Virginia Fights to Keep Low IQ Inmate on Death Row

May 15, 2012

A northern Virginia man on death row for killing a Lynchburg couple should not be able to claim he's too mentally challenged to be executed because he waited too late to produce evidence of his low IQ, attorneys for the state told a federal appeals panel on Tuesday.

The state attorney general's office is fighting to keep Leon Winston on death row for the shooting deaths of Anthony and Rhonda Robinson in 2002. Rhonda Robinson, who was pregnant, was shot to death in front of her 4- and 8-year-old daughters.

A panel of the 4th U.S. Circuit Court of Appeals sent Winston's case back to the federal district court in Roanoke two years ago to examine claims that Winston had scored a 66 on an IQ test as a teenager, which would put him below the score of 70 that is Virginia's threshold for mental retardation. The U.S. Supreme Court ruled in 2002 that executing the mentally retarded amounts to cruel and unusual punishment and is unconstitutional.

The federal court last year said Winston could appeal his death sentence based on the new evidence. The state appealed, arguing that a U.S. Supreme Court decision issued after the appeals court ordered the review has severely limited the kinds of evidence that can be considered on appeal. That sent the case back to the 4th Circuit on Tuesday.

While the judges acknowledged the new rule "drastically limited" what can be considered during a federal appeal, they also questioned the state on how it could argue against trying to figure out if someone should be exempt from execution.

"Here's unreasonable. We have evidence of someone scoring a 66 — well under Virginia's standard — and you're going to let that person be executed," Judge Roger L. Gregory asked Katherine Burnett, senior assistant attorney general.

At issue is whether the claim of mental retardation was considered by the Supreme Court of Virginia. If so, then the new ruling bars the federal courts from considering new evidence on that claim.

At his trial, Winston's attorneys did not pursue a retardation claim, even though an expert had described him as mildly retarded. The only three intelligence quotient test scores they had at the time put Winston slightly above 70.

"The jury never heard the words 'mentally retarded,'" Jennifer L. Givens, an attorney for Winston, told the panel.

The state argues that Winston's trial lawyers knew about the retardation claim but refused to press it because their mental health expert did not think they could prove it. In fact, the expert said he thought Winston, rather than being mentally retarded, suffered from an antisocial personality disorder, if not psychopathy.

Winston's attorneys did bring up the issue during his state appeals. They presented to the Virginia Supreme Court a cover page from a Fairfax County Public Schools special education form that indicated Winston had mild mental retardation, but his attorneys said the test scores and other data relied on to reach that determination could not be found. The test in which Winston scored the 66 wasn't found until his federal appeals were under way.

Burnett, the attorney for the state, said evidence that Winston was retarded was "clearly and squarely" presented to the Virginia Supreme Court and the court rejected it.

"Albeit on insufficient evidence," interjected Judge Albert Diaz.

"I don't see how it's a new claim," he added. "It's new evidence on the same claim."

Burnett argued that because the claim was before the state Supreme Court, the only way to reach the conclusion that there was an error "is by an application of hindsight that is not permitted" because of the new rule.

Winston's attorneys are asking for a new sentencing.

The appeals court typically rules several weeks after hearing arguments.

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