Lawyers for a Virginia death-row inmate who contends he is intellectually disabled will argue their case in federal court today, hoping to take advantage of a recent U.S. Supreme Court decision that struck down the strict use of IQ test score cutoffs.
A hearing on a motion to dismiss the appeal and other issues is set before U.S. District Judge Henry E. Hudson for Alfredo R. Prieto, 48, who was convicted of a 1988 rape and double murder in Fairfax County. He was also sentenced to death in California for another rape and murder.
Last month, the justices threw out the use of IQ scores of 70 or below as a requirement that must be met by a defendant hoping to be ruled ineligible for the death penalty because of intellectual disability.
The high court held that states had to take into account the standard error of measurement when considering IQ test scores, which are imprecise and should be read as a range on either side of the score.
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In a 2002 Virginia case, the high court barred the execution of people with intellectual disability, formerly called mental retardation.
“Alfredo Prieto may be one of the only people who stands to benefit from a retroactive application of the new rule,” his lawyers wrote in a brief last week. “He faces the ultimate punishment, and the new rule ... calls into question whether his execution violates federal constitutional law.”
In response to the 2002 decision, Florida and Virginia required IQ test cutoff scores of 70 or below as one of several conditions that must be met by a defendant hoping to be ruled ineligible for the death penalty.
In his federal appeal, Prieto is arguing a number of issues, including his intellectual disability claim. Hudson earlier gave Prieto’s lawyers permission to file a supplemental brief once the justices ruled in the Florida case.
His lawyers contend that Prieto’s IQ has been measured at 66. When the standard error of measurement is applied for that particular IQ test, his score would fall within the range of 63 and 71, they said.
Last month — before the U.S. Supreme Court’s decision in the Florida case — the Virginia Attorney General’s Office said the state presented evidence that Prieto’s score was 73, above the cutoff of 70.
The attorney general’s office argued, among other issues, that the test on which he scored a 66 was not an approved examination.
Cary B. Bowen, one of Prieto’s lawyers, said the matter is among others that will be brought up before Hudson at the hearing. Prieto’s lawyers argue the recent U.S. Supreme Court decision should be applied retroactively in his case.
In papers filed Monday, the attorney general’s office again asked Hudson to dismiss Prieto’s claim on the grounds that it has been “procedurally defaulted” and that the U.S. Supreme Court’s decision in the Florida case should not be applied retroactively.
The attorney general’s office also wrote that Prieto was able to exercise his full right to claim intellectual disability during his 2008 trial. An expert at that time testified for Prieto that his IQ was 66 and that “IQ scores have a range.”
A state expert testified that Prieto was not intellectually disabled as defined under Virginia law and that his IQ score was 73. The state expert said he did consider the standard error of measure, but it did not lead him to a different score because “You don’t simply subtract points in one direction.”
The state expert also said Prieto did not suffer from deficits in adaptive behavior — such as not being able to cope with some daily living challenges — another requirement for demonstrating intellectual disability.
Unlike the Florida case, the attorney general’s office told Hudson that lawyers for Prieto presented evidence of intellectual disability, but it was rejected by jurors.
Prieto was convicted in 2008 of the capital murders of Rachel A. Raver and Warren H. Fulton III, both 22 and both last seen alive on Dec. 4, 1988, as they were leaving a restaurant in Washington.
Raver’s partially nude body was discovered in a field just south of the Dulles Toll Road in Fairfax County two days later. She had been raped, and she and Fulton died from gunshot wounds to the back fired by the same handgun.
In 2005, a cold hit matched DNA found in the Virginia slayings with Prieto, who was on California’s death row for a 1990 rape and murder. Published reports said he is also a suspect in other murders in California.
He was extradited to Fairfax County in 2006. His first trial ended with a mistrial and he was convicted in 2008.
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