Anatomy of a Close Call: a Death Race in Georgia


The machinery of death was already in motion for Warren Hill: the warrant validated, a sedative coursing through his veins to calm him for execution, a mortician standing by to claim his body.  Hill was within 40 minutes of being strapped to a gurney and sent to his Maker when a federal court intervened on the evening of February 19th.

It was the key legal decision in a day of fevered activity by lawyers and judges in four different courthouses to determine whether Hill would die by lethal injection. That last-minute legal maneuvering, the day’s legal dance of death, reveals a great deal about the vagaries and complexities of administering capital punishment in today’s America.

Warren Lee Hill is no angel. He murdered his girlfriend in 1985 and, while serving a life sentence for that homicide, killed a fellow inmate five years later by battering him with a nail-studded board. That’s the crime for which he was sentenced to death.

Medically, Hill was not playing with a full deck. The recurring argument throughout the legal battle over his fate was not whether Warren Hill was mentally handicapped, but to what extent he was. That would become the central question in the echoing courtroom duels of February 19th.

The other issue in play that day was whether Georgia’s protocols for lethal injection were legal. The state Circuit Court of Appeals found merit in arguments from Hill’s lawyers that use of a controlled substance, the barbiturate pentobarbital, required the prescription of a doctor — whether it was being used in a medical procedure to extend life or a legal procedure to end one. State authorities, of course, had been unable to get a physician’s prescription for the lethal cocktail; the Hippocratic Oath intervened.

The arguments over the drug issue became a game of legal ping-pong. It started the previous day in Fulton County Superior Court, which bounced the ball up to the Supreme Court of Georgia which in turn passed it back down to the Circuit Court of Appeals, which issued a stay of execution late on what would have been Hill’s last day.  At that point, Georgia’s Attorney General picked up a paddle, using it to persuade the state Supreme Court to take the case back and to dissolve the stay.  Follow the ball?  Hill lost that game.

Less than a mile north of the state courtrooms, a panel of three judges at the U.S. Court of Appeals for the 11th Circuit faced a question over which even jaded lifetime appointees might easily lose sleep: in a case of life or death, could they allow new evidence on an issue that had already been decided? The issue was the degree of Warren Hill’s mental retardation, and the new evidence was a 180-degree turnabout by the three psychiatrists who had testified for the prosecution.

The three had submitted affidavits stating that their testimony at Hill’s trial was based on a rushed evaluation, and that medical science and their own professional experience concerning mental retardation had advanced significantly in the past dozen years. Based on today’s knowledge, they said, Hill — with an IQ of 70 — met the medical criteria of mild retardation.

The 11th Circuit judges had several Solomon-like decisions to make. Was this new testimony grounds for reconsideration – was it so compelling as to overcome the legal system’s need for finality in a case that had been thoroughly litigated?  Would the new testimony have swayed a jury?  Was it sufficient to grant a stay of execution to allow further study?

In the end, with less than an hour on the clock, the Court answered only the last question in the affirmative.  But that was enough to give Warren Hill another thirty days of life; the executioner and the undertaker would have to wait.

Hill’s team, led by the indefatigable Brian Kammer of the Georgia Research Center, has a tough road ahead and a lot of convincing to do. The legal system has historically leaned toward respecting prior proceedings and the notion of judicial finality — concepts less abstract than ethereal notions of justice or fairness.

The legal paradoxes in our patchwork system of capital punishment go way beyond precedent and procedure. They can be found even on a label.  Remember that supply of pentobarbital and the argument over prescriptions? The drug in Georgia’s pharmacy reached its expiration date on March 1st, and the state has yet to find a new supply or even a supplier.

There are 94 inmates now on Georgia’s death row. Stand by for new challenges from them saying, in essence, “You can’t kill me with an outdated drug!”


Martin Clancy is the co-author, with Tim O’Brien, of a new book about the death penalty, Murder at the Supreme Court – Lethal Crimes and Landmark Cases (Prometheus Books)

[This article was originally published in the Huffington Post –]



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