Appeals court focuses on Virginia death row inmate's ability to handle daily tasks

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RICHMOND, Virginia — Arguments in a federal appeals court suggest that a Virginia death row inmate's claim that he can't be executed because he is intellectually disabled could turn on his ability to handle everyday tasks.

A three-judge panel of the 4th U.S. Circuit Court of Appeals focused on Alfredo Prieto's so-called "adaptive functioning" at a recent hearing. The court usually takes several weeks to issue an opinion.

Prieto was sentenced to death for the 1988 shooting deaths of George Washington University students Rachel Raver and Warren Fulton III. He was on California's death row for raping and killing a 15-year-old girl when a DNA sample entered into a national database in 2005 connected him to the Virginia slayings.

At issue in Prieto's appeal is last year's U.S. Supreme Court ruling in a Florida case that a rigid cutoff on IQ test scores cannot be used to determine whether someone is intellectually disabled and therefore ineligible for execution. Virginia's law on determining whether a defendant is intellectually disabled was virtually identical to Florida's, so Prieto claims that the Supreme Court ruling precludes his execution.

Prosecutors argue that the ruling is not retroactive, and U.S. District Judge Henry Hudson agreed with them last August and rejected Prieto's petition.

At the appeals court hearing, however, the panel seemed less interested in the retroactivity issue than whether the sentencing jury already fully considered a key element of intellectual disability — adaptive functioning, which is the ability to deal with normal activities like handling money, holding down a job and maintaining personal relationships.

Judge Dennis Shedd was particularly aggressive in questioning lawyers about the issue. He told Prieto's lawyer, Miriam Airington, that the jury in 2008 considered the man's adaptive functioning and "you just did not win on that issue."

Senior Assistant Attorney General Alice T. Armstrong said there was "voluminous evidence" that Prieto fails to meet the intellectual disability test, including that he is bilingual, had drivers' licenses from two states, operated heavy machinery and handled his own banking.

"Essentially what's going on here is he wants a do-over from what the jury determined in 2008. This court doesn't do that," she said.

Airington said the factors cited by Armstrong were outweighed by testimony from several witnesses who described Preito as an extremely slow learner. Executing him would be "a fundamental miscarriage of justice," she said.

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