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Van Tran, Atkins, and Beyond

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Van Tran, Atkins, and Beyond Mark Olive Tallahassee, Florida How Did We Get Here 1989, Penry Year after year re-raised and rejected Increasing international ... – PowerPoint PPT presentation

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Title: Van Tran, Atkins, and Beyond


1
Van Tran, Atkins, and Beyond
  • Mark Olive
  • Tallahassee, Florida

2
How 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

3
Daryl 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

4
From 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.

5
The 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.

6
Definition 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)

7
PROCEDURES LEFT TO THE STATES, BUT THE
CONSTITUTIONAL FLOOR IS ATKINS
8
Theme 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

9
Jury 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

10
Burns 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.

11
CONSTRUCTION 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.

12
Burns
  • 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.

13
Equal 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).

14
ACCLAIM FOR AN UNRAISED FRIVOLOUS CLAIMS
  • History of our workthe discovery of obvious,
    latent rights
  • Blind eye to procedural hurdles
  • Lesson Ya never know

15
Georgia 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

16
Foster 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

17
Atkins 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

18
Practical Issues
  • Most important lesson is that this is a plea
    strategy, not a trial or post-conviction strategy

19
Other 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

20
AAMR
  • 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.

21
TENNESSEE
  • 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

22
First 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

23
So, 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.

24
For example..
  • He could hold a job while in prison
  • Could take a test, so he had learned to adapt to
    his low IQ
  • OHMYGOD

25
What 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

26
Can 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

27
Can 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

28
This 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

29
But then Atkins was Decided
  • Constitutional floor
  • Cites, relies upon AAMR and DSM
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