SPIVEY CASE Lawyer: Let jury determine IQ level

The law relies on IQ scores to determine mental retardation.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- The attorney for death row inmate Warren Spivey says a jury should be impaneled to determine whether the Youngstown man is mentally retarded.
That decision is up to the courts, but Atty. John B. Juhasz said he doesn't believe that is right.
Spivey, 35, has been on death row since November 1989 after being convicted of aggravated murder in the killing of 53-year-old Veda Vesper. A panel of common pleas judges found him guilty after he pleaded no contest to the charge.
The conviction and death sentence have been affirmed by the 7th District Court of Appeals.
Juhasz has argued that Spivey is mentally retarded, and therefore, he should be spared the death penalty. Ohio law does not allow mentally retarded people to be executed.
He says the state's method of determining mental retardation is flawed because it relies on IQ scores. Those with a score of 70 or lower are considered mentally retarded, but Juhasz said scores can fluctuate, so that's not a reliable method.
He said the high court adopted 70 as the benchmark because other states have used it.
Juhasz filed a 33-page motion this week in Mahoning County Common Pleas Court in which he said mental retardation is outside the scope of "traditional sentencing factors" that are generally considered by judges when imposing sentences.
What he contends
The law requires that if a penalty is "something more than what it normally would be," a jury must decide whether it is appropriate, Juhasz said.
"I believe the death penalty is something more than the normal penalty for aggravated murder," Juhasz said.
He said there is no statutory framework for determining mental retardation in such cases, which makes it difficult to prove beyond a reasonable doubt that a person is or is not mentally retarded.
He is not asking that Spivey's conviction be reversed, only that the death penalty be revisited and decided by a jury. The matter is assigned to Judge Jack Durkin.
bjackson@vindy.com