When Atkins meets Blakely in Apprendi-land

Anyone who understands the title of this post may recall that, as detailed in this post, a New Jersey appellate court in August held in New Jersey v. Jimenez (NJ App. Aug. 17, 2005) (available here), that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a resonable doubt.  Earlier this month, as detailed in this news story, the New Jersey Supreme Court decided to take up Jimenez.  The case is moving on an expedited schedule, and this week the NJ Attorney General's Office filed an amicus letter brief in Jimenez. 

An FOB ("friend of blog") was kind enough to provide me with the NJ AG's letter brief, and it is available for download below.  The brief raise a number of interesting and nuanced issues, and concludes with this paragraph:

This Court must reverse the opinion below since there is broad latitude within which to craft a constitutionally sound process for adjudicating mental retardation claims in the wake of Atkins v. Virginia.  What shape that framework should take must be left open for the Legislature.  As an interim measure, this Court should exercise its supervisory authority and follow the will of the Legislature as expressed to date by placing the burden of proof on the defense to prove mental retardation by a preponderance of the evidence at a pre-trial hearing.  Timing requirements should also be put into effect for the filing of notice of an intent to pursue such a claim, as well as for discovery and orders waiving confidentiality provisions concerning relevant records.

Download jimenez_letter_brief_to_sct_re_mr_procedures.pdf