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Federal court rejects death row appeal based on IQ

BOISE, Idaho — The 9th U.S. Circuit Court of Appeals has rejected Idaho death row inmate Gerald Pizzuto Jr.’s claim that he is too mentally disabled to be executed.

A three-judge panel ruled Monday that the Idaho Supreme Court correctly applied federal case law when it found that Pizzuto was eligible for execution.

Pizzuto had appealed his sentence, saying that his IQ was below 70, making it illegal for the state to execute him. But state attorneys have maintained Pizzuto’s IQ is actually higher, and that there’s no evidence he meets the criteria of Idaho’s law banning capital punishment for mentally disabled criminals.

Pizzuto was sentenced to die in 1986 for killing Berta Herndon, 58, and her nephew Del Dean Herndon, 37, as they were prospecting near McCall. At his trial, prosecutors said Pizzuto approached the Herndons with a .22-caliber rifle as they arrived at their mountain cabin, and once inside he tied them up so he could steal their money. Prosecutors said he came back later to bludgeon both of them with a hammer, ultimately shooting Del Dean Herndon between the eyes when the hammer blows failed to immediately kill him.

The U.S. Supreme Court ruled in 2002 that it is unconstitutional to execute anyone who fits the medical definition of mental retardation, and Idaho state law defines mental retardation as having an IQ of 70 or below. Because Pizzuto was trying to retroactively apply his claims of mental disability to his case, Idaho law requires that he prove his IQ was lower than 70 at the time of the murders — when he was 29 — and that the low IQ occurred before he turned 18.

The appellate court noted that there was evidence Pizzuto had long used drugs and experienced seizures, both things that likely had a negative impact on his intellectual abilities. Pizzuto’s IQ was measured at 72 when he was 29, and his attorneys argued that IQ scores have a margin of error of about 5 IQ points — which could mean his score was as low as 67. State attorneys countered that the same margin of error could mean Pizzuto’s IQ was actually 77.

Either way, the appellate court said the Idaho Supreme Court acted reasonably when it found that Pizzuto failed to show he had a low IQ before he turned 18, a necessary component of proving mental retardation under the state law.

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