THE BLOG

A 'Perfect Storm' in Georgia

05/07/2013 03:11 am 03:11:32 | Updated Jul 06, 2013

A Georgia inmate named Warren Hill, who came within forty minutes of a lethal injection in February, is in legal limbo this week. His case represents a "perfect storm" of the seemingly insurmountable problems that beset courts and state legislatures in applying the death penalty.

Warren Hill has killed twice. He murdered his girlfriend in 1985 and then six years later, bludgeoned his cellmate to death using a board studded with nails. He was sentenced to death for that second murder.

The never-ending appeals of Hill's death sentence have cost society many multiples of the meager amount paid to court-appointed lawyers to represent Hill at his trial. The lack of defense resources, typical in capital punishment cases, has had serious consequences.

The defense didn't have enough money to send an investigator to Hill's elementary school to examine his student file, which would have revealed that Hill even as a child suffered serious mental impairment. The U.S. Supreme Court has held that states may not execute mentally retarded offenders, but allows the states to set their own standards of impairment. Georgia, alone among the 32 states that still have capital punishment, requires defense lawyers to prove their client retarded beyond a reasonable doubt, a very high standard of proof.

Four expert defense witnesses told Hill's jury that he was retarded; three prosecution experts testified that he was not. None of them knew about the childhood records that unambiguously documented his impairment, and without that evidence the defense could not meet its burden of proof. On Aug. 2, 1991, Warren Hill was sentenced to death.

Fast-forward to 2013. The complete school records were made available to the three prosecution experts, and all of them changed their findings. On the basis of the early tests, they concluded that Hill was indeed retarded, with an IQ of 70. It was an astonishing turn of events.

At this point, with an execution date fast approaching, Hill's attorneys were pursuing two avenues of appeal. The first attack was on the lethal chemicals the state of Georgia intended to inject into Warren Hill's veins. His lawyers argued in state court that the drugs could not legally be used without a prescription -- which doctors could not ethically write. They lost on that issue, but were simultaneously appealing to the U.S. Court of Appeals for the 11th Circuit on the basis of the new expert testimony.

On the evening of February 19th, Warren Hill was being prepared for execution. A mortician was standing by to receive his body. The "strap-down team" was just about to escort him to the death chamber when the 11th Circuit halted the execution so it could examine the case.

On April 22nd, in a 2-to-1 decision, the Court ruled against Hill, saying that new evidence could not be considered because the claim was not new. Hill had claimed to be mentally retarded in previous appeals, the judges reasoned, so new evidence on that claim could not be admitted. Catch-22. Or, as the lone dissenting justice, Rosemary Barkett, put it: "The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible." An appeal to the U.S. Supreme Court is in the works.

Meanwhile, Georgia's legislature was taking no chances about being ready for another chance to execute Hill. The state's vials of lethal chemicals "expired" on March 1st -- ironically, they couldn't be used even to cause death -- and manufacturers had shut down the supply. But the lawmakers would not be thwarted.

On March 26th, they passed a law that would provide a shield of secrecy to companies that could cook up new lethal chemicals. It would protect the suppliers' identities as "state secrets," and grant the same status to any doctors who might participate in the process. Violations of the Hippocratic Oath? Who would know?

The legislative jiu-jitsu in Atlanta is a symbol of frustration, the latest example of the myriad difficulties nationwide in administering the death penalty.

The issues of adequate defense, post-conviction evidence and legal yardsticks for mental competence raised in the Hill case, compounded by racial and economic disparities in capital cases around the country -- all of these raise practical barriers to equitable decisions about life or death. The process is arbitrary and capricious to the point of being a crapshoot.

The death penalty may well be constitutional, and there may be truly evil people who deserve it.

But how do we decide who they are?

Martin Clancy is the co-author, with Tim O'Brien, of a new book on the death penalty, Murder at the Supreme Court: Lethal Crimes and Landmark Cases