Idaho Supreme Court rejects death sentence appeal
The Associated Press
February 22, 2008
Idaho Supreme Court today rejected an
appeal by a double murderer who claimed his death sentence should be
voided because it's unconstitutional to execute inmates deemed mentally
Gerald Pizzuto Jr., 52, was convicted
and sentenced to die in 1986 for beating to death a Marsing woman and
her nephew who were prospecting north of McCall.
Last fall, Pizzuto's attorney filed a
motion appealing a lower court ruling dismissing his claim that the
death sentence should be reversed because he was clinically mentally
retarded at the time of the slayings.
Federal Public Defender Joan Fisher argued that
during a pre-sentence investigation, a physician testified that Pizzuto
scored 72 on an IQ test, was unintelligent, impulsive and could not
anticipate the consequences of his actions.
U.S. Supreme Court ruled in 2002 that it is
unconstitutional to execute anyone who fits the medical definition of
mentally ill. One standard in Idaho code for defining mental retardation
is an IQ of 70 or below, according to the opinion.
Because Pizzuto sought to apply that law
retroactively to his case, Idaho law requires that he prove he was
mentally retarded at the time of the crimes, when he was 29, and that
the retardation occurred before his 18th birthday. He also argued that
IQ scores are accurate within five points, meaning his score could have
been as low as 67.
The state responded that same margin of error
standard could be applied to raise Pizzuto's IQ to 77.
A lower court dismissed Pizzuto's claim in 2003,
ruling his appeal was untimely and failed to prove his mental
In a unanimous opinion issued today, justices agreed.
"One requirement of proving mental retardation is
that Pizzuto had an IQ of 70 at the time of the murders and prior to his
18th birthday," the justices wrote. "He did not offer any expert opinion
showing that he did."
Pizzuto was convicted of killing Berta Herndon, 58,
of Marsing, and her 37-year-old nephew Del Dean Herndon, of Moresfield
Neb., as they were prospecting in an area know as Ruby Meadows, about 26
miles north of McCall. He also was convicted of one count of grand theft.
At trial, prosecutors argued that Pizzuto approached
them with a .22 caliber rifle as they arrived at their mountain cabin.
Inside the cabin, he tied their wrists behind their backs and bound
their legs to steal money. Later, he bludgeoned Berta Herndon to death
with hammer blows to the head, then hit her nephew over the head with a
hammer before shooting him between the eyes, according to court records.
Gerald Ross Pizzuto
On July 26, 1985, Idaho authorities launched a sweeping manhunt for the killers of Alberta Herndon and her nephew Delbert, beaten to death near their gold claim, 100 miles northwest of Boise.
Three suspects were arrested, but one - initially identified as "Jerry Gilbertson" - escaped from custody after stealing a tourist's pickup truck. "Gilbertson" was later identified as Gerald Pizzuto, a native of Orland, California, sought in connection with two Seattle homicides. Rita Drury, age 51, had been shot to death while babysitting her grandchild on March 16, 1985, and 31-year-old John Jones was gunned to death in his bed, two weeks later. Robbery was suspected as a motive in both slayings, and warrants had been issued naming Pizzuto as the gunman.
Regrettably, no information on the disposition of Pizzuto's case was available at press time. It appears that the nomadic slayer may be one of those who got away.
Michael Newton - An Encyclopedia
of Modern Serial Killers - Hunting Humans
M RACE: W TYPE: N MOTIVE: CE
Victims of both sexes shot/bludgeoned in robberies
Condemned on two counts, 1986; also convicted of grand theft and robbery.
Gerald Ross Pizzuto, 1989
Gerald Ross Pizzuto, 2008