New Mexico Permits Defendant to Assert at Pretrial Hearing That Mental Retardation Precludes Death Penalty; If Not Established at This Hearing, Defendant Can Still Introduce Related Evidence during Sentencing Phase and Jury Must Unanimously Determine That Defendant Not Mentally Retarded before Turning to Possible Aggravating Factors

Article excerpt

State courts continue to wrestle with the implementation of the U.S. Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which established that a mentally retarded defendant cannot receive the death penalty under the Constitution.

These courts are also required to take into account the U.S. Supreme Court's ruling in Ring v. Arizona, 536 U.S. 584 (2002), which held that a jury and not a judge must determine the existence of any aggravating factors during capital sentencing that might result in the imposition of the death penalty, and apply the beyond a reasonable doubt standard in reaching its decision.

The New Mexico Supreme Court held that because mental retardation is a potential mitigating factor that may reduce rather than increase the maximum punishment, the prosecution was not required to convince a jury that a defendant was not mentally retarded beyond a reasonable doubt. As a result, it was permissible for a judge to determine by a preponderance of the evidence whether a capital defendant has a mental retardation. The court noted the Fifth Circuit, the Georgia Supreme Court, and the Texas Court of Criminal Appeals have reached similar decisions.

In addition, the court held that under New Mexico's statutory scheme the determination of whether the defendant was mentally retarded did not have to wait until the sentencing phase of the trial but could be determined at a pretrial hearing. …