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Burden of proof

Possible execution of Warren Lee Hill ignites debate over Georgia's stringent death-penalty standard

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Last week, the execution of Warren Lee Hill, a Georgia man sentenced to die for the 1990 killing of a fellow prisoner, was called off as Hill was being prepped for lethal injection.

The decision, while seen as a win by Hill's advocates, has ignited questions about Georgia's ambiguous but strict requirements for judging the point at which mental deficiency prohibits the use of the death penalty.

Last Tuesday, the 11th U.S. Circuit Court of Appeals granted a stay of the 52-year-old's scheduled execution amid public outcry and international headlines about Hill's mental disability, which had been heavily debated throughout his trial and appeals process. The 2-to-1 ruling guarantees Hill's execution will be put off for at least 30 days.

In July 2012, Hill's first scheduled execution was postponed while the state dealt with challenges to its lethal injection formula, although the same court denied the inmate's petition to readdress questions of his mental competence at that time. A new execution date was set for last week.

Days before that scheduled execution, Hill's lawyers presented new sworn statements from three doctors who had originally examined Hill and subsequently testified in a 2000 court hearing that he did not meet the standards for "mental retardation" — yes, the legal system still uses the phrase. These new statements, however, expressed a change of diagnosis in light of additional experiences with Hill, as well as new scientific insights that have developed in the 12 years since. The doctors now also say they felt rushed during their initial evaluative period. In short, they changed their minds.

Even with expert opinion now resting solidly in the "Warren Hill is mentally retarded" camp, state and federal appellate courts remained unswayed. That is, until less than 30 minutes before the scheduled execution, when Hill had already been sedated ahead of receiving the lethal drug cocktail that would kill him. The 11th Circuit, Hill's lawyer Brian Kammer says, will now review the doctors' new sworn statements.

The case has predictably kicked open debate about the strictness of Georgia's standard that requires defendants to prove their mental disability "beyond a reasonable doubt" — the most stringent degree of burden of proof.

Georgia is the only state that applies such a stringent standard when a death row inmate's mental competence is questioned. Critics of the policy call it an egregious attempt to keep as much death penalty flexibility as possible while still complying with a 2002 U.S. Supreme Court decision that banned the execution of mentally disabled offenders.

"The state of Georgia remains an extreme outlier in requiring that defendants prove they have mental retardation 'beyond a reasonable doubt,'" Kammer said in a statement. "This is the strictest standard in any jurisdiction in the nation. Even Warren Hill, a man with an I.Q of 70 who is diagnosed as mentally retarded by every doctor who has examined him, found it impossible to meet this standard of proof."

The main problem with the rigid statute is that it calls for absolute certainty about a point that is inescapably vague and inexactly measurable. "Mental retardation" is diagnosed according to criteria with a specificity that ranges from set-in-stone to completely open to expert interpretation. An IQ not exceeding 70 is required for a diagnosis of "mental retardation," but so is "significant limitation in adaptive functioning in two or more areas."

The nebulous nature of the latter qualification is based on the reality that each person's ability or inability to function on a basic level will manifest differently, depending on their environment and other factors. In Hill's case, the state disputed his claims of "mental retardation" based partly on the fact that he served in the U.S. Navy. Hill's lawyers argued that the highly structured nature of military life made it possible for someone with clinical "mental retardation" to thrive there.

The idea of "reasonable doubt" in court proceedings is most commonly associated with its necessity in proving someone's guilt. The burden of ruling out reasonable doubt falls on the prosecution. If he or she fails to do so, a defendant can be found not guilty. Georgia's policy regarding mental disabilities and the death penalty, however, reverses this burden, instead requiring that the defense provide irrefutable evidence that the would-be-executed party is "mentally retarded."

Again, room for debate. If you're O.J. Simpson, "room for debate" means you get to walk free and write a shitty book. But if you're Warren Hill, it means you die.

And since the stakes are literally life and death, there's little reason to wonder why Georgia's stance on this issue is so heavily criticized. Why is it that for most criminal defendants, "reasonable doubt" is cause for acquittal, but for inmates with debatable mental capacity, it's a death sentence? Hill aside, shouldn't Georgia lawmakers examine the policy underpinnings that somehow — quite illogically, one would think — exempt death penalty cases from the rules of reasonable doubt that govern other court cases?

The state's experts have recanted their testimony. Several jurors in Hill's original case have argued for clemency. So have family members of Joseph Handspike, the fellow inmate Hill murdered in 1990. The world is again watching Georgia, as it did when Troy Davis fought for a new trial, waiting for the state's next move.

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