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Ga. high court rules in case involving lethal injections



Published Monday, May 19, 2014


Please note: Opinion summaries are prepared by the Public Information Office for the general public and news media. Summaries are not prepared for every opinion released by the Court, but only for those cases considered of great public interest. Opinion summaries are not to be considered as official opinions of the Court. The full opinions are available on the Supreme Court website at .


See other stories on our site on Ga. Supreme Court

Ga. High court upholds convictions in two child killing cases




            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


            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 engage….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.”

Attorneys for Appellants (Owens): Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Sabrina Graham, Sr. Asst. A.G., Mitchell Watkins

Attorneys for Appellee (Hill): Emmet Bondurant, Manoj Varghese, Brian Kammer, Heidi Reiner






            The Supreme Court of Georgia has reversed a Georgia Court of Appeals’ finding that a man charged with Driving Under the Influence failed to file his demand for a speedy trial within the time frame required.

In today’s unanimous decision, written by Justice Carol Hunstein, the high court finds that John Williamson did file his speedy trial demand within the two court terms required under Georgia law. However, the high court is sending the case back to the Court of Appeals to determine whether Williamson waived his right to a speedy trial, in which case he would not be entitled to have his charges dropped.

“Before we can find that the Court of Appeals erred in affirming the trial court’s dismissal of Williamson’s motion for discharge and acquittal, the issue of whether Williamson or his counsel waived his right to a speedy trial must be addressed,” today’s opinion says.

Williamson was formally charged in Fulton County State Court on July 27, 2011 with two counts of DUI and failure to maintain lane. On Nov. 2, 2011, Williamson’s attorney filed a Speedy Trial Demand as permitted under Official Code of Georgia § 17-7-170. According to the statute, a defendant must make such a demand during the court term in which he was formally charged or during the succeeding court term. If the defendant is not tried during one of those two terms – “provided that at both court terms there were juries impaneled and qualified to try the defendant” – the charges must be dropped.

The Fulton state court has six terms of court that begin on the first Monday in January, March, May, July, September and November. In this case, Williamson filed his demand Nov. 2, two days before the end of the September term. (The first Monday of the November court term fell on Nov. 7.) At issue in this case is whether there were impaneled and qualified juries during the remainder of the September term, so that the September term counted as the first of the two terms within which the State had to try Williamson.

On Jan. 25, 2012, Williamson’s attorney filed a motion for “discharge and acquittal,” claiming the State failed to try him within the two court terms required by the statute. But the trial court denied his motion. Williamson appealed, and the Court of Appeals upheld the denial of Williamson’s motion to acquit him, finding that the September term did not count because there were insufficient jurors available at the end of the term when Williams filed his speedy trial demand. Specifically, the Court of Appeals found that of 37 jurors who were impaneled and qualified on Nov. 3, 14 had already been sent to a courtroom for a trial, and 18 were “committed to other courtrooms that day.” That left only five jurors, which was not enough for a criminal trial. The Court of Appeals therefore ruled that the September term did not count for purposes of triggering the statute’s two-term provision of trying his case. Rather, “the first of the two terms in which Williamson could be tried was the November 2011 term, and thus the State had that term and the next succeeding term, January 2012, in which to try Williamson,” the Court of Appeals ruled. Williamson then appealed to the state Supreme Court.

            In today’s opinion, the high court finds that the Court of Appeals was wrong because the September term did count as the first of the two court terms within which the State had to try Williamson. Under the statute, “juries must merely be qualified and impaneled for that term to count. For purposes of the statute, we conclude that impaneled means jurors who have been summoned, have appeared for service, and have not yet been discharged,” the opinion says. “[T]he statute does not require that courts examine how many jurors were serving on other trials or had been committed for other trials. Nor does the statute require an analysis of whether the trial court had time to try the defendant, an examination of the court’s calendar, or even whether there were enough criminal trial weeks scheduled during the term.”

            “Accordingly, we reverse the Court of Appeals’ finding that the September term did not count and that the State had the November and January terms to try Williamson,” the opinion says. However, the Court of Appeals still needs to decide whether Williamson’s attorney waived his right to a speedy trial. When Williamson’s case was called for trial in December, his attorney requested that another case in which his law firm was involved go first, and Williamson did not object to his case being put on the backup calendar. The trial court ruled that, “Although this conduct did not constitute a waiver of [Williamson’s] right to a speedy trial, it did impact the ability to try [Williamson’s] case” during the November term. Once the Court of Appeals decided, however, that the State had the November and January terms to try Williamson, it never reached a decision on the waiver issue. “Accordingly, having found that the September term counts as the first time during which the State had to try Williamson, such that the State was required to try Williamson before the end of the November term, the Court remands this case to the Court of Appeals for a determination of whether Williamson waived his right to assert a speedy trial violation.” 

Attorney for Appellant (Williamson): Robert Chesney

Attorneys for Appellee (State): Carmen Smith, Solicitor General, R. Leon Benham, Asst. S.G.



            The Supreme Court of Georgia has upheld the convictions and life prison sentence given to a woman in Richmond County for shooting to death a man in a wheelchair.

            In this high-profile Augusta murder, Judy Lynn Washington claimed she shot Steve Mikel in self-defense. But the jury rejected that theory, and the state Supreme Court has unanimously upheld its decision.

            According to the facts, the night before the killing, Washington, 52, and Mikel, 45, had gotten into a heated argument. A witness said that Mikel, a paraplegic who was wheelchair-bound, held Washington in a headlock and hit her repeatedly. During the assault, Washington threatened Mikel, saying she would shoot him if she had a gun. In the early morning hours of July 31, 2011, in the same location, Washington was sitting outside on the porch of a home, socializing with a group of people, when Mikel arrived and approached Washington. He said he wanted to talk to her about the night before and apologize. At the same time, he picked up Washington’s purse. She told him to put down her purse and said she did not want to talk to him. As he continued holding her purse, witnesses said Washington reached into her shirt, pulled out a .22-caliber gun and fired at Mikel, who fell out of his wheelchair. As he tried to get up, Washington went over to him and fired a second shot while he was on the ground. She continued to fire three more times. Mikel tried to get up after each shot except the last one. He died from multiple gunshot wounds to the chest and abdomen. When she was done, Washington put things into her purse, fixed her ponytail, and walked away from the scene, according to briefs filed in the case. As she made her way down the street, she threw the revolver in the front yard of a nearby residence. After canvassing the area and speaking to witnesses, police found Washington a short time later and arrested her for murder.

At her trial in January 2012, Washington’s attorney claimed the shooting was in self-defense. The attorney told the jury that no one had come to Washington’s aid the night before when Mikel had been beating her, and when he refused to put down her purse, Washington was afraid he was going to repeat the violence. The jury rejected the defense and convicted Washington of murder, aggravated battery and weapons charges. Washington was sentenced to life plus five years in prison. She then appealed to the state Supreme Court, arguing the evidence was insufficient to convict her.

However, “the evidence was ample to enable the jury to find Washington guilty of all the crimes for which she had been charged,” Justice Harold Melton writes in today’s opinion. “The jury was authorized to reject the claim of self-defense and conclude that Washington shot Mikel repeatedly without provocation.”

Attorney for Appellant (Washington): Sara Meyers

Attorneys for Appellee (State): R. Ashley Wright, District Attorney, Madonna Little, Asst. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Christian Fuller, Asst. A.G.




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