June 8, 2012 Source : http://blog.al.com

BIRMINGHAM, Alabama — A Jefferson County murderer who served more than four years on Death Row then won a new trial and was reconvicted, may avoid a second death sentence after a state expert found he was mentally retarded, a hearing revealed today.

Esaw Jackson, 33, was convicted and sentenced to death in 2007 for a shooting the year earlier in Ensley that killed a woman and a teenager and wounded the mother’s two teen children.

A Jefferson County jury also convicted him of capital murder in 2011, and recommended a sentence of death in a 10-2 vote.

Pre-sentence testing ordered by Circuit Judge Stephen Wallace, the judge in the current trial, determined Jackson had an IQ of 56, well below the normal legal threshold for mental retardation, which is a 70 IQ.

The U.S. Supreme Court has banned executing mentally retarded murderers.

In today’s hearing, prosecutor Mike Anderson asked for more time to obtain and examine Jackson’s school records for evidence of mental retardation, another indicator courts use to determine if the death penalty should be barred.

Wallace set a July 13 hearing, and said he wants to set the final sentencing after Anderson reports back.

If the assessment holds that Jackson is mentally retarded, “the sentence would have to be life without parole,” said one of Jackson’s lawyer, Erskine Mathis.

Judges in capital cases are not bound by the jury’s sentencing recommendation, but in most cases Alabama judges have overridden the jury’s recommendation of life without parole and imposed death instead.

Fewer than 10 percent of the judicial overrides have resulted in the lesser capital sentence, according to the Equal Justice Initiative in Montgomery.

Jackson was 27 when he fired a rifle at least 15 times into a car stopped at a traffic light on 19th Street and Avenue V. Killed were Pamela Montgomery, 42, and Milton Poole III, 16. Montgomery’s children, Shaniece Montgomery, then 19, and Denaris Montgomery, then 17, were wounded.

The jury in Jackson’s original trial also recommended death in a 10-2 vote, and then-Circuit Judge Gloria Bahakel sentenced him to death. The Alabama Supreme Court overturned his convictionand sentence in 2011, citing improper testimony in the 2007 trial.

Four years after watching his mother and best friend die, Denaris Montgomery committed a murder himself, and now is serving a 21-year prison term.