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A Death Row Inmate Fights State Secrecy

Convicted murderer Warren Hill’s last chance to avoid execution now lies with the U.S. Supreme Court.

Hill received a temporary stay of execution on July 15—a few hours before he was scheduled to be put to death—when his lawyer filed a motion challenging a new Georgia law known as the Lethal Injection Secrecy Act.


Warren Hill

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 has no way of knowing if the chemicals are contaminated or will even work, so they could violate Hill’s Eighth Amendment right against cruel and unusual punishment.

Hill’s execution was rescheduled for July 19, the day after Fulton County Superior Court Judge Gail Tusan was to rule on the motion.

Larry Sasich, a doctor who testified for Hill, said during a hearing that he would “bet his life” that the drug was not compounded with acceptable U.S. standards, and 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 said that, even if the  the drugs were contaminated, Hill would not feel any pain.

However, Judge Tusan indefinitely extended Hill’s stay of execution on July 18 and ruled that the new secrecy act was “unconstitutionally broad.” 

Hill’s death warrant expired before the state could file its appeal.

“It’s not even necessarily about pentobarbital; it’s about where the ingredients are coming from,” 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.”

Knowing only that the drugs are coming from an out-of-state pharmacy without knowing where 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 of Judge Tusan’s ruling—filed with the Georgia Supreme Court on July 26 —will do just that. 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 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 state 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.”