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The state Supreme Court gave at least 30 death row inmates hope on Thursday by establishing post-conviction standards for deciding when executions should be set aside on the basis of mental retardation. The justices were particularly generous to borderline cases, refusing to name a particular IQ score as the cutoff mark for retardation. The ruling granted convicted killer Anderson Hawthorne Jr., whose lawyers claim is profoundly retarded, the first evidentiary hearing under the new standards. The unanimous ruling was hailed by both prosecutors and public defenders as a workable solution for evaluating whether convicted murderers had the mental capacity to understand their homicidal actions. “It tells us exactly what showing needs to be made,” said Senior Assistant Attorney General Dane Gillette, the state’s capital case coordinator. “It’s an entirely reasonable approach.” Harry Simon, the Los Angeles deputy federal public defender who argued the case in December, congratulated the court for not setting a bright-line IQ number for official retardation. “I was quite pleased to see that the court recognized that determining mental retardation is more than just looking at a single number,” he said. The case had been brought on behalf of Hawthorne, 44, a former member of the Bloods gang who was sentenced to death in 1986 for gunning down two rival Crips gangsters in South Central Los Angeles. While prosecutors contended that Hawthorne was a wily street tough more than able to hold his own in a crime-ridden neighborhood, defense lawyers responded that he had been labeled as “slow” since kindergarten, couldn’t recite his ABCs at age 12 and wasn’t able to write at 17. His attorneys contended that Hawthorne, with an IQ of about 75, met the definition of mental retardation set out by state law, as well as the U.S. Supreme Court in 2002′s Atkins v. Virginia, 536 U.S. 304. Atkins held that executing the mentally retarded violates the Eighth Amendment ban on cruel and unusual punishment, and left states with the duty of setting appropriate standards for establishing mental deficiencies. California Penal Code �1376, which took effect last year, 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.” On Thursday, the high court — in a 13-page ruling authored by Justice Janice Rogers Brown — held that the statute, which clearly applies to pre-conviction proceedings, should be extended to post-conviction hearings. She said that habeas corpus petitions claiming inmate retardation must contain declarations by qualified experts explaining their reasons for finding a lower intelligence level. That would have to include showings that the inmates have substantial limitations in two or more of 10 skill areas, such as self-care and social interaction, identified by the American Psychiatric Association and the American Association of Mental Retardation. The court also said trial judges, rather than jurors, should decide whether prisoners are retarded and that inmates’ attorneys must prove so by a preponderance of the evidence. The biggest loss for prosecutors was the court’s decision not to set a specific IQ number as the cutoff for retardation. The state had argued that an IQ of 70 or less — with the normal IQ range being 90 to 110 — should be required for proof. The court refused to specify a number. “A fixed cutoff is inconsistent with established clinical definitions and fails to recognize that significantly sub-average intellectual functioning may be established by means other than IQ testing,” Brown wrote. “Experts also agree that an IQ score below 70 may be anomalous as to an individual’s intellectual functioning and not indicative of mental impairment.” In a separate concurring opinion, Justice Ming Chin, joined by Justice Joyce Kennard, stressed that a bright line would have been appropriate and still remains important in reaching a final decision on retardation. “The Atkins court said that the 70-75 range ‘is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition,’” Chin wrote. “Thus, a person whose IQ score is over 75 is very likely not mentally retarded, and in many, perhaps most, cases, a petitioner will not be entitled to relief absent a showing of an IQ at or below the 70-75 range.” Defense lawyer Simon said the court’s refusal to follow Chin’s suggestion was wise and in keeping with the legislative intent. He also thought Hawthorne — who still has a federal habeas corpus petition pending — has a good chance of not only escaping execution, but going free. “What I hope comes out of this is that his death sentence is set aside,” Simon said. “I’d like to obtain relief for his conviction as well.” In a prepared statement, Charles Hobson, an attorney with the pro-death penalty, Sacramento-based Criminal Justice Legal Foundation, said death row inmates “should not be dancing in their cells” with happiness. “The process that the court has established is not going to make it easy to sustain such claims,” he said, “and the review process should cause relatively little delay in most cases.” The ruling is In re Hawthorne, 05 C.D.O.S. 1235.

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