August 18 KANSAS: Attorney general files brief in death penalty case The state Supreme Court erred when it rejected Kansas' death penalty law as unconstitutional, Attorney General Phill Kline argued in a filing with the U.S. Supreme Court. In his 36-page brief, Kline basically restated what he has said before - the Kansas high court was mistaken and the death penalty should be upheld. The brief was filed Monday but wasn't announced by his office until Wednesday. The Kansas case, which will be heard by the justices on Dec. 7, is among 4 death penalty cases the nation's highest court will take up in its next term. At stake is the fate of 7 men sentenced to death who still could face execution if the law is upheld. No one has been executed in Kansas since it reinstated the death penalty in 1994. In December, the Kansas Supreme Court ruled the law was flawed because of how it said juries should consider the evidence for imposing a death sentence. At issue is the section that says if evidence for or against imposing capital punishment seems equal, the jury must choose death. The Kansas court said that in such cases the defendant should benefit. To do otherwise, it said, amounts to cruel and unusual punishment and violates defendants' right to due process. The ruling came in the case of Michael Marsh II of Wichita, sentenced to die for the June 1996 deaths of Marry Ane Pusch, 21, and her 19-month-old daughter, Marry Elizabeth Pusch. The mother was repeatedly shot and stabbed, the house was set afire and the toddler left to burn to death. Kline said in his brief the law isn't a 1-way ride to death row. "Without question the Kansas capital sentencing system begins with the presumption that life in prison - not death - is the appropriate sentence for capital murder," he wrote. "The death penalty becomes a possibility only if the state, after a capital conviction, goes forward with a separate sentencing hearing." Kline also rejected previous arguments by defense attorneys. "The picture painted by respondent of befuddled jurors struggling to decide which weighs more and ultimately throwing up their hands and saying, 'We can't decide, so we have to impose death,' is pure fancy," he wrote. In addition to Marsh, the Kansas decision also invalidated the death sentences of brothers Reginald and Jonathan Carr, John Robinson Sr., Douglas Belt and Gavin Scott. The Carrs were convicted for the 2000 shooting deaths of 4 Wichita residents; Robinson was convicted in 2002 of killing 2 women whose bodies were found in barrels on his farm; Belt was convicted in 2004 of killing 43-year-old Lucille Gallegos; and Scott was convicted in 1998 of killing Doug and Elizabeth Brittain in 1996. Additionally, Gary W. Kleypas had his sentence overturned in 2001 and was awaiting resentencing, with death still an option. It was his case in which the court first identified the problem. While his conviction was upheld, the court ordered that he be resentenced with revised jury instructions. Legislators could have fixed the flaw by rewriting the law earlier this year. But they felt doing that could discourage the nation's high court from accepting the appeal and would end any chance that those on death row would face execution by lethal injection. The last executions in Kansas were in 1965 when serial killers George York and James Latham were hanged at Lansing State Penitentiary, where any future executions will be conducted. The death penalty law in all states was struck down in 1972 by the U.S. Supreme Court, which allowed executions to resume in 1976. --- The case is State v. Michael L. Marsh II. In the U.S. Supreme Court, it's No. 04-1170. For the Kansas Supreme Court, it's No. 81,135. On the Net: U.S. Supreme Court: http://www.supremecourtus.gov Kansas Supreme Court: http://www.kscourts.org (source: Associated Press) OHIO: Murder conviction based on lies, attorneys say With John Spirko's execution less than 5 weeks away, his attorneys have directly attacked the integrity and credibility of the former federal agent most responsible for putting their client on death row for the 1982 murder of a rural postmaster. In a request for clemency filed with the Ohio Parole Board on Wednesday, the lawyers argued that Spirko's conviction flowed almost entirely from the work of a man who has recently been discredited by his own statements under oath and on tape, and who has shown himself "able and willing to misrepresent the truth" to preserve Spirko's conviction. Since April of last year, former Postal Inspector Paul Hartman has told at least 3 individuals - 2 of them in tape-recorded interviews - that he never be lieved a key element of the case brought against Spirko in 1984, and that he told prosecutors of his doubts before the trial began, according to court documents. Hartman has since offered inconsistent explanations for those statements. Hartman's apparent doubt about evidence that he was so pivotal in assembling, meanwhile, has gotten the attention of a federal judge in Toledo, who is considering a request from Spirko's lawyers to reopen the case. U.S. District Judge James Carr last month noted Hartman's central role in Spirko's conviction and said that the issues raised by the former agent's recent statements deserve further scrutiny. Carr even suggested that the state join in a request by Spirko's lawyers that the Ohio Supreme Court delay the Sept. 20 execution to give him time to conclude his review. But Ohio Attorney General Jim Petro's office declined, insisting that Spirko be put to death on schedule. Petro has argued that nothing in Hartman's recent statements undermines Spirko's conviction, which has been upheld during several rounds of appeals. A spokesman reiterated that position Wednesday. With the clock ticking, Spirko's lawyers are scheduled to appear before the parole board Tuesday. The board will then recommend to Gov. Bob Taft whether to grant clemency. Arguing that Spirko was wrongly convicted because of errors and misconduct by the state, the inmate's attorneys said their client deserves a full pardon from the governor. Taft should at least grant clemency from execution, they said, arguing that far too much doubt exists about Spirko's guilt to allow the "ultimate punishment" to be carried out. In the meantime, they said, the governor should issue a reprieve while the federal case plays itself out in Toledo. Hartman said Wednesday that it was Spirko's lawyers who have misrepresented the truth. "All they're trying to do," Hartman said, "is try the police rather than try the facts, because they have no facts to try." Postmaster Betty Jane Mottinger was abducted from the tiny Elgin, Ohio, post office in the summer of 1982 and fatally stabbed. Dozens of officers participated in the investigation, but it was Hartman - during a series of jailhouse interviews with Spirko - who generated virtually all of the evidence used to convict him. In jail on an unrelated matter, Spirko came forward in late 1982 saying he had information about the Mottinger case and was willing to share it in return for lenient treatment. In a dozen interviews over the next 2 months, Spirko told Hartman a series of elaborate lies, attributing the crime to an ever-changing cast of shady characters, all of whom Hartman said he investigated and ruled out. But in their next-to-last interview, documents show that a frustrated Hartman steered their conversation toward Spirko's best friend and former prison cellmate, Delaney Gibson, by bringing up Bear Branch, Ky., Gibson's tiny hometown. Spirko took the bait, disavowing everything he said before and telling Hartman that it was Gibson who killed Mottinger and later told him all about it. This Gibson connection provided a linchpin for prosecutors - even though Hartman, according to his recent statements, never believed it, developed evidence that tended to disprove it and shared his doubts about it before the trial with then Van Wert Prosecutor Stephen Keister. Keister has denied being told that. Keister argued in court that Spirko and Gibson abducted and killed Mottinger together. The strongest link to the scene of the crime came from an eyewitness, who identified a years-old photo of Gibson as the clean-shaven stranger she saw in Elgin the morning of the murder. But what prosecutors didn't tell the jury - or Spirko's lawyers - is that Hartman had collected photographs and witness statements that placed a bearded Gibson more than 500 miles away the night before the crime. Spirko's lawyers didn't even learn of this evidence until 1996, 12 years after Spirko was sentenced to death. They have argued on appeal ever since that prosecutors hid key evidence and convicted Spirko using a theory they knew to be false. But beginning in early 2004, Hartman disclosed to a number of people - including Connie Mottinger, the 2nd wife of the slain postmaster's widowed husband; a Plain Dealer reporter and Spirko's attorneys - that he never believed Gibson was involved and shared his doubts with Keister. Asked under oath about those statements this summer, Hartman said that, in a deliberate attempt to mislead, he had lied to Spirko's attorneys and to The Plain Dealer in a taped interview. When asked about nearly identical statements he made in 2004 in a taped conversation with Connie Mottinger, Hartman said he either misspoke or the transcript was in error. But Spirko's lawyers now contend that Hartman's apparent lack of candor raises even more doubts about the legitimacy of Spirko's conviction. In opposing Spirko's appeals, attorneys for the state have downplayed questions about Gibson, arguing that Spirko was convicted because he revealed "intimate details" about the crime during his jailhouse interviews with Hartman that only the killer could have known. But Spirko's lawyers say some of those details were wrong. Some were in the news before Spirko met with investigators. And some, the lawyers say, may have been suggested by Hartman - just as he led Spirko to Gibson by dropping the name of Bear Branch, Ky. Because Hartman didn't tape any of his sessions with Spirko, the lawyers said, there's no way to know where the critical information came from. (source: Plain Dealer) ***************************** Interview with Siddique Abdullah Hasan Siddique Abdullah Hasan co-founded Compassion newsletter to develop healing communication between capital punishment offenders and murdered victims families. The respected Sunni Muslim prison Imam was sentenced to death for his alleged leadership in the 1993 Lucasville prison rebellion. Hasan, who is on death row at Ohios supermax prison in Youngstown, is appealing the sentence. Sturm: How do you think the relocation of death row inmates is going to impact the situation for current prisoners? Siddique Abdullah Hasan: First of all, their arrival would most likely have a negative impact on how outdoors recreation is administered. Namely, there would not be enough hours to assure that everyone gets outdoor recreation 5 days per week. Next, it is believed that the few death-row prisoners already housed here will probably be moved to the same housing area as the new arrivals, but thats no guarantee because prison officials possess broad discretion in ones placement and are known to do whatever they desire without having to answer to anyone. Finally, they will be given extra privileges which are not afforded to those already housed here, so this would inevitably put a sour taste in the latters mouths. The question will be: Why is death row afforded more privileges when everyone here is supposed to be on general population status? Simply put, regardless of ones level, everyone in the same prison should be furnished equal privileges and treatment under the law. This is the case for all general population prisoners at other prisons in Ohio. Sturm: Is there anything you would like to share with people currently on death row in Mansfield, in anticipation of a possible move to Youngstown? Hasan: Yes, despite what the wardens at the sending and receiving prison have been telling them about how conditions will be better for them here, do not believe it. Such talk is merely drivel, merely to smooth them into signing a waiver to move here. While they will get a few extra privileges, they will lose much more than they bargain for. Therefore, they should not swallow the bait, hook, line and sinker. Moreover, they should not forget the fact that this place was designed to house the so-called "worst of the worst" (a behavior they have not yet exhibited during their imprisonment), to institute behavior modification, and to facilitate extreme sensory deprivation and social isolation. So, why would any sane prisoner agree to move here from Mansfield? The foul disposition and attitudes of some guards here will not be conducive to their mental, moral and spiritual development. Sturm: Regarding Lucasville: Why do you think you were the prosecutions target? Hasan: I was a well-respected and influential Imam (prayer leader) at the Southern Ohio Correctional Facility (S.O.C.F.) in Lucasville. Seeing that some Muslims, as well as some non-Muslims, participated in the rebellion, it was blindly believed that the rebellion could not have happened without my knowledge and consent. While I did receive knowledge about it only moments before it happened, I did not give my consent. Yet, due to the xenophobia of Islam and its adherents in non-Muslim societies, the prosecution knew it could readily demonize me and play on the fears and biases of my jury by constantly making my religion an issue. To put it bluntly, my rank and religious affiliation were used as tools to secure my conviction, a conviction which is a gross and quintessential miscarriage of justice. Sturm: Do you feel that prison guards generally treat you with respect at the Ohio State Penitentiary? Do you ever sense discrimination due to your religious convictions (as a Sunni Muslim) or race? Hasan: While I can't say prison guards respect me, mainly because I have a broader understanding of the word "respect," I can say they give me my space -- that is, they don't bother me. I've only had one prison guard, Lt. Carter, disrespect me. Lt. Carter, a well-known troubleshooter, unquestionably believes that I ordered the murder of the only prison guard slain during the rebellion. As a result, he eagerly awaits my execution and had mouthed off at me on several occasions. In fact, he had the audacity to tell me, "When the time comes, make sure you invite me [to your execution]." Notwithstanding his belief and desire to either do or see bodily harm done to me, this troubleshooter poses no direct physical threat. Besides, let's not forget he's a handicap -- possesses an artificial leg -- and I'm in excellent physical shape. Therefore, it would be akin to suicide for him to attack or lunge at me while Im not in handcuffs and shackles. No one has played the "race card" with me. However, I have been discriminated against due to my religious convictions and desire to practice my orthodox beliefs. For over 7 years, I was denied access to have weekly religious services, and I am still being denied an opportunity to purchase essential religious books which only come in hardcover. This is in violation of the law. Hardcover books are denied under the fictitious whim that they pose a "serious threat" to the security of this institution. Contrariwise, the U.S. Supreme Court has long ruled that "hardcover books do not pose any threat to the security of prisons when they come directly from publishers, bookstores or book clubs." (See Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 [U.S. N.Y. 1979] on the permissibility of prisoners to receive hardcover books as long as they come from publishers, bookstores or book clubs.) Sturm: Do you think that the publics interest for the situation of death row inmates has gotten better or worse during the last few years? Are you getting a lot of outside mail? Hasan: To my amazement, the publics interest has increased tremendously. This is especially true for Ohioans. A decade or so ago, I saw very little interest in capital punishment. But as more and more media coverage has been given to innocent people being released from death row, the public has become aware that capital punishment in this country is not flawless. Resultantly, the majority of the public is now in favor of life in prison without the possibility of parole, instead of the ultimate punishment: DEATH. I do not receive nearly as much mail as I used to -- approximately 50 pieces per week--but I still receive mail from various corners of the U.S. Daniel Sturm: Can you tell me some about your daily activities in prison? Hasan: My daily activities begin when a nurse brings to my cell my multivitamin at 4:30 a.m. Upon being awaken I immediately start thanking Allah, the Unimaginable Supreme Being, and praising Him for giving me another day of life after being in a state of death (sleep). (On Mondays and Thursdays, I awake a little earlier to consume a little food and water before commencing my supererogatory fast. Observing said fast has been my steadfast practice since 1989.) I then proceed to perform ablution -- a partial washing of the body as a religious ritual -- before making my obligatory morning prayer. In fact, four additional obligatory prayers are made throughout the day before I retire to bed at 11:30 or 12:00 p.m. Breakfast is brought/served at 5:30. After eating it, I either watch the BBC World News or listen to the NPR News until after the sun has risen; then I perform a supererogatory prayer. The next hour is spent reading the Noble Qur'an, the Muslims Holy Book, or studying some other Islamic literature. If theres mail to be answered, essays to be written or articles to be edited for Compassion -- a bimonthly newsletter I founded in 2001 -- then I am engaged in this work until lunch is served at 11:30. Afterwards, I perform my forenoon supererogatory prayer. If my morning writing has not been completed, then I will continue with it until its time for my midday obligatory prayer. The remainder of my activities consist of stretching before engulfing myself in a 2-hour exercise regimen, which consists of multiple calisthenics, reading my daily mail and immediately answering some of it, listening to or watching more news, reading a newspaper, some press cuttings or other periodicals, and occasionally engaging in a discourse with some other prisoner(s). (If theres an Isl_mic video being shown on the TV monitor or a good TV program coming on, I will squeeze it into my schedule.) Sturm: What are you currently reading? Hasan: In addition to what has already been stated above, I am reading The Associated Press Guide to News Writing by Rene J. Cappon, English Grammar by David Daniels and Barbara Daniels, The Essential Writers Companion published by Houghton Mifflin Company, and Jet magazine. Sturm: What strategies do you use to keep yourself balanced? Hasan: Islam, as well as not worrying about things outside of my control, is what keeps me balanced. Islam is my source of strength, and I diligently try to structure all my activities around my Islamic beliefs and practices. For example, I vigorously pursue knowledge because Islam teaches that "the quest of knowledge [useful] is an obligation upon every Muslim." My prayers are used to communicate with Allah and to cleanse myself, and my exercise regimen is used to keep me physically healthy. Since man is a physical, spiritual and mental being, I daily apply these three elements to stay balanced. Additionally, I use the "most beautiful" story and example of Prophet Joseph (upon whom be peace) to maintain balance. In spite of Prophet Josephs imprisonment for a crime he did not commit, he continuously did Allahs work -- until Allah proved his innocence and created the circumstances for his release from prison. Therefore, I will continue to follow Josephs lead until I exit prison or death overtakes me. Sturm: How would you describe the experience of solidarity between prisoners? Would you say that friendships exist between inmates? Hasan: Solidarity exists primarily among prisoners in the same gangs, among some religious groups, and among a select body of homeboys. There is no real solidarity among blacks and whites, however. If a major problem arrives that effects the entire prison population, blacks and whites will temporarily become unified to try to resolve the problem. However, there is no lasting unity outside of ones own group or fraternity. Friendships are basically established along the same lines as prisoners solidarity. Sturm: Finally, what issues relating to the incarceration system do you believe are probably under-reported by the media -- issues that people in the outside world may not know about? Hasan: Rarely is media coverage given to guards assaulting prisoners, as if guards have a green light to assault prisoners. However, if prisoners assault guards, they are usually indicted and the media reports it. Other issues, which are underreported, are as follows: Prisoners are no longer being rehabilitated, but are merely being warehoused and subsequently being released to prey on other victims in society, inadequate mental health care, and the positive community services prisoners are engaged in. For example, death-row prisoners provide academic and religious scholarships to the immediate family members of murdered victims, and they try to foster reconciliation with these secondary victims. (source: The Free Press (Daniel Sturm teaches journalism at Youngstown State University in Northeastern Ohio. He is a German journalist who covers underreported social and political topics in Europe and in the United States.) NORTH CAROLINA: N.C. Law Encourages Guns for Victims North Carolina lawmakers have approved a measure that would require courts to give battered spouses something extra when they seek a restraining order -- information on how to apply for a concealed weapon. However, victim's advocates who support efforts to curb domestic violence said the measure could end up causing more problems by bringing guns into already volatile relationships. "In my experience, if you've got a fire out there, I don't think you put it out by throwing gas on it," said Bart Rick, a Seattle-area sheriff who chairs the National Sheriffs' Association domestic violence committee. "When I read this ... I went 'Whoa.'" The president of the gun-rights group that pushed for the measure said it's more about helping victims of domestic violence help themselves. "We're not interested in them shooting their abusers," said Paul Valone, president of Grass Roots North Carolina. "We're interested in delivering a message: When police can't protect these people, they are capable of protecting themselves." The measure becomes law Oct. 1 unless Gov. Mike Easley decides to veto it. His office declined Wednesday to comment on his plans. The bill, which passed overwhelmingly in both houses of the legislature, would also add protective orders to the evidence a sheriff can consider when determining whether to issue an emergency permit to carry a concealed weapon. Normally, an applicant must wait 90 days for such a permit. (source: Associated Press) *************************** Stepdad eligible for the death penalty----Salisbury man charged with stabbing 18-year-old to death Reginald Weeks Jr., charged with stabbing his stepdaughter to death, stood Wednesday with hands and legs shackled as a judge told him he could face the death penalty. Back in the 3rd row of the Rowan County courtroom, 6 young women began to applaud. Weeks looked back, startled. "Be quiet," District Judge Kevin Eddinger said. "There will be no further outbursts. None." The judge set a probable cause hearing for Aug. 31 and Weeks was led away. The young women -- 5 friends and a relative of 18-year-old Brittany Loritts -- said later they'd come to court because they wanted Weeks to know they loved the young woman he's accused of killing. They said they wanted to make sure someone was in the courtroom in support of Loritts, who was found dead in her bed July 11. She would have started community college this fall and wanted to be a teacher. Bill Kenerly, the district attorney, declined to talk about what makes Weeks eligible for the death penalty. He said he has not decided whether to seek it. Salisbury police Detective J.D. Barber told the Observer Weeks was charged based on "inconsistencies in his statement" and "evidence we found elsewhere." He would not be more specific. But a court document filed late last week reveals some of what led police to arrest Weeks, a 46-year-old Rowan County native who until this week had never been charged in North Carolina with anything but traffic violations. An application for permission to search the Weeks home says Reginald Weeks Jr. told police he left for work between 7:15 and 7:30 a.m. the day of the death. He arrived at a job less than 5 miles away at 10:30 a.m. and could not account for where he'd been during the 3 hours, according to the document. At first he told investigators he had not been back home until he found his stepdaughter dead at 4:15 p.m., according to the application. But later, in the same interview, he told them he went back home about 8:30 a.m. and then again around noon. Weeks, who works in a family construction business, told police he'd been working at a home on Pinewood Avenue. A person who lives on Pinewood told police Weeks borrowed matches that morning, the warrant application says. Another man said he caught Weeks returning a gasoline can that he'd borrowed without permission, the document says. Weeks told the man he took the gas "because he had to burn something," the application says. It adds that police searched near the job site and found a burned off-white towel. It also says Angela Weeks, who is Weeks' wife and Loritts' mother, told police the family has numerous off-white towels. Weeks was arrested Monday morning as he drove to work. Barber said police don't know what time Loritts was killed and are waiting for tests to determine whether she was sexually assaulted. Reginald Weeks has been married to Loritts' mother for 5 years. She has hired an attorney and had little contact with police, Barber said. Jail officials said her husband has not requested permission for her to visit. She was not in the courtroom Wednesday. The young women in court said they hadn't spoken to Loritts' mother since the funeral. She is staying with her husband's parents, said a woman who answered the parents' phone. She did not return a call from the Observer on Wednesday. Nakosha Davis, 18, said it was her idea to come to court. But the young women said they weren't sure which of them started the clapping. They didn't plan it, they said. But, afterward, they were glad they had done it. "She was my girl," Davis said. (source: Charlotte Observer) ********************** Getting it right----If N.C. courts convict wrong persons, criminals go free Most of the time, North Carolina courts get it right. But on some occasions, our courts make horrible mistakes. They convict innocent people and send them to jail for years. We know about some of these cases. We know about Ronald Cotton of Alamance County, who served more than 10 years in prison for a rape that DNA evidence later proved he did not commit. We know about Darryl Hunt of Winston- Salem, who spent more than 18 years in prison for a rape that DNA evidence showed he did not commit. We know about Alan Gell of Bertie County, who spent nine years in prison and more than four years on Death Row for a murder that evidence showed he could not have committed. And we know about Lesly Jean. We know about him because Fayetteville attorney Rick Glazier represented him for nine years. A court overturned his rape conviction when evidence showed police and prosecutors had failed to make full disclosure of relevant evidence. Later, DNA tests exonerated him of the charges of sexual assault and rape. Had not Mr. Glazier pursued that case, Lesly Jean likely would still be in prison. N.C. Chief Justice I. Beverly Lake Jr. named a commission in 2002 to explore a better way for our state's courts to consider claims of innocence. The commission recommended creating an eight-person Innocence Inquiry Commission to examine claims, make a determination and refer likely cases to a 3-judge panel to decide whether a conviction should be overturned. Mr. Glazier, now a member of the state House of Representatives, became a key sponsor of legislation to set up that commission. He was joined by Reps. Joe Hackney of Orange and Pete Cunningham of Mecklenburg. In the Senate, a similar bill was introduced by Sen. Dan Clodfelter of Mecklenburg and cosponsored by Sen. Austin Allran of Catawba, Fletcher Hartsell of Cabarrus and Ellie Kinnaird of Orange. Just before the legislature took a 1-week break from its long session, the House passed the bill on an 80-23 vote. "No one benefits when the wrong person is convicted," Rep. Glazier said Friday. "Not the victim, not society, and certainly not the wrongfully imprisoned citizen." Some law enforcement officials have reservations about the commission. They fear it would undermine their work. But they and other opponents of the bill must acknowledge that when the wrong person is convicted, the real criminal goes free -- and is in a position to commit even more crimes. What could undermine public confidence more than allowing criminals to run loose while keeping innocent people behind bars? When legislators return to Raleigh next week, the Senate should give the bill a prompt hearing and join the House in approving it. By creating a better way for the state to examine questions of possibly wrong convictions, the legislation would help our system of justice do what it's supposed to do: Get it right. (source: Opinion, Charlotte Observer) NEW JERSEY: New rules set by court for death penalty case----State required to prove accused child killer is not mentally retarded A New Jersey appeals court on Wednesday said Morris County prosecutors must prove to a jury that accused child-killer Porfirio Jimenez is not mentally retarded before they can ask jurors to impose a death sentence. Prosecutor Michael Rubbinaccio promptly announced that he will appeal the ruling to the state Supreme Court, even though it will cause further delay in scheduling the trial in the May 2001 murder of 10-year-old Walter Contreras Valenzuela in Morristown. The prosecutor believes that the ruling puts an unreasonable burden on the state and is sure to affect all future capital punishment cases in the state where mental retardation is raised as an issue. Rubbinaccio said that 26 other states have addressed the issue since a 2002 U.S. Supreme Court ban on executing mentally retarded people found guilty of murder. The other states all call for the accused to prove to jurors that he or she is mentally retarded and have reached that point through statute or by court decision. Unlike the other states, New Jersey's appellate decision puts the burden on the state to disprove mental retardation, the prosecutor said. The federal top court's ruling left it up to states to develop guidelines on how trial courts should determine whether accused killers are retarded, if intellectual capacity is questioned in a defendant. The New Jersey Legislature has not enacted any guidelines, so Superior Court Judge Salem Vincent Ahto in Morristown --who is presiding over the Jimenez case -- in March proposed procedures to be used to determine Jimenez's mental abilities. Neither side liked Ahto's proposal, so they turned to the appellate division, whose decision on Wednesday highlighted the need for extreme caution to avoid "the infliction of so irrevocable a penalty upon one whose culpability is lessened by mental infirmity." A defense expert has opined that Jimenez, with an IQ of 68, is mentally retarded and not eligible for a death penalty prosecution for the alleged murder. A state expert calculated an IQ of 69 but found that Jimenez is not mentally retarded. The Wednesday ruling is a clear victory for lawyers for the 40-year-old Honduras-born landscaper. It means that, if the prosecutor's office proves to a jury beyond a reasonable doubt that Jimenez deliberately murdered Valenzuela and tried to sexually assault him, prosecutors then must prove to the same jury and beyond a reasonable doubt that Jimenez is not retarded. The jury must be unanimous in a finding of non-retardation before the state can proceed to the death penalty phase. This phase has not been changed: For a death sentence to be imposed, jurors must unanimously agree that aggravating factors cited by the state outweigh any mitigating factors that the defense may cite to spare Jimenez's life. Tom Rosenthal, spokesman for the state Office of the Public Defender, which is overseeing the Jimenez case, said the decision properly puts the burden on the state and allows a defendant a constitutional right to a trial by jury on the issue of mental retardation, rather than letting a judge make the call on mental capacity. The prosecutor's office this spring asked the state Supreme Court to establish guidelines on how to determine mental capacity, but the high court declined. But if Jimenez eventually is convicted of murder and sentenced to death, the appellate division would be automatically bypassed and the state Supreme Court would review the proceedings. Jimenez, who left a common-law wife and children in Honduras and was living in Morristown with his brother's family, allegedly lured Valenzuela to a secluded area off Cory Road near the Whippany River and sexually assaulted him. In a confession that has been ruled admissible for use at trial, Jimenez said he stabbed and beat the child with a garden tool so the boy could not tell anyone about their encounter. Along with dozens of other people in Morristown, Jimenez voluntarily let police take a swabbing from his cheek for use in DNA testing. He was charged with the boy's murder in June 2001 after his DNA matched semen found on the child's underpants, according to prosecutors. (source: Daily Record)
