Warren Lee Hill is set to be executed Tuesday. His lawyer, Brian Kammer, on Friday filed a renewed application for a clemency hearing with the Board of Pardons and Paroles and a petition for a writ of habeas corpus with the Butts County Superior Court.
Both the board and the court denied similar requests in Hill’s case before his original execution date in July. The state Supreme Court ended up staying the execution then to give itself time to hear a legal challenge filed by Hill’s lawyers. The high court earlier this month ruled against that challenge, clearing the way for the execution.
The state attorney general’s office on Friday filed a motion in Butts County Superior Court asking the judge to dismiss Hill’s request to reconsider the case.
Kammer has long argued that Hill is mentally disabled and therefore should not be put to death because the execution of mentally disabled offenders is prohibited by state law and a 2002 U.S. Supreme Court decision.
The state has consistently argued that Hill’s defense has failed to prove beyond a reasonable doubt that he is mentally disabled.
Hill’s lawyers have said that burden of proof is virtually impossible to meet. But Georgia’s strictest-in-the-nation standard for proving mental disability has repeatedly been upheld by state and federal courts.
Hill was sentenced to death in Lee County for the 1990 beating death of fellow inmate Joseph Handspike. At the time Hill was already serving a life sentence for murder in the 1986 slaying of his girlfriend.
In his filings Friday, Kammer includes sworn statements from the three doctors who examined Hill in 2000 and testified before the court that he was not mentally disabled. The doctors write in their new statements that they were rushed in their evaluation at the time and that they have acquired additional experience and there have been scientific developments in the intervening 12 years. All three reviewed facts and documents in the case and write that they now believe that Hill is mentally disabled.
Given that new evidence, Kammer asks the Board of Pardons and Paroles to stay the execution, reconsider its denial of clemency and commute Hill’s death sentence to life in prison without parole.
He asks the Butts County judge to grant a stay of execution and to grant habeas relief.
The state argues that the claims in Hill’s motion for habeas relief should be procedurally barred because Georgia law requires that any claims not made in the initial habeas petition should be barred from review, and this is Hill’s third such request.
The state’s lawyers also argue that the “new evidence” — the doctors’ statements — is not credible. These doctors met with Hill and reviewed extensive documentation in the case in 2000, and they haven’t seen him since and didn’t have significant new information in front of them during their recent review, the state argues.
Therefore, it is not credible that they are able to refute the testimony they were so adamant about in 2000, the state argues.
“Clearly, comparing their affidavits to their prior testimony heard by this Court along with the record as a whole, these affidavits do not contain the credibility to establish a miscarriage of justice” as the defense claims, the state’s motion says.
Kammer on Wednesday filed a motion for a stay of execution in the case with the U.S. Supreme Court.
Lawyers for Hill and two other Georgia death row inmates, Andrew Allen Cook and Marcus Wellons, on Friday asked a federal judge in Washington to issue an order that would prevent the state from using a particular drug to execute them without a doctor’s
Cook is set to be executed Thursday and Wellons’ execution date has not yet been set.
The three inmates are asking the federal judge to direct the Drug Enforcement Administration to prevent the use of pentobarbital in lethal injections. They argue that the Georgia Department of Corrections’ use of the drug without a doctor’s prescription violates the federal Controlled Substances Act.