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Sunday, February 3,2013

Appeal: Child rapist wasn’t mentally fit for trial

By Jim Phillips

Photo Caption: Richard Merryman listens during a court hearing, in this NEWS file photo.

In a case he calls "tragic and horrifically sad" for both the defendant and his young victims, a defense attorney has argued in an appeal that convicted child rapist Richard "Ricky" Merryman was denied his rights when a judge found him competent to stand trial, despite his low I.Q. and mental illness.

Merryman, 22, of Canton, Ohio, is serving 10 years to life in prison, after pleading guilty last September to rape and kidnapping. He was found guilty of sexually molesting two boys aged 4 and 5 in a bathroom at the Albany Community Center during a church function. 

The Ohio Public Defender's office, which represented Merryman, appealed his conviction. On Jan. 25 Peter Galyardt, an assistant state public defender, filed a brief in the case.

Galyardt argues that not only did Athens County Common Pleas Judge Michael Ward err when he found Merryman competent to stand trial, but that the judge also should not have accepted a plea from someone as mentally deficient as Merryman; that he should have suppressed Merryman's confession to police; and that he should not have imposed separate, consecutive prison terms for the individual offenses of which Merryman was convicted.

The central issue seems to be Merryman's competence. The defense fought hard to have him ruled incompetent based on low I.Q. and mental illness, stemming from what witnesses described as a nightmare childhood that included repeated sexual abuse starting as early as age 6.

Galyardt's brief states that Merryman's mother drank and used cocaine while she was pregnant with him, "with devastating consequences to Ricky's cognitive development." Merryman spent most of his childhood in foster care and residential-treatment facilities, it says.

In addition to having an I.Q. that some experts estimated at around 60, the brief says, Merryman suffers from "some form of autism spectrum disorder" and from reactive attachment disorder. His disorders are so severe, the brief maintains, that they rendered him incapable of understanding his situation well enough to assist in his defense – the criterion for whether a defendant is competent for trial.

The brief notes that while one psychologist, David Malawista, testified that Merryman was competent, two others, Jolie Brams and James Reardon, said the opposite. It also cites the fact that a fourth psychologist, Thomas Gazley, had assessed Merryman as incompetent in 2005, when he was charged with gross sexual imposition in Stark County.

Given Brams' and Reardons' reports and testimony, Galyardt argues, for the court to base a competency finding on Malawista's input was "unreasonable."

Galyardt contends that Malawista's opinion was "strictly based upon his conversations with (Merryman)," and therefore founded entirely on Merryman's verbal abilities. However, the defense attorney adds, other expert testimony indicated that Merryman is able to "parrot" information he has heard "in a seemingly sophisticated manner," giving the illusion that he understands when he doesn't.

"The ability to parrot information, even technical or sophisticated information, does not equate to competence," Galyardt argues. He cites an example given by Brams, in which Merryman – apparently based on something he heard from another jail inmate – insisted he had a constitutional right to have sex with children as long as it wasn't by force.

"Ricky genuinely believed that his First Amendment right to free speech meant that he could have sex with anyone that he wanted – no matter the person's age – as long as no force was used," the brief states. "And he was at odds with his attorney over this issue because he could not get his attorney to understand that his distorted proposition was 'legally correct.'"

Also based on Merryman's mental deficits, Galyardt argues that even if the court believed Merryman competent for trial, it should have found that he was not capable of entering an informed and voluntary guilty plea. Both Brams and Reardon, he notes, offered evidence showing that Merryman's "limited capacity to appreciate, understand and reason about his current environment, the future, and other aspects of what a guilty plea is and what its consequences are, prevented him from entering a knowing and intelligent plea."

The defense also tried and failed to get the judge to throw out a confession Merryman had made to police investigators, claiming that officers had misled Merryman about his rights, and ignored a statement he made indicating that he wanted an attorney present before he would answer questions.

Though authorities claimed Merryman waived his rights, Galyardt argues that his mental deficits mean he couldn't have done so knowingly, voluntarily and intelligently. The attorney claims Merryman did "the best that he possibly could" to convey his wishes to the officers, when he said, "All right, now the part where it says sign for without a lawyer I ain't signing whatever that is. Wherever it was that you was saying about uh, I was giving up the rights with a lawyer I don't want to sign that part."

On the issue of sentencing, Galyardt maintains that Ward should not have given Merryman separate sentences for rape and kidnapping, because they were "allied offenses" with a shared intention.


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