Justices Look at Death Penalty Case ; At Issue: Proof of Incapacity

By MATTHEW VERRINDER, THE ASSOCIATE PRESS

TRENTON – A recent state appeals panel ruling that requires prosecutors seeking the death penalty to prove defendants are not mentally retarded is cumbersome and out of step with the rest of the country, lawyers told the state Supreme Court on Tuesday.

State and county prosecutors argued against the unusual August decision by a lower court that made New Jersey the only state where prosecutors must prove to a jury that defendants are not mentally retarded so they can be executed.

Twenty-six states require the opposite: Defendants have to prove it if they are retarded and therefore unfit for the death penalty.

Paul Heinzel, state deputy attorney general, told the high court that defense lawyers, not prosecutors, are in the best position to gather such evidence about a defendant.

“They could have as complete a record as possible” through school records and employer and family information, Heinzel said. “It ensures the best outcome.”

The arguments stem from the case of Porfirio Jimenez, a Honduran day laborer in prison on charges he sexually assaulted a 10-year- old Morristown boy before murdering him in 2001. Jimenez’s lawyers said he was mentally retarded, with an IQ of 68, when prosecutors said they would seek the death penalty.

It was not clear when the court will rule on the case.

A 2002 U.S. Supreme Court ruling – called the “Atkins Ruling” – declared that executing mentally retarded criminals violates the Constitution’s ban on cruel and unusual punishment, but left it to states to decide whether the burden of proof about a defendant’s mental status lay with the prosecution or defense. Courts in 11 other states are still trying to determine how to deal with the federal ruling. Twelve states do not have death penalties.

Prosecutors should bear the burden, because they have more resources and authority to seek information, said Jeffrey S. Mandel, a Morristown attorney who argued on behalf of the Association of Criminal Defense Lawyers of New Jersey.

State and county prosecutors “have the power of the badge to obtain greater access than the average defense attorney,” Mandel said.

The August appeals court ruling also said that juries, as opposed to judges, should determine whether a defendant is mentally retarded.

Joseph Krakora, Jimenez’s public defender, argued that a mentally retarded defendant should be able to have a jury decide.

In courts in New Jersey, a defendant shown to be mentally retarded must have an IQ below 70 and cannot be able to function alone in society. Also, the retardation must have started before he or she turned 18.

Prosecutors allege that Jimenez, of Morristown, is not mentally retarded but falls within the area of “borderline intellectual functioning,” according to court papers.