By David Beasley
ATLANTA (Reuters) - Attorneys for a Georgia man facing execution next week will argue to the state's pardons board on Friday that executing the two-time murderer would be unjust because of his limited mental capacity.
Warren Lee Hill, 52, is scheduled to die by lethal injection on July 18. In a series of unsuccessful appeals, his lawyers have argued that his execution should be halted because he suffered from what they termed mental retardation.
The Georgia Board of Pardons and Paroles, which will consider the case on Friday, has more leeway than the courts in deciding whether to commute Hill's death sentence to life in prison, said Richard Dieter, executive director of the non-profit Death Penalty Information Center.
In petitioning the board for clemency, Hill's attorneys are raising questions about Georgia's strict standard for defining mental retardation.
In 1988, Georgia became the first U.S. state to enact a law banning the execution of mentally retarded defendants. But Georgia has perhaps the toughest standard in the nation for defining mental retardation, requiring proof "beyond a reasonable doubt," Dieter said.
"I don't know of any other state that puts the burden on the defendant to show (retardation) beyond a reasonable doubt, the highest standard that there is in the judicial system," he said.
Mental retardation is generally defined as having a score of 70 or below on intelligence tests, Dieter said. Hill scored 69 on one intelligence test and in the 70s on others, according to court records.
States also take additional factors into account, including a defendant's ability to perform routine tasks. Georgia's attorney general and a federal appellate court have noted that Hill served in the U.S. Navy and saved money to purchase cars and motorcycles before his incarceration.
Hill's attorney, Brian Kammer, told Reuters that people who are mildly mentally retarded "can seem to function 'normally' in many areas of life," including military service.
Hill was serving a life sentence for the 1986 shooting death of his girlfriend when he killed a fellow prisoner in August 1990 by beating the man to death while he slept.
At his trial, a clinical psychologist testified that Hill had below-normal intelligence but knew the difference between right and wrong, according to the attorney general's office.
State officials and courts said Hill did not raise mental retardation as a legal issue until five years after his 1991 conviction and death sentence for the second murder.
"He was not in special education, socially promoted or labeled as ‘mentally retarded' or ‘slow' in school," Georgia Attorney General Sam Olens said in a statement on Wednesday.
Kammer said the issue of mental retardation was not brought up at trial because Hill's original lawyers did not conduct a thorough investigation into his background.
Hill's attorneys have challenged Georgia's law in the federal courts, saying the "beyond reasonable doubt" standard is overly strict and conflicts with a 2002 U.S. Supreme Court ruling that bans executing mentally retarded defendants.
A three-judge panel of a federal appeals court in Atlanta agreed with the defense in 2010. But the full court reversed that decision last year, and the U.S. Supreme Court last month declined to review the case.
If the parole board grants Hill clemency, his sentence would be converted to life in prison either with or without the possibility of parole.
"A clemency or parole board can go beyond the strictures of the law to grant mercy because a case fits within the general parameters of mental retardation," Dieter said.
(Editing by Colleen Jenkins and Cynthia Johnston)