Opposition Brief — Rodney Renia Young, Petitioner v. Georgia

No. 21-782

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------RODNEY RENIA YOUNG,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Georgia

---------------------------------♦--------------------------------BRIEF IN OPPOSITION

---------------------------------♦--------------------------------CHRISTOPHER M. CARR

Attorney General

BETH BURTON

Deputy Attorney General

Counsel of Record

SABRINA GRAHAM

Senior Assistant

Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 656-3499

bburton@law.ga.gov

Counsel for Respondent

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1. Whether Georgia’s requirement that defendants

alleging intellectual disability prove their claim beyond a reasonable doubt violates the Due Process

Clause, where there is no deeply rooted historical practice requiring a less exacting standard, and where this

Court specifically held that it is “le[ft] to the state” to

develop procedures for determining intellectual disability, Atkins v. Virginia, 536 U.S. 304, 317 (2002).

2. Whether Georgia’s requirement that defendants

alleging intellectual disability prove their claim beyond a reasonable doubt violates the Eighth Amendment, even though it is a procedural standard, not a

substantive requirement, and in any event Georgia

provides numerous additional procedural safeguards,

including an opportunity to present evidence with no

burden of proof in sentencing.

ii

TABLE OF CONTENTS

Page

Questions Presented ............................................

i

Statutory and Constitutional Provisions Involved .......................................................................

1

Introduction .........................................................

1

Statement ............................................................

3

I.

The Crimes ................................................

3

II.

Trial Proceedings .......................................

5

III.

Direct Appeal Proceedings ........................

7

Reasons for Denying the Petition ........................

8

I.

II.

There is no meaningful split of authority

as to whether the Constitution requires a

certain burden of proof for claims of intellectual disability in capital cases ..............

9

The Georgia Supreme Court’s decision is

correct ........................................................ 11

There is no deeply rooted historical

right to a particular burden of proof on

intellectual disability claims, so there

is no constitutionally required standard

under the Due Process Clause ............ 11

Georgia’s standard does not create any

conflict with this Court’s precedent .... 14

Georgia’s procedural rule does not implicate the substantive standards of

the Eighth Amendment ....................... 17

iii

TABLE OF CONTENTS—Continued

Page

The constitutionality of the burden

of proof cannot be reviewed in isolation ....................................................... 19

III.

This case does not present a suitable vehicle for this Court’s review .......................... 26

Conclusion............................................................ 27

iv

TABLE OF AUTHORITIES

Page

CASES

Arrington v. Georgia,

562 U.S. 853 (2010) .................................................10

Birdette v. State,

748 S.E.2d 472 (2013) .............................................25

Bobby v. Bies,

556 U.S. 825 (2009) .................................................18

Bowling v. Comm.,

163 S.W.3d 361 (Ky. 2005) .........................................9

Burgess v. Scofield,

546 U.S. 944 (2005) .................................................10

Chauncey v. State,

641 S.E.2d 229 (2007) .............................................25

Cooper v. Oklahoma,

517 U.S. 348 (1996) ........................... 7, 12, 13, 14, 15

Ford v. Wainwright,

477 U.S. 399 (1986) ........................... 2, 15, 16, 19, 20

Hall v. Florida,

572 U.S. 701 (2014) ............................. 2, 7, 17, 18, 19

Head v. Hill,

587 S.E.2d 613 (2003) .............................................15

Head v. Stripling,

590 S.E.2d 122 (2003) .............................................24

Heller v. Doe,

509 U.S. 312 (1993) .................................................23

v

TABLE OF AUTHORITIES—Continued

Page

Hill v. Humphrey,

662 F.3d 1335 (11th Cir. 2011) ........ 12, 19, 20, 22, 25

In re Hill,

571 U.S. 813 (2013) .................................................10

In re Hill,

777 F.3d 1214 (11th Cir. 2015) ................................18

Holsey v. Hall,

552 U.S. 1070 (2007)................................................10

Howell v. State,

151 S.W.3d 450 (Tenn. 2004) ...................................10

King v. Georgia,

536 U.S. 982 (2002) .................................................10

Laster v. State,

505 S.E.2d 560 (1998) .............................................25

Leland v. Oregon,

343 U.S. 790 (1952) ........................... 8, 12, 14, 16, 19

Lyons v. State,

522 S.E.2d 225 (1999) .............................................25

Medina v. California,

505 U.S. 437 (1992) ......................................... passim

Moody v. State,

422 S.E.2d 70 (1992) ...............................................25

Moore v. Texas,

137 S. Ct. 1039 (2017) ......................... 2, 7, 17, 18, 19

Morrow v. State,

928 So. 2d 315 (Ala. Crim. App. 2004) ......................9

vi

TABLE OF AUTHORITIES—Continued

Page

Mosher v. State,

491 S.E.2d 348 (1997) .............................................25

Pruitt v. State,

834 N.E.2d 90 (Ind. 2005) .......................................10

Raulerson v. Warden,

140 S. Ct. 2568 (2020) .............................................10

Raulerson v. Warden,

928 F.3d 987 (11th Cir. 2019), cert. denied,

2020 U.S. LEXIS 1922 (U.S. Mar. 30, 2020)...... 12, 13

Sims v. State,

614 S.E.2d 73 (2005) ...............................................25

State v. Williams,

831 So. 2d 835 (2002) ................................................9

Stripling v. Head,

541 U.S. 1070 (2004)................................................10

Stripling v. State,

401 S.E.2d 500................................................... 18, 24

Tharpe v. Sellers,

138 S. Ct. 55 (2017) .................................................10

Torres v. State,

529 S.E.2d 883 (2000) .............................................25

Walker v. State,

653 S.E.2d 439 (2007) .............................................24

Williams v. State,

426 S.E.2d 348 (1993) .............................................25

vii

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

Eighth Amendment ............................................ passim

Fourteenth Amendment ........................................... 1, 8

STATUTES

Ariz. Rev. Stat. § 13-753 .............................................20

Fla. Stat. Ann. § 775.027 ............................................16

Fla. Stat. Ann. § 921.137 ............................................20

Ga. Code Ann. § 9-14-48 .............................................20

Ga. Code Ann. § 17-7-131 .............................................1

Ga. Code Ann. § 17-10-30 ...........................................21

Ga. Code Ann. § 17-10-31 ...........................................22

Kan. Stat. Ann. § 21-6622...........................................21

Utah Code Ann. § 77-15a-104(3)(a) ............................21

Va. Code Ann. § 19.2-264.3:1.2 ...................................20

OTHER AUTHORITIES

2 A. Fitz-Herbert, Natura Brevium 233B (9th

ed. 1794) (originally published 1534) .....................12

4 Blackstone, Commentaries on the Laws of

England 24 (1769) ...................................................12

A. Highmore, Law of Idiocy and Lunacy 200

(1807) .......................................................................12

viii

TABLE OF AUTHORITIES—Continued

Page

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. 597

(2017) .......................................................................24

1

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Fourteenth Amendment, Section I, of the

United States Constitution provides in relevant part:

No State shall . . . deprive any person of life,

liberty, or property, without due process of

law. . . .

The Eighth Amendment of the United States Constitution provides in relevant part:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishment inflicted.

Ga. Code Ann. § 17-7-131(c)(3) states:

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 disability.

---------------------------------♦---------------------------------

INTRODUCTION

Petitioner Rodney Renia Young asks this Court to

grant review in the hopes of forcing the states to

align and adopt a preponderance of the evidence burden of proof for intellectual disability claims in capital

cases. But this Court has expressly left the implementation of such procedures to the states, and the Court

has repeatedly denied review on this very question—

as Young has to acknowledge—including as recently as

2020.

2

With little else to argue, Young is left to demand

error correction. But no precedent of this Court has

suggested, much less held, that the states must adopt

a specific burden of proof with respect to intellectual

disability claims. Instead, states generally maintain

the authority to prescribe procedures to carry out its

laws including the burden of proof, specifically in criminal procedural matters. See Medina v. California, 505

U.S. 437, 449 (1992). It is only when the state law offends a deeply rooted, historical principle of justice

that it is subject to proscription under the Due Process

Clause. Id. Because this Court only recently determined that the intellectually disabled had a constitutional right to be exempt from execution, the burden of

proof as to an intellectual disability claim is not such a

deeply rooted principle, and states are accordingly allowed to construct their own procedures as Atkins dictates.

Likewise, Young raises an Eighth Amendment

challenge, but that is far afield as well. He points to

cases analyzing the substantive requirements for intellectual disability claims, Hall v. Florida, 572 U.S. 701,

719 (2014), Moore v. Texas, 137 S. Ct. 1039, 1051 (2017),

and tries to extract from them a rule about procedural

requirements. Young provides no reason to turn the

Eighth Amendment into a font of procedural law.

Plus, although Young focuses on Georgia’s burden

of proof, any review of Georgia’s procedures must be

conducted analyzing the procedure as a whole. See

Ford v. Wainwright, 477 U.S. 399, 416 (1986). Any such

review establishes that Georgia’s procedure provides

3

defendants reasonable opportunity to present their

claims of intellectual disability, both at the guilt and

sentencing phase of trial. And, contrary to Young’s arguments, numerous defendants in Georgia have satisfied the beyond a reasonable doubt standard and

proven their intellectual disability.

Finally, Young’s case does not present an adequate

vehicle for review. Despite opportunities to present his

intellectual disability claim in both the guilt and sentencing phases of trial, he chose not to present any expert testimony, testing, or even an IQ score that placed

him in the intellectually disabled range. Given that

basic failure, this is an inappropriate case in which to

decide higher level questions about the appropriate

procedures for establishing disability.

The Petition should be denied.

---------------------------------♦---------------------------------

STATEMENT

I.

The Crimes

Petitioner Rodney “Young had a seven-year relationship with Gary Jones’s mother, Doris Jones, that

was rife with arguments about money and Young’s infidelity and included multiple breakups.” Pet.App.2a.

In January 2008, following another argument, Doris

moved back to Georgia to live with her son Gary. Id.

“Young wrote Doris multiple letters between January

and March 2008, asking her to return to him,” and

when that failed he planned a trip to Georgia. Id. “On

4

March 3, Young obtained approval from his employer

for” time off from March 26 to March 28. Id. He contacted his half-sister who lived in Atlanta and told

her he was coming to Atlanta and would visit her

while there. Pet.App.2a-3a. In preparation for his trip,

“Young borrowed a GPS device from his co-worker and

obtained instructions on how to use it.” Pet.App.3a.

The GPS device memory and cell phone records established that, once in Georgia, “Young drove repeatedly from his half-sister’s home in Atlanta to the area

of Gary’s home in Covington” between March 28 and

March 30. Id. A witness identified Young as the man

driving a car with New Jersey license plates to whom

he had given directions to Gary’s neighborhood. Id.

On March 30, “Gary attended church.” Pet.App.3a.

“A little after 1:00 p.m.,” he spoke to his grandmother

on the telephone and told her he was “arriving at his

home and would call her back in 15 minutes, which he

never did.” Id.

Doris discovered Gary’s body around 11:20 p.m.

where he was tied to a chair with “duct tape, a telephone cord, and fabric from some curtains.” Id. “A

bloody butcher knife and a bloody hammer were found

next to his body.” Id. The medical examiner opined that

the victim’s death was caused by a blunt force injury

to the head. T2319-2323, 2331, 2336. Handwriting,

later matched to Young, was in several areas of the

wall in what appeared to be an attempt to blame the

crime on an Atlanta gang. Pet.App.4a.

5

Investigators in New Jersey interviewed Young

four days after the murder. Id. At that time, Young “had

two cuts on his right hand, and he denied traveling recently to Georgia.” Id. Upon searching Young’s apartment and car, investigators discovered directions to

Covington, Doris’ ring that was taken from Gary’s

home, duct tape that matched tape used to secure Gary,

and a cell phone belonging to the victim. T2666-80,

2837-38.

Young was arrested and indicted for malice murder, felony murder, aggravated assault and burglary.

II.

Trial Proceedings

Although Young presented a claim of intellectual

disability at trial, he chose not to present any expert

testimony, intelligence testing, or even an IQ score

that placed him in the intellectually disabled range.

Pet.App.5a. Instead, he presented “testimony from

staff members at his former high school stating that he

had been in special education, had been classified as

‘educable mentally retarded’ and therefore must have

been tested with an IQ of between 60 and 69, and had

struggled intellectually in academics and in sports.”

Pet.App.4a-5a. Similarly, Young failed to present the

jury with testing results of his adaptive functioning or

an expert opining about his specific impairments in

adaptive functioning. Young had lay witnesses testify

that he had limitations in adaptive functioning, but

they were surprised to learn that he (1) could read—

e.g. a DNA consent form, (2) had attended college; and

6

(3) had been able to navigate a round-trip between

New Jersey and Georgia. See, e.g., T2879-2880, 2883,

2933-34, 2964.

The State, through direct and cross-examination,

presented evidence “showing Young’s ability to function normally at work and in various other settings in

life.” Pet.App.5a. For instance, Young ran a label machine, which was not automatic, and required attention to detail for various orders. T3190-3203, 3211-12.

“The State also presented” an expert who “was able to

testify about the subject of intellectual disability in

general terms.” Id. The jury found Young guilty of “one

count of malice murder, two counts of felony murder,

one count of aggravated assault, and one count of burglary.” Pet.App.1a-2a, n.2.

In sentencing, additional evidence was presented

about Young having difficulties in school, but also

that he: had attended parent conferences at school

for his daughter as he was concerned for her wellbeing (T3483-84); was a “father figure” to a number of

cousins and his sister (T3510, 3544); and he raised his

daughter without her mother (T3533-34, 3551-53). As

noted by Young in his petition, Pet. at 8, the jury again

considered in sentencing his evidence of intellectual

disability, but no juror found it compelling enough to

mitigate against a sentence of death.1 On February 21,

2012, the jury unanimously voted for death and the

In Georgia, a juror can consider anything in mitigation

without limitation. There is no burden of proof and any one juror

can find that the sentence should be mitigated to less than death.

See Stinski, 691 S.E.2d at 873.

1

7

trial court sentenced Young accordingly. Pet.App.2a,

n.2.

III. Direct Appeal Proceedings

The Georgia Supreme Court affirmed Young’s convictions and sentences on June 2, 2021. Pet.App.1a106a. The Georgia Supreme Court followed its prior

precedents and held that Georgia’s beyond a reasonable

doubt burden of proof as to intellectual disability

claims is constitutional. The court first explained that

there was no substantive, Eighth Amendment issue:

“Georgia, by statute and through case law, has always

applied [the] prevailing clinical standards” required by

this Court. Pet.App.35a. The court rejected Young’s

claim that Hall v. Florida, 572 U.S. 701 (2014) and

Moore v. Texas, 137 S. Ct. 1039 (2017) “require[d] this

Court’s disapproval of Georgia’s beyond a reasonable

doubt standard” explaining that both cases “addressed

. . . the requirement that states must, as Georgia indisputably does, adhere to prevailing clinical definitions

of intellectual disability in fashioning such a definition.” Pet.App.36a-37a.

The court next held that there is no procedural,

Due Process problem either, as there is no deeply historical basis for requiring a specific burden of proof on

intellectual disability claims. Pet.App.38a-40a. And

although this Court has imposed a required preponderance standard with respect to competence claims,

Cooper v. Oklahoma, 517 U.S. 348, 366-67 (1996), competence to stand trial is a wholly separate question

8

from intellectual disability with respect to culpability.

The court also noted Leland v. Oregon, 343 U.S. 790

(1952), which upheld Oregon’s beyond a reasonabledoubt standard for insanity defense claims. E.g.,

Pet.App.37a-44a. Although recognizing that Leland

considered a substantive defense not then considered

constitutionally required, Leland nevertheless provided important guidance in how to understand the

procedural requirements mandated by the Constitution. Id. For instance, this Court in Leland held that

there was “no practical difference of such magnitude”

between a preponderance standard and a beyond a

reasonable-doubt standard as to implicate Due Process

concerns. Pet.App.41a (quoting Leland, 343 U.S. at

798).

---------------------------------♦---------------------------------

REASONS FOR DENYING THE PETITION

There is no reason to grant Young’s Petition. He

points to an illusory “split” of authority between state

courts, on an issue where states are allowed to disagree

and on which this Court has repeatedly declined certiorari review. Further, contrary to his argument, the decision of the Georgia Supreme Court does not conflict

with any holding of this Court as there is no precedent

of this Court that requires a specific burden of proof as

to any constitutional claim, and more specifically as to

Atkins claims. When reviewed as a whole, Georgia’s

procedure for protecting the rights of the intellectually

disabled, does not violate the Eighth or Fourteenth

Amendment. And finally, this case does not present a

9

good vehicle for review of this claim as Young would

not be found intellectually disabled using any burden

of proof. Certiorari review is unwarranted.

I.

There is no meaningful split of authority

as to whether the Constitution requires a

certain burden of proof for claims of intellectual disability in capital cases.

Young asserts a “split” of authority, but his split is

hardly anything of the kind. Pet. at 11-17. He argues

that because other states have applied a standard different from Georgia’s, the Court should resolve that

“split.” But differing state rules are perfectly permissible and no cause for this Court’s review.

The vast majority of the cases that Young cites

merely held what the burden of proof was in a given

state, not what it constitutionally had to be. In Bowling

v. Comm., 163 S.W.3d 361, 381 (Ky. 2005), for instance,

the Kentucky Supreme Court decided to “apply” a preponderance standard, where there was no statutory

provision providing any standard, but it did not hold

that it was constitutionally required. The same is true

in State v. Williams, 831 So. 2d 835, 853 (2002), which

recognized that this “Court . . . left to the states the

task of developing appropriate ways to determine

which offenders will be spared the death penalty because of [intellectual disability].” In Morrow v. State,

928 So. 2d 315, 324, n.10 (Ala. Crim. App. 2004)—not

even a decision of Alabama’s highest court—the

court specifically explained that it “need not determine

10

whether a higher standard would be constitutional.”

See also Pet. at 16 n.4, 17 n.5. In only two of Young’s

cited cases has another state court held that a preponderance standard is required, Pruitt v. State, 834

N.E.2d 90, 103 (Ind. 2005), Howell v. State, 151 S.W.3d

450, 464-65 (Tenn. 2004), and even there, those states

have different procedures altogether. As explained further below, Georgia’s procedure is far more generous to

defendants than other states in many respects, so even

these cases are not an apples-to-apples comparison.

Indeed, this Court itself has had numerous occasions to weigh in on this question and declined every

time. See Holsey v. Hall, 552 U.S. 1070 (2007); King v.

Georgia, 536 U.S. 982 (2002); Stripling v. Head, 541

U.S. 1070 (2004); In re Hill, 571 U.S. 813 (2013); Burgess v. Scofield, 546 U.S. 944 (2005); Tharpe v. Sellers,

138 S. Ct. 55 (2017); Arrington v. Georgia, 562 U.S. 853

(2010); Raulerson v. Warden, 140 S. Ct. 2568 (2020).

Young asserts there were “vehicle problems” in these

cases, but no greater than the problems present here

and none that would have precluded this Court from

answering the question presented—then, as now, the

question was simply not worth this Court’s review. At

most, there are differences in the procedures between

Georgia and other states, on an issue that this Court

“ ‘left to the State(s).’ ” Pet.App.31a (citing Atkins, 536

U.S. at 317 (III) (citation omitted)).

There is no meaningful split of authority that

would require this Court’s review.

11

II.

The Georgia Supreme Court’s decision is

correct.

Unable to point to any meaningful split or special

reason to grant review, Young relies almost entirely on

the need for supposed error correction. But there is no

need for error correction, as there is no error. There is

no historical basis for a supposed right to a particular

burden of proof in intellectual disability cases, no conflict with this Court’s precedent, Georgia’s procedural

rule does not implicate the substantive standards of

the Eighth Amendment.

A. There is no deeply rooted historical

right to a particular burden of proof on

intellectual disability claims, so there

is no constitutionally required standard

under the Due Process Clause.

“[I]t has never been thought that [decisions under

the Due Process Clause] establish this Court as a rulemaking organ for the promulgation of state rules of

criminal procedure.” Medina, 505 U.S. at 443-44 (quoting Spencer v. Texas, 385 U.S. 554, 564 (1967) (brackets

in original)). Instead, this Court has generally held

that states maintain the authority to prescribe procedures to carry out their laws, including the burden of

proof, specifically in criminal procedural matters. See,

e.g., Medina, 505 U.S. at 445. The state’s “decision in

this regard is not subject to proscription under the Due

Process Clause unless ‘it offends some principle of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.’ ” Id. (quoting

12

Speiser v. Randall, 357 U.S. 513, 523 (1958)); Leland,

343 U.S. at 798; Snyder, 291 U.S. at 105; Patterson v.

New York, 432 U.S. 197, 201-02 (1977)).

Here, Young simply cannot establish that a preponderance standard is “deeply rooted in the traditions and conscience of our people.” Cooper v.

Oklahoma, 517 U.S. 348, 362 (1996). “There is no historical right of an intellectually disabled person not to

be executed.” Pet.App.40 (quoting Raulerson, 928 F.3d

at 1002(III)(B)(2)). “And since the constitutional right

itself is new, there is no historical tradition regarding

the burden of proof as to that right.” Pet.App. 39a

(quoting Hill v. Humphrey, 662 F.3d at 1350-51).

The lack of any “deep rooted” fundamental right

as to the burden of proof is clear from Atkins itself. In

concluding that the execution of the intellectually disabled was neither considered cruel and unusual punishment nor prohibited under common law, the Court

noted that only those individuals that were so profoundly intellectually disabled as to be “unable to tell

right from wrong” were “excused from the guilt, and

of course the punishment, of any criminal action.” See

Atkins, 536 U.S. at 340 (quoting 4 Blackstone, Commentaries on the Laws of England 24 (1769); Penry,

492 U.S. 302, at 331-32; 2 A. Fitz-Herbert, Natura

Brevium 233B (9th ed. 1794) (originally published

1534); A. Highmore, Law of Idiocy and Lunacy 200

(1807)). If there was no common-law right not to be executed if intellectually disabled, clearly there was no

common-law right to a certain standard of proof. See,

e.g., Medina, 505 U.S. at 446-47 (upholding California’s

13

burden of proof because there is no common-law background on the burden of proof although the prohibition

of trying someone who is incompetent has “deep roots

in our common-law heritage.”).

Young tries to flip the historical analysis on its

head, arguing that Georgia’s standard “lacks any historical support.” Pet. at 19. That is a strange argument,

to say the least. The ordinary rule is that States run

their own criminal systems. States do not have to justify their own rules, and Cooper did not hold otherwise.

The important point in that case was that there was a

significant historical tradition, deeply rooted in our

law, of preponderance standards for competency hearings, which is what supported the Court’s holding that

Due Process requires as much.

Young argues, notwithstanding the lack of historical support for his position, that this Court somehow

already decided the issue in Cooper. But it is Young

that reads Cooper for too much, not the Georgia Supreme Court that reads it for too little. This Court

has not held that Cooper “established a procedural

standard [applicable] to all constitutional rights.”

Raulerson v. Warden, 928 F.3d 987, 1003 (11th Cir.

2019), cert. denied, 2020 U.S. LEXIS 1922 (U.S. Mar.

30, 2020) (citation omitted). Instead, as explained

above, Cooper looked to the historical record applicable

to the specific issue.

Finally, Young argues that the enactment of the

preponderance standard by a majority of other states,

mandates this standard for all states. This Court’s

14

precedent does not hold accordingly. For instance, once

the Medina Court determined there was no commonlaw basis for the allocation of the burden as to incompetency claims, the Court then looked to contemporary

practices, which it held had “limited relevance to the

due process inquiry.” Medina, 505 U.S. at 447 (emphasis added).

Ultimately, the Medina Court held that “it is

enough that the State affords the criminal defendant

on whose behalf a plea of incompetence is asserted a

reasonable opportunity to demonstrate that he is not

competent to stand trial.” Medina, 505 U.S. at 451. A

reasonable opportunity is provided and Georgia’s burden of proof is not unconstitutional “because another

method may seem to our thinking to be fairer or wiser

or to give a surer promise of protection to the prisoner

at the bar.” Leland, 343 U.S. at 799 (quoting Snyder,

291 U. S. at 105).

Because there is clearly no historical basis for a

right to a particular burden of proof to be applied, the

Georgia Supreme Court is simply correct: there is no

Due Process right to a particular standard.

B. Georgia’s standard does not create any

conflict with this Court’s precedent.

The analysis in Cooper is also unhelpful here as it

involved a claim for incompetency to stand trial, not

intellectual disability, and that distinction is critical.

“[T]here are significant differences between a claim of

incompetence and a plea of not guilty by reason of

15

insanity.” Medina, 505 U.S. at 448. An intellectual disability claim is “comparable to a claim of insanity at

the time of the crime in that both relieve a guilty person of at least some of the statutory penalty to which

he would otherwise be subjected.” Head v. Hill, 587

S.E.2d 613, 621 (2003) (cited in the decision below, see

Pet.App.37a). In contrast, the issue in Cooper extends

further: an incompetent defendant cannot be tried,

much less punished.

In Atkins, the Court based its judgment on the

“widespread judgment about the relative culpability of

[intellectually disabled] offenders, and the relationship

between [intellectual disability] and the penological

purposes served by the death penalty.” Atkins, 536 U.S.

at 317. That concern goes to substantive rights, not procedure, and the Atkins court specifically held that procedures were left to the states. 536 U.S. at 317 (III).

Likewise, in Ford, cited in Atkins, 536 U.S. at 321,

this Court noted that the insane should not be executed because it “contributes nothing to whatever deterrence value is intended to be served by capital

punishment” and/or that “retribution” is not served by

the execution of the insane. Ford, 477 U.S. at 407-08.

Although finding that Florida’s scheme for determining sanity was not acceptable,2 the Court, just as it did

in Atkins, nevertheless still expressly left “to the State

the task of developing appropriate ways to enforce the

Florida’s scheme did not allow for a full and fair hearing.

The defendant could not present evidence or cross-examine witnesses, and the appointment of experts and decision was made

solely by the executive branch. See Ford, 477 U.S. at 414-16.

2

16

constitutional restriction upon its execution of sentences.” Ford, 477 U.S. 416-17. Moreover, the Court

opined that “[i]t may be that some high threshold showing on behalf of the prisoner will be found a necessary

means to control the number of nonmeritorious or repetitive claims of insanity.” Id. (emphasis added).3 The

same holds true here, and the Georgia Supreme Court

did not err in holding that a “high threshold showing”

is constitutional.

Further, as the Georgia Supreme Court explained,

this Court’s decision in Leland, supra, bolsters its

holding. In that case, the Court rejected a claim that

a particular burden of proof must apply to insanity defense claims. In Young’s view, the Georgia Supreme

Court erred by relying on Leland, since that case did

not concern what was, at the time, a recognized constitutional right. But the Georgia Supreme Court did

not ignore this distinction, and it did not hold that

Leland controlled—it was helpful, not determinative.

Pet.App.37a. That this Court held in the 1950s that

there is no constitutional right to a particular burden

of proof with respect to insanity defense claims, which

are clearly akin to intellectual disability claims, is

surely relevant to the analysis here.

Georgia’s law does not conflict with any precedent

of this Court and certiorari review is unwarranted.

Florida’s burden of proof for defendant claiming to be insane at the time of the crime of clear and convincing. Fla. Stat.

Ann. § 775.027.

3

17

C. Georgia’s procedural rule does not implicate the substantive standards of

the Eighth Amendment.

Young also argues that Georgia’s burden violates

the Eighth Amendment, but this makes little sense.

The Eighth Amendment provides a substantive standard (which Georgia concededly satisfies), not a suite of

procedural rules.

Young relies on Hall and Moore, arguing that

Georgia’s procedural standard “creates an unacceptable risk of executing persons with intellectual disability.” Pet. at 22. But Moore and Hall concern the clinical

definition of intellectual disability specifically referenced in Atkins, not the quantum of proof necessary to

establish that substantive definition—which is exactly

what the Georgia Supreme Court held. Pet.App.36a37a (those cases “addressed only questions regarding

the substantive definition of intellectual disability and

the requirement that states must, as Georgia indisputably does, adhere to prevailing clinical definitions of

intellectual disability. . . .” (emphasis in original)).

In Moore and Hall, this Court held that Texas and

Florida, respectively, had used substantive criteria for

assessing intellectual disability that conflicted with

Atkins and disregarded views held by the medical community. See Hall, 572 U.S. at 721; Moore, 137 S. Ct. at

1053. In Hall, the Court reviewed Florida’s diagnostic

procedures for defining intellectual disability and, specifically, its strict 70 IQ score. Hall, 572 U.S. at 707

(“Florida law requires that, as a threshold matter, Hall

18

show an IQ test score of 70 or below before presenting

any additional evidence of his intellectual disability”).

This Court held that Florida’s strict cut-off score,

which was contrary to the medical community’s diagnostic standards, was unconstitutional. Hall, 1572 U.S.

at 704.4 In Moore, in contrast to the clinical definitions

used in assessing adaptive functioning for intellectual

disability, Texas used non-clinical criteria, the “Briseno

factors,” to evaluate Moore’s intellectual disability. The

Court concluded that because these factors were not

based on any clinical standards, Texas’ diagnostic

framework could not stand. See Moore, 137 S. Ct. at

1053.5

By contrast, this Court has “not provide[d] definitive procedural . . . guides for determining when a

person who claims [intellectual disability] ‘will be so

impaired as to fall within [Atkins’ compass].” Bobby v.

Bies, 556 U.S. 825, 831 (2009). (Indeed, in Hall, this

Court listed the states that could be affected by its ruling, and Georgia is not even cited. See Hall, 572 U.S. at

714-15.) Georgia’s procedural rule does not exclude

any intellectually disabled person from obtaining relief, nor does the Georgia Supreme Court’s rationale

exclude mildly intellectually disabled persons from

These factors are considered under Georgia law. See Stripling v. State, 401 S.E.2d 500, 504 (noting “IQ test score of 70 or

below is not conclusive,” the standard error of measurement and

adaptive functioning must also be considered).

5

Georgia’s diagnostic framework for proving intellectual disability tracks the clinical definitions mentioned in Atkins. In re

Hill, 777 F.3d 1214, 1217 (11th Cir. 2015).

4

19

proving their intellectual disability. Hall and Moore

thus have little, if anything, to contribute.6

D. The constitutionality of the burden of

proof cannot be reviewed in isolation.

Just as important, Young and his Amici focus

solely, and erroneously, on Georgia’s burden of proof, to

the exclusion of its many other procedural protections.

That myopic view is inconsistent with this Court’s

analyses in past cases. Even if there were a potential

constitutional concern with Georgia’s burden of proof

in the abstract, it is error to “focus[ ] on Georgia’s burden of proof procedure [while] ignor[ing] the many

other procedural protections afforded under Georgia’s

statute and processes. Looking solely to one aspect of

Georgia’s procedures, without placing them in context,

is inconsistent with Ford, where [this Court] evaluated

Florida’s process as a whole.” Hill v. Humphrey, 662

F.3d 1335, 1352 (11th Cir. 2011); see also Leland, 343

U.S. at 796-97 (review of a state’s burden-of-proof statute “must be viewed in its relation to other relevant

[state] law”).

“Georgia’s process, when evaluated as a whole,

contains substantial procedural protections” and cannot be defined solely by the burden of proof. Hill, 662

Young’s Amici also assert that Georgia’s statute included a

beyond a reasonable doubt standard inadvertently. See Brief of

Amici Curiae Elsa R. Alcala, et al. This does not have any actual

effect on the legal argument, and it is also based on statements

made by an avid death penalty opponent, and the statute has

clearly been reviewed by the legislature and left intact.

6

20

F.3d at 1353. To note just a few aspects here: First,

at trial, evidentiary bars are lowered and “there is

virtually no limit to the evidence a Georgia defendant can present in support of his [intellectual disability] claim.” See id. at 1353. This aspect of Georgia’s

procedure is significant as “[i]t is all the more important that the adversary presentation of relevant information be as unrestricted as possible.” Ford, 477

U.S. at 417.

Second, and further promoting unrestricted evidentiary presentation, defendants are allowed an unlimited number of experts of their own choosing at

trial, and on collateral review a petitioner may submit

expert and lay testimony by sworn affidavit. See Ga.

Code Ann. § 9-14-48(a). As noted in Ford, “[a]lso essential is that the manner of selecting and using the experts responsible for producing that ‘evidence’ be

conducive to the formation of neutral, sound, and professional judgments.” 477 U.S. at 417. This stands in

stark contrast to other states that allow only a courtappointed expert to evaluate a defendant’s cognitive

functioning. Compare Ga. Code Ann. § 9-14-48(a) (placing no restrictions on the number of defense experts

that may be introduced on collateral appeal) with Va.

Code Ann. § 19.2-264.3:1.2 (“defendant shall not be entitled to a mental health expert of the defendant’s own

choosing or to funds to employ such expert.”), Fla. Stat.

Ann. § 921.137 (“the court shall appoint two experts in

the field of intellectual disability who shall evaluate

the defendant”), Ariz. Rev. Stat. § 13-753 (initial prescreening by trial court and then if IQ is 75 or less the

21

trial court will choose one expert nominated by each

party or one joint expert agreed on by the parties),

Kan. Stat. Ann. § 21-6622(c) (the trial court appoints

two experts), Utah Code Ann. § 77-15a-104(3)(a) (the

trial court appoints experts).

Third, at trial, a Georgia defendant gets two opportunities to prove an intellectual disability claim: if

a defendant fails to meet the burden of proof for an intellectual disability claim at the guilt phase of trial, he

has a second chance to present the claim in the sentencing phase of trial as mitigation evidence—with no

burden of proof whatsoever. See Stinski, 691 S.E.2d at

873-74. Young and the Amici argue as if a rejection of

an intellectual disability claim during the guilt phase

automatically results in a death sentence. To the contrary, defendants have the opportunity to assert their

claims without any burden of proof in the second phase

of trial. The import of this protection is established in

the cases where the defendant’s intellectual disability

claim was rejected at the guilt phase of the trial, but

the defendant was ultimately sentenced to less than

death. See infra.

Fourth, in Georgia, mitigating and aggravating

factors are not weighed, and there are no statutory

mitigators; jurors may consider anything to be mitigating, and mitigating factors do not have to be found

unanimously. Id. A death sentence cannot be imposed

unless the jury finds at least one statutory aggravating

circumstance and votes unanimously for death. Ga.

Code Ann. § 17-10-30(c). “If the jury is unable to reach

a unanimous verdict as to sentence,” the judge must

22

dismiss the jurors and must “impose a sentence of either life imprisonment or imprisonment for life without parole.” Ga. Code Ann. § 17-10-31(c). Thus, if one

juror finds that a defendant’s cognitive abilities militate against imposing a death sentence (even if not

meeting the requirements of intellectual disability), a

death sentence may not be imposed and there is no judicial override. See also Hill, 662 F.3d at 1353 (listing

the protections provided by Georgia’s procedure). If anything, Georgia’s procedures “go above and beyond” the

necessary procedural safeguards. Id. at 1353 n.21.

Even with all these safeguards that favor the defense and clearly give a defendant a reasonable opportunity to present his intellectual disability claim,

Young and the Amici still argue someone who is intellectually disabled might not be able to satisfy the burden of proof. They assert there is an imprecision in

IQ scores; that adaptive deficits rely on deficits not

strengths, which are garnered from “records, test results, employment evaluations, and interviews with

family, friends, teacher and employers” which may be

misunderstood by jurors; and finally, the age onset is

prior to age 18, which may not be detected in that time

period. Brief of the Rutherford Institute, et al., at 6-8.

But the same could be said for any standard at all. If

intellectual disability is difficult to determine, there

will be cases under a clear-and-convincing or preponderance standard that still require factfinders to make

close calls. Nothing about the beyond a reasonabledoubt standard is unique in that regard.

23

Plus, as this Court has noted, in contrast to other

mental states of mind, intellectually disability is easier

to prove. Intellectual disability “is a permanent, relatively static condition,” and capital cases necessarily

deal with adults, “so almost by definition in the case of

the [intellectually disabled] there is an 18-year record

upon which to rely.” Heller v. Doe, 509 U.S. 312, 323

(1993) (citations omitted). In contrast, “[m]anifestations of mental illness may be sudden, and past behavior may not be an adequate predictor of future actions.”

Id. If anything, a higher standard for proof is necessary, since a large bulk of the testing and information

is provided by the defendant and his immediate family,

necessarily biased witnesses with a considerable interest in skewing the findings. Further, Georgia correctly

allows for the standard error measurement (including

IQ scores from 65 to 75 in the potentially intellectually

disabled range). With these factors that skew in a defendant’s favor, a higher burden of proof is appropriate.

The Medina Court reviewed the same arguments

Young makes to this Court, that because psychiatric

diagnoses are not an exact science, to place the burden

on him would violate due process. 505 U.S. at 451. The

Court rejected that argument holding that the “Due

Process Clause does not . . . require a State to adopt

one procedure over another on the basis that it may

produce results more favorable to the accused.” Id. (citing Patterson, 432 U.S. at 208. The Court concluded

that it was “enough that the State affords the criminal

defendant” a reasonable opportunity to present his

claim. Id.

24

In a failing attempt to bolster his argument that

the burden of proof is too restrictive, Young and his

Amici rely heavily on a law review article asserting

that only one capital defendant has succeeded in proving their intellectual disability under Georgia’s burden

of proof. Pet. at 18 (citing 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. 597-98 (2017)

(hereinafter “study”)). The Georgia Supreme Court did

not find this data “complete nor constitutionally compelling,” and for good reason. Pet.App.38a (noting that

“the fact remains that reported cases in Georgia actually show that judges and juries do find defendants

guilty but mentally retarded under Georgia’s proof beyond a reasonable doubt standard.”).

As the court explained, Young’s statistic excluded

those “cases in which intellectually disabled persons

are never charged with crimes, resolve charges without

a trial, or obtain a not guilty verdict from a jury,” which

“would rarely if ever result in reported judicial decisions and thus would not be included in the statistics

that Young offers here.” Pet.App.38a n.13. This explanation is supported by even a cursory review of Georgia case law. See, e.g., Head v. Stripling, 590 S.E.2d 122

(2003) (remanded for hearing on intellectual disability, pled to sentence less than death—http://www.dcor.

state.ga.us/GDC/Offender/Query); Walker v. State, 653

S.E.2d 439 (2007), Case No. S07P0687 (co-defendant

allowed to plead guilty but intellectually disabled);

Livingston, 486 S.E.2d 845, n.1 (1997) (same).

25

The study relied on by Young also ignores those

cases in which the death penalty was sought, where

the defendant’s intellectual disability claim was raised

and rejected, but the defendant was sentenced by the

jury to less than death. See, e.g., Torres v. State, 529

S.E.2d 883 (2000) (sentenced to life without parole);

Lyons v. State, 522 S.E.2d 225 (1999) (same); Mosher v.

State, 491 S.E.2d 348 (1997) (sentenced to life); Williams v. State, 426 S.E.2d 348 (1993) (sentenced to life).

It also excludes cases that are not murder cases.

Yet, based on a simple LEXIS search, at least six defendants have been found to be guilty but intellectually disabled under the beyond a reasonable doubt

standard. See Hill v. Humphrey, 662 F.3d at 1357 (citing Marshall v. State, 583 S.E.2d 884 (2003) (found intellectually disabled at trial)); Chauncey v. State, 641

S.E.2d 229 (2007) (found intellectually disabled at

bench trial); Laster v. State, 505 S.E.2d 560 (1998)

(found intellectually disabled at trial); Moody v. State,

422 S.E.2d 70 (1992) (same); see also Sims v. State, 614

S.E.2d 73 (2005) (same); Birdette v. State, 748 S.E.2d

472 (2013) (found intellectually disabled at bench trial).

Contrary to Young and his Amici’s arguments and “evidence,” defendants in Georgia have proven their intellectual disability to juries, as well as prosecutors.

Georgia’s longstanding, multi-faceted procedure

for determining intellectual disability affords the defendant a reasonable opportunity to prove his claim

and ensures that no intellectually disabled offender is

excluded from constitutional protection by Georgia’s

26

burden of proof. The burden of proof, which is one part

of a robust procedure, is constitutional.

III. This case does not present a suitable vehicle for this Court’s review.

Finally, this case does not present an adequate vehicle for this Court’s review of Georgia’s burden of

proof as to intellectual disability. Regardless of the

standard, Young’s evidence does not support such a

finding.

Even with Georgia’s lenient evidentiary standards on claims of intellectual disability, Young did not

present any expert or records diagnosing him with intellectual disability. Instead, he chose to forego presenting any expert testimony, intelligence testing, or

even an IQ score that placed him in the intellectually

disabled range. Pet.App.5a. Evidence was presented

however that he went to college, took care of his daughter, was a father figure to a number of family members,

and navigated from New Jersey to Georgia to commit

the crimes. Based on the weak evidence of intellectual

disability in this case, Young’s intellectual disability

claim would fail under any standard. This Court

should not grant review.

---------------------------------♦---------------------------------

27

CONCLUSION

The Court should deny the Petition.

Respectfully submitted,

January 2022

CHRISTOPHER M. CARR

Attorney General

BETH BURTON

Deputy Attorney General

Counsel of Record

SABRINA GRAHAM

Senior Assistant

Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 656-3499

bburton@law.ga.gov

Counsel for Respondent