Gissendaner’s lawyers say on, off execution unconstitutional

The not knowing and the back and forth as to whether Kelly Gissendaner would be executed has violated her constitutional protection from cruel and unusual punishment, according to a complaint filed in federal court.

Gissendaner was subjected to “prolonged fear and uncertainty as to whether she would be subjected to a torturous death” as the state postponed, rescheduled and postponed again her execution in just a week’s time, according to the document filed late Monday. Her lawyers wrote that while the state “dithered,” she was in mental agony.

Gissendaner, 46, was scheduled to die on Feb. 25 but the night before it was rescheduled because winter weather made it dangerous to transport her from the women's prison in North Georgia to the prison where the death chamber is located. The execution for the 1997 murder of her husband was rescheduled for the next Monday, March 2. It was postponed again, as the state determined 3 1/2 hours past the scheduled execution that the lethal injection drug was "cloudy." By that time Gissendaner had given a final statement and eaten what she believed to be her final meal in cell feet away from the death chamber.

“Ms. Gissendaner endured hours of unconstitutional torment and uncertainty — to which she had not been sentenced — while (the state) dithered about whether they could execute her,” her lawyers wrote in a complaint filed with the federal court in Atlanta.

The Department of Corrections said it postponed Gissendaner’s execution in “an abundance of caution” because a doctor and a pharmacist with the DOC said the execution drug pentobarbital, made specifically for her, should be tested. DOC is doing an analysis to determine why the drug was “cloudy.”

Consequently, Gissendaner's execution has been put on hold. So has the execution of condemned murderer Brian Keith Terrell, for the 1992 murder of an elderly family friend.

Gissendaner’s case has renewed debate in the courts about Georgia’s secrecy law that prohibits public release of any information about the source of its execution drugs.

>>Click here for a report on how Georgia’s secrecy law on execution drugs is undercutting the death penalty

The Georgia Supreme Court upheld the law last year, ruling that it was necessary to ensure Georgia could secure drugs to carry out executions. Georgia, and other death penalty states, have turned to compounding pharmacies to make individual batches of drugs when mass manufacturers refused to sell the drugs due to increasing public pressure.

The courts have said Georgia could be trusted to provide drugs that would not cause unnecessary pain but Gissendaner’s lawyers said that is no longer the case and the DOC should not be allowed to investigate itself.

“They will hide all critical aspects of their self-assessment from Ms. Gissendaner, the public and this Court by relying upon Georgia’s lethal injection secrecy act…. A self-investigation with opaque results is unacceptable,” the lawyers wrote.

DOC has said it does not know when it will complete its analysis but it will release the findings once completed. At that time, prosecutors in Gwinnett and Walton Counties will have to secure new execution warrants for Gissendaner and Terrell.

Gissendaner was sentenced to die for persuading her lover to kill her husband, Douglas Gissendaner. Though she did not carry out the murder, she planned it. Her lover, Gregory Owen, pleaded guilty and was sentenced to life in prison with the possibility of parole.

Terrell was sentenced for murdering 70-year-old John Watson at his Covington home. Terrell had stolen some blank checks from Watson and used them, signing his own name. Watson reported the theft but said he would not press for charges. Instead, he told Terrell to return the unused checks. Instead, Terrell shot Watson and then beat him so badly that a bone pierced his brain.