Amicus Curiae Brief — Cooper v. Oklahoma

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S No. 95-5207 (g)

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RS In THE

Supreme Court of the United States

OCTOBER TERM, 1995

BYRON KEITH COOPER,

Petitioner,

Vv.

STATE OF OKLAHOMA,

Respondent.

On Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF OF THE AMERICAN ASSOCIATION

ON MENTAL RETARDATION,

THE ARC,

THE AMERICAN ORTHOPSYCHIATRIC ASSOCIATION,

THE AMERICAN NETWORK OF COMMUNITY

OPTIONS AND RESOURCES, AND

THE AMERICAN ASSOCIATION OF UNIVERSITY

AFFILIATED PROGRAMS IN DEVELOPMENTAL

DISABILITIES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

JAMES W. ELLIS

Counsel of Record

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, New Mexico 87131

(505) 277-2146

Counsel for Amici Curiae

WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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Phy some to Rule 37.3(b

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

mental retardation. Amici wish to present to the Court

relevant information from the clinical literature on

fendants with mental retardation. Amici also wish

address the particular difficulties present when the eviden-

tiary burden is placed on a defendant by clear and con-

Amici believe that the Oklahoma statute, providing

that a defendant can be found incompetent to stand trial

only if the defendant proves incompetency by clear and

convincing evidence, will produce trials of substantial

numbers of incompetent defendants, and will thereby risk

erroneous convictions.

CONCLUSION

For the above-stated reasons, we respectfully urge the

Court to grant this motion for leave to file the accom-

panying brief in the present case in support of Petitioner.

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, New Mexico 87131

(505) 277-2146

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAB -.00

SUMMARY OF ARGUMENT |...

ARGUMENT:

I. ANY TRIAL OF AN INCOMPETENT DE-

Il.

Ill,

FENDANT RAISES THE MOST SERIOUS

ISSUES OF FAIRNESS ................. spannberpunntnnaent

DEFENDANTS WITH MENTAL RETARDA-

TION FACE A SUBSTANTIAL RISK OF

BEING TRIED WHILE INCOMPETENT, AND

PLACING AN EXTRAORDINARY BURDEN

OF PROOF ON THEM WILL INCREASE

THAT RISK UNACCEPTABLY |W...

PERMITTING STATES TO REQUIRE DE-

FENDANTS WITH MENTAL DISABILITIES

TO DEMONSTRATE THEIR INCOMPE-

TENCE BY “CLEAR AND CONVINCING EVI-

DENCE” CREATES A SUBSTANTIAL RISK

OF MISCARRIAGES OF JUSTICE ................

heavy burden, which will be understood by

Page

1

12

12

18

15

19

ii

TABLE OF AUTHORITIES

FEDERAL CASES: Page

Addington v. Texas, 441 U.S. 418 (1979) ..._. 12, 13, 15

City of Cleburne v. Cleburne Living Center, 473

EY Tree oe ee 7

Cruzan v. Director, Missouri Department of Health,

ey WT I i 12, 14

Drope v. Missouri, 420 U.S. 162 (1975) i a 4

Dusky v. United States, 362 U.S. 402 (1960) ___. 6

Godinez v. Moran, 118 S. Ct. 2680 (1998)... 4,6

Medina v. California, 505 U.S. 487 (1992) 5, 16, 17

Pate v. Robinson, 383 U.S. 375 (1966) 4

Penry v. Lynaugh, 492 U.S. 302 (1989) 5

Riggins v. Nevada, 504 U.S. 127 (1992)... 6

Woodby v. Immigration and Naturalization Service,

ns Rs I i 13

STATE CASES:

Angela P. v. Ronald P., 623 P.2d 198 (Cal. 1981) . 14

Fiz v. Fiz, 847 S.W.2d 762 (Mo. 1998)... 14

Estate of Larimore v. Chatterton, 381 N.E.2d 76

Ga Ga, TEED annie 14

Matter of C.G., 687 P.2d 66 (Okla. 1981) i4

Orkin Exterminating Co. v. Traina, 486 N.E.2d

| 8 ee 14

Pickens v. Black, 885 S.W.2d 872 (Ark. 1994) __. 14

STATUTES:

Conn. Gen. Stat. Ann. § 54-56d(b) (West 1994) 12

Okla. Stat. Ann. tit. 22, § 1175.4 (West Cum. Supp.

1996) .. 12

Pa. Cons. Stat. Ann. tit. 50, § 7408(a) (1995 Cum.

ID ccncnenthitennittiectcictnarasibictchahaitinncsaatianiliilt eta 12

R.I. Gen. Laws § 40.1-5.3-8(b) (1994 Cum. Supp.) .. 12

STATE JURY INSTRUCTIONS:

Oklahoma Jury Instructions—Civil 3.2 sits 15

iii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS AUTHORITIES:

American Association on Mental Retardation, Men-

tal Retardation: Definition, Classification, and

Systems of Supports (9th ed. 1992)...

American Bar Association, Criminal Justice Mental

Health Standards 7-5.8 (1989)

Bonnie, The Competence of Criminal Defendants

with Mental Retardation to Participate in Their

Own Defense, 81 J. Crim. L. & Criminology 419

RE ee een Te eee

tion: Defendants and Victims (Ronald W.

Daniel, Beck, Herath, Schmitz & Menninger, Fac-

tors correlated with psychiatric recommenda-

tions of incompetency and insanity, 12 J. Psy-

chiatry & Law 527 (1984) .

Edgerton, The Cloak of Competence: ‘Stigma in

the Lives of the Mentally Retarded (1967).

Ellis & Luckasson, Mentally Retarded Criminal

18

6,8

10

11

Defendants, 58 Geo. Wash. L. Rev. 415 (1985) .... passim

Everington & Luckasson, Addressing the Needs of

the Criminal Defendant with Mental Retarda-

tion: The Special Educator as a Resource to the

Criminal Justice System, 24 Education & Train-

ing in Mental Retardation 193 (1989) —

Everington, Demographic variables associated with

competence to stand trial referral and «valuation

of criminal defendants with mental retardation,

17 J. Psychiatry & Law 627 (1989)...s—ist

Everington, The Competence Assessment for

Standing Trial for Defendants with Mental Re-

tardation (CAST-MR): A Validation Study, 17

Crim. Just. & Behav. 147 (1990)

Forte, The Role of the Clear and Convincing Stand-

ard of Proof in Right to Die Cases, 8 Issues in

Law and Medicine 183 (1992)

Grisso, Five-Year Research Update (1986-1990):

Evaluations for Competence to Stand Trial, 10

Behav. Sci. & the Law 358 (1992) shenee

10

10

14

iv

TABLE OF AUTHORITIES—Continued

Heilbrun & Collins, Evaluations of Trial Compe-

tency and Mental State at Time of Offense: Re-

port Characteristics, 26 Professional 3

2M on Evidence $340 (J.W. Strong

ed., 4th ed. 1992) ccieetbelabiiiienatt iis

vant Attributes, in Mental Retardation and the

Criminal Justice System: Defendants and Vic-

tims 17 (Ronald W. Conley, Ruth Luckasson &

George N. Bouthilet eds., 1992) ees

Note, Earl Washington’s Confession: Mental Re-

tardation and the Law of Confessions, 81 Va. L.

ed | QR SR SRP I as

Perlin, Law and Mental Disability (1994) no oe

Perske, Unequal Justice? What Can Happen When

Persons with Retardation or Other Develop-

mental Disabilities Encounter the Criminal Jus-

ft. fo Cee a

Steadman, Beating a Rap? Defendants Found In-

|

1

i

Page

8,9

18

11

11

17

v

TABLE OF AUTHORITIES—Continued

Steadman & Hartstone, Defendants Incompetent to

Stand Trial, in Mentally Disordered Offenders:

Perspectives from Law and Social Science 39

(John Monahan & Henry J. Steadman eds.,

PSS Ad AE

White, Nichols, Cook, Spengler, Walker & Look,

DP. » ~*° Overshadowing and Mental Retarda-

tio... 2 Meta-Analysis, 100 Am. J. Mental Re-

a

Zetlin & Turner, Self-Perspectives on Being Handi-

capped: Stigma and Adjustment, in Lives in

Process: Mildly Retarded Adulte in a Large

City 93 (Robert B. Edgerton ed., 1984)...

ee

Page

Ne ee re

In THE

Supreme Court of the United States

| Octoper Term, 1995

No. 95-5207

BYRON KEITH Cooper,

Vv.

STATE OF OKLAHOMA,

Respondent.

Petitioner,

On Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

BRIEF OF THE AMERICAN ASSOCIATION

ON MENTAL RETARDATION,

THE ARC,

THE AMERICAN ORTHOPSYCHIATRIC ASSOCIATION,

THE AMERICAN NETWORK OF COMMUNITY

OPTIONS AND RESOURCES, AND

THE AMERICAN ASSOCIATION OF UNIVERSITY

AFFILIATED PROGRAMS IN DEVELOPMENTAL

DISABILITIES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Amici curiae are national professional and voluntary

organizations concerned with the interests of citizens who

have mental disabilities. Amici thus have expertise con-

cerning criminal defendants with mental disabilities and

the nature of their possible incompetence.

2

THE AMERICAN ASSOCIATION ON MENTAL

RETARDATION (AAMR) is the nation’s oldest and

largest interdisciplinary organization of professionals in

the field of mental retardation. AAMR has appeared

before this Court on numerous occasions as amicus

curiae, most recently in Romer v. Evans, No. 94-1039.

THE ARC (formerly the Association for Retarded

Citizens of the United States) is an association of parents,

family members, professionals, and persons with mental

retardation devoted to promoting the interests of people

with mental retardation and their families.

THE AMERICAN ORTHOPSYCHIATRIC ASSO-

CIATION is an interdisciplinary professional organiza-

tion of mental health professionals, including psychiatrists,

psychologists, social workers, educators, and allied pro-

fessionals concerned with the problems, causes, and treat-

ment of mental disabilities.

THE AMERICAN NETWORK OF COMMUNITY

OPTIONS AND RESOURCES (ANCOR) represents

more than 660 agencies nationwide that together support

more than 50,000 people with mental retardation and

other disabilities. Most of the members operate com-

munity residences and support people in their own homes.

About 85 percent of ANCOR members are nonprofit

agencies. The remainder are proprietary agencies or un-

incorporated family care homes.

THE AMERICAN ASSOCIATION OF UNIVER-

SITY AFFILIATED PROGRAMS IN DEVELOP-

MENTAL DISABILITIES (AAUAP) is a _ national

organization of university-based research, training, and

model demonstration programs in the field of mental

retardation.

3

SUMMARY OF ARGUMENT

The prospect of a criminal trial proceeding when the

defendant’s mental disability renders him incapable of

understanding what is happening and unable to assist his

counsel is anathema to our system of justice. Such trials

certainly were unacceptable at common law. In modern

terms, a trial while defendant is unfit to proceed increases

the risk of the conviction of an innocent person while, at

the same time, impeaching the dignity and reputation of

our courts.

Raising the burden of persuasion on the defendant to

prove his own incompetence by “clear and convincing

evidence” increases the likelihood that incompetent de-

fendants will actually face trial in Oklahoma. To deter-

mine whether such an increased risk is tolerable under the

Due Process Clause, this Court must first determine

whether the risk is increased appreciably by the heavier

burden. If, as amici believe, the risk is expanded substan-

tially, the Court must then determine whether there is a

sufficiently compelling reason that justifies this increased

number of cases that will violate the constitutional pro-

hibition against trying unfit defendants.

Amici’s analysis focuses on defendants with mental re-

tardation, who clearly fall within the scope of the Okla-

homa law. Forensic clinicians generally agree that indi-

viduals with mental retardation already pose a substantial

problem of undetected incompetence even without the in-

creased burden of persuasion. The “invisible” nature of

their handicap is exacerbated by their strong motivation

to prevent others from finding out how disabled they are.

The result is that truly unfit defendants, a crucial minority

of whom may be innocent, will face trials they do not

comprehend. Raising the standard of proof can only in-

crease the number of such defendants standing trial.

Additionally, amici’s survey of evidentiary formulations in

state law demonstrates that in many states, including Okla-

4

homa, the interpretation of “clear and convincing evi-

dence” creates an extraordinarily heavy burden of proof

on disabled defendants.

The state has two possible motivations for this novel

and exceptional law, only one of which is legitimate. The

legitimate goal would be to detect malingering defend-

ants. But for defendants with mental retardation, ma-

lingering is simply not a practical problem. And even for

defendants with mental illness, there is no empirical evi-

dence to suggest (nor any logical reason to suppose)

that raising the burden will somehow selectively identify

or target those who may attempt to feign incompetence.

The only other motivation for raising the burden to this

extraordinary level is to allow for the trial of a greater

number of defendants, regardless of whether they are fit

to stand trial. This is not a legitimate state purpose.

Since the risk of incompetent defendants standing trial

is increased substantially by the Oklahoma law, and since

the law does not address directly a substantial problem

that outweighs that risk, this Court should hold that it

violates the Due Process Clause of the Fourteenth Amend-

ment.

ARGUMENT

I. ANY TRIAL OF AN INCOMPETENT DEFENDANT

RAISES THE MOST SERIOUS ISSUES OF FAIR-

NESS.

Following a venerable common law tradition, this Court

has repeatedly emphasized that no trial of an incompetent

defendant will be tolerated. Pate v. Robinson, 383 U.S.

375 (1966); Godinez v. Moran, 113 S.Ct. 2680, 2685

(1993). Writing for a unanimous Court, Chief Justice

Burger described this principle as “fundamental to an

adversary system of justice.” Drope v. Missouri, 420 U.S.

162, 172 (1975).

The importance that this Court has placed on the prohi-

bition against trying individuals with such severe disabili-

5

ties that they are not competent derives both from history

and contemporary perceptions of fairness. “Few principles

are as firmly embedded in Anglo-American criminal juris-

prudence as the doctrine that an ‘incompetent’ defendant

may not be put to trial.” Michael L. Perlin, Law and

Mental Disability 502 (1994); Medina v. California, 505

U.S. 437, 446 (1992) (“The rule that a criminal de-

fendant who is incompetent should not be required to

stand trial has deep roots in our common-law heritage.” ).

But amici are less concerned with tracing the precise

lineage of competence jurisprudence through Hale and

Blackstone, than with fair treatment of individuals with

disabilities and the practical functioning of competence

evaluations in the contemporary criminal justice system."

The Due Process requirement* that defendants must be

competent to stand trial is not merely an artifact of ancient

1 Amici recognize that in determining the requirements of due

process in criminal cases there have been differences within the

Court on the precise role of historical antecedents and of balancing

contemporary equities. See Medina v. California, 505 U.S. 487,

453-54 (1992) (O’Connor, J., concurring in the judgment). While

recognizing the importance of traditions in making these judg-

ments, amici, as organizations concerned with mental disabilities,

believe the Court should be aware of the practical consequences

of adopting constitutional rules in this area.

2 Although amici remain deeply troubled by the continuing prob-

lem of individuals with menta! retardation on death row in those

states that still permit such executions, see Amici Curiae Brief

of American Association on Mental Retardation et al., Penry v.

Lynaug ‘92 U.S. 302, 336 (1989), we do not believe that the

Court sow d decide this case under the Eighth Amendment, as

applied to the states by the Fourteenth Amendment. Although this

Court’s Eighth Amendment cases requiring full and fair adjudica-

tion in death penalty cases are certainly broad enough to encom-

pass a ruling prohibiting a state from substantially increasing the

risk of a capital trial of an incompetent defendant, amici believe

that the Due Process Clause offers a preferable source for such a

holding. This Court has never suggested that states may be less

vigilant in preventing the trial and punishment of incompetent

defendants in noncapital cases.

6

legal concerns. It is central to our courts’ assurance to the

nation’s citizens that all cases involving accusations of

crimes are being fairly adjudicated. “Competence to stand

trial is rudimentary, for upon it depends the main part of

those rights deemed essential to a fair trial, including the

right to effective assistance of counsel, the rights to sum-

mon, to confront, and to cross examine witnesses, and the

right to testify on one’s own behalf or to remain silent

without penalty for doing so.” Riggins v. Nevada, 504

U.S. 127, 139-40 (1992) (Kennedy, J., concurring in the

judgment).*

But in addition to unfairness to defendants, the prohi-

bition on trying incompetent individuals has an additional

justification. It has long been recognized that trying a

defendant who lacks a basic understanding of the charges

and proceedings is an unacceptable affront to the court

system itself. Trial of a defendant whose disability renders

him unable to comprehend that trial with “a rational as

well as factual understanding,” Dusky v. United States,

362 U.S. 402 (1960), has been analogized to the trial of

a defendant in absentia. The courts cannot command the

respect of our citizens if they allow such sham proceedings.

“To proceed against such a person offends the moral

dignity of the process.” Richard J. Bonnie, The Com-

petence of Criminal Defendants with Mental Retardation

to Participate in Their Own Defense, 81 J. Crim. L. &

Criminology 419, 426 (1990) (hereinafter Bonnie).

Therefore in the case at bar, there are two basic issues.

The first is how greatly the Oklahoma rule placing the

burden on the defendant by “clear and convincing evi-

dence” increases the likelihood of a trial of a defendant

who does not meet the Dusky criteria. And the second

3 While there is a sense in which the goal of the competence re-

quirement can be characterized as “modest,” Godinez v. Moran, 113

S.Ct. 2680, 2688 (1993), its function is no less crucial because of

its relatively limited expectations of defendants.

wand

7

issue is whether that increase in the number of trials of

incompetent individuals is justified by a sufficiently com-

pelling benefit to the criminal justice system.

Amici are particularly concerned about the unique prob-

lems presented by defendants with mental retardation.‘

We believe that placing this extraordinarily heavy burden

on defendants who have mental retardation will result in a

substantial number of factually incompetent defendants

facing trial. We further believe that any hypothesized or

anticipated benefit to the criminal justice system from this

rule is illusory.

II. DEFENDANTS WITH MENTAL RETARDATION

FACE A SUBSTANTIAL RISK OF BEING TRIED

WHILE INCOMPETENT, AND PLACING AN EX-

TRAORDINARY BURDEN OF PROOF ON THEM

WILL INCREASE THAT RISK UNACCEPTABLY.

As this Court has recognized, people with mental re-

tardation “have a reduced ability to cope with and func-

tion in the everyday world.” City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 442 (1985). There are few

settings in which this is as dramatically true as it is in the

criminal justice system. See generally The Criminal Jus-

tice System and Mental Retardation: Defendants and Vic-

tims (Ronald W. Conley, Ruth Luckasson & George N.

Bouthilet eds., 1992) (hereinafter Conley).

Although detailed and reliable empirical data on the

rate of referral for evaluations are not plentiful,’ it is

*The case at bar involves an individual whose competence was

questioned because of mental! illness rather than mental retarda-

tion. This Court has never suggested that different rules should

be applied, or that different constitutional factors are to be con-

sidered, in mental illness cases on the one hand and mental re-

tardation cases on the other. The Oklahoma statute clearly governs

both groups of individuals, and amici believe that the Court

should consider the risk of trying any and all incompetent defend-

ants under that statute.

5 See generally Thomas Grisso, Five-Year Research Update

(1986-1990): Evaluations for Competence to Stand Trial, 10

widely accepted among scholars, clinicians, and lawyers

involved in the criminal justice system that many defend-

ants with mental retardation fail to receive an adequate

assessment of their competence to stand trial. See, ¢.g.,

Bonnie, supra, at 420-21; Ira Mickenberg, Competency to

Stand Trial and the Mentally Retarded Defendant: The

Need for a Multi-Disciplinary Solution to a Multi-Discipli-

nary Problem, 17 Cal. W. L. Rev. 365 (1981); James

W. Ellis & Ruth A. Luckasson, Mentally Retarded Crimi-

nal Defendants, 53 Geo. Wash. L. Rev. 415, 458 (1985)

(hereinafter Ellis & Luckasson); Laboratory of Com-

munity Psychiatry, Harvard Medical School, Competency

to Stand Trial and Mental Illness 6 (1973) (hereinafter

Laboratory of Community Psychiatry) (“it is our impres-

sion that the competency issue is raised too often for the

mentally ill and too infrequently for the mentally re-

tarded”). This is particularly troubling since mental re-

tardation can produce such limitations in the person’s abil-

Behav. Sci. & the Law 353 (1992); Kirk Heilbrun & Steven Col-

lins, Evaluations of Trial Competency and Mental State at Time

of Offense: Report Characteristics, 26 Professional Psychology:

Research and Practice 61 (1995); Henry J. Steadman & Eliot

Hartstone, Defendants Incompetent to Stand Trial, in Mentally

Disordered Offenders: Perspectives from Law and Social Science

89 (John Monahan & Henry J. Steadman eds., 1983).

® The accepted definition of mental retardation is that of the

American Association on Mental Retardation (AAMR): “Mental

retardation refers to substantial limitations in present functioning.

It is characterized by significantly subaverage intellectual function-

ing, existing concurrently with related limitations in two or more

of the following applicable adaptive skill areas: communication,

self-care, home living, social skills, community use, self-direction,

health and safety, functional academics, leisure, and work, Mental

retardation manifests before age 18.” American Association on

Mental Retardation, Mental Retardation: Definition, Classification,

and Systems of Supports 5 (9th ed. 1992). This disability, al-

though often confused with mental illness, has substantially dif-

ferent characteristics. See generally James W. Ellis & Ruth A.

Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash.

L. Rev. 415, 423-25 (1985).

9

fairness of the trial process are compromised.’ Several

attributes common to criminal defendants who have men-

tal retardation make this problem particularly serious.

Unlike many defendants with mental illness, the poten-

tial incompetence of i ividuals with mental retardation

cognitive deficits “and their characterstic dependency and

T Amici do not mean to suggest, of course, that al) defendants

with mental retardation are incompetent to stand trial. While

many such individuals are competent, and substantially more can

be rendered competent by targeted education and habilitation, see

Ellis & Luckasson, supra, at 459-60, the probiem remains serious.

While reliable data are not yet available, anecdotal experience of

clinicians in the field strongly suggests that trials of incompetent

defendants who have mental retardation occur with disturbing

* Of course, some defendants who have menta! retardation may

also be mentally ill. See John H. Noble, Jr. & Ronald W. Conley,

Toward an Epidemiology of Relevant Attributes, in Conley, supra,

at 17, 26; Ruth Luckasson, The Dually Diagnosed Client in the

Criminal Justice System, in Mental Retardation and Mental

Health: Classification, Diagnosis, Treatment, Services 354 (Jack

A. Stark, Frank J. Menolascino, Michael H. Albarelli & Vincent C.

Gray eds., 1988). While the presence of both disabilities may mean

that such defendants are more likely to be referred for evaluation

on competence issues, the evaluator may fail to identify both dis-

abilities, and if one handicap “masks” the other, the evaluation

not produce an accurate assessment of the individual’s func-

tioning. /d. See also Michael J. White, Cassandra N. Nichols,

Robert 8S. Cook, Paul M. Spengler, Blain S. Walker & Karsten K.

Look, Diagnostic Overshadowing and Mental Retardation: A Meta-

Analysis, 100 Am. J. Mental Retardation 293 (1995) (gathering

most recent research on dual diagnosis) .

10

malleability which permits them to be easily manipu-

lated”). Or the individual's retardation may mean that he

lacks the most rudimentary knowledge necessary to meet

the Dusky test, such as the roles of the major participants

in the trial. Ellis & Luckasson, supra, at 431.

It might be expected that such gross deficiencies in the

knowledge and understanding necessary to be competent

under the not-extraordinarily-demanding Dusky test would

be readily detectable. The underidentification of incom-

petence among defendants with mental retardation be-

comes understandable only upon closer examination of the

situation in which these individuals find themselves. See

Ellis & Luckasson, supra, at 427-32. One factor is the

lack of experience and training of criminal justice system

personnel in identifying and dealing with individuals with

mental retardation. Caroline Everington & Ruth Luckas-

son, Addressing the Needs of the Criminal Defendant with

Mental Retardation: The Special Educator as a Resource

to the Criminal Justice System, 24 Education & Training

in Mental Retardation 193, 194 (1989). Typically, the

possibility of a defendant’s incompetence comes to light

only when he exhibits behaviors that call attention to his

mental illness. Caroline Everington, Demographic vari-

ables associated with competence to stand trial referral

and evaluation of criminal defendants with mental re-

tardation, 17 J. Psychiatry & Law 627, 637 (1989);

Ellis & Luckasson, supra, at 458 n.242. Even clinicians

employed by the criminal justice system to evaluate po-

tentially incompetent defendants focus almost exclusively

on the possibility that the defendant’s perceptions and

understanding may be impaired by mental illness. A.E.

Daniel, Niels C. Beck, Adolph Herath, Mark Schmitz &

Karl Menninger, Factors correlated with psychiatric rec-

ommendations of incompetency and insanity, 12 J. Psy-

chiatry & Law 527, 538 (1984); Caroline T. Everington,

The Competence Assessment for Standing Trial for De-

fendants with Mental Retardation (CAST-MR): A Vali-

11

dation Study, 17 Crim. Just. & Behav. 147, 148-49

(1990).

But the key to the phenomenon of underidentification

is that typically an individual who has mental retardation

tries to make certain that no one discovers the actual

extraordinary efforts to mask the existence and extent of

their disability and its effects, even when the revelation

and understanding of the handicap would work to their

advantage. See Ellis & Luckasson, supra, at 430-31, 457-

58. See also John J. McGee & Frank Menolascino, The

Evaluation of Defendants with Mental Retardation in the

Criminal Justice System in Conley, supra, at 55, 63

(“many persons with mental retardation are never identi-

fied, because they are perceived as quiet, cooperative, and

‘normal’ in appearance”); Robert Perske, Unequal Jus-

tice? What Can Happen When Persons with Retardation

or Other Developmental Disabilities Encounter the Crimi-

nal Justice System (1991) (journalistic accounts).

* This phenomenon has long been recognized by clinicians and

social scientists who study mental retardation. Sec, e.g., Robert B.

Edgerton, The Cloak of Competence: Stigma in the Lives of the

Mentally Retarded 148 (1967); Andrea G. Zetlin & Jim L. Turner,

Self-Perspectives on Being Handicapped: Stigma and Adjustment,

in Lives in Process: Mildly Retarded Adults in a Large City 93

(Robert B. Edgerton ed., 1984).

12

Ill. PERMITTING STATES TO REQUIRE DEFEND-

ANTS WITH MENTAL DISABILITIES TO DEMON-

STRATE THEIR INCOMPETENCE BY “CLEAR

AND CONVINCING EVIDENCE” CREATES A SUB-

STANTIAL RISK OF MISCARRIAGES OF JUS-

TICE.

A. Requiring proof at a level higher than the standard

“preponderance of the evidence” reflects a judgment

about the acceptability of different types of errors.

This Court has made clear that a principal function of

establishing a standard of proof is “to allocate the risk of

error between the litigants and to indicate the relative

importance attached to the ultimate decision.” Addington

v. Texas, 441 U.S. 418, 423 (1979). “The more stringent

the burden of proof a party must bear, the more that party

bears the risk of an erroneous decision.” Cruzan v. Di-

rector, Missouri Department of Health, 497 U.S. 261,

283 (1990). In the instant case, the issue becomes who

will bear the risk of error where the evidence about a

defendant's competence is not perfectly certain. The

Oklahoma statute declares that a defendant must stand

trial even if he produces credible proof that he is incom-

petent by a “preponderance of the evidence” standard un-

less that proof also satisfies the more burdensome stand-

ard of “clear and convincing evidence.” Okla. Stat. Ann.

tit. 22, § 1175.4 (West Cum. Supp. 1996).

© Only a few states currently place the burden of demonstrating

incompetence on defendants by “clear and convincing evidence” as

Oklahoma does. See, ¢e.g., Conn. Gen. Stat. Ann. § 54-56d(b) (West

1994); Pa. Cons. Stat. Ann. tit. 50, §7408(a) (1995 Cum. Supp.) ;

R.I. Gen. Laws § 40.1-5.3-3(b) (1994 Cum. Supp.). But if this

Court were to approve the constitutionality of the Oklahoma ap-

proach, it is likely that legislators in other states would seek to

adopt such a “constitutionally-certified” measure for limiting the

rights of criminal defendants. Each such state would, of course,

be incorporating by reference its own prior understanding of the

term “clear and convincing evidence.”

the correctness of factual conclusions for a particular type

of adjudication.’” Addington, 441 U.S. at 423 (quoting

In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,

concurring) ). While acknowledging that jurors, in par-

ticular, may not master the precise nuances of differences

between various standards of proof, Addington made clear

that the identification of a standard of proof “is more than

an empty semantic exercise.” /d. at 425 (internal cita-

tions omitted). It is the law’s method of telling triers

of fact how certain they must be before they can reach

a certain conclusion.

By requiring proof that a defendant with a mental dis-

ability is incompetent by “clear and convincing” evidence,

the Oklahoma statute instructs the judge or jury that it

must allow the trial to proceed unless its certainty about

the proof of incapacity rises to an extraordinary level. To

evaluate the constitutionality of this burden, it is important

to consider the meaning that courts have ascribed to

“clear and convincing evidence.”

Although the concept of a burden of persuasion some-

where between “preponderance of the evidence” and “proof

beyond a reasonable doubt” may have its origins in the

equity cases of chancery courts, see 2 McCormick on

Evidence § 340 (J.W. Strong ed., 4th ed. 1992), much

of the impetus for its modern development derives from

decisions of this Court prescribing its use for constitu-

tional reasons. See, e.g., Woodby v. Immigration and

Naturalization Service, 385 U.S. 276, 285 (1966) (“clear,

unequivocal, and convincing evidence”). In recent dec-

ades, the use of this standard has proliferated in both case

14

law and statutes. See, e.g., Cruzan v. Director, Missouri

Department of Health, 497 U.S. 261 (1990).

Thé interpretations of this formulation by state courts

reveal the magnitude of the burden it imposes. See, ¢.g.,

Angela P. v. Ronald P., 623 P.2d 198, 204 (Cal. 1981)

(requiring evidence “so clear as to leave no substantial

doubt; sufficiently strong to command the unhesitating

assent of every reasonable mind”) (internal quotations

omitted); Orkin Exterminating Co. v. Traina, 486 N.E.2d

1019, 1022 (Ind. 1986) (“a standard which is but mi-

nutely below the ‘reasonable doubt’ standard”); Estate of

Larimore v. Chatterton, 381 N.E.2d 76, 77 (Ill. App. Ct.

1978) (“a quantum of proof which leaves no reasonable

doubt in the mind of the trier of fact”); Fix v. Fix, 847

S.W.2d 762, 765 (Mo. 1993) (“The evidence must be un-

questionable in character. The evidence must be so clear,

cogent, and convincing as to exclude every reasonable

doubt in the mind of the trial court.”); Pickens v. Black,

885 S.W.2d 872, 876 (Ark. 1994) (“the evidence must

be so strong as to be substantially beyond reasonable

doubt”). Similarly, commentators who have addressed

the meaning of this standard have described this as an

extraordinary burden. See, e.g., David F. Forte, The Role

of the Clear and Convincing Standard of Proof in Right

to Die Cases, 8 Issues in Law and Medicine 183, 185

(1992) (“For most courts, it is the highest standard of

proof that can be applied in civil cases.” ).

Oklahoma’s Supreme Court has found that a similarly

heavy burden rests on any litigant who must prove a

matter by “clear and convincing evidence.” “Clear and

convincing evidence is that measure or degree of proof

which will produce in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegation

sought to be established.” Matter of C.G., 637 P.2d

66, 71 n.12 (Okla. 1981) (citing as authority cases from

the states of Washington, Alaska, Kansas, Oregon, and

Colorado.

15

Since some jurisdictions, like Oklahoma, require or per-

mit competence determinations to be made by juries,

judicial explanations of the standard are particularly im-

portant when they take the form of jury instructions. The

Oklahoma jury instruction, applicable at the time of

Petitioner’s case, emphasized the defendant's extraordinary

burden. Oklahoma Uniform Jury Instructions — Civil 3.2,

cited at p.6 of the Petition for Writ of Certiorari (“you

must be persuaded, considering all the evidence in the

case, that the proposition on which the party has this

burden of proof is true, and that this conclusion is un-

mistakable and free from serious or substantial doubt as

to its correctness” ).

A decade and a half ago, this Court identified “clear

and convincing” merely as “intermediate” between “pre-

ponderance” and the criminal standard, and speculated

that its precise meaning might prove elusive to triers of

fact. But it is now clear that many states instruct fact-

finders that the intermediate standard is an extraordinarily

heavy burden on litigants.”

C. Permitting the trial of a defendant unless the fact-

finder concludes that the proof of incompetence

rises to the level of “clear and convincing evidence”

will result in the trial of substantial numbers of

defendants who lack any real understanding of the

proceedings or who cannot assist in their defense.

Requiring a jury (or a judge) to find that the evidence

of a defendant's trial incompetence is “unmistakable,” or

that it is “sufficiently strong to command the unhesitating

assent of every reasonable mind,” or that it produces “a

"Of course, it is possible that these explanations of “clear and

convincing evidence” by the state courts are more demanding than

the burden envisioned by this Court in cases like Addington which

mandated that governments prove certain matters according to

that standard. But the issue in this case is whether the states may

constitutionally impose on defendants the burden of demonstrating

their own incompetence by “clear and convincing evidence” as it

has been formulated in state law.

16

firm belief or conviction,” requires that the defendant face

trial if substantial and persuasive evidence falls short of

this elevated standard. Enforcement of this rule makes

the trial of genuinely incompetent defendants inevitable.

Approval of the Oklahoma statute would vastly increase

the risk of incompetent individuals being tried, convicted,

and punished. In Medina v. California, 50S U.S. 437

(1992), this Court said that states could place the burden

of persuasion on the issue of competence on defendants by

a preponderance of the evidence. In doing so, the Court

observed that it was not substantially increasing the risk

of incompetent defendants facing trial because the rule

affected only “a narrow class of cases where the evidence

is in equipoise; that is where the evidence that a defendant

is cOmpetent is just as strong as the evidence that he is

incompetent.” /d. at 449. Thus, while it is theoretically

possible that an incompetent defendant would face trial

because the evidence on competence was in absolutely

perfect balance, in reality all that Medina did was to

permit states to require the defendant to come forward

with evidence of incompetence, rather than sitting back,

uncooperatively, in the hope that the state would be

unable to make a showing of his fitness to stand trial. As

Justice O'Connor observed, “States may therefore decide

that a more complete picture of a defendant’s competence

will be obtained if the defense has the incentive to pro-

duce all the evidence in its possession.” /d. at 455

(O'Connor, J., concurring in the judgment).

By contrast, raising the burden on defendant from

“preponderance” to “clear and convincing” will add noth-

ing to that incentive, since the defense would need no

further inducement to produce all the evidence of in-

competence in its possession. The state’s reason for rais-

ing the burden on defendant must be sought elsewhere.

Since a heightened burden is unnecessary to address

cases in which no evidence is presented, and since it is also

unnecessary to encourage the defense to present evidence

17

it has of defendant's incompetence, its only justification

must be that the state wants the opportunity to try, con-

vict, and punish some of the defendants who can persuade

the trier of fact, by a preponderance of the evidence, that

they are unfit for trial. There may be a public demand for

the punishment of the individual thought to be responsible

for a particular crime, coupled with the perception that

incompetence to stand trial is a legal technicality whose

only function is to frustrate the criminal justice system.

See generally Henry J. Steadman, Beating a Rap? De-

fendants Found Incompetent to Stand Trial (1979). Re-

duced to its essentials, the state’s interest in raising the

defendant’s burden above preponderance is nothing more

than the desire to try and to win more cases.” Such a

justification cannot outweigh the risk of erroneous con-

viction that is inherent in any trial of an incompetent

defendant.

Another concern that may be relevant to the issue of

the standard of proof is the possibility that some defend-

ants may “feign incompetence in order to avoid trial.”

Medina, 505 U.S. at 455 (O'Connor, J., concurring in

the judgment). As a simple matter of logic, of course,

any increase in the difficulty of establishing incompetence

will reduce the number of persons found unfit, and some

of those “screened out” by the heightened standard may

be malingerers."" But there is no empirical support for

the proposition that raising the standard of proof will

selectively identify malingerers.

It is also important to note that whatever the prevalence

of malingering may be in the area of mental illness, it is

2 Indeed, if Oklahoma succeeds in its claim that the Due Process

Clause permits requiring the defendant to prove his incompetence

by “clear and convincing evidence,” it is unclear why a state could

not require defendant to prove his incompetence beyond a reason-

able doubt.

‘8 The same would be true, of course, if the state raised the

barrier to proof “beyond a reasonable doubt,” or if it lifted the

ban on trying incompetent persons altogether.

18

substantially less likely among defendants with mental

retardation. First, it would be extraordinarily difficult to

feign mental retardation convincingly. This is true both

because of the nature and design of the psychometric in-

struments available to measure intelligence, and because

individuals who have mental retardation have had it

since chi .“* and generally have a “paper trail” of

identification of their disability in school and social service

records.” Additionally, malingering is not a real world

problem in mental retardation cases because of the char-

acteristic efforts by these defendants to attempt to mask

the true severity of their disability.”

Any criminal trial of a factually incompetent individual

impeaches the credibility and the very legitimacy of the

criminal justice system. Trials of defendants who do not

understand the proceedings, or who cannot assist counsel,

carry the real prospect of valid alternative theories of the

case that remain unexplored, exculpatory evidence that is

not presented, potentially false confessions that go un-

challenged,” and meritorious defenses that no one can

raise. Such trials raise the likelihood of the conviction

14 By definition, mental retardation must be manifested before

age 18. See supra note 6.

It is even more unlikely that a defendant who actually does

have mental retardation could successfully feign legal incompetence

in the Dusky sense. Even if they were motivated to appear less

knowledgeable and aware than they actually were, individuals whose

measured intelligence is in the lowest 2'» percent of the population

cannot plausibly be expected to be very good at calibrating their

“pretended” deficits with any degree of sophistication or credibility.

16If anything, individuals with mental retardation are charac-

teristically “anti-malingerers,” seeking to appear smarter and more

knowledgeable than they actually are.

17 False confessions are a particular problem with defendants

who have mental retardation. See American Bar Association,

Criminal Justice Mental Health Standards 7-5.8, Cmt. at 308-310

(1989); Note, Earl Washington's Confession: Mental Retardation

and the Law of Confessions, 81 Va. L. Rev. 1471 (1995); Ellis &

Luckasson, supra, at 445-52.

19

and punishment of innocent persons to an intolerably

high level.

CONCLUSION

For the aforementioned reasons, amici urge reversal

of the judgment of the Oklahoma Court of Criminal

Appeals.

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

BARBARA E. BERGMAN

1117 Stanford, N.E.

Albuquerque, New Mexico 87131

(505) 277-2146

November 16, 1995 Counsel for Amici Curiae