Presented by Bruce Manning and Brooke Tassoni
July 15, 2004
Summary of Remarks

Bruce Manning and Brooke Tassoni, associates at Robins, Kaplan, Miller & Ciresi, L.L.P., discussed their struggles and successes in representing Jeremiah Jackson--a mentally retarded death row inmate--in the wake of Atkins v. Virginia. Manning and Tassoni have provided pro bono services to Jackson, who was suing the state of Alabama in post-conviction habeas corpus proceedings.

Manning began by noting that death row inmates such as Jackson desperately need pro bono services from competent attorneys, because states like Alabama provide inadequate legal assistance for their capital defendants, most if not all of whom are indigent. Emphasizing this point, Manning described a September 2000 edition of Nightline where the Governor of Alabama asserted capital defendants in his state were quite fortunate, because lawyers from around the company and bright students from NYU Law School represented them. Responding to this comment, the head of the Equal Justice Institute, which is one of the only resources in Alabama for individuals facing execution, admonished that relying on lawyers and law students thousands of miles away to represent death row inmates is "not something the state should be proud of." Law firms such as Robins, Manning stated, are yet another example of the resources thousands of miles away that Alabama's death row inmates must ultimately depend upon to help them fight for their lives.

Manning next gave a brief overview of the Supreme Court's 2002 decision in Atkins, which held executing the mentally retarded to be cruel and unusual punishment. In overturning its 1989 Penry v. Lynaugh Eighth Amendment holding, the Court considered how states' views on this issue had changed. By 2002, many state legislatures had decided imposing the death penalty on the mentally retarded furthered neither the deterrent nor retributive goals of punishment. Though ultimately relying on its own judgment, the Court took note of and agreed with this national trend. While Atkins was a potent decision in theory, officially recognizing a shift in normative American views towards capital punishment, Manning noted the decision left many practical problems for capital defenders. The Court, for example, did not define "mental retardation," and was silent on whether Atkins applied retroactively.

Tassoni addressed the legal fallout of these gaps in Atkins, stating that courts and attorneys now face open questions such as: who decides if a person is mentally retarded, when in the legal process should mental retardation be determined, and what criteria should define retardation? According to Tassoni, the latter question is often answered by state legislatures. Most states that have statutes defining retardation list three factors to consider: 1) whether the individual has an I.Q. that is below average, which most states set at 70, 2) whether the individual suffers substantial deficits in day-to-day living skills, and 3) whether the onset of these deficiencies occurred before adulthood. Some states, however, choose to set very high bars in defining mental retardation. For example, some states have established I.Q.s between 65-70 as their threshold standard for mental retardation. I.Q.s in this range are extremely low, and such standards ultimately leave states free to execute many individuals with mental capacities far below normal, despite the Court's decision in Atkins.

Tassoni stated that thus far, very few cases have adjudicated whether a person is mentally retarded under Atkins. The cases most commonly litigated, she noted, involve borderline individuals. Such individuals initially appear functional in terms of daily living skills, but have obvious defects that may be visible only to the trained clinician.

When Robins Kaplan Miller & Ciresi subsequently took up Jackson's case, which was shortly after Atkins was decided, it initially seemed as though the case was clear cut: Jackson was mentally retarded, so under Atkins he could not be executed. However, Manning and Tassoni quickly discovered that saving a mentally retarded man from execution, even after Atkins, involves many unanticipated difficulties.

Tassoni addressed some of the major obstacles faced by capital attorneys litigating mental retardation cases. First, Tassoni stated it is difficult, particularly in borderline cases, to inform one's client that they are mentally retarded, and to convince them that in light of Atkins, this fact is good. Second, Tassoni asserted there are myriad difficulties involved with demonstrating mental retardation, especially in states such as Alabama where retardation in the capital context has not been statutorily defined. For instance, Tassoni stated even a single example of the defendant's ability to function normally, such as the ability to drive, may override vast amounts of evidence demonstrating mental deficiencies. Moreover, evidence showing the defendant is able to function normally can frequently be misleading.  In many cases, writing samples, for example, may be used by the state to show the defendant has average skills, when in reality the defendant required exponentially greater time, effort, and resources than average to prepare these samples. Ironically, since many mentally retarded individuals try both to conceal their retardation and to please those in authority, such individuals will often work assiduously to produce evidence for those who seek to execute them. Ultimately, Tassoni and Manning noted that post-Atkins capital defense attorneys are still working against an overarching perception that if a defendant is able to function at all, they are able to form the requisite intent to commit murder.

Speaker Biographies

Bruce D. Manning is an associate at Robins, Kaplan, Miller & Ciresi, L.L.P., in the business litigation department.  He has works for insurers in first party property coverage and complex industrial subrogation claims, advises corporate risk managers on insurance coverage and procurement issues and also works on securities, patent and trademark matters.  He graduated from the University of Michigan Law School.

Brooke Tassoni is an associate at Robins, Kaplan, Miller & Ciresi, L.L.P., where she practices in the areas of mass tort, products liability, personal injury and medical malpractice. She has published articles on tort reform, the regulation of consumer products and emotional distress damages in negligence cases. She graduated magna cum laude from the University of Minnesota Law School. 

 Announcement   Minnesota attorneys Bruce Manning and Brooke Tassoni will describe their experiences in providing pro bono representation to a mentally retarded individual on death row. The Supreme Court recently found in Atkins v. Virginia that the execution of the mentally retarded violates the Eighth Amendment. Manning and Tassoni will address the impact Atkins will have on their capital case, as well as the broader implications of such a ruling. One CLE credit granted.