Thursday, March 01, 2007

NMCCA publishes order in capital case (Parker)

I haven't seen the decision yet, but apparently NMCCA published its response to CAAF's order in Parker. Here is the CAAF order that NMCCA responded to:

OPINION: On further consideration of Petitioner's request for extraordinary relief and related matters filed by both parties, it is ordered that the Government shall provide Petitioner with an appropriate expert consultant for purposes of the pending litigation; that the matter is remanded to the United States Navy-Marine Corps Court of Criminal Appeals to consider the continued availability of the sentence to death in light of the following:
The Government stated in this Court that (a) "mental retardation is generally thought to be present if an individual has an IQ [intelligence quotient] of approximately 70 or below" and that "there is a standard of error of measurement, which is approximately 5 points overall,"; and (b) "a full scale Intelligence Quotient (IQ) test" administered prior to Petitioner's court-martial determined Petitioner's IQ to be 74. See Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002).That the Court of Criminal Appeals shall consider such other issues as may be raised by the parties; and That the stay previously ordered by the Court in "all matters before the court below regarding the Mental Health Evaluation [*2] of Petitioner" shall remain in effect pending further order of this Court.

61 M.J. 63 (CAAF 2005)

I understand that NMCCA decided that death was still available as an option and adopted a 3 part mental retardation test with the burden on the appellant to show he is mentally retarded by a preponderance of the evidence.

NMCCA further found that death could not be imposed until Appellant had a full and fair opportunity to meet the test. NMCCA also apparently recommended a DuBay hearing, but didn't order one, instead returning the case to CAAF.

Again, I haven't gotten my hands on the decision, so I might have some of the details wrong. I am sure somebody will track it down shortly. Alas, it was not on Lexis or the NMCCA website.


Dwight Sullivan said...

Here are the guts of the opinion:

Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.

American Association on Mental Retardation, Mental retardation: Definition, Classification, and Systems of Supports 5 (Ruth Luckasson ed., 10th ed. 2002). This manual further states that, although IQ scores can be used as part of this analysis, they cannot be relied on solely to determine mental retardation. Id. Each of the 24 states adopting the AAMR test requires consideration of the IQ of the offender, evidence of the offender's adaptive functioning ability, and onset of the mental retardation at a young age, usually before age 18. The other two states allow a presumption of mental retardation for persons scoring 70 or below on a standardized IQ test.

We adopt the definition of mental retardation from the American Association on Intellectual and Developmental Disabilities as it applies to the imposition of the death penalty in the Navy and Marine Corps. In determining whether an offender meets this definition, standardized IQ scores scaled by the SEM and the Flynn effect will be considered, along with evidence of the offender's adaptive functioning ability, and onset of the mental retardation before the age of 18. The burden of persuasion is on the offender by a preponderance of the evidence. We, therefore, answer the issue specified to this court by the Court of Appeals for the Armed Forces in the affirmative, that is, the penalty of death is still available in the appellant's case.

We recognize that the record in this case does not exhibit a full and fair opportunity for the appellant to establish by a preponderance of the evidence that he is mentally retarded and that the death penalty is, therefore, prohibited by the Eighth Amendment based on the Supreme Court's holding in Atkins. A limited hearing, conducted by a military judge, for the purpose of developing the evidence on the issue of mental retardation and making appropriate factual determinations is required. United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). Until the stay imposed by our superior court on the mental health evaluation ordered by this court at the request of the appellant is lifted, however, we cannot proceed on that matter.

Dwight Sullivan said...

BTW, I got the opinion from Navy Knowledge Online. It isn't on NMCCA's public web site yet. The panel was Chief Judge Wagner, who wrote the opinion, Senior Judge Rolph and Judge Vincent. Note that is the exact same panel that heard oral argument in Walker.

Anonymous said...

Here's a fun fact: The NMCCA webpage is actually maintained by OJAG Code 65. While the NMCCA staff can upload opinions directly to NKO, they must e-mail opinions to Code 65 and request that they be posted to the NMCCA webpage. This is why you'll almost always see opinions appear on NKO before they appear on the NMCCA webpage.

Anonymous said...

Prediction for the Columbus-Kabul Clipper: I'll give you 2 to 1 odds that the Parker decision by years end in the most heavily cited Mil Jus opinion of this calendar year . . . by courts outside the Mil Jus system. The holding giving effect to the Flynn Effect and SEM is the first of its kind in the country, even though the APA has recommended exactly that result since at least 2005
or early 2006.

Marcus Fulton said...

Let's do an over-under.

Just kidding, in case Code 13 is reading.