A Day in the Life of the Death Penalty: July 18, 2012


In the Texas Prison Museum, a chair that has executed 361 convicted felons. (Reuters)

Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America. Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage. And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.

These executions will take place, absent extraordinary Supreme Court or gubernatorial intervention, because federal and state judges at lower levels of our nation's justice system have perversely interpreted recent United States Supreme Court decisions.  Whereas the Justices have tried in the past few years to give men like Hearn and Hill more access to meaningful appellate review, judicial obstructionists down below have refused to apply either the letter or the spirit of the new procedural rules.

In Texas, the perpetually rogue Fifth Circuit, in an opinion dripping with disdain for the justices in Washington, has just refused to apply the precedent established in Martinez v. Ryan, a Supreme Court decision issued in March that sought to expand appellate rights for defendants like Hearn. In Georgia, meanwhile, the state supreme court has refused to designate Hill as mentally retarded, scoffing at the mandate of Atkins v. Virginia, the Supreme Court's ruling banning the execution of the mentally retarded.

Neither man claims to be innocent. Neither man would ever set foot outside of a state prison even if he were to prevail on his claims. In both instances, original fact-finders (the trial judge or jury) were deprived of material evidence that the Supreme Court has long expected of the "mitigating" phase of a capital case. In both cases, incomplete and therefore inaccurate judgments were rendered. Yet look at how hard all these jurists have fought, how much they have contorted controlling precedent, to block Hill and Hearn from fixing the record.

TEXAS (Yokamon Hearn)There is nothing ambiguous about the crime. It was horrific on every level. Yokamon Hearn was convicted of murdering Joseph Franklin Meziere on March 25, 1998, as part of a carjacking. Hearn and one of his co-defendants, reads a recent defense brief, "shot Mr. Meziere in the head approximately ten times, with the evidence showing that Hearn likely fired first and fired six shots." In 2004, when Hearn faced another execution date, news reports indicated that Hearn had bragged about the crime. "This innocent victim was shot almost for sport," noted one former local prosecutor.

So the trial was going to be a slam-dunk and it was. But it was during the penalty phase of the trial, after Hearn had been convicted of capital murder, where today's conflict began. Here is how Hearn's current attorneys put it, the essence of their claim:

Yokamon's jury learned about violence, more violence, a history of burglaries, and, in sharp contrast, exceedingly superficial and inaccurate mitigation during his sentencing proceedings. Yokamon's lawyers were the reason the jury learned almost nothing about his life. They failed to conduct a minimally adequate investigation into Yokamon's life history when, had they done so, they would have uncovered a wealth of compelling mitigating evidence, including:

1) evidence that Yokamon's parents were severely impaired throughout his life; 2) that he was the victim of neglect at the hands of his parents; 3) that relatives who were portrayed at trial as unflinchingly committed and capable of caring for Yokamon were not so; 4) that he had a history of mental health problems, including suicidal ideations, as a young child and that his emotional problems stemmed from his parents' inability to parent him; 5) that he was exposed to risk factors commonly associated with brain damage; 6) that Yokamon, in fact, suffered from brain damage; and 7) that he exhibited severe impairments in day-to-day functioning consistent with brain dysfunction. [Numbers added for reference]

The failure of Yokamon's [original] lawyers to investigate his life constituted grossly deficient performance. Absent those failures, there is a strong likelihood that one or more jurors would have concluded that Yokamon did not deserve the death penalty.

But then it got worse for Hearn because his post-trial lawyer, the one who filed his vital habeas appeal, also did not conduct a detailed investigation into Hearn's life. So what Hearn's attorneys are arguing today is a sort of funky capital case calculus equation: Ineffective Assistance of Counsel Squared. Until March of this year, until that Martinez case that came down from the Supreme Court, such a formula (what's formally called "Successive" or "Second" Petitions) would have given Hearn virtually no chance for relief.

GEORGIA (Warren Hill)

There is nothing pretty about Warren Hill's crimes, either. He was already in prison, for murdering his girlfriend, when in 1990 he murdered a fellow state prisoner with a board studded with nails. Tested at the time for mental retardation, and viewed as a borderline case, HIll was quickly convicted and sentenced to death in 1991. Three years later, his attorneys filed a petition arguing that Hill was mentally retarded. At the time, long before the Supreme Court moved in Atkins, Georgia had statutorily outlawed, in certain circumstances anyway, the execution of mentally retarded defendants.

An extensive evidentiary hearing was held. Even the state agreed that Hill met the "IQ criterion for the diagnosis of mental retardation." Where the parties diverged, however, was on the issue of whether Hill's cognitive failings were accompanied by what law and science call "impairments in adaptive functioning." While in prison, between the age of 28 and 33, Hill had tested at a "grade level of approximately 6-7" and showed signs, with an IQ of 73, of mild mental retardation. Here is how Hill's attorneys once described his childhood:

Mr. Hill has suffered from neurological impairment since birth, manifested in a vulnerability to seizures and in mental retardation. During his school years, his teachers and fellow students regarded him as the slowest student in class. Because there were no special education programs available in the segregated schools attended by Mr. Hill, his teachers opted for 'social promotion,' an informal but then-common practice of moving students on to higher grades in spite of their inability to master age-appropriate work.
Mr. Hill's intellectual deficits caused or were accompanied by significant deficiencies in adaptive skills which are essential to successful independent life functioning. The adaptive functioning areas at issue are the following: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, health & safety, functional academics, leisure and work.

That language came straight from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. But the court noted instead that Hill had exhibited a "consistent work ethic" and had "managed well enough, in a 'functionally academic manner' to handle financial transactions ... while simultaneously sending monies to his family and contemporaneously maintaining his personal needs." Hill even passed a military entrance exam. The court ruled that while Hill was demonstrably retarded, he had nonetheless not proven beyond a reasonable doubt that he was retarded enough to avoid execution.

TEXAS JUSTICE: The Fifth Circuit

In Martinez, in March, the Supreme Court declared by a 7-2 vote that defendants were entitled to have federal courts review their "ineffective assistance of counsel" claims even if those claims were otherwise procedurally barred, if the reason the claims were barred was the ineffectiveness of the lawyers litigating the first round of post-conviction habeas review. Prisoners had a right to effective counsel beyond trial and direct appeal; in other words, a scenario that seems to fit the Hearn case on point. So, back in Texas, emboldened by the Martinez opinion, Hearn's attorneys filed a new request to have a court look at the "mitigating" evidence they had uncovered about their client's life history, including his long history of mental impairment.

But when Hearn's lawyers sought relief from a federal judge they were immediately shut down. U.S. District Judge Sidney A. Fitzwater ruled last week that Hearn was not entitled to any further relief. Why? Because the 5th Circuit already had ruled, in a case styled Ibarra v. Thaler, that Texas didn't have to follow the new rule outlined in Martinez. Judge Fitzwater felt duty bound to respect the 5th Circuit's interpretation of the Supreme Court's precedent. Poof! Just like that, and not for the first time, the most stridently conservative federal appeals court in the nation had just defied the justices.

What the 5th Circuit did, in Ibarra v. Thaler, was to interpret Martinez so narrowly as to make its holding inapplicable in virtually any other case. Even though the justices in Washington had created an exception to "protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel," the 5th Circuit said that Texas' appellate procedures vitiated the need for such an exception. Take a few minutes to try to read the Ibarra decision. Look at how hard the 5th Circuit's majority had to twist to avoid the Supreme Court's precedent -- and to avoid giving Hearn the relief to which he is entitled.

GEORGIA JUSTICE: The State Supreme Court

Meanwhile, in Atlanta, for nearly a decade, Warren Hill and his attorneys have litigated his mental retardation claim. They have had to do so despite the fact that Chattahoochee Circuit Chief Judge John Allen, a widely respected jurist, long ago determined Hill to be mentally retarded by a "preponderance of the evidence" standard. In 2003, however, the Georgia Supreme Court reversed the judge, declaring that Georgia's statute governing mental retardation required Hill to prove his retardation "beyond a reasonable doubt."

In a case styled Head v. Hill, in a 4-3 decision, the Georgia High Court ruled that the state statute survived the Atkins decision because it had preceded Atkins and because the justices in Washington had not specifically precluded states from establishing their own burdens of proof of retardation in capital cases. Georgia is the only state in the nation which requires the "reasonable doubt" standard in these cases -- and the state supreme court proudly defended its standard. The majority wrote:

In view of the lack of national consensus as to which mentally impaired persons are constitutionally entitled to an exemption from death sentences, we conclude 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.

Better that a mentally retarded man should be executed even post-Atkins, the Georgia court ruled, rather than strike down the "reasonable doubt" standard of a state statute. It's no wonder the dissent justices in Georgia so starkly set forth the ramifications. They wrote:

Despite the federal ban on executing the mentally retarded, Georgia's statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. 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.


At their best, these two cases represent warped legal reasoning. At their worst, the Hearn and Hill cases represent the cynical use of such reasoning in the pursuit of the unjust and the unreasonable. To protect an indefensible status quo in two capital cases, to deprive capital defendants of the limited remedies they have sought, we see here how judges have placed the interest of "finality" in capital litigation over the interest of fairness and accuracy. This is the judicial version of the odious doctrine of interposition -- the sly refusal of subordinate judges to apply Supreme Court precedent in a sensible, fair way.

So far shunned by the courts, both Hearn and Hill also have asked their respective state executive branches for relief. In Georgia, Hill's attorneys note that the family of his victim, Joseph Handspike, whose murder generated the death sentence Hill faces, "strongly support clemency in this case, as do several of Mr. Hill's original jurors." In Texas, Hearn's attorneys note in their own clemency request that even Gov. Rick Perry, an ardent supporter of capital punishment, has acknowledged the need for the state's justice system to "find errors that were made and clear them up." Good luck with all that.

These cases are precisely what death penalty opponents mean when they talk about a system that is broken and cannot be repaired without starting from scratch with a new capital sentencing regimen. For example, the Supreme Court has clearly outlawed the execution of mentally retarded people. Yet a mentally retarded person is about to be executed. All because the justices in Washington refused to give the courts guidance on standards of proof -- and because Georgia still coldly insists that it's more just and proper to execute a retarded man than it is to change one sentence of its statute.

A house divided against itself cannot stand. Neither can a system of justice in which lower court judges are so eager and willing to countermand or undercut controlling legal precedent. You want to understand why support for the death penalty is dwindling? You want to find fault when capital cases like this drag on for years? You want to argue, after Atkins and Martinez, that justice is being given to Hill and to Hearn? Go right ahead. But when the death penalty is again abolished in America, and days like July 18th are brought up, you'll likely have nowhere to hide and nothing to say.