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The California Supreme Court on Wednesday ordered the state Department of Corrections to explain why a man on death row for nearly 17 years for two gang-related murders shouldn’t be spared execution on the basis of mental retardation. Dane Gillette, the San Francisco-based deputy attorney general who heads up all death cases, said the order is the first by the court in response to Atkins v. Virginia, 536 U.S. 304, last year’s U.S. Supreme Court ruling that said executing the mentally retarded is unconstitutional. All seven justices signed the order in the habeas corpus case of Anderson Hawthorne, who has been on death row since early 1986 for the shooting deaths of Jimmy Mamon and Kirk Thomas. The two rival gang members were gunned down Dec. 18, 1982, in the parking lot of a video arcade in Los Angeles’ South Central area. Hawthorne was sentenced on Feb. 18, 1986, and entered death row eight days later. Harry Simon, the L.A.-based deputy federal public defender handling Hawthorne’s case, couldn’t be reached for comment Wednesday. Reportedly, his client, who was in his early 20s when the crime was committed, has an IQ in the low- to mid-70s. Robert Henry, the Los Angeles deputy attorney general assigned to the case, said Wednesday he doesn’t believe Hawthorne is mentally retarded. Hawthorne pistol-whipped the leader of the Crips at the gang’s headquarters, he said, and then two weeks later gunned down two others. The ruling in Atkins, Henry said, is being used as a life preserver. “You grab what you can,” he said. “If you are drowning in the river and a big flower floats by, you’ll grab on, even if it doesn’t hold you up.” The U.S. Supreme Court’s ruling in Atkins left it to the states to define mental retardation. The California Legislature did just that in the past session with Sen. John Burton’s SB 3, which defines mental retardation as a “condition of significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” The law, added to the state’s Penal Code, takes effect Jan. 1. The new definition will guide courts in evaluating claims of retardation at trial, Gillette said, while the state Supreme Court could use Hawthorne’s case to establish procedures for handling such cases on collateral review. “This will be a good opportunity to get those rules in place,” he said, “and perhaps establish what the appropriate showing is necessary to get a hearing, and the procedures to go through if the court ultimately orders an evidentiary hearing.” Assistant State Public Defender Barry Helft of San Francisco also said the court’s action was important. “It is going to be a significant ruling,” he said, “no matter what they get out of it.” Deputy AG Henry expressed some disappointment about the court’s order, saying he thought the issue had already been briefed. He said he would have preferred that the court send the case back to the superior court for an evidentiary hearing before a referee. The case is Hawthorne on Habeas Corpus, S116670.

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