For over seven (7) years, D’Andre Bannister has sat behind the bars of a Florida jail cell, awaiting trial on the charges that he murdered his stepson.  That’s right.  He’s never been tried. 

This week, an evidentiary courtroom battle began on whether or not the State of Florida can now — today — seek the death penalty against D’Andre Bannister.  And whether or not Florida can seek capital punishment in this or any other case hinges upon one fact:  the score that the defendant achieves on a standardized IQ test. 

An IQ test score of 70 or less, and capital punishment is not an option.

The United States Supreme Court ruled in 2002 (Atkins v. Virginia) that those deemed "mentally retarded" cannot be executed, because this would be cruel and unusual punishment and therefore, unconstitutional.  Florida statutes have defined that circumstance to exist when IQ scores hit a maximum of 70.

Mr. Bannister’s fight this week, however, is not whether or not he’s had a speedy trial, but whether or not he’s eligible under the Atkins protection from a death penalty sentence.  Because what score D’Andre Bannister receives depends not only upon which test he’s taken, but also the year in which it was administered.

Experts are testifying regarding intelligence fluctuations over time, the accuracy of one test over another, and how the rigid structure and educational efforts of Mr. Bannister may have impacted his intelligence level over the past seven years.

Media reports are that D’Andre Bannister does not want to be considered "mentally retarded" (a label given in the language of the Atkins decision).  Whether or not he understands that his life is on the line based upon a test score is not so clear. 

The judge has spoken from the bench, however, and whatever the outcome of this fight — the case will be set for trial sometime this summer.  It’s already made the record books as being the longest delayed death penalty trial in Florida’s history.