A Middlesex Superior Court judge on Monday was asked to throw out a 1993 first-degree murder charge against a man with an IQ so low his lawyer contends he will never meet the legal standard for criminal competency.
Jay Procopio pleaded guilty that year to second-degree murder in the death of his 5-month-old son, Eric. He was serving a life sentence until the Massachusetts Appeals Court ruled in 2013 that the proceeding was constitutionally flawed because Procopio insisted the death was an accident even as he admitted guilt.
“Far from acknowledging actions that constituted murder in the second degree, the defendant’s responses amounted to a claim of accident,” the appeals court ruled. “The judge should have rejected the plea, and let the indictment stand for trial.”
Middlesex District Attorney Marian T. Ryan’s office, which has lost its bid to reinstate the murder conviction, has not dropped the first-degree murder indictment in the 1992 death of his son in Woburn.
In a statement Monday night, Ryan’s office said Procopio was deemed incompetent to stand trial in March 2014 and was placed on pretrial probation with “conditions including that he not have unsupervised contact with children, and that he cooperate with the Department of Developmental Services in receiving services.”
Ryan’s office said prosecutors Monday “asked the judge to continue these same conditions the court had previously imposed rather than dismiss the indictments, which would effectively leave the defendant completely unsupervised.”
But Sandra Bloomenthal, Procopio’s current attorney, on Monday asked Judge Thomas Billings to put an end to the criminal charge.
“It’s grossly unfair to prosecute someone who has no capacity to defend himself,’’ Bloomenthal said in a telephone interview after the hearing on Monday. “He doesn’t understand a lot of what goes on.”
Bloomenthal said that Procopio was assessed at Bridgewater State Hospital in 2014, and mental health practitioners concluded his IQ was 47.
Bloomenthal said Procopio cannot be helped medically because he was born with the lower IQ level and will have the deficiency for the rest of his life.
Under state law, prosecutors must prove that a person is competent to stand trial, and Bloomenthal insists that is impossible in Procopio’s case.
“He is unable to think as other people think,’’ she said. “He’s functionally illiterate. He can’t pick up a newspaper or a magazine and read it.’’
Procopio has been out of prison living with his mother and stepfather since 2014, Bloomenthal said.
Billings took the matter under advisement.