Published on Friday, August 22, 2008
By TAMMY J. McCOY
A jury will be chosen to decide whether a Lake Elsinore man facing the death penalty is mentally retarded, a judge ruled Friday.
Because the hearing deals with punishment, convicted killer Tony Ricky Yonko, not his lawyer, has the right to choose whether a jury or a judge will determine whether he is mentally retarded, Riverside County Superior Court Judge Judith Clark ruled.
Deputy Public Defender Elaine Johnson has argued that given the question of Yonko's mental capacity, a defense attorney can override Yonko's request for a jury trial in effort to do what is in his best interest.
If a jury decides Yonko, 45, is mentally retarded, he would not be executed.
The U.S. constitutional guarantee against cruel and unusual punishment prohibits executing people who are mentally retarded, the U.S. Supreme Court has ruled.
Last year, a jury convicted Yonko, an American Gypsy, of first-degree murder for the Oct. 22, 2002, death of Paul Ngo
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