Georgia paroles board weighing clemency for man facing Wednesday execution

ATLANTA — The State Board of Pardons and Paroles is weighing clemency for a condemned inmate whose attorneys are now claiming he is mentally retarded.

Warren Lee Hill Jr. is scheduled to die by lethal injection at 7 p.m. on Wednesday. Hill had a clemency hearing before the Georgia Department of Paroles and pardons on Friday; the board did not rule.

Hill was sentenced to death for the 1991 slaying of a fellow inmate in August 1990; the Georgia Supreme Court in 1993 upheld the conviction and sentence. He was already serving a life sentence for murdering a girlfriend.

Hill did not claim mental retardation during his 1991 trial. However, in 1996, Lee added to a “habeas petition to allege mental retardation for the first time, and he later claimed that Georgia’s reasonable doubt standard of proof (state law) violated the Eighth Amendment,” according to an opinion from the 11th U.S. Circuit Court of Appeals.

A federal appeals court in November upheld the death sentence.

The Antiterrorism and Effective Death Penalty Act of 1996, the court noted, “mandates that this federal court leave the Georgia Supreme Court decision alone—even if we believe it incorrect or unwise—and affirm in this case,” U.S. Circuit Judge Frank Hull wrote in November’s majority opinion.

Georgia in 1988 was the first state to declare that a mentally retarded person should not be executed. However, according to the court, the state is the only one in the union to “require proof of mental retardation beyond a reasonable doubt.”

“Georgia law provides that defendants accused of murder may avoid the death penalty if they prove that they are mentally retarded beyond a reasonable doubt,” U.S. Circuit Judge Gerald Tjoflat wrote in a separate opinion. ”Hill could have raised this defense during the guilt phase of his 1991 criminal trial; for some reason, he did not.”

“…Hill should have attacked the beyond-a-reasonable-doubt standard applied during his state post-conviction hearing. Instead, he asks this court for a writ of habeas corpus—and not an evidentiary hearing—to remedy this alleged due process violation,” Tjoflat added. “I would therefore affirm the denial of Hill’s petition because due process violations during state post-conviction proceedings are not grounds for habeas relief.”

However in a dissent, U.S. Circuit Judge Beverly Martin said the “execution of a person who has already proven he is more likely than not mentally retarded, but who is unable to prove his mental retardation beyond a reasonable doubt, is an ‘extreme malfunction’ that warrants the protection of the Great Writ.”

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