Kimball Perry

kperry@enquirer.com

John Deloney is insulted by a legal definition and won't use it even though it could save his life.

"Let's go ahead and start the trial with the death penalty. That's what I want," Deloney told Hamilton County Common Pleas Court Judge Ethna Cooper in a Friday hearing.

Deloney, accused of shooting a Hartwell pizzeria owner to death during a June 15 robbery, is upset that his attorneys are trying to prove he's what Ohio law calls "mentally retarded." While many find the term offensive, "mentally retarded" in Ohio law is defined as having an IQ under 70. That could be a lifesaver for Deloney because in Ohio those declared mentally retarded are ineligible for the death penalty.

Prosecutors are seeking the death penalty against Deloney, accusing him of using a gun to rob Richard Evans, the owner of Cosmic Pizza, and then shoot him as Evans ran away. Evans died minutes later in the front yard of the pizzeria in his wife's arms.

"They pretty much called me retarded," Deloney said of his court-appointed attorneys Perry Ancona and Tim McKenna. "I don't want anybody to disrespect me."

The judge explained that by trying to have Deloney declared mentally retarded under the law, his attorneys were trying to ensure he wouldn't face the death penalty. The move comes after Deloney was found by three separate experts to be mentally competent to stand trial.

"I'm not retarded," Deloney told the judge.

When the judge again explained that his attorneys' attempt to have him declared retarded was good for his criminal case, he insisted his trial start immediately.

The retardation issue is vital to Deloney, 28, of Westwood, because prosecutors are confident they can prove he robbed and killed Evans, making him eligible for the death penalty. Deloney insists his twin brother or another man named John Deloney may be the real killer.

"He made a taped statement acknowledging that he shot and killed" Evans, Assistant Hamilton County Prosecutor Mark Piepmeier said of John Deloney.

Prosecutors also have the crime on video, DNA and a palm print that matches Deloney. Palm prints, Piepmeier said, are different for twins.

"There is zero doubt that this is the person who committed the crime," Piepmeier said.

After Deloney continued to insist he didn't want to be found "mentally retarded," McKenna and Ancona asked to withdraw as his attorneys.

The judge allowed that and will hold a hearing next week to appoint two new lawyers to represent Deloney.