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The full 11th U.S. Circuit Court of Appeals on Tuesday said it will reconsider a June ruling that declared unconstitutional part of Georgia’s death penalty law. The statute struck down by the three-judge panel requires death penalty defendants seeking to avoid execution on grounds of mental retardation to prove beyond a reasonable doubt that they are mentally retarded. Overruling a 2003 Georgia Supreme Court decision, a 2-1 ruling said that the reasonable doubt standard violated the Eighth Amendment’s ban against cruel and unusual punishment because it inevitably would result in the execution of mentally retarded people. The June panel ruling said that although Georgia was the first state in the nation to outlaw the execution of mentally retarded defendants, in 1988, it is the only state to require an offender to provide proof of mental retardation beyond a reasonable doubt, the most stringent legal standard. A few states set no standard, while many others set more relaxed standards. The case being considered by the 11th Circuit is a habeas corpus petition brought by Warren Lee Hill Jr. According to court pleadings and opinions in the case, Hill’s 1991 death sentence stems from bludgeoning to death a fellow inmate. At the time, Hill was serving a life sentence for the fatal shooting of his girlfriend. In state habeas proceedings, a Muscogee County judge found that Hill’s low IQ scores satisfied criteria that he was mildly mentally retarded, but that Hill’s adaptive skills—which enabled him to hold jobs, serve in the military, save money to buy a motorcycle, learn to drive and have a girlfriend—prevented him from meeting other state criteria that would establish he was retarded. After the U.S. Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002), ruled that the Constitution forbids the execution of mentally retarded people, the Muscogee judge issued a new ruling declaring Georgia’s reasonable doubt standard unconstitutional. In a 4-3 decision, the state Supreme Court reversed the habeas judge in 2003. Hill brought a federal habeas action, leading to the 11th Circuit panel’s per curiam June 18 opinion. Judges Rosemary Barkett and Stanley Marcus said that the Georgia Supreme Court’s decision violated the dictate of Atkins. While acknowledging that the nation’s highest court left it to the states to establish procedures to make sure those mentally retarded offenders “about whom there is a national consensus” are not executed, the two-judge majority said that discretion was not limitless. “[I]t would not be an ‘appropriate’ means to impose a burden of proof that is so insuperably high that it inevitably excluded from Atkins’ protection a substantial number of mentally retarded persons,” wrote the panel majority. “Yet because of the highly subjective nature of the factual inquiry necessary to establish mental retardation, that is precisely what Georgia’s once-pathbreaking statute effectively has done by requiring proof beyond a reasonable doubt.” In a 29-page dissent, 11th Circuit Judge Frank M. Hull wrote that there is no U.S. Supreme Court case, including Atkins, “suggesting, much less holding, that a reasonable doubt burden of proof for claims of mental retardation violates the Eighth Amendment. Atkins did not answer that question.” She said Congress has said federal courts hearing habeas petitions can overrule only those state supreme court decisions that are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” as of the date of the state supreme court decision. “We are not concerned with what a United States Supreme Court holding could or should be in the future, but only what it was as of the time of the Georgia Supreme Court’s decision … in 2003,” wrote Hull. State Attorney General Thurbert E. Baker in July filed a petition for rehearing en banc that echoed Hull’s dissent. Daryl A. Robinson, counsel to the attorney general, said the office had no comment on Tuesday’s en banc announcement. Brian Kammer, an attorney with the Georgia Resource Center who has represented Hill in his appeals since 1996, said in an e-mail Tuesday that he’s ready to demonstrate to the full court the unconstitutionality of Georgia’s standard of proof for mental retardation claims. Kammer said that standard would allow the execution of someone like Hill, who Kammer said has undisputedly proven that he is mentally retarded by at least a preponderance of the evidence. Kammer said the panel majority correctly found that Georgia’s reasonable doubt standard of proof will necessarily result in the execution of offenders who are more likely than not mentally retarded, and even those who are clearly and convincingly mentally retarded. “That result is morally repugnant and simply not tolerable under the Eighth Amendment,” he said. According to the 11th Circuit clerk’s office, the case is set to be considered by the full court in February, although the court could elect to decide the matter on the briefs. The case is Hill v. Schofield, No. 08-15444.

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