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July 1, 2010

Georgia to seek en banc review of Eleventh Circuit panel ruling about Atkins application

As detailed in this post from a few weeks ago, a Eleventh Circuit panel in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here), declared unconstitutional Georgia's procedures for implementing the Atkins ruling prohibiting the execution of mentally retarded persons.  As detailed in this lengthy and effective Fulton County Daily Report article on the ruling, the state of Georgia is going to seek to get the ruling reconsidered.  Here are snippets from the article:

Although Georgia was the first state in the nation to outlaw the execution of mentally retarded defendants in 1988, it remains the only state to require an offender to provide proof of mental retardation beyond a reasonable doubt -- the most stringent legal standard, according to the opinion. The maximum penalty for mentally retarded offenders in Georgia is life imprisonment.

Twenty-two other states require a defendant to prove mental retardation by a preponderance of the evidence; four states have adopted a "clear and convincing standard" -- both less stringent, civil standards of proof. Three states have no uniform standard of proof with regard to mentally retarded capital defendants.

The findings of the 11th Circuit panel -- which included Judges Rosemary Barkett, Stanley Marcus and Frank M. Hull -- included a strong 29-page dissent by Hull, who said that the U.S. Supreme Court's 2002 decision outlawing the execution of mentally retarded defendants, Atkins v. Virginia, "left it for the states to develop the procedural and substantive guides for determining who is mentally retarded."...

State Attorney General Thurbert E. Baker, who is running for the state Democratic nomination for governor and whose office is defending the Georgia statute, will ask the the 11th Circuit to reconsider the ruling en banc, Baker spokesman Russell D. Willard said Tuesday. "We believe the majority decision was erroneous, and we look forward to making our argument before the full 11th Circuit," Willard said.  He declined to detail the nature of the errors, saying that they would be included in pleadings the attorney general will file "shortly."...

Brian Kammer, an attorney with the Georgia Resource Center who has been representing defendant Warren Lee Hill Jr. in state and federal appeals of his 1991 death sentence since 1996, said the appellate panel's ruling has reversed a "stark instance of injustice."

"The burden of proof has been challenged several times in different cases unsuccessfully in Georgia," Kammer said. "But it certainly hadn't gotten to 11th Circuit before now."  Hill's case, Kammer continued, "is a primary example of how the reasonable doubt burden of proof will likely result in the execution of the mentally retarded."

Whether or not the full Eleventh Circuit takes up this issue, I think there is a very good chance that the Supreme Court will be considering some variation on this Atkins implementation issue before too long.

July 1, 2010 at 10:17 AM | Permalink


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