The decision on whether a man accused of raping and killing a 4-year-old girl is mentally competent to stand trial likely will be made next month.Whether that decision is made by a judge or a jury remains to be seen.

Attorneys for death penalty defendant Cornelio Zamites argue in recently-filed court motions that Zamites should have the option of asking Superior Court Judge Kathlene Gosselin to decide his competency in a special civil trial without a jury.

Zamites, 28, is charged with murder in the June 2005 strangulation death of Esmeralda Nava, the 4-year-old daughter of an acquaintance of Zamites. He is accused of abducting, sexually assaulting and strangling the girl outside her family’s mobile home near Talmo.

Zamites was indicted on 18 felony counts in September 2005. Hall County District Attorney Lee Darragh filed notice of intent to seek the death penalty in June 2006.

Zamites’ attorneys argue that he is mentally retarded and incapable of understanding the nature of court proceedings or assisting in his defense. A civil trial to decide whether Zamites is legally competent is scheduled for next month.

In court filings, defense attorney Josh Moore wrote that a court-ordered mental evaluation and an expert hired by the defense each concluded that Zamites “is functioning well within the range of mental retardation and that he is not, in fact, competent to stand trial.”

The conclusion reached by a third expert hired by the prosecution is not known. Prosecutors are expected to argue that Zamites is competent to stand trial.

Moore has not indicated whether Zamites is willing to waive his right to let a jury decide his competency and leave it up to the judge.

If a jury is asked to decide the issue, Moore wants the prosecution barred from discussing the facts of the case, arguing they are not relevant to his competency. He also wants potential jurors questioned individually about their knowledge of the case.

“The mere nature of these charges has inflamed the community against Mr. Zamites and will create grave challenges to ensure that he receives a fair trial,” Moore wrote. The lawyer also claims that the charges against his client “ignited a passionate debate in this county about immigration issues.”

Zamites, a Mexican national, was in the country illegally at the time he was arrested and had been deported once before, authorities have said.

The defense also wants the judge to inform a jury that if they find Zamites incompetent to stand trial, he won’t walk out of the courtroom a free man. An incompetency verdict would have Zamites committed to a state mental health facility until he is found to be competent, if ever.