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Mindful of the political perils ahead, the Florida Supreme Court is set to establish rules that could spare some convicted murderers from the death penalty. Last year, a divided U.S. Supreme Court in Atkins v. Virginia outlawed the use of capital punishment for mentally retarded convicts. Now the state Supreme Court justices must decide how to ensure that Florida does not execute retarded convicts. In the absence of any instruction so far, trial judges around the state are struggling with the issue, experts say. During oral arguments last month, the justices heard from criminal defense attorneys, prosecutors and others on their proposed court rule to bring Florida into line with Atkins and with a 2001 Florida statute barring such executions. The proposed rule would instruct trial judges how to handle capital cases involving the mentally retarded. Throughout the hourlong argument, defense lawyers and prosecutors clashed sharply on whether the judge or jury should determine whether a capital defendant is mentally retarded, whether the defendant or the state bears the burden of proof, and whether the finding on retardation should be made before trial or during the sentencing phase. The shape of the final rules is expected to have a major impact on one of the most emotional issues in death penalty jurisprudence. While the issues at the hearing last month seemed technical, experts say that how the Supreme Court resolves them will greatly affect the ability of defense attorneys to have their clients ruled ineligible for execution. Defense attorneys claim that at least five mentally retarded inmates are on Florida’s death row. The justices’ questions suggested the importance and sensitivity of their deliberations. The high court has taken political heat in the past from Gov. Jeb Bush and Republican legislators for forays into death penalty jurisprudence. Defense attorneys argued to the high court that a determination of mental retardation should be made by trial judges before trial, as is done in New York and some other states. But prosecutors said the determination is best made after the jury verdict, when the judge and jury have all the information about the defendant, including the details of his behavior during the crime. “Why not just make the determination at the beginning to eliminate the process of having to death-qualify the jury and go through the whole penalty phase?” Justice Peggy Quince asked during oral arguments Aug. 25. “Because we need a full account of what transpired during the crime and why the person is not death-eligible,” said Assistant Deputy Attorney General Carolyn Snurkowski, who appeared to present Florida Attorney General Charlie Crist’s position. Sanford Circuit Judge O.H. Eaton Jr., who argued on behalf of the Criminal Court Steering Committee, a seven-member panel made up of circuit court judges, told the justices that mental retardation was best determined pretrial to avoid placing judges in the uncomfortable position of overturning a death sentence imposed by a jury. Justice Charles Wells raised the concern that if retardation was decided in a pretrial proceeding, the defendant would be required to speak to experts working for the prosecution who could uncover details about the alleged crime. That, he said, could violate a defendant’s Fifth Amendment protection against self-incrimination. But Leon County Public Defender David Davis said the analysis could be made without discussing the criminal charges. “We’re looking at intellectual development independent of the facts of the crime,” said Davis, appearing on behalf of the Florida Public Defenders Association. The U.S. Supreme Court’s 6-3 ruling in Atkins v. Virginia in June 2002 held that executing the retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment because a retarded person cannot understand the connection between his actions and the punishment. In Atkins, the U.S. Supreme Court required the states to establish procedures for determining mental retardation. In 2001, the Florida Legislature passed Statute 921.137 prohibiting capital punishment for mentally retarded convicts. The statute specifically says that the law does not apply retroactively. But the question of whether Atkins effectively overturned that retroactivity provision remains open. While supreme courts in other states have held that Atkins applies retroactively, the Florida Supreme Court has not yet ruled on the issue. The Florida attorney general’s office and Florida prosecutors contend that Atkins does not apply retroactively. Because the Florida Supreme Court has not yet issued rules to implement the 2001 statute or the Atkins ruling, trial judges throughout the state have given conflicting responses to motions filed by defense attorneys requesting a determination of mental retardation. In the case of death row inmate Clarence Jones, for example, Leon Circuit Judge Thomas Bateman III denied his request in December for a hearing to determine whether he is mentally retarded. In his ruling, Judge Bateman said Jones was procedurally barred from getting a hearing because the state Supreme Court had not yet determined whether Atkins applied retroactively. But in the case of death row inmate James Floyd, Pinellas Circuit Judge Richard Luce granted the defense’s request for an evidentiary hearing on the retardation issue in October 2002. After a two-day hearing, Judge Luce ruled that Floyd is not retarded. Floyd, along with other death row inmates, then filed an appeal asking the state Supreme Court to impose rules that would bring the state into compliance with Atkins. The Supreme Court agreed to hear Floyd’s case, but has not yet set a date for oral arguments. Prior to the 2001 statute, mental retardation in Florida capital cases was a mitigating factor presented to the jury during its deliberations on whether to impose the death penalty. Under the 2001 statute, the judge must decide whether a defendant is mentally retarded after the jury reaches a verdict. Under that law, if the jury recommends a death sentence, the defense may file a motion seeking a finding that the defendant is mentally retarded and not eligible for capital punishment. The court then must appoint two experts to evaluate the defendant, in addition to hearing the experts presented by the defense and the state. The statute defines a mentally retarded person as someone with “subaverage intellectual functioning,” generally defined as someone with an IQ of 70 or below, with limited adaptive skills. The person’s mental retardation must have been manifested before age 18. The defendant has to prove that he or she is mentally retarded by clear and convincing evidence. In April, the state Supreme Court issued proposed rules that mirror the language of the statute — with one major exception. While the statute says it’s not retroactive, the proposed Supreme Court rules include provisions for defendants whose death sentences are on appeal as well as for those whose capital sentences have been affirmed. Under the proposed rules, those defendants could file motions seeking determination of mental retardation with the trial court within 60 days of the new rule going into effect. The trial judges would then make determinations at evidentiary hearings The attorney general’s office and Florida Prosecuting Attorneys Association agreed with most of the proposed rules, but those testifying for the defense side had fundamental critiques. Martin McClain, a prominent Tallahassee appellate defense attorney in capital cases, argued that juries, not judges, should make the determination of mental retardation. He also argued that the rules should be flipped so that prosecutors should bear the burden of proving that a defendant is not retarded. Under Ring v. Arizona, a U.S. Supreme Court decision issued last year, juries rather than judges must make all the factual determinations leading up to a death sentence. Since mental retardation is a pivotal factual issue, it must be decided by a jury, McClain argued. And because it’s a key fact issue that must be decided by the jury, the prosecution must prove beyond a reasonable doubt that the defendant is not retarded, he said. Justice Raoul Cantero III asked McClain for a clarification. “Does the state have to prove in each case, whether it’s alleged or not, that the defendant is not mentally retarded beyond a reasonable doubt?” he asked. “No,” McClain said. “Only when the issue is raised.” McClain and other defense lawyers told the justices that requiring defendants to prove mental retardation by clear and convincing evidence — rather than by the less demanding standard of preponderance of the evidence — violated their due process rights under a 1996 U.S. Supreme Court ruling. Of the 18 states that have outlawed the death penalty for mentally retarded defendants before the Atkins ruling, most require proof of mental retardation by a preponderance of the evidence, according to James Ellis, a University of New Mexico law school professor and disabilities law expert. A majority of the states that outlawed the execution of mentally retarded persons before Atkins also chose to have the determination made by a judge before trial, Ellis wrote last year. Justice Wells noted that if judges made the determination before trial, the defendants would have to waive their right to refuse being examined by state prosecutors before the trial. “How are we going to get a waiver on mental retardation from a mentally retarded person?” Wells asked. In his written comments to the Supreme Court, Judge Eaton made the case for allowing judges to rule on retardation before trial. In an interview, he said that “it’s a political problem” for elected judges. “A lot of times the community is up in arms over the murder that occurred, the press is in the courtroom and there’s a television camera pointed right at your nose.” The Miami-based Association for Retarded Citizens also advocated having the determination of mental retardation made before the trial. “It’s too easy to frighten someone into pleading guilty because they have the threat of death hanging over their head,” said Michael Messer, executive director of the association wrote to the justices. Legal experts say the court could use the input to draft final rules of procedure or may refer the matter to its appellate and criminal rules committees for recommendations.

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