The truth is, the Supreme Court almost never stops an execution. There are 25 capital cases scheduled for judicial conference in September, including Warren Lee Hill, according to CertPool. Of course, Hill may not make it to September, barring a successful challenge to Georgia's lethal injection drug practices, as his execution is scheduled for Friday.
Should Hill lose that challenge, that leaves him with one hope for survival: the Supreme Court. If their holdings in Atkins v. Virginia (the execution of mentally retarded is cruel and unusual punishment) and Felker v. Turpin (the Antiterrorism and Effective Death Penalty Act is constitutional because it does not deprive the Supreme Court from granting original writs of habeas corpus) mean anything, putting a hold on Hill's execution and vacating his sentence is exactly what they must do.
For those who haven't been following our Eleventh Circuit blog, Hill has a truly unique case. He was convicted of murdering his girlfriend. He was then convicted of beating his prison cellmate to death. At the time of his trial, he was unable to prove his mental retardation beyond a reasonable doubt (a high burden uniquely imposed in Georgia alone), as the government’s experts all felt that he was either malingering or competent.
All of those experts later changed their diagnoses, citing inexperience and insufficient time with Hill for proper evaluation. All seven experts who have examined him now agree that he is, beyond a doubt, mentally retarded.
The experts' timing was poor, however, is their reversal came after Hill had already filed a habeas corpus petition in the Eleventh Circuit. Earlier this year, the circuit court, citing the strict procedural limitations to second or subsequent petitions, denied relief. Because he had previously made the mental retardation argument, the present, more convincing argument was barred, even if it was based on new evidence.
Last Stop, SCOTUS
A group of law professors, along with their counsel, submitted an amicus curiae brief outlining the procedural posture for Supreme Court relief. In Felker, the court highlighted their rarely-used original writ power in order to uphold the AEDPA. The professors argue that this is the exact sort of exceptional case mentioned in Felker, and to not use the original writ power would render that case’s holding meaningless.
The professors differentiate recent denials by the court, such as the Troy Davis case, by pointing out one glaring difference: while Davis was pressing a hard-to-prove claim of actual innocence, Hill is categorically exempt from execution due to his disability and can prove that beyond a reasonable doubt. The case also meets Rule 20.4(a), which required exceptional circumstances and exhausted remedies in lower courts before granting the rare remedy.
The professors' arguments are convincing. The holdings in Atkins and Felker call for them to act to prevent an act of cruel and unusual punishment. If they don't, Georgia's recent history shows how far they'll go to carry out Hill's punishment, regardless of outcome of the pending drug challenge.