Thursday, March 4, 2010

David Johnston’s claims to be mentally retarded

Florida Supreme Court hears appeal for man set to die Tuesday

David Johnston’s claims to be mentally retarded,0,5367932.story

Convicted killer David Johnston had his day before the Florida Supreme Court on Thursday, and his attorney argued that Johnston deserved a new hearing to determine if he is mentally retarded.

Attorney Todd Doss told the high court that a more recent, "more accurate" IQ test scored Johnston at 61 — lower than a previous test — and qualifies him to be spared the state's death penalty.

Florida prohibits the execution of mentally retarded people.

To be considered legally retarded, a defendant must have an IQ of 70 or below and can't perform "adaptive functions," such as holding a job, cooking a meal and balancing check book. Both conditions must have existed before the person was 18.

Doss requested an evidentiary hearing.

Johnston, 49, was convicted in the 1983 murder of Mary Hammond. The 84-year-old woman was found stabbed to death in her Orlando home.

Johnston had been working at a demolition site near Hammond's home and had spoken to Hammond before her death.

Assistant Attorney General Ken Nunnelly argued that the courts already addressed Johnston's mental status in 2005. He scored an 84 on an earlier version of the IQ test. And two experts found him not to be mentally retarded, he said.

"It's an issue that has been raised and decided," he told the justices during a 45-minute hearing.

Several justices asked why a hearing shouldn't be ordered to determine the discrepancy in scores and the difference in the test given in 2005 and the more recent test.

"If 61 is a more accurate assessment of his IQ, that raises a claim that needs to be explored on an evidentiary basis," Chief Justice Peggy Quince said, but the high court did not render a decision.

The court could issue an opinion at any time, but Johnston is scheduled to die at 6 p.m. Tuesday/

Nunnelly said there has never been an assertion that the first test was wrong.

"It's time for this sentence to be carried out," he said.

Sarah Lundy can be reached at or 407-420-6218.

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