A Fulton County judge on Monday granted condemned inmate Warren Hill a temporary stay of execution to give her more more time to consider a new state law that shields the identities of those who make and supply Georgia’s lethal-injection drugs.
Superior Court Judge Gail Tusan issued the stay — the third Hill has been granted over the past year — just four hours before his execution was to be carried out at 7 p.m.
“For the court and the public, it is a big issue,” Tusan said of the state’s capital punishment procedure. She scheduled another hearing for Thursday after state attorneys told her the warrant that orders Hill’s execution expires on Saturday at noon.
Hill’s case has attracted international attention because three state experts who previously testified Hill was faking mental retardation have come forward over the past year to say they were mistaken. They said an improved understanding of mental disabilities has led them to believe Hill is mildly mentally retarded, which would make him ineligible for execution.
Hill recently asked the U.S. Supreme Court to consider his mental retardation claims, but it was Tusan who stepped in on Monday and granted him at least a temporary reprieve. The high court’s justices had said they would consider Hill’s petition in September, and it remains unclear what action they will take if Hill’s execution is rescheduled before then.
Hill sits on death row for beating another inmate, John Handspike, to death with a nail-studded board in 1990 at the state prison in Leesburg. At the time, Hill was serving a life sentence for the fatal shooting of his 18-year-old girlfriend in 1985.
Hill’s latest execution warrant was signed July 5, just four days after the new state secrecy law took effect. The statute classifies as a “confidential state secret” the identities of those who prescribe, manufacture and compound the drug — the barbiturate pentobarbital — used in Georgia’s lethal-injection process.
During Monday’s hearing, Tusan asked why the new law was necessary.
Senior Assistant Attorney General Sabrina Graham said that anti-death-penalty groups have pressured and harassed pharmaceutical manufacturers who were making lethal-injection drugs. As a result, the companies no longer allow their drugs to be used for executions, she said.
When Hill’s execution was set, the state Department of Corrections had no lethal-injection drugs in supply. But the agency recently provided Hill’s lawyers with redacted records about a contract it had just signed with a pharmacy to compound drugs specifically for executions.
During Monday’s hearing, Graham said that on July 10 the pharmacy compounded the drug for Hill’s execution and then had it independently tested. On Saturday, Corrections received the drug, which expires on Aug. 8, Graham said.
The state Attorney General’s Office also released a document from an independent laboratory that tested the compounded drug. The one-page document says a July 10 test found that the compounded drug is pure pentobarbital, although the names of the lab that tested the drug and the person who vouched for its results were redacted.
“We’ve proven there’s not going to be any kind of harm,” Graham told Tusan, referring to the independent lab results.
But Robyn Painter, one of Hill’s lawyers, disagreed.
“They’re asking us to accept their word for it,” she said. “They’re just saying, ‘Trust us.’ ”
Tusan said she believed it was in the public’s interest for the issue to receive careful review.
In court filings, Hill’s lawyers say they want to test the stock the agency secured because of concerns that counterfeit compounds may have been unknowingly used to make the sedative. The attorneys also say they need to know where the drugs came from to determine whether the compounding pharmacy is reputable and has not faced disciplinary actions.
“The problems of an unknown, anonymously produced substance to carry out (Hill’s) execution carries an intolerable risk of pain and suffering and thus constitutes cruel and unusual punishment,” the motion said.
The new secrecy law, the motion said, prohibits both the public and the judiciary from ever learning who makes — and how they make — the drugs used for state executions. “There has never been, in Georgia’s history, such a court-blinding state secret,” the motion said.
Canton pharmacist Dale Coker, vice president of the International Academy of Compounding Pharmacists, said the questions raised by Hill’s lawyers are unfounded.
“Whoever is saying there are no standards is absolutely incorrect,” he said. “We have to do testing. We have to test batches, and if you do batch compounding it has to be tested for sterility and efficacy.”
Richard Dieter, executive director of the Death Penalty Information Center, said Ohio and South Dakota have used a compounding pharmacy but it’s difficult to get that information because of the secrecy around the process.
“This is becoming more common because these (lethal injection) drugs are otherwise not available,” Dieter said.
But there could be problems with trying to keep the details of the lethal-injection drug providers from public view, he said, noting that a court in Arkansas has already said such information cannot be kept secret.
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