By imposing the overwhelming majority of the risk of error on the defendant in its application of the most stringent standard possible, Georgia holds that it is far better to erroneously execute a mentally retarded person than to erroneously impose a life sentence on one not mentally retarded. Requiring a defendant to prove mental retardation beyond a reasonable doubt is appropriate only if the interests of a state in maximizing the number of death sentences outweigh the constitutional right of mentally retarded offenders not to be executed. This state interest, however, is not constitutionally permissible at the cost of violating the constitutional right of a mentally retarded offender not to be executed.
Hill v. Schofield, __ F. 3d __ , Case No. 08-15444 (11th Cir., June 18, 2010), slip op. at pgs. 14-15.
However, the decision was not without strong dissent. I am no lawyer, but a few folks I know withknowledge of these matters suggest that it is likely that the state will ask for a a rehearing in front of the entire array of the 11th circuit's judges, a procedure known as motion for rehearing en banc. A motion for rehearing is (according to my sources) a prerequisite for seeking review by the SCOTUS.
Although the case is limited to the 11th Circuit (Fla, Ala, Ga) it could potentially have impact elsewhere. The concept of limited powers to define and apply Atkins could possibly be extended beyond just the burden of proof (e.g., one could argue bright line cutoff scores, SEM, and courts claiming to know the types of behaviors the define the AB prong of the Dx--Briseno AB standards in Texas).
Clearly this case warrants close monitoring.
I have added the case to the ICDP Court Decisions blogroll with a link to the decision.
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