Saturday, January 24, 2015

Killing the Mentally Retarded: The Warren Lee Hill Edition

What are you going to do Supreme Court of the United States (SCOTUS)? Is the law what you say it is, or is it what rouge states like Texas, Florida and Georgia want it to be? Are you going to enforce your authority in life and death decisions, or are you going to look away?

The State of Georgia has scheduled Warren Hill, Jr. to die on Tuesday, January 27, 2015 at 7:00 pm. The Georgia Supreme Court declined the opportunity to review a Georgia state district court decision that the recent decision of SCOTUS in Hall v. Florida should not result in further litigation of mental retardation (MR) for Hill regarding eligibility of the death penalty.

Hill has killed twice. More on this in a bit. It is these two cold blooded killings that punched Hill's ticket to the Georgia death chamber. Things got more complicated in 2003 when SCOTUS decided Atkin v. Virginia, which told states they could not executed the mentally retarded. There was, however, a wrinkle. A loophole allowing states like Georgia, Florida and Texas enough room to flout the decision. It is a concept known as "federalism" - the idea that states are given autonomy in implementing policy. In Atkins, Justice Stevens wrote the following couple of sentences:
 Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, 'we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.' (citation omitted).
Georgia, to its credit, pre-cursed Atkins by about a decade, passing legislation prohibiting the execution of the MR. The rub is death eligible defendants in Georgia have to prove MR beyond a reasonable doubt (BRD). In 2000 Hill had his day in court on the MR issue. At that hearing three health care professionals testified Hill was not mentally retarded, or more specifically, that he did not meet the clinical criteria existing at that time. Although Hill presented mental health professionals that testified their testing found Hill was MR, the court decided Hill had not established under the Georgia standard of beyond a reasonable doubt he was MR.

End of story, right? Atkins did not change state laws on the books that already provided procedures, and used in Hill's state claim, to decide MR. Although the burden of BRD was daunting, intellectually honest people looking for cover could take solace this high burden really was not an issue with Hill since three qualified mental health professionals testified Hill was not MR.

Then the twist.

About a decade later when Hill's lawyer sought to revisit the mental retardation decision, they discovered information that undermined the reliability of the 2000 court finding that Hill had not proved MR. The three mental health professionals who testified that Hill was not MR back in 2000 took a long look at themselves in the mirror and recanted. So much for intellectual cover.

Andrew Cohen reporting about it in The Atlantic provides details:
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.
These disclosures say much about the use of junk science ("Their work had been sloppy...") in criminal courts, but that is another topic for another time. Today is about our blood lust and the intellectual dishonesty we are willing to endure to feed it.

Cohen's words were written in August 2012. Two and half years later, here we are again, three days before Hill is set to die. No one contests Hill meets current clinical criteria defining MR. What does it say about us that state officials, judges, lawyers are still willing to send this man to his death?

How is this possible?

My answer to this question is hard. People who want Hill's sentence to be carried out begin with the two murders for which Hill was convicted. Two deaths at his hands. First was Hill's then 18 year old girlfriend, and then an inmate Hill was serving in prison with in 1990 after being sentenced in the first case. It helps to understand how officials and prosecutors can rationalize their thinking to a point that Hill is gaming the system to avoid his punishment, a tool of zealot anti-death penalty lawyers who do not really care if Hill is mentally retarded.

That brings up the important issue of adaptive behaviors. A person can fall below the intellectual functioning criteria for mental retardation, say 69-70, but be able to function well enough within their community to contribute meaningfully to it. So, for example, if a person with low intellectual functioning can drive, understand basic road signs, take care of their daily living needs, work gainfully, they may not meet clinical criteria for MR because of their ability to adapt their behaviors to the world around them. It is a practical test that requires more than a IQ test below 70. Clinically it makes sense.

Bring this to the courtroom and difficulty ensues. The law and the advocacy inherent to the law does not adapt well to the subjectivity of adaptive behaviors. This is what happened with Hill in his initial habeas hearing and the officials now advocating for his execution. They point to Hill's two murders and military service as evidence he has the adaptive behaviors to take himself out of legal (if not clinical) definition of MR. Add to it that he had "his day" and many others, in court, and these officials believe justice is not served by allowing Hill to escape the sentence a jury and litany of appellate courts have said should be carried out.

Texas has its own, and in my mind, worse perversion of Atkins and its grand moral pronouncement a national consensus exists the MR cannot be executed. Texas' solution to get out from under Atkins? Define adaptive behaviors in a way that basically exclude any MR person, except the ones who would be incapable of committing a murder in the first place.This was made possible in the infamous case Ex parte Briseno, in which my Texas Court of Criminal Appeals wrote the following concerning adaptive behaviors in Atkins claims:
Evidentiary factors that may be considered when making Atkins determination whether defendant is mentally retarded and therefore cannot be executed include: (1) whether those who knew defendant best during developmental stage, i.e., his family, friends, teachers, employers, and authorities, think he was mentally retarded at that time, and if so, whether they act in accordance with that determination; (2) whether defendant has formulated plans and carried them through, or whether his conduct is impulsive; (3) whether defendant's conduct shows leadership or shows he is led by others; (4) whether defendant's conduct in response to external stimuli is rational and appropriate, regardless of whether it is socially acceptable; (5) whether defendant responds coherently, rationally, and on point to oral or written questions, or whether his responses wander from subject to subject; (6) whether defendant can hide facts or lie effectively in his own or others' interests; and (7) putting aside any heinousness or gruesomeness surrounding the capital offense, whether commission of the offense required forethought, planning, and complex execution of purpose.
These Briseno factors are not clinically based. Factors (6) and (7) are not only not clinically based, they are essentially the factors prosecutors, judges and juries typically seize upon to decide  a death penalty eligible defendant has failed to prove they are MR.

This has led Texas to execute an individual who was almost certainly MR. Andrew Cohen wrote about Marvin Wilson, his crime and his almost certain MR in a piece entitled "Of Mice and Men", again in The Atlantic. About Wilson's intellectual functioning and adaptive behavior ability, Cohen wrote:
 Marvin Wilson, a man who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes, a 54-year-old man with an IQ of 61 which, his attorneys were quick to point out, is 'below the first percentile of human intelligence.'
We killed this man. Dead, at our beckoning.

Georgia says death eligible defendant's must prove MR beyond a reasonable doubt. Texas defines MR in such a way that it can virtually never be proven, even with the lesser evidentiary standard of 'preponderance' of the evidence. This is the case even if all the clinicians say the death eligible defendant meets the clinical definitions of MR.

See how that works?

Let me summarize: Even though every mental health and medical provider says an individual, like Hill, is MR, Texas and states like it ignore them. This is because SCOTUS allows states the opportunity to determine  "the appropriate ways to enforce the constitutional restrictions of [not executing the MR]", and by doing so, allows them to define an individual right out of the very MR protection given to them in Atkins.

Hey, but Hill did kill two people. And it is just a little law.

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