Lawyer argues Georgia should no longer be the only state that sets highest legal threshold possible for MR claims of death-row inmates

From The Atlanta Journal-Constitution:

A lawyer for a convicted killer said Georgia should no longer be the only state in the country that sets the highest legal threshold possible for death-penalty defendants who raise mental retardation claims.

In arguments on Monday before the state Supreme Court, David Gossett, a lawyer for Alphonso Stripling, said requiring such defendants to do this -- proving mental retardation beyond a reasonable doubt -- is unconstitutional.

Because of Georgia's law, "One thing is certain: mentally retarded defendants will be executed," Gossett said. The U.S. Supreme Court prohibited this in a ruling handed down in 2002, he noted.

Among states with the death penalty, 22 require defendants to prove mental retardation by the lowest legal threshold -- that he or she is more likely than not fits this description. Four other states have adopted a slightly tougher test.

About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional.

Stripling was convicted of and sentenced to death for killing two of his co-workers during a 1988 robbery of a Kentucky Fried Chicken restaurant in Douglasville. But his capital sentence was overturned when a judge found evidence Stripling was mentally retarded. The state Supreme Court is hearing Stripling's appeal before his re-sentencing trial.

On Monday, a Douglas County prosecutor asked the court to uphold the law. When the U.S. Supreme Court banned the execution of the mentally retarded, it left it up to the states to decide the burden of proof for defendants raising such claims, he said.

If Georgia were to adopt a a more lenient standard, James Dooley said, defendants who are faking it could be found mentally retarded and barred from being executed, he said.

During Monday's arguments, Justice Robert Benham asked Dooley if the tough burden of proof results in mentally retarded inmates being executed should that be accepted as "mere collateral damage?"

Dooley agreed such an outcome would be wrong. But he countered that Georgia's law sets up adequate safeguards to prevent that from happening.

Stripling finds himself in a difficult position on appeal. In 2003, a year after the U.S. Supreme Court banned the execution of the mentally retarded, the Georgia Supreme Court upheld the beyond-a-reasonable-doubt standard. Last June, a three-judge panel of the federal appeals court found Georgia's standard unconstitutional, but the full court vacated that ruling and is reconsidering the issue.