Convict’s mental status debated
The attorney for a Grindstone man argued in a court filing that he is mentally retarded and should not have been subject to a death sentence. James VanDivner, 58, shot and killed his ex-girlfriend Michelle Cable at her Grindstone home on July 5, 2004. He also shot her son, Billy, in the neck, but Cable’s son survived.
Jurors convicted him of first-degree murder and other related offenses, and then handed down a death sentence earlier this year.
In a brief filed as part of his automatic appeal to the state Supreme Court, VanDivner’s trial attorney, Susan Ritz Harper, argued that a county judge should have deemed VanDivner mentally retarded.
That determination would have barred prosecutors from seeking the death penalty against VanDivner. A U.S. Supreme Court ruling has precluded imposing the death sentence against mentally retarded people because it constitutes cruel and unusual punishment.
One month before VanDivner’s criminal trial, Judge Gerald R. Solomon ruled there was not sufficient evidence to prove VanDivner was mentally retarded before he turned age 18. That is part of the legal standard for determining a claim of mental retardation.
Harper argued that VanDivner was never evaluated before he turned 18. Testimony at various hearings before his trial indicated that he was in special education classes before he dropped out of high school in 10th grade.
Attorney Dianne Zerega, who handled the penalty phase of VanDivner’s trial, previously 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.
Psychologist Adam C. Sedlock 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 ruled at the time that VanDivner’s current IQ scores might be a result of a recent brain injury or his uncooperativeness.
One of the aggravating factors jurors considered in sentencing VanDivner to death was his lengthy prior record, which stretched back to 1977.
Past crimes record of violence include rape, kidnapping, assault and burglary, most of which were committed against women.