After more than 25 years on death row in Florida, Ted Herring, a Shearman & Sterling pro bono client, had his capital sentence vacated by the Seventh Judicial Circuit Court of Florida earlier this week. In a detailed opinion, the Florida Circuit Court found that Mr. Herring is a person with mental retardation and set aside his death sentence.

This decision is the culmination of a 25-year odyssey led by Shearman & Sterling's late partner, Jeremy Epstein, who passed away in July. New York Litigation partners Alan Goudiss and Adam Hakki and a number of Shearman & Sterling associates contributed to the positive outcome of this case.

Mr. Herring's death sentence had been the subject of six decisions by the Supreme Court of Florida, as well as decisions, on a petition for a writ of habeas corpus by the United States District Court for the Middle District of Florida and the United States Court of Appeals for the Eleventh Circuit. None of those proceedings or decisions addressed the question of whether Mr. Herring was a person with mental retardation. Shearman & Sterling received a certificate of appealability from the U.S. Court of Appeals for the Eleventh Circuit on their claims that Mr. Herring received ineffective assistance at his sentencing. But, that came only after years of failed appellate objections regarding a flawed sentencing procedure and Mr. Herring's IQ level.

The defendant's Motion and Evidentiary Hearing were prompted by the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), which held that the execution of a person with mental retardation is cruel and unusual punishment in violation of the Eighth Amendment. In this instance, the state adopted the preponderance of the evidence standard of proof of Mr. Herring's mental retardation in light of the Supreme Court of Florida's refusal to endorse the use of the clear and convincing evidence standard.

The Shearman & Sterling team included late partner Jeremy Epstein (New York-Litigation) and New York Litigation partners Alan Goudiss and Adam Hakki.