dissenting.
Although the guilt-innocence trial was held prior to the effective date of OCGA § 17-7-131, it was determined by the Eleventh Circuit Court of Appeals that Stephens was not denied effective assistance of counsel during that proceeding. That Court took into consideration the results of a 1979 court-ordered psychiatric evaluation showing “no evidence of a mental disability or disorder.” Stephens v. Kemp, 846 F2d 642, 655 (11th Cir. 1988). The Court concluded that trial counsel’s reliance on that evaluation “was reasonable insofar as the *361guilt phase of the proceeding, and [there was] no failure of counsel in that regard.” Id. Thus, Stephens neither had a viable mental retardation defense at the time of his 1980 trial, nor was counsel deficient in failing to inquire into the matter further.
Decided December 4, 1998 — Reconsideration denied December 17,1998. Peter D. Johnson, John R. Carroll, for appellant. Daniel J. Craig, District Attorney, Thurbert E. Baker, Attorney *362General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.*361Almost 20 years later, the majority would reverse Stephens’ second sentencing trial because the trial court failed to instruct the jury on a preponderance of the evidence standard of proof on the question of his mental retardation raised in mitigation of imposition of the death penalty. The majority premises its conclusion on the rationale of Zant v. Foster, 261 Ga. 450 (406 SE2d 74) (1991) and Fleming v. Zant, 259 Ga. 687 (386 SE2d 339) (1989). Those habeas corpus cases gave relief to capital defendants who were tried before enactment of OCGA § 17-7-131 (c) (3) and (j), the statutory procedure preventing execution of mentally retarded defendants. In my opinion, Fleming, Foster, and their progeny were erroneously decided and should be overruled. The intent of those cases was to provide for those defendants
essentially the same opportunity to litigate the issue of [their] mental retardation as [they] would have had if the case[s] were tried today, with the benefit of the OCGA § 17-7-131 (j) death-penalty exclusion.
Zant v. Foster, supra at 451 (4). However, the plain language of OCGA § 17-7-131 (c) (3), requires that a defendant prove his mental retardation “beyond a reasonable doubt” in order to be found guilty but mentally retarded. See Burgess v. State, 264 Ga. 777 (36) (450 SE2d 680) (1994). Thus, instead of providing a capital defendant with the “same opportunity” as that defendant would have with the benefit of the statutory procedure against the execution of mentally retarded defendants, Fleming and Foster allow such defendants the lesser burden of proving their retardation by a preponderance of the evidence. Therein lies the fallacy. Because I believe the trial court applied the correct standard of proof, I would affirm Stephens’ sentencing trial on this ground.
I am authorized to state that Justice Hunstein and Justice Carley join in this dissent.