The judge that Allen “Lil Boo” Robertson Jr.’s attorneys sought to disqualify from deciding whether the condemned killer is mentally disabled and not eligible for execution in the 1991 fatal stabbing of an elderly Baton Rouge couple will stay on the case, the state’s top court has decided.
Lawyers representing Robertson, also of Baton Rouge, contend state District Judge Mike Erwin’s sarcastic statement during a 2014 hearing — “I’m sure pretty much everybody on death row is retarded now” — shows he can’t be trusted to make a fair and impartial life-or-death decision.
Erwin refused to recuse himself last year after Robertson’s attorneys asked him to do so, so they took their case to the Louisiana Supreme Court.
The justices Friday rejected Robertson’s request without comment.
“We agree with the court’s recent decision denying Robertson’s motion to recuse Judge Erwin,” East Baton Rouge Parish District Attorney Hillar Moore III said Tuesday. “The decision now allows us to move forward and focus on his clams of intellectual disability.”
Robertson’s attorneys could not be reached for comment.
Those attorneys maintain he is intellectually disabled.
The U.S. Supreme Court declared in 2002 that mentally disabled inmates cannot be put to death.
Robertson was 23 when he murdered Morris and Kazuko Prestenback, 76 and 71, respectively, while burglarizing their Dalton Street home on New Year’s Day 1991 for money to buy drugs.
He has been convicted and sentenced to death twice in the case.
The state Supreme Court cited a jury selection problem in tossing Robertson’s 1991 first-degree murder conviction and sentence. He was found guilty again and condemned to die in 1995.
Erwin let stand the second conviction and sentence in 2008, and also denied Robertson’s request for a hearing on his mental impairment claim. The judge noted he closely watched Robertson during both trials and observed no signs of a mental defect.
Louisiana’s Supreme Court, however, ordered Erwin to conduct a hearing.
A psychologist hired by Robertson’s attorneys testified in 2013 that he is mildly mentally disabled.
Another psychologist appointed by the judge testified in 2014 that Robertson falls within the borderline intelligence range but he is not intellectually disabled.
Moore said the hearing is scheduled to resume in early April.