If a prosecutor doesn't want to "waste" time picking a jury, then the prosecutor should decide whether the evidence supports mental retardation. Time and resources aren't wasted by litigating this issue, unless a prosecutor has failed to do a good job of evaluating the evidence.

Frank (and others):

The "efficiency" of a pretrial hearing (whether it be judge or jury) is indeed one that resonates with some legislators. But I've also noticed that since one of the three elements of MR is "deficits in adaptive behavior", the State often tries to prove that D is not MR by presenting evidence of the offense itself, as well as evidence of prior bad acts, when that evidence shows D to be cunning, manipulative, able to premeditate, etc.

Q1: That being the case, does the economy of a pre-trial competency-like hearing outweigh the disadvantage of giving D's attorney the equivalent of a full-scale discovery hearing/deposition on all your evidence? (I don't think this aspect was discussed last session)

Q2: If one jury makes the MR decision pre-trial, should there be any estoppel effect to a "not MR" decision by that 1st jury, or can the 2nd (trial) jury still consider MR in mitigation, giving D two bites at the apple?


P.S. - Martin, if John gets too worked up about length again, let me know and I'll set the computer gremlins to work on his "access"

If the jury or judge decides pretrial that the defendant is not MR, aren't all the same witnesses, experts, and evidence going to be heard again anyway in punishment on the mitigation issue? Maybe the mechanism should be similar to insanity; examinations and diagnosis pretrial, then the determination could be made whether to seek death or not. Also, the burden of proof should be squarely on the defendant.

Just came down...seems to require that a jury makes the decisions on death. does this weigh in favor of a jury special issue on mental retardation?

It looks like the Apprendi decision applies to death penalty decisions, so a jury must be the decision-maker. Surely, if mental retardation is an issue that can make a defendant ineligible for the death penalty, a jury must make the decision.

And, I wouldn't think that you could have a separate jury decide mental retardation because, again, that would violate Apprendi, which requires a single jury to make the decisions on facts other than criminal history that affect punishment.

Death penalty opponents, though, must be leaping with joy, because all of this will involve years and years of litigation.

With this option you do not have to qualify jury on both willingness to assess death penalty (in general) and willingness to assess where there is some, but not enough evidence of MR (i.e., bias against the definition of MR). Maybe it's important enough, however, to allow an interlocutory appeal (by def.) from the MR jury's determination? Some of the options suggested above are pretty clearly out after Ring. I suppose the original proposal of a second post-trial determination by the judge is still viable since the State has no right under the Sixth, but it sure seems unfair.

John, does Apprendi say it must be the same jury that determines all sentencing facts? Maybe it would appropriate to point out this is really a fact that determines the range of punishment rather than punishment per se and actually is much more like an exemption from prosecution or an exception to the application of a statute. If it must be the same jury, then I still think it might be good to have the issue submitted at the guilt phase, just as some say the deadly weapon special issue should be submitted at that time. This ought to be permissible though Texas adopted a bifurcated procedure to keep the jury from bargaining among themselves as to guilt using punishment as a trade off. See Spencer, 385 U.S. 554.

[This message was edited by Martin Peterson on 06-24-02 at .]

I am convinced there is no good solution to this problem. Shannon, I don't see how we could ever argue the defendant is estopped from asserting his mental capacity in mitigation, though the prior determination should be admissible to counteract his second bite. Whether one procedure is more efficient than another will likely vary a lot case by case. The entire opinion was correctly assessed by Sue (and Scalia). It is likely to represent cruel and unusual punishment for prosecutors and legislators and taxpayers, but what else is new? Psychologists seem to benefit.

Sue raises a good point -- that this forum is open to all eyes, not just prosecutors'. Not that discussing the fallout of Atkins necessarily gets into "strategy," or that anyone has said anything in this discussion forum that he or she wouldn't say in public, but I offer up the reminder that this is open to public view. If you have ideas about how legislation should be crafted (or not crafted), the better approach might be to e-mail those thoughts directly to Shannon Edmonds (edmonds@tdcaa.com), our new legislative guy.

IQ score is NOT ENOUGH for MR diagnosis.

DSM-VI-TR Mental Retardation requires

A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning).

B. Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

C. The onset is before age 18 years.

R you ready to let Judge be the fact finder? Hmm. Probably not.

Somebody post a proposed punishment instruction and/or question.

Doug

Go to the legislative tool bar on this site, then scroll down to the "Bills to Watch" section. Find House Bill 236, and read the Engrossed Version you find in the "text" section of that site. This is the House version of the bill that the Governor eventually vetoed after it got considerably amended in the Senate/conference committee.

What do you think?

Rob, couldn't you just include a link to the bill in your reply? Should would be easier.

I'm talking about the ENGROSSED version, the house version, of the bill. OK, here is my lame attempt to create a link to it:


HB236

Thanks for the link, Rob. In reading the bill, it occurs to me that it gives the defendant the authority to control the issue of mental retardation. Why can't the bill provide that the issue can be raised, just like competency to stand trial, by either party? That way, the defendant can't wait until shortly before trial and delay any examination.

This version of the bill seems to set out the special issue correctly, if that is a viable method to comply with Atkins. But, isn't it appropriate to place the burden of proof on the defense similar to insanity?

Just an update on the Penry case. . .

http://www.dallasnews.com/texassouthwest/ap/stories/AP_STATEGS_0955.html

The Introduced Version in this Session seems to have all the problems discussed above, and maybe more. SB163

Sen. Ellis did not hold a press conference to announce the introduction of his bill. He wasn't even around to give the paper a new quote.

Prosecutors are preparing and will file their own version of how the mental retardation law should read. We should take the offensive on this issue.

The fight is about whether this will be a pretrial issue, bogged down in a claim of retardation based on IQ, or a trial punishment issue that can be decided by a jury, looking at all the evidence.