Cuyahoga County Common Pleas Court Judge Cassandra Collier-Williams
found Andre Jackson is intellectually disabled now and likely was at the time
he murdered Emily Zak, and that allowing his execution would violate the U.S.
Constitution’s ban on cruel and unusual punishment.
The judge issued the 11-page opinion more than two
years after she presided over a hearing that featured testimony from
psychologists who found that Jackson’s scores were equivalent to that of a
9-year-old child.
“Every professional that evaluated [Jackson] noted that his
intellectual functioning was at a lower level than expected for someone in his
age range,” Collier-Williams wrote.
Cuyahoga County Prosecutor Michael O’Malley’s office has
vowed to appeal Collier-Williams’s opinion.
“The facts of this case are some of the most disturbing we
have ever had," O’Malley said.
Jackson unsuccessfully filed a number of appeals in the
1990s. Then in 2002, the U.S. Supreme Court issued a landmark ruling in Atkins
v. Virginia in which the court’s justices held that executing an inmate who is
intellectually disabled amounts to cruel and unusual punishment and is a
violation of the U.S. Constitution’s Eighth Amendment.
That ruling kicked off a new set of appeals for Jackson,
whose lawyers argued IQ tests dating back to when he was 12 showed that he was
intellectually disabled and functioned at a level much lower than the average
person his age.
His case crawled along in the Common Pleas Court’s docket
over the next 13 years, until Collier-Williams in 2016 allowed lawyers for
Jackson and O’Malley’s office to hire psychologists to test Jackson on his IQ
and his intellectual ability. A two-day hearing was held to present their
findings.
The average adult’s IQ is about 100, according to court
records. Courts have generally accepted the benchmark IQ to determine if a
person can face the death penalty at 70, but they have held that an IQ score
alone is not enough evidence for a judge to determine whether a defendant is
intellectually disabled. They have to find a defendant has subaverage
intellectual functioning, significant limitations in everyday skills and that
the symptoms began as a child.
Jackson had his IQ measured five times in his life,
including two tests in 2016.
He scored a 68 on a test when he was 12, which is generally
considered intellectually disabled. He took another test in 1992, when he was
26 years old and had been in prison for four years. He scored a 72 on that
test. He scored an IQ of 76 on a 2003.
In two tests in 2016, he scored 80 on one test and 67 on the
other.
Assistant Cuyahoga County Prosecutor Christopher Schroeder
wrote in court filings that Jackson’s highest score was likely the most
reliable. They cited testimony from their expert, Carla Dreyer, who gave him
the test that measured his IQ at 67. She said she felt Jackson scored low
because he didn’t try very hard, which deflated his score. She said that it is
nearly impossible for someone to artificially inflate their IQ score.
“I’m not trying to be inappropriate with the court but you
can’t fake smart,” Dreyer testified, according to court records. "You can
fake dumb.”
Using that score would put Jackson out of the range of even
being considered borderline intellectually disabled, Schroeder wrote.
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