In Georgia, burden of proof on death-penalty defendants to prove MR diagnosis ruled unconstitutional

From The Atlanta Journal-Constitution:

The burden that Georgia places on death-penalty defendants to prove they are mentally retarded -- and thus ineligible for execution -- is unconstitutional, the federal appeals court in Atlanta ruled June 18.

The court, in a 2-1 decision, said that requiring defendants to prove they are mentally retarded beyond a reasonable doubt violates the Eighth Amendment's ban against cruel and unusual punishment. It also will "result in the execution of the mentally retarded," which the U.S. Supreme Court prohibited in 2002.

The decision should result in new hearings for up to 10 inmates on Georgia's death row who previously raised mental retardation claims at trial, said Brian Kammer, director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals. It also will affect all death cases going forward in which defendants claim to be mentally retarded.

The ruling corrects a "serious defect" in Georgia's death-penalty system, Kammer said. "[It] ensures that Georgia defendants will finally have meaningful protection from wrongful execution if they are mentally retarded."

The state Attorney General's Office is reviewing the decision, spokesman Russ Willard said. It could ask the entire, 12-member 11th U.S. Circuit Court of Appeals to reconsider the ruling by the three-judge panel or appeal to the U.S. Supreme Court.

Friday's ruling noted that Georgia is the only state in the country that requires a defendant raising a mental retardation claim to clear the highest burden-of-proof threshold in legal proceedings -- beyond a reasonable doubt. The ruling noted that 22 states require proof of mental retardation by a preponderance of the evidence, the lowest threshold. Four states have adopted a clear and convincing evidence standard and three states have not set a burden of proof.

Under Georgia law, a defendant who shows he has "significantly sub-average general intellectual functioning" that manifested itself during the early, developmental period of life is deemed to be mentally retarded.

Friday's ruling was a victory for Warren Hill, who was sentenced to death in 1991 for killing a fellow inmate in a state prison in Lee County. At trial, Hill raised mental retardation claims.

Writing jointly for the majority, judges Rosemary Barkett and Stanley Marcus said that while Georgia enacted the beyond-a-reasonable-doubt standard to decrease the risk of a defendant mistakenly being found the be mentally retarded, it actually increases the risk that a defendant will erroneously be found not to be mentally retarded. "This conception of the reasonable doubt standard, by its very terms, ensures that some, if not many, mentally retarded offenders will be executed in violation of the Eighth Amendment," the judges said.

In dissent, Judge Frank Hull said the U.S. Supreme Court has left it up to individual states to decide the appropriate standard for mental retardation claims. Georgia's law, she added, gives a defendant a full and fair trial on mental retardation claims with "virtually no limit" to the evidence that can be presented to support such a claim.

Fred Bright, district attorney of the Ocmulgee Judicial Circuit in central Georgia, said Friday's ruling came as no surprise. In 2007, out of an abundance of caution because he thought Georgia's law was vulnerable to attack, Bright agreed to not require Brian Duane Brookins prove he was mentally retarded beyond a reasonable doubt. Instead, Bright allowed Brookins to use the preponderance of the evidence standard.

Brookins, who killed his estranged wife and stepdaughter, was still sentenced to death. "I like to try a death case once and get it right the first time," Bright said. "I knew Georgia's law was hanging by a thread because it was all the way out there all by itself."