Nearly 14 years ago the state of Georgia asked two psychologists and a psychiatrist to evaluate a convicted killer named Warren Lee Hill Jr., who had filed a legal challenge to his death sentence on the grounds that he lacked sufficient intellectual capacity to understand why Georgia wanted him dead.
The psychiatrist, Thomas H. Sachy, who had no background in that kind of evaluation — he worked with brain injuries and seizure disorders — spent an hour with Hill, read some files, then shared his findings with the two psychologists, James Carter and Donald Harris, who together had spent two hours talking with Hill. They all concluded that Hill was malingering, understood what was happening and thus was eligible for execution.
Now all three experts acknowledge in court documents that they were wrong. But Georgia could well execute Hill anyway.
Why? Because fresh affidavits by the three experts withdrawing their initial opinions came too far along in the legal process to be considered in Hill’s newest challenge. At the same time, the case spotlights Georgia's bizarre state requirement that to avoid the death penalty a defendant must prove intellectual disability “beyond reasonable doubt,” the only state in the nation with such a stringent burden of proof (most others use the "preponderance of evidence" threshold, meaning the defendant is most likely intellectually disabled).
Hill is not an embraceable petitioner. He was serving a life sentence for murder after shooting his girlfriend 11 times in 1986 when, four years later, he used a nail-studded board to beat a prison cellmate to death. He should be locked away from society and from fellow prisoners for the rest of his life.
But Hill should not be executed, and that has come close to happening before. Beyond the general problems with the death penalty -- the manipulation of the system by police and prosecutors, the inconsistent application, the base immorality of killing -- Hill stands apart because of his intellectual disability. His IQ is 70, the threshold for determining disability, though that comes with a margin of error and in current practice should be viewed in conjunction with other observations of “adaptive behavior, which covers many everyday social and practical skills,” according to the American Assn. on Intellectual and Developmental Disabilities.
The Supreme Court agrees. Earlier this year it tossed out Florida’s use of a "bright-line" 70-IQ threshold for determining eligibility for execution, ordering that, in essence, states must follow the most up-to-date professional standards in making such evaluations -- which was the right call. That followed the 2002 ruling in Atkins vs. Virginia that executing those with intellectual disabilities violates the 8th Amendment’s proscription against cruel and unusual punishment.
The initial evaluation of Hill by the three experts was hastily done. In 2000 Hill had challenged his death sentence on grounds of intellectual disability (known as mental retardation at the time), and the experts were asked to assess him. They did so on Dec. 6 and Dec. 11, completed their report on Dec. 12 and testified on Dec. 14.
In affidavits signed in February 2013, all three men said that in reviewing their initial findings, other material about Hill’s capacities that was unavailable to them at the time and advances in understanding how intellectual disabilities affect behavior, they now believe he suffers from an intellectual disability that would make him ineligible for the death penalty. Georgia's counter-argument is that the new affidavits are not credible because they are not based on fresh evaluations of Hill, and that the petition is invalid.
The problem is Hill already lost appeals on similar grounds -- including the appeal that led to the three experts’ initial evaluation of him. But that was before the experts changed their opinions. Still, Georgia Superior Court Judge Thomas H. Wilson ruled last month that Hill “has not cited any new law or any new evidence to overcome the procedural bar” to raising an appeals issue that had already been settled. He also ruled that the Supreme Court’s Florida decision requiring an expansive definition of intellectual disability did not apply to Hill’s case.
But then Wilson invited the state Supreme Court to take up the issue, essentially kicking the final decision upstairs.
“There is no public outcry calling for a change, but there exists the knowledge that this case involves the ultimate punishment and the defendant is at the end of his legal avenues of appeal,” Wilson wrote in a three-paragraph ruling. “Should the Georgia Supreme Court not grant an interlocutory appeal of this decision, it would be logical to assume that there is no doubt that the Court believes that Georgia law is constitutionally correct and justice will be served. Should the Court review this decision, this case would, in its factual concept be a perfect and definitive decision in this area of the law.”
The upshot is that the three experts whose opinions initially cleared the way for the death sentence now say they were wrong (four expert defense witnesses testified that Hill was disabled). But procedural rules, as they've been upheld so far, mean that the revised opinion has no weight.
“Warren Hill is a man with documented, lifelong intellectual disability -- a fact about him that has been confirmed by all seven doctors who have examined him, including three who previously testified in his case on behalf of the state," Hill's lawyer, Brian Kammer, said. "The fact that Mr. Hill has been unable to prove his intellectual disability, and ineligibility for the death penalty, is due to the flawed and unscientific standard required by the state of Georgia."
And by a state court system that seems to believe that, in deference to a rulebook on how lawyers must work, an intellectually disabled man should be executed in violation of the 8th Amendment.
As I've said before, this system is too screwed up to be relied on to determine who, ostensibly on our behalf, the government will kill.
Follow Scott Martelle on Twitter @smartelle.