The Writ of Habeas Corpus and the Warren Hill Case

UPDATE: Warren Hill was granted a stay of execution by a Georgia court just hours before his scheduled execution on July 15. A hearing is scheduled for July 18 to consider challenges to a new state law that shields the identity of the lethal injection drug's manufacturer and the prescribing physician from the public. (Atlanta Journal-Constitution, July 15, 2013).

As a petition on behalf of Georgia death row inmate Warren Hill awaits consideration by the U.S. Supreme Court, the role of habeas corpus in protecting defendants' fundamental rights has assumed greater importance. A recent article by Lincoln Caplan in the American Prospect explores the significance of the "Great Writ." This guarantee of constitutional protections allows federal courts to determine whether an inmate is being held in violation of the Constitution or other laws, and has been used to challenge death sentences that may have been unlawful. In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was passed by the U.S. Congress, imposing a time limit on filing such petitions and generally allowing only one such petition. Hill's recent appeal containing clear proof of his mental retardation to the U.S. Court of Appeals for the 11th Circuit was denied because the court said it was a second petition and could only be considered if it related to his innocence, rather than his death sentence. In a dissenting opinion, Judge Rosemary Barkett wrote, “The perverse consequence of such an application of AEDPA is that a federal court must acquiesce to, even condone, a state’s insistence on carrying out the unconstitutional execution of a mentally retarded person.” Hill is scheduled to be executed on July 15 unless the Supreme Court intervenes.

INTELLECTUAL DISABILITY: Georgia Inmate Appeals Intellectual Disability Claim to U.S. Supreme Court

On May 23, lawyers for Georgia death row inmate Warren Hill (pictured) petitioned the U.S. Supreme Court to prevent his execution, citing strong evidence that Hill has an intellectual disability. Three mental health experts who testified in 2000 that Hill did not have an intellectual disability have now changed their mind about the inmate’s mental health. According to the petition, “all seven mental health experts who have ever evaluated Hill, both the State’s and Hill’s, now unanimously agree that he is mentally retarded.” In Georgia, capital defendants are required to prove “mental retardation” beyond a reasonable doubt. It is the only state in the country that sets such a high burden of proof for such claims. Lawyers for Warren Hill claim that Hill’s execution will violate the Court’s ruling in Atkins v. Virginia (2002), which prohibits the execution of individuals with intellectual disabilities. In the petition to the Court, the lawyers urged, “Every court to which Mr. Hill has petitioned in an effort to present this new and compelling evidence has denied him an opportunity to prove the merits of his claim. The Georgia State Board of Pardons and Parole has likewise refused to reopen proceedings in light of this evidence. This Court accordingly is Mr. Hill’s last and only hope to avoid an execution that is flat-out prohibited by the Eighth Amendment.”

INTELLECTUAL DISABILITY: Federal Appeals Court Says Evidence of Mental Retardation Is Too Late

On April 22, a divided U.S. Court of Appeals for the Eleventh Circuit denied Warren Hill’s appeal to halt his execution based on new evidence of his intellectual disability. The Court ruled that Hill’s claim of intellectual disability (mental retardation) was presented in an earlier petition and cannot be presented again, despite the new evidence. The judges also held that, even if Hill's claim is a new one, it only challenges his eligibility for the death penalty, not his underlying guilt, and is therefore improper in a second petition. In a dissenting opinion, Judge Rosemary Barkett said, “There is no question that Georgia will be executing a mentally retarded man because all seven mental health experts who have ever evaluated Hill, both the state’s and Hill’s, now unanimously agree that he is mentally retarded.” She also stated, "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.... [The federal habeas statute] should not be construed to require the unconstitutional execution of a mentally retarded offender who, by presenting evidence that virtually guarantees that he can establish his mental retardation, is able to satisfy even the preposterous burden of proof Georgia demands."

Lethal Injection Developments Around the Country

Controversies surrounding lethal injections continue in many parts of the country. In Georgia, the legislature passed a bill to classify the names of those involved in executions as “state secrets.” The bill requires the identity of any entity that “manufactures, supplies, compounds or prescribes” lethal injection drugs to be kept secret. In Arkansas, a state judge ruled that death row inmates cannot use the state's Freedom of Information Act to obtain information about the source, history, or quality of the drugs the state will use during execution. An attorney for the inmates claimed they should have a right to the information because of problems with drugs obtained in the past. On March 25, a federal appeals court heard arguments in a case involving death row inmates from across the country arguing that the Food and Drug Administration acted inappropriately in 2010 when it allowed some states to import lethal injection drugs from foreign sources. Eric Shumsky, an attorney representing the inmates, said, “This case is … about ensuring that illegal drugs are not used in carrying out otherwise legal executions.” Also recently, the Israel-based drug company Teva announced that it would resume manufacturing the sedative propofol, but would not allow its use in executions. Missouri has proposed using propofol for its executions.

Georgia Disabilities Expert Calls for Halt to Execution of Inmate with Mental Retardation

On February 19, Georgia is scheduled to execute Warren Hill, a death row inmate who has been diagnosed with mental retardation (intellectual disability). Over a decade ago, in Atkins v. Virginia, the U.S. Supreme Court ruled it unconstitutional to execute the mentally retarded. However, Hill continues to face execution because Georgia requires proof of retardation beyond a reasonable doubt, the strictest such standard in the country and one almost impossible to meet in mental health evaluations. In a recent op-ed in the Huffington Post, Eric Jacobson, the Executive Director of the Georgia Council on Developmental Disabilities, wrote, “State law requires that individuals prove they have intellectual disability ‘beyond a reasonable doubt,’ a powerful legal concept that does not translate into the way individuals are assessed to determine if they have an intellectual disability. So, while Georgia never contested Mr. Hill's intellectual disability or I.Q. of 70, he was not able to meet the burden of proof.” Since the trial, several of the jurors now say the appropriate sentence for Hill is life without parole, which was not an option at the time of his trial. In addition, the family of the victim in the case supports life without parole instead of death for Hill. According to Jacobson, a family member said, “I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death.”

LAW REVIEWS: The Enduring Significance of Studies Showing Racial Bias in the Death Penalty

Professor Samuel R. Gross (pictured) of the University of Michigan Law School has published an article in the Iowa Law Review examining the historical importance of a series of studies showing racial bias in the death penalty. The issue of race was brought to a head by the Supreme Court's consideration of McCleskey v. Kemp in 1987. McCleskey focused on a statistical examination of Georgia death sentences conducted by David Baldus. Though the study found compelling and statistically significant evidence of racial bias in sentencing, the Court held (5-4) this evidence insufficient to overturn Warren McCleskey's death sentence. Prof. Gross argues that, despite the Court's negative holding, the Justices were convinced that racial bias existed in the death penalty. "Even on the Supreme Court that sent Warren McCleskey to his death, even among the Justices who most strongly support the death penalty, nobody has tried to deny that racial 'sympathies and antipathies' decide who lives and who dies. No Justice said otherwise in McCleskey and none have denied it since." Gross concludes that Baldus' legacy was in "forc[ing] reluctant judges to face up to facts they would have preferred to ignore." Prof. Baldus of the University of Iowa died in 2011.

REPRESENTATION: Georgia Death Sentence Upheld Despite Drunk Trial Attorney

A federal appeals court upheld the death sentence of Georgia inmate Robert Holsey (pictured), despite the fact that Holsey's lead lawyer drank a quart of vodka every day during the trial and was about to be sued for stealing client funds.  The attorney himself testified that he “probably shouldn’t have been allowed to represent anybody.” The court assumed the attorney's incompetence, but gave great deference to the Georgia Supreme Court's opinion that his poor performance did not affect the outcome of even the sentencing phase of the trial.  Judge Rosemary Barkett dissented in the 2-1 decision, noting the jury never heard evidence that Holsey was abused so badly as a child that his neighbors referred to his home as "the torture chamber." Had the jury heard evidence of the "horrific child abuse," she wrote, he likely would not have been sentenced to death. Holsey’s appeals lawyer, Brian Kammer, said the jury did not hear that crucial evidence because Holsey’s lead trial attorney “opted to anesthetize himself with vodka rather than prepare adequately to defend against the death penalty. The 11th Circuit majority appears similarly to have anesthetized its sense of justice.”

Lack of Funding for Representation Delays Georgia Death Penalty Cases

A Georgia judge has removed Kelvin Johnson's public defenders from representing him in a death penalty case because his lawyers requested more time to prepare for trial.  Johnson was being represented by attorneys from the Georgia Capital Defender Office, who said a delay was needed because an overwhelming caseload and lack of funding precluded them from going forward at this time. The Georgia Capital Defender program, which was started to provide better representation to indigent capital defendants, began representing those facing the death penalty in 2005, but saw its funding drop from $7 million to $4.5 million in only three years. Insufficient funding has led to problems and delays in several cases, including one instance in 2010 when attorneys asked the Georgia Supreme Court to dismiss the charges against their client or bar the state from seeking the death penalty because they could not pay expert witnesses, attorney fees or investigators. Superior Court Judge David Roper, who dismissed the capital defenders from the Kelvin Johnson case, plans to appoint lawyers of his own choosing, calling the Capital Defender Office "systemically broken."  However, W. Travis Sakrison, executive director of the Defender Office, said the delay needed in the Johnson case arose from special circumstances and was not due to "systemic" problems at the Georgia Capital Defender.