Attorneys: IQ Should Be Just 1 Consideration In Mental Retardation Claims

By LIZ SIDOTI, Associated Press Writer

COLUMBUS, Ohio (AP) - IQs should be considered -- but not the main factor -- when determining who is mentally retarded and therefore ineligible to be executed, attorneys for the state and a convicted killer told the Ohio Supreme Court.

Ohio is among the states setting standards to judge mental retardation after a U.S. Supreme Court ruling in June. The high court said executing mentally retarded killers was cruel and unusual punishment.

The state court is using the case of Gregory Lott to help define mental retardation in death penalty cases. Lott's Aug. 27 execution for killing an East Cleveland man in 1986 was postponed after he claimed he had a low IQ.

Joe Bodine, an assistant Ohio public defender, pointed out Wednesday that the American Association on Mental Retardation's latest professional standards condemn the use of IQs as the only or the main factor considered for diagnosing mental retardation.

"This should be more than just a race to the court with who can get the lowest score," agreed Jon Oebker, an assistant Cuyahoga County prosecutor.

The attorneys say that as recommended in AAMR guidelines, other factors such as defendants' day-to-day functioning and their actions and behaviors during their childhood and teen years, or their developmental periods, also must be considered.

Lott, 41, is among 12 death row inmates in Ohio who have appealed their sentences based on mental retardation. The state says no one on death row is mentally retarded.

An IQ of 70 or lower is generally considered one indicator of mental retardation, according to AAMR guidelines.

The state has measured Lott's IQ at 72, but his lawyers say that falls within the five-point margin of error accepted by the American Psychiatric Association. That means Lott's IQ could be as low as 67.

On Wednesday, the two attorneys disagreed over the burden of proof and role of juries in mental retardation appeals.

Bodine said the state should have to prove that an inmate isn't mentally retarded, which would be consistent with procedures in death penalty cases involving juveniles. The state can seek a death sentence only if it proves the defendant wasn't a minor when the crime was committed.

But Oebker told the justices that defendants should have to prove they are mentally retarded just as they now must prove claims of insanity.

"In every other context dealing with mental abilities, it's consistent that it's the defendant's burden to carry their claim whether it's guilty by reason of insanity, competency," he said.

Bodine argued that a jury should decide if a person is mentally retarded no matter if the claim is raised before or after conviction. Oebker said that was not required by the U.S. Supreme Court ruling.

"Moreover, it would just be impractical to have to re-panel a jury," Oebker said. "It just seems like we would create a lot more problems when it's not required."

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