But relatively few Americans are expected to contest the planned execution of Oliver David Cruz Wednesday. Why? Cruz makes a bad poster boy for anti-death-penalty crusaders because -- by all accounts, including his own -- he is guilty of his crime. In 1988, Cruz and a friend got drunk and high on LSD, and kidnapped, raped and stabbed to death 24-year-old Air Force linguist Kelly Donovan, who was out for her evening walk in San Antonio.

Cruz's defenders say that the state should look at his life before the crime when deciding on his penalty. The Texan flunked out of the seventh grade three times, the Army refused to accept him after he failed its entrance exam three times and he recently boasted to a New York Times interviewer that his intelligence is improving. "Now I can write a letter," Cruz said, "a half a page."

Though prosecutors now assert that Cruz's I.Q. once tested as high as 83, his defenders say his I.Q. hovers around 70, the mark for mental retardation. Of the 38 states that employ the death penalty, 13 have provisions prohibiting execution of the mentally retarded. And, ironically, if Bush doesn't intervene on Cruz's behalf before his scheduled lethal injection at 6 p.m. Wednesday, he will be supporting an execution that his brother Jeb Bush, governor of Florida, has said is wrong. Jeb Bush told reporters in April that "people with clear mental retardation should not be executed."

In an interview with Salon, University of New Mexico law professor Jim Ellis -- an advocate of laws exempting mentally retarded convicts from the death penalty -- argues that, guilty or not, Cruz shouldn't die for his crime.

The last Texas death penalty case that drew a lot of attention was that of Gary Graham. But with this case, there hasn't been as much scrutiny. Do you feel that anti-death-penalty advocates have been as engaged in Cruz's case as they were in the Graham case?

You want to be careful not to jump to that conclusion prematurely. Judging by the letters and calls I've been receiving, this case is getting substantial attention.

The important thing to remember is that the momentum on these laws [affecting the execution of people with mental retardation] is coming more from advocates for the disabled, not from the organizations dealing with the death penalty. The way the disability advocates have dealt with this is to quietly meet with legislators so that the debate doesn't get divisive. Because of that, we've gotten a lot of bipartisan support at the state legislative level.

I understand why people are so focused on the innocence cases. They are, by far, the most dramatic. But I am concerned that the issue of innocence is so much of the story. There are issues beyond DNA in [applying] the death penalty. What the DNA is showing us is that there are other mistakes being made in these cases, and those need to be taken into account.

Do you think that the fact that Cruz admitted to this crime is going to affect public support for your position?

The position that we shouldn't execute people with mental retardation is quite clear. Texas is saying they're not sure whether Mr. Cruz has mental retardation, but they didn't offer evidence at trial that he doesn't. They didn't offer evidence at any subsequent hearing that he doesn't. But they say they're not sure because of test scores. Well, if they're in doubt of that, grant a stay and a clinical investigator to test him and find out. It isn't clear why uncertainty should lead to execution.

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