Pennsylvania judge schedules hearing on MR status of teen accused of killing toddler

From the Indiana Gazette in Pennsylvania:

A judge on Nov., 6 declined to schedule a pretrial hearing to consider whether a man accused of beating a toddler to death is mentally retarded and therefore ineligible for the death penalty.

Joshua Turner, 19, whose last address was in Black Lick, is charged with aggravated assault and criminal homicide in the death of 19-month-old Leonard ``L.J.'' W. McIntire III, whom Turner was baby-sitting one day in October 2008.

According to police, Turner flew into a fit of rage because the boy was acting up. Turner allegedly bit, hit and shook the boy into unconsciousness, and he died five days later from his injuries in a Pittsburgh hospital.

The Allegheny County Medical Examiner's Office listed the cause of death as blunt force trauma to the head, torso and limbs. Police said Turner confessed to beating the boy.

Indiana County District Attorney Thomas Bianco is pursuing the death penalty. Bianco has said he believes it is warranted due to the boy's age and the circumstances under which he died.

Turner's court-appointed attorneys are pursuing an insanity or mental infirmity defense and are trying to have him declared ineligible for the death penalty, based on a 2002 U.S. Supreme Court ruling. That ruling, related to a Virginia murder case, barred the execution of mentally retarded individuals.

The attorneys, Gary Knaresboro and Michael S. Marshall, both of DuBois, had asked Indiana County Judge Gregory Olson to schedule a hearing so they could present evidence that Turner is mentally retarded. As evidence, they point to a psychologist's report, which states that Turner has an IQ of 71. The report also states that Turner's current intellectual level predates his 18th birthday.

In a one-sentence order, Olson wrote that the issue ``must be resolved at trial by a fact-finder.'' A fact-finder, as an example, could be a judge or a jury. Jury selection in Turner's trial is to begin in December.

Olson did not offer a supporting opinion. He, however, doesn't have much on which to base an opinion, as the case now appears to be in uncharted territory.

Though the Supreme Court barred the execution of mentally retarded individuals, it didn't set a definition of mental retardation, leaving that and the procedure to be followed in making the determination to the states. The state Supreme Court since has set standards for mental retardation through post-conviction appeals cases. But the procedure to be used in determining whether an individual is mentally retarded has yet to be set.

The Pennsylvania General Assembly has not passed any legislation dealing with the issue, though there is a bill sitting in the state House judiciary committee. The bill already has passed in the Senate.

Turner's attorneys relied on the bill in arguing for a pretrial hearing. The bill states that a pretrial hearing is to be held in determining whether an individual is mentally retarded.

Turner's attorneys could try to appeal Olson's ruling, or they could wait until the trial and argue the point again if Turner is found guilty of first-degree murder.

In capital murder cases, a jury has to first decide whether the accused is guilty of first-degree murder. If a person is found guilty of that crime, the jury then must decide whether the person should be sentenced to life in prison or death.

Also on Friday, Olson rejected a motion to suppress Turner's confession and other statements he had made to the investigating officer, state police Trooper Timothy Lipniskis.

Turner's attorneys argued that Turner's Miranda rights hadn't properly been read to him in the times Lipniskis questioned him and that Lipniskis twice tricked him into offering a confession.

During Turner's preliminary hearing, Lipniskis testified that he told Turner that to help the boy, police and the boy's doctors needed to know what had really had happened, which was not the case.

Olson, however, ruled that Lipniskis had, indeed, read him his Miranda rights and that Lipniskis's statement wasn't out of bounds.

``The court finds that Trooper Lipniskis's use of a misleading statement during the questioning of (the) defendant was not so manipulative or coercive that it deprived the defendant of the ability to make a free and unconstrained decision to confess,'' Olson wrote.