Georgia Prepares To Execute Mentally Retarded Inmate

July 8, 2013 10:00 am

by Charlie · 35 comments

This Week’s Courier Herald Column:

On Monday July 15th, Warren Hill is scheduled to die by lethal injection at the Georgia Diagnostic State Prison in Jackson Georgia.  Mr. Hill has seen execution dates come and go as is often the custom in death penalty cases.  Such appeals and stays of execution are part of the system of checks and balances required if the state is to use the ultimate punishment it can offer – the taking of a life.  But in Mr. Hill’s case – a man who has an IQ of 70 and is mentally retarded – the fact that we are again nearing yet another execution date is showing that Georgia’s death penalty is a system full of checks, but little hint of balances.

This is not a column advocating for the repeal of Georgia’s death penalty.  Far from it.  As has been written in this space before, there is a huge difference between cases such as Troy Davis’ where last minute “evidence” appeared in media accounts but did not appear in courts of law.  This, rather, is a case that illustrates that Georgia has the highest burden of proof for a defendant to prove mental retardation.  Furthermore, once that burden has been met, there is almost no way under Georgia’s law for subsequent evidence to clarify or change the sentence of death once rendered.

Warren Hill’s guilt is not at issue.  He killed a fellow inmate while serving time for a previous murder.  He is not someone that will be returned to society in hopes that he can be reformed and rehabilitated.  At the time of his original trial and sentencing however, the option of life without parole did not exist.  Today, instead, Georgia prepared to bring an international spotlight on itself for the execution of a man who even the state experts who evaluated him during his original trial now concede via sworn affidavit is mentally retarded.

The three state medical experts who originally stated that Mr. Hill was fit to stand trial and eligible for the death penalty have since recanted their testimony.  Furthermore, during sentencing, the victim’s family wasn’t even notified of the opportunity to give testimony to their opinion – usually the kind of thing that makes headlines when the family wants death.  In this case, however, the family of John Handspike doesn’t wish to see Hill executed.

Their victim impact statement and testimony was apparently not needed to sway the jury when considering whether an unsympathetic person such as Warren Hill should be allowed to continue to live, at the expense of the state.  And yet, it is precisely because he is so unsympathetic that our system of checks must have balances.  Mr. Hill is only receiving the procedural check thus far.

These customary checks made it through a 2012 appeal, where a Georgia State Court judge ruled that Hill is a person with mental retardation, but that he did not meet the standard “beyond a reasonable doubt”.  This is a check without balance.  And the headlines around the world are ready with that one declaration to announce next Monday that Georgia has executed a man it knows to be mentally retarded.

There is no greater power that the state has than to take a life.  There should be no greater balance applied against that state power than when this power is contemplated.  And yet, in Mr. Hill’s case, it appears that his life and justice for not only him but his victim has been reduced to a time consuming bureaucratic maze of paper shuffling leading to an untimely but inevitable conclusion.

Justice with respect to death penalty cases is rarely swift. But at its conclusion, it must be certain.  The appeals process cannot be allowed to be a never ending series of last minute ploys to reexamine “new” evidence” as has become the custom in too many of these cases.  But for an appeals process to be meaningful, there must be some form of material effort to ensure that the defendant, the victim (and victim’s family), and the state as a whole receive justice.

Warren Hill is not a sympathetic figure.  Warren Hill is a murderer.  Warren Hill should not, and will not, be a person who is capable of returning to walking among us as a free member of society.

But Warren Hill is also a person who is entitled to the checks and balances that our system of justice affords more sympathetic and more capable members of society.  To date, he has not received this.  And unless there are changes before next Monday, he never will.

Trey A. July 8, 2013 at 10:27 am

Echoes of Ricky Ray Rector… If Hill’s execution goes forward, we should all be ashamed and we should hold our leaders accountable.

Thank you, Charlie, for keeping this case in our minds.

saltycracker July 8, 2013 at 10:39 am

The rationality of a death penalty may be sound but the economic practicality isn’t. The taxpayers are funding legal careers designed by lawmakers.

Harry July 8, 2013 at 10:53 am

The judicial system needs to reform, stick to facts and eliminate expensive frivolous technicalities. The ACLU and the anti-death penalty bench create far more problems than they seemingly resolve. Keep in mind, according to the Sixth Amendment “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . .”

Noway July 8, 2013 at 11:08 am

Execute him already. Two murders. Both crimes against the People of Georgia. Doesn’t matter that the family members of one of the victims are now singing Kumbaya. Isn’t that nice. He deserves the ultimate punishment regardless of his IQ.

The Comma Guy July 8, 2013 at 11:32 am

Not mentioned – Georgia was the first state to ban execution of the mentally retarded.

From the Georgia Supreme Court in 2003:

Mentally retarded” under Georgia law “means having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.” O.C.G.A. § 17-7-131 (a) (3). Death penalty defendants tried on or after July 1, 1988 are entitled to present evidence of retardation to the jury at the guilt/innocence phase of their trials and, if found beyond a reasonable doubt to be retarded, to avoid a death sentence O.C.G.A. § 17-7- 131 (j). At his trial, Hill presented evidence of his intellectual slowness, but his psychological expert testified that Hill had an intelligence quotient of 77 and was not mentally retarded. Hill did not request that the jury be charged on a “guilty but mentally retarded” verdict.

From the 11th Circuit opinion in 2011:

Although Georgia already prohibited executing mentally retarded defendants at the time of Hill’s trial, direct appeal, and initial state habeas petition, Hill did not claim he was mentally retarded until five years after his 1991 trial. In 1996, Hill amended his state habeas petition to allege mental retardation for the first time, and he later claimed that Georgia’s reasonable doubt standard of proof in O.C.G.A. § 17-7-131 violated the Eighth Amendment.

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He could have alleged he was not competent to stand trial. The burden imposed is a preponderance of the evidence, a lower standard than the one to avoid execution because of mental retardation. I have tried to find the 2012 appeal where a judge found he was mentally retarded as the paper suggests. That finding rarely is made by a judge and usually reserved for a jury. There was a hearing scheduled by the trial court attempted to use the wrong standard and the Georgia Supreme Court reversed any finding for that mistake.

I did not stay at a Holiday Inn Express last night and do not play a doctor on TV. I cannot say whether or not Warren Hill, a man who killed two people, is retarded. I look at the evidence of his 1991 murder trial, when he and his attorneys knew what such a finding would mean, and believe that while he may not have a high IQ, he was not mentally retarded as the State of Georgia defines it. Note, no one seems to mention or question why his mental state was not discussed during his 1986 murder trial and subsequent appeals. If a majority of the people of Georgia want to change the definition used, they have the opportunity in November at the polls and in January when the Georgia General Assembly returns.

George Chidi July 8, 2013 at 11:34 am

In 2002 the Supreme Court ruled in Atkins v. Virginia that it was unconstitutional to execute the mentally retarded as it constitutes cruel and unusual punishment.

Flat out: this execution is illegal.

And, yes, that matters. You cannot justify taking the life of a man for breaking the law when we break the law in the process of taking his life.

Harry July 8, 2013 at 11:53 am

Isn’t it true he was not judged by a court to be mentally retarded?

Noway July 8, 2013 at 1:00 pm

God, George! No court has judged him retarded. They brought the retarded defense after the fact! “”"”"Shazzzammmm! My client’s retarded!”"”"”"”"” What a freaking joke. More lawyer crap!! I’ll bet you were suggesting Tookike Williams go free too! Jezus!

Charlie July 8, 2013 at 1:08 pm

From my notes, please tell me if incorrect:

“In 2002, the year the U.S. Supreme Court decided Atkins, a Georgia state court judge found Mr. Hill’s IQ to be approximately 70 beyond a reasonable doubt and to fulfill the overall criteria for mental retardation by a preponderance of the evidence. In 2012, the state court judge reaffirmed that Mr. Hill is a person with mental retardation, but found he did not meet Georgia’s “beyond a reasonable doubt” standard.”

Harry July 8, 2013 at 1:48 pm

“a Georgia state court judge found Mr. Hill’s IQ to be approximately 70 beyond a reasonable doubt and to fulfill the overall criteria for mental retardation by a preponderance of the evidence. ”

What’s your source?

Lawton Sack July 8, 2013 at 1:54 pm
Harry July 8, 2013 at 2:16 pm

But where does it say the court found Hill to be mentally retarded “beyond a reasonable doubt”? Is it not true this standard is intended to prevent activists with an agenda from “determining” a false positive – even skewing or falsifying test results – where in fact there is no real mental retardation? I think the real reason there is not a clear methodology for determining mental competence is to purposefully muddy the water and give opponents of the death penalty yet another way to prevent swift and and objective application of the punishment as determined by a judge and jury.

Farnsworth July 8, 2013 at 6:17 pm

The sources are as follows:
May 13, 2002 Order of Judge John Allen in Hill v. Head, Butts Co. Case No. 94-V-216: Court finds Hill has requisite IQ of approx. 70 beyond a reasonable doubt but that he does not satisfy adaptive skill deficit prong of diagnosis beyond a reasonable doubt.
Nov. 19, 2002 Order of Judge Allen in same case number: Court on reconsideration strikes down Ga.’s beyond-reasonable-doubt standard and finds that Hill meets all criteria for MR by a preponderance of the evidence.
July 19, 2012 Order of Judge Tommy Wilson in Hill v. Humphrey, Butts Co. Case No. 12-V-658: Court explicitly affirms Judge Allen’s previous finding that Hill meets IQ prong BRD and overall criteria (i.e., including adaptive skill deficits and onset prior to age 18) by preponderance of evidence, but declines to invalidate BRD standard and denies relief.
All of these orders are publicly available at the Butts Co. Clerk’s Office under the case numbers above.

The Comma Guy July 8, 2013 at 2:15 pm

Charlie – the court actually found the opposite:

The habeas court found on remand, in an order filed on May 16, 2002, that Hill succeeded in proving beyond a reasonable doubt that he had significantly subaverage intellectual functioning, but the habeas court further found that Hill failed to prove beyond a reasonable doubt the existence of impairments in adaptive behavior. Consequently, the habeas court concluded that Hill had failed to prove his alleged mental retardation beyond a reasonable doubt. See O.C.G.A. § 17-7-131 (a) (3) (defining mental retardation).

Head v. Hill, 277 Ga. 255, 256 (2003)

Farnsworth July 8, 2013 at 6:18 pm

It’s not as simple as that, as the following show:

May 13, 2002 Order of Judge John Allen in Hill v. Head, Butts Co. Case No. 94-V-216: Court finds Hill has requisite IQ of approx. 70 beyond a reasonable doubt but that he does not satisfy adaptive skill deficit prong of diagnosis beyond a reasonable doubt.
Nov. 19, 2002 Order of Judge Allen in same case number: Court on reconsideration strikes down Ga.’s beyond-reasonable-doubt standard and finds that Hill meets all criteria for MR by a preponderance of the evidence.
July 19, 2012 Order of Judge Tommy Wilson in Hill v. Humphrey, Butts Co. Case No. 12-V-658: Court explicitly affirms Judge Allen’s previous finding that Hill meets IQ prong BRD and overall criteria (i.e., including adaptive skill deficits and onset prior to age 18) by preponderance of evidence, but declines to invalidate BRD standard and denies relief.

The Comma Guy July 8, 2013 at 7:33 pm

My quoted portion of the Georgia Supreme Court opinion strikes down the November 2002 finding. Both Judge Wilson (of Genarlow Wilson fame) and Judge Allen found Hill met the first but not the second prong of the test. You have to meet both to be mentally retarded in Georgia. Not only do you need a low IQ or “significantly subaverage intellectual functioning”. You have to not be able to demonstrate the adaptive skill deficit. Therefore, he is not mentally retarded as Georgia defines it.

Farnsworth July 9, 2013 at 3:13 pm

But part of the problem in this case is that Georgia is the only jurisdiction which imposes the “beyond a reasonable doubt” standard on offenders seeking to prove MR. The Georgia courts explicitly found that Hill was MR by a preponderance of the evidence, which means in any other jurisdiction (except the 4 which impose a “clear and convincing” standard) he would be deemed MR and serving life.
The new problem is posed by the fact that the three experts the government relied on in 2000 to argue Hill’s not MR have now confessed they were in error and that Hill in fact meets all criteria for MR. The only reason the Georgia courts did not find MR beyond a reasonable doubt in the first place is that there was disagreement among the experts. Now there’s not, but the courts won’t revisit the issue. That’s a real problem.

George Chidi July 8, 2013 at 1:15 pm

Actually, I thought Tookie Williams was about as good a candidate for execution as most. I’m not a personal defender of Williams, or of Mumia Abu-Jamal or any of the rest of the cause celebre. Nor am I an opponent of the death penalty in principle. I simply believe the system is too prone to error and bias to currently be trusted with the moral responsibility to execute prisoners.

I’m not shocked that he wasn’t effectively defended in the first round: you know how grossly underfunded the public defender’s office is, even in death penalty cases. It’s a separate scandal all alone.

Given what we know, and what people are saying now, the fact that a court hasn’t adjudged him retarded speaks to the flaw in the court system. In fact, I would argue that if this fellow can’t be considered mentally disabled, then the standard itself is unreasonable, that it’s window dressing designed to fail, to get around Atkins v. Virginia.

gcp July 8, 2013 at 2:13 pm

This man is not mentally retarded. Whether his IQ is 70 or 71 he formed the intent and did in fact commit two murders. The great majority of the mentally disabled don’t commit such crimes, yet we are asked to excuse this murderer because of his mental state. As long as he is allowed to live at taxpayers expense he will always be a threat to other inmates, prison staff and the public if he escapes.

George Chidi July 8, 2013 at 2:29 pm

Our moral choices are defined by what we’ll pay for when there are safer or cheaper alternatives. Yeah, we’ll bear a cost to house him, and to keep ourselves safe. The essence of your argument is that the richest and most powerful society in the history of Earth should kill a mentally disabled man because locking him away from the rest of humanity until he dies is too lenient, because a seriously retarded man might still be clever enough to escape from prison someday and it’s too expensive and inconvenient to keep him in jail. The phrase “life is cheap” comes to mind.

It’s exactly this kind of Dickensian thinking that led the founders to put the prohibition against cruel and unusual punishment right into the Constitution in the first place — to protect the weak against the cruel.

The Comma Guy July 8, 2013 at 2:56 pm

George – the State was willing to use a “safer or cheaper alternative” after he shot Myra Wright on a public street, in front of witnesses, and without provocation. After he shot her, he chased her, shot Ms. Wright several more times, and then stood over her body, and shot her again. He was sentenced to life in prison with the possibility of parole. The problem is that after serving only 5 years or so of that sentence he removed a two-by-six board that served as a sink leg in the prison bathroom, imbedded it with nails and forcefully beat Mr. Handspike as he slept, as onlooking prisoners pleaded with him to stop. A prison guard witnessed the attack and testified at trial. Several prisoners testified that Hill mocked the victim as he beat him. The victim arrived at the hospital in a coma and died there.

What alternatives do we have as a prison sentence did not prevent him from committing another brutal crime?

George Chidi July 8, 2013 at 3:33 pm

The short answer is that we make alternatives. Solitary confinement. Close supervision if and when he is in the presence of others.

If he weren’t seriously mentally disabled, I probably wouldn’t be putting up a fight on this. But we knew he was dangerous when we convicted him, and we were pretty sure he was a mental deficient. If we are going to imprison people, we must accept some responsibility when we fail to keep people from harming others in prison. Prisons are overcrowded, largely because we over-convict in this country. In a sane state and a sane country, half the people in jail wouldn’t be there and we would have room to keep crazy, stupid killers like Hill away from everybody.

This isn’t about punishing him. This is about us.

The Comma Guy July 8, 2013 at 4:03 pm

But we knew he was dangerous when we convicted him, and we were pretty sure he was a mental deficient.

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I agree about the first part of that sentence, but disagree about the second. No one has ever pointed out where his mental deficiencies were raised in Cobb County. The focus has always been on the second murder, not the first. In my mind, that is the hole in the logic of this case. If there was a problem, it should be raised as to both murders, not just the second one.

David Staples July 8, 2013 at 4:25 pm

“It’s exactly this kind of Dickensian thinking that led the founders to put the prohibition against cruel and unusual punishment right into the Constitution in the first place — to protect the weak against the cruel.”

I’m not taking sides one way or the other here, but a question comes to mind. Is it more cruel to execute someone that is perhaps mentally retarded (and positively guilty it sounds like in this case) or is it more cruel to imprison someone for life with no chance of parole – where perhaps they’re stuck in a cell 23 hours per day by themselves with no human interaction or connection with the outside world?

George Chidi July 8, 2013 at 5:04 pm

My question exactly. Were I facing that kind of sentence, death would be a mercy. But perhaps I value my role in the world more than he does his.

David Staples July 8, 2013 at 10:22 pm

Exactly. There’s a reason people try to kill themselves in prison. I’m sure most of us would go crazy if confined to solitary.

Noway July 8, 2013 at 2:48 pm

Well, George, this “moron” was “cruel” enough his own self to murder two folks. Execute the bastard. Enough weenie excuses. And was it not “cruel and unusual punishment” for this animal to take two innocent human lives?

George Chidi July 8, 2013 at 2:53 pm

Ah, the Internet tough-guy speak. Lovely.

Yes! He was cruel! I do not question it. It is our duty not to be.

Noway July 8, 2013 at 3:10 pm

No internet tough guy. Just tired of apologists sticking up for putrid, violent, human trash. Nice liberal name calling, too, George. Par for your course.

George Chidi July 8, 2013 at 4:18 pm

As opposed to what, the conservative name calling the rest of your posts are rife with? Forgive me if I’ve hurt your sensitive feelings … while ignoring your indifference to your own choice of language.

MattMD July 9, 2013 at 2:25 pm

Quit acting like such a jackass.

Three Jack July 8, 2013 at 3:35 pm

Is he dead yet? Damn shame it’s taken this long to carry out the sentence.

Noway July 8, 2013 at 3:53 pm

He’s not, TJ, but his two victims sure as hell are!

Joseph July 9, 2013 at 12:13 am

I’m not sure if this statistic still holds up, but doesn’t it cost less to house a criminal for life than the cost of putting someone to death, when accounting every level of appeal available? I’m sure it depends on when the life sentence starts.

chamblee54 July 9, 2013 at 3:51 am

1- Does anyone know why the State is so hell bent on executing him? It seems like whenever the State wants to waste someone, they let nothing stand in their way. The money spent on lawyers, fighting for the blood lust of the State, could be better spent on a new football stadium.
2- Has the issue of where the State is going to get the drugs to waste Mr. Hill been resolved? The manufacturer of Pentobarbital does not want their product used for executions. There has been talk of the State using a pharmacy to concoct a special order drug to kill Mr. Hill. If a private citizen did this, to have a party, he would be in trouble. If the State wants to do this, to kill a man, then apparently that is OK.
chamblee54

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