People For the American Way

Trump Judges Cast Deciding Votes to Reverse Panel Decision and Reinstate Death Penalty Against Intellectually Disabled Black Man: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judges Cast Deciding Votes to Reverse Panel Decision and Reinstate Death Penalty Against Intellectually Disabled Black Man: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.


Trump Sixth Circuit judges Amul Thapar, John Bush, Joan Larsen, John Nalbandian, and Chad Readler cast deciding votes in a 9-7 full court decision that reversed a ruling by a three-judge panel and reinstated a death sentence imposed on an intellectually disabled Black man when he was 19. The August 2021 decision was in Hill v Shoop.

Danny Hill, a Black man, was sentenced to death for a killing in 1986 and has been on death row since he was 19.  When he was sentenced to death, there was no question that he was intellectually disabled; his IQ “ranged from 55 to 68,” his “moral development” was “essentially that” of a “two-year old,” he could “barely read or write” at age 15 and was determined to have “deficits in adaptive behavior,” and has been “unable to take care of his hygiene independently from a young age.” Three experts at the time concluded that he was intellectually disabled. The Ohio Supreme Court recognized his intellectual disability when his death sentence was originally appealed, but affirmed the sentence since such disability at the time was “only a point in his favor” with respect to sentencing.

In the Atkins case in 2002, the Supreme Court ruled that it violated the Eighth Amendment to execute intellectually disabled individuals, a decision that applies both to future cases and those as to which an appeal was still pending, like Hill’s.  By then, Hill had been diagnosed as intellectually disabled “approximately ten times over the course of his life,” and the Sixth Circuit directed the Ohio courts to apply Atkins to Hill’s case. Despite their past decisions, however, the Ohio courts ruled this time that Hill was not intellectually disabled based on conflicting expert testimony in 2006.

Lawyers for Hill then filed a petition for post-conviction relief in federal court.  In 2020, a Sixth Circuit panel unanimously vacated his death sentence and ruled that both the state courts and a lower federal court were wrong to dismiss Hill’ claim. Based on the extensive record, the court explained, no one “could reasonably deny” that Hill was intellectually disabled. The previous courts and the two experts clearly “veered off track” when they focused only on Hill’s behavior after his arrest and conviction and on death row, the panel went on, since they have “segregated, highly structured and regulated” environments that can mask a prisoner’s lack of functional capacities. Based on the full record, the panel concluded, there is “no getting around” Hill’s intellectual disability, and to “deny the obvious is unreasonable.”

The full Sixth Circuit then reheard the case, and in a 9-7 decision in which all five Trump judges who participated joined the majority, the court vacated the panel’s ruling and reinstated the death penalty against Hill. Under federal law, the majority explained, Hill could prevail only if the state court decision against him was “contrary to, or involved an unreasonable application of, clearly established” law and precedent, or if it was based on an “unreasonable determination of the facts in light of the evidence presented” in the state court proceeding. According to the majority, this case “does not meet either” criterion. It was not “unreasonable” for the state court to have paid little attention to Hill’s history and to focus on the testimony of the experts who evaluated him later after his conviction, two of three of whom concluded he was not intellectually disabled, since such disability is not “transient” and the “outcome should not change” if the court relies on a later evaluation]” as in this case. Based primarily on the recent expert testimony, the majority ruled that the Ohio courts had “reasonably concluded” that Hill “is not intellectually disabled” and ruled against him.

Judge Karen Nelson Moore wrote a strong dissent on behalf of seven judges. Based on proper application of Supreme Court and Sixth Circuit precedent, she explained, the key question was whether the state court decisions denying relief to Hill “amount to an unreasonable application of Atkins,” or there is “clear and convincing evidence that the state courts’ findings amounted to an unreasonable determination of the facts.” And the Sixth Circuit has made clear, she went on, that the “refusal to consider” adequately “past evidence of intellectual disability” in a case like this one contradicts “clearly established Supreme Court precedent.”

“No person looking at this record” based on these precedents, Moore continued, “could reasonably deny that Hill is intellectually disabled under Atkins.”  The Ohio courts’ contrary conclusion, she wrote, failed to give the required “serious consideration” to the overwhelming past evidence and amounted to “an unreasonable determination of the facts” and an “unreasonable application” of Atkins, clearly warranting relief for Hill. The majority, she went on, erroneously “refuses to acknowledge” the “failures, omissions, and misrepresentations” of the Ohio courts, including the “short shrift” given to the past record and Ohio courts’ own findings concerning Hill’s disability, and the testimony of “unreliable experts” who also “ignored” past evidence and relied instead on “testimony of prison officials” and related evidence concerning Hill’s behavior in the artificial “prison environment.” Moore concluded that “[n]o fairminded jurist could find their factual determinations to be reasonable.” The facts and the law are “overwhelming,” Moore concluded, and the decision to reverse his death sentence should have been sustained.

Instead, because of the deciding votes of five Trump judges, Danny Hill, an intellectually disabled Black man, will be executed by the state, in violation of the constitution. The case is another reminder, as part of our fight for our courts, of the importance of Senate confirmation of fair-minded nominees of President Biden who can help counteract the troubling votes of Trump judges.



Amul Thapar, Chad Readler, Confirmed Judges Confirmed Fears, death penalty, Joan Larsen, John Bush, John Nalbandian, people with disabilities, Sixth Circuit Court of Appeals