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Wednesday, February 20, 2013 - 9:15pm

Georgia Death Penalty Under Renewed Scrutiny After 11th-Hour Stay

Updated: 1 year ago.

A Georgia inmate's execution was halted Tuesday night with less than an hour to go. Prison officials had already given Warren Lee Hill one of the drugs when a federal appeals court stepped in.

Hill has an IQ of 70 and his attorneys have long claimed that he's mentally impaired. His case is now raising questions about Georgia's law, which makes it difficult for defendants to prove they should be exempt from execution.

The 52-year-old Hill is in prison for killing his girlfriend, whom he shot 11 times, in 1986. Then, while in prison in 1990, he used a wooden board with nails to beat another inmate to death.

More than a decade ago, three state doctors that examined Hill said he was not what was then called "mentally retarded." But all three have changed their opinion.

In affidavits, they say their initial evaluations were extremely and unusually rushed. One said it was a close case back then, but after reviewing the record he now believes Hill does meet the criteria for "mild mental retardation."

'Beyond A Reasonable Doubt'

"The question is, is Georgia violating the Constitution by basically allowing people with mental retardation to be executed?" asks Richard Dieter, executive director of the Death Penalty Information Center, which opposes all executions.

The U.S. Supreme Court banned the execution of those who are mentally retarded, now known as intellectually disabled, in 2002. Georgia was the first state to ban executions of the mentally retarded, back in the '80s, but Dieter says forcing defendants to prove their impairment beyond a reasonable doubt is questionable and the strictest standard in the country.

"Georgia is the only state that has such ... high criteria. Generally, if more likely than not you have mental retardation, you're exempted," Dieter says. "So the issue is, did Georgia define its law too narrowly to be keeping within due process?"

Several groups in the state are working to change the standard, including the Georgia Council on Developmental Disabilities. Director Eric Jacobson is among those who've lobbied for a stay of execution, and a long-term solution, to change the Georgia standard.

"If Mr. Hill is executed, I think we send a message to our society that we're not concerned about some of our most vulnerable citizens," Jacobson says. "[That] we're not concerned about the people who probably need the law to stand up for them ... more than anybody else."

Concerns About Gaming The System

State officials would not comment on the case, but in court papers they say Hill held jobs, served in the military and acted as head of his family. The state contends Hill failed to establish that he is mentally retarded.

Further, they say he brutally killed two people and should pay for his crimes. The state attorney general is appealing Tuesday's stay, saying the execution should move forward.

Joshua Marquis, a district attorney in Astoria, Ore., says he has seen defendants change once they realize they're going to die, including Texas inmate Oliver Cruz, who Marquis says tried to manipulate the system.

"This is a guy that was claimed to be mentally retarded and his IQ was in the upper 60s," Marquis says. "But his performance IQ when intaked into the Department of Corrections was 106, which is high average. So, I'm sure death row depresses people, but 40 points?"

Marquis says the 11th Circuit is taking another look because of the mental impairment issue, but he says courts have already spent more than two decades reviewing this case.

Georgia has dealt with a number of questions regarding its executions. In 2011, Troy Davis was executed for the murder of an off-duty police officer, even after nearly all of the witnesses recanted their testimony.

Now the case of Warren Hill raises new questions. Advocates for the disabled say only 10 percent of those with developmental disabilities are identified at trial and that the diagnosis is not often made until defendants are in prison or on death row.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

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