Suspect in prison guard murder to get mental health review

McClatchy NewspapersJanuary 28, 2013 

— Attorneys for one of the inmates accused of killing an unarmed guard at the federal prison in Atwater are now having him tested for mental retardation, a step that could save his life.

The lethal Atwater attack, caught on videotape, occurred nearly four-and-a-half years ago. In the latest legal maneuvering, attorneys representing accused killer James Ninete Leon Guerrero have dropped their efforts to have him ruled incompetent to stand trial. A diet of psychotropic drugs has stabilized his mental status, attorneys say.

Instead, the defense team is testing Leon Guerrero for retardation as a likely prelude to asking the Justice Department to reconsider its decision to pursue the death penalty.

“In light of the fact that Mr. Leon Guerrero is presently serving a federal sentence of life imprisonment without the possibility of parole, a decision by the United States to withdraw its notice of intent to seek the death penalty would also likely resolve the entire prosecution against Mr. Leon Guerrero,” prosecutors and defense attorneys noted in a joint legal filing last week.

The Supreme Court in a 2002 decision banned the execution of mentally retarded defendants. In that case, a Virginia man with a tested IQ of 59 was convicted of abducting, robbing and killing an Air Force enlisted man. An IQ of 70 or below generally casts an individual as mentally retarded.

“Because of their disabilities in areas of reasoning, judgment, and control of their impulses…they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct,” Justice John Paul Stevens wrote in the court’s 2002 decision.

Leon Guerrero and fellow inmate Joseph Cabrera Sablan, whose mental capacity has not been called into question, are accused of killing correctional officer Jose Rivera on June 20, 2008. Neither has faced trial yet in the case, but both men were serving life sentences for other crimes at the time of Rivera's murder.

Citing prison videotape and eyewitnesses at the high-security U.S. Penitentiary in Atwater, a Federal Bureau of Prisons’ Board of Inquiry said Leon Guerrero tackled Rivera and held him down while Sablan stabbed the 22-year-old Navy veteran repeatedly with an ice pick-type weapon. Both inmates had a record of assaulting others behind bars and both appear to have been intoxicated on prison brew at the time, investigators said.

Both defendants have pleaded not guilty. In February 2009, the Justice Department announced its intention to seek the death penalty. This is a high-level decision, which can only be reversed with the approval of the U.S. attorney general.

In the years since, attorneys have wrangled over Leon Guerrero’s mental competence and whether a competency hearing should be sealed. After the 9th Circuit Court of Appeals last year ruled the competency hearing must be public, noting "the public’s interest in open criminal proceedings is well established,” Leon Guerrero’s attorneys said they would drop the competency hearing request. Attorneys explained in legal filings that the Guam native voluntarily began taking medication in late 2011 while imprisoned at Federal Correctional Institution in Terminal Island.

“Many of the behaviors and perceptions that had earlier significantly interfered with his ability to assist counsel have largely abated,” defense attorneys Richard G. Novak and Salvatore Sciandra advised a judge last November.

A trial judge will make the final decision on whether to drop the previously requested mental competency hearing, though that seems a foregone conclusion as the Justice Department does not object. A Justice decision on whether to reconsider the death penalty for Leon Guerrero could be made by early May, when attorneys plan another status review.

Defense attorneys could not be reached to comment Monday.

A civil lawsuit filed by Rivera’s mother, Terry Rivera, was dismissed by U.S. District Judge Anthony Ishii in 2011.

Email:; Twitter: @MichaelDoyle10

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