October 25, 2013

Lawmakers study tough death penalty provision

By KATE BRUMBACK, Associated Press

ATLANTA — Georgia state lawmakers held a hearing Thursday to gather input from the public on whether changes should be made to a law that requires death penalty defendants to prove beyond a reasonable doubt they are intellectually disabled to be spared execution on those grounds.

Georgia became the first state, in 1988, to ban the execution of the intellectually disabled, and the U.S. Supreme court in 2002 ruled that the execution of intellectually disabled offenders is unconstitutional. But Georgia’s beyond-a-reasonable-doubt burden of proof of that disability is the strictest in the nation. Other states that impose the death penalty have a lower threshold.

Defense attorneys and advocates for the intellectually disabled told the House Judiciary Non-Civil Committee that the standard is too high and will likely result in the execution of some intellectually disabled death row inmates. Prosecutors said they aren’t necessarily opposed to changing the law but said any changes could have unintended consequences.

The fact that Georgia is the only state with such a strict standard means it merits examination, said Rep. Rich Golick, a Republican from Smyrna who chairs the committee. The hearing was a good first step toward learning the facts and issues surrounding a possible change, he said after the meeting, adding that more research and consideration are needed before any decision can be made on possible legislation.

Jack Martin, with the Georgia Association of Criminal Defense Lawyers, told the committee he was involved 25 years ago in the drafting of the language of the law at issue. The change was made quickly in the waning days of a legislative session and was not intended to require that intellectual disability had to be proved beyond a reasonable doubt, he said.

“It was sloppy draftsmanship, pure and simple,” he said.

Intellectually disability is already difficult to prove, he said. Defendants must have an IQ of 70 or below, with a flexibility of five points in either direction; have substantial deficits in adaptive behavior; and demonstrate the disability prior to the age of 18. Additionally, conflicting expert testimony at trial can create a reasonable doubt in the mind of a jury, making the burden of proof impossible to meet, he said.

“If it is unconstitutional to execute the mentally retarded.  You can’t create a state procedure that makes it virtually impossible to prove that,” Martin said.

He and others who spoke before the council advocated for the burden of proof to be set at a preponderance of the evidence in death penalty cases and for a separate pretrial hearing to determine whether a defendant is intellectually disabled, rather than having that included in the guilt or innocence phase of a trial that is decided by a jury.

Gwinnett County District Attorney Danny Porter, speaking on behalf of the District Attorneys’ Association, said no prosecutor in the state wants to see an intellectually disabled person executed, but the district attorneys do have some concerns about possible changes.

“We offer caution regarding cracking open a statute that has been litigated, that has been upheld all the way to the United States Supreme Court, has been tested and tried,” Porter said. “We offer caution and we’re prepared to engage in any discussions once a piece of legislation is before us.”

Changing the statute could open the state to a flood of new litigation, Porter said. People who previously wouldn’t have tried to use an intellectual disability defense because they didn’t think they could meet the beyond-a-reasonable-doubt burden of proof might now use it in either old cases or future cases, he said.

Though advocates of changes in the statute have said they want any changes to be narrowly applied only to the burden of proof for death penalty defendants and for it not to be retroactive, Porter said he’s not sure either of those conditions is legally permissible. Any felony criminal defendant can use an intellectual disability defense, meaning that burden of proof would likely also have to apply to defendants in burglary, armed robbery and other felony cases, he said.

Porter also disputed the assertion that conflicting expert testimony could make it impossible for juries to determine intellectual disability beyond a reasonable doubt, arguing that juries are confronted every day with conflicting evidence on facets of a trial that must meet that standard.