Attorneys debate legality of death penalty for child killer

Published 9:00 pm Friday, September 16, 2005

A Snohomish County judge on Friday said he will issue a written decision in the case of a 7-year-old girl’s killer who claims he shouldn’t be executed because he is mentally retarded.

Superior Court Judge Thomas Wynne heard attorneys’ arguments on a claim that the state’s death-penalty statute is unconstitutional because it potentially allows for a mentally retarded person to face the death penalty.

The argument came in the case of Richard Matthew Clark, 36, who was convicted in the 1995 rape and murder of Roxanne Doll of Everett. A jury found him guilty of aggravated murder, and in a special sentencing proceeding said he should die.

The state Supreme Court upheld the conviction but said the jury had heard too much information during the sentencing hearing. The court sent the case back to Snohomish County for sentencing, which could wind up being nearly a full-blown trial.

Clark’s lawyers, Jeffrey Ellis of Seattle and Kevin Cole of Mercer Island, in July claimed that Clark is mentally retarded and should not face execution. Instead, they argue, he should receive life in prison without the possibility of release.

Courts around the United States have ruled since 2002 that mentally retarded people may not be executed.

Washington fails to adequately protect mentally retarded defendants, Ellis told Wynne on Friday.

“The problem, your honor, is in the state of Washington a person who is mentally retarded can still be executed,” Ellis told the judge.

The claim raises some questions, including whether it is up to the the judge or the jury to decide whether Clark is mentally retarded. There’s also the question of how much proof is needed to make that determination.

In Washington, an IQ of 70 or below is the mark set by the Legislature as the mental retardation level. Clark’s lawyers maintain his IQ hovers only a point or two above 70.

Ellis said he’s prepared to bring in experts from around the world, if necessary, to show that the 70 IQ mark is not a rigid number in settling on mental retardation.

Deputy prosecutor Seth Fine said Ellis is wrong.

“The Legislature is entitled to employ a fixed standard to determine what degree of intellectual deficiency is sufficiently significant to prevent imposition of the death penalty in all cases,” Fine said. “The (state) statute is constitutional as written.”

Clark’s sentencing trial is now set for March. Wynne said he will probably take a couple of weeks to issue his decision.

Reporter Jim Haley: 425-339-3447 or haley@heraldnet.com.