IQ at center of hearing over death sentence

The expert testimony is already on record, Prosecutor Dennis Watkins said.
By ED RUNYAN
VINDICATOR TRUMBULL STAFF
WARREN -- Should the judge deciding whether murderer Charles Lorraine is exempt from the death penalty make the decision based on his mental capacity at the time of the murder or based on his whole life?
That is one of the questions the legal team for the former Warren man posed in oral arguments before Judge Andrew Logan on Wednesday in Trumbull County Common Pleas Court.
The hearing was the first phase of a petition filed on Lorraine's behalf that asks the court to determine whether his life should be spared because of the possibility that he is mentally retarded.
The 11th District Court of Appeals sent the case back to Judge Logan after he originally had dismissed the case without a hearing. The appeals court ruled last May that Judge Logan erred in denying Lorraine a hearing.
The court said that Lorraine has never had a full opportunity to litigate his claim of mental retardation and that Judge Logan incorrectly denied Lorraine the opportunity to have an expert evaluate whether he is mentally retarded.
Lorraine, 39, who is on death row, was convicted in November 1986 of killing Raymond Montgomery, 77, and his wife, Doris, 80, in their home on Haymaker Avenue Northwest. He sat through the hearing Wednesday in prison garb without comment.
Atty. Luigia Tenuta of Dublin, Ohio, one of Lorraine's attorneys, said when she filed Lorraine's petition in 2003, which alleged that he was not eligible for the death penalty because of mental retardation, the petition only asked that he be spared the death penalty because he was retarded at the time of the crime.
She asked the court to limit the proceedings to just the time period when Lorraine committed the crime at age 19 and before. She said such a look would demonstrate that he was considered mentally retarded when he attended Warren schools.
Cites Hill case
Trumbull County Prosecutor Dennis Watkins told Judge Logan he need look only as far as the ruling of Judge Thomas P. Curran in the case against fellow death-row inmate Danny Lee Hill for guidance.
Judge Curran, a visiting judge from Cuyahoga County hearing Hill's case, ruled that relevant information came from examining Hill's mental abilities at the time of his crime and in his adult years, Watkins said.
Judge Curran denied Hill's claim in February.
"The bottom line is, is the defendant mentally retarded?" Watkins said. "Retardation is not something that is there one day and gone the next. Therefore, it's relevant what his mental state was last year, years ago, today."
Judge Logan said he would look again at Lorraine's petition, based on the U.S. Supreme Court's Atkins ruling, to rule on various motions. He set a status conference for Aug. 9. Logan's rulings will guide the attorneys on the areas to be argued when evidence is presented in the case, he said.
The Supreme Court's Atkins ruling, issued in June 2002 in Atkins v. Virginia, holds that the execution of mentally retarded people 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.
Expert-evidence issue
On the question of providing expert assistance to Lorraine's defense team, Tenuta said she and co-counsel Marc E. Triplett of Bellefontaine are far enough away from Warren that it will be difficult for them to collect evidence about Lorraine's childhood both from a logistical and staffing standpoint and asked that an investigator be hired.
Judge Logan said he would not grant a blanket approval for spending money on such assistance but will decide on such expenditures on a case-by-case basis.
Watkins said Lorraine's defense attorneys used eight to 11 witnesses in the mitigation phase of his trial, including a doctor who testified that Lorraine had an I.Q. of 75 and was not mentally retarded, and the record is full of expert testimony that can be used.
"This should not be made into a fishing expedition. The records are available," Watkins said. "In my opinion, it's not going to take tens of thousands of dollars or an investigator" to look for additional evidence, Watkins said.
"Use subpoenas, test the guy and get it over. That's what's been done in trial after trial. There's no requirement to appoint an investigator. Let's get on with this," he added.