Supreme Court Postpones Inmate's Execution - Cleveland 19 News Cleveland, OH

Supreme Court Postpones Inmate's Execution

By JOHN McCARTHY, Associated Press Writer

COLUMBUS, Ohio (AP) - The Ohio Supreme Court on Wednesday postponed the Aug. 27 execution of convicted killer Gregory Lott in response to an appeal based on his claim of mental retardation.

The U.S. Supreme Court ruled June 20 that the execution of mentally retarded inmates is unconstitutional as cruel and unusual punishment. But it left to the states the method of defining retardation.

Lott, 41, was among several death row inmates who filed appeals in the weeks after the ruling and is the first of them to have an execution date.

He was convicted of the 1986 slaying of John McGrath, who was attacked and set on fire in his East Cleveland home.

The Ohio Supreme Court also turned down a motion Lott filed based on a claim of innocence. The court did not rule on Lott's request to reduce his sentence on his claim of mental retardation.

The ruling Wednesday only means the execution will not take place on Aug. 27.

The U.S. Supreme Court's ruling in June means that people charged with a killing cannot face a death sentence if they can show they are mentally retarded, generally defined as having an IQ of 70 or lower.

Last month, a mentally retarded Pennsylvania man who murdered two archaeologists in 1988 became the first convict in the country to be taken off death row last month because of the landmark ruling.

Assistant state Public Defender Joe Bodine said the Ohio Department of Rehabilitation and Correction has measured Lott's IQ at 72.

Bodine, whose office is defending Lott, said that number falls within the five-point margin of error accepted by the American Psychiatric Association, meaning Lott's IQ could be as low as 67.

The state maintains that no one on death row is mentally retarded.

Lott should not be executed because he does "not act with the level of moral capability that characterizes the most serious adult criminal conduct," his lawyers argued, quoting the majority opinion of the U.S. Supreme Court.

Lott has scored as high as 86 on other IQ tests, and his own expert at trial said Lott had an IQ of 77, said Jon Oebker, an assistant Cuyahoga County prosecutor who is fighting the appeal.

Oebker added that Lott had not exhibited "any limitations of adaptive abilities that would lead to the conclusion of being retarded."

Joe Case, spokesman for Attorney General Betty Montgomery, said Montgomery was not surprised at the court's ruling.

"This is the first case like this with a death date in place," said Case, whose office also argues that Lott is not retarded. "We understand the justices wanting to take their time."

The appeal the Supreme Court rejected argued that prosecutors concealed evidence that could have pointed to Lott's innocence.

The defense attorneys said the jury never was told that before he died, McGrath described a suspect who did not match Lott's physical description.

Oebker said McGrath provided the description from his hospital bed, where he lay badly burned and slipping out of consciousness for a week. The difference between the description and Lott's appearance was not strong enough to have affected the trial, Oebker said.

He said evidence about McGrath's description was available to the defense at the time, but he has no proof that the lawyers ever saw it.

Lott's attorneys also have asked Gov. Bob Taft for clemency based on Lott's claims of innocence and mental retardation. The Ohio Parole Board, which heard Tuesday from prosecutors, defenders and members of Lott's family, said it would issue a recommendation to Taft no later than Friday.

(Copyright 2002 by The Associated Press. All Rights Reserved.)

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