BY DAVE PIEKLIK
John Couey’s lawyers are arguing that the state’s standard to determine if someone is mentally retarded and barred from execution is unconstitutional.
A July 17 hearing for Couey, 48, had already been scheduled before Assistant Public De-fender Alan Fanter filed his June 21 motion. The motion claims U.S. Supreme Court rulings declare the state’s burden of proving someone is mentally retarded is unconstitutional.
The state’s standard of proving retardation is “clear and convincing evidence.” Law pro-hibits the execution of mentally retarded defendants, saying it’s cruel and unusual punish-ment.
Fanter cites two rulings, the 2002 ruling Atkins v. Virginia and the 1996 decision Cooper v. Oklahoma, to argue that burden is too high. In Atkins, the court recognized a lower burden of proof — a preponderance of evidence — in proving retardation.
That means a judge or jury believes it’s more likely than not that a defendant is retarded, rather than clear and convincing — or overwhelming — proof.
In the Cooper ruling, justices decided it was not justified to heighten the burden of proof. Fanter said the Florida Legislature enacted its statute before the Supreme Court rulings.
Though the state has not amended its statute, he added “the clear majority of states with statutes concerning mental retardation as a bar to the death penalty requires that the defen-dant establish retardation by a preponderance of evidence.”
A Miami jury convicted Couey on March 7 of the rape and murder of 9-year-old Jessica Marie Lunsford of Homosassa in February 2005. The same jury decided a week later Couey should be executed by lethal injection on charges of premeditated murder, kidnapping, sexual battery and burglary.
Couey’s lawyers maintained during the trial Couey is mentally retarded, and Circuit Judge Ric Howard ordered the July hearing to make a determination. Howard will ultimately decide Couey’s sentence: life in prison or execution.
If Couey is found not to be retarded, Howard will participate in a Spencer hearing, where evidence will be presented to him from the defense and prosecution about what an appropri-ate sentence should be.
Howard will review aggravating factors, reasons Couey should be executed such as past criminal history and the reported heinousness of his crime, against mitigating factors, or rea-sons Couey shouldn’t be executed. Those factors include his mental state.
Fanter argues in his motion having a judge determine whether or not a defendant is men-tally retarded violates the 2002 ruling Ring v. Arizona. The Supreme Court opinion states a jury, not a judge, should make critical sentencing recommendations.
In response to the motion, Assistant State Attorney Pete Magrino cites several rulings of his own in a motion filed Friday to counter Fanter’s claims. He lists the 2005 Florida Supreme Court ruling Arbelaez v. State, that says a judge, and not a jury, must determine if someone is mentally retarded.
Magrino also says the U.S. Supreme Court left it to states “to establish rules and proce-dures with regard to mental retardation” in the Atkins ruling. Magrino also says Howard is bound by those pronouncements.