Van Tran, Atkins, Van Tran, Atkins, and and BeyondBeyond

Mark OliveMark Olive

Tallahassee, FloridaTallahassee, Florida

How Did We Get HereHow Did We Get Here

1989, 1989, PenryPenry Year after year re-raised and rejectedYear after year re-raised and rejected Increasing international condemnation, Increasing international condemnation,

increasing number(s) of statutes (including increasing number(s) of statutes (including TN in 1990), increasing cert denialsTN in 1990), increasing cert denials

McCarverMcCarver in North Carolina; Jonathan in North Carolina; Jonathan Broun, having nothing else in a successor Broun, having nothing else in a successor with an execution date, stayed up all nightwith an execution date, stayed up all night—Hail Mary —Hail Mary

STAY OF EXECUTION/CERT GRANTSTAY OF EXECUTION/CERT GRANT

Daryl AtkinsDaryl Atkins

Lost on direct appeal, execution of the Lost on direct appeal, execution of the mentally retarded was not raised mentally retarded was not raised (other than as proportionality)(other than as proportionality)

Cert petition already filed pre-Cert petition already filed pre-McCarverMcCarver

Filed a supplemental cert. petition Filed a supplemental cert. petition citing citing McCarverMcCarver

From From McCarverMcCarver to to AtkinsAtkins

AtkinsAtkins “held” for “held” for McCarverMcCarver

McCarver McCarver dismissed as improvidently dismissed as improvidently grantedgranted

AtkinsAtkins has cert. granted has cert. granted

It just goes to show you, you never It just goes to show you, you never know.know.

The The AtkinsAtkins Holding 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.”

Definition of Mental RetardationDefinition of Mental RetardationAAMR and DSMAAMR and DSM

Significantly sub-average general Significantly sub-average general intellectual functioningintellectual functioning

Deficits in adaptive behaviorDeficits in adaptive behavior

Both with onset during the Both with onset during the developmental years (age 18-21)developmental years (age 18-21)

PROCEDURES LEFT TO PROCEDURES LEFT TO THE STATES, BUT THE THE STATES, BUT THE

CONSTITUTIONAL CONSTITUTIONAL FLOOR IS FLOOR IS ATKINSATKINS

Theme: Be Not AfraidTheme: Be Not Afraid

Demand:Demand:

what is not provided;what is not provided;

the most protection imaginable; andthe most protection imaginable; and

from the least likely sources.from the least likely sources.

Examples: Legal Issues--Jury trial, no Examples: Legal Issues--Jury trial, no Witherspooning, and restricting crime factsWitherspooning, and restricting crime facts

Jury Trial? Virginia MR StatuteJury Trial? Virginia MR Statute

Statute provided for jury trial if MR Statute provided for jury trial if MR raised on direct appealraised on direct appeal

If raised in state habeas, remand for If raised in state habeas, remand for a determination without mention of a determination without mention of jury trialjury trial

Burns v. WardenBurns v. Warden, June 10, 2004, June 10, 2004

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

CONSTRUCTION TO AVOID CONSTRUCTION TO AVOID CONSTITUTIONAL INFIRMITYCONSTITUTIONAL INFIRMITY

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

BurnsBurns

Court recognizes that it should interpret Court recognizes that it should interpret statutes in a way that makes them statutes in a way that makes them constitutionalconstitutional

This is written immediately after the Court This is written immediately after the Court described Burns’ argument that if the described Burns’ argument that if the statute does not provide for juries it is statute does not provide for juries it is unconstitutionalunconstitutional

Court holds the statute provides for juries.Court holds the statute provides for juries.

Equal Protection: Waaaah??Equal Protection: Waaaah??

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

ACCLAIM FOR AN UNRAISED ACCLAIM FOR AN UNRAISED FRIVOLOUS CLAIMSFRIVOLOUS CLAIMS

History of our work—the discovery of History of our work—the discovery of obvious, latent rightsobvious, latent rights

Blind eye to procedural hurdlesBlind eye to procedural hurdles

Lesson: “Ya’ never know”Lesson: “Ya’ never know”

Georgia: Georgia: PatilloPatillo 417 S.E.2d 139 417 S.E.2d 139

Consequences (life) cannot be revealedConsequences (life) cannot be revealed

Thus, in post-conviction, the fact that defendant Thus, in post-conviction, the fact that defendant is on death row is not relevant.is on death row is not relevant.

““The jury can focus strictly on the issue of the The jury can focus strictly on the issue of the mental condition of the defendant without being mental condition of the defendant without being concerned about the consequences of its finding.”concerned about the consequences of its finding.”

Thus, in Thus, in GatesGates, guards inadvertent testimony that , guards inadvertent testimony that he knew d on “death row” caused a mistrial and he knew d on “death row” caused a mistrial and then a pleasthen a pleas

FosterFoster: 406 S.E. 2d 74: 406 S.E. 2d 74

Blanket prohibition on facts of the Blanket prohibition on facts of the crime errorcrime error

Probative v prejudice is keyProbative v prejudice is key

This is where “before 18” becomes This is where “before 18” becomes important; the more distant the important; the more distant the evidence is from age 18, the less evidence is from age 18, the less probative it isprobative it is

AtkinsAtkins on remand on remand

Trial court judge says that jurors get Trial court judge says that jurors get o know about the death sentenceo know about the death sentence

Trial court judge says that state Trial court judge says that state cannot introduce any facts o any cannot introduce any facts o any crime unless they show that the fact crime unless they show that the fact is relevant to adaptive functioningis relevant to adaptive functioning

Practical IssuesPractical Issues

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

Other Important LessonsOther Important Lessons

Most important prong is before age Most important prong is before age 1818

Second most important prong is Second most important prong is deficits in adaptive behaviordeficits in adaptive behavior

Least important—IQLeast important—IQ

Use the AAMR text and definitionsUse the AAMR text and definitions

AAMRAAMR

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

TENNESSEETENNESSEE

1990 Statute 39-13-2031990 Statute 39-13-203

Significantly sub-average general intellectual Significantly sub-average general intellectual functioning as evidenced by an IQ of 70 or functioning as evidenced by an IQ of 70 or below (below (AtkinsAtkins says 75) says 75)

Deficits in adaptive behavior (not even Deficits in adaptive behavior (not even significantsignificant deficits) deficits)

Manifested during the developmental period, Manifested during the developmental period, or by age 18or by age 18

First case to address thisFirst case to address this

State v. SmithState v. Smith, 893 S.W.2d 908 , 893 S.W.2d 908 (Tenn. 1995)(Tenn. 1995)

Court says that statute does not Court says that statute does not define “deficits in adaptive behavior” define “deficits in adaptive behavior”

AAMR definitions are not in the AAMR definitions are not in the recordrecord

So, Court used common sense…..So, Court used common sense…..

What is the “ordinary meaning?”What is the “ordinary meaning?”

That is what the red book is forThat is what the red book is for

““The inability of an individual to The inability of an individual to behave so as to adapt to surrounding behave so as to adapt to surrounding circumstances.”circumstances.”

For example..For example..

He could hold a job while in prisonHe could hold a job while in prison

Could take a test, so “he had learned Could take a test, so “he had learned to adapt to his low IQ”to adapt to his low IQ”

OH…MY…GODOH…MY…GOD

What can people suffering from What can people suffering from mental retardation do?mental retardation do?

Get a driver’s licenseGet a driver’s license

Drive a carDrive a car

Get MarriedGet Married

Have ChildrenHave Children

SwimSwim

Laugh Laugh

Have a conversationHave a conversation

Read a bookRead a book

Graduate from HSGraduate from HS

Be attractiveBe attractive

Play sportsPlay sports

Have friendsHave friends

DanceDance

Use drugsUse drugs

Drink alcoholDrink alcohol

CountCount

WorkWork

Commit murderCommit murder

Can DoCan Do

Join the militaryJoin the militaryWrite poetryWrite poetryDrawDrawBe depressedBe depressedTell jokesTell jokesCookCookBatheBatheWatch TVWatch TVLike basketballLike basketball

Take care of a petTake care of a petFabricate an alibiFabricate an alibiOwn a houseOwn a houseBuy a carBuy a carRead the newspaperRead the newspaperFollow sportsFollow sportsWrite lettersWrite lettersPlan a crimePlan a crime

Can DoCan Do

Join the militaryJoin the militaryWrite poetryWrite poetryDrawDrawBe depressedBe depressedTell jokesTell jokesCookCookBatheBatheWatch TVWatch TVLike basketballLike basketball

Take care of a petTake care of a petFabricate an alibiFabricate an alibiOwn a houseOwn a houseBuy a carBuy a carRead the newspaperRead the newspaperFollow sportsFollow sportsWrite lettersWrite lettersPlan a crimePlan a crime

This Was Not Corrected in This Was Not Corrected in Van Van TranTran

Van Tran says that executions would Van Tran says that executions would violate the state constitution and the violate the state constitution and the eighth amendment, relying on eighth amendment, relying on FlemingFleming

Again relies upon the statutory Again relies upon the statutory definitiondefinition

But then But then AtkinsAtkins was Decided was Decided

Constitutional floorConstitutional floor

Cites, relies upon AAMR and DSMCites, relies upon AAMR and DSM