Jury decides whether rapist and murderer of Jessica Lunsford should be executed

The same jury that last week found a sex offender guilty of abducting, raping and murdering 9-year-old Jessica Lunsford in Florida must now decide whether he should be executed for the crime.

Defense lawyers were expected to present evidence that convicted killer John Evander Couey is mentally retarded when they begin hearing testimony Tuesday in the sentencing phase of his trial.

Florida law and a 2002 U.S. Supreme Court ruling prohibit execution of retarded people. Jurors will make a recommendation to Circuit Judge Richard Howard, who must make the ultimate judgment.

Jessica's killing prompted Florida and a number of other states to pass new laws cracking down on sex offenders and to improve tracking of them through databases and satellite positioning devices.

Couey sexually assaulted Jessica and buried the third-grader alive in plastic trash bags. She had been snatched from her bedroom in February 2005, about 150 yards (137 meters) from the trailer where Couey had been living.

Couey's lawyers put on virtually no defense testimony during the guilt phase of the trial, preferring instead to have a psychologist testify that Couey is "mildly retarded" and has an IQ of 64 - just below the 70 level generally considered retarded.

To prove mental retardation, Couey's attorneys will have to show that the condition existed prior to age 18. That means delving into school and other records, including those from Couey's previous arrests and stints in prison.

One such psychological evaluation, done by a state psychologist in 1978 after Couey was arrested for burglary at age 19, placed his IQ at 71 and his intelligence at "borderline." The evaluation also said Couey's reading ability was at a "special ed" level and that he needed therapy to develop "acceptable social behaviors."

Psychologist Robert Berland testified that Couey suffers from mental illness, including hallucinations, and that he suffered a head injury as a child when he was punished harshly for wetting a bed. Evidence of chronic drug and alcohol abuse also was expected to be introduced.

Couey spent much of his time during the trial drawing pictures or working in coloring books in full view of jurors. The judge refused to stop Couey from coloring in court, despite objections from prosecutors.

The public defenders representing Couey - Daniel Lewan and Alan Fanter - did not return a telephone call Monday seeking comment.

Prosecutors sought in closing statements to plant some doubt in the minds of jurors about Couey's supposed mental problems. Assistant State Attorney Peter Magrino pointed out that Couey reads newspapers daily in jail, takes advantage of the prison library and even digs into law books, the AP says.

Couey's planning of the crime and hiding of evidence by burying Jessica, as well as his attempt to flee police by taking a bus to Georgia, indicate that he is not retarded or mentally ill, Magrino said.

"Those are not the actions of someone who does not understand the nature and consequences of his actions," Magrino said.

The 12-person jury will have to weigh the evidence of Couey's purported mental problems with aggravating factors, such as Jessica's youth and vulnerability, the fact that a sexual crime preceded the murder and Couey's prior felony record. The jury does not have to be unanimous, but must have a majority in favor of either life in prison or death.

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