Mentally retarded on death row given hope

Rudi Apelt's father tried to kill him before he was even born.
He slammed an iron rod into his malnourished, drug-addicted wife's womb
in a botched abortion attempt, but Rudi survived - barely.
It was the beginning of an abusive childhood for Rudi, whose alcoholic father bruised and bloodied his seven children almost daily. The German-born man didn't speak until he was 7 or 8, and attended school for the mentally retarded.
Now Apelt's federal public defender will try to use his tortured life and mental retardation to save his life.

Apelt is one of Arizona's 126 death row prisoners, some of whom were handed new hope this week when the U.S. Supreme Court ruled in a divided opinion that executing the mentally retarded amounts to cruel and unusual punishment.

Arizona Assistant Attorney General Kent Cattani called the ruling "significant" and expects a number of appeals from inmates asking that their death sentences be commuted to life.

While Arizona joined 17 other states last year when it outlawed the execution of the mentally retarded, the measure did not extend to already condemned prisoners. Now, buoyed by the weight of the high court decision, a judge's finding of mental retardation will automatically exempt them from the death penalty.

Death row inmates who want to use this claim will have to rely on their lawyers to raise the issue. The state isn't going to go looking for them. "I'm very excited," said Apelt's federal public defender Dale Baich.

Defense experts agree that Apelt's IQ is only 55, far below the generally accepted standard of 70 in states that already ban such executions, he said. No one knows how many of the state's death row inmates are mentally retarded, but Cattani and Baich believe there are several. Since 1997, Baich said he has argued that his client's tortured childhood shows both psychological scars and mental retardation as a way
to spare his life.

He and his brother Michael Apelt were convicted in the 1990 stabbing death of Michael's wife to collect her $400,000 life insurance policy.
They came to the United States from Germany in 1988.
The high court shied away from setting an exact IQ standard, leaving that up to the other 20 death penalty states that don't ban executions of the mentally retarded to decide who fits that description.  The decision isn't easy.
Judges use IQ tests and expert testimony to rule on whether a defendant facing the death penalty is mentally retarded. But defense attorneys say prosecutors often argue that retardation can be feigned.
"Prosecutors said Rudi was faking it," Baich said, adding, however, that his client's condition is verified by medical records, and school and social service reports.
However, Cattani said the courts didn't ignore mental retardation even
before Arizona passed the 2001 law. It was among other mitigating factors
considered at sentencing.
"The planning and carrying out of a murder tends to weigh against the fact that (a defendant) was mentally retarded," he said.
Cattani is among those who say it isn't unusual for defendants to pretend to be mentally retarded when taking IQ tests.
But Susan Cannata, a lobbyist for the Association for Retarded Citizens,
said the opposite is more likely true.
Mentally retarded people want to fit in, she said.
"They've been conditioned over the course of their lives to hide mental
retardation," she said. "A lot of them try to cover it up."

(source: Arizona Republic)

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