Ohio Killer Asks En Banc Court to Keep Death Penalty Off the Table

The execution chamber at the Washington State Penitentiary. (AP Photo/Ted S. Warren, File)

CINCINNATI (CN) — An Ohio man whose death sentence was overturned earlier this year by a panel of judges argued before the full Sixth Circuit on Wednesday that his intellectual disabilities make capital punishment unconstitutional.

Danny Hill, convicted of the 1986 murder of 12-year-old Raymond Fife, was sentenced to death by a three-judge panel in the same year and has been on death row ever since he was 19 years old.

Hill was diagnosed with several intellectual disabilities during his childhood, participated in special education classes for the entirety of his academic career, and struggled with basic adaptive skills – including self-hygiene – throughout his life, and argued in several habeas petitions that these deficiencies prevented him from being executed by the state.

Although there were no restrictions on the execution of intellectually disabled inmates at the time of Hill’s conviction, he argued the Supreme Court’s 2002 decision in Atkins v. Virginia rendered his death sentence cruel and unusual punishment under the Eighth Amendment.

A federal judge denied his petition in 2014, but appeals took the case to the Sixth Circuit and then the U.S. Supreme Court, where it was remanded back to the Cincinnati-based appeals court for arguments that took place in December 2019.

A unanimous panel of judges overturned Hill’s death sentence, a decision based on the district court’s failure to properly analyze his behavior prior to his arrest and incarceration.

The state of Ohio petitioned for a rehearing of the case in front of the en banc court, which set up Wednesday’s arguments, conducted via videoconference.

In its supplemental brief, the state argued that because federal law allows states to develop their own standards for determining an inmate’s intellectual capabilities, Ohio’s trial and appeals courts did not violate clearly established law when they sentenced Hill to death.

“The panel’s contrary conclusion,” Ohio Solicitor General Benjamin Flowers wrote, “boils down to a disagreement over the Ohio Court of Appeals’ weighing of the relevant evidence.”

Flowers argued the testimony provided by two expert witnesses who found Hill competent to be executed was sufficient to render the state court decisions “reasonable,” even if it may have been contradicted by anecdotal behavioral evidence.

“Hill’s brief takes one view of the record. The Ohio courts, relying on two experts, took another view. Because the alternative view is supported by record evidence, it cannot be disrupted on habeas review,” the state’s brief says.  

Attorney Vicki Werneke disputed the state’s view of the record in a supplemental brief filed on behalf of Hill, citing at least 10 evaluations from the age of 6 to 19 that labeled him intellectually disabled.

The public defender claimed the Ohio Court of Appeals “grossly mischaracterized the record” when it upheld Hill’s death sentence, and repeatedly called the amount of evidence supporting her client’s disabilities “overwhelming.”

“By narrowing the focus to Hill’s present functioning,” Werneke wrote, “the Ohio courts effectively eliminated the very facts that form the core of any reliable intellectual disability assessment.”

She added, “The appellate court justified its reliance on clinically irrelevant factors such as prison behavior, criminal behavior and verbal behavior based on the false notion there was little else to consider. The court also mispresented the overall weight of the available record, ignored key information, and misconstrued critical facts to come to its unreasonable decision that Danny Hill is not a person with intellectual disability.”

In Wednesday’s hearing, Werneke reiterated to the Sixth Circuit judges that a “robust and thorough” record of Hill’s intellectual history was largely ignored by the state courts.

U.S. Circuit Judge Helene White, a George W. Bush appointee, asked why the lower courts erred when they looked at Hill’s prison behavior, given that intellectual disability is considered a lifelong “static” condition.

Werneke admitted that Hill’s incarceration history should have been considered as well, but said the state courts “discounted and distorted the record” of adaptive and intellectual tests conducted prior to the murder.

She also said the sentencing court’s reliance on Hill’s appearance and demeanor during his trial and sentencing was misplaced, as the Ohio prison system “dictated” everything about the way he looked at the time.

Flowers disputed his opposing counsel’s claims and told the court that “Hill’s only argument … rests on a version of the record that is unrecognizable.”

According to Flowers, the state does not dispute “serious weaknesses” present in Hill’s adaptive skills and intellectual capabilities, but rests its case on the fact that two of the three experts used during sentencing found he was not intellectually disabled.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, asked the solicitor general about Hill’s past behavior – specifically, whether intellectual assessments performed during his childhood should have been considered by the trial court.

Flowers conceded that past behavior is part of a court’s analysis, but that teachers and childhood doctors are “not doing the same analysis” as the experts who testified during Hill’s sentencing hearings.

In the closing statements of her rebuttal, Werneke urged the court to overturn Hill’s death sentence, and said her client’s case “highlights how the state court process can fail,” while adding that the record proves “this is not a close case.”

No timetable has been set for the court’s decision.

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