The Kristen Courtney Story

Update:

Wed Jan 9, 2013 10:52 PM
After more than 13 years and two trials, the state's highest court has decided that a man who burned his own daughter to death is mentally retarded and cannot be executed.

An Arizona Supreme Court ruling on Wednesday means that Shawn Grell, 37, will spend the rest of his life in prison with no possibility of parole in the gruesome death of his 2-year-old daughter, Kristen Salem.

On Dec.2, 1999, Grell checked Kristen out of a Phoenix day-care center, drove her to the desert east of Mesa, doused her with gasoline and lit her on fire.

Grell's attorneys never disputed that he killed Kristen, but they argued that he should not be executed because of his mental retardation.

In 2002, a Maricopa County Superior Court judge concluded that defense attorneys did not prove by "clear and convincing evidence'' that Grell is mentally retarded and sentenced him to death.

After the Arizona death penalty was overturned, Grell's case was sent back for resentencing, and a Mesa jury resentenced Grell to death in 2009.

But the Arizona Supreme Court reached a different conclusion, finding for the first time by the "preponderance of the evidence,'' a lower standard, that Grell is mentally retarded.

A 2002 U.S. Supreme Court ruling bars the execution of a mentally retarded person as cruel and unusual punishment, saying they often act on impulse and struggle to control their actions.

"We are fully aware of the horrific nature of this crime and the devastation it has brought upon Kristen's family,'' Chief Justice Rebecca White Berch wrote in the ruling.

"But given the recognition under our Constitution that defendants with mental retardation are less morally culpable for their crimes ... Grell is ineligible for execution."

Treasure VanDreumel, Grell's attorney, said testimony from Grell's elementary-school teachers at the 2009 resentencing helped convince the Arizona Supreme Court that Grell is mentally impaired.


She said teachers and school officials were reluctant to label Grell as retarded for fear of angering his mother, referring to behavioral disorders instead when assigning him to special-education classes.

"The fact that they never used the term mentally retarded almost killed him,'' she said.

Gary Bevilacqua, Grell's defense attorney for 13 years, said he was confident the state Supreme Court eventually would find Grell mentally retarded.

He said Grell's mental retardation prevented him from making sound decisions and resulted directly in Kristen's death.

"I'm relieved and I think the court made the right decision,'' Bevilacqua said.

But Kent Cattani, chief counsel for criminal appeals at the Arizona Attorney General's Office, said he likely will ask the state Supreme Court to reconsider its ruling.

He said the court previously ruled that Grell was not mentally retarded under the higher legal standard required by state law and should not have used the lower standard in this ruling.

"They used a standard that is not required by the (U.S.) Constitution,'' Cattani said.

The state Attorney General's Office may request legislation that would clarify the standard for future cases involving defendants who are mentally retarded, he said.