ATLANTA – The Supreme Court of Georgia has unanimously agreed to hear the state’s appeal of a Fulton County judge’s order that stopped the execution of Warren Lee Hill from going forward.
Fulton County Superior Court Judge Gail Tusan issued a stay of execution July 18 to review the constitutionality of a new Georgia statute that makes certain information about the drug used in executions a “confidential state secret.” For the time being, Hill’s stay will remain in place.
In granting the state’s application to appeal, the high court has asked 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 were given a sample of the drug for testing or given other information the statute does not prohibit?
— Did Judge Tusan err by issuing the stay based on Hill’s challenge of the statute’s constitutionality?
Assuming the parties request oral arguments, they will likely be held in the next several months.
Hill’s attorneys opposed the high court’s review of Tusan’s order, arguing that the Fulton County court was correct to grant the stay while that court considers the constitutionality of Official Code of Georgia § 42-5-36 (d).
Hill, 53, was scheduled to be put to death July 19 by lethal injection at the Georgia Diagnostic and Classification Prison in Jackson. However, Tusan issued an injunction, finding that under the new law, “Neither the Plaintiff, nor the general public, has sufficient information with which to measure the safety of the drug that would be used to execute plaintiff, as there is insufficient information regarding how it was compounded.”
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 prison inmate, Joseph Handspike. At the time, Hill was serving a life prison sentence for the 1986 shooting death of his 18-year-old girlfriend, Myra Sylvia Wright.
Earlier this year, Hill’s attorneys filed motions in the U.S. Supreme Court for a stay of execution in two other cases in which he claims that experts have recently reversed their positions and now conclude Hill is mentally retarded and therefore ineligible for the death penalty. Those motions remain pending in that court.