COLUMBUS — IQs should be considered — but not the main factor — when determining who is mentally retarded and therefore ineligible to be executed, attorneys for the state and a convicted killer told the Ohio Supreme Court on Wednesday.

        Ohio is among the states setting standards to judge mental retardation after the U.S. Supreme Court ruled in June that executing mentally retarded killers was cruel and unusual punishment.

        The state court is using the case of Gregory Lott to help define mental retardation in death penalty cases. Mr. Lott's Aug. 27 execution for killing an East Cleveland man in 1986 was postponed after he claimed he had a low IQ.

        Joe Bodine, an assistant Ohio public defender, pointed out that the American Association on Mental Retardation's latest professional standards condemn the use of IQs as the only or the main factor considered for diagnosing mental retardation.

        “This should be more than just a race to the court with who can get the lowest score,” agreed Jon Oebker, an assistant Cuyahoga County prosecutor.

        The attorneys say that as recommended in AAMR guidelines, other factors such as defendants' day-to-day functioning and their behaviors during their childhood and teen years also must be considered.

        Twelve death row inmates in Ohio

        have appealed their sentences based on mental retardation. The state says no one on death row is mentally retarded.

        An IQ of 70 or lower is generally considered one indicator of mental retardation, according to AAMR guidelines.

        The state has measured Mr. Lott's IQ at 72, but his lawyers say that falls within the five-point margin of error accepted by the American Psychiatric Association.

        Wednesday, the two attorneys disagreed over the burden of proof and role of juries in mental retardation appeals. Mr. Bodine said the state should have to prove that an inmate isn't mentally retarded.

        But Mr. Oebker told the justices that defendants should have to prove they are mentally retarded just as they now must prove claims of insanity.

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