By Jessica Dye
NEW YORK, Nov 21 (Reuters) - A convicted cop killer who
escaped death row in 2010 is trying to beat the federal death
penalty for a second time by claiming on the resentencing that
he is mentally retarded.
Ronell Wilson, 30, was sentenced to death by a jury in 2007
for murdering two undercover New York Police Department officers
posing as gun buyers in Staten Island. The 2nd U.S. Circuit
Court of Appeals vacated his sentence in 2010, finding that
prosecutors violated his constitutional rights by, among other
things, telling jurors his decision to go to trial indicated a
lack of remorse and refusal to accept responsibility for the
The court remanded the case for resentencing and the U.S.
Attorney last year said it would once again seek the death
penalty. New York abolished the death penalty in 2004, but
Wilson's was a federal death sentence, the first in the state
At a hearing starting Monday, Wilson's lawyers are scheduled
to argue to U.S. Judge Nicholas Garaufis that Wilson is mentally
retarded and that executing him would run afoul of the U.S.
Supreme Court's 2002 ruling in Atkins v. Virginia. In Atkins, it
was ruled that "the mentally retarded should be categorically
excluded from execution" because doing so would violate the
Eighth Amendment's ban on cruel and unusual punishment. Wilson
is being sentenced under the Federal Death Penalty Act, which
bars the execution of mentally retarded prisoners but does not
define mental retardation.
Wilson, a member of a gang called the Stapleton Crew whose
street name was Rated R, was convicted for the execution-style
slayings of two undercover officers who were part of a sting
operation targeting the gang. When officers arrested Wilson
several days later, they said he was carrying rap lyrics he had
penned about the officers' murders.
In a February letter to Garaufis, Wilson's lawyers said that
a "preliminary investigation" had indicated their client was
mentally retarded. Since then, Wilson has undergone a battery of
psychiatric tests by experts from both sides. The findings have
not yet been made public, and both sides declined to comment on
the case or the evidence they will present during the hearing.
Wilson's mental condition was brought up briefly during his
first sentencing proceeding in 2007, although his prior defense
counsel did not raise an Atkins claim. They told jurors that
Wilson had an IQ in the high 70s and said he had been
hospitalized for psychiatric problems several times as a child.
Garaufis, relying on criteria in Atkins, in June set forth
factors he will use to evaluate Wilson's claim, including his IQ
score, his adaptive functioning or ability to perform life
skills like holding a job and whether his alleged condition
began to manifest itself before his 18th birthday.
If Garaufis grants the Atkins claim, Wilson would be
sentenced to life in prison for his conviction. If the judge
rejects the claim, a jury would once again decide whether he
should be sentenced to death.
Courts nationwide have granted dozens of Atkins claims since
the Supreme Court's 2002 decision, said Cornell Law School
professor John Blume, who tracks death penalty cases. A
patchwork of state and federal laws defining what qualifies as
"mentally retarded," however, has made application of the
About seven percent of the more than 3,000 death row inmates
across the country pursue Atkins claims, according to a 2009
analysis from Blume and his colleagues at Cornell. Of these,
roughly four out of 10 claims result in a determination of
mental retardation, the analysis found.
Typically, Atkins claims are raised and decided before the
guilt phase of the trial, but they can also come after
post-conviction appeals, like Wilson's.
The more borderline the alleged retardation, the more
contentious the Atkins determination typically is, Blume said.
For instance, a defendant with an IQ below 40 could be fairly
easily categorized as retarded, but someone with an IQ as high
as 70 or 75 could also qualify.
Blume said it was difficult to predict how Wilson's claim
would fare. But Garaufis has blocked off more than 10 days over
three weeks, including some Saturdays, to hear evidence on the
Atkins claim, indicating that Wilson may be in for a lengthy
The case is U.S. v. Wilson, U.S. District Court for the
Eastern District of New York, No. 04-1016.
For the U.S.: James McGovern, Celia Cohen and Shreve Ariail.
For Wilson: Colleen Brady, David Stern and Michael Burt.
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