Prosecutor: Brutality of crime motivated state lawyers to seek death penalty
By Peter Vieth
BridgeTower Media Newswires
RICHMOND — A Southside circuit judge last month refused to impose capital punishment on an intellectually disabled convicted murderer, despite efforts by state lawyers to establish that the killer was eligible for the death penalty.
Judge Joel C. Cunningham sentenced 45-year-old James Lloyd Terry to five life prison terms for the brutal assault, murder and robbery of an 84-year-old South Boston widow in 2011.
Cunningham questioned the validity of a psychologist’s test, but said even that flawed report showed that Terry was deficient in adaptive functioning, one of the criteria that can exclude a defendant from the death penalty.
Cunningham also said he was “perplexed” that another examiner concluded Terry could not have been considered intellectually disabled as a minor, another prong of the eligibility test.
Terry’s lawyers faulted prosecutors’ efforts to prove Terry was eligible for the death penalty, even after Terry offered to plead guilty to all charges
“Many years and hundreds of thousands of tax dollars have been spent on the state’s futile pursuit of a death sentence for an intellectually disabled man,” the lawyers said in a press release issued after the Oct. 31 sentencing decision.
But a prosecutor said the undisputed brutality of the crime motivated state lawyers to aim for the death penalty.
“There has not been a crime in living memory in Halifax County as bad as this,” special prosecutor R. Bryan Haskins said after the sentencing, according to media reports.
Brutal incident
The details of the crime were undeniably horrific. Charlotte Rice, a beloved mother and grandmother, was assaulted, robbed and beaten to death in her residence in the spring of 2011.
The woman’s body was so badly disfigured that an open casket viewing was impossible.
“Today, the Court shares its deepest sorrow and empathy for the family of Charlotte Rice. Their pain and emotional distress are palpable to this Court. No doubt, the Terry family has also suffered for what their son did to an innocent and kind lady,” wrote Cunningham in his extended sentencing order.
Aggravating factors
When prosecutors rejected a plea deal that would take the death penalty off the table, Terry eventually pleaded guilty to all charges without an agreement. That left the sentencing decision solely in the hands of Cunningham.
The judge readily concluded that Terry met the standards for both future dangerousness and the vileness of his crime.
Terry had a lengthy list of criminal convictions. The crime scene provided ample evidence of “depravity of mind.”
Those criteria ensured that Terry’s capital convictions carried the possibility of the death penalty, Cunningham said.
There was another hurdle for prosecutors, however. The defense sought to show that Terry had been intellectually disabled since his youth.
Atkins test
A 2002 U.S. Supreme Court opinion, Atkins v. Virginia, holds that it is unconstitutional to give the death penalty to mentally retarded defendants, Cunningham said.
A Virginia statute incorporates that Supreme Court standard. The legal test requires a showing of both significantly below-average intellectual functioning and significant limitations in adaptive behavior. The disability must be shown to have originated before the age of 18.
Although Terry had never been labelled as “mentally retarded” by his school system, he was in special education classes and was designated as learning disabled.
Tests at age 15 showed that he functioned on second- and third-grade levels.
Tests administered to gauge Terry’s competence to stand trial showed an IQ of 66, placing Terry in the first percentile of individuals his age. A neuropsychologist diagnosed Terry with a major neurocognitive disorder, due in part to a serious head injury in 1995.
Adaptive functioning test
Tests of adaptive functioning also put Terry in the first percentile. Nevertheless, Chesterfield psychologist Leigh D. Hagan testified for the state that Terry did not have significant adaptive functioning deficits.
Cunningham expressed concerns about Hagan’s testing methods.
The judge said the psychologist did not administer the adaptive functioning test to a third party familiar with the subject’s life, but instead questioned Terry directly. The test was administered while Terry was in prison, a “very controlled and highly regulated environment.”
Cunningham said the psychologist also appeared to supply ratings for Terry’s activities that were inconsistent with Terry’s own answers about his abilities.
Even so, Hagan gave Terry a score of 70, which met the test for serious deficits in adaptive functioning, Cunningham said.
Cunningham also rejected the conclusions of another state witness who contended that Terry did not meet the standards for intellectual disability as a school student.
Maximum sentence imposed
Terry’s “dastardly, inhuman, senseless and depraved act of murder and sexual assault of Mrs. Charlotte Rice, an elderly and helpless widow, is one that defies understanding,” Cunningham wrote.
“Words are not sufficient to express this Court’s disdain and contempt for him as a result of his criminal acts. While this Court is barred by law from sentencing defendant James L. Terry to death, it will sentence him to the maximum punishment that is allowed by law for his criminal acts,” the judge said, imposing five life terms.
Cunningham’s sentencing order is Comm. v. Terry.
Lawyers trade barbs
Terry was represented by law partners Matthew L. Engle and Bernadette M. Donovan of Charlottesville. The defense attorneys said there was overwhelming evidence that Terry is intellectually disabled.
“Frankly, we were kind of surprised there was as much a battle as there was,” Engle said.
He acknowledged that the crime had all the hallmarks of a Virginia death penalty case, but he said Terry’s mental status should have been clear to state lawyers.
“I would have hoped their assessment of the case would have taken more into account Mr. Terry’s intellectual limitations,” Engle said.
Engle said Hagan failed to follow testing protocols for the adaptive functioning test he administered on Terry in prison.
“I think this decision should be a red flag for anyone – on either side – considering the use of Hagan,” Engle said.
Haskins, the commonwealth’s attorney for neighboring Pittsylvania County, was named to prosecute the case because the Halifax County commonwealth’s attorney had previously represented Terry.
Haskins did not respond to a request for comment, but he told reporters after the sentence that it was the defense that prolonged the case with multiple lawyers and experts.
“Our goal was to have this case tried quickly, but we weren’t the ones that filed for 148 motions in the case,” Haskins said, according to several media reports.
