Death row inmate Percy Walton, who was scheduled to be executed in May but was able to obtain a stay with claims that he is mentally retarded or incompetent, will get a full evidentiary hearing on the issue of whether he is competent but not on the issue of mental retardation, according to the opinion issued today by Judge Samuel Wilson of the W.D. Va. Judge Wilson found specifically that Walton is not mentally retarded. On the competency issue, Judge Wilson noted that Walton's lawyers were claiming that he "suffers from a 'psychotic illness' that has deteriorated significantly since 1999."
On the retardation issue, Judge Wilson focused on test results from around the time when Walton was age 18. This suggests to me that special education records will become a major focus point in death penalty litigation - the public schools have records of the IQs of all the children in special education, and retest them every three or four years, until they are 18 or 19 and stop going to school.