DEATH ROW Judge to decide inmate's fate

The killer has been on death row since 1986.
WARREN -- Ohio death row inmate Charles Lorraine will get a chance to prove to a judge that he's mentally retarded and therefore shouldn't be executed.
His claim for post-conviction relief on the IQ issue has been returned to Trumbull County Common Pleas Court for determination by a judge, not a jury.
The 11th District Court of Appeals said it was compelled to adhere to a precedent set by the Ohio Supreme Court. Concurring with Judge William M. O'Neill's opinion are presiding Judge Donald R. Ford and Judge Colleen Mary O'Toole.
The Trumbull County prosecutor's office said it will file an appeal with the Ohio Supreme Court. Hearing such an appeal is discretionary on the court's part.
Lorraine was convicted in November 1986 of killing Raymond Montgomery, 77, and his wife, Doris, 80, in their home on Haymaker Avenue Northwest.
Retardation in question
LuWayne Annos, assistant county prosecutor, said the information that has previously been filed by Lorraine's lawyers "has no evidence that Charles Lorraine is or ever was mentally retarded."
He was convicted of four counts of aggravated murder and two counts of aggravated burglary and sentenced to death in 1986. The 11th District Court affirmed the convictions in 1990; the Supreme Court of Ohio did so in 1993.
In June 2002, however, the U.S. Supreme Court issued its decision in Atkins vs. Virginia, holding that the execution of mentally retarded persons violates the Eighth Amendment's safeguard against cruel and unusual punishment. The court left it to the states to determine the precise standards and procedures.
On June 9, 2003, Lorraine filed a post-conviction petition in the trial court alleging an Atkins claim of mental retardation. Lorraine included within his petition relevant testimony and IQ test results.
Judge Andrew Logan of Trumbull County Common Pleas Court dismissed Lorraine's claim that he is mentally retarded and should be spared the death penalty. Lorraine then filed assignments of error with the 11th District Court regarding granting a hearing on the issue of mental retardation.
Another chance
The appeals court, in its opinion released Monday, noted that Lorraine was sentenced to death before the Atkins decision. He had not been afforded a full opportunity to litigate his claim of mental retardation.
During the penalty phase of the 1986 trial, Lorraine offered evidence relative to his educational history, cognitive development, and intellectual functioning, including an IQ test administered by the public school system. Expert and lay testimony was introduced regarding Lorraine's lack of social and personal skills, which left him unable to function adequately with respect to family, employment, and financial matters.
He was entitled to a hearing on the issue, the appeals court said.
The appeals court also said the case facts demonstrate a need for an expert to evaluate that evidence for mental retardation. The trial court erred and abused its discretion in denying Lorraine's request for expert assistance for the purposes of demonstrating he is mentally retarded.
A capital defendant asserting an Atkins claim is raising a constitutional issue that was not and could not have already been litigated, the appeals court said. Lorraine is therefore entitled to the appointment of two certified attorneys, but not entitled to a jury trial. A judge decides the issue.