Court orders disability hearing for death row inmate


A divided Florida Supreme Court on Thursday ordered a lower court to hold a hearing about whether a Death Row inmate has an intellectual disability that would prevent him from being executed.

Justices, in a 5-2 decision, ordered the hearing for Roger Lee Cherry, 65, who was convicted in the 1986 murders of an elderly couple, Leonard and Esther Wayne, in their DeLand home.

The decision was an outgrowth of a 2014 U.S. Supreme Court ruling that rejected Florida's use of a strict IQ score of 70 in determining whether Death Row inmates were intellectually disabled.

In 2002, the U.S. Supreme Court found that executing people who are intellectually disabled, or in the common terminology at the time, mentally retarded, violates the Eighth Amendment ban on cruel and unusual punishment.

Thursday's ruling by the Florida Supreme Court pointed to 2005 expert testimony that indicated Cherry had an IQ of 72 and also met other criteria for being considered intellectually disabled.

The court's majority, made up of Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis, Peggy Quince and James E.C. Perry, wrote that a circuit judge should hold an evidentiary hearing in Cherry's case and take into account the 2014 U.S. Supreme Court decision.

"Justice demands that Roger Lee Cherry have an opportunity to establish that he is intellectually disabled under the standards established by the United States Supreme Court under the Eighth Amendment, which prohibits the execution of those who are, in fact, intellectually disabled," Pariente wrote in a concurring opinion. "More than fundamental fairness, the risk of executing a person who is not constitutionally eligible for the death penalty surpasses any other considerations that this (Supreme) Court looks to in attempting to ensure the even-handed administration of the death penalty."

Justices Charles Canady and Ricky Polston dissented, with Canady writing that he did not think the 2014 U.S. Supreme Court decision should be given "retroactive effect" to such older cases.