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.