I know there have been some posts on this subject, but I haven't found any that match my question.

What is the court using as a test to decide a stay of execution for a mentally retarded individual?

There haven't been any written opinions, but it sounds like if there is any evidence from any source that Defendant could have mental retardation issue, the stay is being granted for the purpose of a hearing to develop the issue.

Well then maybe Ep Williams 2003 WL 1787634, Feb 26, 2003, does give something. It is a writ case and gives some discussion of the M/R issue. But it sounds like they might be waiting on the legislature to do something.

Thanks John

I think JB hit the nail on the head, that they'll use something similar to the test whether a jury instruction is required. Remember, though, that just means further developement, not relief.

I think they've also been twisting IQ scores in favor of the defendants. There are rumors that an IQ score of 75 to 70, with or without some hack's affidavit, may be enough due to the margin of error associated with the tests.

I think the test will end up being handled like the DNA testing statute. Doesn't take much to get a hearing (or to file an application), but there is a rigorous test for the actual presence of mental retardation. Given that the standard will likely be by a preponderance of the evidence and given that there likely will be conflicting evidence in every case, the decision of the trial judge is likely to given great deference.

But, like DNA testing, this process has a limited application, because the issue of mental retardation will be litigated during the trial process in all new cases, making writs fewer and fewer on the issue.

I'm not sure what standard the CCA is using on the remands. If they are waiting on the Legislature to do something, it looks like they'll have to wait another two years. The Supreme Court did us a real disservice in the Atkins case. Not because they prohibited the execution of the retarded, but because they gave us absolutely no guidance whatsoever as to what definition of retardation should be used, what threshold showing needs to be made in order to properly raise the issue, what procedural mechanism should be used to litigate (judge or jury; pretrial, during trial, or post-trial). This decision was basically a blank check to defense attorneys to assert all sorts of new appellate and habeas claims on retardation while the Supreme Court decides, apparantly on an ad hoc basis, if the states are doing it right. Heaven forbid if a 75 IQ score is all it takes to raise the issue. Don't get me started on IQ scores. It's such an irony that the fields of psychology and education have been moving away from IQ scores for the last couple of decades and now the legal profession, in the context of capital litigation, is apparantly reviving the IQ testing business. Good grief! We need to be very proactive in educating the courts on this complicated issue. As we proved in Johnny Paul Penry's case, mental retardation can and will be faked, especially when one's life depends on it.

Here is the 5th Circuit standard:

"simply a sufficient showing of possible merit to warrant a fuller explanation by the district court. . ."

Isn't that helpful?

Absolutely. That just clears up none of the confusion.