« "(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform" | Main | Litigation prompting California city to give up Halloween sex offender posting law »

September 22, 2013

Will SCOTUS take up Warren Hill's (final?) plea to avoid a Georgia execution?

The question in the title of this post is prompted by this new editorial commentary by Jesse Wegman for the New York Times. The piece is headlined "A Rare Plea to the Court," and here are excerpts:

The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.

In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die.  Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court....

One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not.  Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses.  Presumably it is possible to meet this standard.  Either way, Georgia courts said a four-three split was not enough.  But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.

So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence.  On Sept. 30, the court will consider whether to hear Mr. Hill’s petition.  It has been reluctant in the past to exercise this power, but this case is exceptional.  At stake is not only a man’s life, but the court’s own authority....

Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.

September 22, 2013 at 04:06 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Will SCOTUS take up Warren Hill's (final?) plea to avoid a Georgia execution?:


Did he do it?


Has the question been thoroughly litigated?


Is he sufficiently able to understand why he's being punished (which is the actual test)?

Even assuming he has "mild" retardation, yes.

Next case.

P.S. The NYT's claim that he has "nowhere else to turn" is a point-blank lie.

Posted by: Bill Otis | Sep 22, 2013 4:40:48 PM

"Is he sufficiently able to understand why he's being punished (which is the actual test)?"

You think that's the test for an Atkins claim?

Posted by: The Death Penalty Sucks. | Sep 22, 2013 6:16:17 PM

Someone ought to ask the NYTimes how this guy managed to get promoted in the Navy---those promotions require tests.

Given the conflicting nature of the evidence and the fact that this case has been litigated to the hilt, the Supreme Court should deny cert. Perhaps the "wise [sic] Latina" will, yet again, mangle the Constitution yet again in an attempt to save the life of a guilty murderer.

Hill would be gone now if it weren't for a BS stay by the 11th Circuit.

Posted by: federalist | Sep 22, 2013 6:46:53 PM

The diagnosis of mental retardation requires it be a developmental disorder. People who turn up retarded on exams after arrests are faking stupidity on tests that require good cooperation. In the absence of childhood test results, the diagnosis should not be allowed at trial, being too unreliable. The IQ was designed and validated as a predictor of school performance. Even Daniel has stated, their use for the measurement of culpability if garbage science. However, we are in the lawyer Twilight Zone, and any false pretext will serve to save the lawyer client, all 3 lawyers, the prosecutor and judge included.

There is no legal recourse for the victim. Direct action groups should bring violence to the judges protecting the vicious, stealthy, and wily predator. Beat their asses. If they continue to protect the vicious predator, kill them. No jury will convict the murderer of a judge, their being vermin, hardly human. The murderer should then move for an IQ test, and score in the severe MR range bu giving the wrong answers or else counting to 10 before answering any timed questions. Draw a Mickey Mouse face on the answer sheet.

Posted by: Supremacy Claus | Sep 22, 2013 8:31:34 PM

I agree with what SC says in his first paragraph. There really is no good way to assess whether someone is faking on an IQ test because the test requires good faith effort. Obviously, people who are litigating an Atkins claim have a motivation to lie.

While Atkins didn't state that an IQ score of 70 was the cutoff, everyone has taken it to mean that since it ostensibly did away with the sensible common law prohibition against executing those with profound retardation who are mentally equivalent to very young children. Now the test is something akin to a deference to mental health nomenclature with the ensuing results that are all too predictable.

What a foreseeable mess.

Posted by: Steve Erickson | Sep 22, 2013 8:50:32 PM


Your question about the Atkins test is moot, since you would oppose this thug's execution if he had the IQ of Albert Einstein.

Posted by: Bill Otis | Sep 22, 2013 10:28:07 PM

It's not moot, since such blanket opposition isn't actually current law of the land, unlike Atkins. So, knowing how to properly apply that test is useful.

If said 'thug' is protected by Atkins or Ford or any other thing, he should not be executed, though he might be incarcerated or committed. I or someone else might wish for a more blanket rule, but law in the real world is not all/nothing.

Posted by: Joe | Sep 23, 2013 10:50:38 AM

The WAIS-IV includes a couple of different effort tests. Most psychologists also administer effort testing as part of their assessment. Faking bad, particularly in a way that would produce consistent results across tests, would be very difficult for anyone who is not intimately familiar with the tests.

Posted by: John | Sep 23, 2013 11:14:18 AM

federalist:: I "Someone ought to ask the NYTimes how this guy managed to get promoted in the Navy---
those promotions require tests." I

| Putin Jabs U.S., Obama - CNN.com 9/12/13 |

V. 'KGB" Pootin: ' The U.S. Navy promotes sailors who are too mentally impaired to be held fully culpable of
deliberate murder? Now, I'm really afraid of the red, white, & blue. Almost as much as I respect Obama.'

Posted by: Adamakis | Sep 23, 2013 11:42:40 AM

Joe --

"It's not moot, since such blanket opposition isn't actually current law of the land, unlike Atkins."

It moot for TDPS's purposes, since it makes no difference to him what the killer's mental functioning is.

Let me ask you this, Joe: Since you oppose the DP in all circumstances as immoral, do you approve of bribing a judge to reverse a death sentence? Why not? Isn't a lesser form of immorality acceptable to prevent a greater (and lethal) one?

Posted by: Bill Otis | Sep 23, 2013 12:02:32 PM


If you're referring to the digit span in the WAIS, that is nothing to write home about. And stand alone effort tests, contrary to you assertion, are not difficult to subvert, particularly if you've been coached. And you don't need a psychologist to help you defeat these tests, just a computer, google and some time.

Posted by: Steve Erickson | Sep 23, 2013 10:03:53 PM

Sixth Commandment: Thou Shalt Not Kill. The next Supreme Court Justice who croaks will get grilled at the Pearly Gates. The outcome will not be good. Hell hath no mercy for a killer-- whether robed or not.

Posted by: Liberty1st | Sep 25, 2013 12:14:35 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB