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Georgia was the first state to ban executing the mentally retarded, but it will remain the only state to require death penalty defendants to prove their retardation beyond a reasonable doubt. In a 4-3 decision, the Georgia Supreme Court affirmed that high standard of proof in an appeal involving Warren Lee Hill, sentenced to die for the 1990 beating death of another inmate. Writing for the majority, Justice George H. Carley found that “the Georgia General Assembly, the first legislative body to create such an exemption, was originally and now remains within constitutional bounds in establishing a procedure for considering alleged mental retardation that limits the exemption to those whose mental deficiencies are significant enough to be provable beyond a reasonable doubt.” Three justices, however, disagreed, warning that despite last year’s U.S. Supreme Court decision banning execution of the mentally retarded, the majority’s decision to require the high standard of proof is likely to result in the execution of mentally retarded defendants in Georgia. “Despite the federal ban on executing the mentally retarded, Georgia’s statute, and the majority decision upholding it, does not prohibit the state from executing mentally retarded people,” wrote Presiding Justice Leah W. Sears. “To the contrary, the State may still execute people who are in all probability mentally retarded. The state may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded. Only if a mentally retarded person succeeds in proving their retardation beyond a reasonable doubt will his or her execution be halted,” Sears wrote. She was joined in the dissent by Chief Justice Norman S. Fletcher and Justice Robert Benham. Head v. Hill, No. S03X0560, Hill v. Head, No. S03A0559 (Sup. Ct. Ga. Oct. 6, 2003). Natalie Z. DiSantis, a spokesperson for state Attorney General Thurbert E. Baker, said her office was pleased with the ruling. DiSantis noted that the decision was particularly satisfying since Georgia, as the first state to bar executing retarded defendants, also had been the first to enact a standard of proof in such claims. “We’re really pleased that that was affirmed again today,” she said. Deputy Attorney General Mary Beth Westmoreland, Senior Assistant Attorney General Susan V. Boleyn and Assistant Attorney General Beth A. Burton handled the case for the state. Hill’s lawyer, Thomas H. Dunn of the Georgia Resource Center, who handled the case with Brian S. Kammer, said he was disappointed by the decision. The habeas judge found Hill mentally retarded, Dunn said, but not to the high degree of proof Georgia requires. By all rights, he added, Hill should not be executed, but Monday’s decision holds otherwise. Out of the 38 states that have the death penalty, 19 states have a preponderance of the evidence standard for mental retardation claims and five have a clear and convincing evidence standard. Six other states are considering legislation setting a preponderance of the evidence standard, Dunn said. Georgia, Dunn said, has “gone from the vanguard to being way out on our own.” Dunn said he will appeal to the U.S. Supreme Court and if that fails to prohibit Hill’s execution, he will file a federal habeas petition. SERVING LIFE SENTENCE Hill was serving a life sentence in Lee County Correctional Institute for killing his girlfriend when he beat another prisoner, Joseph Handspike, to death with a 2-by-6 board as Handspike slept. Hill was tried in 1991 and sentenced to death for that killing. At trial, his attorneys presented evidence that Hill was intellectually slow, but his own expert testified that he was not mentally retarded. His trial lawyers did not ask the jury for a guilty but mentally retarded verdict. Hill’s conviction and death sentence were affirmed on direct appeal in 1993. Hill filed a state petition for a writ of habeas corpus in 1994, alleging that he was mentally retarded. Muscogee County Superior Court Judge John D. Allen, assigned to hear the habeas petition, ordered a jury trial on the issue of retardation and found that Hill would only have to prove retardation by a preponderance of the evidence standard. The Georgia Supreme Court reversed that ruling in 1998, finding that Hill was not entitled to a jury trial under that standard because he was tried after the effective date of a state law giving defendants the chance to prove retardation at trial. (Defendants tried and sentenced to die prior to the 1988 bar on executing the mentally retarded need only meet a preponderance of the evidence standard when raising the retardation issue in post-conviction appeals. But defendants tried on or after the effective date of the 1988 law are required to prove retardation beyond a reasonable doubt.) STATE LAW DEFINITION Under state law, mentally retarded means “having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.” Typically, retardation involves an IQ below 70. Allen, in a May 16, 2002 order, found that Hill had not proven mental retardation beyond a reasonable doubt, Hill had satisfied that burden of proof on one element of retardation, that he had subaverage intellectual functioning, Allen wrote, but not on the other element, that he suffered from impairments in adaptive behavior. But four months later, after considering two recent U.S. Supreme Court decisions — Ring v. Arizona, 536 U.S. 584 (2002) and Atkins v. Virginia, 536 U.S. 304 (2002) — Allen again ordered a jury trial for Hill on mental retardation and said the standard of proof should be the lower one, preponderance of the evidence. Allen found that Georgia’s high standard of proof didn’t afford proper due process protections in accordance with the federal ban on executing the mentally retarded and was unconstitutional. But Monday, the majority of Georgia justices concluded that Allen had misapplied those U.S. Supreme Court decisions. In Ring, the U.S. Supreme Court found that if a state “makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the state labels it — must be found by a jury beyond a reasonable doubt.” In Atkins, the U.S. Supreme Court barred execution of the mentally retarded. THE ‘RING’ DECISION The Ring decision, Carley wrote, doesn’t establish a constitutional requirement for a jury trial on the issue of mental retardation. That case involved issues that increase the punishment defendants might face, not issues by which defendants seek to limit their possible sentences, such as mental retardation, he wrote. Carley added that “the fundamental fairness and accuracy of determining mental retardation would not be increased by having a jury rather than a trial judge make the determination.” Hill could have had a jury trial on that very issue, Carley wrote, but waived that right at his 1991 trial. Carley then addressed Allen’s finding that the Atkins bar on executing mentally retarded defendants couldn’t be enforced properly under Georgia’s high standard of proof. Nothing in Atkins, Carley wrote, tells states to apply any particular standard of proof. “Therefore, we must apply Georgia law,” he wrote, “in a manner which is consistent with established federal constitutional principles as they have been announced with respect to other, comparable rights.” A claim of mental retardation is similar to a claim of insanity, Carley wrote, in that both claims can exempt guilty persons from a portion of the penalties they face. The U.S. Supreme Court long ago approved the higher standard of proof for insanity claims, Carley wrote, leading to the conclusion that a similar standard may be applied constitutionally to retardation claims. Any risks of wrongful execution, Carley concluded, are “sufficiently counterbalanced by the joint safeguards of Georgia’s procedure for demonstrating incompetency to stand trial under the preponderance of the evidence standard and mental retardation under the beyond a reasonable doubt standard.” SEARS: CASE IS BEYOND PROCEDURES Sears, however, wrote that the case was about more than what procedures should be used to prove a particular defense. At stake, she wrote, was whether Georgia’s procedures that were designed to guarantee a mentally retarded defendant’s constitutional right to be exempt from execution conform to constitutional guarantees of procedural due process. The consequences, Sears insisted, “of an erroneous rejection of a capital defendant’s claim of mental retardation are extreme and irredeemable. In capital proceedings, especially, courts should always demand fact-finding procedures that uphold a heightened standard of reliability.” The mentally retarded have diminished capacities that make them vulnerable “to a unique and significant risk of being wrongfully executed,” she wrote. They are more prone to make false confessions, are less able to make showings of mitigating factors, are often unable to help their attorneys and are frequently poor witnesses, Sears noted. The majority opinion, she wrote, “subjects them to this heightened risk, thereby increasing the likelihood of erroneous rejections of retardation claims, which will invariably lead to wrongful executions.” The Constitution, she wrote, cannot on the one hand “simultaneously limit the state to the preponderance of the evidence standard when seeking to prosecute a capital defendant who claims incompetence, yet allow the state to impose the beyond a reasonable doubt standard when that same defendant, after being convicted and sentenced to death, claims mental retardation. The majority opinion errs by concluding otherwise.” Georgia may have been ahead of the times in banning the execution of the mentally retarded, but it is now the only state with such a high standard of proof, Sears wrote. “I am convinced this situation violates the tenants of due process as that concept is embodied in our Federal Constitution. Therefore, I dissent.”

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