IQ knocks out death penalty
Defendant found mentally retarded

By Jeff Coen
Chicago Tribune
April 20, 2004

In what is believed to be a first in Cook County and perhaps the state, a
judge has eliminated the prospect of the death penalty in a capital murder case
by determining that a defendant with a measured IQ of 75 is mentally retarded.

That threshold was set last fall by the Illinois General Assembly as part of
the still-new death penalty reform package, and it followed a 2002 U.S.
Supreme Court ruling that the execution of the mentally retarded is
unconstitutional.

Judge Kenneth Wadas heard evidence in a hearing Monday about two IQ tests
performed in the case against Randall Jarrett, but he said the result from the
first exam administered when Jarrett was entering prison in Alabama on a theft
conviction was enough for him.

"He scored a 75 when he was first tested in Alabama," the judge said at the
conclusion of the hearing at the Criminal Courts Building. "That's the number.
He's retarded."

Wadas said his "gut feeling" was that Jarrett, 31, was measured to be
retarded then, but is not now, but that the new rule had made the issue "strictly a
numbers game." The newer test suggested Jarrett's IQ could be as high as 85.

Broad death-penalty reforms, passed within a year of the emptying of Illinois
Death Row, were the state's response to what many critics and government
officials decried as major flaws in the capital-punishment system.

Among the changes that gained national momentum in recent years was a call
for assurances that no mentally retarded person be put to death. The high court
set no IQ limit in its landmark ruling, but Illinois' guideline was set at the
upper end of the generally accepted range that mental retardation is
demonstrated in a score below 70 to 75.

Wadas found Jarrett guilty of first-degree murder and armed robbery in a
bench trial last year in the 1997 slaying of Herman Bailey 50, at Bailey's moving
business on the North Side.

Jarrett and his uncle, David, who pleaded guilty in the case in exchange for
a life sentence, stabbed Bailey and beat him with a hammer before taking money
and a gold chain from him.

Randall Jarrett's defense lawyers filed a motion to preclude the death
penalty in the case after the reform became law.

Denise Streff, assistant public defender, argued that Illinois had set its IQ
limit for executing someone, and that the judge should simply abide by it.
The Alabama test, performed to determine where Jarrett should be placed in that
state's prison population, was an unbiased one done in 1996 -- the year before
the slaying.

"We are arguing about what the state of Illinois says is mental retardation
for purposes of executing somebody. The law says an IQ of 75 or below is
presumptive evidence of mental retardation, and (prosecutors) have been unable to
impeach that score at all," Streff said.

In an attempt to do so, prosecutors called to the stand Timothy Cummings of
Forensic Clinical Services of Cook County Circuit Court, who administered the
second IQ test showing a result of 85.

He found Jarrett to be "dull average," he testified, but not mentally
retarded.

Prosecutors had pointed to Jarrett's apparent ability to care for himself and
others during his life, and the fact that he once filed a lawsuit on his own
alleging mistreatment while he was in the Cook County Jail.

"He can support a family, he can keep employment and he can read," said
Assistant State's Atty. Walt Hehner. "He can write letters when it's to his
advantage, he can hold driver's licenses in two states, and he can file federal
civil-rights lawsuits by himself without getting an attorney."

The defense was able to cast doubt on Cummings' testimony by pointing out
apparent discrepancies in his report. In two places, the defense argued, Cummings
apparently added words to Jarrett's answers that improved his score.

In one instance, in an answer to a question about why it is hard for deaf
people to learn to speak, Jarrett answered, "Because they can't hear what you're
saying."

On Cummings' copy the words, "to say it back," were added, seemingly rounding
out the proper concept the question was seeking.

Under cross-examination by Robert Galhotra, an assistant public defender,
Cummings attributed the differences to a copy machine failing to pick up the
additions, which he claims were present on the originals.

Streff called that "a lie."

Wadas said he was discounting Cummings' findings without commenting further.

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