The state of Georgia has applied to the US supreme court to overturn a stay of execution for Warren Hill, the intellectually disabled prisoner who came within half an hour of being put to death on Tuesday night.
Georgia’s attorney general has filed a petition with the highest court in the US, arguing that Hill is not entitled to a stay of execution, because of the fact that he has exhausted all legal remedies. The petition states that his lawyer’s argument that the prisoner is “mentally retarded” is not new, and has been rejected by previous courts.
In a riposte to the supreme court, Hill’s attorney Brian Jammer countered that the appeal is indeed based on new evidence – the decision of three doctors to change their testimony that has transformed the case.
It now remains to be seen whether the nine justices of the supreme court wish to become embroiled in this particular challenge. In similar cases, the court has wished to remain above the legal fray, leaving the argument to be fought out by the lower courts.
Georgia has until 26 February to execute Hill, after which deadline it will have to apply for a new death warrant. That may help explain its urgency in trying to overturn the stay.
Hill was put on death row for the 1990 murder of a fellow prisoner, Joseph Handspike. He was already on a life sentence for having killed his girlfriend, Myra Wright.
He was scheduled to be executed at 7pm on Tuesday, With about 30 minutes to go before Hill was injected with a fatal dose of the sedative pentobarbital, two separate courts stepped in to impose a temporary delay in the proceedings.
The federal appeals court in Atlanta ordered that the execution should be delayed for at least 30 days, while a Georgia court of appeals imposed its own stay to give the courts more time to consider the propriety of the single lethal injection as a method of killing.
This was the second time in seven months that Hill has come close to the death chamber: last July he was spared by just 90 minutes and the experience was repeated on Tuesday night with just 30 minutes to go.
Before the stay of execution, former US president Jimmy Carter repeated his appeal for a postponement. He said: “Georgia should not violate its own prohibition against executing individuals with seriously diminished capacity.”
The European Union also made formal protests through the British and Irish consulates in Atlanta, focusing on Hill’s disabilities. “This case has raised attention around the world, with particular concern around Mr Hill’s intellectual disability,” said Annabelle Malins, the British consul general.
Hill’s attorney, Brian Kammer, issued a statement after the stay: “All the doctors who have examined Mr Hill are unanimous in their diagnosis of mental retardation, so there is no question that his execution would have been in violation of the US supreme court’s 2002 ruling in Atkins v Virginia.
“The state of Georgia remains an extreme outlier in requiring that defendants prove they have mental retardation ‘beyond a reasonable doubt’. This is the strictest standard in any jurisdiction in the nation. Even Warren Hill, a man with an IQ of 70 who is diagnosed as mentally retarded by every doctor who has examined him, found it impossible to meet this standard of proof.”
One of the issues that must now be considered is the method of execution in Georgia. Since last July the state has opted to use just one massive dose of the sedative pentobarbital as its lethal injection, instead of a cocktail of three different drugs. The triple injection had become problematic because Georgia was running out of the drugs in question.