1

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

WARREN LEE HILL, JR., )

Petitioner, ) Habeas Corpus

vs. ) Case No. 2013-V-111

)

CARL HUMPHREY, Warden, ) EXECUTION SCHEDULED

Georgia Diagnostic Prison, ) February 19, 2013 @ 7:00PM

Respondent. )

REPLY TO RESPONDENT’S MOTION TO DISMISS

Comes now Warren Lee Hill, Jr., Petitioner, who, through undersigned

counsel, submits this Reply to Respondent’s Motion to Dismiss Mr. Hill’s recently

filed Petition For Writ of Habeas Corpus.

As Respondent concedes, Mr. Hill’s claim under Atkins v. Virginia, 536 U.S.

304 (2002), may be reviewed in order to avoid a potential miscarriage of justice.

A. That Mr. Hill’s IQ is Approximately 70 Beyond a

Reasonable Doubt is the Law of the Case.

Respondent’s allegation that Mr. Hill does not have a qualifying IQ score

has already been soundly rejected by the state courts and even the experts

Respondent enlisted to contest Mr. Hill’s mental retardation claim. In this Court,

Judge Allen ruled that Mr. Hill meets the IQ prong of the diagnosis beyond a

reasonable doubt, and the Georgia Supreme Court has affirmed that ruling. See

Head v. Hill, 587 S.E.2d 613, 623 (Ga. 2003).

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Judge Allen found:

The experts in this case do not vary to any significant extent in their

opinions that Mr. Hill meets the I.Q. criterion for a diagnosis of

mental retardation. In fact, Dr. Gary Carter, respondent’s expert,

indicated in his report: ‘The essential factor in this case hinges on his

(Mr. Hill) level of adaptive functioning, not his specific I.Q. testing

results.’ All quantitative I.Q. assessment results, except one, fall

within the ‘mild mental retardation’ range especially when allowing

for variance. Therefore this Court finds that the petitioner has

satisfied [the IQ] criterion ... beyond a reasonable doubt.”

Appendix 6 - Order of May 13, 2002 (Hill v. Head, Butts Co. Superior Court Case

No. 94-V-216) at 3-4 (emphasis supplied).1 In Dr. Carter’s testimony before Judge

Allen, he explained that Mr. Hill’s IQ is “right in th[e] cutoff range” for mild

mental retardation, a diagnosis which attaches to IQs of from 50-55 to

approximately 70. Appendix 35 at 701. This “makes the level of adaptive

functioning during his developmental life the essential ingredient here to make a

valid diagnosis.” Id. Dr. Carter later reiterated that there was no need to “quibble”

over Mr. Hill’s IQ score because his expert opinion was that Mr. Hill has an IQ of

1 Judge Allen’s finding is consistent with the Diagnostic and Statistical Manual of Mental

Disorders (DSM), which recognizes a +/- 5 point standard error of measurement in any IQ score.

See DSM-IV-TR at 41.

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around 70. Id. at 746-77. Dr. Carter acknowledged that “the score is there [for a

diagnosis of retardation], but the [deficits in] adaptive functionings are not.” Id.2

Respondent never disputed this finding in state court proceedings and the

Georgia Supreme Court did not disturb it. See Hill, 587 S.E.2d at 623.

In his Response, however, Respondent now highlights irrelevant and

inappropriate test scores which do not remotely offer a reliable or accurate

inference of intellectual functioning. Respondent’s arguments were discredited by

the evidence presented in state habeas proceedings and rejected by Respondent’s

experts and Judge Allen, who, it bears repeating, found Mr. Hill to have an IQ of

approximately 70 beyond a reasonable doubt.

Consistent with Judge Allen’s finding, Georgia law recognizes that IQ is a

measure of intelligence which “is only accurate within a range of several points,

and for a variety of reasons, a particular score may be less accurate.” Stripling v.

State, 261 Ga. 1, 4 (1991). For example, as the Georgia Supreme Court

acknowledged in Mr. Hill’s case, the IQ score of 77 which Dr. William Dickinson

2 The evidence showed that Mr. Hill has been functioning at a significantly subaverage

level since early childhood. Mr. Hill’s performance on a second grade Peabody Picture

Vocabulary Test (PPVT) placed him in the bottom 2% of test-takers. See Appendix 10 at 1371;

Appendix 11 at 976-77. His performance on an 8th

grade Iowa Test of Basic Skills placed him in

the bottom 3% of test-takers. Appendix 10 at 1381; Appendix 11 at 978. This performance is

consistent with mental retardation.

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originally obtained prior to Mr. Hill’s 1991 trial was an “inaccurate and misleading

result.” Turpin v. Hill, 269 Ga. 302, 302 n.1 (1998). Specifically, the WAIS-R test

Dr. Dickinson used was outdated3 and had significant scoring errors which inflated

the IQ score. As Dr. Dickinson testified, the corrected score fell within the range

of mild mental retardation. Appendix 14 at 1041-44.

Respondent’s reference to Mr. Hill’s performance on prison-administered

“Culture Fair” IQ tests, resulting in “IQ” scores of 92 and 96 (two of the scores

noted by Respondent in his pleading), are irrelevant and completely inappropriate

in diagnosing mental retardation. Dr. William Dickinson testified at Mr. Hill’s

trial that the Culture Fair test was “invalid,” that it was a twenty-minute do-it-

yourself test which might as well have been published in Ladies Home Journal. T.

1442-43. Dr. Dickinson testified that the Culture Fair was not useful as a clinical

instrument because it is normed against the prison population: “It’s a faulty

concept, because if you . . . went to a mental retardation center and standardized

the tests there, we would all be geniuses. It’s not useful.” Id. at T. 1443.

Additionally, Judge Allen in state habeas court heard the testimony of Dr.

Herbert Eber, who normed the Culture Fair against the Georgia prison population

3 See, e.g., Holladay v. Allen, 555 F.3d 1346, 1358 (11

th Cir. 2009) (acknowledging IQ

score inflation due to “Flynn effect” resulting from outdated normative data on WAIS tests).

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for use in Georgia DOC facilities, and who managed the Georgia Correctional

Diagnostic System from 1973 to 1991. Dr. Eber himself rejected the validity of

the Culture Fair test “for [the] purpose of diagnosing or ruling out mental

retardation.” Appendix 13 at 1024. Dr. Eber testified that the Culture Fair is an

untimed test, administered by a non-psychologist, which eliminates any assessment

of reading skills and is used to identify problem areas with respect to inmate

management as well as vocational aptitude, “but is not meant to yield a differential

diagnosis” or to diagnose mental retardation. Id. at 1023, 1025. Dr. Eber indicated

that, pursuant to clinical psychological practice and the DSM-IV, proper and

reliable tests of general intellectual functioning include tests such as the Stanford-

Binet, i.e., tests which are “individually administered by a properly trained and

certified psychologist.” Id. at 1025.

Even the Georgia Supreme Court has acknowledged that the Culture Fair IQ

test may not accurately reflect the actual IQ score of the test-taker. See Head v.

Stripling (Stripling II), 590 S.E.2d 122, 125 (Ga. 2003). In Stripling II, the Court

noted that at Stripling’s trial, the District Attorney had relied upon a prison-

administered Culture Fair IQ score of 111 to argue to the jury that Stripling’s IQ

was much higher than he claimed, and Stripling was found to be not mentally

retarded as a result. Id. However, prison files illegally withheld from Stripling

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showed that the Culture Fair IQ was probably inaccurate by as many as 40-45

points. Id. For these reasons, the Court remanded Stripling’s case to the trial court

for a new trial on mental retardation and sentencing. Id. at 129. Mr. Stripling

recently stipulated to a life without parole sentence.

More tellingly in this case, Mr. Hill’s Culture Fair scores were rejected by

both Mr. Hill’s and Respondent’s experts as having no bearing on the issue of

intellectual functioning. Dr. Jerry Brittain testified that he considered and rejected

the Culture Fair scores as indicative of any given level of intellectual functioning.

Appendix 34 at 331. He testified that the Culture Fair was inappropriate for a

medical or legal diagnosis and would not withstand a Daubert challenge. Id.

Respondent’s expert, Dr. Gary Carter, similarly dismissed the Culture Fair results

in favor of more appropriate measures of functioning, including the Peabody

Picture Vocabulary Test, the Stanford-Binet and the WAIS. Appendix 35 at 720-

21.

As for the score of 83 referenced by Respondent, this is a reference to Mr.

Hill’s score on a first grade Otis-Alpha group reading test. Appendix 10 at 1374-

75. The Otis-Alpha Short Form test, administered as part of the New

Developmental Reading Test and not a standardized individually administered test

of general intellectual functioning, is in no way a reliable correlate of IQ. In fact,

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neither Mr. Hill’s experts nor Respondent’s experts have had anything to say about

the Otis-Alpha because it has no discernible bearing on the mental retardation

issue.

Respondent’s claim that Mr. Hill’s composite score of 77 on the 8th grade

Iowa Test of Basic Skills (Appendix 10 at 1381) is indicative of a level of

functioning above the mentally retarded range is without merit. Again, no one

believes that these scores have any serious significance other than Respondent’s

counsel. Contrary to Respondent’s assertion, the composite standard score of 77

on the Iowa Test -- designated “SS” and not “IQ” -- is not an IQ correlate,

according to the test’s publisher, Riverside Publishing. Rather, it is a standard

score of academic achievement, reflecting what a student has learned in basic

school courses.

Again, Judge Allen properly disregarded the Iowa Test “IQ” score touted by

Respondent in finding that Mr. Hill met the IQ criterion for mental retardation:

The “gold standard” instruments for assessing intelligence in the

United States are the Wechsler (WAIS and WISC) and Stanford Binet

families of tests. Anything else is likely to be a “screening tool”

(intended to provide a rough measure of intelligence but not to be

relied upon for important decisions) or an alternative test chosen

either for ease of administration or to overcome a language or other

barrier. Such scores must always be viewed skeptically and never be

relied upon to rule out mental retardation. Recorded “IQ scores”

obtained, for example, during military service or in institutional

settings like schools, hospitals and detention facilities, often are not

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individually administered, but rather are group measures intended to

provide a rough assessment of intelligence.

James R. Patton, Ed.D et al., “A Practitioner’s Guide to Defending Capital Clients

Who Have Mental Retardation,” Cornell University (2006) at 8 n.2.

B. The State Experts Properly Found Support for their

Opinions that Mr. Hill’s Navy Service is Consistent with

Mild Mental Retardation.

Mr. Hill’s Navy performance directly comports with the testimony of his

former attorney Al Grieshaber, his superiors and colleagues in the Navy, and with

the testimony of Dr. Brittain and Dr. Stonefeld, both mental health experts with

extensive experience practicing in military and, particularly in the case of Dr.

Brittain, Navy contexts. None of the state experts had access to the live testimony

of Drs. Stonefeld and Brittain in making their original conclusions, and they

properly altered their perception of the role of Mr. Hill’s Navy experience having

been able to review that information.

The evidence shows that Mr. Hill performed adequately in the lower enlisted

ranks of the Navy, but could not advance further than a rank of E-5 despite two

occasions on which he was ostensibly recommended for advancement. Mr. Hill

moved up in rank from E-2 (AR) to E-5 (AO2 -- petty officer) between 1979 and

1982. See, e.g., Appendix 32 at 1415-21, 1432-33, 1454, 1460, 1462. Mr. Hill

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was recommended for advancement to the next rank and pay grade, E-6 (AO1), in

1982 and in 1983. See Appendix 32 at 1455, 1457. However, he was passed over

for promotion and never went beyond the rank of E-5. Id.

Respondent’s falsely alleges that Mr. Hill was not promoted due to the

murder of Myra Wright. However, Mr. Hill was passed over for promotion in

1982 and 1983 -- well before Mr. Hill was stationed back in Atlanta and before

Myra Wright’s death in 1985.

The fact that Mr. Hill received what on the surface appear to be glowing

evaluations (advanced by Respondent as evidence of Mr. Hill’s superior

functioning), yet was passed over both times for advancement to E-6, comports

exactly with the testimony of Capt. Hartsough, Chief O’Bryant, Dr. Duckworth

(see Appendix 31 at H.T. 801-17) and the mental health experts regarding the

significance of such evaluations at that time in the Navy. It also conforms

perfectly with Dr. Brittain’s explanation of Mr. Hill’s rapid decline in performance

after he returned to Atlanta:

[T]he factor that was unique in the transfer to shore base command

was that his promotion through the ranks had been with people that

had known him as an E-2 and an E-3 and an E-4 [and an E-5], and

probably knew that he was not the sharpest knife in the drawer and

could allow for his difficulties. He was in a new command with new

people that did not know his background. They walk in, they see a

crow on his sleeve, and they have expectations of a second class petty

10

officer. And I think that was what caused the big decline in the

performance.

Appendix 34 at 368-69.

C. The State Experts are Credible Because Clinical Assessment

of Mental Retardation has Evolved Towards a Greater

Understanding of the Range of Abilities of Which Mentally

Retarded Persons are Capable.

Respondent disparages the testimony of Drs. Sachy, Carter and Harris that

the clinical community’s understanding of mental retardation has advanced since

2000 so that it is possible to diagnose mild mental retardation in persons who

demonstrate strengths in certain abilities – contrary to prevalent stereotypes about

mentally retarded people. See, e.g., Motion to Dismiss at 34. Respondent further

claims that they do not identify the progress the clinical community has made in

this regard. Id. Respondent is wrong.

For example, consider Dr. Harris’s testimony that:

We in the clinical community now understand better that persons with

mild mental retardation are capable of such things as holding a job,

working under close supervision, buying and driving a car, and so

forth. It is precisely because significant deficits in cognition,

judgment, and impulse control can be masked by superficial

functionality in cases of mild mental retardation that such persons

may sometimes not be identified in court proceedings as being

intellectually disabled. I believe this has happened in Mr. Hill’s case.

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Appendix 2 at 10 (emphasis supplied). The State doctors are entirely correct in

identifying an evolution in clinical assessment of mental retardation which has

influenced the way they look at Mr. Hill’s case and caused them to be concerned

that Mr. Hill’s condition had been mistakenly classified in 2000 as borderline

intellectual functioning.

1. Evolution in the clinical assessment of mental

disorders, and mental retardation specifically, has

been recognized in the courts.

The Supreme Court has long recognized that the state of knowledge within

the clinical community is constantly progressing: “The only certain thing that can

be said about the present state of knowledge and therapy regarding mental disease

is that science has not reached finality of judgment.” Jones v. U.S., 463 U.S. 354,

365 (1983). Since the time of Mr. Hill’s state habeas corpus hearing in 2000,

moreover, courts have recognized progress and change in the understanding and

assessment of mental retardation:

The psychological community’s understanding of mental retardation

is evolving. The few short years since the Atkins decision has seen

change in the definition of mental retardation, renovation of the name

of the most prominent advocacy organization, and even abandonment

of the very term mental retardation. Adoption of the phrase

“intellectual disability” is only the most-recent terminology in the

psychological community's developing understanding of mental

retardation.

12

U.S. v. Bourgeois, 2011 WL 1930684 (S.D.Tex. 2011) at 24 n.29 (emphasis

supplied). The Bourgeois court quoted at length from the 10th

(2002) edition of the

Mental Retardation Handbook4 published by the American Association on

Intellectual and Developmental Disabilities (AAIDD) (formerly the American

Association on Mental Retardation – AAMR), the leading authority on the

definition and assessment of mental retardation:

The field of mental retardation is currently in a state of flux regarding

not just a fuller understanding of the condition of mental retardation,

but also the language and process used in naming, defining, and

classifying. For example, we are in the midst of discussions about the

nature of intelligence; the relationship between intelligence; the

implementation of the supports paradigm; the best way to

conceptualize disabling conditions; the impact of consumer and

reform movements; and the effects of terminology upon individual

lives.

This state of flux is both frustrating and challenging. It is frustrating

because it prohibits one from relying on past language, definitions,

and models of mental retardation that can be a source of stability and

permanence to some. However, the state is also challenging, as it

provides the opportunity to incorporate the current and evolving

understanding of the condition of mental retardation and the factors

that influence the lives of people in their societies. Whether perceived

from a positivistic or social perspective, the condition of mental

retardation is being thought of differently today throughout the world.

4 Mental Retardation: Definition, Classification, and Systems of Supports, (10

th ed.)

AAMR (2002) (hereinafter “2002 AAMR Handbook”).

13

Bourgeois, 2011 WL 1930684 at 24 n.29 (emphases supplied) (quoting 2002

AAMR Handbook at xii).5

2. The clinical community’s expanded understanding of

mental retardation since Atkins has developed as

concerns have grown about underrecognition of the

syndrome in the courts.

In the 2002 Atkins decision, the Supreme Court categorically banned the

execution of mentally retarded persons because the characteristics of the syndrome

undermine procedural protections against wrongful execution of insufficiently

morally culpable defendants, in part because the system may not recognize their

impairments.6 However, since Mr. Hill’s hearing in 2000, concerns about

5 See also Harvey Switzky and Stephen Greenspan, “What Is Mental Retardation? Ideas

for an Evolving Disability in the 21st Century,” (2006) – Chapter 1: Forty-Four Years of AAMR

Manuals (documenting the evolution in the AAMR/AAIDD’s approach to the definition and

assessment of mental retardation).

6 The Court stated:

Mentally retarded persons frequently know the difference between right and

wrong and are competent to stand trial. Because of their impairments, however,

by definition they have diminished capacities to understand and process

information, to communicate, to abstract from mistakes and learn from

experience, to engage in logical reasoning, to control impulses, and to understand

the reactions of others....

The risk ‘that the death penalty will be imposed in spite of factors which may call

for a less severe penalty,’ is enhanced, not only by the possibility of false

confessions, but also by the lesser ability of mentally retarded defendants to make

a persuasive showing of mitigation in the face of prosecutorial evidence of one or

more aggravating factors. Mentally retarded defendants may be less able to give

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continuing under-identification of the syndrome have grown as courts and even

experts have failed to identify mental retardation even where evidence

overwhelmingly suggests it:

[S]ince Atkins, numerous courts have dismissed mental retardation

claims, finding no adaptive behavior limitations, without mentioning

the alleged deficits or balancing them against the alleged strengths-

relying, rather, entirely upon alleged adaptive abilities.

The consequence is that some courts, failing to engage in the careful

and thorough analysis called for by the various definitions of mental

retardation, resort to stereotype. Stereotyping has long been a

problem with regard to mental retardation.

John Blume et al., Of Atkins and Men – Deviations from Clinical Definitions of

Mental Retardation, 18 Cornell J. L. & Pub. Pol’y 689, 707 (2009).

Even mental health experts can frequently fall into the habit of stereotyping,

as happened with the state doctors in Mr. Hill’s case. For example, a study showed

that in virtually identical mental retardation cases, courts ruled in diametrically

opposite ways based solely on one case’s experts’ apparent lack of familiarity with

meaningful assistance to their counsel and are typically poor witnesses, and their

demeanor may create an unwarranted impression of lack of remorse for their

crimes.... Mentally retarded defendants in the aggregate face a special risk of

wrongful execution.”

Atkins, 536 U.S. at 318, 320-21 (emphasis supplied) (citations omitted).

15

the criteria for mental retardation. See Dennis R. Olvera et al., Mental Retardation

and Sentences for Murder: Comparison of Two Recent Court Cases, 38 Mental

Retardation 228, 231 (2000) (discussing a specific case in which experts, some of

whom were testifying for the state and others of whom were appointed by the

court, “showed little or no knowledge of what mental retardation is or what its

effects on a person might be”). In the cases compared:

[t]he different outcomes depended ... almost entirely on the quality

and thoroughness of the psychiatric evaluation performed on each

defendant. But the authors also observed that in the case that did not

yield a finding of mental retardation, the court and expert witnesses

appeared to hold a number of stereotypes about mentally retarded

individuals: namely, that mental retardation is the same as mental

illness, and that “people with mental retardation have vastly lower

abilities than do their age peers without mental retardation.”

Note, Implementing Atkins, 116 Harv. L. Rev. 2565, 2579 (June 2003) (quoting

Olvera et al., supra).

Importantly for Mr. Hill’s case, the Eleventh Circuit found in similar

circumstances in Holladay v. Allen, 555 F.3d 1346 (11th Cir. 2009) that the state

expert had erroneously found the defendant not mentally retarded because she

over-emphasized his strengths and discounted his deficits in adaptive skills.

Specifically, she found that his vocabulary, job and self-care skills seemed too

advanced for a mentally retarded person, and pointed to inconsistencies in his

16

answers to questions during IQ testing. Id. at 1352, 1360. Just as the state doctors

in Mr. Hill’s case counted his frequent “I don’t know” responses against him, so

did the state doctor in Holladay. Id. at 1355. Finally, just as in Mr. Hill’s case,7

because the state doctor felt that Holladay did not seem “obvious[ly] ... mentally

retarded,” she discounted his IQ scores which hovered around 70 and decided not

to give a full IQ test herself. Id. at 1357. The district court judge and the Eleventh

Circuit concluded that the state doctor was not credible in rejecting a diagnosis of

mental retardation:

Individuals with mental retardation have strengths and weaknesses,

like all individuals. Indeed, the criteria for diagnosis recognizes this

by requiring a showing of deficits in only two of ten identified areas

of adaptive functioning. Dr. Ackerson’s predominant focus on

Holladay’s actions surrounding the crime suggests that she did not

recognize this.

Id. at 1363.

The 10th

edition of the AAIDD Handbook (2002) reflected changes in

clinical asessment which reflected concerns about under-identification of mental

7 In Mr. Hill’s case, for example, Dr. Carter originally testified that Mr. Hill did not strike

him as someone who fit the profile of a mentally retarded person: “The example I use in cases

like this is the character Benny in L.A. Law, who is portrayed as mentally retarded. He doesn't

drive a car. I’m drawing a profile of someone that would have more severe levels of, adaptive

levels of functioning, really needs help to get by, he can’t drive a car, has to rely on public

transportation and probably had to have training to learn to use that public transportation, doesn't

really have the ability to learn new information and process it at a level that allows them to go

on.” Appendix 35 at 705-06.

17

retardation. It deemphasized the role of IQ in determining mental retardation and

focused heavily on the interplay of strengths and weaknesses within the syndrome

in an effort to refine clinical assessment:

Within an individual, limitations often coexist with strengths. This

means that people with mental retardation are complex human beings

who likely have certain gifts as well as limitations. Like all people,

they often do some things better than other things. Individuals may

have capabilities and strengths that are independent of their mental

retardation. These may include strengths in social or physical

capabilities, strengths in some adaptive skill areas, or strengths in one

aspect of an adaptive skill in which they otherwise show an overall

limitation....

[M]ental retardation is not something you have, like blue eyes or a

bad heart. Nor is it something you are, like being short or thin. It is

not a medical disorder, although it may be coded in a medical

classification of diseases; nor is it a mental disorder, although it may

be coded in a classification of psychiatric disorders. Mental

retardation refers to a particular state of functioning that begins in

childhood, is multidimensional, and is affected positively by

individualized supports....

[A] comprehensive and correct understanding of the condition of

mental retardation requires a multidimensional and ecological

approach that reflects the interaction of the individual and his or her

environment, and the person- referenced outcomes of that interaction

related to independence, relationships, contributions, school and

community participation, and personal well-being.

2002 AAMR Handbook at 8, 48. “Knowing and applying these principles is

critical to avoid the stereotyping that has historically led to misunderstandings of

18

the adaptive abilities of individuals with mental retardation.” Blume et al., Of

Atkins and Men, supra, at 707.

3. Consistent with the state doctors’ affidavit testimony,

the most recent edition of the User Guide to the

AAIDD Handbook (11th

ed. 2011) for the first time

explicitly warns clinicians to avoid assuming

malingering, over-emphasizing a defendant’s

strengths, and discounting weaknesses in forensic

evaluations for mental retardation.

The affidavit testimony of Drs. Sachy, Harris and Carter is directly

corroborated by the User Guide to the most recent edition of the AAIDD

Handbook (11th

ed. 2011). There, the AAIDD for the first time explicitly

addressed guidelines to clinicians evaluating for mental retardation in the forensic

context. The guidelines state:

Standardized assessment instruments used to inform the clinician

whether the person is putting forth his or her best effort (i.e.,

malingering) have not, for the most part, been normed for persons

with ID (Mac Vaugh & Cunningham, 2009). In addition, recent

studies have documented unacceptable error rates (i.e., false positive

for malingering) when used with persons with IQ scores from 50 to 78

(Dean et al., 2008; Hurley & Deal, 2006). Thus, the assessment of

“faking bad” with individuals with low IQs (i.e., below 70) should be

conducted with great prudence when relying on standardized

19

measures that are not strictly nonned or validated with persons being

assessed for ID....8

Stereotypes are not unique to persons with ID. Indeed, most

individuals or groups who are perceived as different on some basis are

stereotyped based on the perceiver's mental model or image of such

persons or groups. In reference to persons with ID, historical

terminology contributes to stereotyping as reflected in such terms as

idiot, imbecile, or moron. Physical appearance can also contribute to

stereotypes as reflected in the statement that “if you don't have the

look (as in Down syndrome) then [the person) is not intellectually

disabled.” It should be noted that the vast majority of persons with an

ID have no dysmorphic feature and generally walk and talk like

persons without an ID.

Regardless of their origin, a number of incorrect stereotypes can

interfere with justice. These incorrect stereotypes must be dispelled:

• Persons with ID look and talk differently from persons from the

general population

• Persons with ID are completely incompetent and dangerous

• Persons with ID cannot do complex tasks

• Persons with ID cannot get driver's licenses, buy cars, or drive

cars

8 According to Dr. Carter, the “overriding thing” about Mr. Hill’s behavior during the

state evaluation was his perceived uncooperativeness, which persuaded the state doctors that he

was likely malingering. Appendix 35 at 695. However, recent scientific literature about

malingering establishes that reliance on behaviors such as “[l]imited or inconsistent memory

recall, irritability and lack of cooperation, poor test performance and concentration, and delayed

symptom onset” has led to “a substantial number of false-positive [malingering] attributions.”

Sanford Drob, PhD, et al., “Clinical and Conceptual Problems in the Attribution of Malingering

in Forensic Evaluations,” 37 J Am Acad Psychiatry Law 98, 102 (2009) (cited by Dr. Sachy in

Appendix 1).

20

• Persons with ID do not (and cannot) support their families

• Persons with ID cannot romantically love or be romantically

loved

• Persons with ID cannot acquire vocational and social skills

necessary for independent living

• Persons with ID are characterized only by limitations and do

not have strengths that occur concomitantly with the limitations

User Guide to the AAIDD Handbook on Intellectual Disabilities (2011), Chapter 3,

“Fostering Justice When Dealing With Forensic Issues.”

The testimony of Drs. Sachy, Harris and Carter is thus perfectly credible and

prove that Mr. Hill is mentally retarded beyond a reasonable doubt. His execution

would be a miscarriage of justice, in violation of the Eighth and Fourteenth

Amendments and Atkins v. Virginia, 536 U.S. 304 (2002). Relief is warranted.

This 18th

day of February, 2013.

Respectfully submitted,

__________________________

Brian Kammer (Ga. 406322)

Georgia Resource Center

303 Elizabeth Street, NE

Atlanta, GA 30307

404-222-9202

COUNSEL FOR MR. HILL

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

WARREN LEE HILL, JR., )

Petitioner, )

vs. ) Habeas Corpus

) Case No. 2013-V-111

CARL HUMPHREY, Warden, )

Georgia Diagnostic Prison, )

Respondent. )

CERTIFICATE OF SERVICE

This is to certify that I have served a copy of the foregoing document this

day by electronic transmission and U.S. Mail, on counsel for Respondent at the

following address:

Beth Burton, Esq.

Senior Assistant Attorney General

132 State Judicial Building

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

This the 18th day of February, 2013.

_______________________

Attorney