forbids execution

Two independent constitutional principles apply here, and either one is enough.

The first is intellectual disability. Atkins v. Virginia holds that the Eighth Amendment forbids executing people with intellectual disability, because diminished capacity undercuts both of the purposes the death penalty claims to serve, retribution and deterrence.[129] The Court of Criminal Appeals itself laid out the test in Jamaal’s case: “significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period,” where “significantly subaverage” means “an IQ of 70 or below” and the developmental period is “the period before age 18.”[130]

Now lay the record beside the test. Verbal scores of 65 to 70, in the words of the court’s own examiner.[131] Functioning at “the level of an eleven or twelve year-old.”[132] A documented collapse from the ninetieth percentile to the thirtieth between second and fifth grade, squarely inside the developmental window.[133] Adaptive deficits so severe that a psychiatrist could not get through a standard test.[134] The only adjudication of that claim used a standard the Supreme Court has since condemned, and it failed for want of development by a lawyer who never asked the one question that would have developed it.

Strickland v. Washington and Wiggins v. Smith require counsel to conduct a reasonable investigation into mitigation. The Fifth Circuit acknowledged in this very case that “’[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,’” and that “[a] lawyer’s work can be deficient where he fails, at the punishment phase, to look into and present mitigating evidence of the defendant’s life history or mental illness.”[135] Moncriffe was on notice three times over: Fason told him, the family told him, and his client told him every time he opened his mouth at counsel table. Texas requires a unanimous jury to impose death. It would have taken one juror, shown the bullet wound, the schizophrenia, the IQ estimate and the second-grader who stopped being able to learn, to say no.

The second principle is present incompetency. Ford v. Wainwright and Panetti v. Quarterman forbid executing a person who lacks a rational understanding of why he is being put to death.[136] Consider who Jamaal Howard is today: a man who, at twenty, laughed when a psychiatrist told him he could be executed; who has since carried a chronic schizophrenia diagnosis through twenty-five years of state custody; whose functioning on any given morning depends on the largest dose of Haldol his doctors are permitted to give him. If Panetti protects anyone, it protects him.

Texas law provides the mechanism. Article 46.05 of the Code of Criminal Procedure allows a person facing execution to raise incompetency before the trial court, which must hold its hearing more than twenty days before the execution date.[137] With an execution set for October 7, the deadline falls on September 17, 2026, before Judge Steven Thomas of the 356th District Court in Kountze.[138] It would be the first hearing on Jamaal Howard’s mind that any court has ever held.

The State’s answer to all of this is procedure. The claims were forfeited, unexhausted, “not sufficiently developed,” raised too late by a lawyer who raised nothing on time. That answer proves the point rather than refuting it. Every default in this case traces back to the same source: a defendant who could not communicate, represented by counsel who did not try. The findings were written by the prosecution. The hearing was never held. At every level, courts that announced they would resolve doubts in his favor resolved them against him. The Constitution does not permit a state to manufacture procedural bars out of a man’s disability and then execute him for failing to clear them.

The weight

Set the case law aside for a moment and read the record as a life.

A second-grader in Silsbee scored in the top tenth of his class in math. Three years later he was near the bottom, and the teachers who watched the slide filed the numbers away. At seventeen a bullet entered his skull, and a hospital filed that away too. At twenty, with his mind giving way, he shot Vickie Swartout for the contents of a cash drawer, and a store camera recorded it. Two doctors sat with him afterward and reported that he could not understand what was being done to him. The first jury asked to decide whether he could be tried could not agree. The second, which never heard from the psychiatrist, needed less than an hour. His lawyer stood beside the court’s own expert and never asked him to tell the jury the number. Then Texas took him into its prisons, diagnosed him, hospitalized him, and medicated him to the limit for the illness its own witness had denied, while its courts signed the prosecutor’s paperwork saying the illness was not there.

The usual defense of capital punishment is that it is reserved for people who choose evil with open eyes. That description has never fit Jamaal Howard. The two justifications the Supreme Court permits for an execution, retribution and deterrence, both assume a mind capable of weighing what it does. Take that assumption away and what is left is not punishment. It is the State killing a sick man because the paperwork allows it.

Vickie Swartout’s memory is not served by a lie about who killed her. The record says who killed her: a man whose mind was already failing, who could not read the questions on a psychological test, who laughed when told he might die, and who has been a psychiatric patient of the State of Texas for a quarter century. No court has been willing to say that aloud. Before October 7, one should. Texas should not execute Jamaal Howard. It should hold the hearing it has owed him since 2001.

Notes

Texas Department of Criminal Justice, Scheduled Executions (listing Jamaal Howard, Oct. 7, 2026); Texas Coalition to Abolish the Death Penalty, Stop Executions (same); 12NewsNow, “Silsbee man convicted of 2000 murder set for execution” (Apr. 2, 2026) (reporting that the order setting the date was filed March 26, 2026).
Howard v. State, 153 S.W.3d 382, 383–84 (Tex. Crim. App. 2004) (per curiam); quoted in Howard v. Davis, No. 19-70018, slip op. at 2 n.1 (5th Cir. May 11, 2020), published at 959 F.3d 168. The convicting court was the 356th District Court of Hardin County, Cause No. 15114-A. Ex parte Howard, No. WR-77,906-01, slip op. at 1 (Tex. Crim. App. Dec. 12, 2012) (per curiam) (not designated for publication).
Howard v. State, 153 S.W.3d at 384 (point of error six).
Id. (point of error two).
Petition for Writ of Certiorari, Howard v. Lumpkin (U.S. filed 2020), cert. denied, 141 S. Ct. 1085 (2021) (hereinafter “Cert. Pet.”) (Fason’s testimony).
Cert. Pet. (MMPI-2).
Howard v. State, 153 S.W.3d 382 (point of error two).
Cert. Pet. (Duncan’s cross-examination at the competency hearing).
Howard v. State, 153 S.W.3d 382 (point of error two).
Id. (point of error six).
Id.
Id.
Id.
Id. (point of error two).
Cert. Pet. (1997 medical records).
Howard v. Davis, slip op. at 4.
Cert. Pet. (testimony of Sandra Johnson).
Cert. Pet. (testimony of Tyre Thomas).
Howard v. State, 153 S.W.3d 382 (points of error four and five, quoting the competency-hearing record).
Id. (point of error two).
Id. (citing Ex parte Briseno, 135 S.W.3d 1, 7 n.24 (Tex. Crim. App. 2004)).
Id. (point of error two).
Cert. Pet. (Duncan’s report and testimony).
Cert. Pet. (Fason’s evaluation and testimony).
Howard v. Davis, slip op. at 6.
Id.
Id. at 5 (quoting the district court).
Id. at 6 n.11.
Id. at 5 n.10 (citing Bell v. Cone, 535 U.S. 685, 699–700 (2002)).
Howard v. State, 153 S.W.3d 382 (point of error six).
Id. (point of error two).
Cert. Pet. (first competency trial).
Cert. Pet. (second competency trial).
Howard v. Davis, slip op. at 7.
Cert. Pet. (counsel’s fee).
Howard v. Davis, slip op. at 8 (quoting Howard’s COA briefing).
Cert. Pet.; see Howard v. Davis, slip op. at 8.
Cert. Pet.; see Howard v. Davis, slip op. at 8.
Cert. Pet.
Cert. Pet.
Cert. Pet.; Howard v. Davis, slip op. at 8 (”waited for the state to do so”).
Howard v. Davis, slip op. at 5.
Id.
Howard v. State, 153 S.W.3d 382 (points of error four and five).
Id.
Id. (citing Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001)).
Id.
Cert. Pet. (Fason’s recommendation of a mitigation specialist).
Cert. Pet.; see Howard v. Davis, slip op. at 4, 7.
Cert. Pet. (arrest-day notes).
Cert. Pet. (punishment-phase lay witnesses).
Cert. Pet. (fee requests).
Howard v. State, 153 S.W.3d 382 (point of error three, quoting Ranger Wilson).
Id.
Id.
Id. (quoting the prosecutor’s punishment argument).
Id. (citing Davis v. State, 782 S.W.2d 211, 222 (Tex. Crim. App. 1989)).
Id. at n.4.
Howard v. Davis, slip op. at 8.
Id. at 8–9 (quoting Howard’s briefing).
Id. at 8–9.
Howard v. State, 153 S.W.3d 382 (points of error eight and nine, quoting the State’s cross-examination of Fason).
Id.
Id.
Id.
Id.
Id. (quoting the prosecutor’s punishment argument).
Id. (point of error one, quoting the prosecutor’s punishment argument).
Id. (citing Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996)).
Id. (point of error one, quoting the prosecutor’s opening punishment argument).
Id. (point of error six).
Id. (point of error seven) (citing Salazar v. State, 38 S.W.3d 141, 146 (Tex. Crim. App. 2001); McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998)).
Howard v. Davis, slip op. at 4 (quoting Howard’s briefing).
Id.
Cert. Pet. (TDCJ records of transfer to Jester IV).
Cert. Pet. (Jester IV admission records).
Cert. Pet. (medication records).
Cert. Pet. (self-mutilation).
Cert. Pet. (Haldol dosage).
Cert. Pet. (diagnosis across successive admissions).
Cert. Pet.; compare Howard v. State, 153 S.W.3d 382 (point of error six) (Gripon’s diagnosis).
Howard v. State, 153 S.W.3d 382 (point of error two, quoting appellant’s brief).
Id.
Id. (citing Stevenson v. State, 73 S.W.3d 914, 917 (Tex. Crim. App. 2002)).
Id.
Id. (citing Ex parte Briseno, 135 S.W.3d 1, 5 (Tex. Crim. App. 2004)).
Id. (quoting Atkins v. Virginia, 536 U.S. 304, 317 (2002)).
Id. (quoting Tex. Health & Safety Code § 591.003(1) and citing Briseno, 135 S.W.3d at 7).
Moore v. Texas, 581 U.S. 1 (2017); Moore v. Texas, 139 S. Ct. 666 (2019) (per curiam).
Howard v. State, 153 S.W.3d 382, at n.10.
Id. (”MEYERS and HOLCOMB, JJ., dissent.”).
Cert. Pet.; compare Howard v. State (Oct. 13, 2004) with Ex parte Howard (Dec. 12, 2012).
Cert. Pet.; see Howard v. Davis, slip op. at 5 n.9.
Ex parte Howard, No. WR-77,906-01, slip op. at 1–2.
Id. at 2 (citing Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989)).
Id. at 2.
Cert. Pet. (State’s proposed findings; TDCJ psychiatric records in the habeas record).
Howard v. Davis, slip op. at 4 (citing 28 U.S.C. § 2254(d)(1)–(2)).
Id. at 3 (quoting 28 U.S.C. § 2253(c)(2) and Raby v. Davis, 907 F.3d 880, 883 (5th Cir. 2018)).
Id. at 3 (citing Rockwell v. Davis, 853 F.3d 758, 761 (5th Cir. 2017)).
Id. at 4 (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).
Id. at 2.
Id. (citing 28 U.S.C. § 2254(d)).
Id. at 2 n.2.
Id. at 1.
Id. at 5 n.9.
Id. (citing Thompson v. Davis, 916 F.3d 444, 460 (5th Cir. 2019); Garcia v. Davis, 704 F. App’x 316, 321 n.2 (5th Cir. 2017); Carty v. Thaler, 583 F.3d 244, 266 (5th Cir. 2009)).
Id. at 8.
Id. (quoting the district court).
Id. (citing Thompson, 916 F.3d at 460).
Id. at 4 n.8 (quoting McGowen v. Thaler, 675 F.3d 482, 497 (5th Cir. 2012)).
Id. at 4.
Id. at 5 (quoting the district court).
Id.
Id. at 6.
Id.
Id. at 6–7 (quoting Richards v. Quarterman, 566 F.3d 553, 568 (5th Cir. 2009)).
Id. at 7 n.15 (quoting Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999)).
Id. (citing Whitaker v. Quarterman, 200 F. App’x 351, 355 (5th Cir. 2006)).
Id. at 7 n.14 (quoting Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002)).
Id. at 7.
Id. at 4 n.7 (citing Buchanan v. Angelone, 522 U.S. 269, 276 (1998)).
Id. at 6 n.13 (citing Woods v. Cockrell, 307 F.3d 353, 357 (5th Cir. 2002)).
Id. at 7 n.13.
Id. at 9 (quoting Jackson v. Davis, 795 F. App’x 939, 940 (5th Cir. 2020)).
Id. at 3 (citing Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000)).
Id. at 9.
Howard v. Lumpkin, 141 S. Ct. 1085 (2021) (mem.); Order List, 592 U.S. (Jan. 11, 2021).
Atkins v. Virginia, 536 U.S. 304, 318–21 (2002).
Howard v. State, 153 S.W.3d 382 (point of error two) (quoting Tex. Health & Safety Code § 591.003(13) and citing Briseno, 135 S.W.3d at 7 & nn.24–25).
Id. (points of error four and five).
Id. (point of error two).
Id.
Id.; Cert. Pet.
Howard v. Davis, slip op. at 3–4 (quoting Strickland v. Washington, 466 U.S. 668, 691 (1984), and citing Williams v. Taylor, 529 U.S. 362, 395–96, 398 (2000); Lockett v. Anderson, 230 F.3d 695, 711 (5th Cir. 2000)); Wiggins v. Smith, 539 U.S. 510 (2003).
Ford v. Wainwright, 477 U.S. 399 (1986); Panetti v. Quarterman, 551 U.S. 930 (2007).
Tex. Code Crim. Proc. art. 46.05.
Id.; Ex parte Howard, No. WR-77,906-01, slip op. at 1.