Hill2013 07.12 Brief on Motion for Injunction

7/28/2019 Hill2013 07.12 Brief on Motion for Injunction

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IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

WARREN LEE HILL, )

)v. ) Civil Action

) Case No.BRIAN OWENS, in his capacity as )

Commissioner of the Georgia )Department of Corrections. )

)

BRUCE CHATMAN, in his capacity as )Warden of the Georgia Diagnostic )

Prison. )

)SAM OLENS, in his capacity as Attorney )General of the State of Georgia )

BRIEF IN SUPPORT OF PLAINTIFFS

EMERGENCY MOTION FOR EQUITABLE INJUNCTION

Plaintiff, WARREN LEE HILL, is an indigent, death row inmate who is

scheduled to be executed by lethal injection on July 15, 2013 at 7:00 p.m.

Defendants are the Commissioner of the Georgia Department of Corrections, who

in his official capacity is charged with carrying out the execution and procuring

lethal injection drugs, the Warden of the Georgia Diagnostic Prison, who in his

official capacity is charged with carrying out the execution and implementing the

injection of lethal drugs, and the Attorney General of the State of Georgia, whose

office has assisted the Department of Corrections in finding and procuring lethal

injection drugs. The Eighth Amendment to the United States Constitution and


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Lethal Injection Secrecy Law (O.C.G.A. 42-5-36(d)) prevents Mr. Hill from

receiving any information necessary to prosecute his Eighth Amendment claim

under Baze v. Rees, 553 U.S. 35 (2008). The Supreme Court recently explained

the showing that is necessary to establish an Eighth Amendment violation in the

context of an unduly risky execution procedure:

Our cases recognize that subjecting individuals to a risk of future

harm-not simply actually inflicting pain-can qualify as cruel andunusual punishment. To establish that such exposure violates the

Eighth Amendment, however, the conditions presenting the risk must

be Asure or very likely to cause serious illness and needless suffering,@

and give rise to Asufficiently imminent dangers.@ Helling v.

McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22(1993) (emphasis added). We have explained that to prevail on such a

claim there must be a Asubstantial risk of serious harm,@ an

Aobjectively intolerable risk of harm@ that prevents prison officials

from pleading that they were Asubjectively blameless for purposes of

the Eighth Amendment.@ Farmer v. Brennan, 511 U.S. 825, 842, 846,and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Baze v. Rees, 553 U.S. 35, 49-50 (2008). Plaintiff can make this showing. The

Defendant=s intended use of an unknown, anonymously compounded substance not

conforming to FDA guidelines for drug safety, purporting to be Pentobarbital to

execute Plaintiff creates a substantial risk of needless suffering as required by

Baze.

According to Georgias lethal injection protocols, a condemned inmate is

executed via injection of the drug Pentobarbital. If the correct dosage of


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Pentobarbital is properly administered and the drug is of adequate quality, this

should, in theory, result in a humane death. If there is a problem with the purity,

potency, composition or administration of Pentobarbital, there is a grave risk of

excruciating and unnecessary pain and suffering, or of irreparable harm and injury

without causing death.

I. Georgias Recent, Checkered History Regarding Lethal InjectionDrugs Engenders No Trust That The Department of Corrections

Will Obtain Safe, Potent, Uncontaminated Drugs From A

Reputable Source.

Mr. Hill has reasonable cause for concern regard his upcoming execution.

Since 2010, there has been an increasingly short supply of lethal injection drugs

available to Departments of Corrections in the United States. This is due to the

creation of end-user agreements by major drug manufacturers in Europe, who do

not want to participate, through the use of their drugs, in capital punishment in the

U.S. (See App. H to Pl. Compl.) To address this shortage in 2010 and 2011, the

state of Georgia obtained illegally imported, expired, sub-potent drugs from a

pharmacy run out of the back door of a run-down driving school in London,

England. (Apps. H, I, J, K, L, and M to Pl. Compl). The state of Georgia used

these drugs in two executions before the Drug Enforcement Agency (DEA)

raided Georgias lethal injection drug supply and confiscated Georgias illegally


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imported cache of drugs. (App. I to Pl. Compl.) Both executions that used this

supply of illegally imported, compromised drugs resulted in significant pain and

suffering for the individuals executed. In Brandon Rhodes case, his eyes

remained open for the entirety of his execution, indicating consciousness during

the process. (App. N to Pl. Compl.). In the case of Emmanuel Hammond, Mr.

Hammonds eyes also remained open, and he grimaced and appeared to be trying

to communicate throughout his execution. (App. P to Pl. Compl.)

Based on its unseemly efforts in the past to get lethal injection drugs at any

costeven through illegal meansand its willingness to use patently expired

drugs of unknown safety and origin on human beings, it is evident that the Georgia

Department of Corrections has developed a culture of shoddiness and

unprofessional conduct surrounding executions in this state and cannot prudently

be trusted to obtain and use lethal injection drugs without any oversight. Moreover,

the history of the Department of Corrections changing its entire drug protocol on

the eve of Mr. Hills first scheduled execution, combined with the state secrecy

statute, gives Mr. Hill no ability to predict what the Department of Corrections

may do and what drugs they may use to execute him, should their stated plans to

use compounded pentobarbital fall through. Hill v. Owens, 292 Ga. 380, 381

(2013).


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II. Mr. Hill Has No Information Concerning the Source and Qualityof the Drug With Which the Department of Corrections Will Seek

to Execute Him on July 15.

On July 10, 2013, the Georgia Department of Corrections responded to an

Open Records Act request made on behalf of Mr. Hill with a series of redacted

documents revealing that the Department of Corrections had entered into

agreements with an unknown compounding pharmacy and an unknown prescriber

of drugs in order to procure pentobarbital for the execution of Mr. Hill. Pursuant

to the Lethal Injection Secrecy Law (codified at O.C.G.A. 42-5-36(d)), all

information pertaining to the identities or the location of the parties and/or entities

involved in this transaction were redacted and remain unknown to Mr. Hill. (App.

D to Pl. Compl.).

Without any information regarding the origin or makers of the drug that the

Department of Corrections is planning to use to execute him, Mr. Hill is left with

no reliable 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. (App. V to Pl. Compl. at 48). The

Department of Corrections switch from the use of FDA-approved pentobarbital to

compounded pentobarbital constitutes a significant change in the DOCs lethal


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injection protocol, and it is one that adds an unacceptable risk of pain, suffering

and harm to Mr. Hill to the process of lethal injection.

Compounding pharmacies are not subject to stringent FDA regulations and

the sources from which they obtain the active pharmaceutical ingredients (APIs)

for their drug concoctions are often part of the global grey market, which is one

of the leading sources for counterfeit drugs entering the United States. Even if the

API obtained and used by the compounding pharmacy is not counterfeit, there is a

significant chance that it could be contaminated with bacteria, fungus, or

particulate matter such as dirt and dust, all of which create grave likelihood that the

lethal injection process could be extremely painful for Mr. Hill, that he could suffer

a severe allergic reaction and anaphylactic shock, that he would suffer and have a

lingering death, or that the drugs would be sub-potent and harm or handicap him

without actually killing him.

The production of sterile injectable drugs, such as the pentobarbital that the

Department of Corrections currently plans to use in the execution of Warren Hill,

is one of the most complex, risk-fraught operations of the modern pharmaceutical

industry. Yet, the great majority of compounding pharmacies who supply sterile

injectables have no way to test or assure the purity of the APIs they obtain for use

in compounding and it is often difficult for a compounding pharmacist to know


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where the drug was manufactured, or under what conditions. (App. V to Pl. Compl.

at 49). Most compounding pharmacies further lack the capability to purify the API

or to sterilize the end compounded product to ensure that it is free from fungus,

bacteria, or other endotoxins and particulate matter. Even with the best

compounding techniques, it is not possible to produce a sterile injectable suitable

for use in humans from contaminated materials. Indeed, a recent, voluntary survey

of several compounding pharmacies by the FDA,1 found that ten of the twenty-nine

products sampled from these organizations were contaminated, sub-potent, or

unsuitable for pharmaceutical use in some way. (App. U to Pl. Compl. at 7; App.

V at 49-50).

Without information from the Georgia Department of Corrections

regarding the identities, suppliers, compounders, and prescribers of the lethal

injection drugs that will be prepared for Mr. Hills scheduled execution on July 15,

2013, Mr. Hill cannot know with any reliability whether the pentobarbital with

which the DOC intends to execute him is appropriate for this purpose, or whether it

is likely to cause him suffering and harm.

1Compounding pharmacies are largely outside the purview of the FDA and are regulated

by the states. (App. U to Pl. Compl.,generally)


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ARGUMENT

Injunctive relief is necessary in this case to maintain the status quo. Without

the requested relief, Mr. Hill will suffer irreparable harm in that he will be

executed in an unconstitutional manner. There will be no harm of any significance

to other parties if a stay of execution is granted: Mr. Hill will remain in the

custody of Defendant at the Georgia Diagnostic and Classification Center, where

he has been continuously since his conviction. Accordingly, a continuation of the

status quo will cause absolutely no harm to other parties. Moreover, no public

interest is served by executing an individual in violation of the Georgia and United

States Constitutions. In contrast, a strong interest is served by examining the

questionable substances obtained and possessed by the Department of Corrections.

While, it is settled law that mere apprehension of danger of injury will not require

equitable relief, [t]his does not mean. . .that equitable relief will be denied where

solid reasons are alleged and shown to justify the apprehension. Maddox v.

Threatt, 225 Ga. 730, 731 (Ga. 1969)(citations omitted). In Mr. Hills case, he has

demonstrated that he has solid reasons to be apprehensive about the harm that may

befall him through the use of the states anonymously compounded, secretly

sourced lethal injection drugs.


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Moreover, due process demands that the State be enjoined from carrying out

Mr. Hills execution while it refuses to disclose information critical to a

determination of the constitutionality of its intended actions. Enjoining Mr. Hills

execution fully comports with precedent from the United States Supreme Court

recognizing that due process does not permit the government to benefit from its

suppression of information that might undermine the legality of its intended

actions.

In criminal cases, for instance, [i]f the Government refuses to provide state-

secret information that the accused reasonably asserts is necessary to his defense,

the prosecution must be dismissed. General Dynamics Corp. v. United States,

131 S. Ct. 1900, 1905-06 (2011). See, e.g., Jencks v. United States, 353 U.S. 657,

672 (1957) (holding that a criminal action must be dismissed when the

Government, on the ground of privilege, elects not to comply with an order to

produce, for the accuseds inspection and for admission in evidence, relevant

statements or reports in its possession of government witnesses touching the

subject matter of their testimony at trial); cf. Roviearo v. United States, 353 U.S.

53, 60-61 (1957) (holding that [w]here disclosure of an informers identity, or of

the contents of his communication, is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must give


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way. In these situations, the trial court may require disclosure and, if the

Government withholds the information, dismiss the action).

Although Mr. Hills criminal litigation has ended, the rationale

underlying these decisions fully applies here. As the High Court has explained:

The rationale of the criminal cases that, since the Government which prosecutes

an accused also has the duty to see that justice is done, it is unconscionable to

allow it to undertake prosecution and then invoke its governmental privileges to

deprive the accuse of anything which might be material to his defense. United

States v. Reynolds, 345 U.S. 1, 11 (1953).2 Here, the State of Georgia has the

duty to see that justice is done, which must perforce include the duty to avoid a

cruel and unusual execution and to provide the process due even a condemned

man.

2While this rule was not applied in Reynolds, a civil tort action against the government,

as a basis to compel the production of documents the government claimed were privileged

military secrets, this has no particular bearing here. In Reynolds, the Court explained that thecriminal rule has no application in a civil forum where the Government is not the moving party,

but is a defendant only terms to which it has consented. While the state is not the moving

party to this lawsuit, it is clearly the moving party for the execution Mr. Hill seeks to enjoin.Moreover, as the Supreme Court has since explained, Reynolds decided a purely evidentiary

dispute by applying evidentiary rules: The privileged information is excluded and the trial goes

on without it. General Dynamics Corp., 131 S. Ct. at 1906. Here, by contrast, the States non-disclosure obscure[s] too many of the facts relevant to [a lethal injection challenge, renderingthat challenge] nonjusticiable . . . . Id. In General Dynamics, the Court ruled that, because the

state secrets privilege would not permit the development of a valid affirmative defense, neither

the government, nor the contractor could proceed and that the parties would remain in the

position in which they were the day suit was filed. Id. at 1906-07.


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For these reasons, Mr. Hill respectfully requests that the injunction

preventing Plaintiffs execution issue and remain in place until:

1) Such time as Defendants can demonstrate that all controlled substances

used for Plaintiffs execution are not counterfeit, compromised, tainted by fungus,

bacteria, endotoxins, or other particulate matter, sub-potent, super-potent, expired,

or illegally obtained; and

2) Until such time as Defendants can demonstrate that measures are in place

to allow for Plaintiffs execution in a manner that complies with the Eighth

Amendment to the United States Constitution and Article 1, Section I, Paragraph

VII of the Georgia Constitution punishment; and

3) The substances in the possession of the Defendant can be examined by a

qualified, independent laboratory to determine whether they are in fact what they

purport to be, and whether those substances will act upon Plaintiff in the manner

contemplated by both the Department of Corrections protocols and by the Supreme

Court in Baze. In the event the substances are revealed to be contaminated,

expired or otherwise compromised, Plaintiff respectfully asks that the stay remain

in place until such time as Defendant can demonstrate that he has obtained dosages


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Assistant Counsel

Georgia Department of CorrectionsLegal Office

State Office South

300 Patrol RoadForsyth, GA 31029

This the 12th day of July, 2013.

_______________________

Attorney

Hill2013 07.12 Brief on Motion for Injunction

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