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Veronica O'Grady. (Courtesy photo) Veronica O’Grady. (Courtesy photo)

Imagine you are gearing up for trial, you and opposing counsel have exchanged your expert disclosures—complete with each of their 10-page CVs—and you’re preparing your expert witnesses’ testimony while trying to manage the client’s concerns about what is to come. While this is likely a typical situation for most litigation attorneys, imagine that this time you have the burden to prove beyond a reasonable doubt that your experts and your theory are correct. Worse still, if you fail—if your experts fall a hair short of resoundingly obliterating any contrary position—your client will be executed.

This proposition should be unheard of. And it is— everywhere except in Georgia. If a criminal defendant in our state endeavors to allege that he is ineligible for the death penalty by reason of intellectual disability, this is the exact position he is placed in. In fact, Rodney Young is in this position right now: Although the Georgia and U.S. constitutions categorically prohibit the execution of intellectually disabled persons, the state of Georgia has consistently maintained that Young should be executed simply because he failed to prove to a jury that he is intellectually disabled beyond a reasonable doubt.

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