Van Tran, Atkins, and Beyond

1
Van Tran, Atkins, and Beyond

• Mark Olive
• Tallahassee, Florida

2
How Did We Get Here

• 1989, Penry
• Year after year re-raised and rejected
• Increasing international condemnation, increasing
  number(s) of statutes (including TN in 1990),
  increasing cert denials
• McCarver in North Carolina Jonathan Broun,
  having nothing else in a successor with an
  execution date, stayed up all nightHail Mary
• STAY OF EXECUTION/CERT GRANT

3
Daryl Atkins

• Lost on direct appeal, execution of the mentally
  retarded was not raised (other than as
  proportionality)
• Cert petition already filed pre-McCarver
• Filed a supplemental cert. petition citing
  McCarver

4
From McCarver to Atkins

• Atkins held for McCarver
• McCarver dismissed as improvidently granted
• Atkins has cert. granted
• It just goes to show you, you never know.

5
The Atkins Holding

• Because of their disabilities in areas of
  reasoning, judgment, and control of their
  impulses, however, they do not act with the level
  of moral culpability that characterizes the most
  serious adult criminal conduct. Moreover, their
  impairments can jeopardize the reliability and
  fairness of capital proceedings against mentally
  retarded defendants.

6
Definition of Mental RetardationAAMR and DSM

• Significantly sub-average general intellectual
  functioning
• Deficits in adaptive behavior
• Both with onset during the developmental years
  (age 18-21)

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PROCEDURES LEFT TO THE STATES, BUT THE
CONSTITUTIONAL FLOOR IS ATKINS
8
Theme Be Not Afraid

• Demand
• what is not provided
• the most protection imaginable and
• from the least likely sources.
• Examples Legal Issues--Jury trial, no
  Witherspooning, and restricting crime facts

9
Jury Trial? Virginia MR Statute

• Statute provided for jury trial if MR raised on
  direct appeal
• If raised in state habeas, remand for a
  determination without mention of jury trial

10
Burns v. Warden, June 10, 2004

• Burns suggests, allowing some capital
  defendants a jury determination of mental
  retardation while denying that procedure to
  others amounts to disparate treatment that would
  run afoul of state and federal guarantees of
  equal protection. And that Ring and Apprendi
  require a jury determination of mental
  retardation because a factual finding that Burns
  is not mentally retarded is necessary to increase
  Burns punishment to death.

11
CONSTRUCTION TO AVOID CONSTITUTIONAL INFIRMITY

• The different procedures for resolving this
  factual issue that the Warden urges are based
  solely on whether a capital defendant happened to
  have his case on direct appeal or collateral
  attack.

12
Burns

• Court recognizes that it should interpret
  statutes in a way that makes them constitutional
• This is written immediately after the Court
  described Burns argument that if the statute
  does not provide for juries it is
  unconstitutional
• Court holds the statute provides for juries.

13
Equal Protection Waaaah??

• To assign the finding of this fact to the
  trial court for one group of qualifying
  defendants and to either a court or jury for
  another would treat similarly situated persons
  differently in violation of the Equal Protection
  Clause of the Fourteenth Amendment. City of
  Cleburne, 473 U.S. 432, 439 (1985).

14
ACCLAIM FOR AN UNRAISED FRIVOLOUS CLAIMS

• History of our workthe discovery of obvious,
  latent rights
• Blind eye to procedural hurdles
• Lesson Ya never know

15
Georgia Patillo 417 S.E.2d 139

• Consequences (life) cannot be revealed
• Thus, in post-conviction, the fact that defendant
  is on death row is not relevant.
• The jury can focus strictly on the issue of the
  mental condition of the defendant without being
  concerned about the consequences of its finding.
• Thus, in Gates, guards inadvertent testimony that
  he knew d on death row caused a mistrial and
  then a pleas

16
Foster 406 S.E. 2d 74

• Blanket prohibition on facts of the crime error
• Probative v prejudice is key
• This is where before 18 becomes important the
  more distant the evidence is from age 18, the
  less probative it is

17
Atkins on remand

• Trial court judge says that jurors get o know
  about the death sentence
• Trial court judge says that state cannot
  introduce any facts o any crime unless they show
  that the fact is relevant to adaptive functioning

18
Practical Issues

• Most important lesson is that this is a plea
  strategy, not a trial or post-conviction strategy

19
Other Important Lessons

• Most important prong is before age 18
• Second most important prong is deficits in
  adaptive behavior
• Least importantIQ
• Use the AAMR text and definitions

20
AAMR

• Adaptive behavior is the collection of
  conceptual, social, and practical skills that
  have been learned by people in order to function
  in their everyday lives.

21
TENNESSEE

• 1990 Statute 39-13-203
• Significantly sub-average general intellectual
  functioning as evidenced by an IQ of 70 or below
  (Atkins says 75)
• Deficits in adaptive behavior (not even
  significant deficits)
• Manifested during the developmental period, or by
  age 18

22
First case to address this

• State v. Smith, 893 S.W.2d 908 (Tenn. 1995)
• Court says that statute does not define deficits
  in adaptive behavior
• AAMR definitions are not in the record

23
So, Court used common sense..

• What is the ordinary meaning?
• That is what the red book is for
• The inability of an individual to behave so as
  to adapt to surrounding circumstances.

24
For example..

• He could hold a job while in prison
• Could take a test, so he had learned to adapt to
  his low IQ
• OHMYGOD

25
What can people suffering from mental retardation
do?

• Get a drivers license
• Drive a car
• Get Married
• Have Children
• Swim
• Laugh
• Have a conversation
• Read a book
• Graduate from HS

• Be attractive
• Play sports
• Have friends
• Dance
• Use drugs
• Drink alcohol
• Count
• Work
• Commit murder

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Can Do

• Join the military
• Write poetry
• Draw
• Be depressed
• Tell jokes
• Cook
• Bathe
• Watch TV
• Like basketball

• Take care of a pet
• Fabricate an alibi
• Own a house
• Buy a car
• Read the newspaper
• Follow sports
• Write letters
• Plan a crime

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Can Do

• Join the military
• Write poetry
• Draw
• Be depressed
• Tell jokes
• Cook
• Bathe
• Watch TV
• Like basketball

• Take care of a pet
• Fabricate an alibi
• Own a house
• Buy a car
• Read the newspaper
• Follow sports
• Write letters
• Plan a crime

28
This Was Not Corrected in Van Tran

• Van Tran says that executions would violate the
  state constitution and the eighth amendment,
  relying on Fleming
• Again relies upon the statutory definition

29
But then Atkins was Decided

• Constitutional floor
• Cites, relies upon AAMR and DSM