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1        Brad Slape passed away on July 16, 1995.  His testimony from the April 1991 trial was read into the record for this proceeding. (Tr. 648-670)

2        Brad Slape told the police officers that he thought he knew one of the robbers and if they could get him a yearbook he would be able to give them a name.  Officer Tolar retrieved a yearbook, State Exh. 3, from Okmulgee High School and Brad Slape identified Mr. Hammon. (Tr. 367-370)

3        The medical examiner, Dr. Ronald F. Distefano testified that the victim died as a result of a gunshot wound to the chest.  He opined that the victim had been shot three times, twice at close range.  (Tr. 405-408; State Exh. 1).

4          September 9, 1998 Affidavit of C. Alan Hopewell, Exhibit 3, to Mr. Hammon=s Application for Evidentiary Hearing on Sixth Amendment Claims, filed in Hammon v. State, F-97-910.  Dr. Hopewell=s Affidavit, and the remainder of the Application for Evidentiary Hearing on Sixth Amendment Claims are incorporated as if fully set forth herein and by operation of the Court=s Rule 1.13 (F) and 9.7 (D)(1), 22 O.S. Ch. 18, App.

5        Trial counsel did file a Motion to Strike Bill of Particulars and Declare Death Penalty Unconstitutional When Sought Against a Mentally Retarded, Neurologically Damaged Defendant (O.R. 468), which the District Court denied (6/19/96 Motion Hrg. Tr. at 6-7).

6        In the event this Court determines that the evidence and arguments presented in this proposition should have been raised and presented on direct appeal, Petitioner also requests review of this issue pursuant to 22 O.S. ' 1089 (D)(4)(b)(2), because appellate counsel=s failure to present this evidence and argument denied Petitioner the effective assistance of counsel.  U.S. Const. Amends. 6, 14; Okla. Const. Art. II ' 7, 20.

7        E.g., Note: The California Initiative Process: A Suggestion for Reform, 48 S.Cal.L.Rev. 922, 923 (1975) (AThe primary motivation for the initiative process in California was the public=s desire to counter the lobbyist, the conduit of legislative influence exercised by and for economic and other special interests@).  A study of three Colorado ballot initiatives found that the pro-initiative side began with a commanding lead which diminished during the progress of the campaign.  In each case, corporate backed opposition forces heavily outspent their counterparts.  Each initiative was defeated. Mastro, Costlow, and Sanchez, Taking the Initiative: Corporate Control of the Referendum Process Through Media Spending and What to Do About It, 32 Fed.Comm.L.J. 315 (1980).  In a 1981 study of 19 campaigns, the side with corporate financial backing outspent their opponents by better than 2 to 1 in 15 campaigns and won 12 of those. S. Lyndenberg,  Bankrolling Ballots: Update 1980, cited in Citizens Against Rent Control, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981).

8        Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 2501(1995) (illustrating the political situation of disenfranchised blacks who Ahad no electoral influence, hence no muscle to lobby the legislature for change@), citing Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 (1949) (per curiam) (discriminatory application of voting tests);   Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939) (procedural hurdles);   Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915) (grandfather clauses).

9          Newport, Saad & Moore, Where America Stands (Wiley & Sons 1997), republished by the Gallup Organization at

10      Id.  Ronald K. Gaddie, Ph.D., Personal Conversation.  See also, Grasmick, H. & Bursik, R., Attitudes of Oklahomans Toward the Death Penalty, Center for the Study of Crime, Delinquency and Social Control (Univ. of Okla. 1988), at 13.  The Grasmick Study is attached to this application as Exhibit 6.

11      Id., at 590, 113 S.Ct. at 2795.

12      Penry, 492 U.S. at 334-335, 109 S.Ct. at 2955.  Internal citations omitted.

13      The IRSS website is

14      Harris Study No. 883006.

15          Capstone Poll, Institute For Social Science Research at the University of Alabama, IRSS Study NNSP-AL-017.

16      The California Poll, Field Institute, IRSS Study No. NNSP-CA-58.

17          Grasmick, H. & Bursik, R., Attitudes of Oklahomans Toward the Death Penalty, Center for the Study of Crime, Delinquency and Social Control (Univ. of Okla. 1988), Exhibit 6 in the Appendix.

18      D.W. Keyes & W.J. Edwards, Mental Retardation and the Death Penalty: Current Status of Exemption Legislation 688 (ABA 1997), Table 1.

19          Lambert, 1999 OK CR 17 & 10, fn. 19 (Opinion of Chapel, Concurring in Part, Dissenting in Part)

20          Grasmick, H. & Bursik, R., Attitudes of Oklahomans Toward the Death Penalty, supra, note 17, at 47.

21      The mental age parameters for the survey question correspond to mentally retarded offenders such as Johnny Penry (mental age 6 2 years), see Penry v. Lynaugh, supra;  Robert Lambert (mental age 8 years), see Lambert, supra, note 19; and William Alvin Francis (mental age 10 years), see Smith v. Francis, 474 U.S. 925, 926, 106 S.Ct. 260, 261 (1985) (Marshall, J., dissenting)  .  See Appendix A to the Gaddie Survey, the Survey Instrument.  Professor Gaddie=s curriculum vita is Exhibit 4 to the Appendix of Exhibits.

22      The independent survey firm made 2,259 phone calls, obtaining a total of 794 answers at the called residences.  Of those, 484 adult persons agreed to answer the survey, while 310 refused.

23            Gaddie Survey, Exhibit 5, at 1.

24      Id., at 3.

25          Grasmick & Bursik, Attitudes of Oklahomans Toward the Death Penalty, supra note 17, at 26.

26          Gaddie Survey, Exhibit 5, at 4.  The survey instrument did not list Adepends@ as a choice for respondents.  Respondents whose answer depended on the particular facts were required to volunteer that response.

27      Id., at 4.  By comparison, the 1988 Gramsick/Bursik Study found that 44.8% of respondents Astrongly favor@ capital punishment when the offender is 18, and only 25.8% favored capital punishment when the offender was under 16.  Gramsick & Bursik, supra, note 17, at 47.

28      Id., at 6.

29      Id., at 6-7.  The results of the Gaddie Survey also corroborate the observation of Gramsick and Bursik that Athe mental health of the offender has an even greater impact on support for the death penalty than does the offender=s age.@  Gramsick & Bursik, supra, note 17, at 47.

30      Id., at 6-7.

31      Id., at 1.

32      The fact that Oklahoma has apparently not executed a  mentally retarded offender in the modern death penalty era and in almost ten years of active state executions would suggest that the punishment is Aunusual@ and thus forbidden under the state constitution, whether it is considered Acruel@ by this Court or not. Okla. Const., Art. 2 ' 9 protects prisoners from cruel or unusual punishments and thus provides greater protection than the federal constitutional prohibition against Acruel and unusual punishments.  Lambert v. State, 1999 OK CR 17 & 15,  ___ P.2d ___ (1999)(Chapel, J., concur in part and dissent in part) and fn. 30 thereof.

33      D. Keyes, W. Edwards & R. Perske, APeople with Mental Retardation are Dying, Legally,@   Mental Retardation, (Vol. 35 # 1, Feb. 1997), updated by the Death Penalty Information Center.  For a table of all inmates believed to be mentally retarded who were executed in the modern era of capital punishment (since 1976), see

34          Ollman v. Evans, 750 F.2d 970, 995-996 (1984)(en banc)(Bork, J., concurring). 

35      Cf. Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 585 (1927).  In Buck, Justice Holmes upheld an involuntary sterilization statute with the observation that A[i]t is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind...Three generations of imbeciles are enough.@  Justice Holmes= eugenic approach to the mentally retarded typified 19th and early 20th century prejudice against the mentally retarded.  See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 3266 (1985)(Marshall, Brennan, and Blackmun, JJ., concurring in part and dissenting in part)(noting that in the late 19th and early 20th century A[a] regime of state‑mandated segregation and degradation [of the retarded] soon emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow.  Massive custodial institutions were built to warehouse the retarded for life;  the aim was to halt reproduction of the retarded and >nearly extinguish their race.=  Retarded children were categorically excluded from public schools, based on the false stereotype that all were ineducable and on the purported need to protect nonretarded children from them.  State laws deemed the retarded >unfit for citizenship=@).  

36      D. Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 Georgetown L. J. 1059, 1060 (May, 1999) (noting that modern judicial expansion of substantive legal protections in the area of A...constitutional criminal procedure has an even more specific genesis in the need to protect those whom the political process will not protect@and reflects Aa heightened concern for those unlikely to find protection through the political process@).