State v. Herring Shows Why Mental Capacity, Retardation Key in Jacksonville Murder Cases

A recent case out of Daytona Beach shows why the mental capacity or possible retardation of a defendant is such an important piece of information in a Jacksonville murder case or other violent felony.

It is extremely important that if a defendant has mental problems they make their Jacksonville criminal defense lawyer aware as soon as possible. It is often noticeable in communication with a defendant that they may have a disability, which must be explored.
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While it may not be possible for charges to be dropped based on a person’s mental capacity, their ability to understand the court system and the penalties they face can lead to them being deemed incompetent to stand trial.

Also, it is unconstitutional for the state to execute a mentally retarded person, which means bringing up such evidence can keep a defendant alive even if they have been convicted of the most serious charge on the books.

In State v. Herring, the issue came down to an appeal of the defendant’s conviction for armed robbery and first-degree murder.

A judge found that the defendant had established the first prong of the state’s test for whether a person is mentally retarded — significantly subaverage general intellectual functioning. On appeal, however, The Florida Supreme Court reversed the decision and denied the defendant’s appeal.

In 1981, Herring shot and killed a convenience store clerk during a robbery. He was tried and convicted and was recommended to die by an 8-4 vote by the jury. He was 19 at the time and the judge found four aggravating factors — legally defined reasons to support a death sentence — vs. two mitigating factors — reasons to avoid the death sentence.

After years of appeals, Herring’s appellate attorneys brought up the issue of whether he is mentally retarded and therefore can’t be executed. During a 2005 evidentiary hearing, mental health experts testified about his intellectual functioning.

While two state witnesses testified he did not qualify as being labeled mentally retarded, one defense witness did. Four IQ tests, taken from the ages of 11 to 42 were submitted and fell around the range of 70 to 75.

The judge vacated the death sentence, ruling that the defendant satisfied the three prongs of mental retardation according to the Florida Rules of Criminal Procedure and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

They are:
-Significantly subaverage general intellectual functioning
-Deficits in adaptive behaviors
-Manifested before age 18
The state appealed and argued that to be considered to have “significantly subaverage general intellectual functioning” requires an IQ score of 70 or under. The Florida Supreme Court in its opinion agreed with state prosecutors and put the death penalty back in play.


The Forbess Law Firm has been aiding clients who face criminal charges in Jacksonville for more than a decade and is here to provide aggressive criminal defense to anyone accused of a crime. If you or a loved one requires a Jacksonville criminal defense lawyer, contact our firm today. We are available through our website or by calling us at 904-634-0900.

More Blog Entries:

Jacksonville Man Charged in Mass Shooting: September 22, 2011
Stabbing at Party Turns Fatal; 20-Year-Old Charged with Murder in Jacksonville: August 23, 2011