Death penalty hearing looks at defendant's IQ

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Death penalty hearing looks at defendant's IQ

By Tonya Maxwell
Tribune staff reporter
Published August 30, 2005


Courtroom arguments centering on a Bolingbrook man's fight to be declared mentally retarded represent Will County's first test of a 2003 Illinois law designed to keep mentally deficient defendants off Death Row.

Prosecutors want to seek the death penalty for Emerald Ausby, 30, accused of breaking into a neighbor's home in July 2001 intending to rob it. But when Arlinda Paez discovered him, Ausby sexually assaulted the 54-year-old woman, then beat her with a baseball bat, police said.

For a defendant to be declared mentally retarded, a judge must find that person has an IQ no higher than 75; have impaired adaptive behaviors in areas such as academics, self-care and communication; and mental retardation that appeared by age 18.

Testifying on Ausby's behalf in Will County Judge Gerald Kinney's courtroom Monday, two psychologists said he is borderline retarded. One found he has an IQ of 77, the other 67. The average IQ score is 100.

Ausby appeared attentive through much of the testimony about his mental abilities. He sat quietly with his hands folded in his lap and the word "sugar" tattooed on his left forearm.

Dr. Michael Mayer Gelbort, a clinical and neuropsychologist in Joliet, testified that when Ausby was 18, he began smoking embalming fluid and cocaine, and at 19 was hit in the head with a baseball bat during a gang fight. Both events, however, came after the law's age 18 threshold.

Gelbort added that although few records from Ausby's youth survive, the data that he does have suggest problems began before age 18.

Another Joliet psychologist, Dr. Randi Zoot, said a report on Ausby from 2nd grade indicates he ate such items as pencil lead and crayons, a condition called pica, which can indicate mental retardation, she said.

Prosecutors offered Ausby's videotaped statement about the crime, made during questioning by Bolingbrook police, as evidence the defendant is not mentally retarded.

Kinney set another court date for Sept. 20 but is not expected to make a decision at that time.

In April 2004, a Cook County judge determined a defendant with an IQ of 75 was mentally retarded. That decision, believed to be one of the first tests of the law in Illinois, ruled out a capital murder case.

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