Killer with low IQ wants off death row

BOISE – A double murderer asked the Idaho Supreme Court on Monday to overturn his death sentence, saying it would be unconstitutional to execute him because he is mentally retarded.

Joan Fisher, Gerald Pizzuto’s federal public defender, told the state’s highest court that a pre-sentence investigator found Pizzuto was unintelligent, unskilled, uneducated, impulsive and could not anticipate the consequences of his behavior.

Those findings – coupled with his IQ score of 72 – shows he is mentally retarded and cannot be legally executed for his crimes, Fisher said.

“This could easily become what the Supreme Court is afraid of: a wrongful execution,” Fisher said.

Pizzuto was convicted and sentenced to death in 1986 by 2nd District Judge George Reinhardt for beating to death 58-year-old Berta Herndon, of Marsing, and her 37-year-old nephew Del Dean Herndon, of Morefield, Neb.

The two were prospecting at Ruby Meadows, about 26 miles north of McCall, when they were killed.

In addition to the two counts of first-degree murder, Pizzuto was also convicted of two counts of felony murder and one count of grand theft in connection with the deaths.

After his sentence, Pizzuto filed four separate petitions for postconviction relief, but all were rejected by state and federal courts.

In 2003, Pizzuto tried again, this time alleging that he is mentally retarded and that a federal court ruling issued in another case prevented any mentally retarded people from being executed.

The sentencing judge, Reinhardt, dismissed that claim, saying that Pizzuto should have brought it up earlier and that he failed to adequately support his claim of retardation.

The state has set Idaho’s standard for mental retardation at 70 IQ points, Fisher acknowledged Monday.

However, she said experts agree that an IQ test has a margin of error of plus or minus five points – making it likely that Pizzuto’s IQ is actually 67 points.

But Lamont Anderson, a deputy attorney general in charge of the state’s capital cases, said Pizzuto’s IQ could just as easily be 77 under the margin of error. Besides, Anderson said, the state set a “bright line” standard of 70 points, not 70 points plus or minus a margin of error.

Fisher asked the high court to have a hearing to determine Pizzuto’s mental status. It could be difficult to assess, Anderson said.

The state’s mental retardation exception requires that the offender be mentally retarded before the age of 18, and since Pizzuto is now 51, experts may have a hard time determining just when any possible retardation or brain damage occurred.

The Idaho Supreme Court is expected to rule on the case in the coming months.