Whether Robert Lee Overstreet will face the death penalty if convicted of murder hinges upon whether he's mentally retarded — and right now it's up to a Utah court to decide what the definition of "mentally retarded" is and if it applies to Overstreet.
He is charged with raping and murdering Nancy Danielle Omer and then setting her Taylorsville house ablaze in 1999. He also is serving several long prison terms for other crimes connected to the vicious rape of another Taylorsville woman the same year.
A landmark U.S. Supreme Court ruling issued July 20, 2002, said executing mentally retarded people violates the Eighth Amendment of the Constitution that forbids cruel and unusual punishment. The high court did not exempt those with limited intelligence from responsibility for criminal acts, but it did remove the death penalty as punishment.
That decision emerged from the case of Daryl Renard Atkins, who was convicted in Virginia in 1996 for shooting a man to death for beer money. Atkins has an IQ that is below 65. Generally, people with IQs of 70 or less are considered mentally retarded.
Overstreet's attorneys want the death penalty charge off the table before his September jury trial because they say he is mentally retarded, but prosecutors insist Overstreet does not fall into that category.
"Robert's intellectual functioning is at the level equivalent to mental retardation," defense attorney David Biggs wrote in a motion to 3rd District Judge Bruce Lubeck. "Robert's IQ scores have consistently been in the 65-75 range with deficits in several areas of adaptive functioning."
Biggs wrote that Overstreet had to repeat first grade and was enrolled in special education classes while in school.
However, both Salt Lake County District Attorney David Yocom and Robert Stott, lead prosecutor on the case, dispute the claim that Overstreet meets the standards for mental retardation as it relates to the death penalty.
Stott plans to respond in writing to the defense arguments next week, and the judge plans to schedule a hearing on the matter.
Among other things, there are variations in the IQ test scores for Overstreet in the past.
Prosecutors also argue that the IQ score in itself is not the only factor in determining whether a person is mentally retarded.
Yocom said that a committee of prosecutors and lawmakers has proposed legislation that would clarify the definition of mental retardation and develop procedures to be followed if a defendant who claims to be mentally retarded is facing a capital charge.
The draft legislation defines a person as "mentally retarded" if "he has significantly subaverage general intellectual function that exists concurrently with significant deficits in adaptive functioning with an onset prior to age 18."
Yocom said if the Utah Legislature meets in an interim session Sept. 18, 2002, the legislation could be adopted and signed by the governor in time for Overstreet's trial. Jury selection in the trial starts Sept. 19 and the trial itself is set to begin Sept. 23.
"I know what the state prosecutor's office is trying to push through, but that's not what the law is now," Biggs said.
E-MAIL: lindat@desnews.com