Court upholds tough standard of proof for death-row inmates

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By Bill Rankin

The Atlanta Journal-Constitution

A divided federal appeals court on Tuesday let stand Georgia’s tough burden of proof required of death-penalty defendants seeking to prove they are mentally disabled and thus ineligible for execution.

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Attorney Brian Kammer argues that the state's law "effectively allows Georgia free rein to execute people who ... have been found to be mentally retarded."

David Goldman / AP Attorney Brian Kammer argues that the state's law "effectively allows Georgia free rein to execute people who ... have been found to be mentally retarded."

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The 11th U.S. Circuit Court of Appeals’ 7-4 decision means Georgia is the only state in the country that sets the highest barrier for defendants raising such claims to escape execution. Dissenting judges said it will lead to mentally disabled inmates being executed.

Death-penalty lawyers said the ruling means capital defendants could prove they are almost certainly mentally disabled and still face execution. The ruling will be appealed to the U.S. Supreme Court, a lawyer involved in the case said.

Judge Frank Hull, writing for the majority, said the U.S. Supreme Court left it up to states to develop their own guidelines when it barred the execution of the mentally disabled in 2002.

The Georgia Supreme Court recently upheld the state's standard that an inmate must prove disability beyond a reasonable doubt, Hull noted. Because there is no U.S. Supreme Court precedent to the contrary, federal law “mandates that this federal court leave the Georgia Supreme Court decision alone -- even if we believe it incorrect or unwise.”

Hull also said Georgia’s death-penalty process contains substantial safeguards that help jurors accurately determine whether a defendant is mentally disabled. They include the right not to be sentenced to death except by a unanimous verdict, the right to appeal and the opportunity to present experts, cross-examine the state’s witnesses and question jurors about their biases regarding mental disability.

Even so, Hull acknowledged, the U.S. Supreme Court “may later announce that [Georgia's] reasonable doubt standard ... is constitutionally impermissible.”

The U.S. government and 23 states with the death penalty require defendants claiming mental disability to prove it under the lowest threshold -- a preponderance of the evidence, meaning it is more likely true than not. Five states have adopted a tougher test -- clear and convincing evidence.

The court ruled in the case of twice-convicted killer Warren Hill. Brian Kammer, Hill’s lawyer, used the state's unusually tough standard as the basis of his appeal and vowed to take the case to the nation's highest court.

“I am sickened by the [court’s] ruling today, because it effectively allows Georgia free rein to execute people who, like Mr. Hill, have been found to be mentally retarded,” he said. “This decision is yet another legal and moral disaster involving Georgia’s death penalty jurisprudence.”

State Attorney General Sam Olens declined comment, his spokeswoman said.

Hill is on death row for bludgeoning a fellow inmate to death with a nail-studded board in 1990. At the time, he was serving a life sentence for killing his girlfriend.

Tuesday's ruling sparked a vigorous dissent from Judge Rosemary Barkett, who said the beyond reasonable doubt threshold will “inevitably lead .. to the frequent execution” of the mentally disabled.

“This utterly one-sided risk of error is all the more intolerable when the individual right at stake is a question of life or death,” Barkett wrote.

While Georgia was the first state to bar the execution of the mentally disabled, “it is the only one to guarantee precisely the opposite result” with its tough definition of the condition, she said.

Judge Charles Wilson also dissented. He said the majority's logic would allow Georgia to require mentally disabled defendants to prove their claims “beyond any shadow of a doubt -- a standard requiring ... that prisoners obtain the unanimous consent of a 100-member panel of state-appointed psychologists, ten consecutive IQ tests showing an intelligence quotient of no more than 30 and supporting affidavits from the victims’ families and the governor.”