Warren Hill's attorney, Brian Kammer, argues July 18 in Fulton County Superior Court. [David Schick]
The state Attorney General’s office filed an appeal with the Georgia Supreme Court on Friday asking it to overrule convicted murderer Warren Hill’s indefinite stay of execution.
Judge Gail Tusan, who extended the stay of execution on July 18, ruled that a new Georgia law—The Lethal Injection Secrecy Act— was “unconstitutionally broad.” Hill’s death warrant expired July 19, before the state filed its appeal.
The law keeps the public, as well as the state’s judiciary, from knowing where the drugs used in executions come from by classifying them as a state secret. Hill’s attorney, Brian Kammer, argued that Hill’s lack of access to the information and the potential contamination of these drugs could result in them not working effectively, causing him unjust harm and therefore violating Hill’s Eighth Amendment right against cruel and unusual punishment.
Larry Sasich, a doctor who testified for Hill, said he would “bet his life” that the drug was not compounded with acceptable U.S. standards and that there was a great possibility of cross-contamination, putting Hill at risk of the drugs not working effectively.
The state offered up Jacqueline Martin, deputy chief medical examiner for the Georgia Bureau of Investigation, to refute these claims. She says that even if the plaintiff’s claims were true and the drugs were contaminated, Hill would not feel any pain.
“It’s not even necessarily about pentobarbital, it’s about where the ingredients are coming from,” Hill’s attorney, Brian Kammer, said after the ruling.
“Because we were prevented from knowing exactly what compounding pharmacy is manufacturing the drug, where the active ingredients were manufactured, we were basically in the dark and disarmed in terms of making out a claim for relief under the eighth amendment," Kammer said.
Knowing only that the drugs are coming from an out-of-state pharmacy without knowing who they’re coming from “does not inspire confidence” he added.
“Most laws that classify certain information as a state secret allow for declassification and for judicial scrutiny of that information to decide whether, in certain circumstance, it can be disclosed,” he said. “What [the judge] is saying is that these claims deserve time to think about more to have, perhaps, some more argument or briefing."
The state's appeal will do just that. “It does not and has not prevented Hill from challenging the lethal injection protocol, or from obtaining information on the drug’s purity and its sterility," the appeal says. "...The remaining information he seeks in order to challenge the use of the drug—the qualifications of the pharmacy and its agents... are irrelevant.”
The drugs the state obtained from anonymous out-of-state compounding pharmacies to use in Hill’s execution will expire in early August, according to Kammer. He doesn’t think it is likely that the state will issue a new death warrant before his pending appeal to the U.S. Supreme Court to admit new evidence of Hill's mental retardation in courts evidence, which is on the docket for Sept. 30.
Hill, who was serving a life-sentence for killing his girlfriend, ended up on death row for the murder of a fellow inmate in 1990. At the time of his conviction, three state psychologists who examined Hill all said he did not meet the requirement for mental retardation. All three have since recanted.
The U.S. Supreme Court ruled in 2002 that it was unconstitutional for states to execute the mentally retarded.
The Attorney General's appeal also notes: “The State does not yet know if, and where, it will acquire the next supply of pentobarbital for use in this execution. Thus, the State must secure another execution order from the sentencing court and obtain a new supply of pentobarbital in order to reschedule Hill's execution. Hill is under no threat of immediate execution.”
From now until the U.S. Supreme Court considers making his stay of execution permanent, it looks like Hill will be able to rest easy.