- Associated Press - Thursday, July 17, 2014

BOISE, Idaho (AP) - The 9th U.S. Circuit Court of Appeals says a federal judge in Idaho must reconsider whether a death row inmate is too intellectually disabled to be executed.

The appellate court sent Gerald Pizzuto Jr.’s case back to Idaho on Tuesday, citing a ruling earlier this year from the U.S. Supreme Court in a similar case out of Florida. In that case, the high court found that intellectual capacity is a condition, not a number, and so states cannot rely on a fixed IQ score alone to determine whether an inmate may be put to death.

Pizzuto was sent to Idaho’s death row 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 when the hammer blows failed to immediately kill him.

Pizzuto appealed his sentence, saying that his IQ was less than 70, making him too mentally disabled for the state to legally execute him. When Pizzuto was 29 - his age at the time of the murders - his IQ was measured at 72 points. Pizzuto’s attorneys have also argued that IQ scores have a margin of error of about 5 IQ points, which could mean his score was as low as 67.

But state attorneys have maintained Pizzuto’s IQ is actually higher, and they contend the same margin of error could put his score at 77. They’ve also argued in court that there is no evidence he meets the criteria of Idaho’s law banning capital punishment for mentally disabled criminals: that his IQ was lower than 70 when the crime occurred, and that the low IQ occurred before he turned 18.

Now, a federal judge will have to consider whether Idaho’s criteria is consistent with the U.S. Supreme Court ruling, which requires taking the margin of error into account when looking at IQ scores and considering whether a defendant has other symptoms of intellectual ability, such as an inability or difficulty adapting to changing situations.

Todd Dvorak, spokesman for the Idaho attorney general’s office, declined to comment because the case is still underway.

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