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Thanks to an about-face by the Georgia Supreme Court, a man convicted of killing two co-workers will get a new jury trial to determine if he is retarded and therefore can avoid the death penalty. The court’s reversal turns the clock back to 1989 when a trial judge said lawyers for convicted double murderer Alphonso Stripling were not entitled to see their client’s parole file. The lawyers thought the file would help them prove Stripling was retarded, but a jury found him not retarded and he was sentenced to death. A unanimous ruling by the Georgia Supreme Court in 1991 upheld the sentence. But 12 years later, by another unanimous decision, the high court has concluded that the file contained exclusive evidence showing Stripling may be retarded, so his lawyers should have been allowed to see it during trial. As a result of Tuesday’s decision by the court — which included two justices who were part of the 1991 decision — Stripling will get a jury trial to decide whether he is mentally retarded. Last year, a DeKalb County judge ruled that Stripling was mentally retarded and ordered him sentenced to life without parole. But the high court said only a jury can make that decision. The justices also reaffirmed their decision from last week holding that lawyers arguing their clients are mentally retarded must prove their claim “beyond a reasonable doubt”. The high court’s ruling came the day before the 15th anniversary of the Oct. 15, 1988, killings in a Douglasville Kentucky Fried Chicken restaurant where Stripling was a cook trainee. According to the 1991 ruling, Stripling shot four co-workers, killing two of them, stole the store’s cash, hijacked a car and was arrested a short time later after a high-speed chase. Stripling’s 1989 trial occurred shortly after Georgia became the first state in the country to bar executing mentally retarded people. Accordingly, Stripling’s mental status was a major issue in the sentencing phase of his trial. Stripling’s lawyers wanted to see his parole file, thinking they might contain important evidence about his mental condition. But the Georgia attorney general’s office refused, citing a state law that holds such records can’t be released by the Pardons and Parole Board. Chief Judge Robert J. Noland of Douglas County Superior Court decided to review the file himself. According to the 1991 high court decision, Noland “determined there was no potentially mitigating evidence in the file not already known to and available to the defendant.” The 1991 decision, written by then-Justice Richard Bell and joined by current Chief Justice Norman S. Fletcher and Justice Robert Benham, added, “We have reviewed the file and find no error in the non-disclosure of the defendant’s parole file.” More than a decade later, however, a judge presiding over Stripling’s petition for habeas corpus found that Stripling’s rights were violated because his lawyers didn’t see the file. IQ NUMBERS IN FILE Among the file’s contents — which were not available anywhere else — was evidence that he scored a 67 on a 1973 IQ test. Mental health experts generally consider a score of 70 to be the borderline for a mental retardation diagnosis. The file also contained a 1974 report in which a state institutional supervisor concluded that Stripling “is mentally retarded.” Last year, Judge Clarence F. Seeliger of DeKalb County Superior Court granted Stripling’s habeas petition. His decision went far beyond finding that Stripling’s lawyers were entitled to see the parole file; the judge found Stripling to be mentally retarded and concluded that the “beyond a reasonable doubt” standard violated fundamental fairness. On Tuesday, the high court reversed all of Seeliger’s rulings except the one about the parole file. Writing for the court, Justice Carol W. Hunstein noted the court’s 1991 decision in which it found no fault in Noland’s refusal to give Stripling’s lawyers access to the parole file. Citing a precedent that allows the court to correct its own errors, Hunstein wrote of the 1991 decision, “We conclude that this finding was based on an incorrect reading of the record.” Despite acknowledging the court’s mistake, Hunstein’s opinion found that lawyers for the state — particularly from the attorney general’s office — “suppressed the parole file.” Suppressing evidence favorable to defendants violates a landmark 1963 ruling of the U.S. Supreme Court, Brady v. Maryland, 373 U.S. 83. “It is immaterial that the State had a good motive, namely, the statutorily-imposed confidentiality of parole files, because the good or bad faith of the government is irrelevant to the determination of the Brady claim,” Hunstein wrote. Fletcher, Benham and Presiding Justice Leah Ward Sears dissented in the court’s reconfirmation of last week’s precedent that mental retardation must be proved “beyond a reasonable doubt.” Russell D. Willard, a spokesman for Attorney General Thurbert E. Baker, said the state would ask the court to reconsider the case. “Our office is troubled by several of the legal theories adopted by the court,” Willard said, but he would not elaborate. Douglas County District Attorney J. David McDade pointed out that the state produced the file and gave it to the judge. “There’s no evidence it was suppressed,” he added. A retardation trial would occur in Douglas County. Mitchell D. Raup, a Washington, D.C., partner of Mayer Brown Rowe & Maw who is representing Stripling pro bono, said he was pleased the court found that Stripling’s lawyers had been entitled to see the file in the first place. “The state has concluded [Stripling] is mentally retarded,” Raup said, pointing to the evidence he’ll put forth in a jury trial. The lawyers from last week’s decision that upheld the beyond a reasonable doubt standard in mental retardation determinations were considering appealing to the U.S. high court, which last year found that executing mentally retarded inmates violated the constitution. Raup said he was not sure whether he would join any appeal of that decision.

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