IN THE CRIMINAL COURT FOR ______________ COUNTY, TENNESSEE
AT _________________

STATE OF TENNESSEE

VS.

							NO.
     
	Comes now counsel for the defendant, __________, and moves this Court to exclude death as a possible punishment at his trial.  As grounds therefore, counsel rely upon Amendments 5, 6, 8, and 14 of the U.S. Constitution; Article I, §§ 8, 9, 16, and 17 of the Tennessee Constitution; and Mr. _______'s rights to a full and fair hearing and to fundamental fairness in proceedings in which his death is sought by agents of this state. 

	[Facts of the case, including mental illness history which is on the record or which you decide to disclose.  Often there will have been a competency hearing.] 

	There is a significant constitutional difference between the penalty of death and 

other lesser punishments.

[D]eath is a different kind of punishment from any other which may be imposed in this country ... From the point of view of the defendant, it is different in both its severity and its finality.  From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action.  It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.  Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (opinion of Stevens, J.) (as quoted in Beck at 2390).
	The difference is grounded both in the Due Process Clause and in the Eighth Amendment.  See, e.g., Simmons v. South Carolina, 114 S.Ct. 2187, 2194 (1994).  In Simmons the Court reversed a death sentence, finding a Due Process violation where the capital defendant's future dangerousness was at issue, state law prohibited his release on parole, and the defendant was not allowed to inform the jury that he was parole ineligible.  The Court reasoned that like the defendants in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) and Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977),1 Simmons "was prevented from rebutting information that the sentencing authority considered, and upon which it may have relied, in imposing the sentence of death."  Simmons at 2194.
	Perhaps the most eloquent exposition of the constitutional mandate for states to provide reliable procedures at all stages of capital prosecutions is found in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).  In Ford the Supreme Court (1) held that the Eighth Amendment prohibits states from inflicting the penalty of death upon a prisoner who is insane and (2) struck down Florida's procedures for determining the sanity of a death row prisoner as inadequate to afford a full and fair hearing on such a critical issue.
	Alvin Ford was convicted and sentenced to death in Florida without any issue as to his competency at the time of trial, but on death row developed "an increasingly pervasive delusion that he had become the target of a complex conspiracy" and was diagnosed with "paranoid schizophrenia."  Ford, 106 S.Ct. at 2598.  Pursuant to Florida statute, the Governor appointed three psychiatrists to evaluate Ford who "produced three different diagnoses, but accord on the question of sanity as defined by state law" and the Governor signed a death warrant.  Id. at 2599.
.	After an extensive analysis of the common law and objective evidence of contemporary societal values the Court concluded:
[T]he natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today.  And the intuition that such an execution simply offends humanity is evidently shared across this Nation.  Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.  Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eight Amendment.  Id. at 2602.

	The Court then addressed the adequacy of the proceedings Florida had established to insure that an insane person would not be executed:
The adequacy of a state-court procedure ... is largely a function of the circumstances and the interests at stake.  In capital proceedings generally, this Court has demanded that fact finding procedures aspire to a heightened standard of reliability.  See, e.g., Spaziano v. Florida, 468 U.S. 447, 456, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340 (1984).  This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.  See Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, J.J.).  Id. at 2602.

	The Court found several deficiencies in Florida's procedure, among them that the process did not permit material relevant to the decision to be submitted on behalf of the prisoner facing execution.2  Justice Marshall, writing for the Court noted "[i]n all other proceedings leading to the execution of an accused, we have said that the fact finder must 'have before it all possible relevant information about the individual defendant whose fate it must determine.'"  Id. at 2603-2604 (citation omitted).  In addition, there was no opportunity to challenge or impeach the state-appointed psychiatrists' opinions.  Id. at 2604.  The "most striking defect" was the State's placement of the decision "wholly within the executive branch [the Governor]."  Id. at 2605.  As Marshall put it "[t]he commander of the State's corps of prosecutors cannot be said to have the neutrality that is necessary for reliability in the fact finding proceeding."  Id.  
_______________ IS SEVERELY, IRREVOCABLY MENTALLY
ILL AND HIS EXECUTION WOULD VIOLATE FUNDAMENTAL
CONSTITUTIONAL PROTECTIONS PROHIBITING
DISPROPORTIONATE PUNISHMENT

	The record in this case provides abundant evidence of Mr. _______'s mental illness, an organic delusional disorder, dating from at least 1980 up to the present.  The impact of his illness has rendered him incompetent to stand trial in the past.  His illness is caused by brain damage which is irrevocable.  Delusional disorders are fairly rare among the various forms of mental illness and are very difficult to treat and nearly impossible to cure.  Sufferers of delusional disorders are by definition out of touch with reality.  If brain damage is the cause of the delusions, treatment is particularly difficult.  Patients who suffer organic-based delusions tend not to respond to antipsychotic medications, although the medications may help them control their behavior.
	Mr. _________has a history of head trauma and drug and alcohol abuse which are possible causes of the brain damage he has incurred.  This brain damage has been diagnosed by Dr. Candace Walker, Dr. Frank Deland, and Elmer Maggard as the probable source of Mr. ______'s delusions. _______________ is currently receiving the prescribed antipsychotic medication Mellaril.  Eric Johnson, a court-appointed psychologist, found Mr. _________ to be "clearly delusional" in June 1994.  
	_________'s capacity to disclose available pertinent facts surrounding the charged offenses, his actions at the time, and his mental state at the time is impaired by his mental illness.  Dr. Walker testified at the first trial as to his lack of criminal responsibility for the charges at the first trial, but noted her inability to get an accurate account of what happened due to ______'s organic delusional disorder.  Similarly, the account which _______ provided to Ravani appears to not be based in reality.
.	Because of his illness _________ cannot and will never have a reality-based perception of the charged crime if convicted. "[T]he natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today.  And the intuition that such an execution simply offends humanity is evidently shared across this Nation."  Ford, 106 S.Ct. at 2598. at 2602.  
.	Nor can ________ rationally or accurately provide information as to his own mental status because of his delusional persistence in denying suffering any mental illness at any point in his life.  He cannot and has not rationally participated in an accurate assessment of his mental illness due to his refusal to cooperate with mental health professionals retained by defense counsel.  Yet despite his dogged insistence that he is mentally healthy, a series of medical health professionals have identified, diagnosed, and attempted to treat his mental illness.
.	On the basis of the extensive record in this case demonstrating that _______ is mentally ill and that his mental illness played a causative role in the charged crimes (assuming he is guilty of course) this Court can and should preclude the penalty of death prior to retrial.  The Eighth Amendment requires that punishment be proportionate to the crime.  Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion) (death is "grossly disproportionate and excessive punishment" for rape).  See A. Emanuel, Guilty But Mentally Ill Verdicts and the Death Penalty: An Eighth Amendment Analysis, 68 N.C. L. Rev. 37, 59 (1989).  "Proportionality, from a constitutional point of view, has two aspects: 1) the punishment must not be disproportionate to the crime, and 2) the punishment must not be disproportionate to the level of culpability of the offender."  Emanuel, supra, at 59-60 (note omitted).  Counsel do not argue that the penalty of death is generally disproportionate to the crime of murder.   
.	A punishment of death in this case would be disproportionate to the level of moral culpability of Mr. _________ if he is found guilty.  "American criminal law has long considered a defendant's intention -- and therefore his moral guilt -- to be critical to 'the degree of [his] criminal culpability.'"  Enmund v. Florida, 458 U.S. 782, 800 (1982) (quoting Mullaney v. Wilbur, 421 U.S. 684, 698 (1975)).  Emanuel, supra, at 61.  The Supreme Court has stated:
Underlying Lockett [Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)] and Eddings [Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)] is the principle that punishment should be directly related to the personal culpability of the criminal defendant.  Penry v. Lynaugh, 109 S.Ct. 2934, 2947 (1989).

.	Justice O'Connor, writing for the majority, stated that in a capital case there must be certainty that:
the sentencer has treated the defendant as a "uniquely individual human bein[g]" and has made a reliable determination that death is the appropriate sentence.  Woodson [Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)], 428 U.S., at 304, 305, 96 S.Ct., at 2991, 2992.  "Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime."  California v. Brown [479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)] 479 U.S., at 545, 107 S.Ct., at 841 (O'CONNOR, J., concurring) (emphasis in original).  Penry, supra, at 2947. 

	In Penry the Supreme Court held there is no per se federal constitutional bar to the execution of mentally retarded offenders as a class.  Tennessee of course has adopted a statutory bar to the execution of the mentally retarded.  T.C.A. § 39-13-203. In Penry the Court conducted an analysis of the common law regarding punishment of those who "lacked the reasoning capacity to form criminal intent or to understand the difference between good and evil" and the extent to which mentally retarded offenders met that criteria.  Id. at 2953-2955.  The Court stated:
Because of the protections afforded by the insanity defense today, such a person is not likely to be convicted or face the prospect of punishment.  See ABA Standards for Criminal Justice 7-9.1, commentary, p. 460 (2d ed. 1980) (most retarded people who reach the point of sentencing are mildly retarded).  Id. at 2954.  

	Because of state-created procedures, ________ will not be afforded the federal due process and reliability protections that an insanity defense would provide in assessing his capacity to appreciate the wrongfulness of his action.  He is being denied a screening process which could remove him not only from the class of death-eligible offenders, but also from any punishment.  The importance of this screening process in the reliability and proportionality concerns of Eighth Amendment jurisprudence is evident in Penry.  The Court noted Penry had been found competent to stand trial (there was apparently no issue taken with the fairness or accuracy of that process) and that "[i]n addition, the jury rejected his insanity defense, which reflected their conclusion that Penry knew that his conduct was wrong and was capable of conforming his conduct to the requirements of the law."  Id. at 2955 (citation omitted) (emphasis added). ________ will not have that opportunity.
.	Proportionality review of cases involving mentally ill defendants resulting in preclusion of the penalty of death is not a novel idea.  For example, the Indiana Supreme Court has reversed a death sentence under the following circumstances:
The trial court's findings with respect to the existence of the aggravating circumstances are clearly supported by the record.  Because the killing was accompanied by additional sexual assaults, it has great weight as an aggravator.  However, when the written finding with respect to the existence of a lone mitigating circumstance of having consumed alcohol is reviewed along with the uncontroverted evidence of parental neglect, abnormal behavior, psychiatric disorder [variously diagnosed as antisocial personality disorder, personality disorder with impairment of function, and adjustment disorder -- none of which involved psychosis], and of the immediate surrender to authorities, it is clear that the trial court's conclusion that the death penalty is appropriate was arrived at without the required discrete and individualized consideration of the character of the offender.  Vandiver v. State (1985), Ind., 480 N.E.2d 910.  Having so concluded, and having given due consideration to the recommendation of the jury, we find that while the weight of aggravating circumstances is in the high range, it does not preponderate, and the sentence of death is therefore not appropriate in this case.  Evans v. State, 598 N.E.2d 516, 519 (Ind. 1992).

Thus, the Court found death inappropriate for Charles Evans who raped Darlene Hendrick, age 20, at knifepoint, forced her to perform oral sex, raped her again, stabbed her 45 times, and then removed items from her purse, cut her hair, and applied lipstick to her.  Id. at 517.  The mental health expert testimony in his case indicated that Evans merely suffered a personality disorder without psychosis, not a severe organic disorder which rendered him out of touch with reality.  Id. at 518-519.  Evans had a history of sexual assault, burglary and child molesting.  Id.
.	In State v. Jimenez, 799 P.2d 785, 797-801 (Ariz. 1990), a death sentence was reduced to life imprisonment based on defendant's mental incapacity.  In State v. Fierro, 804 P.2d 90 (Ariz. 1990), the death penalty was held to be disproportionate due in part to defendant's "history of psychological illness."  In Jones v. State, 332 So.2d 615, 619 (Fla. 1976), a death sentence was reduced to life based on evidence of defendant's mental illness.  See also Burch v. State, 343 So.2d 831 (Fla. 1977).  In Huckaby v. State, 343 So.2d 29 (Fla. 1977), evidence of mental illness outweighed evidence in aggravation and required reduction of a sentence of death to life imprisonment.
	The Mississippi Supreme Court vacated a death sentence based on the offender's mental illness noting that while the defendant "may have comprehended the difference between right and wrong his capacity to appreciate the criminality of his conduct and to conform it to the law was substantially impaired."  Edwards v. State, 441 So.2d 84, 92-94 (Miss. 1983).  In Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987), a death sentence was vacated as disproportionate in the case of the mentally ill offender. 
	It is the courts which have responsibility for enforcing constitutional protections for the mentally ill, and specifically those facing death, not the public, not even the jury.  The courts in particular are charged with ensuring that the death penalty is administered in a fair, rational, proportionate manner.  As the above cases attest, the judiciary has taken this obligation to heart, despite some current public discontent with concepts of criminal responsibility.
.	Certainly, the specter of executing the mentally ill is not generally condoned by the public.  When a South Carolina judge accepted James Wilson's plea of guilty but mentally ill and then sentenced him to death, the following editorial appeared which encapsulates in lay language the rationale of the Supreme Court for refusing under federal constitutional provisions to condone the execution of the mentally ill:
While Wilson' crime was inarguably ghastly, his disordered mental state makes his rampage more a hideous tragedy than an unmitigated outrage.  What purpose would his execution serve?  Would it deter other psychotics from similar behavior?  The very notion is ridiculous ... At best, Wilson's execution would be no more than a hopeless gesture of protest against a crime that defies understanding.  At worst, it would be an act of unspeakable meanness.  James Wilson could not control his own worst impulses.  Sometimes our judicial system has the same problem.  "It's Wrong to Kill the Mentally Ill," Atlanta J. & Const., May 14, 1989, at D-6, as quoted by Emanuel, supra, at 38.
 
.	It would be similarly wrong to allow imposition of the death penalty and execution of __________ under the circumstances of this case.  
   
  	THIS COURT HAS THE AUTHORITY TO PRECLUDE
DEATH AS A POTENTIAL SENTENCING OPTION

.	There is substantial benefit to determining whether death will be a sentencing option at this point in the proceedings.  Possibly the greatest benefit to all parties, to the victim’s family, and to the court system itself, is that preclusion of death as a sentencing option would facilitate finality in this case which has now been pending for nearly nine years.  If the death penalty were to be imposed again in the circumstances of this case, a lengthy appellate process, in which the heightened due process concerns discussed supra would be addressed, would be guaranteed.  Imposition of a lesser sentence would not compel that level of review and heightened scrutiny.
	Death penalty cases require extensive pretrial motion practice to insure the "enhanced reliability required of cases wherein death is an issue."  Woodson v. North Carolina, 428 U.S. 280 (1976); Lockett v. Ohio, 438 U.S. 586 (1978).  Much extensive pretrial litigation could be avoided by a determination now that death is inappropriate or legally impermissible in this case.  Death cases require the selection of "death qualified jurors" which generally takes several days to a week or more.  The trial of a death case requires an extensive "penalty" or "mitigation" phase after a jury determines guilt.  Often this consumes more time than the guilt phase.  That is certainly a possibility in the case of ____________.
	Tennessee appellate courts have not specifically addressed the issues before this Court; however, other states have.  North Carolina addressed this issue in State v. Watson, 312 S.E.2d 448 (N.C. 1984).  Watson, charged with a death penalty offense, moved to determine the applicability of aggravating factors in his case.  Based upon the pretrial discovery, he alleged the state's anticipated evidence would be insufficient for the jury's consideration of a death penalty.  Over vigorous opposition from the state attorney general's office, the Supreme Court of North Carolina approved the trial judge's consideration of this motion.  The court held as follows:
The able trial judge found under the circumstances of this case it is in the best interests of justice, the public, and the judicial system, that this would be determined prior to trial.  We do not question or consider the correctness of this ruling on the applicability of the death penalty.  He ruled the aggravator inapplicable under the circumstances.  We commend this procedure for its judicial economy and administrative efficiency.  Watson at p. 452.  [emphasis added]

.	In a similar case, a state's attorney argued before the New Jersey Supreme Court that only prosecutors have the ultimate and final discretion regarding the nature of charges brought, but the Court rejected this argument, finding that state's attorneys should not be entirely "insulated" in a decision making death an option.  Also arguing that trial judges lack the power to make pretrial determinations on the sufficiency of aggravating factors, the state's lawyer was told by the Court that limited review is permissible to satisfy the interests of the public and the defendant that sufficient evidence exists to justify the extraordinary time and expense necessary for submission of aggravating factors to a jury.  State v. McCrary, 478 A.2d 339 (N.J. 1984).  
.	Noting the "momentous effects" and the "enormous commitment of time and resources" in death penalty cases, California courts have held these to be sufficient reasons for "minimal intrusion" into the area of prosecutorial discretion for a determination of the "factual moorings" of a state's decision to seek death.  The people of the state, as well as the accused, have an "overriding interest in the assurance that allegations supporting the death penalty are founded upon perceptible evidence showing reasonable cause to make them and to assume their consequences in a prosecution for murder."  Ghent v. Superior Court of California, 90 Cal.App.3d 944, 153 Cal.Rptr. 720 (1979); see, also, McCrary, supra, 344-345.  
	In another New Jersey case, State v. Spotwood, 495 A.2d 483 (N.J. 1984) the New Jersey court held that motions for pretrial evidentiary hearings to dismiss or question the sufficiency of aggravating factors upon which the prosecutor will rely to support a death sentence should be conducted when, if granted, such a motion would eliminate a possibility of the death penalty or serve another substantial purpose, such as where defendant's trial preparation relative to aggravating factors would entail extraordinary expenditures of time and money.  Id. at    (citing McCrary, supra).
	It is doubtful that Tennessee’s Supreme Court would find fault with any pretrial procedure which has the potential to avoid unnecessary waste of judicial time and resources.  If the state cannot obtain a death penalty consistent with federal and state constitutional requirements then considerable time and effort will have been saved. 
	WHEREFORE, counsel for the accused respectfully request this Court to enter an order precluding the penalty of death as a sentencing option in this case and move for an evidentiary hearing on this matter.
							Respectfully submitted,