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Mentally retarded defandants, Wrongful convictions, Jerry Frank Townsend, Atkins v. Virginia, Miranda rights


Civil Procedure | Constitutional Law | Evidence


"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder.

Lennie was doomed because he lived in a fictional world where virtually no one understood the nature and severity of his intellectual disability, and thus people were predisposed to believe that Lennie was a cold-blooded murderer who deserved the ultimate punishment. But how would Lennie fare today--not in Steinbeck's fictional Depression-era America, but in the twenty-first century and in our current criminal justice system? Is the criminal justice system equipped to fairly treat mentally retarded defendants in the quest for "truth"?

In this article we have argued for a number of procedural protections to safeguard mentally retarded defendants against the heightened risk of wrongful conviction, i.e., providing counsel or an advocate with training in mental retardation, creating safeguards against the admissibility of false confessions, assuring the reliability of informant and codefendant testimony, informing the jury of the heightened risk of error and altering current burdens of proof. We have elected to sketch several procedural protections rather than defend one or another as the most crucial. For any criminal justice system committed to protecting the Lennies of the world against the heigbtened risk of being found guilty of crimes they did not commit, these procedures are a necessary beginning.

Publication Citation

John H. Blume et al., "Convicting Lennie: Mental Retardation, Wrongful Convictions, and the Right to a Fair Trial", 56 New York Law School Review (2011/2012)