Ronnell Wilson is not mentally retarded and can once again appear before a jury that will decide whether he should be executed for the murder of two undercover police officers on Staten Island in 2003, a federal judge ruled yesterday.

Eastern District Judge Nicholas Garaufis (See Profile) rejected claims by lawyers for Wilson that he was mildly retarded and should be spared capital punishment pursuant to Atkins v. Virginia, 536 U.S. 304 (2002).

Wilson was convicted in 2006 by a jury in Brooklyn federal court of the execution-style murder of NYPD Detectives James Nemorin and Rodney Andrews. The jury went on to vote that he be put to death and Garaufis imposed the penalty in 2007.

But the U.S. Court of Appeals for the Second Circuit vacated the capital punishment verdict on constitutional grounds and remanded to Garaufis for a retrial on the penalty phase.

On remand, Wilson requested a pretrial hearing on whether he was mentally retarded and thus ineligible for a death sentence under the Eighth Amendment’s prohibition against cruel and unusual punishment and the Federal Death Penalty Act (FDPA).

Garaufis held a nine-day hearing in December 2012 under Atkins, where the Supreme Court held that the execution of mentally retarded individuals was cruel and unusual punishment. At the hearing, believed to be the first of its kind in federal court in New York, dueling experts gave contrary opinions on Wilson’s intellectual skills and abilities (NYLJ, Dec. 6, 2012).

Yesterday, Garaufis said in United States v. Wilson, 04-CR-1016, "Wilson has not satisfied the burden of proving that he more likely than not suffers from significantly subaverage intellectual functioning.

"The court holds that Wilson is not mentally retarded, and was not mentally retarded at the time of the crime," the judge said. "This does not mean that he will receive—or deserves to receive—the death penalty, but only that any such penalty would not violate the Federal Death Penalty Act or the Eighth Amendment."

The Atkins court based its decision on several factors, including whether the execution of mentally retarded defendants would serve the deterrence or retribution justifications for capital punishment, whether there was an increased possibility for false confessions and, in the words of the Supreme Court, "the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation."

But Garaufis said, "Neither the FDPA nor Atkins mandates a particular definition of mental retardation," and he said he was free to consider New York state’s law, which "ultimately leads the court to rely primarily upon clinical definitions of the term," in conjunction with expert opinion.

The requirements he applied are that there be "(1) significantly subaverage intellectual functioning; (2) significant deficits in adaptive behavioral skills" (how a person copes with common life demands and whether they meet standards of personal independence expected of someone of their age, background and community setting); "and (3) onset of the condition before age eighteen."

Two legal principles also guided the judge, with the first being that determining mental retardation is a question of fact, not of law, and the second being that the burden was on Wilson to prove "that he is more likely than not mentally retarded."

Garaufis used the IQ target score of 70, acknowledging room for error, as a reference point advocated by the American Association on Intellectual and Developmental Disabilities (AAIDD) and the American Psychiatric Association (APA).

The judge considered both the "Flynn effect"—rising standards of intelligence on the "norm" for determining mental retardation, and the "practice effect"—the fact that people do better when they are retested within a short period of time.

Wilson has had eight complete IQ tests dating back to 1989, Garaufis said, and "all but one of Wilson’s Flynn-adjusted scores fall at least three points above 70," which suggested that "his true IQ score lies in that area." The judge also said there was a diminished "practice effect" because Wilson was never administered two intelligence tests within the same year.

He said Wilson’s first three Flynn-adjusted scores averaged 77.47 and his last three—taken in 2000, 2003 (just six months after the crimes) and 2012—averaged 77.91.

Altogether, the judge said, "Wilson’s tests strongly suggest that his true IQ score is more likely than not above 70. That is a compelling indication that he does not suffer from significantly subaverage intellectual functioning."

But Garaufis also considered the opinions of the clinicians who administered the tests and "not one" of them concluded that Wilson was mentally retarded. In fact, "most of the test administrators believed that Wilson’s observed IQ scores represented an underestimate of his true intelligence."

Garaufis scheduled the penalty phase for May 20. He said the "extraordinary pretrial publicity" in the case warrants having 2,000 potential jurors fill out questionnaires over five days starting on April 3, with voir dire to begin on April 17.

The publicity stems from news reports concerning Metropolitan Detention Center Corrections Officer Nancy Gonzalez, who admitted to having sex with Wilson at the MDC and becoming pregnant. Gonzalez was arraigned on Feb. 5 on charges of sexual abuse of a person in custody.

Gonzalez is now eight months pregnant.

Assistant U.S. Attorneys James McGovern and Celia Cohen represent the government.

Michael Burt, David Stern, Colleen Brady and Beverly Van Ness represent Wilson. They declined comment on the judge’s ruling.