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Prosecutors got help seeking the death penalty Thursday when the state Supreme Court held they can appeal before trial rulings that find defendants mentally retarded, and therefore unfit for execution. However, the justices ruled that, in the case at hand, the trial judge got it right when he declared that accused killer Jorge Vidal fit within the state and federal definitions for mental retardation. “The trial court,” Justice Kathryn Mickle Werdegar wrote for the unanimous court, “did not commit legal error in giving less weight to Vidal’s Full Scale IQ scores and greater weight to other evidence of significantly impaired intellectual functioning.” Vidal was charged with shooting a man to death in 2001 in rural Tulare County. Before he died, Eric Jones � whom Vidal accused of trying to steal his car � also was stabbed, electrically shocked and brutally sodomized with a stick. During pretrial hearings, Tulare County Superior Court Judge William Silveira Jr. found that Vidal � who had a verbal IQ score of 77 and a full scale IQ test of 92 � was mentally retarded as defined by the U.S. Supreme Court in 2002′s Atkins v. Virginia, 536 U.S. 304, and the state Supreme Court in 2005′s In re Hawthorne, 35 Cal.4th 40. In a split decision, however, Fresno’s Fifth District Court of Appeal vacated Silveira’s order in 2005, saying he should have relied on Vidal’s full scale IQ score and found him not mentally retarded. On Thursday, the Supreme Court reversed, noting that Penal Code �1376 � which sets the state standard for mental retardation � makes no reference to any particular clinical test.
‘The question of how best to measure intel-lectual functioning in a given case is thus one of fact to be resolved in each case on the evidence.’

JUSTICE KATHRYN MICKLE WERDEGAR California Supreme Court


“To impose an absolute rule that a trial court’s finding of mental retardation must be based primarily on Wechsler Full Scale IQ scores,” Justice Werdegar wrote, “would be to read into the statute a criterion the Legislature chose to omit.” She said it also “would be inconsistent with the principle that a factual finding of retardation must be based on all the relevant evidence.” Werdegar also said the Legislature has mandated that the courts must find whether an individual’s “general intellectual functioning” is significantly impaired, but hasn’t defined what that means. “The question of how best to measure intellectual functioning in a given case,” she wrote, “is thus one of fact to be resolved in each case on the evidence.” Vidal’s lawyers had argued from the start that Silveira’s pretrial ruling on mental retardation couldn’t be appealed until after the trial. But both the appellate court and the Supreme Court disagreed, saying the right to appeal a judge’s pretrial order concerning mental retardation was implied in the state Penal Code. “While section 1238, subdivision (a) (8) does not expressly refer to an order terminating a ‘phase’ of trial,” Werdegar wrote, “its broad reference to ‘any portion of’ an action can reasonably be read as including the penalty phase of a capital trial.” Both Don Gallian, assistant district attorney in the Visalia-based Tulare County DA’s office, and Tulare County Deputy Public Defender William Mueting, declared partial victory. Although Vidal won’t face the death penalty, Gallian said, the ruling will result in cost savings for DA’s offices statewide. “You don’t have to do the whole trial first,” Gallian said. “You have that issue [of mental retardation] decided at an early stage.” Mueting, also of Visalia, was pleased that Judge Silveira’s ruling on mental retardation stood, and that the high court provided guidelines for future cases. “A lot of people were hoping for some guidance,” he said, “and they did provide some guidance.” The ruling is People v. Superior Court (Vidal), 07 C.D.O.S. 3850.

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