Attorney argues that Nebraska man has MR diagnosis, shouldn't be executed

From World Herald News Service:

LINCOLN, Neb. -- Erick Vela, sentenced to death in the slayings of five people at a Norfolk, Neb., bank, meets state definitions for mental retardation and should be ineligible for capital punishment, the Nebraska Supreme Court was told Feb. 4.

Vela's court-appointed attorney, Jeff Pickens of the Nebraska Commission on Public Advocacy, said Vela scored low enough on two intelligence tests to be declared mentally retarded.

Since 1998, Nebraska has prohibited execution of convicted murderers found to be mentally retarded, which is defined as scoring less than 70 on an IQ test. In 2002, the U.S. Supreme Court upheld such bans.

Vela, now 28, was one of three gunmen who opened fire inside a U.S. Bank branch in Norfolk in 2002, killing four employees and one customer. Vela shot and killed Lisa Bryant, a bank employee, as she sat at her desk.

Vela pleaded guilty to five counts of first-degree murder, and a jury qualified him to receive the death penalty. Whether he was mentally retarded then became the central issue.

During a three-day hearing in 2006, experts provided conflicting testimony about whether Vela met the legal standard.Vela's attorneys pointed to a score of 66 on one IQ test and 75 on another. He was a special education student, they argued, who held a job with a trucking firm in California only with aid from coworkers.

The score of 75, Pickens said Wednesday, would be within the 5-percentage-point margin of error for such tests and thus also indicated mental retardation.Prosecutors argued in 2006 that Vela had scored higher -- 87 -- on another IQ test and that the 75 score was unreliable and outside the acceptable range.

Madison County Attorney Joe Smith said Vela functioned at a level above the
mental retardation standard because, among other things, he could read and write
in two languages and comprehended complicated books.

After the 2006 hearing, District Judge Patrick Rogers of Norfolk ruled that Vela was mentally competent to be sentenced to death.

The judge ruled that Vela was able to write intelligent requests to his lawyers, maintain hobbies and conduct business in society. He added that Vela's lawyers had failed to establish at least two significant limitations in functioning, as required.

Wednesday, Kirk Brown of the Nebraska Attorney General's Office told the Supreme Court that Rogers' ruling was correct even though Rogers might have "misread'' one of the statutory definitions used to determine mental retardation.

The arguments were the first before the State Supreme Court on the definition of mental retardation and the death penalty. Judges questioned Brown about where the law draws the line.

Brown said Vela's argument would expand the definition of mental retardation beyond that intended by the Nebraska Legislature and beyond the definition used by medical professionals.

Since the execution ban was enacted for those with low IQs, two men have been removed from death row: Clarence Victor, convicted of murdering an 87-year-old Omaha woman in 1987, and Jerry Simpson, convicted of killing a fellow prison inmate in Lincoln in 1993.