That's the title of John Council's report in today's Texas Lawyer. LINK
In a decision one judge referred to as "Kafkaesque," a 5th U.S. Circuit Court of Appeals panel found that new evidence of a prison inmate's alleged mental retardation is not enough to prevent his execution under the federal death penalty statute.
The Supreme Court outlawed the death sentence for the mentally retarded in 2002's Atkins v. Virginia , finding that such executions violate the Eighth Amendment's ban on cruel and unusual punishment.
The 5th Circuit's April 28 decision in In Re: Bruce Carneil Webster shows how strict the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) can be in limiting successive petitions for writs of habeas corpus by death row inmates who do not challenge their guilt but rather the application of the death penalty, according to two death-penalty experts. That law, which was designed to limit the circumstances in which federal courts can grant relief to death row inmates, can lead to troubling results for inmates who allege they have new evidence that they are mentally retarded, they say.
But a former U.S. attorney urges caution before assuming the new evidence would result in a finding of mental retardation.
And:
According to a concurring opinion in the April 28 decision in Webster , Webster only recently obtained records from the Social Security Administration — records his trial counsel had requested long before Webster's 1996 trial. Webster applied for benefits in 1993, a year before he was indicted for capital murder. To determine his eligibility for those benefits, three separate government physicians performed medical and psychological examinations on him. All three physicians separately concluded that Webster is mentally retarded. While an IQ score of 70 or below is generally considered to be the threshold of mental retardation, one of the government doctors found Webster's IQ score to be 69 or lower, another concluded that Webster's IQ score was 59, and a third simply concluded that Webster suffered from "mental retardation."
Nevertheless, the majority on the 5th Circuit panel found that Webster was not eligible for relief under §2255 even in light of newly discovered evidence. Section 2255 allows appellate courts to hear subsequent or successive habeas motions that contain: "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
The majority took issue with Webster's argument in his motion that, while §2255 applies to newly discovered evidence that would lead to a defendant being found not "guilty of the offense," it should also encompass "a claim that the petitioner is 'innocent of the death penalty.' "
Related posts are in the mental retardation index; more on Atkins v. Virginia, via Oyez.
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