Kentucky man with IQ of 61 may face death penalty

From the Louisville Courier-Journal:

He has been diagnosed as a paranoid schizophrenic with an IQ of 61 — a legally mentally retarded man who, according to his attorneys, has been in and out of institutions, suffers from depression and has attempted suicide numerous times.

But while Kentucky law bans execution of a person with an IQ of 70 or below, when Donald Giles (pictured) stands trial Nov. 13 for the 2003 murder and robbery of Charles Goodlett, jurors will have the option of sentencing him to death if he is found guilty.

In rejecting a motion by Giles' attorneys to exclude the death penalty because of his low IQ, Judge Martin McDonald ruled that under state law, Giles, 41, would have had to have taken an IQ test when he was still a child.

McDonald wrote in May that state law defines mental retardation as “significant subaverage intellectual functioning … manifesting during the developmental period .”

“In other words, there must be evidence of I.Q. testing done while the Defendant is a child,” McDonald ruled. “In this instance, the I.Q. test results are all from the Defendant's adult years; there are no I.Q. test scores from the Defendant's school days.”

Giles' attorneys strongly disagree with that interpretation of the law, arguing that the only IQ evidence in the case is a recent test taken at the Kentucky Correctional Psychiatric Center that shows he is legally mentally retarded.

“The bottom line is this: At the time they are looking at this (the death penalty), he is mentally retarded,” said defense attorney Steve Romines. “They are not trying to execute him at 14.”

Some experts on the death penalty say the logic in McDonald's ruling was faulty. They say that while a defendant must show signs of mental retardation during their childhood — to prove they have not suffered a more recent brain trauma or alcohol abuse that would not exclude the death penalty — it doesn't have to be diagnosed during childhood.

Ted Shouse, who had worked for the Department of Public Advocacy defending convicts on death row and is the supervising attorney of the Kentucky Innocence Project, said he has never heard of a similar ruling.

“My understanding of the law of Kentucky is, it doesn't matter when the IQ test is taken,” Shouse said. “Does that mean if you were unfortunate enough not to be administered an IQ test before you were 18, you are precluded from raising this issue? When you take the test shouldn't matter.”

Assistant Jefferson Commonwealth's Attorney Jason Butler said it does matter and McDonald correctly followed state law.

Giles was charged with murder and clearly had an incentive not to do well on an IQ test after being arrested, Butler said.

“You want a fixed (IQ) number over time,” Butler said.

He said it is common for people to be given an IQ test sometime during their school years, and the burden is on the defense attorneys to find those results and prove that the defendant qualifies to be exempt from the death penalty.

“It is not enough to take a guy like Giles, a violent convicted felon, and once he's finally caught, send him” for testing, he said.

Cheryl DeLong, Goodlett's mother, questioned whether Giles is mentally retarded. She noted that he has functioned well enough to drive, live alone and be charged with other crimes, including a robbery in Indiana after her son was killed.

“He's managed for 40 years and all of a sudden he's mentally retarded?” she asked in an interview. “It seems convenient to me.”

Cornell University law professor John Blume, who has written studies on the death penalty, said there are numerous reasons why a person would not be given an IQ test as a child, including that many schools stopped giving the tests because of lawsuits or financial limitations. And he said it is not easy to intentionally score low on an IQ test, as administrators are trained to spot people who are not trying.

Blume studied hundreds of death penalty cases nationwide in which defendants had claimed to be mentally retarded and found only two in which judges ruled that a test must be taken before a defendant's 18th birthday.

These two cases “seem patently wrong,” Blume wrote this year in a Tennessee Law Review article, “but they are, at least thus far, isolated.”

Experts also said an IQ test is not the sole criteria for determining mental retardation. They said the defendant must also show sub-average performance in daily functioning and had developmental problems as a child, such as failing grades.

Giles' attorneys have argued that there is a history of mental retardation in his family and that he was severely abused as a child and failed a number of grades in school.

In 1987, he was diagnosed as having mixed personality disorder. In 1995, it was noted that Giles suffered from auditory hallucinations, schizophrenia, a seizure disorder, severe depression and sporadic blackouts, according to a motion from the defense. He told police in an interview he couldn't read or write very well.

“To impose death on a defendant with such mental incapacity would be atrocious,” the defense wrote in a motion to McDonald. “… The fact is that mentally Donald Giles is a child, and his execution would, in effect, be … the execution of a child.”

Experts said jurors will be able to hear evidence of Giles' mental abilities if the case makes it to the death penalty phase, which could lead jurors to reject execution.

Defense attorneys have argued that Giles isn't even competent enough to help with his own defense and shouldn't be standing trial, much less facing a potential death penalty.

Defense attorney Pat Renn said Giles has been found not competent to stand trial in other cases, though he was convicted of assault, wanton endangerment and unlawful imprisonment in Jefferson County in 2005.

A medical expert, however, testified in a court hearing in the Goodlett case that while Giles is schizophrenic and suffers “mild mental retardation,” when Giles is taking his medication properly, he is competent to stand trial.

Giles' attorneys also claim the case against him is weak. Romines said prosecutors have no physical evidence and are basing their case around the testimony of two convicted felons — including one involved in the crime.

Butler declined to talk about evidence in the case.

Goodlett was killed Feb. 22, 2003, in his home at 2012 Penile Road in Fairdale during an apparent robbery. Giles and two other men, Robert Dale Holt and Robert Gene Turner, were indicted for the crimes.

Prosecutors contend that Holt, who is standing trial with Giles, came up with the idea of robbing Goodlett during a drug purchase. Turner, prosecutors allege, went into the home with Giles while Holt was buying drugs.

Prosecutors allege Giles fired a shotgun and killed Goodlett.

Turner has already pleaded guilty to facilitation to murder, burglary and robbery with a sentence of 12 years in prison if he testifies against Giles and Holt.

In an interview after the murder, police falsely told Giles they had DNA evidence that linked him to the crime scene.

“There's no way you've got evidence of me doing this,” Giles said. “It can't be mine because I wasn't there.”