Attorneys for Brandon Astor Jones on Monday asked the federal appeals court in Atlanta to stop his execution scheduled for next Tuesday. The lawyers say all 11 judges on the 11th U.S. Circuit Court of Appeals should have time, as a collected group, to hear them challenge the law that shrouds Georgia's execution process in secrecy.
In a filing late Monday, Jones’ lawyers wrote that at least three of the 11 judges on the court of appeals have questioned the legality of the state’s secrecy law, but no two of them have been on the same panel at once. So far, each skeptical judge has been outnumbered whenever a three-judge panel was convened.
“In the 30 months since the secrecy act became law, six judges of this court have addressed whether (Georgia’s) use of it comports with the Constitution,” Jones’ lawyers wrote. “Three have suggested that it does not.
“But by the happenstance of how those judges were distributed among the panels” the law has withstood challenge by those facing death who say they have a constitutional right to know who makes the deadly doses of pentobarbital that Georgia uses to carry out lethal injections.
“Given the division within the court on so grave a question, Mr. Jones respectfully submits that the time is ripe for this court to address these issues” as a group, Jones’ lawyers wrote.
At least six of the 11 judges on the appeals court must agree to hear Jones’ appeal before the entire court will take it.
To ensure a supply of lethal injection drugs, Georgia is one of several states that have laws protecting the identities of pharmacists who prepared the drugs. The statues were adopted as sources for lethal injection drugs became scarce because of public pressure on drug makers.
Jones’ lawyers have said condemned killers are entitled to know who made their lethal injection drugs and the pharmacist’s qualifications to ensure that their deaths will not be torturous.
So far, courts nationwide have supported secrecy laws like Georgia’s, ruling that they are the only way to ensure that the death penalty can be carried out.
But Jones’ lawyers say the entire court hearing this issue now is more pressing because of problems with lethal injection drugs that were prepared for two executions early last year, but were delayed because the pentobarbital was cloudy. The state still supposedly uses the pharmacist who made drugs for the executions of Kelly Gissendaner and Brian Keith Terrell that were set for last March but delayed because the drugs were cloudy
Jones' lawyers wrote in a complaint, which the district court threw out last week, that had the state moved forward with executions of Gissendaner and Terrell using the cloudy pentobarbital, the "injection of a precipitated solution would be akin to having small pieces of broken glass projected into your blood vessels." Both Gissendaner and Terrell have since been executed using new batches of the drug.
Jones’ lawyers said the Department of Corrections, which carries out executions for the state, should at least find another source for the drugs, rather than using the pharmacist who made the lethal injection drugs for Gissendaner and Terrell almost a year ago.
Jones is scheduled to die next week for the 1979 murder of the manager of a Cobb County convenience store, Roger Tackett. Jones and his partner, Van Roosevelt Solomon, shot Tackett five times — once in the thumb and twice in his hip and head — leaving him dead on the storeroom floor. Jones and Solomon were captured as they emerged from the storeroom at the Tenneco gas station and convenience store.
The state electrocuted Solomon in 1985. But a federal court threw out Jones’ sentence in 1989 because jurors had a Bible in the room while they deliberated. But Jones was retried and re-sentenced to death in 1997.
Jones is the oldest man on Georgia’s Death Row. If he is executed, he will be the oldest man Georgia has ever put to death. He will be 11 days shy of his 73rd birthday.
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