High court ruling may alter Pizzuto case

Gerald Pizzuto Jr.

BOISE - A U.S. Supreme Court ruling requiring states to look beyond intelligence scores in cases of mental disability to determine whether a death row inmate is eligible for execution could have ramifications for at least one Idaho prisoner.

The justices ruled Tuesday that Florida and a handful of other states cannot rely solely on an IQ score above 70 to bar an inmate from claiming mental disability. Idaho is one of those states.

Gerald Pizzuto Jr. has been on Idaho's death row since 1986. He appealed, saying that his IQ was below 70, making it illegal for the state to execute him. Pizzuto's IQ was measured at 72 when he was 29. Idaho law also requires he show he had a low IQ before he turned 18.

A three-judge panel with the 9th U.S. Circuit Court of Appeals ruled in September that the Idaho Supreme Court correctly applied federal case law when it found that Pizzuto was eligible for execution.

Pizzuto was sentenced to die in 1986 for killing Berta Herndon, 58, and her nephew Del Dean Herndon, 37, as they were prospecting in southern Idaho County. 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 kill him.

Justice Anthony Kennedy said for the U.S. Supreme Court Tuesday that IQ tests have a margin of error, and, that inmates whose scores fall within the margin must be allowed to present other evidence of mental disability.

A score of 70 is widely accepted as a marker of mental disability, but medical professionals say people who score as high as 75 can be considered intellectually disabled because of the test's margin of error.

Tuesday's decision came in the case of 68-year-old Freddie Lee Hall. Lawyers for Hall said there is ample evidence to show that he is mentally disabled, even though most of his multiple IQ tests have yielded scores topping 70. Hall has been on death row for more than 35 years since being convicted of killing a pregnant 21-year-old woman in 1978.

"The ruling is of great constitutional and practical significance," said Sacramento-based attorney Joan Fisher, Pizzuto's counsel. "If applied correctly, it will result in a more reliably accurate assessment of the intellectual disability of a number of individuals - including Mr. Pizzuto - whose claims have been rejected on an unconstitutional basis."