ATLANTA — Condemned inmate Warren Lee Hill scored a legal victory Thursday, although it remains to be seen whether his scheduled execution will be delayed indefinitely as his attorneys challenge the constitutionality of a new law barring the release of certain information about Georgia’s supply of lethal injection drugs.
Hill, 53, has been scheduled to die by lethal injection Friday for the 1990 killing of a fellow inmate. He has come within hours of being executed three times in recent years, and it’s likely that another last-minute legal decision will determine his fate.
On Thursday, Superior Court Judge Gail Tusan granted Hill’s request for an injunction halting Friday’s execution to further consider the case. Attorneys for the state said they planned an immediate appeal to the Georgia Supreme Court. The state’s high court is expected to decide Friday whether to overturn Tusan’s ruling or leave the injunction in place blocking the execution.
“Frankly, because the execution is still scheduled for 7 o’clock and there’s going to be litigation in the (Georgia) Supreme Court, we don’t know how that is going to go yet,” said Hill’s attorney Brian Kammer. “I’m sure Mr. Hill knows there is still an execution scheduled for tomorrow.”
Attorneys for the state declined comment on Tusan’s ruling, other than to say they planned to appeal.
Hill’s case has garnered international attention for a separate issue. Hill’s attorneys have long argued he should not be executed because he is mentally disabled and have made that the basis of another appeal pending before the U.S. Supreme Court. State attorneys have said Hill has failed to prove he is mentally disabled and that the case has been thoroughly reviewed.
On Thursday, Hill’s attorneys were in court to challenge a law that took effect July 1 that prohibits the release of identifying information about any person or company participating in an execution. They argued the law is unconstitutional because it prevents Hill from being assured the drug meets acceptable quality standards.
“They’re saying just trust us ... everything is fine,” Kammer said in his closing arguments.
Nationally, it has become increasingly difficult for states to obtain a lethal injection drug because the manufacturer has said it doesn’t want it used in executions. After the state’s supply of pentobarbital expired in March, it acquired the drug from a compounding pharmacy, according to documents obtained by The Associated Press in a records request.
Compounding pharmacies custom-mix small batches of a drug for specific clients. They’ve come under scrutiny after a deadly meningitis outbreak was linked to contaminated injections from a Massachusetts compounding pharmacy. The FDA considers compounding pharmacy products unapproved drugs and does not verify their safety or effectiveness.
Hill’s attorneys said the state law was written so broadly that it prevented even a thorough review by the courts, in that a judge might be able to know the name of the pharmacy but couldn’t do anything with that information.
“There’s not a whole lot the court can do with it except Google it, and that’s not sufficient,” Kammer said.
Supporters of the state law have said it’s necessary to protect participants from retaliation and could help the state obtain drugs from companies or pharmacies that might not want people to know they are involved in executions.
“This statute was not put together at the last minute against some perceived threat. It’s real,” said Senior Assistant Attorney General Sabrina Graham in her closing arguments.
The state offered an affidavit from an independent lab verifying the drug had been analyzed and was safe to use. Graham argued Hill was unlikely to suffer any undue harm.
In the order granting the injunction, the judge said there was a likelihood Hill’s attorneys would succeed in their challenge and that further hearings were necessary to determine the constitutionality of the law.
“To be executed without being aware of basic information regarding the protocols the state will use to carry out such an execution is surely an irreparable harm,” Tusan wrote in her order. “Without more information, the court finds that (the) plaintiff still, today, cannot possibly determine whether or not the pentobarbital in question was somehow contaminated or otherwise improperly compounded.”
Hill was sentenced to death for the 1990 beating death of inmate Joseph Handspike, who was struck with a nail-studded board while sleeping, according to authorities. At the time, Hill was serving a life sentence for the 1986 slaying of his girlfriend, Myra Wright, who was shot 11 times.