Amicus Curiae Brief — Rodney Renia Young, Petitioner v. Georgia
Supreme Court briefDec 23, 2021
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No. 21-782
IN THE
Supreme Court of the United States
————
RODNEY RENIA YOUNG,
Petitioner,
v.
STATE OF GEORGIA,
Respondent.
————
**CAPITAL CASE**
On Petition for a Writ of Certiorari
to the Supreme Court of Georgia
————
BRIEF OF AMICI CURIAE ELSA R. ALCALA,
DONALD B. AYER, ROBERT J. CLEARY,
PATRICK J. FITZGERALD, NORMAN S.
FLETCHER, JAMES E.C. PERRY, LARRY
THOMPSON, AND BETH WILKINSON
IN SUPPORT OF PETITIONER
————
ADAM GERSHENSON
COOLEY LLP
500 Boylston Street
Boston, MA 02116
PATRICK HAYDEN
VICTORIA PASCULLI
VALERIA M. PELET DEL TORO
ANGELINE CHEN
COOLEY LLP
55 Hudson Yards
NEW YORK, NY 10001-2157
KATHLEEN R. HARTNETT
Counsel of Record
COOLEY LLP
3 Embarcadero Center
20th Floor
San Francisco, CA 94111
(415) 693-2000
khartnett@cooley.com
Counsel for Amicus Curiae
December 23, 2021
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ................................................................ 4
ARGUMENT ................................................................ 8
I.
The Exacting Beyond-A-Reasonable-Doubt
Standard, Which Protects Individual Liberty
And Allocates The Risk Of Error To The
Government, Is Fundamental To Our System
of Justice ........................................................... 8
For Centuries, The Beyond-AReasonable-Doubt Standard Has Been
Central To Criminal Prosecution In The
Anglo-American Legal System .............. 9
The Beyond-A-Reasonable-Doubt
Standard Is Exacting And Requires
Near Certitude ..................................... 13
II.
Requiring Capital Defendants To Prove
Intellectual Disability Beyond A Reasonable
Doubt To Avoid Execution Violates Both The
Core Purpose Of The Standard And This
Court’s Precedents .......................................... 14
The Georgia Rule Undermines The
Central Aims Of The Beyond-AReasonable-Doubt Standard ................ 14
The Georgia Rule Violates This Court’s
Precedents And Conflicts With The
Standards Imposed By Every Other
State...................................................... 18
CONCLUSION .......................................................... 23
APPENDIX: TRANSCRIPT OF HEARING BEFORE
THE JUDICIARY – NON-CIVIL COMMITTEE…..1a
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Addington v. Texas,
441 U.S. 418 (1979) .................................... 8, 11, 16
Atkins v. Virginia,
536 U.S. 304 (2002) ...................................... passim
Bowling v. Commonwealth,
163 S.W.3d 361 (Ky. 2005) ................................... 20
Brown v. Bowen,
847 F.2d 342 (7th Cir. 1988) ................................ 12
Commonwealth v. Russell,
23 N.E.3d 867 (Mass. 2015) ................................... 6
Commonwealth v. Webster,
59 Mass. (5 Cush.) 295 (Mass. 1850) ............... 6, 12
Cooper v. Oklahoma,
517 U.S. 348 (1996) ...................................... passim
Cruzan v. Director, Mo. Dep’t of Health,
497 U.S. 261 (1990) .......................................... 8, 16
Gregg v. Georgia,
428 U.S. 153 (1976) .............................................. 16
Hall v. Florida,
572 U.S. 701 (2014) ................................ 1, 7, 17, 18
Hall v. State,
109 So. 3d 704 (Fla. 2012) ...................................... 3
iii
TABLE OF AUTHORITIES
(continued)
Page(s)
Hill v. Humphrey,
662 F.3d 1335 (11th Cir. 2011) ............................ 15
Howell v. State,
151 S.W.3d 450 (Tenn. 2004) ............................... 21
Jackson v. Virginia,
443 U.S. 307 (1979) ........................................ 11, 13
Jenkins v. State,
498 S.E.2d 502 (Ga. 1998)...................................... 3
Leland v. Oregon,
343 U.S. 790 (1952) .............................................. 22
Lockhart v. McCree,
476 U.S. 162 (1986) ................................................ 1
Marshall v. State,
583 S.E.2d 884 (Ga. 2003).................................... 15
Martin v. Ohio,
480 U.S. 228 (1987) .............................................. 12
Medina v. California,
505 U.S. 437 (1992) ........................................ 12, 22
Moore v. Texas,
137 S. Ct. 1039 (2017) ............................ 1, 7, 17, 18
Ex Parte Moore,
470 S.W.3d 481 (Tex. Crim. App.
2015) ................................................................. 2, 17
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Morrow v. State,
928 So. 2d 315 (Ala. Crim. App.
2004) ..................................................................... 22
Patterson v. New York,
432 U.S. 197 (1977) .............................................. 12
Pruitt v. State,
834 N.E.2d 90 (Ind. 2005) .................................... 20
State v. Williams,
831 So. 2d 835 (La. 2002) ..................................... 21
United States v. Hernandez,
176 F.3d 719 (3d Cir. 1999).................................. 13
In re Winship,
397 U.S. 358 (1970) ...................................... passim
Young v. State,
860 S.E.2d 746 (Ga. 2021).............................. 22, 23
Statutes
Ga. Code Ann.
§ 17-7-131 ........................................................... 6, 7
88 Ga. Laws 1003 § 1................................................... 6
Other Authorities
2 Georgia Suggested Pattern Jury
Instructions – Criminal § 1.20.10 .............. 5, 13, 18
v
TABLE OF AUTHORITIES
(continued)
Page(s)
4 William Blackstone, Commentaries ...................... 11
John H. Blume et al., A Tale of Two
(and Possibly Three) Atkins:
Intellectual Disability and Capital
Punishment Twelve Years After the
Supreme Court’s Creation of a
Categorical Bar, 23 Wm. & Mary Bill
Rts. J. 393 (2014)............................................ 15, 16
Edward K. Cheng, Reconceptualizing
the Burden of Proof, 122 Yale L.J.
1254 (2013) ........................................................... 13
Adam Lamparello, Unreasonable Doubt:
Warren Hill, AEDPA, and Georgia’s
Unconstitutional Burden of Proof,
Crim. L. Bulletin (June 23, 2015) ........................ 18
John Wilder May, Some Rules of
Evidence, 10 Am. L. Rev. 642 (1876) ............. 10, 16
2 McCormick on Evidence (8th ed. Jan.
2020 update) ........................................................... 9
Hon. Jon O. Newman, Beyond
“Reasonable Doubt,” 68 N.Y.U. L.
Rev. 979 (1993) ....................................................... 9
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Veronica M. O’Grady, Note, Beyond A
Reasonable Doubt: The
Constitutionality of Georgia's
Burden of Proof in Executing the
Mentally Retarded, 48 Ga. L. Rev.
1189 (2014) ............................................................. 7
Timothy R. Saviello, The Appropriate
Standard of Proof for Determining
Intellectual Disability in Capital
Cases: How High is Too High?, 20
Berkeley J. Crim. L. 163 (2015) ........................... 18
Miller W. Shealy, A Reasonable Doubt
About “Reasonable Doubt,” 65 Okla.
L. Rev. 225 (2013)............................................. 6, 11
Lauren Sudeall Lucas, An Empirical
Assessment of Georgia’s Beyond A
Reasonable Doubt Standard To
Determine Intellectual Disability in
Capital Cases, 33 Ga. St. U. L. Rev.
553 (2017) ....................................................... 15, 17
Thomas Starkie, Law of Evidence
(1824) .................................................................... 11
James Q. Whitman, The Origins of
“Reasonable Doubt,” Yale Fac.
Scholarship Series (2005) .................................... 10
INTEREST OF AMICI CURIAE1
Amici curiae are former federal and state
prosecutors and judges.
They include former
prosecutors who led some of the most high-profile
capital cases in a generation—from the Oklahoma
City bombing to the “Unabomber” attacks. They also
include former state-court judges who authored
opinions concerning the constitutionality of state
procedures for establishing intellectual disability
under Atkins v. Virginia, 536 U.S. 304 (2002),
including dissents with reasoning later adopted by
this Court in Hall v. Florida, 572 U.S. 701 (2014) and
Moore v. Texas, 137 S. Ct. 1039 (2017). All amici are
deeply familiar with the workings of the “beyond a
reasonable doubt” standard imposed on the
government when it seeks to convict individuals in
criminal trials.
Amici represent a spectrum of views on the
constitutionality and advisability of the death penalty.
Nonetheless, amici share a strong, unified interest in
“preserving public confidence in the fairness of the
criminal justice system.” Lockhart v. McCree, 476
U.S. 162, 174–75 (1986) (citation omitted). Amici
believe it is critical for States that administer the
death penalty to do so with sufficient procedural
safeguards to ensure adjudicative accuracy and to
protect the rights of the accused. Amici are united in
agreeing that imposing the beyond-a-reasonable-
Pursuant to Rule 37.6, amici represent that this brief was
written by outside counsel for amici, and not by counsel for any
party. No outside contributions were made to the preparation or
submission of this brief. Pursuant to Rule 37.2, amici represent
that all parties received timely notice of amici’s intent to file this
brief, and the parties do not oppose the filing of this brief.
1
2
doubt standard on capital defendants claiming
intellectual disability is unconstitutional.
Elsa R. Alcala served as a judge on the Texas
Court of Criminal Appeals from 2011 to 2018. As a
member of that court, Judge Alcala authored the
dissenting opinion the reasoning of which this Court
adopted in invalidating Texas’s use of non-scientific
factors to assess intellectual disability. See Ex Parte
Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015),
vacated and remanded sub nom. Moore v. Texas, 137
S. Ct. 1039 (2017).
Donald B. Ayer served as Deputy Attorney
General at the U.S. Department of Justice from 1989
to 1990, as Principal Deputy Solicitor General of the
United States from 1986 to 1989, and as U.S. Attorney
for the Eastern District of California from 1981 to
1986.
Robert J. Cleary served as U.S. Attorney for the
Southern District of Illinois in 2002; U.S. Attorney for
the District of New Jersey from 1999 to 2002; First
Assistant U.S. Attorney for the District of New Jersey
from 1994 to 1999; and Assistant U.S. Attorney for the
Southern District of New York from 1987 to 1994,
where he also served as Chief of the Major Crimes
Unit. Mr. Cleary served as lead prosecutor in the socalled “Unabomber” case of United States v. Theodore
J. Kaczynski.
Patrick J. Fitzgerald served as U.S. Attorney
for the Northern District of Illinois from 2001 to 2012
and as Assistant U.S. Attorney for the Southern
District of New York from 1988 to 2001, where he cofounded the Southern District’s Organized CrimeTerrorism Unit. As Chief of the Organized CrimeTerrorism Unit, Mr. Fitzgerald prosecuted well-
3
known terrorists, including trying the capital case
against defendants who bombed American embassies
in Kenya and Tanzania on behalf of al-Qaeda.
Norman S. Fletcher served on the Supreme
Court of Georgia from 1989 to 2005, including as
Presiding Justice from 1995 to 2001 and as Chief
Justice from 2001 to 2005. Then-Presiding Justice
Fletcher authored the dissent in Jenkins v. State, 498
S.E.2d 502 (Ga. 1998), in which he concluded that
requiring capital defendants to prove intellectual
disability
beyond
a
reasonable
doubt
is
unconstitutional.
James E.C. Perry served on the Florida
Supreme Court from 2009 to 2016. Justice Perry
authored the dissenting opinion the reasoning of
which this Court adopted in invalidating Florida’s
strict IQ cutoff of 70 for a capital defendant’s claim of
intellectual disability. See Hall v. State, 109 So. 3d
704 (Fla. 2012), rev’d and remanded sub nom. Hall v.
Florida, 572 U.S. 701 (2014).
Larry Thompson served as U.S. Deputy
Attorney General from 2001 to 2003. He also served
as U.S. Attorney for the Northern District of Georgia
from 1982 to 1986, where he led the Southeastern
Organized Crime Drug Enforcement Task Force.
Beth Wilkinson served as Assistant U.S.
Attorney for the Eastern District of New York, counsel
to the Deputy Attorney General, and Principal Deputy
of the Terrorism and Violent Crime Section in the
Justice Department’s Criminal Division. During her
tenure at the Justice Department, Ms. Wilkinson
served on the team that prosecuted and sought the
death penalty for Timothy McVeigh and Terry Nichols
4
for the bombing of the federal building in Oklahoma
City.
INTRODUCTION AND SUMMARY OF
ARGUMENT
For centuries, the standard that requires the
State to prove criminal liability beyond a reasonable
doubt has reflected the “fundamental value
determination of our society that it is far worse to
convict an innocent man than to let a guilty man go
free.” In re Winship, 397 U.S. 358, 372 (1970) (Harlan,
J., concurring). Yet for over thirty years, Georgia has
turned this core principle on its head by requiring
capital defendants to prove intellectual disability
beyond a reasonable doubt in order to avoid their own
execution. No other State has ever imposed this steep
burden on a capital defendant. And no defendant
charged in a capital case of intentional murder has
ever satisfied Georgia’s standard before a jury.
Georgia’s novel rule defeats the core purpose of the
beyond-a-reasonable-doubt
standard
and
unconstitutionally allows the execution of individuals
who are more likely than not intellectually disabled.
Grounded in principles of morality and theology
that have guided criminal proceedings for centuries,
the beyond-a-reasonable-doubt standard historically
has served to preserve human life and liberty. Its
assignment to the government for the purpose of
establishing criminal guilt aims to minimize the risk
of erroneous conviction and punishment.
The
standard deliberately accepts the risk that some
wrongdoers may go unpunished, and it forces the
government to bring firmly supported charges and
seek fully warranted punishments. It means that
prosecutors must convince jurors more than that a fact
5
is “probably” or even clearly true, as even minor
discrepancies in the evidence can result in “reasonable
doubt.” By holding the government to such an
exacting standard, the beyond-a-reasonable-doubt
standard promotes public trust and confidence in our
criminal justice system.
Georgia’s
unprecedented
rule
jarringly
subverts the purposes the beyond-a-reasonable-doubt
standard has served throughout its history. Rather
than err on the side of protecting individual life and
liberty, the Georgia rule errs on the side of death and
virtually guarantees the execution of intellectually
disabled individuals. Indeed, in the more than thirty
years since the rule was created, not one capital
defendant has persuaded a jury of his intellectual
disability in a case of intentional murder. That harsh
reality is unsurprising, given the nature of intellectual
disability. Intellectually disabled persons often have
deficits in some areas of adaptive functioning but not
others—a mix of strengths and weaknesses—which
will almost always create a “conflict in the evidence”
sufficient to defeat a finding beyond a reasonable
doubt.
2 Georgia Suggested Pattern Jury
Instructions – Criminal § 1.20.10 (2021) (defining
“reasonable doubt”).
This Court’s precedents do not permit Georgia’s
placement of the beyond-a-reasonable-doubt burden
on capital defendants who claim intellectual
disability. In Cooper v. Oklahoma, 517 U.S. 348
(1996), this Court unanimously held that a State may
not require a criminal defendant to prove
incompetence to stand trial by clear and convincing
evidence, recognizing that such a demanding standard
violates due process because “a defendant may be put
to trial even though it is more likely than not that he
6
is incompetent.” Id. at 350. While a State may place
some burden on a defendant to prove intellectual
disability, several state high courts have correctly
held—in conflict with the Supreme Court of Georgia—
that Cooper prohibits a State from imposing a
standard of proof for intellectual disability that would
permit the execution of individuals who are “more
likely than not” intellectually disabled. There can be
no serious question that Georgia’s rule does just that:
the law has long been clear that, under a beyond-areasonable-doubt standard, it is “not sufficient to
establish a probability” or that a fact is “more likely to
Commonwealth v.
be true than the contrary.”
Webster, 59 Mass. (5 Cush.) 295, 320 (Mass. 1850).2
What is more, there is good reason to believe
that Georgia’s anomalous rule is—as the statute’s codrafter has publicly testified—simply the result of a
drafting error, as the beyond-a-reasonable-doubt
standard was never intended to apply to the issue of
intellectual disability. In 1988, Georgia became the
first State to enact a prohibition on the execution of
intellectually disabled persons. See 1988 Ga. Laws
1003 § 1, codified at Ga. Code Ann. § 17-7-131. To
accomplish that result, the statute’s drafters simply
added “but mentally retarded” after “guilty” to the
statute’s requirement that guilt be proven beyond a
reasonable doubt. Id.3 But as one of the two coWebster, though abrogated in part by Commonwealth v.
Russell, 23 N.E.3d 867 (Mass. 2015), provides the “classic
common law definition” of reasonable doubt, Miller W. Shealy, A
Reasonable Doubt About “Reasonable Doubt,” 65 Okla. L. Rev.
2
225, 234 (2013).
The Georgia Code provides: “The defendant may be found
‘guilty but with intellectual disability’ if the jury, or court acting
as trier of facts, finds beyond a reasonable doubt that the
defendant is guilty of the crime charged and is with intellectual
3
7
drafters of the statute testified at a 2013 hearing, he
simply “wasn’t thinking clearly enough” in drafting
the law—merely intending that intellectually disabled
defendants could still be convicted, not that they
would be required to prove their disability beyond a
reasonable doubt to avoid execution. App. 5a–6a.4 As
he put it bluntly: “[i]t was sloppy draftsmanship, pure
and simple.” App. 7a. To amici’s knowledge, the State
has never disputed that the beyond-a-reasonabledoubt requirement for intellectual disability was the
result of this error.
Despite its apparently inadvertent origin,
Georgia’s one-of-a-kind position has been firmly
approved by the Supreme Court of Georgia, even as
this Court has reiterated that States may not abridge
the Atkins right through their own procedural rules.
See Moore v. Texas, 137 S. Ct. 1039 (2017); Hall v.
Florida, 572 U.S. 701 (2014). Nor has the Georgia
legislature shown any willingness to remedy its error
and conform its position to those of the other States,
all of which employ a less demanding standard of
proof. Because Georgia flouts this precedent and the
disability.” Ga. Code Ann. § 17-7-131(c)(3). At the time of its
enactment, the statute used the term “mentally retarded” in
place of “with intellectual disability.”
The appended transcript of an October 24, 2013 hearing
before the Judiciary – Non-Civil Committee of the Georgia House
of Representatives was prepared by Transperfect Legal Solutions
using a recording that appears to have previously been available
on the Georgia House of Representatives’ public website. See
Veronica M. O’Grady, Note, Beyond A Reasonable Doubt: The
4
Constitutionality of Georgia's Burden of Proof in Executing the
Mentally Retarded, 48 Ga. L. Rev. 1189, 1223 n.19 (2014). Amici
obtained a copy of this recording from Lauren A. Riccardelli, who
co-authored A Value-Critical Policy Analysis of Georgia’s Beyond
a Reasonable Doubt Standard of Proof of Intellectual Disability,
30 J. Disability & Policy Stud. 56 (2019).
8
practice of all other States by continuing to place a
beyond-a-reasonable-doubt
burden
on
capital
defendants to establish intellectual disability, this
Court should grant the petition.
ARGUMENT
I.
The Exacting Beyond-A-Reasonable-Doubt
Standard, Which Protects Individual Liberty
And Allocates The Risk Of Error To The
Government, Is Fundamental To Our System of
Justice
As this Court explained in Cooper, “[t]he
function of a standard of proof, as that concept is
embodied in the Due Process Clause and in the realm
of factfinding, is to ‘instruct the factfinder concerning
the degree of confidence our society thinks he should
have in the correctness of factual conclusions for a
particular type of adjudication.’” Cooper, 517 U.S. at
362 (quoting Addington v. Texas, 441 U.S. 418, 423
(1979)). “The standard serves to allocate the risk of
error between the litigants and to indicate the relative
importance attached to the ultimate decision.”
Addington, 441 U.S. at 423. Thus, “[t]he ‘more
stringent the burden of proof a party must bear, the
more that party bears the risk of an erroneous
decision.’” Cooper, 517 U.S. at 362 (quoting Cruzan v.
Director, Mo. Dep’t of Health, 497 U.S. 261, 283
(1990)).
The beyond-a-reasonable-doubt standard is the
most exacting standard in the American legal system
today. See Addington, 441 U.S. at 422. As its history,
purpose, and function make plain, this standard is
properly placed on the government—not a capital
defendant asserting a constitutional right—in
criminal prosecutions.
9
For
Centuries,
The
Beyond-AReasonable-Doubt Standard Has Been
Central To Criminal Prosecution In The
Anglo-American Legal System
In Cooper, this Court explained that “historical
practice” and “the relevant common-law traditions of
England and this country” inform whether a standard
of proof complies with the Due Process Clause.
Cooper, 517 U.S. at 356. Here, the relevant traditions
are clear: throughout its history, the onerous beyonda-reasonable-doubt standard has been employed
almost exclusively as the government’s burden in
criminal cases.
Its use by Georgia here is
fundamentally at odds with that practice.
The
beyond-a-reasonable-doubt
standard
“dates at least from our early years as a Nation.”
Winship, 397 U.S. at 361. This Court has observed
that the standard appears to have “crystalliz[ed]” by
1798, id., when defense counsel in the so-called Irish
Treason Trials successfully advocated for the Court’s
imposition of the standard on the prosecution. See,
e.g., 2 McCormick on Evidence § 341 & n.5 (8th ed.
Jan. 2020 update); Hon. Jon O. Newman, Beyond
“Reasonable Doubt,” 68 N.Y.U. L. Rev. 979, 981–82
(1993). Earlier still, the term “reasonable doubt” was
part of the Boston Massacre trials of March 1770,
where John Adams admonished jurors that “if you
doubt the prisoner’s guilt, never declare him guilty;
this is always the rule, especially in cases of life.”
Anthony A. Morano, A Reexamination of the
Development of the Reasonable Doubt Rule , 55 B.U.
L. Rev. 507, 517 (1975) (citation omitted). Counsel for
the Crown agreed but added that jurors’ doubts must
be “reasonable” to acquit—“the earliest recorded
10
courtroom statement” articulating the beyond-areasonable-doubt standard. Id. at 517–18.
As this Court has noted, the concept of
“reasonable doubt” dates back to “ancient times,”
Winship, 397 U.S. at 361, when jurors’ moral and
religious concerns with convicting their peers
prompted an exacting standard of proof. In the
thirteenth century, for example, English jurors were
apparently “required to swear to God that they would
determine the truth of the matters presented to them,”
and by virtue of their oath, “‘if the jurors are in doubt
of the matter and not certain,’ then they should
acquit.” Morano, supra, at 510 (citation omitted).
This preoccupation with potentially convicting an
innocent—and the concomitant requirement that the
State satisfy the heightened burden—endured over
the centuries, as Christian common-law jurors in
England required “assur[ance] that their souls were
safe if they voted to condemn the accused.” James Q.
Whitman, The Origins of “Reasonable Doubt,” Yale
Fac. Scholarship Series 8 (2005).
Throughout its history, the primary aim of the
beyond-a-reasonable-doubt standard has been to
protect the life and liberty of the criminally accused.
In England, the standard responded to a “fearfully
bloody [penal] code,” under which “[d]eath, without
benefit of clergy, was denounced against a multitude
of misdoings,” such that “[t]he consequences of
conviction to the unfortunate prisoner were not only
fearful, but they were irremediable.” John Wilder
May, Some Rules of Evidence, 10 Am. L. Rev. 642,
651–52 (1876).
Thus, common-law jurors were
instructed: “You must be cautious . . . because the
issue is life or death to the prisoner.” Id. at 659
(citation omitted).
11
Consistent with this history, “the requirement
of proof beyond a reasonable doubt in a criminal case
[is] bottomed on a fundamental value determination of
our society that it is far worse to convict an innocent
man than to let a guilty man go free.” Winship, 397
U.S. at 372 (Harlan, J., concurring). As Blackstone
put it, “the law holds[ ] that it is better that ten guilty
persons escape, than that one innocent suffer.” 4
William Blackstone, Commentaries *352; see also
Thomas Starkie, Law of Evidence 507 (1824) (“The
maxim of the law is . . . that it is better that ninetynine . . . offenders shall escape than that one innocent
man be condemned.”). And as this Court has further
explained, “[a]t the same time by impressing upon the
factfinder the need to reach a subjective state of near
certitude of the guilt of the accused, the standard
symbolizes the significance that our society attaches
to the criminal sanction and thus to liberty itself.”
Jackson v. Virginia, 443 U.S. 307, 315 (1979).
As this history demonstrates, the beyond-areasonable-doubt standard recognizes that the
interests of a criminal defendant “are of such
magnitude” that “they have been protected by
standards of proof designed to exclude as nearly as
possible the likelihood of an erroneous judgment” of
conviction. Addington, 441 U.S. at 423. The standard
reflects the “basic moral concern” that “we place a high
value on human life and liberty for secular and
theological reasons.” Shealy, supra, at 300. This
calculus is even more stark in the context of a capital
case.
Notably, a “heightened standard does not
decrease the risk of error, but simply reallocates that
risk between the parties.” Cooper, 517 U.S. at 366. In
recognition of the liberty interests at stake in criminal
12
trials, the beyond-a-reasonable-doubt standard
historically has assigned nearly all risk of error to the
government, rather than the accused.
“In the
administration of criminal justice, our society imposes
almost the entire risk of error upon itself.” Addington,
441 U.S. at 423–24.
The standard is thus
“indispensable to command the respect and confidence
of the community in applications of the criminal law.”
Winship, 397 U.S. at 364. As this Court explained in
Winship, “[i]t is critical that the moral force of the
criminal law not be diluted by a standard of proof that
leaves people in doubt whether innocent men are
being condemned.” Id.
Although prosecutors in the United States
universally are required to prove criminal guilt
beyond a reasonable doubt, see Winship, 397 U.S. at
364, defendants sometimes bear the burden of proof as
to certain issues. Those issues include, for example,
non-constitutional affirmative defenses under state
law—which a criminal defendant must prove, in most
cases, by a preponderance of the evidence. See, e.g.,
Martin v. Ohio, 480 U.S. 228, 233 (1987) (self-defense);
Patterson v. New York, 432 U.S. 197, 206 (1977)
(extreme emotional distress). Criminal defendants
may also bear the burden to prove incompetence to
stand trial by a preponderance of the evidence, see
Medina v. California, 505 U.S. 437, 449 (1992), though
not by clear and convincing evidence, see Cooper, 517
U.S. at 355–56. In no circumstances, however, has a
State required a defendant to prove a constitutional
right—such as the right of an intellectually disabled
person not to be executed—beyond a reasonable doubt,
as Georgia has done here.
13
The
Beyond-A-Reasonable-Doubt
Standard Is Exacting And Requires Near
Certitude
As amici have experienced first-hand, the
beyond-a-reasonable-doubt standard imposes a very
high burden of proof—what this Court has called a
standard of “near certitude.” Jackson, 443 U.S. at 315.
As Judge Easterbrook has explained, “[t]he
preponderance standard is a more-likely-than-not
rule, under which the trier of fact rules for the plaintiff
if it thinks the chance greater than 0.5 that the
plaintiff is in the right,” but the beyond-a-reasonabledoubt standard is “much higher, perhaps 0.9 or
better.” Brown v. Bowen, 847 F.2d 342, 345–46 (7th
Cir. 1988) (Easterbrook, J.); see also Edward K.
Cheng, Reconceptualizing the Burden of Proof, 122
Yale L.J. 1254, 1256 (2013) (“[T]he criminal beyond-areasonable-doubt standard is akin to a probability
greater than 0.9 or 0.95.”). Thus, to prove a matter
beyond a reasonable doubt, it is “not sufficient to
establish a probability” or that a fact is “more likely to
be true than the contrary.” Webster, 59 Mass. (5
Cush.) at 320. Nor is it sufficient to prove that a
defendant is “probably guilty” under a beyond-areasonable-doubt standard.
United States v.
Hernandez, 176 F.3d 719, 728 (3d Cir. 1999).
Existing
jury
instructions—particularly
Georgia’s—underscore the demanding nature of the
beyond-a-reasonable-doubt
standard.
Under
Georgia’s pattern jury instructions, a reasonable
doubt can arise from “consideration of the evidence, a
lack of evidence, or a conflict in the evidence.” 2
Georgia
Suggested
Pattern
Jury
Instructions – Criminal § 1.20.10 (2021) (emphasis
added).
The beyond-a-reasonable-doubt standard
14
thus invites parties—normally the defense, but
uniquely here the State—to present any potentially
“conflict[ing]” evidence and thereby prevent jurors
from finding a fact that is likely, or even clearly, true.
Id.
The practical difficulties of meeting the beyonda-reasonable-doubt standard ordinarily fulfill its
purpose—to protect life and liberty against
government overreach. In the case of Georgia’s
anomalous usage of this standard, however, such
difficulties mean that individuals who are likely or
even clearly intellectually disabled will be
unconstitutionally executed.
II.
Requiring Capital Defendants To Prove
Intellectual Disability Beyond A Reasonable
Doubt To Avoid Execution Violates Both The
Core Purpose Of The Standard And This
Court’s Precedents
By requiring a defendant facing the death
penalty to prove intellectual disability beyond a
reasonable doubt, Georgia undermines the principles
that have supported the beyond-a-reasonable-doubt
standard throughout its history. Georgia’s rule cannot
be reconciled with this Court’s precedents, which
prohibit imposing such demanding standards on
defendants asserting constitutional rights.
The Georgia Rule Undermines The
Central Aims Of The Beyond-AReasonable-Doubt Standard
By placing the burden on a criminal defendant
to prove intellectual disability beyond a reasonable
doubt to avoid a death sentence, the Georgia rule
15
subverts the entire purpose and justification of the
reasonable doubt standard.
First, rather than err on the side of protecting
human life and liberty—as the beyond-a-reasonabledoubt standard has done for centuries when imposed
on the prosecution—Georgia’s approach virtually
guarantees the execution of those who are
constitutionally exempt from capital punishment.
Indeed, in the more than thirty years since Georgia
adopted this approach, not a single capital defendant
has met the beyond-a-reasonable-doubt standard
before a jury in a case of intentional murder. See
Lauren Sudeall Lucas, An Empirical Assessment of
Georgia’s Beyond A Reasonable Doubt Standard To
Determine Intellectual Disability in Capital Cases, 33
Ga. St. U. L. Rev. 553, 582 (2017).5 By contrast,
outside Georgia, studies have shown that claims of
intellectual disability—though asserted rarely—
succeeded at a rate of at least 33 percent in capital
cases from 2000 to 2013. See John H. Blume et al., A
Tale of Two (and Possibly Three) Atkins: Intellectual
Judges and commentators have located only two cases in which
a capital defendant has proven intellectual disability since
Georgia adopted its standard, but neither involved a jury’s
determination of that issue in a case of intentional murder. In
Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011) (en banc), the
dissent surveyed published Georgia cases and found that one
defendant—Christopher Lewis—had satisfied a judge that he
met the standard for intellectual disability in post-conviction
proceedings. See id. at 1375–76 & n.19 (Barkett, J., dissenting).
In addition, Vernessa Marshall apparently established
intellectual disability in a case of felony murder, see Marshall v.
State, 583 S.E.2d 884, 886 (Ga. 2003), a crime that does not
involve the “premeditation and deliberation” or “cold calculus” for
which the death penalty may provide a deterrent effect, Atkins,
536 U.S. at 319 (citations omitted), and which thus provided an
underlying basis for the jury’s mercy.
5
16
Disability and Capital Punishment Twelve Years
After the Supreme Court’s Creation of a Categorical
Bar, 23 Wm. & Mary Bill Rts. J. 393, 412–413 (Table)
(2014).6 The most straightforward and compelling
explanation for this gulf between Georgia and national
practice is Georgia’s uniquely exacting burden of
proof. Id.
As these data confirm, Georgia’s outlier rule
undermines the “transcending value” behind the
beyond-a-reasonable-doubt standard—protecting a
defendant’s life and liberty against undue risk of
deprivation. Winship, 397 U.S. at 364. “When a
defendant’s life is at stake, the Court has been
particularly sensitive to insure that every safeguard is
observed.” Gregg v. Georgia, 428 U.S. 153, 187 (1976)
(plurality op.).
Contrary to these fundamental
principles, Georgia’s rule imposes on defendants an
unduly demanding standard in a context where an
error “is not susceptible of correction.” Cruzan, 497
U.S. at 263; see also May, supra, at 652 (noting the
death penalty’s “irremediable” nature as inspiring the
beyond-a-reasonable-doubt standard at common law).
Nothing in the history or tradition of the beyond-areasonable-doubt standard supports the limited value
Georgia’s rule assigns to human life.
Second, Georgia allocates virtually all risk of
error to the capital defendant, even though
intellectual disability often is not susceptible to proof
beyond a reasonable doubt—certainly not by a
criminal defendant. This Court has recognized that
intelligence diagnostics reflect examiners’ “subjective
Studies have estimated that, at least from the time Atkins was
decided through 2013, approximately 7.7 percent of defendants
in capital cases claimed intellectual disability. See Blume et al.,
supra, at 396.
6
17
judgment” of an individual’s observed behavior, which
may indicate deficits in some areas of adaptive
functioning but not others. Hall, 572 U.S. at 713.
These inherent “subtleties and nuances”—as with
mental illness—“render certainties virtually beyond
reach in most situations.” Addington, 441 U.S. at 430.
Whereas the beyond-a-reasonable-doubt standard is
“addressed to specific, knowable facts,” determining
intellectual disability involves a “subjective
analysis . . . filtered through the experience of the
diagnostician,” which “often makes it very difficult for
the expert physician to offer definite conclusions about
any particular patient.” Id.
Real-world examples of the application of
Georgia’s
standard
illustrate
its
inherently
problematic nature. Prosecutors have, for instance,
defeated capital defendants’ efforts to prove
intellectual disability by presenting evidence that
defendants—including some who could only read at a
third-grade level at age seventeen or had spent their
childhoods in special education—were also able to
obtain driver’s licenses, work at fast-food restaurants,
or tell right from wrong.7 None of these factors
necessarily disproves intellectual disability—in fact,
as noted by the dissenting opinion with which this
Court agreed in Moore, intellectually disabled persons
“are often able to perform basic life functions and
tasks, such as holding jobs, driving cars, and
supporting their families.” Ex Parte Moore, 470
S.W.3d at 537 (Alcala, J., dissenting); see also Atkins,
536 U.S. at 318 (noting that intellectually disabled
persons “frequently know the difference between right
and wrong”). But given the extraordinary burden the
beyond-a-reasonable-doubt
standard
imposes,
7
See Sudeall Lucas, supra, at 586–87, 592–93.
18
Georgia prosecutors can easily create a perceived
“conflict in the evidence,” thereby putting the beyonda-reasonable-doubt
standard
beyond
capital
defendants’ reach. 2 Georgia Suggested Pattern Jury
Instructions – Criminal § 1.20.10 (2021).
Third, by permitting the execution of those who
are more likely than not intellectually disabled,
Georgia undermines public confidence in its criminal
justice system. The Georgia rule has consistently
fueled well-founded skepticism that Georgia is
sentencing intellectually disabled persons to death—
even though the “entire category” of such individuals
is constitutionally exempt from execution. Moore, 137
S. Ct. at 1051 (citation omitted); see, e.g., Adam
Lamparello, Unreasonable Doubt: Warren Hill,
AEDPA, and Georgia’s Unconstitutional Burden of
Proof, Crim. L. Bulletin (June 23, 2015); Timothy R.
Saviello, The Appropriate Standard of Proof for
Determining Intellectual Disability in Capital Cases:
How High is Too High?, 20 Berkeley J. Crim. L. 163
(2015). What is more, the Georgia rule appears to
have resulted from an acknowledged error in statutory
drafting, see supra at 7–8, which does nothing to
inspire confidence in the administration of criminal
justice. Cf. Hall, 572 U.S. at 718 (noting that the
Florida Legislature “might well have believed that its
law would not create a fixed [IQ score] cutoff at 70,”
which this Court found unconstitutional).
The Georgia Rule Violates This Court’s
Precedents And Conflicts With The
Standards Imposed By Every Other
State
This Court’s precedents not only recognize the
unique role of the beyond-a-reasonable-doubt
19
standard in our legal system, but correctly identify the
due process constraints on burdens of proof applied to
criminal defendants. By imposing the beyond-areasonable-doubt standard where it has no place,
Georgia violates these precedents and conflicts with
rulings from the high courts of every other State to
have considered the appropriate standard for
establishing a capital defendant’s intellectual
disability.
In Cooper, this Court unanimously held that an
Oklahoma statute requiring a criminal defendant to
prove mental incompetence to stand trial by clear and
convincing evidence violated the Due Process Clause,
considering “both traditional and modern practice and
the importance of the constitutional interest at stake.”
517 U.S. at 356. The Court found no indication that
Oklahoma’s standard “ha[d] any roots in prior
practice,” id., and determined that “[c]ontemporary
practice” also provided little support for the
standard—at the time, only four States “require[d] the
criminal defendant to prove his incompetence by clear
and convincing evidence,” id. at 360. Acknowledging
that “important state interests are unquestionably at
stake,” id. at 367, the Court nonetheless emphasized
that “the consequences of an erroneous determination
of competence are dire,” as compared to the more
modest consequences for the State, id. at 364–65
(internal quotation marks omitted). Ultimately, the
Court concluded that a clear-and-convincing-evidence
standard would violate due process because “[u]nder
that standard a defendant may be put to trial even
though it is more likely than not that he is
incompetent.” Id. at 350.
Cooper precludes Georgia from requiring a
criminal defendant to prove intellectual disability
20
beyond a reasonable doubt in order to avoid execution.
If anything, the constitutional deficiencies with
Georgia’s rule are more glaring. Georgia’s beyond-areasonable-doubt standard is more demanding than
the clear-and-convincing-evidence standard rejected
in Cooper.8 And whereas the standard in Cooper
found at least some contemporary support in a
handful of other jurisdictions, Georgia’s beyond-areasonable-doubt standard finds none.
Moreover, the liberty interests are greater here
than in Cooper, which concerned whether a defendant
could be tried. Here, in contrast, the question is one
of life or death. The consequences of an erroneous
determination are far more “dire” for the defendant
facing execution than for the State, which remains
able to impose harsh punishment, including life
imprisonment. And while the right in Atkins was
recognized more recently, it is by no means less
important than the right not to be tried if incompetent:
Atkins determines who may live or die as a matter of
constitutional law.
While no other State has ever imposed a
standard as demanding as Georgia’s, the high courts
of several other States have correctly invalidated
standards greater than a preponderance. The Indiana
Supreme Court, for instance, struck down under
Cooper the State’s clear-and-convincing-evidence
standard for proving intellectual disability. See Pruitt
v. State, 834 N.E.2d 90, 103 (Ind. 2005). That court
explained that the right of intellectually disabled
persons not to be executed is “fundamental,” as Atkins
In Cooper, Oklahoma tellingly conceded that it could not apply
a beyond-a-reasonable-doubt standard to claims of incompetence.
Cooper, 517 U.S. at 355 & n.7.
8
21
had “identified that right as grounded in a
fundamental principle of justice.” Id. at 101 (citing
Atkins, 536 U.S. at 306). Following Cooper, the court
then determined that “contemporary practice” did not
support a clear-and-convincing-evidence standard,
and that the State’s “interest in seeking justice”—
though “important”—was comparatively low, for
intellectually disabled defendants “remain subject to
punishment for their crimes” yet “face a special risk of
wrongful execution” that cannot be corrected. Id. at
101–03.
With similar reasoning, the Tennessee
Supreme Court invalidated the State’s requirement
that a defendant prove intellectual disability by clear
and
convincing
evidence
in
post-conviction
proceedings. See Howell v. State, 151 S.W.3d 450
(Tenn. 2004). Like the Indiana Supreme Court, the
Tennessee Supreme Court found it “clear” that
“[intellectually disabled] individuals have a
constitutional right not to be executed,” and explained
that “the risk to the [defendant] of an erroneous
outcome is dire, as he would face the death penalty,
while the risk to the State is comparatively modest.”
Id. at 465. The court held that, “[j]ust as the Supreme
Court held in Cooper regarding incompetency, it
would violate due process to execute a defendant who
is more likely than not [intellectually disabled].” Id.
at 464–65.
Beyond Indiana and Tennessee, the high courts
of every other State to reach the question have agreed
that only a standard below reasonable doubt—in most
cases, a preponderance—satisfies due process under
Cooper and Atkins. See, e.g., State v. Williams, 831
So. 2d 835, 860 (La. 2002) (adopting preponderance
standard and noting that “[r]equiring a defendant to
22
prove by clear and convincing evidence he is exempt
from capital punishment by reason of mental
retardation would significantly increase the risk of an
erroneous determination that he is not mentally
retarded,” and “in the Atkins context, the State may
bear the consequences of an erroneous determination
that the defendant is mentally retarded . . . far more
Bowling v.
readily
than
the
defendant”);
Commonwealth, 163 S.W.3d 361, 382 (Ky. 2005)
(relying on Cooper to adopt preponderance standard);
Morrow v. State, 928 So. 2d 315, 324 n.10 (Ala. Crim.
App. 2004) (adopting preponderance standard).
In the decision below, the Supreme Court of
Georgia provided no persuasive basis for parting ways
with this Court’s precedent, the rulings of all other
State high courts to reach the question, and every
other State’s practice. Purporting to distinguish
Cooper, the court incorrectly relied on Leland v.
Oregon, 343 U.S. 790 (1952), which upheld an Oregon
rule requiring a defendant to prove a state insanity
defense beyond a reasonable doubt. See Young v.
State, 860 S.E.2d 746, 771–74 (Ga. 2021). But this
Court has made clear that Leland did not concern the
standard governing a defendant’s constitutional
rights—to the contrary, this Court “ha[s] not said that
the Constitution requires the States to recognize the
insanity defense.” Medina, 505 U.S. at 448–49; see
also Leland, 343 U.S. at 798 (emphasizing that the
defendant had not “sought to enforce against the
states a right which we have held to be secured to
defendants in federal courts by the Bill of Rights”).
Moreover, while the court claimed that there is no
comparable “historical support . . . for claims of
intellectual disability,” Young, 860 S.E.2d at 772, the
court ignored that there is no “historical support” at
all for Georgia’s beyond-a-reasonable-doubt standard
23
for intellectual disability, which remains unique
today.
Rather than face the inescapable conflict
between its prior decisions and this Court’s
precedents, the decision below pointed to unrelated
ways in which Georgia could be said to comply with
the Constitution—such as “adher[ing] to prevailing
clinical definitions of intellectual disability,” 860
S.E.2d at 771, and “provid[ing] a right to a full jury
trial on the question of intellectual disability,” id. at
776.
Those points say nothing about the
constitutionality of Georgia’s standard of proof—
under which, as noted, not one capital defendant
charged with intentional murder has persuaded a jury
of his intellectual disability in over thirty years. See
supra § II.A.
At base, the Georgia rule fundamentally
misapplies the beyond-a-reasonable-doubt standard.
A drafting error cannot, and should not, overcome
centuries of law, morality, and theology. Georgia
unconstitutionally
permits
the
execution
of
individuals who are more likely than not—or even
clearly—intellectually disabled. Regardless of one’s
views of capital punishment, the Georgia rule cannot
be squared with this Court’s precedent, and it has now
created an unnecessary split among the States. This
Court should grant the petition and bring Georgia into
conformity with controlling precedent and the law of
every other State.
CONCLUSION
For the foregoing reasons, this Court should
grant the petition for a writ of certiorari.
24
Respectfully submitted,
Adam S. Gershenson
COOLEY LLP
500 Boylston Street
Boston, MA 02116
(617) 937-2300
agershenson@cooley.com
Kathleen R. Hartnett
Counsel of Record
COOLEY LLP
3 Embaracadero Center
20th Floor
San Francisco, CA 94111
(415) 693-2000
khartnett@cooley.com
Patrick Hayden
Victoria Pasculli
Valeria M. Pelet del Toro
Angeline Chen
COOLEY LLP
55 Hudson Yards
New York, NY 10001
(212) 479-6000
phayden@cooley.com
Counsel for Amici Curiae
Date: December 23, 2021
APPENDIX
1a
APPENDIX
TRANSCRIPT OF HEARING BEFORE THE
JUDICIARY – NON-CIVIL COMMITTEE
GEORGIA HOUSE OF REPRESENTATIVES
113TH CONG.
OCTOBER 24, 2013
2a
REP RICH GOLICK: … this morning.
This is in informational hearing. This isn’t to examine
any particular piece of legislation. There is no
particular piece of legislation before us today. This is
an informational hearing for the committee to look at
the issue of the burden that a criminal defendant
must meet in order to serve mental retardation, the
term used in the Georgia code. The main impetus for
the hearing is the fact that Georgia is the only state
in the Union, it’s the committee’s understanding that
Georgia is the only state in the nation, that requires
the defendant to meet a burden of beyond a
reasonable doubt in order to assert mental
retardation. That doesn’t mean that the state’s,
Georgia’s, approach is necessarily wrong. It doesn’t
mean that it’s necessarily right. It just is the type of
circumstance when you are taking a unique approach
in the nation, it’s probably a good idea on any issue
for the committee to take a step back and examine
what our approach is, why we’re taking that
approach, to hear from both sides of the issue—those
who would advocate change and those who would
advocate no change—to take all the information in,
get educated and consider all viewpoints, and then to
act accordingly or not. Nothing more, nothing less.
The object for us here is to get better educated by noon
or 12:30, than we are right now on the issue, to hear
all sides and to step back and to consider all the
information that we’ve been given. So, I hope that’s
clear. If there’s any misunderstanding on the part of
any entity or any individuals that we are somehow
looking at the death penalty in general, that would be
a wrong assumption. The death penalty in the state
of Georgia is well established law, and that’s not going
to change any time soon, I would think. Again, we’re
3a
looking at the verry narrow issue as described just a
minute ago. What I think we’ll do is we’ll – we have
several organizations and some individuals signed up
to speak. I think that we’ll do, members of the
committee, is we’ll naturally go ahead and call on
those individuals and entities who are advocating a
change. We’ll ask them in gen – this is the general
plea of please be as brief as you can, although we
understand that there are many layers of information
that go along with this subject matter, and so, we
understand that some time has to be taken to give us
proper context. And, of course, as always, and I think
most important, is for the committee to be given the
opportunity to ask Q&A, to have Q&A after each
presentation, to engage in a dialogue. I think that just
fosters better education, especially on this issue. And
then, we’ll have those entities, organizations, who
would be in opposition to those advocating change
come after them for an opposing or varying viewpoint,
and go through the same, as we do in this committee
off and on on every issue. So, with that, let me go
ahead and start off and ask Sandy Michaels and Jack
Martin with the Georgia Association of Criminal
Defense Lawyers to come forward. Good morning.
Welcome.
JACK MARTIN: Good morning, Mr.
Chairman.
SANDY MICHAELS: Good morning.
JACK
MARTIN:
Mr.
Chairman,
members of the committee, I’m Jack Martin. This is
Sandy Michaels. We are here representing the
Georgia –
[OVERLAY]
4a
the Georgia Association of Criminal
Defense Lawyers. I have to confess this. One of the
reasons we are here today with the problem may be
partly my fault. Back in 1988 when this statute was
first—by the way, that’s 25 years ago, and I was
thinking about that the other day, and I didn’t realize
I’d be around here for that long—but in 25 years ago
in 1988, a couple of things happened in Georgia.
There was the execution of Jerome Bowden, who
everybody knew was mentally retarded. The parole
board did not stop that execution, and there was polls
that were done by the Georgia state that indicated
that though 75 percent of Georgians supported the
death penalty, 66 percent of Georgians did not
support it for the mentally retarded. By the way, I’m
going to use the phrase “mentally retarded”
throughout. Mentally retarded is not the accepted
phrase among mental health professionals today. It’s
“intellectual disability.” The phrase “mental
retarded,” as you all know, we all know has been too
often used as a insult, as a phrase to denigrate people
to make them feel bad, to insult them as an epithet
almost. So, we don’t use that word. But a lot of the
words that’s used in this area are really euphemisms
-- “intellectual disability” or “mental retardation.”
And I’ll use “mental retardation” because that’s
what’s used in the code and is
[00:05:00]
used in the case law. The exact same
standards under the psychological associations and
psychiatric associations apply to mental – intellectual
disabilities,
mental
retardation.
They
are
interchangeable, but that is the phrase that’s used
most commonly now. But I’ll use the word “mental
5a
retardation” because that’s what we have in the law
and that’s what’s in the code. I don’t mean anything
bad by that, but that’s what we’re using. By the -- So,
what happened was, there was a consensus among
the legislature, including the Attorney General Mike
Bowers at that time, who as you well know is the
attorney general who was most responsible for
imposing or to supporting the death penalty
convictions that had been imposed. Came together
and decided we needed to do something about this in
Georgia. And at the same time, and if I give too much
detail, but I think it’s helpful to know the history of
how we came to where we are. There was a case called
Ford versus Wainwright that the Supreme Court had
passed, and Ford versus Wainwright provided that
you couldn't execute somebody who did not
understand why they were being executed because of
mental illness. So, and the Supreme Court allowed –
said the states had to come up with their own
procedure. So, at the same time that we were coming
up with a procedure in Georgia to implement Ford
versus Wainwright, the idea of doing something about
executing the mentally retarded came up, and there
were a lot of proposals that were thrown out, back and
forth. And toward the end of the session, as all of you
know, we were trying to get something passed. Things
were rushed, and Joe Drolet who used to be the
lobbyist for the prosecutors from the Fulton County
District Attorney’s office and I, on behalf of Georgia’s
Association of Criminal Defense Lawyers sat down in
this room. Well, it was before we had this lovely desk
now, but – and we sat down in this room and said,
“Well, how can we – what’s the easiest way to do this?”
And we said, “What we’ll do is we’ll attach to the
‘guilty but mentally ill’ statute.” which had been
6a
expanded now at that time to be both ‘guilty but
mentally ill’ and ‘guilty but mentally retarded.’ And
we put at the very end of that statute that you
couldn't execute somebody who was found to be
retarded. And that’s what the law is to this day, for
more than 25 years. That small little one sentence—
and also, it provided that this would apply to cases
after July 1 of 1988 -- is the law of Georgia. And that
passed. The reason I say I was at fault, I wasn’t
thinking clearly enough, nor was Joe and I, I think,
because the mentally retarded, guilty but mentally
retarded and guilty but mentally ill statute was
meant to be this. After a lot of controversy about the
insanity defense, which actually grew out of the
attempted assassination of President Reagan and the
issue in the -- when he got – [PH] Chapman was, you
know, was mentally ill. The idea was to tighten
insanity, and the idea was to say, okay, you’re guilty
but you’re mentally ill. And all that means is you’ll be
punished just like any other defendant, but they will
get services from the department – whoever the
Department of Human Resources whatever it might
be at that time, so that these people would get some
help—mentally retarded people and mentally ill
people—but they would not avoid being convicted.
They would not get an insanity plea. We gave the jury
one more option in those cases where a person was
clearly mentally ill but not legally insane. That
statute and its burden of proof says you have to find
the person guilty beyond a reasonable doubt, because
you don’t want somebody to be punished unless
they’re guilty beyond a reasonable doubt and
mentally retarded. Where I dropped the ball, where
Joe Drolet and I dropped the ball is we didn’t want to
make clear that in the death penalty case, it wasn’t
7a
meant to be that mentally he had to be guilty beyond
a reasonable doubt, but also that mental retardation
had to be proved beyond a reasonable doubt. It was
sloppy draftsmanship, pure and simple. I don’t think
anybody intended that to happen, but if you look at
the statute, that’s the way it reads, and that became
the law of Georgia. Interestingly enough, Georgia was
the first state, the very first state to outlaw the
execution of the mentally retarded. And because of
that, ultimately, the United States Supreme Court
held – I’ll get to that briefly in a second. I don’t want
to be too much detailed, but I think it’s helpful for you
guys to know the history of all this. So, what happens
is after that statute’s passed, the Georgia Supreme
Court in the case called Fleming, and I’ve given a
memo to all of you—I hope you have it—that outlines
the history of all this and gives you case cites if you
want to refer to them in the [PH] interim on this. But
the Fleming case—I guess I’m up to Paragraph Three
[INDISCERNIBLE].
[00:10:00]
In the Fleming case, the Georgia
Supreme Court said, okay, the legislature has held
that we shouldn't execute the mentally retarded.
Sixty-five percent of Georgians—I think is it the
figure—66 percent of Georgians opposed that. We
believed there is a consensus against the execution of
the mentally retarded so that under the Georgia
constitution—not just the statute, but under the
Georgia constitution, the cruel and unusual
punishment provision, you can’t execute the mentally
retarded. Interestingly enough, they had a problem
then. They had the statute only applied to cases after
– tried after July 1 of 1988, but there were people who
8a
were clearly mentally retarded who were on death
row who hadn’t gotten the benefit of that statute. Now
we had a constitutional prohibition against executing
the mentally retarded. How do we deal with these
people who didn’t get the benefit of the statute? And
what they said is we’ll have a hearing. First of all, on
a h—state habeas, a judge has to find that there is a
prima facie case, a reasonable case to believe they’re
mentally retarded, and you have to have at least one
mental health professional who has given that
diagnosis. And if you have that, it’s a little bit like in
medical malpractice, you had to have that affidavit
from that medical person before you could go forward.
And then, you had a hearing, a jury trial solely on the
question of mental retardation. And interestingly
enough, the Georgia Supreme Court said the burden
of proof in that hearing would be by a preponderance
of the evidence more likely than not, as opposed to
beyond a reasonable doubt. And those hearings, called
Fleming hearings or Foster hearings of two cases
went on for years, and some people were found to be
mentally retarded, some were not, in those hearings,
But it was odd that if you were tried after the statute,
you had a burden of proof beyond reasonable doubt. It
was just the constitutional revision from Priors, it was
by preponderance of the evidence. That ultimately
came to a head in a case called Burgess, State versus
Burgess, which I was the appellant lawyer and the
trial lawyer in that case. And in that case, we argued
that that was an equal protection problem. You can’t
have two burdens of proof. The Georgia Supreme
Court declined to hold that. They said that, “We’re
gonna hold that.” So, we’ve had for years now these
two burdens of proof in these cases, and it’s been an
odd situation throughout. Ultimately, in Atkins
9a
versus Virginia, that was in 2002, the United States
Supreme Court finally weighed in. Before that time,
there had been a case called Penry versus Lynaugh,
and Penry had said you can raise mental retardation
in the sentencing phase of a capital case, but it wasn’t
an absolute bar to the death penalty. In Atkins versus
Virginia, they reversed that decision. And in Atkins
versus Virginia, they said, well, there’s now been an
increasing consensus against the execution of the
mentally retarded. And by the way, Georgia – it
mentions Georgia was the first state to do that. So,
the Georgia statute ultimately led, in part, to the
Atkins making a national prohibition against the
death penalty. Unfortunately, in Atkins, the Supreme
Court said we’ll leave to the states how you’re going
to implement this, and different states have come up
with different ways of doing this. Some states and the
federal government do it in a pretrial hearing.
Georgia has this odd procedure where you have to – it
is tried during the guilt/innocence phase of the trial,
and the burden of proof, as the Chairman said, is
beyond a reasonable doubt, which is the only state
that has such a high burden. So, Georgia became was
the leader on this in 1988, and now we’re at the back
of the bus. I mean, we are behind everybody.
REP RICH GOLICK: To clarify one point
of that—procedurally, when exactly does that happen
during the guilt/innocent? I mean JACK MARTIN: It is an odd procedure,
and I’ve tried these cases. I’ve tried them both in
federal court and in state court. What happens is,
you’re trying a case and you’ve got two issues before
the jury. One is whether the defendant is guilty. That
has to be proven beyond a reasonable doubt, of course.
10a
But at the same time, while you’re trying the case, to
say, “Okay, he didn’t do it" or you know whatever the
defense might be, self-defense, whatever the defense
might be, you’re saying, “and by the way, he’s also
mentally retarded.”
REP RICH GOLICK: So, that’s a dual
track argument during –
[OVERLAY]
for guilt or innocence is –
[OVERLAY]
JACK MARTIN: Yeah, it’s a very
awkward procedure.
REP RICH GOLICK: And the jury
makes the determination on mentally – on mental
retardation, as it’s called – as it says in –
[OVERLAY]
JACK MARTIN: Not only do you try the
case, who shot who, whatever happened at the event,
but you’re also having psychiatrists, psychologists
come in. The history – you have to prove—and cut me
off if I’m being – giving you too much detail, but the
definition of mental retardation requires basically
three things—
[00:15:00]
and this is accepted across the country.
One, low IQ, low intellectual ability, which is
generally – well, not generally, is generally is an IQ of
70 or below. Now there’s a standard error of
measurement in there of five points. So, someone
could have an IQ as high as 75 and still meet the 70.
You have to have substantial deficits in the adaptive
11a
behavior. And what that means is just have problems
in your life. It might be anything that’s adaptive
behavior, of dealing with the world, deficits in that.
And this is the key, it all has to occur prior to age 18
in the developmental period. So, unless this is
observed long before the person has been tried on the
crime, before he was 18—often, you’ll have special
education
evaluations,
you’ll
have
defects
evaluations, you’ll have those types of things showing
that this was observed long before age 18. It’s hard to
fake this right because you have to prove it occurred
long before the crime occurred, right? It was observed
long before the crime occurred. So, it’s a very – that’s,
that’s the test. So, while you’re trying the case on
guilt/innocent, you’re also trying all this stuff in the
middle of it all, and it’s – it’s just very, very awkward.
And it’s and it was a poorly conceived idea from the
very beginning, which I take responsibility for. The -REP RICH GOLICK: And just to be
clear, it’s your – it’s the jury that makes the
determination on mental retardation.
JACK MARTIN: Oh yeah, it’s the jury.
The jury. Now, a lot of states and the federal
government—and you could argue about this and we
could talk about this as we go forward—have a
procedure where the it’s initially a judicial
determination. The judge sits and you hear evidence.
You have what they call an Atkins hearing. And the And he - that’s what’s happened in the federal
government. And you have a hearing, and the judge
says, okay, I find – and it’s by a preponderance of
evidence, I find the person is mentally retarded.
Therefore, the case goes forward as a non-death case.
Or, “I don’t find him mentally retarded” and it goes
12a
forward as a death penalty case. The issue of mental
retardation, as I mentioned before, is always
something that the jury can consider in mitigation
because as Georgia is, and as most states, pretty
much anything is open for the defense to put in, in, in
mitigation. So, the judge says, “No, I don’t find that
he’s mentally retarded,” but the jury can always
consider that maybe it’s a close question. You know,
and sometimes jury’s say, the close question, and one
juror might think, it’s close enough for me to think
that he or she may be mentally retarded, so I’m not
going to give the death penalty. But it’s not an
absolute bar at that point. It’s just a consideration for
the jury. That’s you know – that’s one way of doing it.
So, now we’ve gotten to this point where we are the
only state that has this terribly awkward way of doing
this, and a statute that wasn’t designed to be dealing
with the question of whether we’re going to prohibit
the execution of somebody, but a statute that was
designed solely for the purpose of whether someone
who is convicted and sentenced is going to get mental
health treatment in while they’re incarcerated. And
we have this burden of proof. Let’s think about it. We
mentioned this in the memo and actually the
Eleventh Circuit has mentioned this. The reason we
have the proof beyond a reasonable doubt is we made
the political judgement because liberty and life is so
important in this country, that even though somebody
who might be likely guilty, we’re not going to sentence
them to the penitentiary unless we’re sure beyond a
reasonable doubt. The reverse is here. What we’re
saying by putting this high a standard of
preponderance of evidence on the defendant who’s
mentally retarded, we’re saying, you know, we’re
going to go ahead and execute people who are likely,
13a
more likely than not mentally retarded. We’re going
to do that because we’re going to put this standard of
beyond a reasonable doubt, which means we have to
be absolutely certain before we give that. So, so we
have to admit the policy of this burden of proof from
the long history is that we’re saying, okay, we’re okay
with executing a few mentally retarded people. I just
don’t think that’s right. I don’t think that’s what we
really believe. And also, you have to remember, the
mentally retarded—and I’ve handled these cases—
come to these cases in a terrific disadvantage to start
with. They’re not as able to help you find witnesses,
not as able to – they are easily misled during the
interrogation process.
[00:20:00]
They are people who often more often
than not in these cases committed the crime with
somebody else who was not mentally retarded,
because one of the features of being mentally retarded
is you’re easily influenced by others. So, they already
– you already come to these cases with a terrific
disability, and then you go and impose on that the
additional onerous standard of proof beyond a
reasonable doubt. This has been controversial for
several years now in the federal court. One of the
problems with the way these things are litigated is
when they tightened up the rules of habeas corpus in
federal court, in order to get relief on a federal habeas
case, you have to prove that the state court’s
procedure was a direct violation of not a reasonable
application of settled supreme court law. There is no
settled supreme court law about procedures.
Therefore, even though the Supreme Court may—and
they may someday—take a case that’s a direct appeal
14a
or an appeal of a state habeas where you don’t have
that limited – I know I’m getting really in the weeds
now, but that, that, that burden. The Supreme Court
may answer this question, but I’m willing to get into
it so far, some indication that they’re now starting to
think about maybe getting into this. Because just
think about it, if it is unconstitutional to execute the
mentally retarded, you can’t create a state procedure
that makes it virtually impossible to prove that. It
means it makes the right of the prohibition
meaningless or diminishes it.
REP RICH GOLICK: Mr. Martin, can we
– can we shift to questions, if that’s alright?
JACK MARTIN: Oh yeah. I should have
said, any time anybody wanted to interrupt me,
please, with a question.
REP RICH GOLICK: I don’t like
interrupting, but you did spark a thought, and that
goes to a couple of questions, and I’m sure they’ll be
others. And I’m sure there’ll be others.
JACK MARTIN: I’ll answer that one
first.
REP RICH GOLICK: The first one has to
go to the Florida case that’s pending right now. I
understand Florida’s approach. That’s before the U.S.
Supreme Court. I understand that Florida’s approach
goes to the IQ threshold of 70.
JACK MARTIN: Right.
REP RICH GOLICK: Give or take. I
don’t know if there’s give or take written into their –
[OVERLAY]
15a
JACK MARTIN: There is no give and
take, and that’s the whole question because – go
ahead.
REP RICH GOLICK: I guess the
question is, and I don’t know if it’s – and it’s patently
unfair for me to you know to ask you to look in a
crystal ball for anyone, frankly. Is, is it your sense
from the line of cases that you’ve obviously very
familiar with, I mean, is there a sense that there may
be an opportunity for the court to go ahead and use
that as a vehicle for a more expansive decision on the
greater overhanging issue, or is it more of a narrow
analysis as relates just to the Florida facts? My sense,
given recent history, is that’ll it’ll be a very narrowly
tailored decision, but –
JACK MARTIN: This Supreme Court in
particular is, because of its ideological makeup, tends
to find the most narrow way of ruling on things. Yes,
I’ll briefly tell the committee what what’s before the
Supreme Court. Geor-- Florida, as I said before, is
well established that an IQ of 70 or below is one of the
thresholds for mental retardation. And by the way, I’ll
say this, that’s a significant deficit, 70 or below IQ.
And we’re talking about people who have a significant
deficit in intellectual ability. Two standard deviations
below the mean, it’s significant. So you, but if we took
an IQ test of everybody here, you wouldn't get the
same IQ if you had several different tests. You
wouldn't get the same IQ. I mean IQ is a range, and
what, what the standard rule of a measure of error is
five points. If you got a hundred IQ, your IQ could be
as low as 95, it could be as high as 105. That’s just the
standard error because the tests are not that precise,
and the from time to time you’ll get different scores.
16a
More people, if you’ve got several IQ scores, you’ll get
maybe – in these cases, you’ll get a 66 or a 68 or maybe
a 73, and all those are well within the range of mental
retardation, because five points above 70 could be a
70, five points below could be a 70. But 70 could be as
low as 65 actually. But so –
REP RICH GOLICK: Let me redirect
you back to the question.
JACK MARTIN: But Florida said, you
have to have a 70. If you have one test, one point
above 70 in a test, any test, then that doesn't satisfy
their definition of mental retardation.
[00:25:00]
So, the issue before the Supreme Court
is whether can you create a definition of mental
retardation that is not the standard definition and
create one that basically defeats your mental
retardation claim by improperly defining it. So is so, I
think that goes more to the definition of. It was be as
if a state said, okay, we say mental retardation is 80
or below, before or it’s a lower figure, 60 or below. So,
the Supreme Court is indicating you can’t tinker with
the definition of mental retardation. I think that’s
what they’re saying. Or a better way of putting it,
we’re willing to to we’re willing to decide whether or
not you can tinker with it, because that’s all they said
and I haven't ruled on it. Whereas –
REP
RICH
GOLICK:
One
other
question.
JACK MARTIN: - Whereas this is, we’re
talking more about a burden of proof, which is a
different type of thing.
17a
REP RICH GOLICK: One other
question. This goes to the procedural dynamics of the
burden itself and meeting the burden. My assumption
is—I don’t practice in this area, and I don’t think
anyone in this, obviously is related to the death
penalty, but of course as it relates to the standard –
excuse me, the burden of proof to prove mental
retardation as it’s termed in the code, it goes to any
crime.
JACK MARTIN: Sure.
REP RICH GOLICK: Not just to the
death penalty. It’s just an external standpoint.
There’s been much more attention paid to – as it
relates to administration of the death penalty. That
said, from a procedural standpoint, my assumption is,
this ends up becoming a battle of the experts in court
as to whether or not this individual is mentally
retarded as defined in the code or not. I mean, it’s not
as if the jury is going to be sitting there with the level
of expertise that you know that the experts have, nor
frankly that I think a judge would, even a judge who’s
been around the block a few thousand times and has
tried death penalty cases in the past. I’d be hesitant –
I think most people would – to assign a level of
expertise even to the judge, even if it were the judge
making that decision, which we understand they’re
not, the jury is, from your testimony. If it comes down,
assuming that it comes down to a battle with the
experts, my assumption is—and this is something
that I assume that the prosecutors would want to go
ahead and address as well—if you have even just the
slightest distinction, the slightest disagreement about
one point, I mean just one – one I’m not going to say
minor disagreement because I don’t think there’s
18a
anything minor in that type of analysis. But if you
have even just the slightest disagreement, that, it and
by definition creates reasonable doubt.
JACK MARTIN: Precisely.
REP RICH GOLICK: I mean, unless you
have – I don’t want to be simplistic about this,
certainly, but unless you have two panels of experts,
one on the prosecution side and one on the defense
side both looking at each other, nodding their heads
and just agreeing, yes, we both totally agree on every
single point; unless that occurs, almost by definition
you’re going to have reasonable doubt. Even if it’s on
a secondary—if that’s the right word—
JACK MARTIN: Right
REP RICH GOLICK: as it relates to the
diagnosis of that individual. And again, I would ask
the prosecutors at their time to go ahead and address
that. As a practical matter, is that a fair statement?
JACK MARTIN: Yeah, and let me tell
you why I think that the burden is so bad. Say, you
had five –
REP RICH GOLICK: Can the burden be
met as a practical matter?
JACK MARTIN: Right. Say you had five
psychiatrists or psychologists, four of whom say, “He’s
clearly mentally retarded.” There’s nothing – he’s
treated as mentally, he’s been in special education.
You call in special education teachers who say, “Yes,
he was diagnosed as mentally retarded as a 13-yearold.” You bring all those people in and it’s clear to
everyone on this committee that this person is likely
mentally retarded, and the state comes up with
19a
somebody, or maybe a test that wasn’t properly
administered—and I’ve had this happen—where
what happens is sometimes people trying to help
somebody see their potential and they will given an
IQ test not following the instructions but prompting
the person to give the answers, which is improper
because you’re trying to standardize these things. You
get that one person who gives a sound reasonable,
sound scientific say, “Well, he’s not really retarded.”
Right? So, what you’ve got there is a situation where
all of us here would probably agree he’s mentally
retarded and ought to not be executed under the
constitution of the United States and of this state. But
because they were able to find one person who will say
this, that’s enough to create a reasonable doubt,
right? And that, to me, is gets to the heart of the
problem, because you can always – I mean, we’re all –
I guess I shouldn't be quite this cynical, but we’re all
enough lawyers to know that if you search long and
far enough, you can probably
[00:30:00]
find an expert that will say something.
And if you can find that one expert to say that, and he
says that, or she says that, despite the overwhelming
evidence of mental retardation, going back to – this is
– I’ll tell you how you win these cases. You come in
and you bring in schoolteachers. You bring in not
these therapists, not these people who do the tests
after the fact. You bring in schoolteachers who say,
“Yes, I knew him as an eight-year-old, he couldn't
read and write,” “I knew him as a 10-year-old, he
could never” – a mildly retarded person can probably
read and write up to the grade level of sixth grade.
“He couldn't get past sixth grade.” You bring his
20a
school records, and you see he did okay, sort of was
passed until the sixth grade or the fourth or fifth
grade and he hits the wall and doesn't go any further.
I mean, all of that evidence is there, overwhelming
evidence, and that’s what really tells. And you have
the special ed teacher tell us about helping this
person, all before he was 18. And then, the state may
come up with some person who gives an IQ test.
Maybe it was improperly administered, maybe it
wasn’t. I’m not going to get into that. It says, “Okay,
we got a 76”—one point too high—and they say, okay,
that’s a – that’s a – that’s a reasonable doubt enough.
I mean, that’s what’s the problem with these cases.
And by the way, it’s not perfectly accurate, but what
we’re talking about—and these are a lot of
euphemisms—a mildly retarded person is operating
pretty much like a someone in the sixth grade, a 12year-old, a 10, 11, 12-year-old, and we don’t execute
12-year-olds. We shouldn't execute mentally retarded
people.
REP RICH GOLICK: Let me ask you one
other follow up question, and it’s also a question – a
practical consideration but in another area. If
hypothetically the burden were to be changed,
wouldn't we see as a practical matter a floodgate of
litigation coming from individuals who had been
convicted under the old approach – the older
approach, the previous approach, who seek – would be
seeking relief under any new approaches, a practical
and administrative matter for our courts? It’s – I’m
presuming that we would see a ton of litigation come
forward. Is that a legitimate fear or not?
[OVERLAY]
JACK MARTIN: I knew that would be
21a
the argument, the argument that the prosecution
would probably make, and this is the truth.
[OVERLAY]
REP RICH GOLICK: [PH] Well, I’m me.
JACK MARTIN: Okay, you. Yeah. And
it’s always a fear, it’s the truth. I’ll give you two
responses. One is—and we can provide this to the
committee—there are – is a handful or less of the
number of people, approximately 100 people on death
row in Georgia, who have anywhere close to a
legitimate mental retardation thing. For example,
someone who actually raised it during trial and lost,
right, under the standard of beyond a reasonable
doubt. Those would be the handful of people that even
could make an arguable claim. There are already
people – there’s some people already in the – on death
row who are awaiting what I call the Fleming
hearing, which is one of people who actually were
convicted before ’88 who still haven't had a hearing on
it, who under current law have the preponderance of
the evidence. So, those people, we don’t even worry
about those people. So, those are the people who
probably have the most legitimate. That’s one answer.
The one answer, yes, there might be a few, not a flood.
REP RICH GOLICK: But we’re – but
we’re not just talking about individuals involved in
capital cases, we’re talking about anybody who would
have sought to assert that in any criminal case.
JACK MARTIN: Well no, I don’t think
so, because the prohibition only applies to capital
cases. I’m not, we’re not alleging that the – that the
standard of proof in a normal felony case for whether
you get mental health treatment, which is all that’s –
22a
.
REP RICH GOLICK: The burden for
meeting mental retardation.
JACK MARTIN: That has to be proved
beyond all reasonable doubt. So what? We have no,
no, no fight, no dog in that fight. I’ll mention one other
thing, and this – you remember Gideon versus
Wainwright, there was the famous case in which the
United States Supreme Court held about Florida that
they had to give right to counsel. And the attorney
general argued in that case about the right to counsel.
He said, well, you know, if you demand right to
counsel, then they’ll be a floodgate of people
complaining about the fact they didn’t have counsel.
That’s a more real problem. And the response by the
Supreme Court was—I forget which justice this is—
so, what you’re saying is that there are people now in
jail in Florida who are there unconstitutionally
because they didn’t have a lawyer. That’s what you’re
saying, and we should just forget about that. If there
are a few people—a few—relatively few people that
deserve
[00:35:00]
a second bite at this because of the
onerous standard of beyond reasonable doubt, and we
establish a Fleming type hearing, which is what it
would be, you would have a new trial solely on that
issue, not on guilt/innocence. You’re going to go to jail
for life at the minimum, but solely on that issue. Then
so be it. That ought to be what we ought to do. If it’s
unconstitutional to execute under the Georgia
constitution, the United States constitution, not to
execute a mentally retarded person and they didn’t
23a
get a fair hearing on that at their trial, then we
shouldn't be worried that those people can get back
into court and we can correct that error. Just like
what happened in Florida, we shouldn't be worried
about people who were unconstitutionally convicted
having a second shot. So – and I can give the
committee names of the precise number of people, and
I’ve been assured—I don’t have it with me today—it’s
a handful, maybe four or five that would be likely
making that claim. So, I think the floodgate argument
has two problems. One, it’s not true, and two, it’s the
right thing to do to give those people another shot.
REP RICH GOLICK: Look I just need to
flesh that out a little bit more. I mean we’re – in the
conversation that counsel and I had yesterday, we
couldn't – that wouldn't be a – couldn't be confined to
just capital cases, could it?
JILL: Well, the current section that Mr.
Martin is referring to is subsection (j). In subsection
(c)(3) with respect to the verdicts that can be reached
in cases where insanity or mental retardation is, is
located, it says the defendant may be found guilty but
mentally retarded if the jury or court finds beyond a
reasonable doubt that the defendant is guilty of the
crime charged and is mentally retarded. So, the
problem is, the current structure allows the burden of
beyond a reasonable doubt in that sentence to apply
to guilt and to mental retardation. So, obviously,
there is no bill pending, but one way to, if you only
wanted the burden of proof to be beyond a reasonable
doubt on non-death penalty cases, that would also
have to be changed. But the general—and the reason
I say this is because there have been bills before to
change the burden of proof to preponderance, is a
24a
restructuring of that sentence. So, does the beyond a
reasonable doubt always apply to guilt/innocence but
doesn't apply to the mental retardation. Otherwise,
the easiest fix is to say mental retardation, whether
you’re shoplifting or whether you’re committing a
large crime, the proof should be the same.
JACK MARTIN: There would be no big
issue about doing that, by a preponderance of the
evidence regarding people getting mental health
treatment. One proposal we’ve been throwing around
is, is not to tinker with the guilty, but mentally
retarded statute or the guilty but mentally ill statute,
but to provide a provision at the end of the – this is
what the federal law did—at the end of the death
penalty statute which says that in the sentencing
phase of the trial where a death penalty is sought, the
finder of fact finds – if the finder of fact finds by a
preponderance of the evidence that the person is
mentally retarded as defined by the code, then no
death penalty can be imposed. We’ve got specific
language we can give the committee to look at. That’s
one way of doing it. I, I, I don’t – the other way is to
say in (j), at the very end, is to make clear that in that
situation, the burden of proof would be by a
preponderance of evidence. There’s three or four ways
to skin the cat, and all of which we can talk about.
You know if I had my wish list, I would create a
pretrial provision, a pretrial procedure like the
federal courts have. But I guess what I’m saying, and
Jill too, is that I think there’s ways to get there
without creating that problem.
REP RICH GOLICK: I think we need
further discussion on that from how it applies to other
crimes and our ability to section off the death penalty
25a
case or not. I’m presuming it’d be an equal protection
problem, but I don’t want to get bogged down with
that right now. Mr. Pak.
REP B.J. PAK: In capital cases, isn’t
mental retardation to the extent that you have
evidence, can that come in as the – I would imagine
every case would have some testimony from experts,
from schoolteachers about mental retardation in an
effort to at least negate mens rae. Am I right about
that?
JACK MARTIN: No. I mean, very rarely
do you really have a credible case on mental
retardation. Now, you raise all sorts of mental
illnesses sometimes, but not mental retardation.
Mental
[00:40:00]
retardation is a pretty structured
definition, and you’ve got to meet those three
standards pretty clearly. It’s not very – it’s not very –
I don’t know what word flexible in that regard. So,
unless you have an IQ score of 75 or below, which
means 70 or below, you’re wasting your breath.
REP B.J. PAK: Practically speaking,
that evidence always gets presented, right? In cases
when you have – anyone that has an IQ, any one of
the three prongs.
JACK MARTIN: No.
REP B.J. PAK: You wouldn't present
that?
JACK MARTIN: Well, yeah.
REP B.J. PAK:
As a defense lawyer,
26a
really?
JACK MARTIN: The case law with
regards to mens rea on the murder case of malice
aforethought in Georgia is you don’t have to have
much. What – as a defense lawyer in capital cases—
and I’ve tried a bunch of them—where you bring all
that in, is in the sentencing phase, in the mitigation.
Now, sometimes you’ll – what they sometimes call
front loading that, to sort of get it out there so that
the jury will be thinking about it, but I very seldomly
have had a case – . A case – when there’s a serious
question about mens rae, you don’t have a death
penalty case. I mean, a true practical matter, I mean,
it’s a case in which the person killed a person in a
deliberate intentional way in which the question of
mens rae is just not there. Now if the person is
insane—and I’ve had those cases where the person
doesn't know what they’re doing—then that’s an
entirely different subject. But mental retardation –
mentally retarded people are not – know right from
wrong, but they don’t – so they never satisfy that. I
mean, one way of thinking about mental retardation
is, and I’ll finish with, is that a mentally retarded
person knows it’s wrong to steal. A mentally retarded
person knows it’s wrong to hurt somebody or to kill
somebody or to walk against a red light, but they don’t
appreciate in a judgmentally way, the difference
between those crimes.
REP B.J. PAK: Let me let me ask you,
when you, when you, you talked about having to
defend against the crime and also present mitigating
evidence
JACK MARTIN: Right.
27a
REP B.J. PAK: in the trial phase, and
the jury determines, you know, whether somebody is
mentally retarded for the purposes of the death
penalty, right?
JACK MARTIN: Right.
REP B.J. PAK: How do you do that
practically? I’m just asking. Do you send them a
special verdict form or –
JACK MARTIN: Right
.
REP B.J. PAK: what do you do?
JACK MARTIN: Under current Georgia
procedure, you, you yeah, you try the case. If you have
a guilt/innocence, a regular guilt/innocence type of
defense, and then at the same time, you present what
evidence you have of mental retardation, and the jury
is given that as a option on the - and there’s actually
a special instruction that the jury is supposed to be
given under – that’s in the statute, and the jury has
to be given that instruction. And then, the jury comes
back and they say either guilty or – they have three
choices—guilty, guilty but mentally retarded, or not
guilty. And so, they check whichever one they get.
When you get to mens –
REP B.J. PAK: Does the defense carry
the burden to prove beyond a reasonable doubt in that
stage, or does the prosecutor?
JACK MARTIN: Yes— no. You –
REP B.J. PAK: Has there been any
challenges based on that?
JACK MARTIN: Yes, in the Burgess
28a
case, we challenged it, and we lost.
REP B.J. PAK: [INDISCERNIBLE]
JACK MARTIN: And the Supreme Court
just said, “The statute says what it says.” I mean,
there are, as you well know, there are certain
affirmative defenses that the defense carries the
burden on. But maybe I didn’t answer your mens rae
question. The question of mens rae is a – a mentally
retarded person knows it’s wrong to kill. It’s not like
they don’t know that or know what they’re doing. It’s
just they don’t have the same judgment that we have,
the same impulse controls we have, the same
understanding of the enormity of that crime that you
and I would have.
REP B.J. PAK: The concern that I have
is if we were to drop the standard—I don’t, I don’t
know and I don’t –
[OVERLAY]
JACK MARTIN: Sure.
REP B.J. PAK: - try death penalty cases.
The question is, is the burden – changing that burden,
is that going to open the floodgates, so to speak, where
it would pretty much it would eliminate any type of
capital punishment for those who are actually found
guilty but have some type of mental illnesses. I think
that’s a concern, right? Because that’s, that’s what
previous legislature has passed and have been blessed
by the Supreme Court, at least so far.
JACK MARTIN: Right I mean, yeah.
Having done a lot of these cases, you run into mental
retardation in these cases. You run into it, but you
don’t run into it in the majority of these cases. It’s it’s
29a
a – it’s a small minority of these cases, which there’s
a
[00:45:00]
legitimate mental retardation claim.
REP B.J. PAK: That’s, that’s my
question. I mean I’m sure there are, and that’s fine.
The question is, is tinkering with the standard the
best way to isolate those legitimate cases versus
dropping it so low that we’re going to include all these
people who probably don’t have – they may or may
not, I don’t know, but that are not legitimate whatnot.
So, it turns into a battle of experts and the
prosecutors and the state has to spend all this money
disproving or whatever theory – I’m just asking, is
dropping the standard the best way to do that?
JACK MARTIN: We’re only talking
about the standard for mental retardation, not mental
illness generally. Mental illness –
REP B.J. PAK: No, that’s what I’m
talking about.
JACK MARTIN: Mental retardation.
REP B.J. PAK: Yes.
JACK MARTIN: All I can tell you is my
practical experience. You run into this rarely, you do
run into it. I mean, cases have come up and we have
those cases. Jerome Bowden was a classic case. And
and So, yes, it comes up, but – sorry, but – and maybe
I’m missing the point. The felt wisdom of the Georgia
Supreme Court, United States Supreme Court in this
legislature since 1988 has been we shouldn't execute
those people. So, what we need to do is to find a fair
way of determining who those people are. Right now,
30a
we have to say, you have to prove it beyond a
reasonable doubt. We couldn't you know– that’s –
[INDISCERNIBLE] answer, but what you’re – by
doing that, you’re saying, but there are a lot of people
who are likely, more likely than not—you know,
preponderance of the evidence—more likely than not
mentally retarded, we’re going to be executing. And
that given all the other handicaps a mentally retarded
person faces in the in the criminal justice, we believe
it is an unfair burden. It’s not what we intend. If we
truly believe it should be unconstitutional, we should
have a fair procedure, and more likely more likely
than not, is it fair enough?
REP RICH GOLICK: Miss Randall.
MISS RANDALL: Thank you, Mr. Chair.
I have a question. If they were to – if we were to adopt
the pretrial setting, that pretrial would be solely to
determine mental retardation, right?
JACK MARTIN: Yes.
MISS RANDALL: Okay. What other
states do it that way, because I think that’s a good
idea.
JACK MARTIN: I can’t give you a
precise number, but I do know that Arkansas – is that
correct?
SANDY MICHAELS: Yeah.
JACK MARTIN: They do in Arkansas, I
know, and they do it in federal government. I’ve had
that I’ve tried those cases in federal court. I know I
can – I can’t give you a specific answer. I do know that
there are states who do it that way, and I personally
believe that’s the best way of sorting it out. I can
31a
provide the committee with a specific answer to that.
MISS RANDALL: And one follow-up.
Does that current definition of mental retardation,
does it take into consideration IQ at all?
JACK MARTIN: Yes.
MISS RANDALL: Okay, and what is
that here?
JACK
MARTIN:
It’s
subaverage
intellectual ability, I think is what the statute says.
Mental retardation means significantly subaverage,
general intellectual functioning resulting in and
associated with impairments in adaptive behavior
which manifested during the developmental period.
MISS RANDALL: So, we’re not like
Florida, we didn’t give a number.
JACK MARTIN: No, no. There’s no
threshold, and all the case law in Georgia and the
cases all the cases I’ve tried used the standard. The
associations change their names from time to time,
but the standard associations that deal with mental
retardation or intellectual deficiency, and the
American
Psychiatric
Association,
American
Psychological Association all agree on that standard.
I mean, that is the widely accepted definition of
mental retardation, and it’s one that’s used day in and
day out in our schools in designating special
education and everything else. It was it was used
throughout the – not just in the criminal justice
system.
MISS RANDALL: And one last question,
I mean and this is probably a wild scenario, but there
are some parents that won’t even allow their children
32a
to be tested. They’re just, they’re in denial, they don’t
want to accept anything that their child is anything
but normal, and say they were able to avoid that,
whether by homeschooling or moving them from
school to school to keep them from being evaluated.
And say this person has a brush with the law, I mean
one of these serious things, and they have not been
evaluated as mentally retarded. So, you can’t go to a
school or a special education program that can
account for that person being mentally retarded. So,
in that case, how do we – how do we proceed?
JACK MARTIN: Like any criminal case,
you do the best you can. You find teachers, you find
coaches, you find people at church. There’s sometimes
the Department of Family Services has come in, and
you find something somewhere along the line. But
you’re right, that’s a problem. I mean, most people –
MISS RANDALL: And I see it all the
time. I work with a lot of youth, and I try to be really
visible in my schools and I have parents call me, “Oh,
they’re trying to say my child is retarded –
JACK
MARTIN:
Needs
special
education.
MISS RANDALL: - needs special
education”. And they just don’t want to accept that,
even though if you spend any amount of time around
that child, you can see that
[00:50:00]
You know something’s – I’m not clinical,
but something’s different. You know. And so and I’ve
seen parents, I know one in particular, parents that
have moved their child from school to school, and and
33a
they claim that “they’re picking on my child”. And
that’s the way they’re able to do that. And then,
outside of that, I’ve seen them even go to the point of
homeschooling just to keep you know that child from
actually being evaluated and and diagnosed properly.
So, that’s –
JACK MARTIN: That’s just an example
of the type of difficulty that the defense runs into in
these cases of trying to prove mental retardation, and
and to put on top of that a high standard of beyond a
reasonable doubt. Often school records are lost. Often
you can’t find the records. And so, there’s so many
impediments of trying to prove this developmental
period aspect. This to put on top of that a beyond
reasonable doubt standard is just unfair.
MISS RANDALL: And then the pretrial,
if we went to a pretrial situation in dealing with this
prior to the criminal proceedings, would how – how
bad would that be as far as slowing up the whole case
and backlog and all.
JACK MARTIN: It’s just the opposite, I
think, because what happens is that you sort these
cases out early on; is that instead of having to go
through a jury trial in which you have to spend weeks
perhaps selecting a jury, you can get an impartial
judge to look at this early on. And once that’s decided,
you don’t have to have a death penalty trial anymore.
You probably won’t have any trial anymore. And so, I
think it will be a more efficient way. That’s what
happens in the federal is you sort out these cases early
on, find out whether it’s legitimate or not, quite
frankly. The um, That’s my answer. I don’t think it’s
going to be causing any type of more difficult – I mean,
one of the other problems with mental retardation in
34a
the mildly mentally retarded area, even though it's a
significant deficit, is mildly mentally retarded people
used to be called educatable mentally retarded. They
can hold down a job, they can get married. They do
get married. They can get a driver’s license, but they
still have a significant deficit. But you have all those
– so you’re facing all those problems with people not
understanding how mentally retarded people act,
that that burden of proof makes it just impossible.
MISS RANDALL: Thank you.
REP RICH GOLICK: No further
questions. Thank you very much for the presentation.
Let me call on Miss Rita Young with All About
Developmental Disabilities. Miss Young, in the
interest of time, let me ask you to limit your initial
comments to about 10 minutes or so, and then we’ll
open up for Q&A and go from there.
MISS RITA YOUNG: We have a team
that is presenting. I will be brief. You will hear from
me the least.
REP RICH GOLICK: Okay, I just need a
– we do have a a list of folks and I do want to get out
by some semblance of in a day.
MISS RITA YOUNG: Absolutely I
understand, and I um, we will be as concise as
possible, and please feel free to interrupt. I’m Rita
Young, Director of Public Policy for All About
Developmental Disabilities. And thank you,
Chairman Golick, for this opportunity. We
understand that this is an informational hearing, and
so, we’re here today to bring you the science of
developmental, or, excuse me, intellectual disability,
what you all know it as mental retardation. We know
35a
it as intellectual disability. Again, to Mr. Martin’s
point, in the law, it says mental retardation, but as
professionals, the professionally relevant term is
intellectual disability. So, that’s what you’ll hear us
say, and we will explain that in just a little bit. To
your point, Chairman Golick, we understand that this
is informational only, that we don’t have a bill yet. We
do – I distributed just a brief handout that I hope you
all received. We are interested in a bill, and we’re
interested in changing the burden of proof. We’re
interested in changing the burden of proof from
beyond a reasonable doubt to with a preponderance of
evidence so that we can come in line with the rest of
the country is practicing, and specifically our
southern states. Mr. Martin went through sort of a
historical background, so I won’t do that in the
essence of time. But I will tell you, on the handout
that I’ve distributed, if you look to our southern
states—South Carolina, Alabama, Texas and
Virginia—they bear the burden of proof with a
preponderance of evidence. So, again, we just want
Georgia to come in line with what the rest of our
southern states are doing. In the work that we do at
AADD, we not only focus on justice in developmental
disabilities,
[00:55:00]
but we focus on things like postsecondary education, unlocking the waiting list for
individuals to receive funding so they can live in their
communities rather than in institutions. We have
leadership graduates that are state-wide that are
interested in justice issues. We realize that
individuals with intellectual disability fall through
the cracks every day when they encounter the justice
36a
system. I’m a parent of two sons who have autism and
intellectual disability. This terrifies me because of the
lack of understanding that we have with individuals
who have intellectual disability, what you all know it
as mental retardation. So, what we wanted to do and
is just to be very transparent with you in the mission
of our organization all about developmental
disabilities. We’re not here to abolish a death penalty.
We’re not here to change the definition of mental
retardation to somehow broaden its scope so that
other conditions that have nothing to do with the pure
mental retardation or intellectual disability are
covered. We also believe that people should be held
accountable for their crimes, and that we are not we
will not be seeking any type of retroactivity if
legislation is again enacted or pursued. We wanted
again to focus on the science of intellectual disability,
what is mental retardation and ID, and then just tell
you a little bit about some of the legal aspects of
changing this standard of proof. And then, just take
your questions. So, with that, I would like to introduce
Stacey Ramirez from the Center for Leadership in
Disability. She’s going to really hone in on again what
is mental retardation/intellectual disability. We also
have, as supporting presenters, for you all to ask
questions, Dr. Dan Crimmins who works with Stacey.
He’s here, Dr. Crimmins. If you all have questions
that are of medical in nature, or you want to ask some
more you know significant in-depth questions. We
also have Dr. Roy Sanders, who is formerly from the
Marcus Institute, now is in private practice as a
psychiatrist. So, if you would like to know about the
assessments in depth, they are here to answer your
questions. Stacey.
37a
STACEY RAMIREZ: Hi. How are you all
today? It’s an honor to be here to talk with you. So,
my part of the team is to talk about the definition of
intellectual disabilities, mental retardation that’s
been used, even closer, it’s been used here quite often.
So, I wanted us to give ourselves some time to really
understand what it is. We are not talking mental
health. And I am also a parent of three boys. My
middle son has autism. When given that diagnosis of
autism, I didn’t understand that there was a
difference between mental health and an intellectual
disability. I had to learn, and I think that that’s
common in the general public. So, I’d like to give us
some time to truly understand what that definition is.
So, what is an intellectual disability? It’s a significant
limitation in intellectual functioning. So, someone
earlier asked, does that mean IQ? Yes. Or, adaptive
skills. Example of my son, in the morning, to get out
of bed and to get into the car and to go to school, he
has a checklist that he goes through, adaptive skills.
His skills don’t help him to just get up, brush your
teeth, take a shower, all those things that we do every
day. There’s adaptive skills, and there need some
supports there. So, that’s what we’re talking about
with intellectual ability. So, significant limitations in
intellectual functioning and adaptive functioning,
and it’s onset during the developmental period. If
you’re in a medical field, that’s 18; in service systems,
that’s 21. It’s a continuum. It can be significant, mild,
moderate. There’s no people that are identical, even
with the same diagnosis. They are not going to be
identical. Strengths co-occur and there are level of
impairment that again, that are mild to profound. The
other thing that’s important to understand is it is
diagnosed by a professional. That in court, I have just
38a
learned that it is the jury—thank you, Rita—the jury
that actually decides if this case, in this case if there
is a person that has an intellectual disability. My son,
others that get this diagnosis are diagnosed by a
professional, by a psychiatrist, by a developmental
pediatrician, by a psychologist. So, I wanted to talk a
little bit about what it means that that intellectual
functioning is a perceptional reasoning.
[01:00:00]
It’s a working memory processing speed
and verbal comprehension. So, that’s the intellectual.
The adaptive skills are those that are conceptual,
practical or social skills accepted by a person’s age
peers. It can be cultural, and that’s very important in
our conversation. And it can also be community
environment. So what I’ve often been asked what
causes and can it be cured? So, what causes
intellectual disability? Is there is no one cause. There
are risk factors that can be by medical, social,
behavioral, educational. It’s a time of exposure to
those factors and it can be prenatal, perinatal or
postnatal. Can it be cured? We’re going to keep it a
secret from my daddy, but no. Intellectual disability
is a lifelong condition. Limitations and functioning
can be minimized through educational intervention,
environment conditions and supports, the supports
and services that the state offers. I want to give you
time to ask questions, and let’s have a conversation
about do we, in this room, truly understand the
definition of intellectual disability. And as Rita said,
we have supporting experts that can help us as a, as
a full committee understand.
REP RICH GOLICK: I see no questions.
Do you have any? Mr. Pak?
39a
REP B.J. PAK: This may be an unfair
question, but I’m, I’m trying to get an understanding
of kind of how it works in a trial setting. Is the science
developed enough to be able to say and opine that
beyond a reasonable doubt that this person suffers
from a legal term “mental retardation/intellectual
disability”?
STACEY RAMIREZ: With the science,
I’d love Doctor Sanders to support that. Do you have
a microphone?
DR. ROY SANDERS: I’m Dr. Roy
Sanders and I am a psychiatrist, but I’m also trained
in pediatrics [INDISCERNIBLE]. I’m Dr. Roy
Sanders. I’m also a – I am a psychiatrist. I’m trained
in child and adolescent psychiatry, and adult
psychiatry, as well as addiction psychiatry. I have
training in pediatrics and neurology and have a
medical degree. My whole life has been spent taking
care of people with intellectual disabilities and
developmental disabilities. Could you reframe your
question for me one more time?
REP B.J. PAK: Certainly. Is the – in
your field, is their consensus that we could say that to
a reasonable certainty or beyond a reasonable doubt
that when you could diagnose someone and go
through some tests and say, “This person – can you
say beyond reasonable doubt suffers from mental
retardation as it’s defined in the law.”
DR. ROY SANDERS: The issue is that
you can’t – in medicine, we don’t have anything
beyond a reasonable doubt. I mean, that’s the general
consensus –
[OVERLAY]
40a
REP B.J. PAK: What is the strongest
kind of conclusion you could reach?
DR.
ROY
SANDERS:
preponderance of scientific evidence.
The
REP B.J. PAK: Okay.
DR. ROY SANDERS: And that would be
based on objective evidence and based on exam and
evaluation over time.
REP B.J. PAK: That’s what I wanted to
know.
REP RICH GOLICK: I see no further
questions. I appreciate your time and your input. We,
we have your materials that you dropped off. Oop, Mr.
Coomer.
REP CHRISTIAN COOMER: I just want
to follow up on that. In court, I’ve sometimes heard
experts refer to something being to a degree of – a
reasonable degree of medical certainly or term words
to that effect. Can you explain the difference between
that and what you just described as a medical
preponderance?
STACEY RAMIREZ: Yeah, it’s probably
more semantics than anything else. Medicine is, in
general, a science, and we’re always doing evaluations
and experiments in terms of trying to figure out what
we do and how we go and what happens with that.
And so, a degree of medical certainly and
preponderance of science generally are the same
thing, unless you have a quack that’s practicing
somewhere who doesn't believe in science. But you
know he may have lots of medical certainly but no
science behind it. But you want to have a doctor or
41a
MD who has the scientific certainty or reasonable
scientific certainty or preponderance of scientific
evidence in addition to the medical certainly, or
reasonable medical certainly. But again, none of that
is ever absolute because in science, as in medicine,
there’s always that question
[01:05:00]
that’s hidden back there in the
background. And like the presenter was talking about
before, you know just in like the chairman was talking
about, that just that you know general question
brings into question a reasonable doubt.
REP CHRISTIAN COOMER: Well, Mr.
Chairman, while it’s semantic, I guess it’s all you
know– the difference between a reasonable doubt and
the preponderance of the evidence is also semantic to
a sense, but we have to conceptualize these ideas with
the words that we use. So, I want to understand, is
there a difference between a reasonable degree of
medical certainly and a preponderance of scientific
evidence, because it may be that the better term to
use in the statute is a scientific-based term, if that’s
what we’re trying to get to. But I don’t want to use a
term that is, as we’ve already heard, mental
retardation and is no longer the term of art in the
field. So, we don’t want to get hung up on a term of
art that may change over time. We have pretty good
consistency with what a reasonable doubt means over
hundreds of years. That’s why I asked the question,
because if there’s a difference in those, if it’s a
changing term, then obviously, we don’t want to use a
changing term in our statute. We may be stuck with
legal terminology that doesn't sound exactly like
scientific terminology. I’m trying to figure out what
42a
would be best to use.
REP RICH GOLICK: I mean, just
speaking for myself, I think we do better to have a
consistency in our terminology as long as we’ve got a
very clear idea as to what that actually means. It
sounds to me like we’ve got more certainty in some
language that currently exists that may not be the
most modern professionally accepted language, but
for purposes of the statute and for purposes of the
burden, which is the narrow issue we’re discussing,
we have some level of predictability with that.
Whereas, if I’m understanding this correctly, we may
have actually less certainly if we were to go with some
scientific terminology that doesn't have the precedent
that the current terminology in the code does have.
That would be a real concern to me to the future.
Anything can be discussed. Certainly, I just – you
know we’re stepping carefully and with a greater
sense of caution. But it’s a very fair point, very fair
point.
TIM SAVIELLO: Chairman, if I may?
FEMALE 6: This is Tim Saviello.
TIM SAVIELLO: I’m next up, and I can
actually shed a little light.
REP RICH GOLICK: Let me ask you –
I’m going to ask you to please be brief because we do
have other speakers.
TIM SAVIELLO: Yes, sir, I understand.
REP RICH GOLICK: Thank you.
TIM SAVIELLO: To answer that point,
what you’re concerned about is the scientific
definition as to what a reasonable degree of medical
43a
certainty, scientific certainty, that sort of thing. And
I think we should all back up for a moment and
establish some terms so we’re clear. The legal
evidentiary standard of “beyond a reasonable doubt”
or to a “preponderance of clear and convincing
evidence” is the standard the trier of fact has to reach
in order to decide that a fact has been proven
sufficiently. So, in this context, the burden of proving
mental retardation under the statute and in virtually
every state that deals with this issue, everybody
places the burden on the defendant to prove mental
retardation. The standard is what is at issue here.
Every other state that does this either does it to
preponderance, which is the vast majority, and only
four other states do it to “clear and convincing” which
is a slightly higher burden, Georgia being the only
state that has the standard of proof being “beyond a
reasonable doubt.” But everybody agrees the burden
is on the defendant. And those are legal evidentiary
terms. The trier of fact then, when considering the
evidence that’s brought forward in order to reach a
conclusion, has the fact been proven, considers
testimony from experts. And the experts in the
scientific field often count to their opinion, which is
what they’re giving, their expert opinion in terms of
degree of reasonable scientific certainty. So, that’s
where the trier of fact, the judge or the jury,
depending on the jurisdiction and how procedurally it
works out, to determine. They consider testimony.
“I’ve reached a reasonable degree of scientific
certainty this person is mentally retarded.” Trier of
fact still has to determine whether that, coupled with
everything
else,
proves
to
the
standard
preponderance, clear and convincing, or beyond
reasonable doubt. Is that clarified? Okay.
44a
REP CHRISTIAN COOMER: What I
was getting at is, if there are ways to make it easier
for a jury to make the determination, because if
they’re essentially having to go into the jury room and
check off a box, you know, as a litigator, you want the
words on that box to match the words that they heard
the witness say.
TIM SAVIELLO: Absolutely.
REP CHRISTIAN COOMER: So, if you
can – I’m just kind of thinking sort of maybe the next
step down, is there a way to get the right scientific
language into code to help juries out? And there may
not be a way, and I’m fine with that being a result. I’m
just asking the question.
TIM SAVIELLO: Well, I will say that in
every other issue that I’ve come across where
scientific testimony is considered for the trier of fact
to use in
[01:10:00]
considering whether the standard of
proof has been met to prove a fact, scientific language
doesn't make it into their consideration, doesn't make
it into the jury instruction. The jury or the fact finder
is instructed, “You must find a preponderance of the
evidence to clear and convincing or beyond a
reasonable doubt.” So, virtually across the board, the
standard of proof, that language is consistent in all
jurisdictions—federal court, state courts, everywhere.
So, I don’t think that would be a problem should the
committee or should legislature get to writing a
statute. I would imagine it would be in that legal
terminology. And then, within each trial, the judge
will instruct per the usual standard jury instructions
45a
on how to consider scientific testimony.
REP CHRISTIAN COOMER: Thank
you. Okay.
REP RICH GOLICK: Mr. Pak?
REP B.J.
Chairman. Professor?
PAK:
Thank
you,
Mr.
TIM SAVIELLO: Yes.
REP B.J. PAK: I guess my question is,
and we’re not in court, so I know that in court, expert
testimony, regular lay witness testimony are
supposed to be weighed the same. But in actuality, we
know that we prefer the expert. The question is, is
intellectual disability an area where scientists could
never get to a consensus where we, as lawyers, view
it as that burden could never be met type of thing? For
example, if we do DNA, I think most people will say it
has a high confidence rate because of the uniqueness
of it. But something like diagnosing intellectual
disability at a certain level as defined by the legal
standard, by wise legislators, not like me, is that
something that’s impossible to me? I mean, are we
having – are we imposing a burden that’s just
impossible to meet? We could impose a burden that
said for a 100 percent accurate that you suffer from a
mental – but we don’t do that. We know that, right?
The question is, is this one of those areas that you’re
ever going to get a consensus to a level to go beyond a
kind of a reasonable doubt to conclude that this
person actually suffers a mental retardation as
defined by state law?
TIM SAVIELLO: Well, the – historically,
the standard “beyond a reasonable doubt” is the
46a
highest standard of proof in any legal system in the
world, right? So, in the United States, historically, we
have reserved that for proving guilt in a crime
because as Mr. Martins mentioned earlier in his
presentation, we place an incredibly high value on
liberty in our society. And if we as a society are going
to take somebody’s liberty, that’s the standard we
have determined to be the highest. Theoretically, we
could craft the one that’s closer to 100 percent. We
could demand actual certainty, but we don’t do that
as a society. So, backing up then to the question of
whether intellectual disability could be proven
beyond a reasonable doubt, certainly it could. I mean,
any trier of fact, whether that’s a judge or a jury, could
decide for themselves that it’s been proven in this
particular case. But interestingly, when you look at
the standard of proof, when the standard of proof
changes, what you’re really doing is reallocating the
risk of a misinterpretation or a risk of an erroneous
finding. So, if you break it 50/50, so preponderance of
the evidence is essentially 51 percent versus 49, if you
try to quantify that, then the burden of risk is roughly
equally shared. The burden is on the defendant, the
standard is preponderance. They have to prove
slightly more. So, they bear a little bit more risk. But
with “beyond a reasonable doubt,” they bear a
substantially much greater portion of the risk of an
erroneous finding. That is, if the trier of fact makes a
mistakes and finds that the person doesn't have an
intellectual disability, and then they get executed in
violation of the Eighth Amendment. And so, by
adjusting the standard of proof, that’s really what
we’re talking about legally. In the academic world,
what we look for is standard of proof, that we talk
about risk allocation. So, the question becomes, is that
47a
appropriate risk allocation? And I’ll keep my
comments brief and to the point. I’m not going to
reiterate and go over a lot of what Mr. Martin said,
and historically he –
REP RICH GOLICK: I really need to just
get response to Mr. Pak, and then we do have to move
on.
TIM SAVIELLO: Is that sufficient?
REP RICH GOLICK: Yeah.
TIM SAVIELLO: I think we understood.
So, I’ll just keep it brief, but in terms of academically
looking at standard of proof in Georgia compared to
where the rest of the nation is, the simple fact of the
matter is when Georgia started out in 1987 with this
statute, they were an outlier on the front end. Right?
They gave statutory protection to folks with mental
retardation from execution before the United States
Supreme Court did. The federal court was actually a
few years in front of Georgia, but otherwise it was the
first in the nation to give that statutory protection.
Fleming versus Zant came along shortly thereafter
and gave constitutional protection under the state
constitution followed by Atkins versus Virginia in
2002, 13 years later. What I was asked to do was to,
to look at the history and look at how legal analysis is
done by the Supreme Court in particular, to predict,
if I could, how this will play for our Georgia if the
statute isn’t changed. And the short answer is, the
way United States Supreme Court looks at these
issues is through the eyes of evolving standards of
decency. That’s the conceptual term that they use,
and what they do is they look historically at the issue
and how the states address it. And so, Atkins versus
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Virginia came about in 2002. As Mr. Martin pointed
out, they first considered this issue, mental
retardation,
[01:15:00]
does it violate the Eighth Amendment to
execute someone who’s mentally retarded 13 years
previously and concluded that there was not national
consensus around that point. So, in Penry, they didn’t
find that it violated the Eighth Amendment. In that
ensuing 13 years, there was significant movement
across the nation all in the same direction, that as a
people, we decided that it was unconstitutional, we
shouldn't be executing mentally retarded people. The
court looks to legislature and they look at statutes
that are passed. They look at the degree they’re
passed, that it’s what majority. They look at the
language and they look for trends. So, in looking at
Georgia statute, should this case come to the Supreme
Court on this particular issue, that is the standard of
proof under Georgia that the defendant must prove
beyond a reasonable doubt they’re mentally retarded
in order to get protection of the Eighth Amendment
under Atkins and under Fleming. Should that case
get to the Supreme Court procedurally in a way that
they can look at it—and I don’t think it has yet. So far,
it’s come through federal and state habeas issues,
where there are procedural bars. So, they haven't had
the issue directly in front of them. I think they would
look at look at exactly where the nation is. And has
been pointed out, Georgia is now—I’m not going to use
Mr. Martin’s “at the back of the bus” but—Georgia
has remained static while the rest of the nation has
moved in a particular direction. So, of the rest of the
states that deal with this issue statutorily, all but
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four, everyone places the burden on the defendant,
but the standard, all but four of those states have a
standard of preponderance of evidence. Four other
states have “clear and convincing” as the standard.
And only Georgia has the much higher and the
highest standard “beyond a reasonable doubt.” And
so, I think clearly under the Supreme Court’s analysis
and the procedure they use when dealing with these
issues, there is a trend across the nation towards
preponderance of the doubt. The burden will continue
to be with the defendant. That’s not going to change,
but the trend clearly has been towards
preponderance. And I think when the Supreme Court
gets this issue, should the statute not be changed on
a direct appeal case, that is where someone has
litigated a decision pretrial, loses, gets the death
sentence, raises the issue on appeal and it makes its
way to the Supreme Court clear of any procedural
problems that come through habeas litigation, then I
think they will look at it with that eye.
REP RICH GOLICK: We do need to
move on. Appreciate the historical context and thank
you for appearing this morning. We call Dawn Alford,
the Georgia Council on Developmental Disabilities.
Thank you, Deborah.
DAWN ALFORD: Good morning.
REP RICH GOLICK: Good morning,
Miss Alford, I apologize. Let me ask you to confine
yourself for about 10 minutes so that we can afford
time for Q&A.
DAWN ALFORD: Absolutely.
REP RICH GOLICK: Thank you.
50a
DAWN ALFORD: Good morning, Mr.
Chairman and fellow committee members. I thank
you for giving me the opportunity to speak. My name
is Dawn Alford and I am here today to represent the
Georgia Council on Developmental Disabilities where
I am the planning and policy development specialist.
The mission of the Georgia Council on Developmental
Disabilities is to bring about social and policy changes
that promote opportunities for people with
developmental disabilities and their families, to live,
learn, work, play and worship in Georgia
communities. We have a small staff that carry out the
activities of our everyday work, and we are governed
by a 27-member board appointed by the governor, and
it’s comprised of 60 percent individuals with
developmental disabilities and their families. Our
focus is on developmental disabilities and family. Our
focus is on individuals with developmental
disabilities and family members, but we also
collaborate with our friends and allies in the broader
disability community. We value people with
developmental disabilities with their own gifts and
talents, and as independent contributors to a
collaborative community. I’m here today to speak to
you about why we at the Georgia Council on
Developmental Disabilities believe that the standard
of proof for intellectual disability in death penalty
cases needs to change. Now I’m sure by now that
you’ve noticed that I, myself, have a disability—a
significant one that is visible—but not an intellectual
disability. So, the standard of proof for intellectual
disability in a death penalty case would not apply to
me, nor should it. So then, you may be asking what do
I mean by “intellectual disability”?
51a
[01:20:00]
The
American
Association
on
Intellectual and Developmental Disabilities, widely
accepted as the leading authority on the definition of
intellectual disability, says that intellectual disability
is characterized by significant limitations on both
intellectual functioning and adaptive behavior.
Intellectual functioning or intelligence refers to the
general mental capacity for learning, reasoning,
problem solving and so on. Adaptive behavior can
refer to conceptual skills, for example language and
literacy, money, time, social skills (for example,
interpersonal skills, personal care, use of a telephone
and safety), and also – I apologize. So for, so, clearly,
you can see that people with intellectual disabilities
are a much smaller segment, of a discreet segment of
the greater population of people with disabilities as a
whole. Let me also take the time to clarify that also
when I use the term “intellectual disability,” this is
the more widely accepted term, but it has replaced
“mental retardation.” And as many of the folks have
testified today, that is still used in the Georgia
criminal code. So, that is what you will hear me say
today is “mental retardation.” And it is for smaller
segment of people with disabilities, that is to say
people with intellectual disabilities, aka mental
retardation, for which I am here before you today. In
Georgia, a defendant is required to prove an
intellectual disability beyond a reasonable doubt in
order to be exempted from the death penalty. This is
an incredibly high burden of proof, higher than other
state in the union. That is to say, no other state
requires this higher – highest burden of proof beyond
a reasonable doubt for establishing the existence of
52a
intellectual disability. This standard of proof puts
defendants with intellectual disabilities at extreme
risk for execution. Most other states use the standard
of proof “preponderance of evidence.” Given this, we
respectfully request that Georgia change the
standard of proof for intellectual disability from
“beyond a reasonable doubt” to “preponderance of
evidence.” And here is just a suggestion on the
language change in the official Georgia code. The
official Georgia code Section 17-10-45: “If in the
sentencing phase of any case in which the death
penalty is sought which commences on or after July
1, 2014, the finder of fact finds by a preponderance of
the evidence that the defendant has mental
retardation as defined in the official Georgia code
Section 17-7-131(a)(3). The death penalty shall not be
imposed, and the court shall sentence the defendant
in accordance with the verdict and the law.” At this
this time, I’d like to thank you, Mr. Chairman, and
the entire committee for hearing my comments. I’d be
happy to entertain any questions that you all might
have for me, but also please be aware that you all can
contact myself or anyone at the Georgia Council on
Developmental Disabilities at any time. We’d be
happy to work with you on this issue to help you out
in any way that we can. Thank you.
REP RICH GOLICK: Thank you. Thank
you, Miss Alford, for your testimony this morning.
There are no questions, but we want to just thank you
for your service on the Council. It is much appreciated
and we don’t take it for granted.
DAWN ALFORD: Thank you.
REP RICH GOLICK: Thank you. I’ll call
Mary Boyert with the Roman Catholic Archdiocese of
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Atlanta, located, headquartered in Smyrna, Georgia.
Just saying. Mary, did you want to come up?
[01:25:00]
MARY BOYERT: Thank you very much,
Chairman Golick, and members of the committee. We
really appreciate the opportunity to speak before you
to give our position on this matter; and we really
appreciate your taking the time to look at it in the off
time when you don’t have to do it. And we really think
that speaks highly of you for looking at such a serious
matter. And in the interesting of full disclosure, as
you said, I represent the Archdiocese of Atlanta as
their Respect Life director. And, of course, the
Catholic Church takes an interest in a lot of these
matters. We have ministries for persons with
disability and so on. So, we take a strong interest in
this. And in the interest of full disclosure, we would
be happy to come before you when you decide to look
at ending the death penalty in Georgia, but we
understand that that’s not what you’re doing here
today. So but – but we’ll be there when that time
comes. But we are used to taking a little bit of the
apple, bit by bit. But I was appreciative of the
opportunity to hear how this all came about, because
I wondered why Georgia passed that at that time, and
it was very helpful to hear the historical perspective.
And from a personal standpoint, I have no one in my
family with a developmental disability, but I have had
children that have had to be diagnosed with certain
other kinds of conditions, namely attention deficit
disorder and ADHD, and I know from that experience
that these things are very difficult to prove, and it’s
not like you can take a blood test with diabetes or
something. So, we appreciate the opportunity to share
54a
with you that we do feel that because the church is so
concerned about those who may be executed, and our
concern is that they be given full dignity and they be
respected, that we make every effort that we can, as
a state, to make sure that we don’t put anyone to
death, especially if they have the possibility of having
such a disability that in legal terms is mental
retardation. In the U.S. Supreme Court decision, they
said that the purpose of the death penalty is for
deterrence, so for retribution. And, in fact, if someone
has mental retardation, then that purpose for the
death penalty for them will not suffice, because it’s
not going to help for them to understand that they
could be deterred or have retribution. So, we feel that
it would be better to change the law. And you know,
we don’t have the exact wording, but we would be
happy to walk through this process and look for
supporting evidence that would make it easier for the
state to put into place something that would again
make it less burdensome and make sure that the
person who has these conditions are not executed
maybe by mistake or that the state really didn’t mean
for that to happen. As the Supreme Court said in its
decision, “Mentally retarded defendants face a very
special risk of wrongful executions.” And so, we see
persons with mental retardation or development
disability as especially vulnerable, and we ask you to
consider them and make sure that you do everything
you can to protect them. And I’d be happy to answer
any questions, but I certainly don’t have legal or
psychological expertise in this matter.
REP RICH GOLICK: We appreciate
that. I don’t see any questions, Miss Boyert, but thank
you very much for taking the time to be here this
55a
morning.
MARY BOYERT: Thank you.
REP RICH GOLICK: We appreciate it.
Call on Miss Melissa Barnes. Miss Barnes, as you’re
coming up, in the interest of time, if you could confine
your comments to about five minutes or so, in case
there are any questions.
MISS MELISSA BARNES: I’m going to
be short and sweet. Alright. I want to just start by
saying having grown up and playing hide and go seek
in this capital, I understand the difficult decisions
that you have to make as an elected official. So, I want
to begin today by thanking you and applauding you
for taking on this difficult decision. As long as I can
remember, my parents have taught my siblings and I
that it is our civic duty to stand up and speak out for
those who cannot always advocate for themselves,
and that’s why I’m here today. During my tenure as
an elementary school teacher, I often participated in
eligibility meetings for special students who were
qualifying for special education under the Individuals
with Disabilities Education Act.
[01:30:00]
During these sessions, a committee
composed of educators, diagnosticians, school
psychologists, administrators and parents would
examine the eligibility requirements outlined within
the law. The Act specified specific standards that
must be met for an intellectual disability diagnosis.
However, the same intellectual disability diagnosis
can often can later be denied by the courts because of
the strict burden of proof set forth in the state of
Georgia. I suspect that many people who support the
56a
current burden of proof would argue that the majority
of individuals with intellectual disabilities know the
difference between right and wrong, and I’m not here
to dispute that argument. However, one of the
common characteristics displayed by individuals with
intellectual disabilities is a deficit in reasoning skills.
In turn, many of these individuals do not have the
foresight to understand the consequences of their
actions. Before I continue, I want to make sure that
I’m not misunderstood. I believe that individuals with
intellectual disabilities should be punished for their
crimes. However, sentencing them to death is not the
answer. As a college professor, one of the first lessons
I teach my future special educators is the importance
of looking at each child individually. This ensures
that teachers do not make assumptions based on a
textbook diagnosis. As the committee continues this
process of examining the burden of proof requirement,
I encourage you to do the same. Don’t set an arbitrary
number drawn in the sand. Instead, establish a
standard and a protocol that allows for rational
decision making by licensed professionals. Allow for
an unbiased pretrial hearing where no knowledge of
the facts of the case can bias the determination of the
defendant having an intellectual disability. Not only
does this save the government money that would be
spent on a capital case, but it also establishes a
procedure that cannot be swayed by evidence in a
trial. Today is the first step of ensuring that the most
vulnerable citizens in Georgia are protected.
Gathering everyone in this room and learning from
each other is essential. However, we can’t stop here.
It is critical that the burden of proof for capital cases
be lowered so individuals with intellectual disabilities
receive the right they have been given under the law.
57a
REP RICH GOLICK: I see no questions.
Thank you for taking the time to be here this
morning. I’ll call on Mr. Curtis, is it [PH] Feese. Am I
saying that correctly? If he’s here—Mr. Curtis Feese?
Okay. Let me call Chuck Spahos on behalf of the
Prosecuting Attorneys Council—Chuck Spahos and
Danny Porter, I guess both on behalf of the PAC.
[INDISCERNIBLE]
CHUCK SPAHOS: Danny, you want to
go first?
DANNY PORTER: Mr. Chairman, first
of all, I’d like to also express my reluctance to use the
term “mental retardation” because a member of my
family suffers from intellectual disability, and and we
have a rule that if any were to use those words in a
pejorative sense, we’re under directions to take direct
action to remedy that. So, I find that term as offensive
as anyone else.
REP RICH GOLICK: It is awkward.
DANNY PORTER: But the law does
describe it. I’m here on behalf of the District
Attorney’s Association of Georgia, and we’re going to
ask Mr. Spahos to give some specifics about other
states, and and we’ll provide that information to the
committee. But I want to first begin by saying that
there is no district attorney who is interested – or no
district attorney in Georgia who is interested in
putting people who suffer from mental retardation to
death. I think our efforts in the past have shown that,
including the Fleming hearings that were held that
Mr. Martin described. There is really no interest in
that, but we have concerns as representatives of the
system as a whole by the passage of this, or by
58a
changing of the standard of proof in this particular
code section. And our caution is to, is to tread
carefully because of the law of unintended
consequences and what we’re concerned about. First
of all, I think members of the committee
[01:35:00]
have to know that in every felony
criminal case in Georgia, there are actually four
possible verdicts. There’s the verdict of guilty. There’s
the verdict of not guilty. There’s the verdict of guilty
but mentally ill; and the verdict of guilty but mentally
retarded. Each of those have consequences, not only
in capital litigation, but in every form of felony
litigation. And I think that’s one thing to keep in mind
as we go forward, that the assurances and the
statements that this will not expand itself out into
other litigation, we think are incorrect. We think that,
in fact, it’s almost inevitable that we’re going to run
into the situation that we ran into with the Fleming
case, which was cases that were already adjudicated,
individuals that were already on death row were
granted hearings. Some of them are still sitting on
death row where hearings haven't been held, and
there had to be additional hearings. Imagine that
opened up to armed robbers, burglars, every other
defendant who might have contemplated offering a
defense of intellectual disability or mental
retardation in any criminal case. The other thing that
we have to be careful of is the comparison between the
different states. As you’ve already heard, Florida
adopted when they went to the preponderance of the
evidence standard, a very bright line test that
determines whether a person is mentally retarded or
not. It’s based on an IQ test. It's based on an
59a
intellectual development or intellectual disability
based on a scientific standard, which was brought up
by this group. Georgia does it completely differently.
We use those intellectual standards as part of the
formula. In other words, jurors who we trust to make
decisions about people’s guilt and innocence, and who
we trust to make decisions about whether people
should live or die, are also asked to make decisions
about whether or not a defendant has met a burden
to prove beyond a reasonable doubt that they suffer
from mental retardation. So, the question is, I heard
the speaker talk about licensed professionals. We
trust some of the most important decisions in the
world to juries under a standard of beyond a
reasonable doubt. And the Georgia system, allowing a
broad spectrum of evidence that includes expert
opinion, includes lay witnesses, includes educational
history, includes work history, includes in the case of
Warren Hill, his military history. All are taken into
account before the fact finder can make that decision
of whether or not they have proven that they suffer
from mental retardation. That’s point number one.
We’re concerned with this system as a whole if we
begin to just surrender to the emotional appeal. The
second thing is, we believe that as a matter of law,
this cannot be limited to death penalty cases. I don’t
believe that a statute can be crafted, I don’t believe
that a statute can be written that could survive an
equal protection claim that would limit this only to
death penalty cases. And therefore, the statement
that there are only 10 people on death row that this
would apply to is, we think, incorrect. You brought up
a point about reasonable doubt and the battle of the
experts, and the question was, doesn't an expert who
says one thing compared to an expert who says
60a
another automatically create reasonable doubt? And
the answer to that question is “no.” We have, we have
experts testify in criminal cases every day all over this
state about a variety of things. We used to have a
traveling expert who used to testify that marijuana
wasn’t really marijuana, it was hemp, and, and that
we were prosecuting people for – we were prosecuting
people for possessing rope basically. Now the
credibility of an expert is just like every other witness.
It can be either good or bad, and the fact finder can
make that decision. So, we want to be careful to say
that, that one expert versus another automatically
creates reasonable doubt, when in fact there are
credible experts and there are experts that are not
worthy of belief; and that’s a standard of proof that we
deal with every day in criminal cases. The other thing
that we’re – and I think all of our discomfort with the
term “mental retardation” today has illustrated the
fact, or one of the facts that we are concerned about
here too, is it’s not mental retardation anymore. It is
not. I think everybody accepts that. But we are
concerned as prosecutors with the expansion of the
definition
[01:40:00]
to include other developmental orders
such as autism or other, or other– we don’t know
where that expansion is going to go, and so, again, we
offer caution regarding cracking open a statute that
has been litigated, that has been upheld all the way
to the United States Supreme Court, has been tested
and tried. I guess, my best word is we offer caution
and we’re prepared to engage in any discussions once
a piece of legislation is before us and offer substantive
comments. But that would be – I don’t want to be
61a
characterized at this point that we’re absolutely
against any change. We’re offering some cautions as
a group, and I’m going to turn it over to Mr. Spahos
for some numbers and details to give to the
committee.
CHUCK SPAHOS: Thank you, Mr.
Chairman, members of the committee. Let me just
caution the committee or ask the committee to think
of it in another light. There’s a tendency to
concentrate on the single aspect of the standard. And
what I’ll ask you to do is consider, just as the Georgia
Supreme Court and the federal courts have, is
Georgia’s process--the concept and the process. And if
I could, I’ll quote the most recent federal ruling in the
Hill case. We discussed the Georgia process as to
mental retardation and the death penalty, and when
evaluated as a whole, it contains substantial
procedural protections. The Georgia statute allows
the defendant to raise the issue of mental retardation
in the guilt phase of a criminal trial and permits a
jury to find the defendant guilty but mentally
retarded. There’s two significant procedural
protections here too. The jury does not hear the
criminal history, which would be allowed in the later
penalty phase at the time they’re making this
consideration. And also, the jury is not informed that
a guilty but mentally retarded verdict would preclude
the death penalty. So, there’s several aspects of
Georgia’s approach to this that are not present in
other states like Florida and North Carolina that
concentrate much more on a single number. Georgia
law guarantees the defendant the right not to be
sentenced to death except by unanimous verdict with
no judicial override possible. A full and fair trial on
62a
his mental retardation claim as part of the guilt phase
to present his own experts and all other relevant
evidence to cross examine and impeach the state’s
experts and witnesses, and to have a neutral finder of
fact, the jury, decide this issue. It even moves earlier
in the process in that you can question the prospective
jurors based related to their basis of information and
bias, or potential bias on mental retardation. All of
that is present in our process, and I ask you to
consider the process that has been several times
appealed compared to other processes, and that we
not concentrate just on that. So, we’ll yield to
questions. Again, our position is here. We do have a
concern when we talk about changing something. We
always have the concern about whether it is
procedural or substantive, and whether or not it has
a retroactive effect. I think we all agree—and Mr.
Martin made the point earlier—when this standard
was created, it had a retroactive effect. So, we are
confident that a changing in the standard would have
a retroactive effect because this is most likely a
substantive portion of the law that would be changed.
REP RICH GOLICK: Let’s just follow up
on that, since that’s the last statement that you made,
and the question of – and this is the practical matter
of the question that I asked earlier of Mr. Martin,
that, I mean, let’s say the standard did change, my
assumption is that it would
lead to increased litigation, which is not
a reason to not do something, but there is, there is a
practical consideration and we have to consider the
practical considerations of future litigation that
would come if we did change the standard. Others
convicted who did not have that opportunity under a
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potentially different burden in proving retardation as
termed in the statue. And I – I don’t think we could
limit that to the death penalty. I mean I think more
conversation with counsel is inevitable on that issue.
The question then becomes, alright, just from a
substantive, just from a procedural standpoint, a
numbers standpoint, you’d have to get into the
number of individuals who are convicted who try to
assert mental retardation during the guilt/innocence
phase on any on any crime, let alone the death
penalty, did not meet the burden of “beyond
reasonable doubt.”
[01:45:00]
If we change the burden, and, well, we
want to take advantage of that new burden, not to say
that they would be able to necessarily go ahead and
prevail, but that doesn't prevent the litigation. The
question that I’d have from a pure empirical
standpoint is, how many cases are we talking about
where the individual did assert that during
guilt/innocence, was not successful and then would
come back. Now I realized there’s some crystal balling
that goes along with that, but we don’t have a sense
empirically what that, what that body of case
numbers-wise would be.
CHUCK SPAHOS: I agree with you, but
I’m going to ask –
[OVERLAY]
REP RICH GOLICK: - make sense on
that?
CHUCK SPAHOS: You do make sense,
and what I’m going to ask you to do is expand the
64a
thing to this. We do not believe that it would be
limited to just the individuals that raised it and were
not successful. We believe it would also be a new
remedy available to anybody that there was any
evidence of potential mental retardation and that
decided not to raise that issue at the time of trial
because they did not believe, and the counsel did not
believe they could meet the burden. Now that we’ve
changed the burden, they want the second bite of the
apple to raise issues and litigate that aspect of it that
wasn’t litigated before because of the burden. So, I
submit that you could potentially open it up even
when that was not at issue in the first trial.
REP RICH GOLICK: We need to get
more—not for now, but later on—we need to get our
arms around a little bit tighter on the ability to
section off death penalty as opposed to every other
crime. It doesn’t-- it seems to me on the surface that
we would not be able to do that constitutionally, but I
reserve the right to be wrong, and we need to get
educated better on that. On the battle of the experts,
and to Mr. Porter’s point before, I understand that,
you know, there are experts and there are experts, but
I think what we were discussing earlier really went to
the assumption that if you’ve got a particular issue, a
particular matter, I think we’re really presuming the
ultra bona fides of particular experts on the defense
side and on the side of the state clashing, you know.
There’s no quackery in there. They’re bona fide solid
experts, solid as a rock, and they just happen to
disagree on a point. If those, you know let’s say two
and two, those four experts go ahead and have that
legitimate professional disagreement based on what
they believe to be you know the truth, you know, to a
65a
reasonable medical certainty or whatever the
standard is, everybody comes from somewhere, right?
They’re going to have their opinions. If they even
disagree on a minor point—“minor” in heavy, bold
quotes—that’s really what we were talking about, not
the crazy you know hemp you know–
[OVERLAY]
DANNY PORTER: Right, and I use that
as an extreme example, but again, utilizing my
experience, just like Mr. Martin did. I’ve argued these
cases, and in a sense, I can tell you that from my
experience with these cases, a true mental
retardation claim is not usually something that’s a
bone of contention. I mean, we don’t try death penalty
cases, or at least I don’t try death penalty cases.
Where I can look at the empirical evidence, including
the test results and including the witnesses’
testimony and say, “That person even potentially
could be eligible for the defense.” But it’s a I think the
point I’m making is, it doesn't just come down to a –
these cases don’t practically just come down to a
battle of experts. They’re not usually decided in that
way. They’re decided based on the evidence the
Georgia procedure allows in, which is referred to in
the statute as “the other evidence.” That’s where
we’ve talked about – you’ve heard every witness talk
about school records, job history, military history.
Those are the things that I think have the compelling
effect on jurors. I mean, you bring two equally
qualified doctors in and one says “yes” and one says
“no,” I think juries kind of just wash it, to tell you the
truth. I mean, I’ve never seen –
[OVERLAY]
66a
REP RICH GOLICK: And that would be
human nature, I mean, to look at something else.
DANNY PORTER: And I think that’s
where you really – the advantage to the Georgia
procedure is the broad range of evidence that we
currently authorize to be brought into the factfinder’s
decision as opposed to some of the states where it’s
really limited. It’s one thing or another. And I think
Georgia avoids that even with a reasonable doubt
standard, just the way we avoid it in having a
reasonable doubt standard in guilt or innocence. We
have battles of experts and I think juries look at other
factors.
REP RICH GOLICK: Mr. Pak.
REP B.J. PAK: Thank you, Mr.
Chairman. Just to follow up on your point about the
number of cases,
[01:50:00]
wouldn't, wouldn’t those cases be limited
by the amount of time, that passage. Because, I mean,
if you look at it, if you don’t raise it, you get plain error
review, right? So, if you’ve had – there’s no record of
it whatsoever, it’s just going to be like you know plain
error, plain error so dismissed.
DANNY PORTER: At least my opinion
would be that certainly the 114 that we have on death
row all would at least try and raise it. Which …But
it’s hard to say, and that’s why we urge caution as we
move down this path, there is a statute in Georgia
that says that if you don’t raise your raise your
complaint on a habeas complaint within four years of
conviction, that you’ve waived it. But here, we believe
67a
that the legislature, by changing it, will have created
a new substantial right, or a new substantive right
which may start the clock over again. So, I think the
argument could be made that if we were to go in and
this were determined to be a substantive right, that
the argument would be, “I didn’t have that right
before, I couldn't have waived it, I couldn't have let
the time run out on me.” And that –
[OVERLAY]
REP B.J. PAK: But couldn't we – since
this is a statutory creature, couldn't we define it as
procedural?
DANNY PORTER: Well But the problem
is that you may run into the – you run into the same
thing that they ran into in the Fleming case. There
was a statutory remedy. The Supreme Court then
took up the issue on the constitutionality of it, which
then created a constitutional remedy where all those
cases had to go back and be litigated. Even though –
even though the legislature tried to limit it, once you
sort of – I don’t see it as a far leap for the Supreme
Court to say, well, the legislature has changed the
statute, therefore, we find as a matter of evolving
standards of decency, the Georgia Supreme Court, to
say, as a matter of evolving standards of decency that
preponderance of the evidence should apply as a
constitutional matter. It’s not a far jump from one to
the next.
REP B.J. PAK: That’d be pretty hard to
do since they already blessed the higher standard. I
don’t see how that –
[OVERLAY]
68a
DANNY PORTER: I mean, I can only tell
you, I tried a case in – the last –
[OVERLAY]
REP B.J. PAK: But we’re talking
semantics. I guess we’ll look at that. One question
about – Mr. Martin brought an interesting point
about the pretrial procedure in terms of tweaking the
process. What is the Prosecuting Attorneys Council
position on perhaps making that determination,
having that defense available pretrial?
DANNY PORTER: I think at this point,
we’d have to see what the proposal was. I mean, we’re
here to just provide information, and I think until we
have some hard language, it’s hard to –
REP B.J. PAK: Well, let’s just take an
example, since you’re here, how about the federal
system?
DANNY PORTER: The concern that I
have is the same, is that it would be easier to describe
mandating a hearing under the current statute to a
pretrial hearing and determination as a procedural
matter rather than as a substantive right. But that’s
what I see is one advantage to it, there is the – it
requires an additional jury trial just like a special
plea of insanity would require. So, there may not be a
judicial economy argument because you’d essentially
have to have two jury trials.
REP B.J. PAK: Um, okay. I’m just not
familiar with – I guess we could talk offline about that
and educate me on the process. One last thing about
the –
[OVERLAY]
69a
DANNY PORTER: But it would require
you – have to have two – it would seem to me, right
now, the same jury that determines guilt, determines
whether or not the person is mentally retarded under
the standard. The only way you could do it pretrial,
unless you’re just going to have judges do it, unless
you just remove the jury, you’d almost have to have
two juries. It’d have to almost be two separate
proceedings.
REP B.J. PAK: Couldn't the prosecutor
move for a in limine curing to exclude that defense if,
in fact, it can’t produce any evidence to show the
three-pronged definition.
DANNY PORTER: We can’t— we can’t
move – we can’t move to exclude it in the penalty
phase for the death penalty case, because any
evidence of mitigation is admissible in the penalty
phase, and that’s one of the other sort of statements
is that this is not only admissible in Georgia to
determine guilt or innocence, but it is also admissible
in the penalty phase. We can’t exclude it in that. I
don’t believe you can, if the defendant files the
appropriate notice – notices and follows the procedure
or allowing examinations by the state’s expert,
[01:55:00]
I don’t think you can exclude it, because
it has to be weighed by the jury. I don’t think you can
–
REP B.J. PAK: Just in the guilt and –
DANNY PORTER: There’s no threshold,
there’s no sort of you got – in the guilt\innocence
phase, there’s no threshold. Once the notice is filed,
70a
they’re pretty much allowed to put up any evidence
they believe will carry their burden for them.
REP B.J. PAK: One comment and I’m
done, Mr. Chairman. I think that the code revision
committee, Chairman Hill and Representative Andy
Welsh and myself are looking at changing the mental
retardation in the code, except for the criminal code,
into intellectual disabilities. You may not know,
there’s a great work going on to try to change that. I
bring that up because you point that out. Thank you.
REP RICH GOLICK: Miss Randall.
MISS RANDALL: I was just trying to get
an idea of what you all are suggesting, because the
you know thought of this opening up a can of worms,
I don’t think that we should even consider that,
because when you know better, you should do better.
And some of these – a lot of our codes have not been
updated you know in many, many years, and are, in
fact, antiquated. But one of my questions also went to
the pretrial consideration. If that was the – if we move
to a pretrial situation, couldn't that be a place where
the determination could make for the mental
retardation – could that be done just by a judge and
not by a so-called jury trial? I mean would – or even a
judge and maybe a couple of panelists of professional
folks that usually make these determinations? I
mean, is that something that could –
CHUCK SPAHOS: I mean, procedurally,
could you change that? Certainly, you could. I submit
to you that when you get everybody involved in that,
that deals with these cases, I think you’re going to see
reluctancy to take it out of any one of 12 jurors could
hold that up as opposed to just the judge deciding. So,
71a
you may be making a step backwards in the flexibility
now that’s present because that’s what they would
have to convince is one juror to buy that, and it could
potentially tie the whole trial up. So, now you’re going
to a judge making that decision by themselves.
MISS RANDALL: Yeah, but I don’t
know if I feel more comfortable with a judge that will
have access to research and – and professional, you
know, folks to help rather than, you know, maybe a
homemaker, a gardener, you know, 12 folks. You
know where I’m going. I think I feel more comfortable
with a judge making that, that decision alone. Let me
ask you another thing. No one really mentioned
autism very much, and I know that – that’s a source
of impaired judgment as well, that has only been a big
topic of discussion the last 10, 15 years, that people
actually start talking about it with a name to it. And
I’d just like to kind of see what you all think about
when expanding the definition or changing the
definition that they’re working on, what are your
thoughts on that.
CHUCK SPAHOS: I want to go back to
your first question as far as what are we suggesting?
And I think the answer to that right now is caution.
We don’t have a specific proposal to give to this
committee or to the legislature about what we think
would be the best solution to this issue. So, that’s an
easy question to answer right now. We’re only
suggesting that the committee think about these
issues as we move forward, and we’re prepared to –
MISS RANDALL: I think that goes
without –
CHUCK SPAHOS: Right, but as far as
72a
what we know—and frankly I’ve learned this from
some of the previous speakers—is that mental
retardation is defined very specifically in our code
with a three-pronged test that determines whether or
not a person is mentally retarded. But if you move to
the definition of intellectual disability, then you,
broaden, by nature, you broaden the understanding of
what that means to include autism. Now the folks at
all about mental disabilities, they have told us and
they have told you that they don’t want to move in
that direction. They’re not looking to change the
definition, but I’m not sure – I’m not sure that that
can be done if once we start to use words like
“intellectual disability,” then to a scientific certainty,
that includes other disorders.
MISS RANDALL: Right.
CHUCK SPAHOS: So,
[02:00:00]
that’s a policy decision that I think we’re
going to – that’s going to have to be worked on as we
go forward.
REP RICH
questions? Mr. Coomer?
GOLICK:
Any
further
REP CHRISTIAN COOMER: Thank
you, Mr. Chairman. My question really frankly
doesn't doesn’t address anything that you all talked
about. I want to ask you ab
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