Arizona Supreme Court Upholds Trial Court’s Determination That Capital Defendant Failed To Prove Mental Retardation Pursuant To A.R.S. § 13-703.02, But Remands For Jury Sentencing.

Shawn Grell was convicted of first-degree murder in 2000 following a bench trial on stipulated facts. Following a sentencing hearing before the Judge, Grell was sentenced to death. While the case was on direct appeal, the United State Supreme Court decided on two cases, Ring v. Arizona (Ring II), 536 U.S. 584 (2002) (holding that juries must find aggravating factors necessary for imposition of the death penalty), and Atkins v. Virginia, 536 U.S. 304 (2002) (holding that mentally retarded defendants may not be executed). As a result, the Arizona Supreme Court remanded to the trial court to re-examine Grell’s claim of mental retardation and directing the trial court to follow the procedures set forth in A.R.S. § 13-703.02 for determining mental retardation. State v. Grell (Grell I), 205 Ariz. 57 (2003). On remand, the trial court concluded that Grell had failed to prove mental retardation by clear and convincing evidence as required by section 13-703.02.

On appeal, Grell challenged the constitutionality of Arizona’s process for determining mental retardation. Specifically, Grell asserted that 1) the State should bear the burden of proving a lack of mental retardation, 2) if the Defendant bears the burden of proof, that burden should be a preponderance of the evidence, and 3) the process should be bifurcated allowing first a judge to determine whether mental retardation bar’s defendant’s execution and then a jury to find beyond a reasonable doubt that the defendant does not have mental retardation. The Court in a 4-1 opinion rejected defendant’s arguments. The Majority first noted that the Supreme Court in Atkins left the states free to develop their own procedures for determining mental retardation, so long as those procedures comply with the Constitution by excluding from the death penalty those individuals about whom there is a national consensus as to mental retardation. The Majority held that nothing in Atkins requires that the State bear the burden of proving a negative beyond a reasonable doubt. With respect to the standard of proof required, the Majority found compelling the fact that A.R.S. § 13-703.02 provides for a rebuttable presumption of mental retardation for those defendants whose IQ score falls below 65. Thus, the heavier burden of proof by clear and convincing evidence is only placed of those defendants about whom there is no national consensus as to their mental retardation. Finally, the Majority concluded that the lack of mental retardation is not the functional equivalent of an element of the crime, and therefore under Apprendi and its progeny, the lack of mental retardation need not be found by a jury beyond a reasonable doubt.

Justice Bales, concurring in part and dissenting in part, challenged the majority’s statement of the issue. Justice Bales argued that the question faced by the court was whether the constitution permits states to execute defendants who are more likely than not mentally retarded but cannot prove their retardation by clear and convincing evidence. Thus, Just Bales asserted that the proper standard of proof for a defendant attempting to prove mental retardation should be a preponderance of the evidence. Justice Bales argued that the appropriate analysis is that set forth in Cooper v. Oklahoma, 517 U.S. 348 (1996). There, the Supreme Court held that where an important constitutional right was at issue, the Court would weigh the respective interests of the State and defendant at stake in determining whether fundamental fairness permitted imposition of a particular standard of proof. Applying that balancing analysis here, Justice Bales argued that “[w]hen the relative risks are death and a lesser available punishment, the defendant’s right not to be executed if mentally retarded outweighs the state’s interest as a matter of federal constitutional law.” (internal quotation omitted). Thus, the defendant should only be required to prove mental retardation by a preponderance of the evidence.

Finally, Justice Bales concurred with the Majority’s determination that the case must be remanded for jury sentencing because Grell preserved his right to a jury trial for sentencing within the stipulated agreement he entered into with the State.

Vice Chief Justice Berch authored the majority opinion; Justice Bales wrote separately concurring in part and dissenting in part.