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The U.S. Supreme Court on Monday weighed in on two death penalty cases that had split local appeals courts. In one, the high court unanimously reversed a 2-1 panel decision of the Atlanta-based 11th U.S. Circuit Court of Appeals. Last year, the 11th Circuit majority ruled that an Alabama prisoner could not bring a civil rights case in which he argued that the procedure for his lethal injection would violate his right against cruel and unusual punishment. At issue were prison officials’ plans to cut his flesh up to two inches deep so prison officials could find a blood vessel that would hold the injection needle. But the U.S. justices said the 11th Circuit was wrong to consider the attempt by the inmate, convicted murderer David L. Nelson, a second or successive habeas corpus petition, which is prohibited in most cases by federal law. Instead, Justice Sandra Day O’Connor wrote for the Court that Nelson’s claim should have been considered an action under 42 U.S.C. � 1983. GEORGIA DECISION STANDS In the other case, the Court let stand a 2003 Georgia Supreme Court ruling in which the state justices voted 4-3 to uphold a state law that requires capital defendants making retardation claims to prove that retardation “beyond a reasonable doubt” — the highest burden in all states with death penalty statutes. State law since 1988 and federal law since 2002 have prohibited executing retarded inmates, but lawyers for Alphonso Stripling argue that Georgia’s burden of proof is too high. Stripling was convicted of the 1988 shooting of four employees at a Douglasville, Ga., 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. Mitchell D. Raup of the Washington office of Mayer, Brown, Rowe & Maw, which is representing Stripling pro bono, said the case now will go to a trial to determine whether Stripling is retarded. If Stripling fails to be found retarded and is sentenced to death again, Raup said the case might be in a better position to get the attention of the U.S. Supreme Court. The case is Stripling v. Head, No. 03-1392. The reversal in the Alabama death penalty case was a victory for Atlanta lawyers Michael Kennedy McIntyre and H. Victoria Smith, who represented the inmate. McIntyre said he was appointed to represent Nelson in 1996 and is counsel of record in the case. They invited Bryan Stevenson of the Equal Justice Initiative, an Alabama group that represents indigent death row inmates, to argue their side at the high court. “Bryan did an amazing job,” said McIntyre, who has been a death penalty lawyer for 22 years. The decision was also vindication for Judge Charles Wilson of the 11th Circuit, who dissented from the panel decision last year. He “strongly disagreed” with the majority ruling by Judges R. Lanier Anderson III and Frank M. Hull. Nelson v. Campbell, 347 F.3d 910 (11th Cir. 2003).

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