In Georgia, Doctors Recant Testimony—but the Execution Will Go On

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A stunning turn in an old case puts renewed pressure on the justices in Washington -- and state officials -- to stop Warren Lee Hill from being put to death.

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Portraits of the five members of the Georgia Board of Pardons hang on the wall in the conference room before Warren Hill's July clemency hearing. (David Goldman/AP)

Earlier this week, I wrote about Warren Lee Hill, the mentally retarded man who is scheduled to be executed next Tuesday in Georgia in defiance of the United States Supreme Court's 2002 decision in Atkins v. Virginia -- a ruling which declared that such executions violate the Eighth Amendment's prohibition against "cruel and unusual" punishment. The case has been a dubious one for years. This week it got even more outrageous.

From a clemency request filed Thursday with the Georgia Board of Pardons and Paroles, we now know that three of the state's experts who evaluated Hill in 2000 have just recanted their opinions about his mental status. This means that every doctor who has ever evaluated Hill since 1991, when he was given his first comprehensive evaluation, has concluded that he is mentally retarded -- and that no doctor who has ever evaluated him has concluded otherwise.

Despite this remarkable turn, and despite the fact that Hill's attorneys asked the Supreme Court days ago for a stay of execution, Hill remains just days away from being put to death by lethal injection because of an unconstitutional Georgia law, unreasonably applied against him because he has not yet met his burden of establishing his mental retardation beyond a reasonable doubt. Here's how Bill Rankin, of the Atlanta Journal-Constitution, wrote it up:

Days before condemned killer Warren Lee Hill's is scheduled to die, the same state experts who testified Hill was eligible for execution now say they were wrong, according to affidavits released Thursday.

Hill is to die by lethal injection on Tuesday at 7 p.m. His lawyers have already asked the U.S. Supreme Court to halt the execution. On Thursday, they said they will soon ask a state court judge to consider the doctors' new statements and will use them when asking the State Board of Pardons and Paroles to give Hill a new clemency hearing.

During a key hearing 13 years ago, state attorneys called on two psychiatrists and a psychologist to refute Hill's claims that he is mentally disabled and thus ineligible for execution. All three doctors now say they were mistaken when they testified Hill was not mentally disabled.

"Having reviewed my earlier evaluation results and the far more extensive materials from the record of this case, I believe that my judgment that Mr. Hill did not meet the criteria for mild mental retardation was in error," said one of the experts, Thomas Sachy, a forensic psychiatrist.

In their affidavits, the doctors described their evaluations of Hill in late 2000 as rush jobs. They also said they did not have all the information they needed to make a proper diagnosis.

Here is the link to Hill's renewed commutation request, which includes some of the most jaw-dropping language I have ever seen in a capital case. For example, here's part of the recantation of Dr. Thomas Sachy:

During my evaluation of Mr. Hill in December 2000, some things in particular persuaded me at the time that, as I wrote in my report of December 12, 2000, he was "malingering a cognitive disorder" and that he did not meet the criteria for mild mental retardation but rather for borderline intellectual functioning. As I noted in my report of December 12, 2000 and in my testimony, Mr. Hill's repeated response of "I don't know" to my questions I interpreted as a sign of malingering. Mr. Hill also did not attempt even to guess at answers and often seemed uncooperative generally. He answered many questions correctly, but also missed or said "I don't know" to questions I would have thought he would have no trouble answering.

I also gave great weight to Mr. Hill's somewhat poor attempt to copy a drawing of intersecting pentagons as a signal of malingering. I also saw letters Mr. Hill had purportedly written to his counsel which seemed to be more advanced for a mentally retarded person. Finally, I simply found it difficult to believe that someone with mental retardation could function even minimally in the United States Navy as a petty officer, although I have never served in the military. Therefore, at the hearing in December 2000, I was unprepared to find that Mr. Hill met the criteria for mild mental retardation.

However, since that time, I have had the opportunity to practice psychiatry for an additional 12 years -- almost my entire career as a psychiatrist -- and I have treated an extremely wide variety of patients in that time, including many who were mentally retarded. The scientific understanding of mental retardation has also expanded, and the protocols for determining whether a patient is "malingering" or feigning a mental disorder have become more sophisticated, as have the scientific conclusions which can be drawn from such behavior. I have had far more experience with patients who may technically have "malingered" or feigned certain symptoms, but who nevertheless have real mental disorders.

In other words, I have vastly greater experience as a psychiatrist than I did in 2000 and I have access to better science pertaining to the key questions in Mr. Hill's case. I do not believe now that Mr. Hill was deliberately feigning a cognitive disorder in 2000, and I believe that his responses to my questions were consistent with mild mental retardation.

You really need to read the motion yourself to get the full flavor for how shoddy the medical work was in this case and how stubbornly Georgia has clung to it over the decades -- clung to it as if it were gospel. I give credit to these doctors for at least having the professional courage today to admit their grievous errors while they can still do something meaningful about it. But this week's episode in this long-running case begs almost as many questions as it answers:

1) What ruse or scheme will Georgia officials now come up with now to push ahead with Hill's execution? Can it ever be too late to get a diagnosis right with a man's life on the line?

2) How in the world will the justices in Washington now turn their back on this man given the mandate of Atkins and the unanimous conclusions of the doctors who evaluated Hill?

3) Notice, if you read the motion, how the doctors' opinions of Hill are based in large part on the opinions of other doctors which in some cases were based upon faulty information or simply poor judgment. The entire diagnosis of Hill was like a house of cards. One doctor's work infected the others. Does this happen today in capital cases? How could it not with the overworked schedules of these psychiatrists and psychologists?

4) Finally, how many other such erroneous psychological evaluations have been given over the years, which have not been corrected, and which thus have led directly to the imposition of the death penalty against other mentally retarded capital defendants? And which court, which legislative body, which executive branch is going to spend the time and money to find out?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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