Court upholds death sentence, says defense must prove retardation

Tuesday, January 15, 2008 | 10:03 p.m. CST; updated 10:15 p.m. CDT, Monday, July 21, 2008

JEFFERSON CITY — The state Supreme Court on Tuesday narrowly upheld the death sentence of a man convicted of a Columbia triple murder who had claimed in his latest appeal that he was mentally retarded.

The court ruled 4-3 that the defense must prove someone is mentally retarded, instead of prosecutors proving someone is not. The U.S. Supreme Court has ruled that executing mentally retarded people constitutes cruel and unusual punishment and therefore is not allowed.

Ernest Lee Johnson was convicted in 1995 of bludgeoning three Casey’s General Store employees with a hammer, screwdriver and a gun while he robbed the Columbia store. He said later that he robbed the store to buy cocaine. The day after the robbery he bought jewelry for his girlfriend and used cash to pay and tip a cab driver who took him home from the jewelry store.

Writing for the majority, Judge Mary Russell said that determining whether someone is mentally retarded isn’t something that enhances a penalty and doesn’t need to be proven by prosecutors beyond a reasonable doubt.

“Determining a defendant is mentally retarded is not a finding of fact that increases the potential range of punishment; it is a finding that removes the defendant from consideration of the death penalty,” Russell said.

The court ruled Johnson had not proved he was mentally retarded.

Russell wrote that 21 states have laws requiring that the defense prove mental retardation and courts in eight others have ruled that it’s up to the defendant. No state requires that it be up to prosecutors.

Elizabeth Unger Carlyle, an attorney for Johnson, did not immediately return a call seeking comment.

Writing in dissent, Judge Michael Wolff said Johnson is entitled to another hearing to decide whether to impose the death penalty at which prosecutors would have to disprove mental retardation.

“Allocating the burden to the defendant to prove that he is mentally retarded makes the decision — whether Johnson should receive the death penalty — seem capricious,” Wolff wrote. “The facts of this case show that the result — life or death — may well depend on which party has the burden of proof.”

The Missouri Supreme Court overturned Johnson’s first death sentence in 1998 because his attorneys didn’t introduce evidence about his addiction and an abusive childhood. His second death sentence was upheld by the court in 2000 but then tossed out in 2003 after the U.S. Supreme Court stopped executions for those who are mentally retarded.

Part of the dispute hinges on whether Johnson qualifies as being mentally retarded.

State law lays out nine areas where a mentally retarded person would have limitations, including communication, self-care, social skills and self-direction.

Johnson has been given numerous IQ tests since 1968, and his scores have generally hovered around the threshold marking mental retardation. Before his most recent hearing, he was given two IQ tests with scores near the threshold of mental retardation.

But a state expert testified that he believed Johnson was trying to produce lower results.

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