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Birmingham Attorney Richard Jaffe Comments on Executions of the Retarded

By Brandon Moseley
Alabama Political Reporter

‘The Alabama Political Reporter’ recently discussed the status of the death penalty with attorney Richard Jaffe. Jaffe is one of Alabama’s leading criminal defense attorneys, particularly in death penalty cases.

Mr. Jaffe said that in the 2002 case of Atkins versus the State of Virginia the U.S. Supreme Court has banned the executions of prisoners who are “mentally retarded” as ‘cruel and unusual punishment’ in a 6-3 decison.

The state of Georgia is currently grappling with this ruling in the case of Warren Hill. Hill (52) while serving a life sentence for murdering his girlfriend, Myra Wright, killed a fellow prisoner, Joseph Handspike in 1990. The Georgia court system sentenced Hill to death for his second slaying. He was put on death row for killing a fellow prisoner, Joseph Handspike, in 1990, when he was already serving a life sentence for murdering his girlfriend, Myra Wright.

Hill has a 70 IQ, which is lower than 97% of the American population. A late 1980s Georgia law made executing the retarded illegal prior to the Atkins v. Va. Case. However under the Georgia law mental incapacity has to be proven “beyond a reasonable doubt.” In most states the standard is “based on a preponderance of the evidence” standard. The state of Georgia is arguing that since Hill’s can’t prove “beyond a reasonable doubt” that Hill is retarded, the state should go ahead and carry out the execution.

Mr. Jaffe said, “I don’t think there is any doubt that the Georgia law is plainly unconstitutional and unreasonable.” Jaffe said that the Georgia standard puts an unreasonable burden of proof upon the defendant. In Hill’s case the Georgia State Supreme Court put a stay on his execution just 90 minutes before he was slated to die by lethal injection in July. His status is still uncertain.

‘The Alabama Political Reporter’ asked Jaffe how an attorney would prove mental incapacity in a capital case. Mr. Jaffe said that to start with the defense has to show that the defendant’s IQ was below 70 before the age of 18. The defense would subpoena school records which would include IQ measurements. The defense also has to show that the defendant has had problems functioning in society post age 18. A specialist is required. The defense also does interviews with family and friends to attempt to prove that the defendant has had.

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‘The Alabama Political Reporter’ asked if it was possible to ‘fake’ lack of mental capacity to avoid the death penalty. Mr. Jaffe said that all of the elaborate testing you take to show mental incapacity can’t be faked. If someone competent is giving the test the fraud would be exposed. Also all the testing results from K-12 education would expose the lie.

‘The Alabama Political Reporter’ asked: Why is it cruel and unusual to execute the mentally disabled, but it is just fine to execute somebody who is healthy and has average intelligence? Mr. Jaffe said, “If you look at jurisprudence as it has developed over the years evolving standards of decency found in Atkins it was cruel and unusual punishment,” to execute someone who is retarded. The U.S. Supreme Court case: Roper versus Simmons found that it was cruel and unusual punishment to execute juveniles. In the case of Miller versus Alabama the court found that even a mandatory sentence of life without parole for a juvenile defendant was cruel and unusual punishment. Jaffe said that as standards of decency changes the death penalty itself will likely be thrown out by the courts as ‘cruel and unusual punishment. Mr. Jaffe said, “In my opinion it is only a matter of time,” before the courts reject the death penalty in all circumstances.


Richard Jaffe is the author of ‘Quest for Justice: Defending the Damned.’ Jaffe said his book is about wrongly accused people being convicted and sentenced to death. It is also a book about the death penalty. “Most people who read it say that they can’t put it down. The book reads like fiction, but it is all true.” Jaffe is the only American lawyer to have served as lead trial counsel in three exonerations of previously convicted death row inmates. The book can be found at Barnes & Nobles, Amazon, Books a Million, and is available in hard copy or as an e-book.

To learn more about Jaffe’s book visit the website:

Brandon Moseley is a former reporter at the Alabama Political Reporter.

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