Judge declines to bar death penalty pursuit
A Fayette County judge ruled Thursday that he will not bar prosecutors from seeking the death penalty for a Grindstone man accused of first-degree murder. Judge Gerald R. Solomon said James VanDivner, 57, failed to meet the standards necessary to prove mental retardation.
VanDivner had argued that District Attorney Nancy D. Vernon could not seek the death penalty in the case because he was mentally retarded.
VanDivner is charged in the shooting death of Mary Cable, his ex-girlfriend, on July 5, 2004, at her Grindstone home. He also is charged with wounding Cable’s son, Billy, and pointing a gun at other people at the home.
Hearings challenging VanDivner’s mental competency started in November, when defense attorney Dianne Zerega presented testimony from a psychologist and psychiatrist who testified that VanDivner is mildly mentally retarded.
The defense experts testified that VanDivner could not perform basic tasks such as reading and writing. A prosecution expert countered that VanDivner “exaggerated” his inability to do those things and was not mentally retarded.
VanDivner’s older sister, Mildred Patton, testified that she attended special education classes with her brother, and said he could not read, write or do math.
Patton also testified that her brother never lived alone and depended on women he was with to manage his money.
Additionally, Adam C. Sedlock Jr., a licensed psychologist, testified that VanDivner has a full-scale IQ from 61 to 71. The cutoff for mental retardation is 70.
Other testimony indicated that VanDivner has had several head injuries and abused alcohol.
In his ruling, Solomon said VanDivner “presented insufficient evidence to establish that mental retardation originated prior to the age of 18,” which Solomon said was required to preclude the death penalty in the case.
Solomon called the evidence presented to support VanDivner’s retardation claim not “particularly credible or insightful.”
And the judge said VanDivner’s current IQ scores might be a result of a recent brain injury or his uncooperativeness.
VanDivner’s trial is set to begin Feb. 5.
—
Herald-Standard reporter Jennifer Harr contributed to this article.