ATLANTA— The Georgia Supreme Court said today it has agreed to hear the state's appeal of a lower court's order that halted the execution of a death row inmate last month.
Fulton County Superior Court Judge Gail Tusan issued a stay of execution July 18 for Warren Lee Hill to give the court time to review a challenge to a new state law that bars the release of information about where Georgia obtains its execution drug.
The law classifies certain information about executions, including the source of the drug, as a "confidential state secret." Hill's lawyers say it's unconstitutional. State attorneys have said the law is constitutional and necessary to discourage retaliation against those who take part in executions.
Hill was sentenced to death for the 1990 beating death of fellow inmate Joseph Handspike. Hill bludgeoned Handspike with a nail-studded board while his victim slept, authorities have said. At the time, Hill was already serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.
Hill has been scheduled for execution multiple times, but each time his death has been halted by courts wishing to further consider legal challenges. Most recently, he was set to be executed July 19.
Georgia uses the drug pentobarbital to carry out executions, but its supply of the drug expired in March. Pentobarbital has become increasingly difficult for states to obtain because its manufacturer has said it doesn't want the drug used for executions.
The state Department of Corrections confirmed last month that it planned to obtain the drug for executions from a compounding pharmacy, but it declined to release additional information, citing the law passed this year.
When Tusan halted the execution, she wrote, "neither the Plaintiff, nor the general public, has sufficient information with which to measure the safety of the drug that would be used to execute Plaintiff, as there is insufficient information regarding how it was compounded."
The high court has asked the two sides to address four questions:
— Is the case moot because the state's supply of pentobarbital has expired and it is unclear where the state would get more?
— Did the Fulton County Superior Court have the authority to halt Hill's execution?
— Could the issue of the law's constitutionality be avoided if Hill were given a sample of the drug for testing or if he were given other information not prohibited by the law?
— Did Tusan make a mistake when she stopped the execution based on Hill's challenge of the law's constitutionality?
If the parties request oral arguments, they are likely to take place in the coming months, court spokeswoman Jane Hansen said in a statement. Hill's stay of execution will remain in place.
The U.S. Supreme Court is expected to decide next month whether to take up Hill's case on another matter. Hill's lawyers have long claimed that he is mentally disabled and therefore shouldn't be executed because state law and a 2002 U.S. Supreme Court ruling prohibit the execution of the mentally disabled.
Three state experts who testified in 2000 that Hill was not mentally disabled issued sworn statements in February saying they were rushed in their original evaluation, that they now have more experience and that there have been scientific developments since. All three reviewed facts and documents in the case and write that they now believe Hill is mentally disabled.