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Thursday, October 24, 2013 - 12:00pm

Death Penalty And Mental Disability

Georgia’s uniquely high judicial standard for determining if a defendant is mentally disabled took center stage at a hearing Thursday at the state Capitol. The review comes as the state’s high court considers an appeal by death row inmate, Warren Lee Hill, whom lawyers say more than meets the standard but is nonetheless facing execution.

Georgia is the only state that requires death penalty defendants to prove beyond all reasonable doubt that they are mentally disabled. Most states use a lower standard that employs the phrase “a preponderance of evidence.”

Jack Martin is with the Georgia Association of Criminal Defense Lawyers.

He says proving a client’s disability beyond any doubt is why the state has most likely executed mentally disabled people.

“We have to admit that the policy of this burden of proof, from a long history now, means we’re saying, ‘We’re okay with executing a few mentally retarded people,’,” he told lawmakers. “I just don’t think that’s right. And I don’t think that’s what we really believe.”

But Gwinnett County District Attorney Danny Porter says juries don’t decide the issue willy-nilly.

“The Georgia system allows for a broad spectrum of evidence, which includes expert opinion, lay witnesses, it includes work history, in the case of Warren Hill, his military history,” he said.

He said the statute has been litigated extensively, and upheld all the way up to the high court.

And he added that if Georgia decides to change the standard, it won’t be able to do so narrowly. In other words, lawmakers would have to change the burden of proof even in cases that don’t involve the death penalty.

Rep. Rich Golick convened the hearing. And the Smyrna Republican cautioned at the outset that it was for informational purposes only. He said he has no plans to hold additional hearings and he doesn’t anticipate proposing legislation in the upcoming session to change the standard.

But he said it’s important to consider the issue, given Hill’s appeal.

Advocates for the disabled packed the hearing room at the Capitol. And many spoke about conditions such as autism that differ from mental disabilities.

Rita Young is with the group All About Developmental Disabilities, based in Decatur. She pointed to the other Southern states, which don’t use such a high burden of proof.

“We just want Georgia to come in line with the other Southern states,” she told lawmakers.