Van Tran, Atkins, and Beyond

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 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 night—Hail Mary • STAY OF EXECUTION/CERT GRANT

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

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.

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.”

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)

PROCEDURES LEFT TO THE STATES, BUT THE CONSTITUTIONAL FLOOR IS ATKINS

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

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

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.”

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.”

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.

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).”

ACCLAIM FOR AN UNRAISED FRIVOLOUS CLAIMS • History of our work—the discovery of obvious, latent rights • Blind eye to procedural hurdles Lesson: “Ya’ never know”

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

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

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

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

Other Important Lessons • Most important prong is before age 18 • Second most important prong is deficits in adaptive behavior • Least important—IQ • Use the AAMR text and definitions

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.

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

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

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.”

For example.. • He could hold a job while in prison • Could take a test, so “he had learned to adapt to his low IQ” • OH…MY…GOD

What can people suffering from mental retardation do? Get a driver’s 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

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 Can Do

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

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

Van Tran, Atkins, and Beyond