New motion filed seeking resentencing

The request cites a similar case in which double jeopardy was a key issue.
By ED RUNYAN
VINDICATOR TRUMBULL STAFF
WARREN -- The public defender has filed a new motion in the post-conviction case of Danny Lee Hill of Warren, this time requesting resentencing to avoid Hill's being subject to double jeopardy.
The motion, filed by the Ohio Public Defender's Office in Trumbull County Common Pleas Court, says a federal ruling in a case called Bies vs. Bagley from Nov. 23 has an impact on the case against Hill.
Thomas P. Curran, a visiting judge from Cuyahoga County hearing the Hill case, is expected to rule this month on whether Hill's death sentence should be revoked because of a 2002 Supreme Court ruling that execution of the retarded is cruel and unusual punishment.
Hill was sentenced to death in 1986, convicted in common pleas court of the 1985 murder of Raymond Fife, 12, who was raped and tortured. A co-defendant, Timothy Combs, was a juvenile then and is serving consecutive life terms in prison. Hill is at Mansfield Correctional Institution.
The motion says Judge Curran should adopt the reasoning set forth by Magistrate Judge Michael R. Merz in the Southern District Western Division Court in Dayton in a case of another murder defendant. The ruling there was that the defendant's death sentence should be removed and he should be resentenced.
The motion says that case is "equal in all central respects" to Hill's case. "Judge Merz blocked further proceedings" to determine whether that defendant should be executed because "like here, the state trial court errantly overruled Bies' double jeopardy argument."
The motion says Trumbull County Common Pleas Court "should correct its own error" and determine that Hill is a mentally retarded person who is entitled to be excluded from the death penalty.
Judge Curran rejected double jeopardy arguments in an entry from March 19, 2004.
"In light of Bies, Hill renews his motion and asks this court to rescind its earlier decision and issue a final order," the motion states.
Double jeopardy argument
The motion says different evaluations of Hill showed his I.Q. to be between 55 and 68 and that his intelligence level fluctuates between mildly retarded and borderline intellectual functioning.
The motion says Hill is being subjected to double jeopardy because his defense "long ago proved" he is mentally retarded and that the state is barred from any attempt to relitigate that question.
The motion says this principle of double jeopardy is spelled out in the Fifth Amendment to the Constitution stating that, "When an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot be litigated again between the same parties in a future lawsuit."
The motion concludes that "To require [Hill] to once again prove he is a person with mental retardation would be a needless exercise that would do little more than give [the prosecution] an unfair opportunity to fish around" for an expert willing to deny Hill's mental retardation.
LuWayne Annos, assistant Trumbull County prosecutor, said the prosecutor's office by agreement with Judge Curran will file a written response to this latest filing by Dec. 16.
runyan@vindy.com