High-profile NY federal capital case raising numerous Atkins issues second time around

This new FoxNews report provides a notable (and confusing) account of an interesting "Atkins hearing" which started today in a high-profile federal capital case out of New York.  The piece is headlined "Cop killer seeks to avoid death penalty based on low IQ," and here are some of the basics:

A convicted New York cop killer is hoping to avoid the death penalty by using an increasingly common defense -- he's just not smart enough to face execution for his crimes.  Lawyers for Ronell Wilson began trying to convince a federal judge on Monday to [preclude imposition of a new] death sentence for the 2003 murder of New York City detectives Rodney Andrews and James Nemorin during an undercover sting in the borough of Staten Island.  With an IQ of just under 70, defense attorneys say Wilson is mildly retarded and therefore exempt from the ultimate punishment....

In a procedure that is expected to last three weeks, the judge will likely examine Wilson’s complete educational history, as well as a formal IQ score and adaptive function tests.  If he scores low enough, it could save his life....

As for Wilson, experts said the brutality of the murder of the two New York City detectives is not what is at issue.  “This was a brutal murder, and it raises tremendous outrage and demands that it is treated with the greatest sanction," Alan Lipman, a behavioral sciences professor at George Washington University Medical Center and director of the Center for the Study of Violence, told FoxNews.com.  “The question here is whether being mentally retarded is the difference between the death penalty and life in prison.  He is right on the line, which means that [a ruling] could go either way.  The judge has set aside three weeks for this hearing, which says to me that he knows there will be lengthy arguments from both sides.  This is going to be a close call.”

This Reuters article about the case provides more (and clearer) background not only concerning why this case is high-profile, but also concerning the procedural issues that should make this unusual federal court hearing so interesting to hard-core Atkins fans:

A convicted cop killer who escaped death row in 2010 is trying to beat the federal death penalty for a second time by claiming on the resentencing that he is mentally retarded. Ronell Wilson, 30, was sentenced to death by a jury in 2007 for murdering two undercover New York Police Department officers posing as gun buyers in Staten Island.  The 2nd U.S. Circuit Court of Appeals vacated his sentence in 2010, finding that prosecutors violated his constitutional rights by, among other things, telling jurors his decision to go to trial indicated a lack of remorse and refusal to accept responsibility for the crime.

The court remanded the case for resentencing and the U.S. Attorney last year said it would once again seek the death penalty.  New York abolished the death penalty in 2004, but Wilson's was a federal death sentence, the first in the state since 1954.

At a hearing starting Monday, Wilson's lawyers are scheduled to argue to U.S. Judge Nicholas Garaufis that Wilson is mentally retarded and that executing him would run afoul of the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia.... Wilson is being sentenced under the Federal Death Penalty Act, which bars the execution of mentally retarded prisoners but does not define mental retardation....

In a February letter to Garaufis, Wilson's lawyers said that a "preliminary investigation" had indicated their client was mentally retarded.  Since then, Wilson has undergone a battery of psychiatric tests by experts from both sides.  The findings have not yet been made public, and both sides declined to comment on the case or the evidence they will present during the hearing.  Wilson's mental condition was brought up briefly during his first sentencing proceeding in 2007, although his prior defense counsel did not raise an Atkins claim.  They told jurors that Wilson had an IQ in the high 70s and said he had been hospitalized for psychiatric problems several times as a child.

Garaufis, relying on criteria in Atkins, in June set forth factors he will use to evaluate Wilson's claim, including his IQ score, his adaptive functioning or ability to perform life skills like holding a job and whether his alleged condition began to manifest itself before his 18th birthday....  Typically, Atkins claims are raised and decided before the guilt phase of the trial, but they can also come after post-conviction appeals, like Wilson's. 

The more borderline the alleged retardation, the more contentious the Atkins determination typically is, [Cornell Law School professor John] Blume said.  For instance, a defendant with an IQ below 40 could be fairly easily categorized as retarded, but someone with an IQ as high as 70 or 75 could also qualify.

Blume said it was difficult to predict how Wilson's claim would fare.  But Garaufis has blocked off more than 10 days over three weeks, including some Saturdays, to hear evidence on the Atkins claim, indicating that Wilson may be in for a lengthy battle.

Though I am unsure how many procedural issues have already been considered and resolved, I can already spot a gaggle of (appeal-worthy) issues implicated by this scheduled hearing on whether convicted murdered Ronell Wilson is mentally retarded. For example:

1.  Does the failure to fully litigate Atkins before in his first round of death sentencing impact the litigation of Wilson's Atkins claim (or Federal Death Penalty Act claim) now?

2.  What is the proper burden of proof under federal constitutional law (or federal common law) for Wilson's Atkins claim, and who bears that burden?

3.  Does Wilson have any basis to "re-argue" his Atkins claim to a federal sentencing jury if (and when?) it is rejected by Judge Garaufis?

4.  Can (and should) either side appeal any aspect of these Atkins issues/rulings to the Second Circuit and/or SCOTUS before another sentencing jury considers imposing another federal death sentence on Wilson? 

This case is worth watching closely in part because the Supreme Court has studiously avoided, for now over a decade, taking up any of the Atkins administration issues that have divided state lower courts.  Because of its federal (and high-profile) status, and especially because just how Atkins is applied may determine whether Ronell Wilson is even subject to another death sentence, the Justices may not be able to dodge these Atkins issues if (and when?) this case eventually makes it into the cert pool.