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Monday, February 18, 2013 - 12:21pm

High Bar To Avoid Ga. Execution

Warren Lee Hill’s attorneys have been trying to stop his scheduled execution Tuesday evening with new testimony from doctors that he’s mentally disabled.

Georgia and federal law prohibit executing “mentally retarded” defendants, and the case is highlighting Georgia’s strictest-in-the-nation standard for proving that.

State law requires mental disability is proven “beyond a reasonable doubt” – the highest bar to clear in the law. Georgia’s the only state with such a standard. Also unusual in Georgia’s law: jurors make the decision at the same time they decide guilt or innocence.

That complicates trial, said Russell Gabriel, a law professor at the University of Georgia and director of the school’s Criminal Defense Clinic.

“Because the definition of mental retardation includes not just an IQ score but also how the person was adapting to everyday life before the age of 18, it means this incredible range of events when they were a child is suddenly pulled into the regular part of the trial,” Gabriel said.

He said many states decide before the main trial if someone is mentally retarded. He also said Georgia’s tough standard is even tougher when you factor in human nature: a capital-murder-case jury probably won’t decide a defendant is mentally disabled.

“Those jurors have found someone guilty of a murder. It’s a capital-eligible murder – there’s something aggravated about it – and you’re asking them to do something for the defendant, like find him mentally retarded? They know it’s some kind of benefit for the defendant. They’re not as likely to feel generous, if that’s what they need to feel,” Gabriel said.

Hill’s case has disability advocates gearing up to push for changes.

Rita Young with the nonprofit All About Developmental Disabilities said the state needs to lower the burden of proof to a “preponderance of the evidence” – basically, attorney would have to prove it’s more likely than not that a defendant is mentally retarded. Roughly two dozen other states use that standard.

“I think there’s a myth that you can perhaps look at an individual and tell that they have an intellectual disability, and that’s just simply not true,” Young said. “In some cases, it is very obvious; in others, it’s not.”

Young said they’re hoping to convince lawmakers to set up a study committee on the issue.