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The Georgia Supreme Court continues to be divided over capital punishment cases, or so it appeared from an oral argument Monday over a death row inmate’s right to waive a jury trial that could save his life. The case dealt with a convicted murderer’s attempts to forego a trial that could decide whether he is mentally retarded and — if so –ineligible for the death penalty. A Floyd County, Ga., judge last year granted the request of the inmate, James Randall Rogers, after Rogers sent the judge letters insisting he was not retarded and requesting that the retardation trial be dismissed. Rogers, convicted of a 1980 murder in which an elderly woman was impaled with a rake handle, maintains he is innocent despite fingerprints and other evidence tying him to the scene of the crime. He continues to plead with courts for another investigation that could clear him of guilt. An expert testifying for the state last year said Rogers had an IQ of 89, or 19 points higher than the typically recognized border for retardation, while a test done for Rogers’ guilt-innocence trial in the 1980s showed he had an 85 IQ. Two tests for Rogers done in 1994 produced scores of 66 and 68, but the examiner in one of those tests appeared to back off his claim under cross-examination before the aborted retardation trial. In 1995, a Butts County, Ga., judge granted Rogers’ habeas corpus claim and ordered a jury trial to decide Rogers’ mental capacity. On Monday, Rogers’ lawyer argued that his client has no right to waive the trial because the state cannot risk the possibility of executing a mentally retarded inmate and therefore violating both the U.S. and Georgia Constitutions. A senior assistant attorney general responded that Rogers was not retarded and had made a knowledgeable, intelligent and voluntary decision to waive the trial in the same way a mentally retarded defendant may plead guilty to a crime and waive a trial on guilt and innocence. Rogers v. State, No. S02A1310 (Sup. Ct. Ga. May 9, 2002). SIMILAR SPLIT REAPPEARS Last year, Georgia’s high court ruled by a 4-3 vote to decide that the state’s electric chair violated constitutional prohibitions against cruel and unusual punishment, and comments made at oral argument pointed to a similar split. Three of the justices from last year’s majority — Chief Justice Norman S. Fletcher, Presiding Justice Leah Ward Sears and Justice Robert Benham — sounded concerned that the state inadvertently could execute a retarded inmate. Justice Carol W. Hunstein, the author of last year’s majority decision in the electric chair case, did not ask any questions. At one point, Sears told Senior Assistant Attorney General Susan V. Boleyn that her argument meant a mentally retarded person is competent to waive his right to a jury trial to decide whether he is, in fact, retarded. Thus, Sears added, with her voice rising a bit, “With your argument, the state can execute the mentally retarded.” “Not correct, your Honor,” Boleyn responded. Rogers, Boleyn added, was found by a trial judge to be able to make the decision and waive his right to be tried by a jury. Rogers’ lawyers from the aborted retardation trial, she added, were “bound to do what [Rogers] wanted.” ELECTROCUTION DISSENTERS Two of the three justices who dissented from the electric chair decision — Justices George H. Carley and P. Harris Hines — were harder to read than Fletcher, Sears and Benham. But Carley and Hines’ questions suggested they were skeptical of the arguments by Rogers’ lawyer, Ralph I. Knowles Jr. The third dissenter from last year, Justice Hugh P. Thompson, did not ask a question. When Knowles reminded the justices of his main theory — that Rogers thinks that if he waives a retardation trial then that would clear the way for another guilt-innocence trial — Carley interrupted with irritation in his voice. “You keep emphasizing that, but that doesn’t mean he’s retarded or that that issue is still here,” said Carley. Earlier, Hines had asked whether the substance of Knowles’ argument was that if Rogers were mentally retarded, he would not be competent to decide whether to waive the retardation trial. “That’s one of those existential questions,” Knowles responded, suggesting that psychologists would differ as to whether a retarded person would be competent to stand trial. Boleyn, during her argument, said, “You don’t equate mental retardation with competence,” adding that a mentally retarded person can waive his opportunity for a jury trial. Boleyn later pointed to the fact that one of Rogers’ experts last year appeared to back off his claim that Rogers is retarded, admitting that the person he examined could not have written the letters sent to the judge. “Their experts were simply impeached,” argued Boleyn. Responded Fletcher, “Impeachment is an argument for the jury, is it not?”

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