# Amicus Curiae Brief — Cooper v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0779%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 348 ## Text g | S No. 95-5207 (g) 2 Y ~ 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 VI jA/ Fah ued | 1 inl ui 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0779%3A08. Public record. Not legal advice.