[UPDATE] Missouri Supreme Court denies stay of execution for brain-damaged cop killer

The Missouri Supreme Court on Saturday denied a stay of execution for death row inmate Cecil Clayton, who was convicted for the 1996 fatal shooting of a sheriff's deputy after an argument with his girlfriend but who claims that a traumatic brain injury renders him incompetent to be executed.

In a 4-3 decision, the state's highest court denied a request for a stay of execution so Clayton's competence can be determined at an evidentiary hearing. The court held that Clayton, who is now 74 and is scheduled to be executed on Tuesday, failed to make the threshold showing to justify a stay.

Clayton was injured in 1972 when a piece of wood broke off a log he was sawing while working in a sawmill. The piece of wood became lodged in Clayton's head, requiring surgery that resulted in the loss of nearly 8 percent of Clayton's brain and 20 percent of his frontal lobe. He broke up with his wife after the accident, began drinking alcohol, was unable to work, and became prone to violent outbursts.

The court pointed out, however, that Clayton's school records showed him to be of average intelligence before the age of 18, and this continued at least until his brain injury in 1972, meaning that he cannot be recognized as "intellectually disabled" under Missouri law, which specifies that intellectual disability manifests at or shortly following birth.

The court also noted that Clayton's IQ scores were determined to be higher than 70 - the generally recognized cutoff for intellectual disability - at three separate occasions, even though the most recent test put his IQ at just 71. Nonetheless, the court said it was not persuaded that the continuing effects of his brain injury render him incompetent to be executed, and Clayton's lawyers had not argued a margin of error following the most recent IQ test.

Judge Laura Denvir Stith dissented from the ruling and said the evidence presents reasonable grounds for a hearing to determine Clayton's competence. She strongly objected, pointing to a previous case in which a death row inmate had scored 71 on an IQ test, but the margin of error meant that his actual IQ could be as low as 66.

"The majority tries to get around this issue by saying in a footnote that the 'margin of error' argument was not raised. It is not clear why the majority would want to execute an intellectually disabled man regardless of whether the claim was preserved. To do so would be manifestly unjust," Judge Stith said in her dissenting opinion, arguing that an IQ score of 71 is just a range with 71 at its center.

Stith added: "Would the majority hold that if a 14-year-old had failed to raise his age at trial or in post-trial proceedings then it would be permissible to execute him for a crime he committed while he was a minor? Of course not; his age would make him ineligible for execution. So too, here, if Mr. Clayton is intellectually disabled, then he is ineligible for execution."

Clayton, who does not claim to be innocent, was convicted in the 1996 fatal shooting of Deputy Christopher Castetter. The events began hours before the shooting, when Clayton became angry at his girlfriend while at a convenience store in Purdy, causing the store's clerk to call the sheriff's department. The Purdy police chief arrived and waited until Clayton and his girlfriend left separately.

Within an hour, however, Clayton drove his truck to his girlfriend's residence. She was not there, but her sister called the sheriff's department when she saw Clayton sitting in his truck in their driveway. Deputy Castetter responded to the scene but was found in his patrol car with a gunshot wound to his forehead when backup arrived. He died after being taken to a hospital.

Clayton will face execution on Tuesday unless either Governor Jay Nixon or the U.S. Supreme Court intervenes.

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