Robert Wayne Holsey’s attorney during his capital trial was an alcoholic who admitted to drinking up to a quart of vodka every night while he was representing Holsey at trial. While the trial was going on, the lawyer was also facing a lawsuit from a client he had taken over $116,000 from. Eventually, the attorney lost his law license and was sentenced to three years in prison over the dispute with this client. During the period when he was preparing for Holsey’s trial, the attorney got into an argument with his neighbors that culminated in him threatening them with a gun while screaming “N*gger, get the fuck out of my yard or I’ll shoot your black ass.” Holsey is African American.
In 2006, perhaps due to the shambles the lawyer’s life was rapidly descending into, a Georgia state judge determined that Holsey’s attorney “failed to prepare and present any meaningful mitigation evidence as a defense to the death penalty” during the phase of Holsey’s trial that determined that he would be sentenced to die. Perhaps most damningly of all, the attorney “advised the trial judge at a pre-trial hearing that I.Q. and mental retardation were not going to be issues at trial.” A Georgia law provides that a defendant may be found “guilty but mentally retarded,” and that capital defendants who receive this verdict cannot be executed. Several years after Holsey’s conviction, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.” (The term “mentally retarded,” though widely viewed as offensive today, used to be the clinical term for the disability now known as “intellectually disability.”)
The attorney’s failure to introduce evidence that could have spared Holsey from a death sentence is expected to be addressed at a last-minute clemency hearing that takes place on Monday. Holsey’s best path to escape execution, however, most likely stems from the fact that, as someone who is probably intellectually disabled, he should be ineligible for the death penalty.
There is significant evidence showing that Holsey is intellectually disabled. Several experts testified in subsequent proceedings, where Holsey was represented by different counsel, that Holsey has “significantly subaverage intellectual functioning with an IQ of approximately 70,” according to Holsey’s current attorneys. An IQ of 70 or less is one of the standards clinical psychologists use to measure intellectual disability. Yet Holsey is scheduled for execution on Tuesday and, unless a court or a clemency board rethinks a state law that hobbles the constitutional ban on executing the intellectually disabled in Georgia, Holsey’s execution is likely to proceed.
Although Georgia law does permit intellectually disabled inmates to argue that they are ineligible for execution, the state supreme court reads the state’s law to only permit such inmates to win this argument if they are “found beyond a reasonable doubt to be retarded.” The “beyond a reasonable doubt” standard is an extraordinarily high evidentiary burden — it is the standard prosecutors must overcome in order to obtain convictions because our Constitution requires the state to overcome a high burden before denying anyone of life or liberty — and it is not typically imposed on people who have themselves been accused of a crime. Indeed, Holsey’s lawyers argue that Georgia’s decision to impose this burden on intellectually disabled inmates is “unique” among the states.
Applying this rigid standard, the state judiciary has thus far refused to grant Holsey relief from his death sentence. Until recently, moreover, it appeared that they were free to do so. Although the Supreme Court ostensibly forbade executions of the intellectually disabled in its 2002 decision in Atkins v. Virginia, that opinion contained a significant loophole. Atkins, left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” As a result, it appeared that Georgia might have the authority to place a burden on intellectually disabled inmates that many of them would not be able to overcome.
Earlier this year, however, in a case called Hall v. Florida, the Court began to close this loophole. Hall recognized that “[i]f the States were to have complete autonomy to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity.” Though “the States play a critical role in advancing protections and providing the Court with information that contributes to an understanding of how intellectual disability should be measured and assessed,” they do not have “unfettered discretion to define the full scope of the constitutional protection.”
This language in Hall suggests that the Supreme Court has grown frustrated with state laws that create too many barriers between intellectually disabled inmates and their constitutional rights. The most important question in Holsey’s case, however, is likely to be whether the justices’ frustration extends to Georgia — or, alternatively, whether the Georgia courts are willing to preempt this question by eliminating the requirement that Holsey prove his case beyond a reasonable doubt.
In a single-page order handed down on Tuesday, the Georgia Supreme Court denied relief to Holsey without explanation. Justices Robert Benham and Carol W. Hunstein, the two most senior members of the court, dissented from the 5-2 order. The question of whether Holsey will live or die now rests in the hands of the United States Supreme Court.