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The state Supreme Court has upheld the death penalty for a Fayette County truck driver who claims he shouldn't face lethal injection for murdering his ex-girlfriend in 2004 because he's mentally retarded.

In a divided opinion, the court ruled last week that the trial judge appropriately denied efforts by James W. VanDivner Jr. to block the death penalty because his attorneys were unable to provide sufficient evidence establishing the onset of mental retardation before age 18.

But two of the seven justices signed an opinion calling the standard "draconian."

VanDivner, who was entitled to an automatic appeal because of the death sentence, cited a 2002 U.S. Supreme Court ruling that the execution of a mentally retarded defendant is cruel and unusual punishment.

All seven justices upheld VanDivner's 2007 first-degree murder conviction for shooting Michelle Cable in the head outside her Grindstone home. The 59-year-old Brownsville native also shot Cable's then-teenage son, Billy, who survived a bullet to his spine.

Only five justices affirmed Fayette County Judge Gerald Solomon's rulings on the death penalty. Courts have specified that a defendant's IQ must be 70 or below and the offender's adaptive behavior must be "significantly limited."

"The court pointed to the testimony of a (Frazier) school official to the effect that, at the time appellant was in school, there was no formalized procedure for placement in special education classes, as well as the appellant's sister's admission that she was placed in special education classes because of behavioral problems, not mental retardation," the opinion by Chief Justice Ronald Castille states.

"The court concluded that appellant may have been placed in special education classes for a number of reasons, including poor attendance or behavior problems, and that there was no evidence that he was in special education classes because of a diagnosis or recognition of his mental retardation."

Castille wrote that appellate attorney Susan Ritz Harper offered "no evidence of a national consensus for prohibiting the execution of those who are mentally deficient but who do not meet the definition of mentally retarded."

In a separate opinion, Justice Max Baer said the majority was imposing an "impossible standard" that might lead to the execution of mentally retarded defendants who were not fortunate enough to have attended a school that tested for IQ or maladjusted behavior.

Baer noted that a psychiatrist testifying for the defense said IQ does not change over a lifetime, and VanDivner's IQ was put in the range of 61 to 71.

"Where, as here, there was no IQ testing conducted before age 18 and no school records identifying appellant as mentally retarded, due to the lack of a structured program designed to identify those students with mental retardation, the majority's requirement of objective evidence originating before age 18 precludes defendants such as (VanDivner) from ever meeting their burden of showing mental retardation," Baer wrote.

Harper did not return a message seeking comment on Tuesday.

Jurors, who convicted VanDivner within 45 minutes, heard evidence of his 30-year criminal record of rape, aggravated assault, kidnapping and spousal abuse before approving the death penalty.

Defense attorneys asked jurors to spare his life, saying he had an abusive childhood with a father who regularly beat him and forced him to fight with his brothers before spectators.

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