Nearly two years after the U.S. Supreme Court barred states from executing the mentally retarded, Texas has no standardized procedure for accused and convicted killers to formally claim retardation, attorneys and legal experts say. Methods of determining who is retarded vary from court to court, making it uncertain who can receive an exemption from capital punishment.
"We're feeling blindly through the mist," said defense attorney Terry Gaiser, who represents a capital murder suspect claiming retardation.
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It remains unclear whether a judge or jury must make the final determination on retardation and whether that decision should be made before or during trial. One option is for a judge to give the question to a jury during the punishment phase of a trial, as State District Judge Jeannine Barr did in February in the case of Tomas Gallo. After convicting Gallo of the rape and murder of his girlfriend's 3-year-old daughter, a Harris County jury heard evidence that he might have mental retardation. Jurors were asked during deliberations whether they thought him retarded; they voted he was not.
State District Judge Belinda Hill said recently that she may use a similar method in July during the trial of Gaiser's client, Calvin Hunter. But Gallo's attorney, Robert Morrow, questions the method's fairness and is citing the issue on appeal. After hearing about a horrific crime, he said, jurors are biased on the question of mental retardation, which could result in a more lenient sentence.
http://www.chron.com/cs/CDA/ssistory.mpl/front/2600776
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