Warren Lee Hill, and His Cause, Live to Fight Another Day

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30 minutes before the moment of his lethal injection, two courts stay the execution of a mentally retarded prisoner so that they can evaluate his case.

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Members of the Georgia Board of Pardons at Hill's July clemency hearing (David Goldman/AP)

Condemned Georgia prisoner Warren Lee Hill came within 30 minutes of being executed Tuesday night -- came within 30 minutes of becoming a reluctant martyr to a constitutional principle the United States Supreme Court first announced in 2002 in a case styled Atkins v. Virginia: Thou shalt not execute the mentally retarded. He came that close -- already well into Georgia's death penalty protocol -- despite the fact that he is mentally retarded, and that every medical expert who has evaluated him since 1991 now says so.

You would think with the precedent established in Atkins, and with Hill's mental status now beyond any reasonable doubt, that the justices in Washington would have been eager to block the execution. But it wasn't the Supreme Court that came to Hill's rescue. The justices instead denied Hill's request for a stay. It is unclear tonight whether they did so because they have no interest in his cause, and thus no interest in defending Atkins; or because they were aware of two other stays issued around the same time.

On Tuesday evening, it was the 11th U.S Circuit Court of Appeals, primarily based in Georgia, which blocked Hill's execution so its judges could look more closely at the startling new facts about Hill's mental status which emerged last week. And it was a state appellate court in Georgia which also blocked the execution Tuesday night because the judges there want to look a little more closely at Georgia's lethal injection protocols. This after another Georgia court, and the state's pardons board, had earlier in the day refused to help Hill.

So, for now anyway, Hill will be spared. There will be no execution tonight. And now the burden is on Georgia officials to convince the judges of those two other courts -- one federal, one state -- to permit Hill's execution to proceed. I can't speak to the lethal injection issue; it hasn't been on my radar. But it's hard to imagine that the 11th Circuit is going to be eager to dissolve its own stay given the recent dissolution of Georgia's argument for executing Hill in the first place: that he's not so mentally retarded that he shouldn't be executed.

Last week, Hill's attorneys informed Georgia, and thus the rest of the world, that the state's three medical experts, who in 2000 had refused to diagnose Hill as mentally retarded, had all changed their minds. Their work had been sloppy, they confessed, and they had relied upon each others' conclusions more than they should have. They didn't adequately understand the nature of mental retardation as it related to Hill, they stated, but now they do: he is mentally retarded, they now believe, and thus should be spared.

The startling recantation by the state's own expert witnesses leaves Georgia today with very little to defend before the 11th Circuit. Today, the day Warren Hill was almost executed, the state can point to no expert who is on the record in this case as saying that Hill is not mentally retarded. Let me put it another way: There is no expert evidence supporting the state's effort now. All of the expert evidence supports Hill. On the issue of his mental retardation, under Georgia's statute, the case today is about as one-sided as a capital case can be.

The 11th Circuit recognized this Tuesday night in its order staying the execution:

In other words, all of the experts -- both the State's and the petitioner's -- now appear to be in agreement that Hill is in fact mentally retarded. See, e.g., Affidavit of Dr. Thomas H. Sachy, at ¶ 6 ("I . . . concur with the conclusions (rendered previously in Mr. Hill's case) of Dr. Daniel Grant, Dr. Jethro Toomer, Dr. Donald Stonefeld, and Dr. William Dickinson that Mr. Hill meets the criteria for mild mental retardation and the bases for those conclusions which they articulated."); Affidavit of Dr. Donald W. Harris, at ¶ 22 ("I . . . concur in the findings of Drs. Grant, Toomer, Stonefeld, Dickinson and Sachy in this case.").

In light of these affidavits, we grant Hill a conditional STAY of execution and direct the parties to specifically address whether Hill can satisfy the stringent requirements found in 28 U.S.C. § 2244(b)(2) for leave to file a second or successive petition.

Specifically, the parties shall address the questions (1) whether Hill could have previously discovered the factual predicate for the claim through the exercise of "due diligence," 28 U.S.C. § 2244(b)(2)(B)(i); (2) whether he can show that the facts underlying his claim, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Hill] guilty of the underlying offense," and (3) whether Hill's claim in this application for a successive petition "was presented in a prior application," 28 U.S.C. § 2244(b)(1). The second question includes the question of whether Hill's claim of mental retardation is cognizable as a claim of actual innocence under 28 U.S.C. § 2244(b)(2)(B)(ii).

There is a lot of legal lingo there, but you can probably tell two things from the text. First, it is by no means certain that Hill's life is going to be spared down the road given the procedural hurdles in place. Indeed, there was a very strong dissent on Tuesday from Judge Frank Hull, a Clinton appointee. Second, it's a very big deal that all of Georgia's experts now have recanted. The state courts in Georgia weren't willing to confront this new reality -- home-field advantage, you might say -- but clearly the federal judges understand it changes the factual dynamic of the case.

As it moves forward, and I hope it moves all the way to Washington, the case presents the justices with an opportunity to strengthen -- to save, really -- the letter and the spirit of Atkins. In that case, they tried to be all things to all people. It was a mistake, and they now should fix it. Even as they announced a national standard (executing those who cannot comprehend the nature of their punishment is "cruel and unusual"), the justices announced that states could weasel out of the new rule by identifying for themselves who is and who is not mentally retarded.

The result, predictably, was that some outlier states, where the politics of the death penalty still tolerate a zealous approach to executions, have done an awful lot of weaseling over the past decade. Last summer, to cite just one egregious example, Texas flouted the justices and Atkins when they executed Marvin Wilson, a man who had an IQ of 61. And then there is Warren Lee Hill, who was faced under Georgia law with the near-impossible task of proving beyond a reasonable doubt that he is, in fact, mentally retarded.

The Hill case, properly briefed, will allow the 11th Circuit and the justices in Washington to decide whether states like Georgia can be true to the mandate of Atkins while still requiring condemned prisoners to prove their mental retardation beyond a reasonable doubt. I doubt it. Atkins was never meant to make it easy for such prisoners to escape execution. But it was never meant to make it impossible, either. It's a good thing Hill is still with us, and that the questions presented by his case, especially the new questions, are going to be heard in full.

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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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