Judge halts execution of mentally retarded man
by Associated Press writer Estes Thompson

PITTSBORO, Feb. 26 -- A judge Monday halted this week's execution of a mentally retarded man until the Legislature decides on a bill to prohibit execution of the mentally retarded.

Ernest McCarver, 40, was scheduled to die at 2 a.m. Friday for the 1987 stabbing death and robbery of Concord cafeteria worker Woodrow Hartley, 71. McCarver was tried twice and sentenced to death each time. Superior Court Judge Leon Stanback, after a one-hour hearing, ordered the stay of execution for McCarver. Prosecutors said they would appeal to the state Supreme Court as early as Tuesday.

About an hour after Stanback's ruling, McCarver was moved to the death watch area, a special cell block near the death chamber in Central Prison in Raleigh.

The ruling shows the judge "agrees the evolving standards of decency in the United States are at a critical point and it's likely the Legislature may say you're not going to execute the mentally retarded," said defense lawyer Seth Cohen of Greensboro.

Cohen argued it wouldn't be fair if the Legislature passed a law banning executions of people with IQs below 70 and McCarver couldn't benefit from it. The proposed law isn't retroactive as now written, but it is likely that it will be amended to cover pending death row cases, Cohen said.

If the law is passed and isn't retroactive, Cohen said, a court could be asked to make it apply retroactively.

Gov. Mike Easley is scheduled to hold a clemency hearing Wednesday for McCarver.

Despite the order, McCarver moved to death watch area of Central Prison in Raleigh at 4:15 p.m., said Department of Correction spokeswoman Tracy Little.

During the hearing, Stanback said several times he was concerned that no judge made a determination of McCarver's mental state.

McCarver has an IQ of 67, according to a Feb. 13 test arranged by Cohen. Testing before his original trial showed McCarver's IQ was between 70 and 80, which psychologists consider borderline retarded.

Special Deputy Attorney General Ed Welch argued that Stanback didn't have the authority to overrule the Cabarrus County court where McCarver was convicted. Welch said the jury knew of McCarver's IQ and background when it sentenced him.

"The facts aren't on his side," Welch said. "The law's not on his side. He's asking the court to rule on what the law might be."

Stanback said there was growing concern about the execution of mentally retarded people. The North Carolina Bar Association, the state Conference of District Attorneys and the state association of psychologists had expressed concern about it, he said.

"You have the power to issue this stay and see what happens," Cohen told the judge. "We're not asking you to be a legislature."

Cohen pointed out that he wasn't asking for McCarver's release and that he wanted his death sentence eventually to be converted to a life sentence. He also said 13 states with the death penalty have banned execution of the mentally retarded.

Last week, the prosecutor who sent McCarver to death row at his second trial in 1992 said McCarver didn't fit the image of a mentally retarded person.

District Attorney Bill Kenerly said McCarver planned the killing and recruited an accomplice. When Hartley didn't die from choking, Kenerly said, McCarver stabbed him and then stomped his neck.