Monday, July 16, 2007

Couey's fate will hinge on IQ score

If Jessica Lunsford's killer is declared retarded, he can't be sentenced to death.

Published July 16, 2007

INVERNESS - The days pass slowly for Jessica Lunsford's family. Four months have elapsed since a Miami jury convicted John Couey in the death of the 9-year-old from Homosassa.

The tears, hugs and declaration of justice outside the courtroom in March, when the jury recommended the death penalty for the 48-year-old sex offender, are distant but not forgotten.

"There's no such thing as closure," Ruth Lunsford, Jessica's grandma, said last week as she sorted laundry. The whole legal process "isn't over yet. It's not over until he dies."

For the first time, the Lunsfords will get the chance to tell a judge about life after "Jessie" -testimony considered too emotionally potent for the jury's ears during the trial.

Tuesday, attorneys will reconvene in Citrus County for a hearing on whether Couey is eligible for the death penalty. A decision from Circuit Judge Ric Howard is expected at the hearing in Inverness. Immediately afterward, prosecutors and defense attorneys will make final arguments about Couey's fate.

That's when the Lunsfords will get their opportunity.

After meeting with prosecutor Ric Ridgway last week, it was decided that her son, Mark, will speak for the family, Ruth Lunsford said.

"We helped raise her, but Mark is her daddy," she said. "Mark should be the one to do this."

Couey remains in the medical unit at the Citrus County jail to keep him away from the general jail population. Jail officials say he has no television but is continuing his normal routines described in court: morning coffee, newspaper reading and drawing.

Defense attorneys argue that Couey is mentally retarded, the product of a combination of stunted mental development, neglect and abuse. If found retarded, he would be ineligible for the death penalty under state law.

The formal end of the protracted case - a judgement of life in prison or a lethal injection - is within sight. Judge Howard, who holds the final say, has set the long-awaited sentencing date for Aug. 10.

IQ central to hearing

First the judge must decide a difficult legal question about Couey's mental status.

To qualify as retarded under state law, Couey needs to score a 70 or below on an intelligence exam and demonstrate below-normal adaptive skills. Also, the defense must present evidence that both conditions existed before the age of 18.

Couey's known IQ scores - four of them in total - don't help settle the debate. The tests range in scores from as low as a 64 on an exam given in 2007 weeks before the trial to an 85 derived from a test just months earlier.

"There are multiple tests and multiple scores," said Ridgway, chief assistant state attorney and lead prosecutor. "It's up to the judge to look at the tests and the circumstances surrounding them and make a decision."

In preparation, the judge ordered fresh IQ tests and psychological evaluations from a state-selected doctor and one picked by the defense. Both are set to testify on the results.

Still, the second prong of the question about adaptive functioning is likewise murky.

Couey infamously spent much of the Miami trial at the defense table coloring in children's books. Observers saw it as a ploy by the defense to illustrate his mental development. But the defense also told the court about his limited ability to fit in, find permanent work and clearly communicate.

Prosecutors, however, pointed to testimony from Couey's jail guards to illustrate his normal behavior: he regularly reads the local newspaper, discusses Bible passages and completes Sudoku puzzles.

"He's not retarded," Ridgway said.

Proving retardation

Defense attorneys have refused to comment on the case, but in court documents they present noteworthy material about Couey's mental status during his youth.

Orange County school records from Couey's youth say he was "educably mentally retarded." A hospital evaluation at age 14 concluded his mind was akin to that of an 8-year-old.

Also, relatives said he was slow as a child and didn't speak well, according to court papers. They blame it on abuse, including one time when his head was repeatedly slammed in a door jam.

"It appears reasonable and appropriate to conclude that the low IQ found for the defendant recently reflects a pattern which has continued in the same manner since early childhood," wrote Brandon psychologist Robert Berland in a filing for the defense.

At trial, that argument was the strongest presented by the defense, juror Marvin Gunn, a Miami real estate agent, said afterward. But it proved unconvincing paired next to the testimony of the jail guards and a videotaped statement Couey gave investigators, he said.

Prosecutors said they hope the judge will reach a similar judgment. If necessary, they will support their arguments about mental retardation with a recent Florida Supreme Court ruling.

Issued April 12, the decision in Cherry vs. State of Florida creates a "bright-line cutoff" of 70 for IQ scores, according to prosecutors. It dispels the theory of a standard error measurement of plus-or-minus five points, which is a position Couey's attorneys have advocated repeatedly in court.

But with Couey's scores all over the map, above and below the line, the judge still faces a tenuous task.

That's why the court is going to have such a difficult decision, said John Trevena, a Largo defense attorney not affiliated with the case. "Which scores do you accept?"

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