Saturday, July 20, 2002

Death row inmate test canceled

Lawyers object to education evaluation after U.S. Supreme Court ruling

By Andrew Welsh-Huggins
The Associated Press

        COLUMBUS, Ohio - The state canceled an education test for death row inmates after defense attorneys complained the results might be used against their clients in a new round of appeals involving mental retardation.

        The Department of Rehabilitation and Correction had scheduled the test for July 8 after an internal audit of Mansfield Correctional Institution in early June cited death row officials for not offering the test, which measures inmates' educational levels.

        Death row, with 201 inmates, is located at the Mansfield facility.

        On June 20, however, the U.S. Supreme Court banned the execution of the mentally retarded after ruling that the practice was unconstitutional.

        Four days later, state public defender David Bodiker wrote all death row inmates to say they might be tested following the decision. Both the attorney general's office and the prison system have said Ohio does not have any mentally retarded death row inmates.

        In his letter, Mr. Bodiker urged the inmates to consult with an attorney first since “such tests could be used by the state against you” in the event of an appeal claiming mental retardation.

        After sending that letter, Mr. Bodiker learned of the July 8 test and - in a second letter, on June 28 - alerted attorneys around the state handling death penalty complaints.

        “All of us in the office have been suspicious, if not paranoid, about possible covert efforts of the nefarious forces of the "dark kingdom' to have the Department of Rehabilitation and Correction quietly "test away' any evidence of mental retardation of the prisoners on death row,” Mr. Bodiker wrote in the June 28 letter.

        “Dark kingdom” referred to the Ohio Attorney General's Office, Mr. Bodiker said Friday.

        In the same letter, Mr. Bodiker said he was satisfied after conversations with Mansfield warden Margaret Bagley that the proposed test was unrelated to the Supreme Court's decision.

        But he said such a test still could affect the evaluation of an inmate's claim of mental retardation.

        Although there was no connection with the court ruling, the prison decided to cancel the test rather than risk the appearance that results would be used in any way against the inmates, Ms. Bagley said Friday. There are no plans to reschedule it, she said.

        Joe Case, a spokesman for Attorney General Betty Montgomery, said Ms. Montgomery wasn't involved in the test in any way.

        Mr. Case said defense attorneys are trying to have it both ways.

        At the same time they're publicly raising concerns about a prison test, they're using findings from a similar prison test as part of an appeal filed by Gregory Lott, Mr. Case said. Mr. Lott was sentenced to die in 1987 for killing a 79-year-old man.

        Do attorneys question prison tests “only when it's not in their favor?” Mr. Case said.

        Mr. Bodiker said attorneys have only the prison test for the mental retardation evidence in that case.

        At the same time, Mr. Bodiker's office doesn't want inmates taking any other tests “without at least the attorney knowing what the tests were and what effect they might have and making sure they were properly administered,” he said.

        At least nine Ohio death row inmates have appealed their sentence since the court ruling, and several more are expected.


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