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MSNBC TV
updated 7/10/2013 9:16:41 PM ET 2013-07-11T01:16:41

“Every doctor who has examined Mr. Hill confirms the diagnosis of mental retardation,” Hill’s lawyer told MSNBC. “We’re kind of just waiting on the U.S. Supreme Court now.”

Without a legal miracle, two-time killer Warren Lee Hill Jr. will be put to death next week despite growing evidence that Hill is “mentally retarded” and as such ineligible for the death penalty.

A federal appeals court in Atlanta on Tuesday denied one of Hill’s last legal options to avoid execution in a Georgia death chamber. Hill’s lawyers have appealed to the U.S. Supreme Court, which could grant a stay of execution while it decides whether or not it will hear the case.

The Supreme Court ruled in a landmark case in 2002 that people with mental retardation require a categorical exemption from the death penalty. According to Hill’s lawyer, every doctor that has examined Hill agrees that Hill is mentally retarded (the legal term)–including three state doctors who more than a decade ago testified that they didn’t feel that Hill met the criteria for exemption but have since gone on record to contradict their earlier diagnoses.

Brian Kammer, Hill’s laywer, said Hill’s execution would be a “grotesque miscarriage of justice” that would render the Eighth Amendment a “mere paper tiger.”

Kammer and advocates say the snag for convicts like Hill, who has an IQ of 70, is, ironically, written in Georgia’s 1988 law that prohibits the execution of people with intellectual developmental disabilities. The state was the first in the country  to pass such a law. The law requires defendants to meet the strictest standard in the country of proof of mental retardation. The state requires proof beyond a reasonable doubt, a standard typically reserved for prosecutors, not prisoners.

Over the last several months affidavits from the state doctors who originally diagnosed Hill have been filed by his lawyers, while letters from family, friends and other experts have poured in. Former President Jimmy Carter has also come out in support of Hill, saying his death sentence should be commuted “in light of the decisive assessment of psychiatric experts.”

If a stay is not granted, Hill, 45, will be put death on July 15 at 7 p.m. in a prison about 50 miles south of Atlanta.  Hill has been granted two previous stays of execution, including one in February that came just 30 minutes before he was scheduled to die by lethal injection.

In April, despite new evidence, the 11th U.S. Court of Appeals rejected Hill’s claims of mental retardation.

“If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony,” 11th Circuit Judge Frank Hull wrote in the court’s majority opinion.

Hill was convicted of shooting his 18-year-old girlfriend to death in 1986. Four years later, while serving a life sentence for the slaying, he beat a fellow inmate to death. He was convicted of the prison murder and sentenced to death.

In 2000, the state Attorney General’s office assembled a team of doctors, two psychiatrists and a psychologist to evaluate Hill to determine if he met the criteria for mental retardation. In a joint report, doctors James Gary Carter, Thomas H. Sachy and Donald Harris, indicated that they did not believe Hill was mentally retarded. But in three separate affidavits filed in February, the doctors describe an unusually rushed evaluation, limited experience and understanding of the functioning of mildly retarded individuals, and advancements in the field.

“After careful review and with the acuity only hindsight affords, it is now my opinion, to a reasonable degree of scientific certainty, that Mr. Hill’s correct diagnosis is mental retardation,” Carter wrote in an affidavit.

“Every doctor who has examined Mr. Hill confirms the diagnosis of mental retardation,” Kammer, Hill’s lawyer, told MSNBC. “We’re kind of just waiting on the U.S. Supreme Court now.”

For advocates of the intellectually disabled, the case is critical. Other intellectually disabled prisoners may be sitting on death rows across the country, some of whom may not have been properly diagnosed or assessed until they entered the criminal justice system.

“In less than a week, the state of Georgia plans to execute Warren Hill, whom experts for the state and the defense have unanimously found to be intellectually disabled,” Anthony D. Romero, executive director of the American Civil Liberties Union said in a statement on Wednesday. “Killing Mr. Hill would be both unconstitutional and unconscionable.”

According to a study released by All About Developmental Disabilities, an advocacy group based in Georgia, 69% of Georgia residents surveyed support changing the state’s death penalty law as it relates to people with mental disabilities.

Rita Young, director of public policy for the organization, said that while it is hard to quantify the number of people with intellectual disabilities who’ve already been executed, there are about 20 people with such disabilities currently on Georgia’s death row.

If Hill is not granted a stay of execution, “it will only fuel our advocacy efforts in Georgia,” Young said.

“With the Supreme Court it’s never over until it’s over,” Young said. “So we have time and the legal team has time. I’m very hopeful in the future that we’ll be able to change this minor glitch in the legislation so we can come in line with what the rest of the country is doing.”

Richard Dieter, executive director of the Death Penalty Information Center, said the Supreme Court in its 2002 ruling prohibiting the execution of those diagnosed with mental retardation were vague in terms of what defines the diagnosis and what the standards of proof are. Determining mental retardation is relatively unscientific, he said.

“It’s an ongoing problem that people in the future might be sent to death that might have this diagnosis,” Dieter told MSNBC. “How do they get relief? The bigger question is when new evidence arises, such as in this case, that this man has mental retardation, shouldn’t that stop the execution process. Georgia is arguing that all of this is too late, your appeals are done.”

Kammer, Hill’s lawyer and the executive director of The Georgia Resource Center, said poor people and those with intellectual disabilities face profound inequities in the criminal justice system.

“I’ve just seen it over and over again, that in these capital cases there is a very troubling lack of resources that are afforded poor defendants, and so juries are not getting the full picture of the people whose lives they are holding in their hands,” Kammer said. “That’s a systematic problem in Georgia and across the country where the death penalty is imposed.”

Hill grew up in an abusive household and attended poor, segregated elementary schools in Elberton, a rural town in northeast Georgia. He was one of 10 children and his father, Warren Hill Sr., was an alcoholic. The family moved from small town to small town. The family was often without adequate food or clothing, and Warren Hill Jr. was hospitalized as a young child for malnutrition. He often suffered seizures and convulsions, according to an affidavit by Dr. Dan Grant in 2000. By 8th grade he had tested in the third percentile on standardized tests.

Later, Hill served in the Navy, achieving the rank of petty officer. State experts in 2000 testified that they thought Hill was faking his mental disability, and noted his military promotion.

Kammer said the facts surrounding Hill’s crimes are consistent with how someone with an intellectual disability might respond in high-pressure situations. He pointed out the killing of the fellow inmate in 1990. Hill was housed on a dormitory floor in relatively close quarters with about 25 other inmates at Lee State Prison.

“He couldn’t cope,” Kammer said. “He was unable to communicate his distress to the counselors… There was one particular inmate that was giving him trouble. That was the guy that was killed.”

Prosecutors say that Hill beat the inmate, John Handspike, to death with a nail-studded board.

Kammer said Hill was “extremely anxious” with the prospect of death or a last-minute stay. “It’s not as though he can’t understand that he’s facing execution,” Kammer said. “I think he just takes it a day at a time.”

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