Florida Supreme Court to hear appeal for man set to be executed: David Johnston's attorney argues his client is mentally retarded and shouldn't be executed.

THE ORLANDO SENTINEL, FLA. | SARAH LUNDY | Wed, Mar 3, 6:24 PM

Mar. 3--David Johnston, who was convicted of killing an Orlando woman in 1983, is scheduled to die on Tuesday.

On Thursday, his attorney will appear before the Florida Supreme Court to argue Johnston should not be put to death because he's mentally retarded.

Florida law and a 2002 U.S. Supreme Court ruling prohibit executing retarded people.

To be considered legally retarded, a defendant must have an IQ of 70 or lower and cannot perform "adaptive functions." Those include everyday living skills such as going to work, preparing a meal and getting dressed. Both conditions must have existed before the person turned 18.

As a kid, Johnston was diagnosed as retarded, and he was sent to the Leesville State School for the Retarded. He wasn't allowed to cook, fearing he would start a stove fire. He failed to earn a driver's license, wrecking the car too many times.

When he was 7, he scored a 57 on an IQ test.

"It seems like a slam dunk," his attorney, Todd Doss, said.

It's not.

Columbia University psychiatry professor Dr. Paul S. Appelbaum said several factors can affect a person's IQ score, including how a person feels that day, the type of test given and whether the person has any mental illness.

After the 2002 U.S. Supreme Court decision, Johnston appealed his death sentence, pointing to his retardation. A hearing was held, and his IQ tested at 84.

Two doctors concluded he was not retarded. A year later, the Florida Supreme Court agreed with the lower court's decision, according to court records.

Doss claims a new version of an IQ test, which is considered to be more accurate, shows his client is retarded. He client, he wrote in his motion, recently tested at 61.

The lower court denied Johnston's request for a new evidentiary hearing. Johnston is appealing the decision to the state's top court.

For Johnston, the latest fight to stay alive is one of many. He has been on Florida's death row for 25 years -- half his life -- for the murder of Mary Hammond of Orlando.

In 1983, Johnston called Orlando police and identified himself as "Martin White." He told officers, "Somebody killed my grandma" on Ridgewood Avenue.

Police arrived and found Hammond stabbed to death inside her home. She was not Johnston's grandmother.

Investigators arrested Johnston after noticing blood on his clothes and scratches on his face.

He had been working at a demolition site near Hammond's home and had spoken to the victim before. He also was seen washing dishes inside her home five days before her murder, according to court records.

Unless he wins a last-minute appeal, Johnston is scheduled to die by lethal injection at 6 p.m. on Tuesday at Florida State Prison in Starke. He would be second man executed in Florida this year.

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Posted: 5:14 pm EDT March 26,2010Updated: 5:28 pm EDT March 26,2010

ORANGE COUNTY, Fla. -- The state wants to put a convicted killer to death but first an Orange County court has to figure out if he's smart enough to be executed. (SAY What??)~~Wrap Earlier this month, WFTV reported the state supreme court issued a stay of execution after David Johnston’s lawyers argued his IQ was too low.

Johnston stabbed 84-year-old Mary Hammond to death in 1983. Prosecutors say he made friends with the woman and offered to do chores around her house.

The court only has a short deadline to figure out the issue, which is sometime next week. All attorneys, witnesses and the judge will be back in court for a rare Saturday session, in the scramble to decide whether Johnston should live or die.

David Johnston wasn't supposed to be alive today. Now, balding and graying, he shows the 27 years he's already spent in prison for the murder of an elderly Orlando woman in 1983.

His execution early this month was delayed based on new evidence that his level of intelligence was not high enough to meet the state criteria required for the death penalty.

“He said, ‘I'm lost. Why waste time? I give up. I'm guessing. I don't want to make a dummy of myself,’” Psychologist Dr. Hyman Eisenstein said.

Psychologists said Friday that new IQ tests scored Johnston at 61, which is nine points below Florida's cut-off for mental retardation.

The law protects people with serious mental handicaps from the death penalty. Doctors said Johnston’s parents recognized his handicap, even as a child.

“Slobbered all over himself when he was eating. He couldn't dress himself perfectly,” Eisenstein said.

But the family of Johnston's 84-year-old victim, Mary Hammond, listened as prosecutors argued that the defendant may be gaming the system.

Over the years, some of his many IQ tests have put him well-above the 70-point threshold, even up in the 80s.

The state believes this defendant, who was tied to the murder scene with piles of physical evidence, may know the IQ test too well, playing dumb now to avoid execution.

If a judge finds that Johnston isn't mentally fit to be sentenced to death, he would likely have a new sentencing hearing that could keep him in prison the rest of his life.

WFTV was told the decision of the court next week, can be appealed.

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What a load of crap! Her poor family!!