BY MABEL PEREZ
STAR-BANNER
AT A GLANCE
THE ISSUE
Defense attorneys argue John Couey is mentally retarded, thus not eligible for the death penalty.
WHAT'S NEW?
On Tuesday, lawyers and experts will present evidence about Couey's retardation and childhood. They also will present other evidence like victim impact testimony. Mark Lunsford is expected to testify for the first time.
WHAT'S NEXT?
A judge on Aug. 10 will either sentence Couey to death or to life imprisonment.
OCALA - Perhaps it is John Couey's coloring that makes people wonder whether he is mentally retarded. Maybe it's his rationalization for killing Jessica Marie Lunsford that makes his thought processes questionable.
He couldn't see himself hurt her directly, so he tied her hands with speaker wire, put her in a black garbage bag and buried her alive.
The now-twice convicted sex offender was in special education classes throughout grade school. He allegedly was physically abused as a child and reportedly once suffered head injuries when his step-father slammed his head in a door jam because he wet the bed.
Defense mental health expert, Dr. Robert Berland, testified at Couey's trial earlier this year that Couey suffered from hallucinations and that a family member once tried to get him mental health treatment.
On Tuesday in Inverness, a judge is set to hear these arguments and more in Couey's mental retardation hearing. It will be his defense teams last chance to fight for his life.
If Circuit Judge Richard Howard rules Couey is retarded, he cannot be sentenced to death. The U.S. Supreme Court forbids it after ruling in 2002 that it was unconstitutional to execute mentally retarded people.
On Aug. 10, Howard will decide Couey's fate during his sentencing hearing.
THE ISSUE
Couey, 48, was convicted of murder, sexual battery, kidnapping and burglary for the February 2005 killing of Jessica. The same Miami jury recommended the death penalty by a 10-2 vote during his March trial.
Defense attorneys have one last shot to convince Howard to sentence the child killer to life imprisonment without parole.
Their argument: John Couey is mentally retarded.
Two court-appointed mental health experts will render their opinions. Their reports are sealed court files.
Chief Assistant State Attorney Ric Ridgway doesn't seem concerned about the Tuesday hearing. He doesn't seem confident either.
"I don't classify the evidence," Ridgway said Thursday, when asked whether the prosecution had a strong case. "I don't go bragging and go in there banging my chest saying I'm going to win."
Ridgway said the burden of proof falls on the defense.
"In a retardation hearing, the defense has to go forward," he said. "They have to prove he is retarded. I don't have to prove anything."
THE LAW
Both sides have filed motions during the last several weeks arguing how the mental retardation hearing should be conducted.
Assistant Public Defenders Daniel Lewan and Alan Fanter think Florida's rules on mental retardation hearings are unconstitutional. In Florida, attorneys have to provide "clear and convincing" evidence that their client is retarded. A judge makes the determination.
In other states, the standard is lower.
In a motion filed June 21, Fanter cited Atkins vs. Virginia and Cooper vs. Oklahoma. In most states, he wrote, the defense must prove its case based on a preponderance of the evidence, or that their client is more likely than not retarded. The motion cites Arizona law provides that a jury, not a judge, will decide the issue.
Ridgway doesn't buy their arguments and cites the same U.S. Supreme Court case, which states that while executing the mentally retarded is unconstitutional, each state is responsible for making its own rules on making a determination.
"They're asking for a lower standard," Ridgway said. "But the U.S. Supreme Court said we have to leave it to the states to decide their own rules."
There are three parts that make up a mental retardation diagnosis. Experts must look at a person's IQ, adaptive functioning and decide whether the mental condition existed before the person was 18.
The experts' reports are sealed in this case, so it's not clear how Couey scored. At trial, Berland testified Couey's IQ ranged from the low 60s to the 70s. His IQ must be under 70 to be considered mentally retarded.
As a young adult, Couey abused alcohol, tried PCP, LSD, marijuana and other drugs, Berland said at trial. He added that the drugs may have contributed to him being "stupid" and not being able to handle stress.
THE ARGUMENT
There is only one other death penalty case in the 5th Circuit which addresses mental retardation.
In 1979, Freddie Lee Hall and another man Mack Ruffin kidnapped 21-year-old Karol Lea Hurst, who was seven months pregnant, brutally murdered her and killed a Hernando County Sheriff's deputy during a convenience store robbery that same day.
Hall, 61, is on death row, and for 29 years his attorneys have filed appeal after appeal and so far his life has been spared. His attorneys claim he is mentally retarded and shouldn't even be on death row.
The Couey case is the only case since then to address the mental retardation issue.
"It's certainly not in every case [that mental retardation is an issue], but it's an issue that's becoming more common," Ridgway said. "Because if you convince the judge that he is retarded, you automatically save his life."
Attorneys Lewan and Fanter declined to comment for this story.
WHAT TO EXPECT
Beside the litany of medical testimony on Tuesday, Howard also will hear from the Lunsfords for the first time.
At trial, Mark Lunsford, as well as Ruth and Archie Lunsford, did not testify during the death penalty phase. The move would have been risky and may have come back on appeal if defense attorneys proved the family became too emotional in front of the jury.
Instead, the trio will have the opportunity to address Jessica's killer about his crime and the judge who will decide his fate.
"I'm not sure where that confusion came from, but there was no intention of having him testifying [at trial]," Ridgway said. "Why put him on and have have appeal problems later? This will be their chance to testify."
Mabel Perez may be reached at mabel.perez@starbanner.com or 867-4106.
STAR-BANNER
AT A GLANCE
THE ISSUE
Defense attorneys argue John Couey is mentally retarded, thus not eligible for the death penalty.
WHAT'S NEW?
On Tuesday, lawyers and experts will present evidence about Couey's retardation and childhood. They also will present other evidence like victim impact testimony. Mark Lunsford is expected to testify for the first time.
WHAT'S NEXT?
A judge on Aug. 10 will either sentence Couey to death or to life imprisonment.
OCALA - Perhaps it is John Couey's coloring that makes people wonder whether he is mentally retarded. Maybe it's his rationalization for killing Jessica Marie Lunsford that makes his thought processes questionable.
He couldn't see himself hurt her directly, so he tied her hands with speaker wire, put her in a black garbage bag and buried her alive.
The now-twice convicted sex offender was in special education classes throughout grade school. He allegedly was physically abused as a child and reportedly once suffered head injuries when his step-father slammed his head in a door jam because he wet the bed.
Defense mental health expert, Dr. Robert Berland, testified at Couey's trial earlier this year that Couey suffered from hallucinations and that a family member once tried to get him mental health treatment.
On Tuesday in Inverness, a judge is set to hear these arguments and more in Couey's mental retardation hearing. It will be his defense teams last chance to fight for his life.
If Circuit Judge Richard Howard rules Couey is retarded, he cannot be sentenced to death. The U.S. Supreme Court forbids it after ruling in 2002 that it was unconstitutional to execute mentally retarded people.
On Aug. 10, Howard will decide Couey's fate during his sentencing hearing.
THE ISSUE
Couey, 48, was convicted of murder, sexual battery, kidnapping and burglary for the February 2005 killing of Jessica. The same Miami jury recommended the death penalty by a 10-2 vote during his March trial.
Defense attorneys have one last shot to convince Howard to sentence the child killer to life imprisonment without parole.
Their argument: John Couey is mentally retarded.
Two court-appointed mental health experts will render their opinions. Their reports are sealed court files.
Chief Assistant State Attorney Ric Ridgway doesn't seem concerned about the Tuesday hearing. He doesn't seem confident either.
"I don't classify the evidence," Ridgway said Thursday, when asked whether the prosecution had a strong case. "I don't go bragging and go in there banging my chest saying I'm going to win."
Ridgway said the burden of proof falls on the defense.
"In a retardation hearing, the defense has to go forward," he said. "They have to prove he is retarded. I don't have to prove anything."
THE LAW
Both sides have filed motions during the last several weeks arguing how the mental retardation hearing should be conducted.
Assistant Public Defenders Daniel Lewan and Alan Fanter think Florida's rules on mental retardation hearings are unconstitutional. In Florida, attorneys have to provide "clear and convincing" evidence that their client is retarded. A judge makes the determination.
In other states, the standard is lower.
In a motion filed June 21, Fanter cited Atkins vs. Virginia and Cooper vs. Oklahoma. In most states, he wrote, the defense must prove its case based on a preponderance of the evidence, or that their client is more likely than not retarded. The motion cites Arizona law provides that a jury, not a judge, will decide the issue.
Ridgway doesn't buy their arguments and cites the same U.S. Supreme Court case, which states that while executing the mentally retarded is unconstitutional, each state is responsible for making its own rules on making a determination.
"They're asking for a lower standard," Ridgway said. "But the U.S. Supreme Court said we have to leave it to the states to decide their own rules."
There are three parts that make up a mental retardation diagnosis. Experts must look at a person's IQ, adaptive functioning and decide whether the mental condition existed before the person was 18.
The experts' reports are sealed in this case, so it's not clear how Couey scored. At trial, Berland testified Couey's IQ ranged from the low 60s to the 70s. His IQ must be under 70 to be considered mentally retarded.
As a young adult, Couey abused alcohol, tried PCP, LSD, marijuana and other drugs, Berland said at trial. He added that the drugs may have contributed to him being "stupid" and not being able to handle stress.
THE ARGUMENT
There is only one other death penalty case in the 5th Circuit which addresses mental retardation.
In 1979, Freddie Lee Hall and another man Mack Ruffin kidnapped 21-year-old Karol Lea Hurst, who was seven months pregnant, brutally murdered her and killed a Hernando County Sheriff's deputy during a convenience store robbery that same day.
Hall, 61, is on death row, and for 29 years his attorneys have filed appeal after appeal and so far his life has been spared. His attorneys claim he is mentally retarded and shouldn't even be on death row.
The Couey case is the only case since then to address the mental retardation issue.
"It's certainly not in every case [that mental retardation is an issue], but it's an issue that's becoming more common," Ridgway said. "Because if you convince the judge that he is retarded, you automatically save his life."
Attorneys Lewan and Fanter declined to comment for this story.
WHAT TO EXPECT
Beside the litany of medical testimony on Tuesday, Howard also will hear from the Lunsfords for the first time.
At trial, Mark Lunsford, as well as Ruth and Archie Lunsford, did not testify during the death penalty phase. The move would have been risky and may have come back on appeal if defense attorneys proved the family became too emotional in front of the jury.
Instead, the trio will have the opportunity to address Jessica's killer about his crime and the judge who will decide his fate.
"I'm not sure where that confusion came from, but there was no intention of having him testifying [at trial]," Ridgway said. "Why put him on and have have appeal problems later? This will be their chance to testify."
Mabel Perez may be reached at mabel.perez@starbanner.com or 867-4106.
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