Title: Van Tran, Atkins, and Beyond
1Van Tran, Atkins, and Beyond
- Mark Olive
- Tallahassee, Florida
2How Did We Get Here
- 1989, Penry
- Year after year re-raised and rejected
- Increasing international condemnation, increasing
number(s) of statutes (including TN in 1990),
increasing cert denials - McCarver in North Carolina Jonathan Broun,
having nothing else in a successor with an
execution date, stayed up all nightHail Mary - STAY OF EXECUTION/CERT GRANT
3Daryl Atkins
- Lost on direct appeal, execution of the mentally
retarded was not raised (other than as
proportionality) - Cert petition already filed pre-McCarver
- Filed a supplemental cert. petition citing
McCarver
4From McCarver to Atkins
- Atkins held for McCarver
- McCarver dismissed as improvidently granted
- Atkins has cert. granted
- It just goes to show you, you never know.
5The Atkins Holding
- Because of their disabilities in areas of
reasoning, judgment, and control of their
impulses, however, they do not act with the level
of moral culpability that characterizes the most
serious adult criminal conduct. Moreover, their
impairments can jeopardize the reliability and
fairness of capital proceedings against mentally
retarded defendants.
6Definition of Mental RetardationAAMR and DSM
- Significantly sub-average general intellectual
functioning - Deficits in adaptive behavior
- Both with onset during the developmental years
(age 18-21)
7PROCEDURES LEFT TO THE STATES, BUT THE
CONSTITUTIONAL FLOOR IS ATKINS
8Theme Be Not Afraid
- Demand
- what is not provided
- the most protection imaginable and
- from the least likely sources.
- Examples Legal Issues--Jury trial, no
Witherspooning, and restricting crime facts -
9Jury Trial? Virginia MR Statute
- Statute provided for jury trial if MR raised on
direct appeal - If raised in state habeas, remand for a
determination without mention of jury trial
10Burns v. Warden, June 10, 2004
- Burns suggests, allowing some capital
defendants a jury determination of mental
retardation while denying that procedure to
others amounts to disparate treatment that would
run afoul of state and federal guarantees of
equal protection. And that Ring and Apprendi
require a jury determination of mental
retardation because a factual finding that Burns
is not mentally retarded is necessary to increase
Burns punishment to death.
11CONSTRUCTION TO AVOID CONSTITUTIONAL INFIRMITY
- The different procedures for resolving this
factual issue that the Warden urges are based
solely on whether a capital defendant happened to
have his case on direct appeal or collateral
attack.
12Burns
- Court recognizes that it should interpret
statutes in a way that makes them constitutional - This is written immediately after the Court
described Burns argument that if the statute
does not provide for juries it is
unconstitutional - Court holds the statute provides for juries.
13Equal Protection Waaaah??
- To assign the finding of this fact to the
trial court for one group of qualifying
defendants and to either a court or jury for
another would treat similarly situated persons
differently in violation of the Equal Protection
Clause of the Fourteenth Amendment. City of
Cleburne, 473 U.S. 432, 439 (1985).
14ACCLAIM FOR AN UNRAISED FRIVOLOUS CLAIMS
- History of our workthe discovery of obvious,
latent rights - Blind eye to procedural hurdles
- Lesson Ya never know
15Georgia Patillo 417 S.E.2d 139
- Consequences (life) cannot be revealed
- Thus, in post-conviction, the fact that defendant
is on death row is not relevant. - The jury can focus strictly on the issue of the
mental condition of the defendant without being
concerned about the consequences of its finding. - Thus, in Gates, guards inadvertent testimony that
he knew d on death row caused a mistrial and
then a pleas
16Foster 406 S.E. 2d 74
- Blanket prohibition on facts of the crime error
- Probative v prejudice is key
- This is where before 18 becomes important the
more distant the evidence is from age 18, the
less probative it is
17Atkins on remand
- Trial court judge says that jurors get o know
about the death sentence - Trial court judge says that state cannot
introduce any facts o any crime unless they show
that the fact is relevant to adaptive functioning
18Practical Issues
- Most important lesson is that this is a plea
strategy, not a trial or post-conviction strategy
19Other Important Lessons
- Most important prong is before age 18
- Second most important prong is deficits in
adaptive behavior - Least importantIQ
- Use the AAMR text and definitions
20AAMR
- Adaptive behavior is the collection of
conceptual, social, and practical skills that
have been learned by people in order to function
in their everyday lives.
21TENNESSEE
- 1990 Statute 39-13-203
- Significantly sub-average general intellectual
functioning as evidenced by an IQ of 70 or below
(Atkins says 75) - Deficits in adaptive behavior (not even
significant deficits) - Manifested during the developmental period, or by
age 18
22First case to address this
- State v. Smith, 893 S.W.2d 908 (Tenn. 1995)
- Court says that statute does not define deficits
in adaptive behavior - AAMR definitions are not in the record
23So, Court used common sense..
- What is the ordinary meaning?
- That is what the red book is for
- The inability of an individual to behave so as
to adapt to surrounding circumstances.
24For example..
- He could hold a job while in prison
- Could take a test, so he had learned to adapt to
his low IQ - OHMYGOD
25What can people suffering from mental retardation
do?
- Get a drivers license
- Drive a car
- Get Married
- Have Children
- Swim
- Laugh
- Have a conversation
- Read a book
- Graduate from HS
- Be attractive
- Play sports
- Have friends
- Dance
- Use drugs
- Drink alcohol
- Count
- Work
- Commit murder
26Can Do
- Join the military
- Write poetry
- Draw
- Be depressed
- Tell jokes
- Cook
- Bathe
- Watch TV
- Like basketball
- Take care of a pet
- Fabricate an alibi
- Own a house
- Buy a car
- Read the newspaper
- Follow sports
- Write letters
- Plan a crime
27Can Do
- Join the military
- Write poetry
- Draw
- Be depressed
- Tell jokes
- Cook
- Bathe
- Watch TV
- Like basketball
- Take care of a pet
- Fabricate an alibi
- Own a house
- Buy a car
- Read the newspaper
- Follow sports
- Write letters
- Plan a crime
28This Was Not Corrected in Van Tran
- Van Tran says that executions would violate the
state constitution and the eighth amendment,
relying on Fleming - Again relies upon the statutory definition
29But then Atkins was Decided
- Constitutional floor
- Cites, relies upon AAMR and DSM