Prosecutors are coming to the defense of a veteran Baton Rouge state judge who attorneys for condemned killer Allen “Lil Boo” Robertson Jr. say should be disqualified from deciding whether Robertson is intellectually disabled and thus ineligible for execution.
Robertson’s lawyers contend comments made by 19th Judicial District Judge Mike Erwin during hearings in the case show he cannot be fair and impartial, but East Baton Rouge Parish prosecutors counter that Robertson’s defense team is merely trying to delay the inevitable — their client’s date with the death chamber.
Robertson, 47, is on death row at the Louisiana State Penitentiary at Angola for the brutal New Year’s Day 1991 stabbing deaths of Morris Prestenback, 76, and his wife, Kazuko, 71, in their Dalton Street home in north Baton Rouge.
A psychologist appointed by Erwin testified in April that Robertson falls within the borderline intelligence range but is not mentally retarded or intellectually disabled. However, a psychologist hired by Robertson’s defense team testified in November 2013 that Robertson is mildly mentally retarded.
The so-called Atkins hearing — which gets its name from the U.S. Supreme Court’s landmark 2002 ruling in Atkins v. Virginia in which the high court ruled that executing mentally retarded inmates violates the constitutional ban on cruel and unusual punishment — is scheduled to resume in June.
Intellectually disabled is now the term used to describe mental retardation.
In a motion filed in October to recuse Erwin, Robertson’s attorneys complain about a statement he made from the bench during the April hearing and contend he is no longer fit to preside over the hearing.
“I’m sure pretty much everybody on death row is retarded now,” the judge said sarcastically during the hearing.
Robertson’s lawyers — Matilde Carbia and Gary Clements, of the New Orleans-based Capital Post-Conviction Project of Louisiana — claim Erwin’s statement illustrates his “personal bias or prejudice” toward Robertson and undermines the judge’s integrity and impartiality.
“The Court’s statement … that ‘pretty much everybody on death row is retarded now’ shows that it cannot proceed in a fair and impartial manner,” Robertson’s attorneys argued in their motion.
But Assistant District Attorney Prem Burns, who prosecuted Robertson, characterizes Erwin’s remark as a singular comment that was not objected to at the time.
“The court was responding to the prosecutor’s comment that in the post-Atkins era, retardation litigation had become ‘plentiful’ among death-row inmates,” she explains in her formal opposition to the recusal request.
Burns said the judge’s remark “in no manner impugned (his) ability to be fair and impartial” in hearing Robertson’s claim.
The prosecutor went on to say that Robertson “will undoubtedly continue to file fruitless motions in an attempt to further delay his capital litigation.”
Burns noted that Erwin has heard five days of testimony so far on the issue of Robertson’s alleged intellectual disability, and three more days of testimony will be taken in June.
“A review of the Atkins hearing to this point shows the trial judge has been nothing but impartial,” she maintains. “(Erwin) has granted defense extreme latitude in irrelevant questioning, oftentimes overruling state objections.”
The recusal motion asks that Erwin voluntarily disqualify himself or refer the motion to another 19th Judicial District Court judge.
The Supreme Court decision in Atkins came seven years after Robertson was convicted and sentenced to death for a second time in the case. Erwin presided over Robertson’s 1991 and 1995 trials.
The Louisiana Supreme Court overturned Robertson’s first conviction and death sentence in 1994 because of a jury-selection problem. His 1995 conviction and sentence were affirmed by the state high court in 1998.
Erwin, in early 2008, declined to overturn Robertson’s second conviction and sentence and also said there was no need for a hearing on the retardation issue because the judge was able to observe Robertson’s actions during both trials and saw no signs of mental retardation.
The state Supreme Court, however, ordered Erwin to hold such a hearing.
Burns argued at both trials that Robertson, who was 23 at the time of the murders, killed the Prestenbacks while burglarizing their home for money to buy drugs. The frenzied attack left blood spattered on walls, bedclothes and ceilings.
Morris Prestenback was repeatedly stabbed in the head, face and chest with a butcher knife that Robertson took from the couple’s kitchen. Kazuko Prestenback was stabbed in the chest and back.
Robertson’s case has been prolonged by changes in his attorneys and past defense motions that sought to disqualify both Burns and Erwin from the case.