A Test for the Justices — An Inmate’s Life, a Legal Knot



Over the course of the next week, the Supreme Court will announce the new cases it has accepted for its Fall term, which begins next Monday.  The nine Justices started making the final selections in secret session yesterday, meeting in the Court’s ornate and secluded conference room

One of the tasks before them involves a legal Gordian knot, a massive clash of institutional good intentions.  At stake is a man’s life.

The Justices have to decide whether to accept the case of Warren Hill, a condemned Georgia inmate whose lawyers have exhausted all other appeals to spare him from execution on the grounds of his mental capacity.  There’s no doubt that Warren Hill is a killer — juries in two trials came to that conclusion easily —  and there is also no doubt that he is intellectually disabled and should be protected from execution by a 2002 Supreme Court ruling.  He has an IQ of 70.  The Catch-22 in the Hill case is whether the convincing evidence of his mental incapacity, which only recently became available, can be legally considered.

Unless the Supreme Court acts, Warren Hill may die because federal courts are trying to do a better job.  They have tightened appeals access, severely limiting the admission of evidence and claims, in an attempt to weed out frivolous cases.  The rules have had undeniably beneficial effects on court caseloads, but unintended and grave consequences in the Hill case.

Warren Hill was already serving a life sentence for the murder of his girlfriend when he bludgeoned a fellow inmate to death with a nail-studded board in 1990.  His court-appointed lawyers unknowingly missed vital evidence of Hill’s mental incapacity at the time of his trial; they didn’t have the funds to send an investigator to Hill’s elementary school, so they relied on records mailed to them.  Those records did not include IQ tests showing Hill was functioning at the level of mild mental retardation.  The jurors who sentenced Warren Hill to die heard no evidence of retardation.

The school records had still not surfaced at the time of a post-conviction hearing in 2000.  Hill’s lawyers made a claim of mental retardation at that time, bolstered by the testimony of four mental health professionals who had examined Hill.  Three other expert witnesses, however, testified that Hill was not retarded.  The numerical advantage wasn’t sufficient: Georgia requires mental retardation to be proved “beyond a reasonable doubt,” and 4-to-3 didn’t tip the state’s scales of justice far enough.

But if those scales had a “Tilt” light, it would have flashed brightly earlier this year.  Hill’s defense team unearthed the elementary school records, and had them examined by the experts who had testified at the 2000 hearing.  The three doubters rethought their conclusions in the light of the early documentation of Hill’s mental deficiencies, and because of what one of them called “access to better science” in the intervening years.  Now the tally was 7-to-o; every one of the mental health professionals who had examined Warren Hill concluded that, from childhood, he had met the legal requirements of intellectual disability.

It was unanimous — but not good enough for the U.S. Court of Appeals for the 11th Circuit.  In April, the court ruled that the evidence from the experts might be new, but Hill’s claim of retardation was not: it had been raised in previous appeals and could not be considered again.

Two members of the three-judge panel said that their hands were tied, both by legal precedents closing the floodgates on appeals and by federal legislation designed to “ensure greater finality” in death-penalty convictions.  They also delivered this double-whammy: Hill’s new evidence “does not establish a miscarriage of justice” because it affects only his sentence, not his guilt or innocence.  Only his life, in other words.

When the Justices met this week, their challenge was to untie the Gordean legal knot presented by the Hill case.

It is a challenge perhaps best expressed by the lone dissenter on the 11th Circuit panel, Judge Rosemary Barkett.  She wrote, “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.”

Hill’s case was not on the first list of those accepted by the Court, released this morning, but the Justices are wading through a huge caseload for this term.  More announcements are expected.

We will learn shortly whether or not the Justices are able to met Judge Barkett’s challenge.

(An earlier version of this article appeared as a column in USA TODAY on September 30th)

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