U.S. v. Nelson

• Decision Date: 22 February 2006
• Docket Number: Criminal Action No. 02-304.
• Parties: UNITED STATES of America v. Bryan NELSON.
• Court: U.S. District Court — Eastern District of Louisiana

419 F.Supp.2d 891

UNITED STATES of America v. Bryan NELSON.

Criminal Action No. 02-304.

United States District Court, E.D. Louisiana.

February 22, 2006.

Gregory M. Kennedy, U.S. Attorney's Office, New Orleans, LA, for Plaintiff.

John Wilson Reed, Glass & Reed, New Orleans, LA, Carol Anne Kolinchak, New Orleans, LA, for Defendant.

ORDER AND REASONS

BARBIER, District Judge.

This matter came before the Court for an evidentiary hearing on February 2, 3, and 6, 2006, held to determine whether defendant Bryan Nelson is mentally retarded as contemplated by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and thus ineligible for the death penalty pursuant to 18 U.S.C. § 3596(c). As set forth more fully below, the Court finds that Bryan Nelson is mentally retarded, and therefore not subject to the death penalty.

BACKGROUND

The Government has filed a third superseding indictment against the defendant, charging him, inter alia, with causing the death of Christopher Briede, by murder as defined in 18 U.S.C. § 1111, in the course of a crime of violence (carjacking) in violation of Title 18 U.S.C. § 924(c) and (j). Title 18 U.S.C. § 924(j) provides that "[a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall ... if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life .. .." The Government has filed a Notice of Intent to Seek the Death Penalty as to Defendant Bryan Nelson. Rec. Doc. 138. Defendant subsequently moved for a pre-trial determination of whether defendant was mentally retarded.

DISCUSSION

I. A Pretrial Atkins Determination by the Court is Appropriate

The Federal Death Penalty Act provides that "[a] sentence of death shall not be carried out upon a person who is mentally retarded." 18 U.S.C. § 3596(c). However, the statute provides no guidance on how it should be implemented. Likewise, the Supreme Court in Atkins provided no implementation guidelines, but rather "left to the states the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences," when it held that the execution of mentally retarded persons violates the prohibition against cruel and unusual punishment contained in the 8th Amendment. Id. at 317, 122 S.Ct. 2242 (citations omitted). As a result, addressing the Atkins issue as presented by the defendant requires the Court to make several threshold determinations: who the fact-finder should be; when to address the matter; what definition of mental retardation to apply; who has the burden of proof on this issue; and what standard of proof is applicable. The Court previously determined that a pre-trial determination by the Court is appropriate, but expands on that finding herein. See Rec. Doc. 252.

A. The Court is an Appropriate Fact-Finder

In United States v. Webster, 162 F.3d 308 (5th Cir.1998), the Fifth Circuit rejected the defendant's argument that due process required that a jury make the factual determination under 18 U.S.C. § 3596(c) as to whether the defendant was mentally retarded and therefore death ineligible. 162 F.3d 308, 352 (5th Cir.1998). However, this decision (Webster I) predated the Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that a jury, rather than a judge, must find beyond a reasonable doubt any fact that exposes a criminal defendant to a penalty greater than the statutory maximum, and in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), that capital murder defendants are entitled to a jury determination of any fact that increases their maximum punishments. In essence, Apprendi and Ring dictate that any fact which operates as "`the functional equivalent of an element of a greater offense'" must be found by a jury. Ring, 536 U.S. at 609, 122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348).

Subsequent to these Supreme Court decisions, the Fifth Circuit (in the context of a § 2254 petitioner's request to file a successive habeas petition) explicitly held that "neither Ring and Apprendi nor Atkins render the absence of mental retardation the functional equivalent of an element of capital murder . ." In re Johnson, 334 F.3d 403, 405 (5th Cir.2003). Indeed, "the absence of mental retardation is not an element of the sentence any more than sanity is an element of an offense." Id. Relying on these precedents, when the Fifth Circuit revisited the issue of Webster's entitlement to a jury on the retardation finding post-Apprendi and Ring, it acknowledged that the absence of mental retardation is not required to be determined by a jury. 392 F.3d 787, 792 (5th Cir.2004) (Webster II). The Fifth Circuit is not alone in reaching this conclusion. See, e.g., State v. Williams, 831 So.2d 835, 860 (La.2002); Russell v. State, 849 So.2d 95, 146-48 (Miss.2003); People v. Smith, 193 Misc.2d 462, 751 N.Y.S.2d 356, 357 (N.Y.Sup.Ct.2002). As the Louisiana Supreme Court has observed, Atkins established mental retardation as an exemption from capital punishment, not a fact whose absence results in an enhancement. Williams, 831 So.2d at 860.

Moreover, most state legislatures have also concluded that resolution of the issue by the court is appropriate. For instance, 17 of the 18 states which had procedures in place to address mental retardation prior to Atkins either require or authorize the trial court to determine mental retardation.¹ Of the eight states which have enacted legislation specifying procedures for determining mental retardation in response to Atkins, all but one authorize or require the issue to be committed to the trial court.² Accordingly, in conformity with Fifth Circuit precedent and other persuasive authorities, the Court determined that it was the appropriate factfinder on the question of Bryan Nelson's possible mental retardation.

B. Pre-Trial Consideration is Appropriate

The Court has also previously found that overriding practical considerations dictate that the Atkins issue be resolved up front. If prior to trial a defendant is found to be mentally retarded and therefore ineligible for the death penalty, significant resources are saved in terms of trial preparation, motion practice, voir dire, trial time, mitigation research, etc. To defer the Atkins /mental retardation issue until after such a resource-intensive trial would be wasteful in a situation like the instant case, in which the defendant, from the moment he first raised the Atkins issue, appeared able to make a colorable Atkins claim.³

In reaching that conclusion, the Court also noted that the majority of state legislatures who have considered the question have adopted an approach allowing for pre-trial resolution.⁴ Courts confronting the issue have also acknowledged the wisdom of adjudicating the issue pre-trial. For instance, the Louisiana Supreme Court observed that "[t]he better practice under Atkins is ... a pre-trial determination of whether the defendant is mentally retarded and thereby spares both the state and the defendant the onerous burden of a futile bifurcated capital sentencing procedure." State v. Williams, 831 So.2d 835, 860 (La.2002).

In addition, the Court notes that the issue of mental retardation is the type of threshold issue (somewhat analogous to competency), that is generally committed to the court for pretrial resolution.

C. Burden of Proof/Standard of Proof

Both the Government and the defense agree that the defendant bears the burden of establishing by a preponderance of the evidence that he is mentally retarded.

II. The Definition of Mental Retardation

In this case, the Government has suggested that the Court should apply the definition for mental retardation promulgated by the American Psychiatric Association ("APA") and contained in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition Text Revision ("DSM-IV-TR") instead of that promulgated by the American Association for the Mentally Retarded ("AAMR"). See, Rec. Doc. 326. The Atkins decision incorporated both definitions for mental retardation. Atkins, 536 U.S. at 309 n. 3, 122 S.Ct. 2242. The current version of each follows.

The AAMR 10th Edition defines mental retardation as "significant limitations both in intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills with the disability originating before age 18."

The DSM-IV-TR defines mental retardation as:

A. Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning).

B. Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effectiveness in meeting the standards expected for his or age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.

C. The onset is before age 18 years.

Atkins' incorporation of both definitions suggests that the Supreme Court did not consider them conflicting. Instead, the Supreme Court prohibited the execution of any defendant who "fall[s] within the range of mentally retarded offenders about whom there is a national consensus." 536 U.S. at 317, 122 S.Ct. 2242.

To the undersigned, it seems that both the AAMR and DSM-IV-TR definitions reflect a national consensus. Thus, to the extent there is a conflict, should a defendant meet either definition, his execution is prohibited. However, the undersigned emphasizes that the definitions do not appear to conflict. The main distinguishing feature is the inclusion of a potential cutoff number-an IQ of approximately 70 or below—in the...