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July 13, 2012

Shouldn't SCOTUS review Georgia's uniquely tough application of Atkins?

The question in the title of this post is promoted by this new lengthy AP article about the next scheduled lethal injection in Georgia.  The piece is headlined "Case highlights strict Ga. execution standard," and here are the basics:

Georgia was the first state to ban executing mentally disabled death row inmates, but the case of an inmate who is to be put to death next week has highlighted the state's strictest-in-the-nation standard for proving mental disability.

Former President Jimmy Carter is among those who have said the state pardons board should commute Warren Lee Hill's death sentence to life in prison without parole. However, the state argues defense attorneys have failed to meet their burden of proving beyond a reasonable doubt that Hill is mentally disabled.  Hill was convicted of the 1991 murder of a fellow inmate.

Most states that impose the death penalty have a lower threshold for defendants to prove they are mentally disabled, while some states don't set standards at all.  Hill's lawyer Brian Kammer said the high standard for proving mental disability is problematic because psychiatric diagnoses are subject to a degree of uncertainty that is virtually impossible to overcome.

Prosecutors have presented expert testimony and evidence that Hill is not disabled, while his attorneys have presented their own evidence to prove he is disabled.  That can make it difficult to determine anything beyond a reasonable doubt, said Kay Levine, an associate professor of law at Emory University.

"Beyond a reasonable doubt can never be met if you're simply not sure which side is unequivocally telling the truth and which side is not," said Levine, who has no connection to the Hill case.  "The issue with Georgia setting its mental health standard as high as it's set is that it requires such a high level of certainty that even scientists will rarely reach."

Nonetheless, Georgia's strict standard has repeatedly been upheld by state and federal courts.  Last year, the 11th U.S. Circuit Court of Appeals ruled in an appeal of Hill's case that it couldn't strike down Georgia's law because the U.S. Supreme Court allows states to create their own definitions for mentally disabled.  The decision, written by Judge Frank Hull, noted the justices were careful not to set their own rigid guidelines for such a definition.  Even if Georgia "somehow inappropriately struck the balance" when it adopted its standard, Hull wrote, only the U.S. Supreme Court can overturn the state's law.

The Supreme Court last month declined to hear Hill's case, but his lawyer has already submitted a new request to the high court....

The state has cited expert testimony and IQ tests that concluded Hill is not mentally disabled.  Before trial, Hill's family members described him as "the leader of the family" and "a father figure," the state notes.  He was not in special education classes and served in the Navy, where he received promotions, the state has said.

The defense has referenced a state court judge's assessment that Hill was mentally disabled and a test that shows his IQ to be about 70.  The defense has also cited expert testimony that it is not unusual for someone who is mildly mentally disabled to be able to function at a satisfactory level in an environment as structured as the military.  Attorneys also presented a letter from some of Hill's teachers saying that he could never read or write at the proper grade level, and that he was promoted to the next grade only so he would continue to be with children his own age.

The Georgia Board of Pardons and Paroles is set to hear Hill's case Friday.  His lawyer has asked the board to commute Hill's sentence to life in prison without parole or to grant him a 90-day delay to allow the U.S. Supreme Court to consider his case.

Included with the application to the board are letters from former President Carter and his wife, disability groups and the nephew of Joseph Handspike, the inmate Hill killed.  Richard Handspike, who says he is a representative for the family, says in the letter that they were not contacted by prosecutors but would have told authorities they did not want Hill to be executed.

"I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death," Handspike said.  "I believe that if the system had evidence of such disability in Mr. Hill, it should have taken steps to treat him accordingly and prevent his execution."

It has now been more than a decade since the Supreme Court ruled in Atkins that the Eighth Amendment prohibits the execution of mantally retarded defendants.  In Atkins, SCOTUS punted back to the states the hardest issue the case raised: how state are to procedurally administer this new substantive limit on the death penalty.  This procedural issue has been resolved in disparate ways throughout the nation, and Georgia's uniquely tough approach is arguably unconstitutional by virtue of being uniquely tough.  Also, I cannot think of any other matter of criminal procedure in which a defendant is expected to prove something beyond a reasonable doubt.

Perhaps five or more Justices of the current Supreme Court would find constitutionally permissible Georgia's approach to Atkins; perhaps five or more Justices would not.  Either way, this issue seems sufficiently important and ripe for SCOTUS to resolve this issue ASAP and the Hill case seems like a timely and appropriate means for doing so.

July 13, 2012 at 06:02 AM | Permalink


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"Also, I cannot think of any other matter of criminal procedure in which a defendant is expected to prove something beyond a reasonable doubt."

That is just for the guilt phase, isn't it Doug. I don't see an inherent problem with this approach when it comes to sentencing. Perhaps there is an Apprendi issue here with what the jury found beyond a reasonable doubt.

But if the jury during trial found he was mentally fit I do not see how your compliant applies.

Posted by: Daniel | Jul 13, 2012 11:09:52 AM

Absolutely the Court should grant review of Georgia's outlier standard of proof beyond a reasonable doubt. NC uses a burden of "clear and convincing evidence" and I've certed SCOTUS arguing that is too stringent. I believe something like seventeen of the 32 states with the death penalty use the preponderance of the evidence standard.

For me Cooper v Oklahoma 517 U.S. 348 is persuasive. Cooper says making a def prove by clear and convincing evidence that he is incompetent to stand trial violates due process.

Professor James Ellis from New Mexico law school, who argued Atkins, has written in "Mental Retardation and the Death Penalty, A Guide to State Legislative Issues" , "After Atkins and Cooper, it is clearly unconstitutional to assign to the defense the burden of persuasion at an elevated level."

To me, the standard of proof is not a procedure to be left to the states. It should be uniform and the burden should be on the def to prove by a preponderance of evidence that there is mental retardation


Posted by: bruce cunningham | Jul 13, 2012 11:36:14 AM

how would SCOTUS review this case? This guy has had his full habeas round. Wouldn't that be judicial activism?

Posted by: federalist | Jul 13, 2012 11:55:49 AM

Hill is going to file for a rehearing of the denial of certiorari. Let us see if SCOTUS does another flip-flop like they did with Cleve Foster.

Posted by: DaveP | Jul 13, 2012 12:04:10 PM

DaveP, the Cleve Foster case is an embarrassment to the Court. What a joke.

Posted by: federalist | Jul 13, 2012 12:19:28 PM

sorry dianiel but i disagree completely. As far as i'm concerned and the constution agrees the burden in any conflict between the state and a citzen the burden is on the STATE! Why else do you think the founders would have requred ANY conviction to BE BEYOND A REASONABLE DOUBT!

i see not one word in that documetn that says....AFTER a conviction you can toss this rule!

Posted by: rodsmith | Jul 13, 2012 1:06:59 PM

rodsmith, this will be a shock but even I can't agree that the state has to prove the defendant is not mentally retarded beyond a reasonable doubt. Being mentally retarded is not a conviction of anything, as you suggest. It is a bar, based on the eighth amendment, to the imposition of the death penalty.


Posted by: bruce cunningham | Jul 13, 2012 1:42:05 PM

Rod, can you show me where in the constitution it says that the State has the burden on any issue beyond a reasonable doubt.

That standard comes from the Supreme Court's interpretation of the due process clause (i.e. what the burden of proof was at the time of the framing). The law has always distinguished between elements of actions (whether civil or criminal) and defenses to actions (whether civil or criminal). The normal rule is that plaintiffs have the burden of proving elements and the defendant has the burden of proving defenses. The Supreme Court has previously found that a state can place the burden of proving insanity on a defendant. See e.g., Leland v. Oregon and Clark v. Arizona. In Clark, the Supreme Court noted that not only could a State place the burden of proving insanity on a defendant but that it could use a higher burden of proof than preponderance of the evidence.

As to whether the Supreme Court should grant certiorari, has any state high court or US Circuit Court of Appeals found that any state's approach to Akins is unconstitutional? If so, then you might have a conflict that needs to be resolved. If not, the only reason for the Supreme Court to grant cert would be if they saw a need to correct the 11th Circuit. If the Supreme Court thinks that the State is free to assign any burden of proof on this issue, then there is no reason to grant cert.

Posted by: TMM | Jul 13, 2012 2:19:21 PM

agreed on Foster. I have never seen the Court grant a prisoner so many stays. I wonder if his obviously clever attorney can pull another one off?

I thought at the very least there would be a couple of dissents from the denial of cert in Hill. His best shot is the GA Parole Board.

Posted by: DaveP | Jul 13, 2012 2:22:42 PM

good post

Posted by: DaveP | Jul 13, 2012 2:24:26 PM

It is curious how no one in the media is discussing that Hill was in prison for life for killing his 18 year old girlfriend by shooting her 11 times.

Posted by: DaveP | Jul 13, 2012 4:39:31 PM

Thanks Bruce and TMM, that makes things clearer for me.

My question is this: why is insanity or mental retardation a defense. From the perspective of a psychologist they are simply facts. Mental retardation has a clinical definition and while there is certainly a range within which professional can disagree that range is not infinite.

So it seems to me that mental retardation can only be raised as a bar or a defense if one can first demonstrate it as a fact. And isn't that the issue in the case, whether or not the defendant is--in fact--mentally retarded.

So then the question becomes: where and when does the fact that a person is mentally retarded get determined legally. I would think--maybe wrongly--that this is an issue that would first be raised at trial, not at sentencing.

Posted by: Daniel | Jul 13, 2012 4:46:57 PM

@Daniel: The Supreme Court said in Atkins that the mentally retarded cannot be executed. There is no such prohibition on trying them and finding them guilty. However, execution cannot be the punishment. So it is a sentencing issue, not a trial issue.

The only question is what degree of certainty is required before a defendant can take advantage of this rule. Like any fact, the fact of mental retardation may be open to dispute and professional disagreement in close cases. Georgia has imposed a rather heavy burden that would be difficult for most defendants to meet.

Posted by: Marc Shepherd | Jul 13, 2012 6:20:07 PM

Does anyone know if Hill raised any mental
impairment issues at either of his trials around 1986 & 1990. Or did his attorneys start this after Atkins was decided?

Posted by: DaveP | Jul 13, 2012 6:29:00 PM


I get Atkins is about but my question is about practice. Isn't the place in the legal system where facts are normally determined is at trial, not at sentencing. Was the defendant's lack of mental retardation a fact found by the jury during his trial or not in this case. The article makes it sound like this was an issue at his trial and the jury found he was not mentally retarded. But it doesn't affirm that explicitly.

Or are you saying that even if his lack of mental retardation was a fact found by a jury during his trial because of Atkins he can relitigate that fact all over again at sentencing.

Posted by: Daniel | Jul 13, 2012 7:35:36 PM

Daniel and Marc,

I respectfully disagree with both of you. The question of whether a def is mentally retarded, and therefore ineligible for death, is neither a trial issue or a sentencing issue.

It is a threshold issue to be determined by a judge prior to trial to determine , affecting what the maximum possible punishment is. It is like age, and Eighth Amendment categorical prohibition of a certain punishment.

As a defense lawyer, I have to know what the maximum possible punishment is before I can be effective in my advising my client whether a defendant should accept a plea offer of life without parole. As a defendant, I have to know how deep the water is before I decide what plea offer to make or accept.

A third reason, in my view, that a defendant must know before the trial begins whether the case is capital or not is because it affects whether a jury is death qualified. Death qualification is a culling of the venire, not the petit jury, since it is divorced from the facts of a particular case. It serves a gatekeeping function. Any juror who would automatically vote for or against death, regardless of the facts, is challengable for cause. Since death qualification culls the venire, then I think the fair cross section component of the Sixth Amendment right to an impartial jury is applicable. Which means, I believe, that any process which removes qualified jurors from the jury violates the defendant's sixth amendment right to an impartial jury, and the juror's first and fourteenth amendment right to be able to sit on the jury . (ala Batson, which is as much the juror's right not to be discriminated against based on their race) I say it also violates the first amendment for a juror to be excused for his views on death, when such views are irrelevant to the proceeding, because the def can't get death.

So, MR is not a defense, is not a mitigator, is not something for the state to disprove. Constitutionally, it is not to be decided by the jury. It is a pretrial issue making a def ineligible for death to be decided by the judge, based strictly on the eighth amendment's categorical prohibition of imposing death on a mentally retarded defendant.


Posted by: bruce cunningham | Jul 13, 2012 11:03:51 PM


While you make good points mental retardation is still a factual issue. Therefore, it is for a jury not a judge to determine. If no reasonable jury could say he doesn't have mental retardation then a judge can rule it as a matter of law, but that doesn't appear to be the case here or in most cases. That means it has to go to a jury as either a defense against guilt or to bar the imposition of the death penalty during the guilt phase.

There is no procedural means by which a judge can rule on this issue pre trial.

Posted by: Matt | Jul 14, 2012 1:06:24 PM

Matt, it is not unusual in North Carolina to have pretrial determinations of Mental Retardation in front of the judge and there is a specific statutory procedure to be followed. I have argued that even if there was no state statutory procedure, the constitution requires a pretrial determination, once a threshold showing has been made, for all the reasons in my prior post. How can I intelligently advise my client what to do about plea negotiations if we don't know what he is facing?.

What state do you practice in? How often do you litigate MR before a jury?

I have found in the last few years that prosecutors are as eager as I to have the pretrial MR determnation be made because if the case is not capital, it helps everyone to know up front, rather than spend years of litigating the issue in the event there is a death verdict.

Do you contend that a determination of MR is a "criminal prosecution?" That is the only thing for which a def is guaranteed the right to a jury trial.


Posted by: bruce cunningham | Jul 14, 2012 2:25:33 PM

I would contend that a determination of MR is a criminal prosecution under the same thesis as the admission of testimony under the confrontation right per Crawford. It's a determination that will be used as part of a criminal prosecution. Would you argue Bruce that the statements by the prosecution's psychologists are not testimonial and therefore not subject to cross simply because they are not part of a "criminal prosecution"?

I think the idea that simply because the jury hasn't been impaneled yet so it's not a criminal prosecution is disturbing, especially coming from a defense lawyer. I understand your point about the practical reality of plea bargaining and judicial economy; it's a rational point. But the solution to that has to be something other than just letting the judge decide.

I understand the complaint about the standard. I think that equally as important as the standard are the "who" and the "when" of the application of the standard. Saying "we'll let the judge decide it right up front" has an intuitive appeal for the lazy buy it flies in the face of overall intent of the defendant's rights in a criminal prosecution.

Posted by: Daniel | Jul 14, 2012 4:42:45 PM

Daniel, thank you for your comments. I will try to explain my position.

There are practical and conceptual components to the notion that a jury is not constitutionally required to determine whether a defendant is mentally retarded and therefore not eligible for death. (a jury may be provided voluntarily by the state to take a second look at the issue, as occurs in North Carolina, but a defendant does not, in my opinion, have a constitutional right to have a jury. Just as there is no constitutional right to have a jury determine a sentence) So, sentencing is not a criminal proceeding, in the Sixth Amendment sense of the word. Thomas' concurring opinion in Apprendi and Scalia's concurring opinion in Ring make it clear that sentencing is not a criminal prosecution.

Another way to look at it is that if it were a Sixth Amendment criminal prosecution the burden would not be on the defendant to prove MR by whatever standard. No one on the blog, I assume, would advocate for the position that the state has the burden of proving beyond a reasonable doubt that a defendant is not mentally retarded. "Lack of being Mentally Retarded" is not an element of a crime, and juries are only constitutionally required for the purpose of determining if someone committed a crime.

Practically, it is very dicey arguing that your client is mentally retarded in the course of a capital murder trial. Evidence that may be helpful in establishing that the defendant is MR could be detrimental with respect to a trial strategy dependent on requiring the state to prove its case. In other words, you would be walking a fine line to try before the same jury in the same proceeding whether the defendant is guilty and if he is mentally retarded. One of the reasons I have argued that we needed a pretrial MR determination is that for us to fully present the strongest case for MR would involve a waiver of the right against self-incrimination.

The right to be exempt from death is an Eighth Amendment right and only the judge has the constitutional authority to decide whether the def is mentally retarded. This is difficult to explain unless you have been in court arguing a MR motion.

I don't think it is being "lazy" to want a pretrial determination of MR, which may result in the case not being tried capitally. We all know a death qualified jury is more prone to convict.


Posted by: bruce cunningham | Jul 14, 2012 9:55:27 PM

So let me see if I understand you correctly Bruce. What you want is a pretrial determination of MR. Since this determination only applies to sentencing it is not a criminal prosecution because sentencing is not a criminal prosecution. Nevertheless, the reason why you want this pre-trial determination is because it impact plea bargaining, which is directly related not only to sentencing but to guilt.

So once again we are back to the reality that the reason we want to know if a defendant is MR or not is because we want to use it as part of a criminal prosecution. The issue of guilt and sentence are so intertwined at the plea bargaining stage there is no effective way to unbundle them. By your own admission you want to know what your clients exposure is so you know what's going to happen it he pleads guilty.

It may be that having the same jury decide if the client is mentally retarded is a "tricky business" but I think it's the jury's job to do that, not the judge's place.

Posted by: Daniel | Jul 15, 2012 12:26:48 AM

BTW Bruce,

You write, ""Lack of being Mentally Retarded" is not an element of a crime"

I wonder what you think of this very recent law article that disagrees with you on that point:


Posted by: Daniel | Jul 15, 2012 12:36:53 AM


It is much more nuanced than you suggest. There are other reasons why a pretrial determination of MR is necessary than its impact on plea bargaining. I'll explain a few.

The fair cross section component of the Sixth Amendment right to an impartial jury is applicable only to the culling of the venire, not the petit jury. In my view, death qualification of the jury culls the venire, because it is divorced from the facts of the case. Death qualification is when both sides get to remove for cause any juror who would automatically vote for or against death. Any defense lawyer will tell you that death qualification of the jury results in a jury more prone to convict. So, determining MR pretrial and possibly removing death from the table, protects a defendant's right to a fair cross section of the community sitting on the jury. This is becoming more and more pertinent, since what we are seeing is a greater percentage of black females with an opposition to the death penalty based on their religous views. If your client is black and juror after juror is being challenged for cause for their death views, when their death views are irrelevant if the def is MR, understandably the defendant perceives that his right to a fair cross section of the community is being infringed.

Another perspective is from the juror's point of view. As you know, Batson protects the right of individual jurors from being excluded from jury service because of their race, just as it protects the right of a defendant to not have jurors excluded improperly. It violates the right of jurors to participate in part of the governmental process to excuse them from the process because of their death views, when their death views have nothing to do with the case if the defendant is MR.

I cited the plea negotiation concern as a practical matter, just as efficiency of judicial resources by screening cases at the outset is a practical matter. In my opinion, the more important reason to determine MR at the outset is the impact on the Sixth Amendment right to an impartial jury.

Thanks for the conversation. It always helps me crystallize my views to explain them to someone.


Posted by: bruce cunningham | Jul 15, 2012 6:16:04 AM

In my state, mental retardation is a penalty phase issue with the burden of proof on a defendant by preponderance of the evidence. However, by agreement of the parties, there can be a pre-trial hearing on the issue in addition to the right to submit it to the jury. I do not see anything in Atkins that requires a prosecutor to consent to a pre-trial hearing on mental retardation, any more than Gregg requires a pre-trial hearing on statutory aggravators.

Posted by: TMM | Jul 16, 2012 9:50:17 AM

Everything about a trial changes with an MR ruling, therefor it should be made as early in the process as is practicable. Beyond death qualifying a jury (a procees which adds days or weeks to the trial), defense counsel will be spending hundreds of hours and thousands of dollars preparing for a case in mitigation that will be 100% unnecessary upon a finding of MR. It would seem to me that all parties would want an early and accurate determination of the isssue. It is a question of law for the trial court to determine, just as it would any pretrial issue like admissability of evidence, etc.

Posted by: Ala JD | Jul 16, 2012 12:06:57 PM

personaly i think a bunch of citizens dragged off the streets and told "your now a jury" have no busines deciding someone is mentaly incapicated ....and NEITHER should a judge.

IF there is a question as to "is or isn't" it should be decided by a set of EXPERTS in the field!

at that point they can present their report to the court and things can move on from there on that basis.

sorry but to WANT to do it any other way just tells me the WRONG people are being examined!

Posted by: rodsmith | Jul 16, 2012 12:56:15 PM

Cooper says making a def prove by clear and convincing evidence that he is incompetent to stand trial violates due process.

Posted by: Cowboys Snapback | Sep 11, 2012 8:05:20 PM

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