Warren Lee Hill case goes back to Georgia Supreme Court

Officials say that the issue being raised in the case is the constitutionality of a new Georgia statute that makes information about the suppliers and manufacturers of the drug used in executions a "confidential state secret." / Georgia Department of Corrections

Officials with the Supreme Court of Georgia have announced that Warren Lee Hill's case will come before the court on Monday, February 17.

They say that the issue being raised in the case is the constitutionality of a new Georgia statute that makes information about the suppliers and manufacturers of the drug used in executions a "confidential state secret."

Below is the facts and arguments of the case as released by the court:

Warren Lee Hill was given the death sentence in 1991 after a Lee County jury convicted him of murder in the 1990 bludgeoning death of a fellow inmate, Joseph Handspike, at the Lee Correctional Institute. At the time, Hill was already serving a life sentence for the 1985 shooting death of his former 18-year-old girlfriend, Myra Sylvia Wright. In the early hours of Aug. 17, 1990, Hill pried a board embedded with nails from beneath the sink in the prison bathroom and as Handspike slept, pounded him in his head and chest with the board while onlooking prisoners pleaded with him to stop. Handspike later died at the hospital. The jury recommended the death sentence after finding that the murder was committed during an aggravated battery, the murder was "outrageously or wantonly vile, horrible or inhuman," and Hill had a prior murder conviction. In 1993, the Georgia Supreme Court upheld his conviction and death sentence.

Since his conviction, Hill's attorneys have filed multiple state and federal proceedings, many claiming unsuccessfully that Hill, who once served as a petty officer in the U.S. Navy, is mentally retarded and therefore ineligible for the death penalty. On July 23, 2012, Hill, then 52, was scheduled to be put to death by lethal injection at the Georgia Diagnostic and Classification Prison in Jackson, GA, when the state Supreme Court issued a stay of execution on another matter. Hill's attorneys had filed an appeal challenging the Department of Corrections' change to the lethal injection procedure, arguing it violated the state's Administrative Procedure Act, which requires public hearings before the change is made. (The Department had replaced the three-drug cocktail used in executions with one drug.) On Feb. 4, 2013, the Georgia Supreme Court ruled that the change was not subject to the Act, and the high court lifted the stay. The State obtained another order and Hill's execution was again scheduled for July 19, 2013. His attorneys then filed an "Emergency Motion for Injunction" in Fulton County Superior Court against Brian Owens, Commissioner of Corrections, and other state officials, challenging the constitutionality of the state's new "execution secrecy statute." The 2013 law is designed to protect the identities of pharmacies and individuals who supply or compound the drug used in executions by classifying their identifying information as "a confidential state secret." On July 18, 2013, the day before Hill's scheduled execution, Fulton County Superior Court Judge Gail Tusan issued a stay of execution to review the Georgia statute. The Attorney General's office then appealed her order, and the Georgia Supreme Court agreed to review the case, asking the parties to address four questions:
* Is the case moot since the current supply of pentobarbital has expired and it is unclear how the State would obtain a new supply of execution drugs?
* Did the Fulton County Superior Court have the authority to stay Hill's execution?
* Could the whole issue of the statute's constitutionality be avoided if Hill's attorneys were given certain information not prohibited by the statute, including a sample of the actual compounded pentobarbital to be used in his execution so they could have it tested?
* Did Judge Tusan err by issuing the stay based on Hill's challenge of the statute's constitutionality?

The Attorney General's office argues on behalf of Owens and the State that this case is not moot because it "presents an issue that is capable of repetition and without doubt will be repeated." "The current embargo of foreign pharmaceuticals brought about by the efforts of death-sentenced inmates and the anti-death penalty organizations that support these inmates increases the odds that the issue presented here will arise on the eve of every execution," the State argues in briefs. Also, Hill's case presents an issue that could avoid review by the courts. "As happened here, each time litigation over the drugs forces a stay, and the drugs expire before a new execution window can be setâ|, a new round of litigation will inevitably arise over a new batch of drugs," the State argues. Without the protections of the new statute, Official Code of Georgia 42-5-36 (d), "the compounding pharmacy and its individual employees will lose their rights to privacy and find themselves at the center of a firestorm of hate mail and midnight callers," the State contends, noting that recently in Texas a compounding pharmacy demanded the return of pentobarbital it had supplied for an execution due to harassment following public disclosure of its name. The State argues in response to the second question that the Fulton County court lacked jurisdiction to stay the execution order signed by the Lee County court. Only the sentencing court, the Georgia Supreme Court, or a court in which Hill brought a petition for a writ of habeas corpus had the authority to enter a stay of execution. "As has become routine, Hill bypassed the requirements of the Georgia Constitution, the Georgia Code, and the Georgia Supreme Court and filed for a stay of execution in Fulton County Superior Court," the State contends. Furthermore, claims challenging the drug protocol should be brought in the sentencing court. To avoid piecemeal litigation, the state Supreme Court should address the constitutionality of 42-5-36 (d), regardless of whether certain information could still be given to Hill's attorneys. "To date, Hill has been provided with more information about the procedure than any other inmate in Georgia, but because he cannot prove from that information that his execution will be cruel and unusual, he seeks more information," the State contends. "And he will continue in his efforts until he finds information that will stop his execution. Not because he is innocent or because his sentence is unconstitutional, but because he does not want to be executed." Finally, Judge Tusan erred by granting a stay based on Hill's challenge to the statute's constitutionality. A stay is equivalent to a pre-trial injunction, and that requires the party requesting it to prove four factors, including that "there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted," the State argues. Here, "Hill did not demonstrate that he would suffer irreparable injury," nor did he prove any of the other factors, the State contends. The trial court erred in holding the statute unconstitutional and an injunction to resolve the issue was unnecessary to serve the public's interest. "The public's interest would have better been served by permitting this 22-year-old sentence to be carried out," the State argues. Finally, the trial court erred in ruling Hill would likely prevail on his claims that the new statute was unconstitutional because it denied him meaningful access to the courts, violates Georgia's separation of powers doctrine, and is overbroad by restricting speech.

Hill's attorneys agree the case is not moot. "Although the sentencing court's execution order is no longer valid, [the State] intends to seek another execution order from that courtâ|and proceed with Mr. Hill's execution," they argue in briefs. "When it does, Mr. Hill will again seek to determine the manufacturer of the drug that will be used in his execution. [The State] will likely invoke the Lethal Injection Secrecy Law and refuse to identify the drug's manufacturer. And as a result, an action akin to the present one will commence anew." The expiration of the execution period and of the State's supply of pentobarbital does not moot Hill's free speech claims. "[B]ecause the execution of prisoners has historically been open to the public and because public access plays an important role in the proper functioning of the death penalty, the public has a right to obtain information relating to the State's lethal injection drugs." "The State of Georgia has announced that it intends to use a drug of unknown provenance, purchased from a compounding pharmacy whose experience and manufacturing protocols remain a mystery, and composed of ingredients whose identity, purity and freedom from contamination are unknown," Hill's attorneys argue. "Without access to this vital information, Appellee Warren Lee Hill, this Court and the entire state judiciary, and the public at large, are operating in the dark and have no means of determining whether the drug selected by the State will be safe and effective or whether it will subject Mr. Hill to unnecessary pain and suffering, and therefore violate the prohibitions against cruel and unusual punishment in both the Georgia and the federal Constitutions." Hill's attorneys also argue that Judge Tusan had the authority to issue a stay. "There is no dispute that the trial court has jurisdiction to declare whether a Georgia statute is constitutional when, as here, an actual controversy exists concerning the statute," they contend. Under the Georgia Code, the trial court "may grant an injunction to maintain the status quo pending such adjudication." "The declaratory judgment action was properly filed in Fulton Countyâ|and the Fulton Superior Court accordingly had the authority to stay Mr. Hill's execution so that the merits of his declaratory judgment action could be reached." Obtaining a sample of the pentobarbital to be used in Hill's execution is likely not feasible, and even if practicable, it is not clear the sample would allow the analysis necessary to determine that his execution will not result in unnecessary pain and suffering. "Therefore, a determination of the constitutionality of 42-5-36 (d) cannot be avoided," Hill's attorneys contend. "The need to determine whether the Secrecy Law violates constitutional protections of free speech and access to government proceedings cannot be avoided regardless of whether other forms of discovery may be available." Finally, the trial court acted within its discretion in finding that Hill satisfied the criteria for the grant of a temporary injunction. The secrecy statute violates his free speech rights and the separation of powers doctrine by stripping the judiciary "of its ability to ensure that executions in Georgia are carried out in a constitutional manner," Hill's attorneys argue. The statute also "denies Mr. Hill meaningful access to the courts," because it "prevents Mr. Hill from demonstrating that there is a substantial risk of serious harm to him from being executed by a compounded drug produced and supplied by an unknown source." "With the limited information available to Mr. Hill about the nature of the drug that the state intends to use â" that is compounded rather than produced in an FDA-regulated facility â" and given the State's recent history of using illegally imported, substandard drugs in executions, there is a strong likelihood that Mr. Hill will not be executed using a safe and effective drug," Hill's attorneys argue. "Given that is the case, Mr. Hill should not be prohibited from obtaining information about the pharmacy providing the drugâ|." The state Supreme Court should either affirm Judge Tusan's injunction and remand the case to the trial court for a trial on the merits, or declare the statute unconstitutional and respond to the Open Records Act request submitted by Hill's lawyers.