Fort Wayne public defender Michelle F. Kraus plans to ask Allen Superior Judge Fran Gull to appoint an expert to evaluate accused killer Simon Rios in order to determine if he is mentally retarded.
If that happens and an expert finds the 35-year-old Rios mentally retarded, state law does not allow him to be executed or sentenced to life in prison without parole.
The Supreme Court of the United States has ruled that executing anyone deemed mentally retarded is a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. Indiana barred executing the mentally retarded in 1994 before the SCOTUS decision.
This topic came up Friday at the first legislative meeting of the Bowser Commission, which is the interim study committee looking at mental illness as it relates to the death penalty. At that gathering, Indiana Public Defender Council assistant director Paula Sites cited the mental retardation claims since the 1994 law changes and noted that only eight cases have raised the mental retardation defense - a point used to counter arguments about a potential "flood of litigation" that could arise from legally defining mental illness and barring those defendants from execution.
In the Rios case, he is accused of beating and strangling his wife, Ana Casas-Rios, 28, and then strangling the couple's three daughters, Liliana, 10, Katherinne, 4, and Thannya, 20 months.
A recent evaluation by a bilingual mental health expert found Rios has an IQ of 75, which is within the mild/borderline mental retardation range, according to published reports of court documents.
The judge last month denied a request by Kraus to delay the trial to investigate Rios' mental capacity, but this petition asks for an expert to examine whether Rios has a significantly sub-average level of intelligence. It also asks for an expert to determine whether Rios' everyday living abilities and his ability to acquire the skills people learn as they adapt to their surroundings are also substantially impaired.
Appointment of an expert could affect not only this family killing, but it could also delay Rios' separate sentencing in Delaware County on Friday for the rape-killing of a 10-year-old Fort Wayne girl. He pleaded guilty to abducting, raping, and murdering the girl, who was a neighbor; a plea agreement called for consecutive 50-year sentences on rape and child molesting charges and life without parole on the murder charge.