Warren Hill

New ‘injection secrecy’ law threatens First Amendment rights in Georgia

July 17, 2013 (source :cjr.org)

Update: On Thursday afternoon, Fulton County Superior Court Judge Gail S. Tusan granted a stay of Hill’s execution, concluding, among other things, that the Georgia “state secrets” law “implicated” the First Amendment by blocking information she deemed “essential to the determination of the efficacy and potency of lethal injection drugs.” Georgia officials immediately vowed to appeal the ruling.

Original Story:
The pending execution of a cognitively disabled man in Georgia has brought to national light a new law there that has profound first amendment implications for journalists covering death penalty cases.

The so-called “Lethal Injection Secrecy Act,” passed in March, makes the identities of those companies and individuals who make and supply lethal injection drugs a “state secret” that may be shielded from disclosure to the public, the media, or even the judiciary. As a result of the measure, information about the purity and potency of the drugs that are to be used to carry out executions in the state are beyond the public’s reach. So are the identities of the doctors hired by the state to oversee executions.

The shield law was enacted at the request of the state’s Department of Corrections after Georgia officials were roundly criticized in 2011 and 2012 for seeking lethal injection drugs from unlicensed sources as they scrambled to replace diminishing supplies. In 2011, for example, the Drug Enforcement Administration seized Georgia’s supply of “lethal injection” drugs because of federal concerns about how those drugs were obtained by state officials. The measure also directly benefits the dwindling number of pharmaceutical companies that produce and distribute the lethal drugs and that have been the subject of protests and boycotts for their role in the increasingly controversial practice of lethal injections.

The Injection Secrecy Act came into effect on July 1 and was immediately invoked by state officials in the case of Warren Hill, a convicted murderer who claims he cannot be executed because he is “mentally retarded” (a legal term of art) and thus falls within the protections of Atkins v. Virginia. In that 2002 United States Supreme Court decision, the justices, by a vote of 6-3, declared that executing the mentally disabled violates the Eighth Amendment’s prohibition against “cruel and unusual” punishment. Georgia officials waited until the Injection Secrecy law was in effect, then scheduled Hill’s execution for July 15, relying on the new law to shield from Hill’s attorneys material information about the drugs to be used in Hill’s execution.

Last week, after Hill’s execution had been set for this past Monday, state officials revealed to his lawyers that they “had entered into agreements with an unknown compounding pharmacy and an unknown prescriber of drugs in order to procure pentobarbital,” a lethal drug to be used in Hill’s execution. But state officials, citing the new law, refused to provide any information about the identities or professional qualifications of the supplier or prescriber (or any information about the drug itself). So, on Monday, the day Hill was supposed to be given the lethal dose, his attorneys went to court in Fulton County, GA, seeking to enjoin the execution on the grounds that the Injection Secrecy law violates the Eighth Amendment and separation-of-powers principles. “Without any information regarding the origin or makers of the drug the Department of Corrections is planning to use to execute him,” the lawyers said, “Mr. Hill is left with no means for determining whether the drugs for his lethal injection are safe and will reliably perform their function, or if they are tainted, counterfeited, expired, or compromised in some other way.”

The trial judge delayed the execution, at least until Thursday, when she will continue to hear argument over the new state law. Nothing the State (or a state) does more profoundly impacts the public interest than when it seeks to take a life. Nowhere is the media’s interest in transparency and accountability more important than in capital cases. Hill’s lawyers did not challenge the law on First Amendment grounds. But it won’t be long before such a challenge is made to a law that so tangibly impairs the freedom of the press to report on matters of life and death.

Georgia stays execution of mentally disabled prisoner Update

Update July 13, 2013
Georgia officials reschedule Hill execution for Friday
ATLANTA (AP) – State officials have rescheduled the execution of Georgia death row inmate Warren Lee Hill for Friday.

Hill was originally scheduled to be executed on Monday, but a Fulton County judge issued a temporary stay so she could consider a legal challenge filed by Hill’s attorneys. Hill is challenging a new state law prohibiting the release of certain information related to Georgia’s supply of lethal injection drugs.

A hearing on that issue has been scheduled for Thursday morning.

Separately, Hill’s attorneys have appealed to the U.S. Supreme Court to halt the execution, arguing Hill is mentally disabled and should not be put to death.

Attorneys for the state say Hill has failed to prove he’s mentally disabled and that his case has been thoroughly reviewed by the courts.

(Source: The Associated Press)

 

A mentally ill prisoner who was scheduled for execution in Georgia on Monday has been granted a stay of execution by a judge.

Major questions were raised over the execution, which appeared to be in stark contrast with the Eighth Amendment.

Warren Lee Hill, a 53-year-old man convicted of murdering his ex-girlfriend and beating a fellow inmate to death in 1990, has been facing execution for the past 12 months. He was scheduled to be killed by lethal injection last July and again in February, but was spared by last-minute court orders.

Hill has been classified as “mentally retarded” by all nine government and state doctors who examined him, and the Supreme Court’s 2002 decision in Atkins v. Virginia bars the execution of mentally ill inmates. According to one state expert, Hill has an IQ under 70, classifying him as ‘challenged,’ at best.

Superior Court Judge Gail Tusan held a 90-minute hearing Monday, hearing challenges from Hill’s attorneys regarding the constitutionality of a new state law that hides from public view the manufacturer of the drug used in lethal injections and the physicians who prescribe it.

Small local pharmacies provide the drugs for lethal injections in Georgia, according to the Atlanta Journal constitution, because European drug companies refuse to let their drugs to be used in executions.

A second meeting to continue the discussion was scheduled for Thursday.

Hill was previously scheduled to receive a lethal injection at 7pm local time (14:00 GMT) Monday.

Three of nine doctors classified him as competent 13 years ago, but in February redacted their statements and described him as mentally ill. One doctor called his earlier evaluation “extremely and unusually rushed” and another said his conclusions were “unreliable because of my lack of experience at the time,” Reuters reports.

The Supreme Court decision states that executing those with a cognitive impairment is a “cruel and unusual” punishment, which violates the Eighth Amendment.

Defense Attorney Brian Kammer last week filed a Supreme Court motion for a stay of execution. Hill’s lawyer also filed a second legal challenge with the Georgia state courts concerning new drug secrecy laws.

Georgia recently passed the controversial Lethal Injection Secrecy Law, which allows the state’s Department of Corrections to secretly obtain the sedative pentobarbital, which is used in executions. As a result of the law, the state can bypass the Freedom of Information Act and consider information about the drug suppliers a “state secret.”

In a motion filed with the state, Kammer argues that the uncertainty about the sedatives’ origins means that his client has “no means for determining whether the drugs for his lethal injection are safe and will reliably perform their function, or if they are tainted, counterfeited, expired or compromised in some other way.”

The motion was filed to challenge “the constitutionality of [the secrecy law] and clarify the rights of Mr. Hill to obtain information about the origins and manufacture of the drug with which he will be executed – and by extension – its safety an likely efficacy.”

To defend itself against the federal court, the state is arguing that all nine doctors who diagnosed Hill as mentally ill were flawed in their analyses and failed to prove it beyond a reasonable doubt under state standards – and that the three who redacted their classifications did so too late.

“Hill has not met his burden of proving retardation under an onerous state standard; that the doctors’ new diagnoses are flawed; and that, as a matter of law, they come too late anyway to spare Hill,” writes The Atlantic’s Andrew Cohen.

Civil rights groups have spoken out against the Georgia court system, and the non-profit group All About Developmental Disabilities has called on the state to lower its standard for proving mental disability. Anthony Romero, executive director of the American Civil Liberties Union, has published a statement declaring the inmate’s scheduled execution unconstitutional.

“The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law,” he writes.

“Executing this indisputably intellectually disabled man would not only violate our Constitution, but it would be cruel and unjust beyond reason.”

Hill’s death would have marked the 19th execution in the United States this year. (RT News)

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Stop Warren Hill’s Execution in Georgia – Amnesty International Usa

Despite unanimous agreement from 7 doctors that Warren Hill is intellectually disabled and opposition from the victims family and original trial jurors, Georgia is still planning to kill Warren Hill this Monday.

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To learn more about this case, read or print AIUSA’s full Urgent Action sheet: PDF format

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Georgia has set an execution date of July 15 for Warren Hill (update)

Georgia has set an execution date of July 15 for Warren Hill, despite his pending petition before the U.S. Supreme Court demonstrating that all of the physicians who have examined Hill agree he is intellectually disabled. People suffering from intellectual disability (mental retardation) are constitutionally barred from execution. (Atlanta Journal Constitution, July 3, 2013). This is the exceptional and rare case where there is clear proof an inmate is ineligible for the death penalty and the U.S. Supreme Court is the only avenue for relief.

rrelated articlee  warren hill

stay of executions january-august 2013

Stays of Execution 2013

 

 

Date of  Scheduled Execution  State  Inmate Reason for Stay
January
8 PA Mark Spotz Stayed to allow time for appeals.
16 OH Ronald Post Commuted to a sentence of life without parole.
29 TX Kimberly McCarthy Stayed until 4/SR3/2013 after attorneys raised claims of racial bias.
February
13 LA Christopher Sepulvado Stayed due to issues with lethal injection protocol in the state of Louisiana.
19 GA Warren Hill Stayed by the U.S. Court of Appeals for the Eleventh Circuit to examine the issue of Hill’s mental retardation.
20 TX Britt Ripkowski Stayed by a district court which found the defendant legally incompetent.
21 GA Andrew Cook Stayed on lethal injection grounds by the Georgia Court of Appeals.  Update – Stay was lifted and Cook was executed as scheduled.
26 FL Augustus Howell Stayed to allow time for appeals.
27 TX Larry Swearingen Stayed to allow time for DNA testing.
March
5 PA Freeman May Stayed to allow time for appeals.
6 PA Orlando Maisonet Stayed to allow time for appeals.
6 AZ Edward Schad Stayed by the 9th U.S. Circuit Court of Appeals to allow time for appeals.
7 PA Abraham Sanchez Stayed to allow time for appeals.
21 TX Michael Gonzales Stayed to allow time for appeals.
April
3 TX Kimberly McCarthy Stayed due to proposed legislation that would address racial discrimination in the death penalty.
10 TX Rigoberto Avila Stayed by 41st District Judge Anna Perez who ruled additional time is necessary to allow Avila’s defense attorneys to explore possible new evidence of Avila’s innocence.
21 PA Borgela Philistin Stayed to allow time for appeals.
24 TX Elroy Chester Stayed to allow time to clarify legal issues.
25 PA Michael Travaglia Stayed to allow time for appeals.
May
7 MS Willie Manning Stayed by Mississippi Supreme Court to allow further review of the case.
21 TX Robert Pruett 60-day stay to allow for DNA testing.
August
18-24 CO Nathan Dunlap Gov. John Hickenlooper issued an executive order granting a temporary reprieve.

 

“Volunteer” refers to inmates who have voluntarily waived their normal appeals (not necessarily that they have volunteered for execution).

 

 

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GEORGIA – WARREN HILL awaits appeals decisions to stave off scheduled today at 7:00 p.m STAYED – New update july 4

Update : july 4. 2012

Georgia has set an execution date of July 15 for Warren Hill, despite his pending petition before the U.S. Supreme Court demonstrating that all of the physicians who have examined Hill agree he is intellectually disabled. People suffering from intellectual disability (mental retardation) are constitutionally barred from execution. (Atlanta Journal Constitution, July 3, 2013). This is the exceptional and rare case where there is clear proof an inmate is ineligible for the death penalty and the U.S. Supreme Court is the only avenue for relief.

 

Murderer Warren Hill will die Monday evening unless his attorneys can find a court that believes his mental capacity is diminished enough that it would be unconstitutional to execute him, or if a judge finds fault with the state’s new method of execution.

If he is executed as planned, Hill will be the first in Georgia to be put to death using only one drug — the powerful barbiturate pentobarbital — instead the three that the state has been using in combination since 2008.

Hill still has appeals based on the mental retardation issue pending in the Georgia and U.S. Supreme Courts. And on Monday a Fulton County Superior Court judge is scheduled to hear the issue of the Department of Corrections’ sudden change in its lethal injection protocol from three drugs to one drug. Last Tuesday, the day before Hill was initially scheduled to die, the prison system announced it was abandoning the three-drug cocktail — a sedative followed by the paralytic pancuronium bromide and then potassium chloride, which stops the heart. It was replaced with a single drug process, pentobarbital, the same as in six other states [a seventh uses a different sedative].

Later, on Monday evening, there will be vigils held in 11 Georgia cites to express outrage that the state is executing a mentally retarded man.

“In other states, Hill would not face the ultimate punishment due to his disability,” said Suzanne Nossel, executive director of Amnesty International USA.”Unless the Supreme Court steps in to prevent this execution, the state of Georgia will have committed a terrible injustice.”

Hill was condemned for using a nail-studded 2-by-6 board in 1990 to beat to death fellow prisoner Joseph Handspike. At that time Hill was already incarcerated for murdering his 18-year-old girlfriend.

The judge presiding over the 1991 trial for Handspike’s murder found Hill, with an IQ of 70, was more likely than not to be mentally disabled. But the judge also determined that the lawyer representing Hill at the time had not proven his mental disability beyond a reasonable doubt, the standard set in 1988 when Georgia became the first state to prohibit executing the mentally

If he is executed as planned, Hill will be the first in Georgia to be put to death using only one drug — the powerful barbiturate pentobarbital — instead the three that the state has been using in combination since 2008.

Hill still has appeals based on the mental retardation issue pending in the Georgia and U.S. Supreme Courts. And on Monday a Fulton County Superior Court judge is scheduled to hear the issue of the Department of Corrections’ sudden change in its lethal injection protocol from three drugs to one drug. Last Tuesday, the day before Hill was initially scheduled to die, the prison system announced it was abandoning the three-drug cocktail — a sedative followed by the paralytic pancuronium bromide and then potassium chloride, which stops the heart. It was replaced with a single drug process, pentobarbital, the same as in six other states [a seventh uses a different sedative].

Later, on Monday evening, there will be vigils held in 11 Georgia cites to express outrage that the state is executing a mentally retarded man.

“In other states, Hill would not face the ultimate punishment due to his disability,” said Suzanne Nossel, executive director of Amnesty International USA.”Unless the Supreme Court steps in to prevent this execution, the state of Georgia will have committed a terrible injustice.”

Hill was condemned for using a nail-studded 2-by-6 board in 1990 to beat to death fellow prisoner Joseph Handspike. At that time Hill was already incarcerated for murdering his 18-year-old girlfriend.

The judge presiding over the 1991 trial for Handspike’s murder found Hill, with an IQ of 70, was more likely than not to be mentally disabled. But the judge also determined that the lawyer representing Hill at the time had not proven his mental disability beyond a reasonable doubt, the standard set in 1988 when Georgia became the first state to prohibit executing the mentally disabled.

Since then, the U.S. Supreme Court said it has said it is unconstitutional to to execute the mentally retarded who are at “special risk of wrongful execution.” But also in that 2002 decision, the justices left it up to the states to determine what was required to show mental retardation; Georgia has the strictest standard.

“Mildly mentally retarded individuals like Warren Hill frequently defy the stereotypical image we often have of persons with the disability in part because they tend to make efforts to hide the symptoms,” wrote Hill’s attorney, Brian Kammer. He said if a defendant can prove retardation beyond a reasonable doubt, then he is likely so severely retarded that if he went to trial the death penalty would not be an option. “He may even be found incompetent to stand trial. This leaves the majority of mentally retarded persons in the criminal justice system, who are mildly mentally retarded, in the lurch, because it is the mildly mentally retarded whose symptoms can mislead … about the significance or even the existence of the disability.”

Docket from  Supreme court

No. 12A57
Title:
Warren Lee Hill, Jr., Applicant
v.
Carl Humphrey, Warden
Docketed:
Linked with 11-10109, 11-10109
Lower Ct: United States Court of Appeals for the Eleventh Circuit
  Case Nos.: (08-15444)
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jul 16 2012 Application (12A57) for a stay of execution of sentence of death, submitted to Justice Thomas.
~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
James W. Ellis 1117 Stanford Drive, NE (505) 277-2146
Albuquerque, NM  87131
Party name: Warren Lee Hill, Jr.
Attorneys for Respondent:
Beth A. Burton Senior Assistant Attorney General (404) 656-3499
    Counsel of Record Office of the Attorney General
40 Capitol Square, S.W.
Atlanta, GA  30334-1300
Party name: Carl Humphrey, Warden
Other:
Sheri Lynn Johnson Professor of Law (607) 255-6478
Cornell Law School
108 Myron Taylor Hall
Ithaca, NY  14853

UN expert calls on US states to halt impending executions of mentally disabled prisoners

July, 18 2012 

A United Nations human rights investigator has called on the US states of Georgia and Texas to halt the impending executions of two mentally disabled men scheduled in the upcoming week, condemning the state killings as a breach of the US Constitution and a violation of international law.

Barring any last-minute reprieve, Yokamon Hearn will be executed in Texas tonight. In Georgia on Monday, the State Board of Pardons and Paroles denied commutation of the death sentence of Warren Hill, opening the way for his execution. Hill’s execution, originally set for tonight, has been rescheduled for Monday, July 23, as Georgia changes over to a single-drug execution protocol.

Both condemned men demonstrate clear signs of mental disability. In a 6-3 decision in June 2002, the US Supreme Court ruled that execution of the mentally retarded is a violation of the Constitution’s Eighth Amendment ban on “cruel and unusual punishment.” The high court’s ruling, however, left it to the states to determine what constitutes mental retardation.

Christof Heyns, the UN special rapporteur on extrajudicial summary or arbitrary executions, stated it would be a “violation of death penalty safeguards” to execute individuals suffering from “psychosocial disabilities.” A spokesman for the French Ministry of Foreign Affairs this week also appealed to Georgia to halt the execution there as a “first step to abolishing the death penalty” worldwide.

The life stories and legal cases of the two men to be put to death have similarities: a history of mental disability, poor legal representation, and a blatant disregard of these factors by the court systems in their respective cases.

Warren Lee Hill, Jr., now 52, was convicted in the 1990 beating death of his cellmate, when he was already serving a life sentence for the 1986 murder of his girlfriend. Hill’s attorneys asked the Georgia State Board of Pardons and Paroles to commute his sentence to life without parole. Former president Jimmy Carter also petitioned the board for Hill’s clemency. The board denied Hill’s appeal, as well as his attorneys’ request for a 90-day day stay of execution.

Hill’s attorney, Brian Kammer, denounced the decision of the Georgia board, stating, “This shameful decision violates Georgia’s and our nation’s moral values and renders meaningless state and federal constitutional protections against wrongful execution of persons with mental disabilities.”

Tests have shown that Hill has an IQ of about 70, which puts him in the range of mild mental retardation. In their petition for clemency, Hill’s attorneys included a statement from two of his former elementary school teachers, who said it was “obvious” to them that he was mentally disabled. The AtlantaJournal-Constitution reported the teachers said Hill could not read or write at grade level and was “virtually non-communicative.”

The juries at Hill’s two murder trials were not informed of his IQ or signs of his mental disability. According to the Journal-Constitution, in a June 18 letter to the Georgia pardons board, Richard Handspike, the nephew of the inmate killed by Hill in 1990, wrote that his family “feels strongly that persons with any kind of significant mental disabilities should not be put to death.”

In 1988, Georgia was the first US state to outlaw the execution of inmates with learning disabilities. But the state statute requires that mental impairment be proved “beyond a reasonable doubt,” setting the bar higher than in any other state. In 2002, a lower Georgia Court found Hill to be “mentally retarded.” However, the Georgia Supreme Court overturned this ruling in 2003, saying that Hill’s mental disability had not been proven according to the “reasonable doubt” standard.

Defense attorney Kammer has filed an appeal with the US Supreme Court as a final effort to halt his client’s execution. In a perverse turn of events, Hill’s execution has been delayed until Monday solely due to the fact that Georgia is changing its lethal execution protocol.

The state of Texas will put 33-year-old Yokamon Laneal Hearn to death tonight despite clear evidence that he has suffered brain damage since early childhood. Hearn was convicted and sentenced to death for a 1998 murder in connection with a carjacking.

In the course of Hearn’s capital trial, his attorney conducted virtually no investigation into his life history. The jury that sentenced him to death did not know, among other things, that he was neglected by his parents, had a history of mental health problems, and had been diagnosed with Fetal Alcohol Syndrome due to his mother’s excessive drinking during pregnancy.

Hearn’s post-trial lawyer, who filed his habeas appeal, also failed to conduct a detailed investigation into Hearn’s life circumstances and mental disabilities. Hearn’s current counsel hoped to get relief for their client following a US Supreme Court decision in March of this year, which held that defendants were entitled to have federal courts review their “ineffective assistance of counsel” claims even if those claims were otherwise procedurally barred.

However, earlier this month US District Judge Sidney A. Fitzwater ruled that Hearn was not entitled to further relief. This decision was based on a 5th Circuit Court ruling that so narrowly interpreted the US Supreme Court decision as to make it virtually inapplicable to cases in Texas.

Yokamon Hearn and Warren Hill’s executions will be the 24th and 25th executions in the US in 2012 if they proceed as scheduled. According to the Death Penalty Information Center, from 1976—when the Supreme Court reinstated the death penalty—to 2002, 44 individuals with some form of mental retardation were sent to their deaths. It is unclear how many state killings of the mentally disabled have taken place since the high court’s 2002 ruling outlawing executions of the mentally retarded.

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UPCOMING – Executions – JULY 2012

Update July 18, 2012

Dates are subject to change due to stays and appeals

Pennsylvania execution dates and stays are generally not listed because the state routinely sets execution dates before all appeals have been exhausted.

July

07/18/2012

Yakomon Hearn

Texas

  Executed   6:37 p.m 

07/18/2012

Warren Hill

Georgia

 Stayed (rescheduled for 7/23)  STAYED

07/24/2012

Darien Houser

Pennsylvania

 STAYED

07/25/2012

John Koehler

Pennsylvania

 STAYED

07/26/2012

Willie Clayton

Pennsylvania

 STAYED

07/26/2012

John Eley

Ohio

  COMMUTED