Court amends criminal rules June 15, 2004 Gary Blankenship Senior Editor Regular News Court amends criminal rules Prompting the governor to look into the rulemaking process Senior Editor The Florida Supreme Court has approved changes to the Florida Rules of Criminal Procedure to handle the determination of mental retardation of defendants facing the death penalty, angering Gov. Jeb Bush who said the court failed to follow state law.Bush said he intended to consult with legislative leaders about constitutional changes to prevent the court from usurping legislative intent through court procedural rules.The court ruled in a unanimous per curiam opinion on May 20 in Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, case no. SC03-685. Justices Barbara Pariente and Raoul Cantero also wrote concurring opinions.The opinion noted that the legislature passed F.S. §921.137 in 2001 which barred the execution of mentally retarded persons and established a method for determining whether defendants were mentally retarded. The law required the determination of retardation to be made after conviction and after a jury recommended death or the prosecution announced its intent to seek death even though the jury recommended life imprisonment. It also established a clear and convincing level of proof and was not retroactive.The next year, the U.S. Supreme Court in Atkins v. Virginia, 336 U.S. 304 (2002), held that executing the mentally retarded violated the Eighth Amendment, and that states were free to establish their own methods for determining mental retardation.The Criminal Procedure Rules Committee submitted proposed rules to implement F.S. §921.137 before the Atkins decision. After that ruling, the court on its own motion published rules (which were noticed in the May 15, 2003, Bar News ) and invited comment.“In response to the proposed rules, this court received comments,” the opinion said. “Circuit Judge O.H. Eaton and the Criminal Court Steering Committee submitted proposed rules as a substitute for the rules proposed by the court. We accept these comments and suggestions as being well advised and now adopt a rule which is primarily in the form adopted by Judge Eaton and the committee. We appreciate their work with respect to this issue.”The rule establishes procedures for four types of cases: cases that have not begun when the new rules go into effect October 1; cases when the trial has started as of October 1; cases when a direct appeal is pending; and cases when the direct appeal is final.The rule also did not set an evidentiary standard for the judge to use in determining whether the defendant is mentally retarded and did require that the determination be made before trial in all future cases.Pariente wrote her concurring opinion to address the evidentiary standard issue. She noted the court had been cautioned that the clear and convincing standards in state law would likely be found unconstitutional by the U.S. Supreme Court.While Atkins did not address a standard, in Cooper v. Oklahoma, 517 U.S. 348 (1996), “the Court held that a state law requiring a defendant to establish incompetence to stand trial by clear and convincing evidence was unconstitutional,” Pariente wrote. By not including a standard in the rules, she added, “The issue will then come to us in the form of an actual case or controversy rather than a nonadversarial rules proceeding.”She also suggested that the legislature revisit the issue, since the Atkins ruling came out after it enacted the law, and noted that most states that have addressed this issue have adopted a preponderance of the evidence standard.“Amendment of the burden of proof could eliminate potentially lengthy litigation on the constitutionality of the statutory standard and the delay in capital cases in which mental retardation is an issue,” Pariente wrote.Chief Justice Harry Lee Anstead concurred in her opinion.Cantero, in his concurring opinion, addressed why the rules require the determination of mental retardation to be made before trial, instead of after conviction and after a jury has recommended death or the prosecution seeks to override a jury life-sentence recommendation. Of 25 states with similar laws, 11 require it pretrial, five have no time — which allows it to be pretrial — and only three, including Florida, have it after conviction, he noted.“A death penalty case, involving the ultimate penalty, invokes a host of pre- and post-trial procedures, as well as requirements for court and counsel, that do not exist in any other context,” Cantero wrote. “To ensure that those procedures, which can be time-consuming and expensive, are invoked only when death is a possible sentence, the defendant, the state, and the judicial system all should desire a prompt determination of mental retardation.”He listed eight specific areas where the courts could save money, including that judges and counsel would not have to meet the higher standards for death penalty cases, penalty phase investigations and proceedings would be eliminated, the jury would not have to be death qualified, and no penalty phase trial would have to be conducted.Pariente and Anstead concurred in Cantero’s opinion.The court’s action created Rule of Criminal Procedure 3.203 and amended Rule of Appellate Procedure 9.142(c), which allows prosecutors to appeal when a judge rules a defendant is mentally retarded.In a May 20 letter to Secretary of State Glenda E. Hood reporting he had signed SB 44, which extended the deadline for inmates to seek a review of DNA evidence in their cases, Bush noted he opposed the court last year suspending the original DNA testing deadline of October 1, 2003. He said it was a use of judicial rulemaking to override legislative policy.“For the same reason, I disagree with the action taken today by the Florida Supreme Court that significantly revises legislation addressing the issue of mental-retardation claims in capital cases,” Bush wrote. “Whether the court agrees or disagrees with legislative policy, the court should not subordinate state laws, written by representatives elected by the people, to the court’s own policy preferences.“I intend to review the court’s use of its rulemaking power and discuss potential state constitutional reforms with legislative leadership in the near future.”Earlier this year, a proposed constitutional amendment was introduced in a Florida House committee that would remove from the Supreme Court the right to write court procedural rules and instead give it to the legislature.The amendment was discussed but never acted on, and Bar President Miles McGrane reached an agreement with Rep. Gus Barreiro, R-Miami, sponsor of the bill. That agreement would add legislators to the procedural rules committee and also see that lawmakers are informed about recommended and pending rule amendments.The court’s opinion and the new procedural rules can be seen on the court’s Web site at www.flcourts.org.