Warren Lee Hill's last challenge denied

Warren Lee Hill's last challenge denied / Georgia Department of Corrections


A lawyer for a Georgia death row inmate has filed a new challenge to the state's requirement for defendants to prove intellectual disability beyond a reasonable doubt to be spared execution on those grounds.

Brian Kammer, a lawyer for Warren Lee Hill, filed the lawsuit Friday in Butts County Superior Court. Georgia's "beyond a reasonable doubt" standard is the nation's toughest.

The U.S. Supreme Court in May ruled in a Florida case that states cannot rely solely on an IQ score above 70 to bar an inmate from claiming intellectual disability.

Kammer argues the decision shows that an earlier Supreme Court ruling requires states to look to medical professionals and use their methods to determine intellectual disability. Kammer says all doctors who have examined Hill now agree he's intellectually disabled.

Initial Story:
The following information was released by the Supreme Court of Georgia:

In a 5-to-2 decision, the Supreme Court of Georgia has reversed a Fulton County court ruling that had granted a stay of execution to Warren Lee Hill.

Last summer, Fulton County Superior Court Judge Gail Tusan postponed Hill's execution to review a new Georgia statute that protects as "a confidential state secret" the identities of those who supply or compound the drug used in lethal injections. At issue in this high-profile death penalty case is whether the 2013 statute is unconstitutional.

"We hold that it is not," Presiding Justice P. Harris Hines writes in today's 33-page majority opinion.

Hill was sentenced to death 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 Georgia 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 any 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 subsequently obtained another execution 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. Hill's attorneys alleged that the "execution secrecy statute" was unconstitutional because it denied Hill information revealing "the identities of the manufacturer, individuals or entities in the chain of supply, prescriber, compounding pharmacy or pharmacist responsible for making the drugs available to the Department of Corrections for Mr. Hill's execution." On July 18, 2013, the day before Hill's scheduled execution, Judge Tusan granted an injunction to review the Georgia statute. She described the injunction as a stay of execution and ruled it was likely Hill would prevail on some of his constitutional claims. 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?

In today's majority opinion, "we conclude that this case is not moot, that the Superior Court had limited but valid jurisdiction over this matter, that the possible availability of forms of discovery beyond what is forbidden by the execution-participant confidentiality statute does not affect this case, that the execution-participant confidentiality statute is not unconstitutional, and that the Superior Court erred by granting what amounted to an interlocutory injunction. Accordingly, we reverse the Superior Court's ruling and dissolve the injunction that prohibited Hill's execution with a drug produced by undisclosed persons and entities." (An "interlocutory injunction" is a court order to temporarily stop certain acts from going forward, pending the final determination of the case.) With today's opinion, the high court is sending the case back to Fulton County Superior Court so that court can make its order final consistent with today's Supreme Court opinion.

"Pivotal," the majority opinion says, "is the fact that each of Hill's arguments ultimately centers on his claim that there is an unconstitutional risk that his execution will amount to cruel and unusual punishment." However, Hill's expert gave no clear indication regarding the level of risk involved. "This lack of clear testimony about the level of risk involved should, we believe, be set against the fact that the execution drug, pentobarbital in this case, is not an uncommon drug and was produced in the type of pharmacy that is responsible for filling millions of prescriptions per year in this country." The failure of Hill's claims does not stem from any constitutional defect in the statute. Rather, "the failure of his claims stems simply from the fact that he failed to make any claims that could merit relief."

The majority opinion states the reasons for offering privacy are "obvious, including avoiding the risk of harassment or some other form of retaliation from persons related to the prisoners or from others in the community who might disapprove of the execution as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer. Although the identity of the executioner who actually inflicts death upon the prisoner is the most obvious party in need of such protection, we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs. Second, without the confidentiality offered to execution participants by the statute, as the record and our case law show, there is a significant risk that persons and entities necessary to the execution would become unwilling to participate." Overall, the majority opinion says, "we conclude that Georgia's execution process is likely made more timely and orderly by the execution-participant confidentiality statute and, furthermore, that significant personal interests are also protected by it."

Justice Robert Benham begins his dissent by recounting details of the recent attempted execution of Oklahoma inmate Clayton D. Lockett, which ended 43 minutes after administration of the first drug when Lockett died of a massive heart attack. "I write because I fear this State is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma," says the dissent, which Justice Carol Hunstein joins. "There must be certainty in the administration of the death penalty." But here there is not, the dissent says, due to the scarcity of lethal injection drugs. "Georgia's confidential inmate state secret statute does nothing to achieve a high level of certainty. Rather the law has the effect of creating the very secret star chamber-like proceedings in which this State has promised its citizens it would not engageâ|.The fact that some drug providers may be subject to harassment and/or public ridicule and the fact that authorities may find it more difficult to obtain drugs for use in executions are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment." And assurances from the State that the compounding pharmacy it used was able to produce a high quality execution drug "amount to little more than hollow invocations of 'trust us,'" the dissent says. While the majority reasons that Hill has failed to show the statute is unconstitutional because his claims about the drug the State will use to execute him are merely speculative, "I would hold that it is a violation of due process to reject Hill's cruel and unusual punishment claim as speculative while simultaneously denying him the means by which he has any hope of proving that claim."