For all you state habeas prosecutors out there...

Please do NOT entirely hang your hats on Briseno and its 7 factors. That may get you out of state court, but it isn't the federal standard, and if that's all your trial court findings/conclusions are based on, it may make life much more difficult during the inevitable rounds through the federal courts. Unless you are just indulging us federal folk and our love for long, expensive, drawn-out evidentiary hearings, make Atkins your first port of call and Briseno's factors a secondary resort.

Georgette
Postconvition Litigation
AGs office

Postconviction Litigation
Office of the Attorney General

Ok, I'll bite. As I recall, Atkins did not adopt a particular definition of MR, a burden of proof, or a procedural mechanism required to litigate an MR claim. Basically, Atkins stands for the proposition that the 8th Amendment prohibits execution of the mentally retarded--you States figure out how to make that happen.

Atkins makes reference to the AAMR and APA definitions, which are the basis for the definition in Health and Saftey Code, I believe. Briseno in turn references that definition.

What else can we do but litigate what our state court has said is the way to litigate this? What parts of Atkins do our courts need to make findings about?

I am with John all the way on this one. If there is something else you think we should be doing in state court, let us know. We no more want a case falling apart in federal court than in state court. Is this something for a private topic?

JAS

Texas has statutorily defined mental retardation and in our office we rely on that definition (i.e.,IQ below 70, adaptive skill deficits, onset before age of 18).

But we also address the Briseno factors. Until we have a statute expressly addressing MR in the capital context, I think both the pre-existing MR statute and Briseno constitute the law defining MR in TX.

Can someone articulate how Briseno conflicts with Atkins? Doesn't Briseno just interpret and fill in the gaps left open by Atkins?

In Atkins, Justice Stevens writing for the majority implicitly sanctioned consideration of the facts of the crime and the defendant's criminal background as they relate to the question of mental retardation. Specifically, the court noted that the mentally retarded often commit crimes impulsively without planning or appreciating the consequences of their actions, are more easily lead in group settings, etc.. The Briseno factors simply expand upon these comments in the Atkins opinion and suggest why those factors are important in assessing a M.R. claim. Ultimately, the factors identified by Justice Cochran in Briseno are relevant to the "adaptive functioning" prong of the Health and Safety Code, AAMR and DSM-IV-TR definitions of M.R. The more evidence that you have that the defendant's level of adaptive functioning is not in the mentally retarded range, the better off you'll be on state or federal habeas review.

I appreciate the idea that relying upon the "additional considerations" in Briseno gives federal courts a way to say, "these are state court factors and they are not binding on us." So, (and I ask this out of sincere curiosity), what is the federal standard? How is it different than Briseno?

[This message was edited by Fresno Bob on 04-05-07 at .]

It seems like, if the Federal courts are doing that, that we just need to do alternative findings and conclusions. I did that quite often with other claims in the capital writ responses I prepared. Not necessarily neat, but should be effective. Georgette, could you send me some sort of breakdown between the two cases, as the Fed courts are looking at it, so that we can help y'all out?