I have a defendant who is indicted for 2 seperate capital murders involving 3 homicides. Defense claims he is mentally retarded. Last known evaluation shows an IQ of 75, above minimum level of 70. My Court is considering allowing the defense to have a mental retardation trial prior to the capital murder trials. If the defendant is found retarded, the Court will not allow us to seek the death penalty. If found not retarded, the Court is going to allow the defense to still put evidence of mental retardation before the jury during the penalty phase, even though a previous jury has already found him not to be retarded. Any ideas on how to stop the retardation trial because I can't find any Texas law that allows for it. The Court believes the Governor shouldn't have vetoed the bill last session. By the way, the defendant's street name is C-Monster.

You can thank Senator Rodney Ellis for your predicament. This is what he wanted to force by preventing a bill from passing last regular session. The bill you speak of was vetoed from the regular session before that. And I don't imagine anyone's mind has changed since then.

You need to take a look at Ex Parte Briseno decided by the CCA on Feb. 11, 2004. Although it's a post-conviction writ case, the reasoning is absolutely applicable to your situation. For example, the CCA found there's no right to trial by jury on the mental retardation issue under Ring v. Arizona. In addition, the CCA found that the facts of the crime are relevant to the mental retardation issue. If that's the case, then there's no reason to have a pretrial hearing on the issue. If the judge is determined to have a jury decide the issue, then it should be done during the punishment phase by way of special issue. No sense in two juries hearing the same evidence twice.