It might sound like hair-splitting or legalistic sophistry to ask this, but nevertheless … answer me this question. What’s the difference between “preponderance of the evidence” and “proof beyond a reasonable doubt”?
You may have a good answer to that, but I doubt it. Anyway, my answer is “life or death”. That’s because in the US state of Georgia a man facing execution by lethal injection in a few days is set to die because Georgia’s Supreme Court decided that his lawyers had failed to demonstrate beyond a reasonable doubt that the man in question - Warren Lee Hill, a 52-year-old African American man - suffers from “mental retardation” and should therefore be spared execution.
As Amnesty’s Brian Evans explains, Georgia’s insistence on this punishingly difficult proof requirement sets it apart from all other US death penalty states. The irony is that Georgia had been the first state in the USA to ban the judicial killing of those with serious intellectual disabilities (known as “mental retardation” in the US) back in the 1980s, years before the US Supreme Court outlawed it nationally.
It reminds me of the evidentiary hearing that Troy Davis went through in Georgia in mid- 2010. In this two-day process, his lawyer had to “clearly establish the innocence” of his client before a judge. In a reversal of the judicial norms, here Davis was presumed guilty (because he had already been found so by a court) and the hearing was a (very) limited opportunity for his legal team to demonstrate his innocence. Not surprisingly, with such a bar to clear, this failed. Fifteen months later, despite an international furore and serious concerns about it being a miscarriage of justice, Davis was executed.
Warren Hill is set for execution this coming Monday (23 July). It was originally scheduled for today, but Hill has been granted five more days of life because Georgia has recently switched the type of drug it uses in its lethal injections. (As veterans of US death penalty cases will know, this kind of “procedural cruelty” is all too common when it comes to the way the USA administers the death penalty).
The crucial ruling which appears to be condemning Hill to die was one made after a narrow 4-3 vote among the judges of Georgia’s Supreme Court in 2003. This ruling was the opposite of a lower state court’s ruling and a federal appeals court later said that Georgia’s senior court had got it wrong, allowing an execution that would be unconstitutional. This is turn has been appealed … see here for a summary of the tangled legal battle in this case and how - astonishingly - a federal court has said it cannot change a state’s decision even if it “somehow inappropriately struck the balance” and its ruling had been “incorrect or unwise”.
So Hill is trapped. Trapped by the USA’s overly-rigid legal system and a kind of deadly legal hair-splitting. Georgia’s Board of Pardons and Paroles has - surely unconscionably - failed to step in and that leaves only the US Supreme Court itself. Hill’s life now hangs by a thread. Will the Supreme Court allow this man to be killed on the basis of legal hair-splitting?
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