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Nearly two years after ruling in Atkins v. Virginia that executing mentally retarded death row inmates is unconstitutional, the Supreme Court is faced with a case asking how much proof of retardation a defendant must provide. At its private conference on May 20, the Court is scheduled to consider whether to grant review in dozens of matters, including Stripling v. Head, No. 03-1392, a Georgia case that is one of the first to reach the justices following up on the 2002 ruling in Atkins. Other post- Atkins issues making their way through state legislatures and courts include the definition of retardation, and at what stage in a case the determination should be made. So far, the questions seem to be reaching resolution without much rancor, says University of New Mexico School of Law professor James Ellis, who argued the Atkins case and is a leading expert on the issue of retardation in capital cases. “The pitched battles that everyone expected after Atkins haven’t happened,” says Ellis, who wrote a brief in the Stripling case for groups that advocate for the mentally retarded and disabled. “The vast majority of the issues have been addressed in a thoughtful and even-handed fashion.” But not the Georgia case, Ellis says, telling the Court in his brief that it “involves constitutional concerns of the highest magnitude.” At issue is a 2003 Georgia Supreme Court decision upholding a state law that requires defendants making retardation claims to prove retardation “beyond a reasonable doubt”-the highest burden in all states with death penalty statutes. Georgia enacted that burden of proof by statute in 1988, long before Atkins, when it became the first state to ban execution of the retarded. The Georgia Supreme Court, voting 4-3, ruled that it read Atkins to mean that states may choose whatever burden of proof they wish, unless the U.S. Supreme Court rules otherwise “at some future date.” At issue is the death sentence of Alphonso Stripling, convicted in the 1988 shooting of four employees at a Douglasville Kentucky Fried Chicken restaurant where he was training to be a cook. Two of the four victims died. During the trial, defense lawyers submitted test results showing Stripling’s IQ was under 70 — the level usually used to define retardation. But after a state psychologist testified that Stripling had “average intelligence,” the jury found the burden of proof had not been met. Stripling was found guilty and sentenced to death. On habeas corpus appeal, a state judge ruled that the burden of proof of retardation was too high, but the Georgia Supreme Court reversed on that point. It did, however, rule that Stripling deserved a new sentencing trial because the state had withheld evidence that the defense could have used to prove retardation. Lawyers at Mayer, Brown, Rowe & Maw, who have handled Stripling’s appeals pro bono for the last eight years, filed a petition with the Supreme Court asking it to find that the high burden of proof violates due process and ignores the command of Atkins for states to adopt “appropriate” procedures to ensure that mentally retarded prisoners are not executed. If the Georgia ruling is upheld or allowed to stand, says Mayer, Brown D.C. senior associate David Gossett, “it creates a high risk that a significant number of people with mental retardation will be executed.” With such a high proof requirement, Gossett says, “IQ results are not enough.” Often, those who are not profoundly retarded have results that “hover around 70.” Gossett says that all the state needs to do to create reasonable doubt, as it did with Stripling, is to find a psychologist to testify that the tests have a margin of error or that the defendant does not appear retarded. All other states that have ruled on the issue require lesser standards, according to Gossett. Courts in Arizona and Colorado have upheld the “clear and convincing” standard since Atkins, while courts in Louisiana, Mississippi, Ohio, Oklahoma, Pennsylvania, South Carolina, and Texas have adopted or approved an even lower “preponderance of the evidence” standard. “There is almost no instance in American jurisprudence where the defendant is required to prove a defense beyond a reasonable doubt,” Gossett says. In its reply brief, Georgia asserts that the state Supreme Court ruling is in line with Atkins. Noting that Atkins was only recently decided, Assistant Georgia Attorney General Karen Johnson says in the brief that there is no single “deeply-rooted fundamental standard of proof” that must prevail over others. OTHER CASES UP FOR REVIEW • Mundy v. Rhead, No. 03-860. Burden of proof for seeking summary judgment under Heck v. Humphrey in Section 1983 civil rights claims. • McEnroe v. Ramirez, No. 03-871. Whether habeas corpus jurisdiction is available for an inmate challenging a disciplinary finding that results in punitive segregation but not a change in the length of his prison sentence. • Caruso v. Abela, No. 03-1079. Time limits for filing habeas corpus petitions, • Veneman v. Livestock Marketing Association, No. 03-1164. Whether the government violates the First Amendment by requiring beef producers to pay for generic advertising with which they disagree. • Veneman v. Campaign for Family Farms, No. 03-1180. Whether the First Amendment rights of pork producers are violated when the government requires them to pay for pork advertising with which they disagree. • Reliance Standard Life Insurance Co. v. Lasser, No. 03-1203. Standard of judicial review for denial of benefits under ERISA. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein’s firm represents the respondent in Veneman v. Campaign for Family Farms, No. 03-1180.

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