Never Too Early To Prepare To Avoid The Death Penalty

Like most parents, I’ve read books on child rearing in the hope of doing something right.  Yet nowhere did I read the part about making sure your child is given an IQ test, just in case he is convicted of a capital offense some 30, 40 years later.  In Kentucky, this would be a wise thing to do.

Via Turley,

Donald Giles would appear to have the trifecta of mental incompetence arguments against execution. He is a paranoid schizophrenic with an IQ of 61 and a history of suicide attempts and depression. However, Jefferson County Circuit Judge Martin McDonald has ruled that Giles, 41, may be put to death if the jury so rules in his trial for the 2003 murder and robbery of Charles Goodlett.

Some might think that Atkins v. Virginia would preclude such an outcome.  Not according to Judge McDonald.


Kentucky law statutes actually ban the execution of a person with an IQ of 70 or below but McDonald ruled that Giles should have been given an IQ test as a child to claim such an exception.
The law giveth and the law taketh away.  After all, without an IQ test as a child, establishing that Giles fell below the normal range of intelligence, what used to be called mentally retarded before such words were taboo, how can McDonald be assured that this isn’t some cleverly crafted scam to deny him the opportunity to put someone to death?  Recent fabrication is always a problem when there’s a potential execution on the horizon, and to deny the people of Kentucky an execution would be wrong unless the defendant can prove that he’s unworthy of death,  Don’t blame the judge; after all, there was nothing stopping Giles from having an IQ test long before this whole mess happened.

Except maybe the fact that most parents don’t anticipate that their child will eventually face execution but for neuropsychological testing.  Which is why you need to know this.  After all, you certainly wouldn’t want your child to be executed because you didn’t plan ahead.

Judge Martin McDonald, however, is of the opinion that disclosure of this preparation secret is wrong.  From the Louisville Courier-Journal :



Senior Judge Martin McDonald criticized The Courier-Journal on Friday for an article the previous day about Donald Giles, who is legally mentally retarded but facing the possibility of the death penalty along with Robert Holt in the 2003 murder and robbery of Charles Goodlett.


“I don’t like The Courier-Journal blasting something in the media about a case we’re getting ready to start jury selection on,” McDonald said Friday, as the trial was set to begin. “I mean, it’s counterproductive.”


I mean, seriously, if the newspapers go and blast the trick to beating an execution, how do they think they’re ever going to execute any mentally retarded defendants in Kentucky?  Counterproductive indeed.

12 thoughts on “Never Too Early To Prepare To Avoid The Death Penalty

  1. Jdog

    Well, that sounds more than a little goofy to me, but it also sounds, from my amateur POV, that it’s the sort of thing that gets handled on appeal pretty straightforwardly if, and only if, the jury votes for the DP. In which case, as I understand it, there’s in effect a guarantee of several appeals anyway; this just might come up as part of them. If he’s acquitted, or convicted and sentences to something else, it’s just chin music, no? Or is there some reason to believe that the jury being told — and at what point? — that they have to decide whether or not he gets the death penalty, if they decide he’s guilty, possibly going to change whether or not he gets convicted at all?

    As to the judge criticizing the case being covered, though, that’s even stranger — isn’t a public trial, particularly for a horrendous crime (and whether or not the accused did it, or can properly be convicted of it, I think I’m pretty safe in saying that a robbery/murder is more than vaguely naughty) supposed to be news?

  2. SHG

    Appeals aren’t a substitute for getting it right the first time.  Never anticipate a good outcome on appeal.

  3. Clara

    I don’t agree with the death penalty but it’s funny how the majority of murderers, especially those on death row have low IQs. Even those who were able to write their own legal briefs suddenly develop “low IQ syndrome” as soon as an execution date is set. It is a widely abused claim and the judge knows it. If someone knows that performing badly on a test will save their life, of course they will fail it! Unless there a test done without prejudice, I agree with him.

  4. Windypundit

    Shorter Judge Martin McDonald: Waaaaah!

    Getting an impartial jury is your job, judge, not the Courier-Journal’s. And where were you during all the coverage before this issue cropped up?

  5. SHG

    the majority of murderers, especially those on death row have low IQs. Even those who were able to write their own legal briefs suddenly develop “low IQ syndrome” as soon as an execution date is set.

    A very curious assertion.  Would there be a basis for this statement?  I would suspect that many on death row have low IQs and/or mental illness (or other related risk factors), not because of any trick but because of the factors that lead a person to commit murder.  But your second part of the assertion, “low IQ syndrome,” comes as complete news to me. In fact, I’ve never heard anyone suggest its existence before.  So I assume there is some basis for it, and I’m sure everyone would be very interested in a study showing this to be the case.  I find this interesting because I’ve never heard it to be an abused claim at all, no less a “widely abused claim.”  I would hate to be wholly unaware of something so well-known to you.

    But if there is no study to show this, or evidence to prove this, and if in fact you just made up the “low IQ syndrome” and “it is a widely abused claim” out of whole cloth, then why?

  6. Dissent

    Under federal law (I.D.E.A.), his school district was mandated to identify students in need of special education and to evaluate them. If his IQ is that low, how is it that he was never identified and evaluated — an evaluation that would have included IQ testing or an attempt to test IQ?

    Assuming his parents didn’t actively prohibit testing or that he was found untestable (which would at least indicate early problems of some kind), is this man at risk of execution because of failures in his school system? As a non-lawyer, I’ll just pose a question: can the state execute a man based on absence of early testing if they failed to do what they were supposed to do? Sorry if it’s a naive or dumb question, but I’m genuinely confused.

  7. SHG

    The Individuals with Disabilities Education Act was first passed in 1990.  Giles is now 41 years old.  He would have been 22 at the time of IDEAs passage.

  8. Jdog

    Well, I’m not a lawyer, either, but I think the only reason for any confusion is the judge’s silly notion that the lack of a childhood test means that his low IQ doesn’t count.

  9. SHG

    Just so it’s clear in light of the baseless comment above, it’s almost impossible to feign a subnormal IQ when tested by any qualified neutral tester.  And if the tester was neither qualified nor neutral, than that’s a different problem that could be easily fixed.

  10. Dissent

    You’re right. I don’t remember if that particular mandate was in the Education of the Handicapped Act that was the precursor to I.D.E.A. EHA went into effect while he was approximately aged 7. If (and it’s a big “if” as I can’t seem to locate the full text of PL 92-142) there was such a mandate and the district or state failed to screen or evaluate him, their failure shouldn’t be used to deny him the protection of the state law barring execution of individuals with IQ scores below 70. Okay, now I’ll shut up. 🙂

  11. SHG

    I don’t believe testing was required under the EHA (enacted 1975), but regardless, connecting the obligation under the IDEA to his failure to have a test available now isn’t really the answer in any event.  The failure to test is an IDEA violation, and would be of no legal consequence in this proceeding in any event.  It mixes laws, remedies and jurisdictions. They just don’t connect up that way.

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