Lawyer argues condemned man is retarded

TALLAHASSEE, Fla., March 4 (UPI) -- A man scheduled for execution next week is entitled to a new hearing on whether he is retarded, his lawyer told the Florida Supreme Court on Thursday.

The justices made no decision, The Orlando Sentinel reported. David Johnston, 49, is set to die on Tuesday.

Johnston has spent most of his adult life on death row after being convicted for the 1983 killing of Mary Hammond, 84, of Orlando. He was working with a demolition crew near her house.

Under Florida law and a U.S. Supreme Court decision, the mentally retarded cannot be executed. Retardation is defined as having an IQ of less than 70 and being unable to carry out basic living functions like cooking and holding a job.

Assistant Attorney General Ken Nunnelly argued the court should simply accept the findings of a 2005 hearing. Johnston was ruled to be within the normal range of intelligence with an IQ of 84.

"It's an issue that has been raised and decided," Nunnelly said.

But defense lawyer Todd Doss said a more recent, and he argued more accurate, test found Johnston has an IQ of 61.