Hill Appeal Denied by SCOTUS; Georgia Supremes to Hear Novel Arguments

The U.S. Supreme Court has refused to hear the appeal of Georgia death-row inmate Warren Hill on the grounds of mental incapacity.  Hill’s lawyers had presented new evidence in lower courts to buttress claims of mental retardation, but those courts ruled that the evidence could not be considered; the high court declined to intervene.  It is the latest setback for Hill, who came within 40 minutes of receiving a lethal injection earlier this year.

The new evidence presented on Hill’s behalf included complete turnarounds on the part of three mental health professionals who had previously testified for the prosecution that Hill did not meet Georgia’s standard of mental retardation.  In February affidavits, the three experts based their reversals on newly-discovered elementary school testing records and on “access to new science” in the dozen years since they had examined Hill.  In presenting Hill’s case to the U.S. Court of Appeals for the Eleventh Circuit his lawyers argued that he should be protected by a 2002 Supreme Court ruling that mentally incapacitated individuals could not be executed (Atkins v. Virginia).

The appeals judges ruled against Hill 2-to-1, saying their hands were tied by legal precedents and by statute: the evidence might be new, but the claim of mental retardation had been made before and could not be heard again.  Furthermore, the ruling said, under federal law the new evidence would have to be excluded anyway because it affected only Hill’s sentence, not the verdict.   His life, not his guilt.

Hill’s lawyers had hoped the Supreme Court would untangle this procedural morass, heeding the eloquent dissent of Eleventh Circuit Judge Rosemary Barkett: “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country  that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.”

But the Court declined to intervene. Hill’s case was on a list of rejected appeals released this morning.

Hill’s fate now rests with the Supreme Court of Georgia, which is considering a different and unusual element of his case — how the state plans to kill him.  Georgia’s high court will consider claims that new legislation providing a cloak of legal secrecy over the manufacture and composition of lethal chemicals to be used in executions violates Hill’s constitutional rights.  (For more background on the legislation, see my earlier POLITICO piece – http://www.politico.com/story/2013/04/lethal-secret-georgias-unusual-effort-to-supply-its-executions-90035.html)

The Georgia court will hear arguments in the Spring. As Warren Hill’s unyielding attorney, Brian Kammer told me today, “He’s not dead yet.”