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High court takes up death penalty for retarded

  Law Center  -   POSTED: 2007/09/10 16:56

A man who has been on Georgia’s death row for most of his life should not be executed because he is mentally retarded, the defendant’s lawyer told the state Supreme Court Monday.
But a Floyd County prosecutor said IQ tests show that James Randall Rogers, 46, of Rome does not meet the standard of “significantly subaverage” intelligence required by state law to exclude a convicted killer from capital punishment.

Rogers was convicted and sentenced to death for murdering Grace Perry, his 75-year-old neighbor, with a rake handle in 1980, when he was 19. He also was sentenced to 10 years for aggravated assault for attacking the victim’s 63-year-old cousin.

In 1988, Georgia became the first state to prohibit the death penalty for defendants who are mentally retarded. Then in 2002, the U.S. Supreme Court held that executing the mentally retarded is unconstitutional.

At issue in Monday’s hearing was an appeal filed on Rogers’ behalf after a 2005 trial in which a jury found that he is not mentally retarded.

The state’s witnesses at the trial included a professional counselor who administered an IQ test to Rogers. He answered a number of questions correctly, including naming the U.S. president during the Civil War and the population of the Earth.

“The answers on that test indicate that Mr. Rogers is not that much below average,” said Martha Jacobs, chief assistant district attorney for the Rome Judicial Circuit.

Jacobs said Rogers is a voracious reader and has used the law library at the state prison in Jackson to do research on his case.

In fact, shortly after the General Assembly banned executing the mentally retarded, Rogers wrote letters waiving his right to a competency trial. In one letter, he argued that it would be a waste of tax money because he has an IQ of 85.

One generally accepted indication of subaverage intelligence is scoring below 70 on IQ tests.

However, the case went forward after the state Supreme Court ruled that a defendant in such cases can not waive his or her right to a competency trial.

On Monday, Rogers’ lawyer, Ralph Knowles Jr., said his client suffers from a “severe organic brain injury” that has impaired his mental functioning since childhood.

Knowles suggested that the court broaden the state’s standard for mental retardation to include such a brain injury and not rely strictly on IQ scores to decide whether a defendant should be executed.

“Surely, this state cannot determine life or death based on whether a person’s scores are two points below standard deviation,” he said.

Knowles also accused the state of violating Rogers’ due-process rights and argued that those technical violations alone would be enough for the court to vacate his death sentence.

Knowles said the trial judge refused to allow one of the lawyers Rogers had chosen to speak for him in court, and he charged that the counselor who administered the IQ test to his client and then testified about the results was not qualified as an expert witness.

“His testimony is not believable,” Knowles said. “The state would have you believe that Mr. Rogers somehow got smarted up sitting there on death row.”

Jacobs said the lawyer who wasn’t allowed to speak for Rogers during the trial did participate in other aspects of his defense, including filing briefs.

Jacobs also defended the expert witness as a trained “psychometrist,” a specialist in psychological testing, who found Rogers both articulate and with an excellent short-term memory.

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