by Jeremy Leaming
Unless the U.S. Supreme Court steps in to uphold its precedent on the death penalty, Texas and Georgia will execute two men who are mentally disabled.
Although several states over the last five years have abolished capital punishment, others such as Texas and Georgia remain seemingly oblivious to Supreme Court precedent or obstinately opposed to providing those on death row a proper hearing.
In Texas, the nation’s most ruthless proponent of capital punishment, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has flat out refused to follow the Supreme Court’s March 2012 Martinez v. Ryan opinion, which 
cleared the way for federal courts to review some post-conviction habeas reviews raising ineffective counsel claims.
Yokamon Hearn convicted and sentenced to death for kidnapping and murdering a man in Dallas was not competently represented at trial or at post-conviction proceedings. As the Texas Defender Service notes, Hearn’s trial attorneys failed to uncover and reveal at trial a slew of mitigating circumstances, such as the fact that he suffered from brain damage. During his appeals, Hearn’s new attorney’s also failed to raise the mitigating circumstances.
Even after the high court’s opinion in Martinez, the Fifth Circuit panel, in what the Atlantic’s Andrew Cohen details as a rather strained opinion found a way to shut down any further review of mitigating factors in Hearn’s case. The court, “the most stridently conservative federal appeals court in the nation” found a way “to avoid giving Hearn the relief to which he is entitled,” Cohen wrote.
Texas Defender Service Executive Director Kathryn M. Kase notes that the full Fifth Circuit has been asked to review the panel decision, but because of the Circuit’s “history of flouting” Supreme Court rulings fears that Hearn will be executed on July 18, unless the Supreme Court intervenes.
In the Georgia case, which Cohen also covers, Warren Hill is facing the death penalty even though, as Cohen notes, a veteran Georgia state judge has said Hill is mentally disabled.
Again, Supreme Court precedent is in play.