Court lifts execution stay, but state out of lethal drugs

The federal appeals court in Atlanta has denied Warren Hill’s bid to halt his execution on grounds he is mentally retarded. The ruling comes at a time the state finds itself out of lethal-injection drugs.

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals said Hill’s mental retardation claims had already been considered and rejected. The court also said that because Hill only challenged his eligibility for execution, and not his conviction of murder, it could not consider his new claims.

The court’s decision means the state can set a new execution date for Hill at any time. But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.

“At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan wrote in an email.

Hill’s case attracted international attention when three state experts who previously testified Hill was faking his mental disability came forward to say they had been mistaken. The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded. The U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

In a strong dissent, Judge Rosemary Barkett said there is now “no question” that Georgia will be executing a mentally retarded man. She noted that the seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.

“The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

Hill’s lawyer, Brian Kammer, expressed disappointment that the 11th Circuit “found that procedural barriers prevent them from considering the compelling new evidence.” He said it is likely he will ask the U.S. Supreme Court to consider Hill’s claims.

State Attorney General Sam Olens declined to comment.

Judge Frank Hull, who wrote the majority opinion, was joined by Judge Stanley Marcus. Marcus had sided with Barkett in February to halt Hill’s execution less than an hour before it was to be carried out.

At that time, the 11th Circuit granted Hill a “conditional” stay of execution to consider whether he remained eligible for execution in light of the new positions taken by the state’s experts.

Hill was sentenced to death for killing fellow inmate Joseph Handspike, who was serving a life sentence in the same prison where Hill was incarcerated. In 1990, Hill bludgeoned Handspike to death with a nail-studded board.

At the time, Hill was serving a life sentence for the 1986 murder of his 18-year-old girlfriend.

The 11th Circuit said Hill could not overcome the strict restrictions of the Anti-Terrorism and Effective Death Penalty Act of 1996, passed by Congress to achieve finality in capital sentences by limiting the ability of inmates to litigate the same issue again and again.

Hill’s latest challenge, even though it presents new evidence from the state’s experts, is essentially the same mental retardation claim he previously raised and which the 11th Circuit already rejected, Hull wrote.

“If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality,” Hull wrote. “As this case illustrates, opinion testimony can be changed with great ease (indeed, even without seeing Hill in 13 years, administering any new tests or reviewing new documents, three witnesses pivoted their positions 180 degrees).”

The 11th Circuit could have given Hill permission to pursue a new appeal if he could have met a number of conditions. One was whether his new evidence would be enough to convince any reasonable fact-finder that he is not guilty of Handspike’s murder.

In this case, however, Hill was attacking his death sentence and not his murder conviction. For that reason, the 1996 law prohibits the court from considering his new claims, Hull wrote.

Barkett said this is an unjust result.

“The perverse consequence of such an application of (the 1996 law) is that a federal court must acquiesce to, even condone, a state’s insistence on carrying out the unconstitutional execution of a mentally retarded person,” she wrote.

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Staff writer Rhonda Cook contributed to this article.