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Georgia was ahead of the curve in 1988 when it became the first state to bar execution of the mentally retarded, but it now requires defendants to meet an unconstitutionally high standard to prove retardation, a DeKalb County judge has ruled. Georgia’s standard of proof for mental retardation is greater than that of any other state and violates fundamental fairness and due process, DeKalb Superior Court Judge Clarence F. Seeliger found. Seeliger’s Oct. 17 order granted the petition for a writ of habeas corpus of convicted killer Alphonso Stripling, voided Stripling’s death sentence, and ordered the case remanded for imposition of a noncapital sentence. Seeliger found that the habeas case, which he said included evidence not brought out at Stripling’s 1989 trial, established beyond a reasonable doubt — the standard Georgia law requires — that Stripling is mentally retarded and therefore ineligible for execution. While the trial jury rejected Stripling’s mental retardation claim in 1989, Seeliger wrote that he could address the issue anew in the habeas proceedings via the “miscarriage of justice” exception to the doctrine of res judicata, which prohibits relitigating previously resolved issues. And, Seeliger found, “the execution of Mr. Stripling would constitute a miscarriage of justice.” Stripling v. Head, No. 95-V-320 (Butts Super. Oct. 17, 2002). PROOF STANDARD CHALLENGED But Seeliger took matters a step further. He found that the beyond-a-reasonable-doubt standard for proving retardation in death penalty cases, set out in O.C.G.A. � 17-7-131, violates the 14th Amendment. Rather, the burden of proof should be a preponderance of the evidence, the judge concluded. He wrote that the state’s current standard creates a risk that defendants who are mentally retarded will be unable to satisfy the statutory burden for various reasons, such as their decreased ability to assist in their defense, and will be sentenced to death. It is, Seeliger wrote, “fundamentally unfair to require people who are mentally retarded to bear such a high burden and to carry such a high risk of wrongful determination when the cost of error is their life.” One of Stripling’s current attorneys, Mitchell D. Raup, a partner with Mayer, Brown, Rowe & Maw in Washington, D.C., said he was pleased with the ruling, but not surprised. All the witnesses at the habeas hearing earlier this year, Raup said, concluded Stripling was mentally retarded and the state produced no evidence to the contrary. As for Seeliger’s findings on the burden of proof, Raup said the judge’s findings are based in large part on the U.S. Supreme Court’s recent decision in Atkins v. Virginia, 122 U.S. 2242 (2002), that barred execution of the mentally retarded. Raup, an antitrust lawyer whose firm is handling Stripling’s case pro bono, said his firm also worked on the American Bar Association’s amicus brief in the Atkins case. Three other Mayer Brown attorneys worked on Stripling’s case: Diane Green-Kelly, David M. Gossett and C.J. Summers, all of Chicago. This case is Raup’s third Georgia mental retardation death penalty case. Russell D. Willard, spokesman for the Georgia attorney general, said his office is evaluating whether it should ask Seeliger for a rehearing or appeal the ruling directly to the Georgia Supreme Court. Stripling was convicted of killing two co-workers and wounding two others at a Kentucky Fried Chicken store in Douglasville, Ga., on Oct. 16, 1988. Following the shootings, he took the evening cash receipts and stole a car at gunpoint. He was later captured after a high-speed car chase. At various stages of the Douglas Superior Court proceedings against him, Stripling was represented by Michael R. Hauptman, John A. Beall IV and Bruce S. Harvey. One jury found him competent to stand trial, then a second jury found him guilty and sentenced him to death. Defense lawyers presented evidence at the guilt-innocence phase of trial to support possible verdicts of guilty but mentally ill and guilty but mentally retarded, but the jury rejected both verdicts. ‘VOLUMINOUS NEW EVIDENCE’ In the habeas proceedings, Seeliger said he reviewed “voluminous new evidence” not presented at trial on the issue of mental retardation, including mental health records from the Department of Corrections and the Georgia Board of Pardons and Paroles. The trial judge, Robert J. Noland, who died in 1998, reviewed those documents in chambers. Noland found that, while the records were exculpatory, they were either hearsay or cumulative of other evidence. He refused to release them to the defense. That refusal prejudiced the defense, Seeliger found, because the state’s files contained information that would have significantly bolstered the defense’s mental retardation claim and called into question the one test Stripling had undergone that did not show he was retarded. Seeliger found a reasonable probability that, had the trial jury heard about those records, it would have found Stripling guilty but mentally retarded. Seeliger also wrote that Stripling’s trial lawyers Hauptman and Beall were ineffective for failing to investigate Stripling’s deficits in adaptive behavior and failing to obtain his elementary school records. And, the judge found, they were rendered ineffective by the trial judge’s refusal to release Stripling’s parole records. Seeliger also found that prosecutors repeatedly told jurors that if they found Stripling guilty but mentally retarded he could not be executed. That impermissibly introduced the sentencing effect of a mental retardation finding into the jury’s determination of guilt or innocence, he concluded, and encouraged a verdict based not on facts, but on passion. STANDARD OF PROOF CHALLENGED Seeliger next turned to the issue of Georgia’s standard of proof, noting that Atkins did not set out procedural rules for handling mental retardation claims in death penalty cases. He found that the standard makes it likely that defendants who are actually retarded will be unable to meet their burden of proof. Such defendants often try to conceal their condition to avoid stigma, the judge wrote, and they are frequently unable to assist their lawyers adequately. The nature of the evidence required to prove retardation — expert medical testimony and intelligence tests — and the public’s common misperceptions about retardation make this issue particularly ill-suited to such a high standard of proof, Seeliger continued. He also found that, among the 18 states that barred execution of the mentally retarded prior to Atkins, most had a preponderance of the evidence standard, while a few others required “clear and convincing” proof. Four states had laws providing that IQ scores in the retarded range create a rebuttable presumption of retardation, placing the burden on the prosecution to disprove a defendant with such scores is retarded. Defendants who were tried and sentenced to die prior to the 1988 bar on executing the mentally retarded do not have to meet that high a burden when raising the retardation issue in post-conviction appeals. They need only prove mental retardation by a preponderance of the evidence, according to recent Georgia Supreme Court decisions. Raup said the case law gave him no insight as to why those defendants had a lower standard of proof. “It’s something no one has been able to explain,” he said. But defendants sentenced for crimes committed after the 1988 law were required to prove retardation beyond a reasonable doubt. Raup pointed out that Georgia was the first state to bar executions for the mentally retarded. “So they were writing on a clean slate,” he said. ‘HIGHER BURDEN’ CLAIM DENIED Willard, for the attorney general’s office, said Georgia was one of just a handful to bar execution of the retarded, and did so long before Atkins. He said it was “unfair to say Georgia imposed a higher burden” when many more states permitted execution of such defendants. Seeliger’s order found that a burden of proof must “allocate the risk of error between the parties in a manner that is fundamentally fair in light of the interests that each party has at stake.” For the defendant, he continued, the difference between a guilty verdict and a guilty but mentally retarded verdict is the difference between life and death. “When defendants are required to prove mental retardation beyond a reasonable doubt, it is a matter of common sense that a certain percentage of people who are actually mentally retarded will be unable to prove their condition,” the judge wrote, as in Stripling’s case. A lower burden of proof might have produced a different outcome, he added. The risk of error, he concluded, should be borne more evenly by the state. Seeliger’s order vacated Stripling’s death sentence and remanded the case to Douglas Superior Court for imposition of “an appropriate non-capital sentence.” In a “statement of the court” filed along with the 72-page order, Seeliger said Stripling was “in fact guilty of all the crimes” and should be exposed to the highest possible legal sanction — life without parole. Willard said his office disputes Seeliger’s authority to resentence Stripling, noting that the order simply vacates the death sentence. Raup said he couldn’t speak for the judge, but interpreted the language in the “statement” about the new sentence as a suggestion to the lower court.

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