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Defining Retardation, Cont.

Bill noted earlier today the case of Edward Bracey, who murdered Police Officer Daniel Boyle in North Philadelphia 23 years ago. The article notes that the trial judge set aside the death sentence because Bracey is supposedly retarded, even though he was never considered so during his school years.

In Sarmina's courtroom, Bracey's lawyers pointed to a recent IQ test as proof that he is impaired. The test, given by a defense expert in preparation for the appeal, showed that Bracey's score had plummeted substantially from previous tests.

"It doesn't take a genius to figure it out," Pat Boyle said. "Who would give their best effort on a test if it's going to lead to your execution or life on death row?"

As noted previously on this blog, an IQ test subject can fake low, but he can't fake high.  Given varying scores and an incentive to malinger at the time of the low scores, the high scores are more credible.  Will this be enough for a higher court to reverse?  Tough to get a reversal on a factual finding, but the DA is taking it up.

In other developments, the State of Florida's brief in Hall v. Florida is here, and CJLF's is here.

Update:  Marcia Coyle has this story on the Hall case in the National Law Journal (registration required).


Following this decision, Judge Sarmina was unceremoniously reassigned to civil court duties.
Good riddance!

Great briefs from my quick read.

Question: Why can't the Court simply approve a framework whereby both parties present evidence on whether the murderer has (1) deficient intellectual functioning and (2) poor adoptive functioning, with (3) onset before 18. But IQ test results are not permitted to be given conclusive effect regarding intellectual functioning?

So an IQ below a particular number would not result in an automatic finding that the murderer has deficient functioning. And an IQ above a particular number would not result in an automatic finding that the murderer does not have deficient intellectual functioning.

Rather, both the prosecution and defense would present whatever admissible evidence they had on the issue, including the results of IQ tests (that support the prosecution and defense positions), and the jury would make the final determination on the retardation question.

What would be objectionable about this type of framework, assuming that the Court is not willing to backtrack on Atkins (as CJLF seems to be requesting)?

The framework you describe would be acceptable and is in fact used in some states. The question is whether the Constitution of the United States imposes a uniform requirement such that the way Florida has chosen to do it is unconstitutional.

We know from long, bitter experience with the rules of capital sentencing that micromanagement through constitutional case law is a disaster. Decisions on fine points trickle out over the course of many years, causing fair, just verdicts entered in cases tried according the rules as understood at the time of trial to be overturned. Some of the oldest cases on death row have resulted from such needless overturnings followed by new sentences.

In Lockett v. Ohio, Chief Justice Burger thought he was laying down a simple standard that would answer all the questions and allow things to go forward. He was catastrophically wrong.

We are not asking the Court to backtrack on Atkins. We are asking that it not be extended into a micromanagement tool as Lockett was.

mjs --

Excellent news. Maybe she can be reassigned to civil cases on Mars.

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