Warren Hill could still be executed Friday night for using a nail-studded board to kill a fellow state prison inmate.
That Hill is a murderer is not at issue. But if the state injects lethal chemicals into Hill’s body Friday evening, it will do so over the objections of three experts whose testimony all but ensured that Hill would die for his crimes.
The three experts told a court 13 years ago that Hill was not mentally retarded, a condition that would have kept him off death row. Now, in an extraordinary public admission, all three have said they were mistaken and Hill is indeed mentally disabled, and they’re willing to testify to that effect. This time, however, they can’t find a court to fully consider them.
“I can’t see how this execution can go forward now, certainly not without a hearing,” psychiatrist Thomas Sachy, one of those experts, told The Atlanta Journal-Constitution this week.
The Department of Corrections has set Hill’s execution for 7 p.m. Friday. The state attorney general’s office is asking the Georgia Supreme Court to overturn a stay of execution imposed by a Fulton County judge Thursday afternoon.
At the same time, Hill’s lawyers are waiting to hear whether the U.S. Supreme Court will grant their petition to throw out Hill’s death sentence or allow a federal judge to determine whether the experts’ new testimony is enough to prove Hill is mentally retarded.
The state attorney general’s office says Hill’s claims are without merit because he is not mentally retarded. The experts changed their minds after not having seen Hill in 13 years and not having seen any new material evidence, the attorney general’s office told the U.S. Supreme Court in a recent filing.
Hill sits on death row for beating another inmate, Joseph Handspike, to death with a nail-studded board in 1990 at the state prison in Leesburg. At the time, Hill was serving a life sentence for the fatal shooting of his former girlfriend.
Three years before Hill was sent to death row, Georgia became the first state to prohibit the execution of the mentally retarded, and the U.S. Supreme Court banned the practice nationwide in 2002.
Georgia is the only state in the country that requires capital defendants to prove mental retardation beyond a reasonable doubt — the most difficult burden of proof.
With the new statements from the former state experts, Hill’s lawyers believe they can now meet Georgia’s stringent standard. But they have been unable to get a hearing on the new claims.
Sachy, a psychiatrist with offices in Gray, said he read about Hill’s case in a national newspaper a year ago. Remembering he was one of the experts, he then called Hill’s lawyers out of concern he had been in error when he made his initial diagnosis a dozen years earlier.
“When I talked to Hill’s lawyers, I knew they would have hard feelings against me,” Sachy said. “But I was calling to do the right thing.”
Sachy had never worked on a capital case before he was asked to evaluate Hill in 2000. He interviewed Hill for about an hour and provided his findings to two doctors at Central State Hospital in Milledgeville — psychiatrist James Gary Carter and psychologist Donald Harris.
At a December 2000 hearing, all three testified for the state and said they believed Hill was not mentally retarded, while four defense experts testified they believed he was. The state judge ultimately found Hill could not prove his mental retardation beyond a reasonable doubt, a finding that still stands today.
But Sachy said he has now read “a ton of stuff” — such as records from Hill’s service in the U.S. Navy and affidavits of his teachers, family and friends — that he did not see at the time he made his initial diagnosis.
“I now have a different knowledge about this that’s much more sophisticated,” he said. “The black-and-white way I was trained in is not the way it is today. I believe he meets the criteria for being mildly mentally retarded.”
After getting Sachy’s new diagnosis, Hill’s lawyers then approached Carter and Harris, and both doctors agreed with their former colleague’s new assessment.
“There was an extreme limitation on the time we had to prepare,” Carter said in a telephone interview. “I’ve now spent an enormous amount of time reviewing hundreds and hundreds of pages of records, word by word. It is apparent that he is certifiably mildly mentally retarded.”
Harris said he stands by a sworn affidavit he signed in February. The clinical community better understands today that a person’s cognitive deficits can be masked by superficial functionality, and people who are mildly mentally retarded may sometimes not be identified in court proceedings, he said. “I believe this happened in Mr. Hill’s case.”
Deputy Attorney General Beth Burton has told the U.S. Supreme Court that Hill’s prior IQ test scores and the letters he wrote his lawyers years ago show he functions above the level of a mentally disabled person. While serving in the Navy, Hill served as a marksman and was a dedicated and reliable petty officer, she said.
Burton also accused the three doctors of being disingenuous and said their new findings are not credible. They were steadfast in their beliefs 13 years ago that Hill was faking his mental disability and today are relying on the same information, she said.
When told of the state attorney general’s office’s allegations, Sachy said, “That’s their opinion. That’s also what hearings are for. If they want to try and interrogate and impeach me, fine. I can take whatever they can bring out. But they should at least have a hearing before he’s executed.”
Said Carter, “I took this very seriously. … I took it literally as a matter of life and death.”
“This is a major issue,” Harris said Wednesday. “If the execution takes place, it will be very unfortunate.”
The reversal by all three government experts “is highly unusual,” the American Association on Intellectual and Developmental Disabilities and six leading mental disability experts said in a recent filing before the U.S. Supreme Court.
“A sentence of death cannot rest on such a flawed foundation,” they said.
So far, Hill’s execution has been delayed three times. In February, the 11th U.S. Circuit Court of Appeals in Atlanta halted Hill’s execution with less than an hour to spare.
But in a ruling issued four months later, the court said Hill could not overcome a 1996 law that restricts the ability of capital inmates to file successive appeals raising the same issues. Even though Hill was presenting new evidence from the three experts, he was essentially raising the same mental retardation claim he had already raised and lost on a prior occasion, the court said in a 2-1 decision.
But the majority noted Hill was not completely out of options, saying he could still file a petition directly to the U.S. Supreme Court, which Hill’s lawyers did a few weeks later.
The most recent such petition was granted four years ago when the court allowed Troy Anthony Davis to present new evidence before a federal judge to try to prove he had not murdered an off-duty police officer. But after a hearing, the judge rejected the new innocence claims, and Davis was executed in September 2011.
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