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The U.S. Supreme Court recently nationalized a standard set by the Georgia high court in 1989: It is unconstitutional to execute the mentally retarded. But what happens if a death row inmate waives his right to a jury trial that would decide his mental capacity and possibly save his life? The Georgia Supreme Court will tackle that question in oral arguments Monday. Lawyers for the inmate, James Randall Rogers, contend that he may not waive the trial because it is in the public interest to make sure that the government does not execute someone who is mentally retarded. The state’s lawyers respond that Rogers made a knowing, voluntary and intelligent decision to waive the trial and that a judge — after resolving that the inmate was not retarded — may grant the waiver. Rogers v. State, No. S02A1310 (Sup. Ct. Ga. May 9, 2002). Rogers was sentenced to die for a 1980 murder in which an elderly Floyd County, Ga., woman was impaled with a rake handle. In a 1986 decision affirming the conviction, the state high court said that Rogers was caught fleeing the scene, that fingerprints on the rake handle matched his, and that he had confessed to the crime. Rogers v. State, 256 Ga. 139 (1986). While Rogers has pleaded with courts for another chance to prove his innocence, a series of court-appointed lawyers has fought an uphill battle to prove Rogers is retarded and therefore ineligible to be executed. They won a major victory in 1995 when the Butts County Superior Court, which presides over Georgia death row habeas corpus cases, sent Rogers’ matter back to Floyd County for a jury to decide whether Rogers is retarded. DIFFERING IQ SCORES Legally, a person typically is deemed retarded if his IQ test score is below 70. For the habeas case, Rogers’ lawyers marshaled two tests showing Rogers’ score to be 66 and 68. Attorneys for the state have subsequently produced a more recent test showing Rogers’ IQ to be 89. But the biggest problem for Rogers’ lawyers has been their client. Last year, Rogers wrote to the judge who was preparing to hold a retardation trial that he was not retarded and did not want a trial. In February 2001, Chief Judge Robert G. Walther of Floyd County Superior Court presided over a hearing on whether to grant Rogers’ request. After a state’s expert testified that Rogers had an IQ of 89, Walther asked Rogers’ lawyers, James C. Wyatt of Rome, Ga., and T. Lee Henley of Rockmart, Ga., whether they had any questions. “Your Honor, we’re sort of in an unusual situation,” said Henley, according to the state’s high court brief. “We can’t really create an adversarial situation because our client is asking us that he — or informed us and tells us that he wishes to dismiss this action, so that sort of limits us as to what we can — or would ask or — or would show to the Court.” Wyatt later acknowledged that the day before, in depositions, one of the experts who had deemed Rogers to be retarded backed off the claim. JUDGE QUESTIONED INMATE Then Walther called Rogers to the stand and asked him a series of questions. Rogers confirmed he had written the letter, adding that the trial set to occur was only to determine mental retardation. “I’m not mental [sic] retarded, and it’s just wasting time here in this court, so why have it?” Rogers asked. “That doesn’t make any sense.” Answering questions by Walther, Rogers confirmed his lawyers had discussed their preparations to prove his retardation, that he agreed with the state’s expert and that he realized he could not bring the retardation issue up again if the court granted the dismissal. Rogers told the judge he was 39 and that he had been in prison 21 years. “Do you like to read?” Walther asked. “Um, that is correct, sir,” Rogers said. He told the judge that he liked to read fiction, but that he had no favorite author. “I am of the opinion that you know what you are doing,” Walther concluded, later making his decision official in a written order. The Georgia Resource Center, which provides lawyers to indigent death row inmates, had represented Rogers at the Butts County court. The center replaced Wyatt and Henley with Thomas H. Dunn, the center’s executive director, and Angela S. Elleman. They asked Walther to vacate the dismissal of the retardation trial. Their motion included a handwritten note from Rogers that read, according to Rogers’ high court briefs, “I want to have my case back in court. I want to have the court rule on my innocence. I want the court to rule on my IQ.” LAWYERS FIRED Walther denied the motion, and Rogers subsequently fired the Resource Center lawyers, accusing them of lying to him, a charge they have denied. In another letter to Walther, Rogers claimed Dunn and another center lawyer, M. Elizabeth Wells, had “told me to cheat” on an earlier IQ test and not to worry because the doctor doing the test was “with us.” In a response letter to the judge, Dunn denied his former client’s accusations. “In fact, Mr. Rogers was told that you cannot fool the test or the examiners and that to try to do so would be detrimental to his case,” Dunn wrote. Asked by Resource Center Board Chairman Emmet J. Bondurant to take Rogers’ case, plaintiffs’ lawyer Ralph I. Knowles Jr. is leading the argument that Rogers should have a retardation trial. Knowles’ job is not easy. Rogers last month sent a handwritten letter to the high court that said he was not retarded but that he wanted another investigation into the case. “I hope and pray this court feel’s [sic] it would be a miscarriage of justice not to at least give me a chance to prove my innocence,” Rogers wrote. According to Phillips v. State, 238 Ga. 497 (1977), the high court generally does not consider arguments by parties who already are represented by counsel. Knowles and his team, C. Rebecca Smith and C. Cooper Knowles (Ralph Knowles’ nephew), argue in court briefs that Rogers’ mental capacity was not the judge’s decision to make, but only a jury’s. They point out that the 1989 state high court decision banning capital punishment of the mentally retarded, Fleming v. Zant, 259 Ga. 687 (1989), ordered jury trials to determine mental capacity. Rogers’ latest team adds that he could not have made a knowing waiver because he received ineffective assistance from his lawyers at the Floyd County hearing. They argue that Rogers thought waiving the retardation trial could help him get an innocence trial. “Yet, no one, not the DA, not his own counsel, not the Court, informed Rogers of the grim facts he faced and that his options de facto and de jure were limited to a jury finding of mental retardation or his death by execution,” Knowles’ team writes. Tambra P. Colston, the Floyd County district attorney at the time, said she, in fact, did warn Rogers. “Yes, we did,” said Colston, now a Floyd Superior Court judge. She described how she told Rogers during the hearing that his decision would send him back to death row. Wyatt, one of Rogers’ lawyers in Floyd County, would not say specifically what he told Rogers, citing attorney-client privilege. But he asserted in an interview that “I had several discussions with him about the various consequences” of waiving the trial. Wyatt also defended his overall representation of Rogers: “I think I was making the best decision I could at the time.” Henley could not be reached for comment. Responding to the Knowles’ team’s arguments, lawyers for the state, led by Senior Assistant Attorney General Susan V. Boleyn, argues in briefs that a jury trial on mental retardation may in fact be waived. The Fleming decision, the state argues, “does not create any ‘right’ which cannot be waived,” Boleyn’s brief added. “Public policy does not prevent Petitioner, who was found competent to make legal decisions, following consultation with his counsel, from waiving/dismissing his previously scheduled mental retardation trial,” the brief adds.

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