HillGeorgia2013 07.15 Motion to Dismiss (AG)

7/28/2019 HillGeorgia2013 07.15 Motion to Dismiss (AG)

1/47

IN THE SUPERIOR COURT OF FULTON COUNTYSTATE OF GEORGIA

WARREN LEE HILL,Plaintiff,

v.BRIAN OWENS, CommissionerGeorgia Dep't of Corrections,BRUCE CHATMAN, Warden

Georgia Diagnostic andClassification Prison,

**************SAMUEL OLENS, Attorney General *State of Georgia1 ***Defendants. *

CIVIL ACTION FILENO.

DEFENDANTS' SPECIAL APPEARANCE MOTION TO DISMISSPlaintiff Warren Lee Hill ("Hill") was convicted of the murder of his

girlfriend and subsequently the murder of a fellow inmate. He was sentenced to

1 According to O.C.G.A. 9-4-7(c), if a Georgia statute is alleged to beunconstitutional, the Attorney General shall be served with a copy of theproceeding and shall be entitled to be heard. Plaintiff has confused this with arequirement to name Samuel Olens, Attorney General of the State of Georgia, as adefendant in this action. Accordingly, the Attorney General respectfully requeststhat this Court dismiss him as a party to the present proceeding. See Pangle v.Gossett, 261 Ga. 307 (1991) (subsection (c) ofO.C.G.A. 9-4-7 does not make theAttorney General a party to the proceeding).


2/47

death for the second murder. Hill's conviction and death sentence have beenupheld on appeal at all state and federal levels of review.

By court order, Hill is set to be executed by lethal injection on Monday, July15,2013. At five o'clock in the afternoon on Friday, July 12, 2013, Hill filed anemergency motion for equitable injunction along with nearly 500 pages of exhibitsconsisting mostly of newspaper articles and exhibits recycled from previousexecution proceedings. He seeks an injunction from this Court to allow him timeto pursue a declaratory judgment on the constitutionality ofO.C.G.A. 42-5-36(d)and to investigate whether Georgia's use ofpentobarbital in his third scheduledexecution will violate his state and federal Constitutional rights. Hill concedesthat if the correct dosage of Pentobarbital is properly administered and thedrug is of adequate quality, his death will be humane. (See Brief in Support ofPlaintiffs Emergency Motion for Equitable Injunction ("Hill Brief') at 3-4).

Defendants have attached to this motion a certificate from an independentlaboratory that confirm both the quality of the pentobarbital to be properlyadministered to him pursuant to Georgia's lethal injection protocol. (AttachmentA). Accordingly, Hill's worries are unfounded. Furthermore, he has no chance ofsucceeding on the merits ofhis claims, much less establishing the likelihood ofsuccess required in order for this Court to grant him injunctive relief, and hismotion should be denied.

2


3/47

I. INTRODUCTIONContrary to Hill's repeated references to the "Lethal Injection Secrecy Act,"

throughout his motion, there is no such statute in Georgia, and none that warrantsthat appellation. Instead, on May 7, 2013, Governor Nathan Deal approved HouseBill122, which entered into force on July 1, 2013. The bill amended O.C.G.A. 42-5-36 to provide for confidentiality of certain identifying infonnation containedin the records of the Department of Corrections relating to the execution of a deathsentence. The relevant portion of the statute now reads:

Confidentiality of information supplied by inmates; penalties for breach;classified nature of department investigation reports; confidentiality ofcertain identifying information; custodians of records

(d) (1) As used in this subsection, the term "identifying information"means any records or infonnation that reveals a name, residential orbusiness address, residential or business telephone number, day andmonth ofbirth, social security number, or professional qualifications.(2) The identifying information of any person or entity who

participates in or administers the execution of a death sentence and theidentifying information of any person or entity that manufactures,supplies, compounds, or prescribes the drugs, medical supplies, ormedical equipment utilized in the execution of a death sentence shallbe confidential and shall not be subject to disclosure under Article 4ofChapter 18 of Title 50 or under judicial process. Such informationshall be classified as a confidential state secret.

3


4/47

O.C.G.A. 42-5-36. This statute does not cloak executions by lethal injection insecrecy nor does it prevent Hill from obtaining crucial information for pursing a

challenge to the State's execution protocols under the Eighth Amendment. Instead,as is demonstrated below, it properly balances the right of innocent individuals toprivacy and to be free from harassment against a death row inmate's right topursue last-minute challenges to the manner in which his execution is to be carriedout. The statute is not unconstitutional on its face or as applied to Hill, and he hasnot demonstrated to the contrary. Therefore, his motion for an injunction and stayofhis execution should be denied.

Hill argues that O.C.G.A. 42-5-36, as amended, is unconstitutional in thatit: 1) denies him his right to due process by denying him meaningful access to thecourts; 2) precludes judicial review of the Department of Corrections' lethalinjection procedure; 3) is overbroad in its classification of state secrets andprovides no mechanism for declassification; 4) violates the Supremacy Clause ofthe United States Constitution by blocking his ability to vindicate his EighthAmendment right to be free from cruel and unusual punishment; and 5) preventshim from obtaining the information he needs to challenge the constitutionality ofhis execution. Hill's challenge to the statute focuses on his imagined right toobtain information about the origins and the manufacture of the Pentobarbital withwhich he will be executed. He also asks for access to state and federal courts to

4


5/47

enforce his due process and Eighth Amendment rights, and requests this Courtgrant him injunctive relief and a writ of mandamus. This Court should deny relief

because: 1) O.C.G.A. 42-5-36( d) is constitutional; 2) Georgia's lethal injectionprocedure does not violate State or Federal law; and, 3) Hill has not shown that heis entitled to injunctive relief.

II. BACKGROUNDDirect review of Hill's conviction and sentence was completed2 when

Georgia's statutory method of execution was electrocution. S e e ~ ' O.C.G.A. 17-10-38(a) (1995). Lethal injection became the method of execution applicable toHill on October 5, 2001, when the Georgia Supreme Court declared death byelectrocution to be unconstitutional. Dawson v. State, 274 Ga. 327, 328-331(2001). As a result, Hill's challenge to the dispensation of drugs under Georgia' slethal injection statute accrued on October 5, 2001 when lethal injection as a meansof execution became applicable to him.

Although there have been revisions to the lethal injection protocolthroughout the years, there have been no substantial changes which would changethe accrual date of Hill's claims. On May 13, 2011, Georgia revised its lethalinjection protocol, substituting pentobarbital for sodium pentothal in its three-drug2 Direct review of Hill's convictions and sentences was completed on November 1,1993, when the United States Supreme Court denied certiorari from his directappeal. Hill v. Georgia, 510 U.S. 950 (1993).

5


6/47

cocktail. As found by the Eleventh Circuit Court ofAppeals in relation toAlabama's protocol, Georgia's substitution of the anesthetic pentobarbital for

sodium pentothaV did not constitute a significant alteration in the lethal injectionprotocol. See DeYoung v. Owens, 646 F.3d 1319 (11th Cir. 2011); Powell v.Thomas, 643 F.3d 1300 (11th Cir. 2011); Valle v. Singer, 655 F.3d 1223, 1226(11th Cir. 2011).

Then, on July 18, 2012, Georgia revised the protocol to eliminate the secondand third drugs, using pentobarbital as part of a single drug protocol. Georgia'schange to its lethal injection protocol mirrors those in ten other states which use asingle-drug protocol, most using pentobarbital as a single drug. (Attachment B).Georgia's revision to its drug protocol was upheld by the Georgia Supreme Courtin Hill v. Owens, 292 Ga. 380 (2013).

Hill has not raised this specific challenge to Georgia's lethal injectionprocedure until now. He did not challenge Georgia's lethal injection procedureduring any of his state or federal criminal or habeas proceedings, and he has notfiled an action pursuant to 42 U.S.C. 1983. However, on July 18, 2012, the dayof his first scheduled execution, Hill filed a stay of execution and an application fora discretionary appeal, challenging the Georgia lethal injection protocol, claimingthat the Georgia Department ofCorrections changed its lethal injection procedure

3 The terms sodium pentothal and sodium thiopental are synonymous.6


7/47

from a three-drug to a single drug protocol in violation of Georgia'sAdministrative Procedure Act. The Georgia Supreme Court granted Hill a stay of

execution and a discretionary appeal on the APA issue. Hill filed his appeal onJuly 25, 2012, and on February 4, 2013, the Georgia Supreme Court upheld thechange of Georgia's lethal injection protocol, holding that the AdministrativeProcedure Act did not apply to the Board's decisions regarding lethal injectionprocedures. Hill v. Owens, 292 Ga. 380 (2013). Hill now files his newestchallenge to Georgia's lethal injection procedure just three days prior to hisTHIRD scheduled execution. Hill's motion is clearly another attempt to delay theState from carrying out his lawfully ordered execution.

II. ARGUMENT AND CITATION TO AUTHORITYA. Hill Has Not Met His Burden Of Establishing That An Injunction

Should Issue In This Case.Under Georgia law, injunctive relief is only available as an action in equity

to restrain certain acts for which no adequate remedy is provided by law.O.C.G.A. 9-5-1. "Equity will take no part, [however], in the administration ofthe criminal law. It will neither aid criminal courts in the exercise of theirjurisdiction, nor will it restrain or obstruct them." O.C.G.A. 9-5-2. Hill seeks to

7


8/47

block the carrying out oforders entered by superior court judges in criminal cases.4To enjoin the carrying out of superior court orders and sentences in criminal cases

most certainly restrains or obstructs criminal courts in the exercise of theirjurisdiction. Furthermore, Hill cannot meet the mandates required to obtain aninjunction. Thus, this Court should deny Hill's motion for injunction.

"[A] preliminary injunction . . . is an extraordinary and drastic remedy, onethat should not be granted unless the movant, by a clear showing, carries theburden ofpersuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); accordSiegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en bane); see also Munafv. Green, 552 U.S. 674, 690 (2008); Drawdy CPA Servi e , North GA CPAServices, 320 Ga. App. 759 (2013) (injunction should not be granted "except inclear and urgent cases where there is a vital necessity to prevent a party from beingdamaged and left without a remedy"); Thomas v. Mayor of Savannah, 209 Ga.866, 867 (1953) ("Injunction is an extraordinary process and the most importantone which courts of equity issue; being so, it should never be granted except wherethere is grave danger of impending injury ... ). "A mere threat or bare fear of suchinjury is not sufficient." Thomas, 209 Ga. at 867.

4 On July 3, 2013, an order was entered by Judge George M. Peagler in criminalcase No. 91-R-14 in the Superior Court ofLee County, Georgia. That order directsthe Defendants in this case to carry out the execution ofWarren Lee Hill, Jr.8


9/47

Equitable remedies, like injunctions, are only available to restrain improperacts for which not adequate remedy is provided at law. See O.C.G.A. 9-5-1. The

purpose of an injunction is to preserve the status quo and balance the conveniencesof the parties pending final adjudication of the issues. Byelick v. Michel HerbelinUSA, Inc., 275 Ga. 505 (2002); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983 ). Injunctive relief is appropriate when "(1) there is substantial threat that themoving party will suffer irreparable injury if the injunction is not granted; (2) thethreatened injury to the moving party outweighs the threatened harm that theinjunction may do to the party being enjoined; (3) there is a substantial likelihoodthat the moving party will prevail on the merits of her claims at trial; and (4)granting the interlocutory injunction will not disserve the public interest." SRBInvestment Services v. Branch Banking and Trust Co., 289 Ga. 1, 5 (2011)(citation omitted); accord Holton v. Physician Oncology Services, 742 S.E.2d 702(Ga. 2013); see also Siegel, 234 F.3d at 1176. The burden ofpersuasion in each ofthe four requirements is at all times upon the plaintiff. Siegel, 234 F .3d at 1176;United States v. Jefferson Co., 720 F.2d 1511, 1519 (11th Cir. 1983). Hill has notmet his burden of persuasion on the four requirements. Hill has not demonstratedthat he will suffer irreparable injury if the injunction is not granted; that thethreatened injury outweighs the threatened hann that the injunction will do to theState; or that the injunction will not disserve the public interest. But most

9


10/47

importantly, he has not demonstrated that he is likely to prevail on the merits ofthis claim that O.C.G.A. 42-5-36(d) is unconstitutional.

B. Hill Has Not Demonstrated That He Will Suffer Irreparable InjuryWithout The Injunction.Hill argues, without any evidence or proof, that he will suffer irreparable

harm in that he will be executed in an unconstitutional manner if the injunctiondoes not issue. (See Hill Brief at 9). His argument is based on mere speculationand is insufficient to support the issuance of an injunction.

"Allegations based on mere apprehension of injury and general conclusions,without alleging facts to show irreparable injury, are insufficient to authorize thegrant of injunctive relief." Insurance Ctr., Inc., v. Hamilton, 218 Ga. 597, 600(1963). The asserted irreparable injury must be neither remote nor speculative as

is the case here, but instead must be actual and imminent. See also O'Shea v.Littleton, 414 U.S. 488 (1974) (explaining that "[t]he injury or threat of injurymust be real and immediate, not conjectural or hypothetical"); see also Church v.

ity ofHuntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (providing that a party hasstanding to seek injunctive relief only if the party alleges, and ultimately proves, areal and immediate- as opposed to a merely conjectural or hypothetical- threat offuture injury). The Eleventh Circuit has "emphasized on many occasions that theasserted irreparable injury must be neither remote or speculative, but actual andimminent." Siegel, 234 F.3d at 1176-1177 (quotations and citations omitted).

10


11/47

The Supreme Court has addressed what constitutes irreparable harm in thelethal injection execution context, holding that "speculation cannot substitute for

evidence that the use of the drug is 'sure or very likely to cause serious illness andneedless suffering."' Brewer v. Landrigan, 131 S. Ct. 445 (2010), citing Baze v.Rees, 553 U.S. 35, 49-50 (2008). Although "subjecting individuals to a risk offuture harm -not simply actually inflicting pain - can qualify as cruel and unusualpunishment, ... [t]o establish that such exposure violates the Eighth Amendment,... the conditions presenting the risk must be 'sure or very likely to cause seriousillness and needless suffering,' and give rise to 'sufficiently imminent dangers.'"Baze, 553 U.S. at 49-50, citing Helling v. McKinney, 509 U.S. 25, 33 (1993)."[T]o prevail on such a claim there must be a 'substantial risk of serious harm,' an'objectively intolerable risk ofharm' that prevents prison officials from pleadingthat they were 'subjectively blameless for purposes of the Eighth Amendment."'Baze, 553 U.S. at 50, citing Fanner v. Brennan, 511 U.S. 825, 842, 846, and n.9(1994); accord Mann v. Palm er, 713 F.3d 1306, 1314 (11th Cir. 2013); DeYoung,646 F.3d at 1325.5

5 Although the issue in DeYoung was whether a stay of execution should begranted rather than whether an injunction should issue, the requirements for a stayof execution and an injunction are the same, including the requirement that amovant establish irreparable injury if the injunction/stay does not issue. SeeDeYoung, 646 F.3d at 1324.

11


12/47

Hill argues that if this Court does not issue an injunction to give him time tochallenge the constitutionality O.C.G.A. 42-5-36( d), his irreparable injury will be

that he is unconstitutionally executed. (Hill Brief at 9). But to prove he will beunconstitutionally executed, Hill must establish that it is "sure or very likely" thathe will experience needless suffering when he is executed. He has not done so.He has presented nothing but speculation about what could happen and what ispossible, not even probable. He has not presented this Court with any evidence orauthority whatsoever to support a claim that execution by lethally injecting a singledose ofpentobarbital will cause needless suffering. In fact, he admits in his briefthat if the correct dosage of pentobarbital is properly administered and the drug isof adequate quality, his death will be humane. (Hill Briefat 3-4). Disclosure ofthe names, addresses, phone numbers, and qualifications of the compoundingpharmacy, supply chain, and manufacturers will not further any claim aboutwhether the pentobarbital is properly administered or is of adequate quality, andHill has not demonstrated how such information will aid him in establishing thesureness or likelihood of harm.

Furthermore, the State is contemporaneously with this response providing acertificate from an independent lab affirming the quality of the pentobarbital that itwill be using in Hill's execution. This should allay Hill's concerns whether thedrug to be used in his execution is pentobarbital and that it is unadulterated. Hill

12


13/47

has wholly failed to demonstrate the likelihood of irreparable injury from the non-disclosure of the identifying information. He has merely presented speculation that

access to the identifying information of the compounding pharmacy and thesupplier or manufacturer will aid him in proving an Eighth Amendment claim.Speculation is an insufficient basis on which to issue an injunction.C. The Harm OfAn Injunction To The State Outweighs Any SpeculativeInjury To Hill.

Contrary to Hill's contention at page 9 ofhis brief, the State will suffersignificant hann by Hill's last-minute request for an injunction and a stay ofexecution. His continuation in custody is harmful to the State in that it underminesand thwarts the State's interest in seeing its judgments enforced. "Both the Stateand the victims of crime have an important interest in the timely enforcement of a

sentence." Hill v. McDonough, 547 U.S. 573, 584 (2006). On August 17, 1990,Hill, already serving a life sentence for the murder of his girlfriend, murdered afellow prison inmate. He was subsequently convicted and sentenced to death onAugust 2, 1991. For almost 22 years, the State has endeavored to enforce Hill'ssentence of death. Although it is too late to see that the judgment is timelyenforced, the granting of an injunction at this late stage, especially without anyshowing by Hill that he will suffer irreparable injury if an injunction and stay arenot granted, will further deprive the State of its significant interest in seeing thatjustice is served.

13


14/47

Neither a stay of execution or an injunction is "available as a matter of right,and equity must be sensitive to the State 's strong interest in enforcing its criminal

judgments without undue interference...." Hill, 547 U.S. at 584. "The SupremeCourt has explained that, 'given the State's significant interest in enforcing itscriminal judgments, there is a strong equitable presumption against the grant of astay where a claim could have been brought at such a time as to allowconsideration of the merits without requiring entry of a stay."' Crowe, 528 F.3d at1293, quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004) (citations omitted).Given this significant interest, dilatory motions for stays brought on the eve of anexecution, like the one here, should be denied. Crowe, 528 F.3d at 1293.

The Georgia Department of Corrections is charged with the duty to carry outall executions for the State of Georgia. See O.C.G.A. 17-10-40. Thus, greatdeference should be afforded to the Department in its management of its statutoryresponsibilities-particularly in light of the fact that both state and federal courts inGeorgia have considered, reviewed, and scrutinized the Department's method ofexecution and found it to be constitutional.

On a motion for an injunction, a plaintiff bears the burden of showing thathis perceived injuries outweigh the damage that the injunction might cause todefendants. Cate, 707 F.2d at 1185. Hill has not even alleged actual harm, let

14


15/47

alone provided evidence of the same, weighing heavily against the grant of hismotion.

D. Granting The Injunction Will Disserve The Public Interest.Granting Hill's motion would be a disservice to the public interest in that it

would encourage the use ofdilatory tactics to avoid the execution of a lawfullyimposed sentence that has received years of review by numerous courts and hasbeen affirmed by those courts as being constitutionally imposed. In contrast, theState's ability to perfonn its statutory mandate of an execution based on the verdictof the people of the State undeniably serves the public interest. The people of theState of Georgia lawfully determined Plaintiffs guilt and punishment. GrantingHill's motion would only work to subvert this lawful determination.

The case of Jones v. Allen provides guidance on this Court's properconsideration of the timing of this action. 485 F. 3d 635 (11th Cir. 2007). There,an inmate facing an execution order filed a civil action challenging the three drugprotocol used for execution in Alabama. The court noted that lethal injection hadbeen the method of execution in Alabama since 2002 and that Jones waited until2006 to file his action. The court concluded that Jones "leaves little doubt that thereal purpose behind his claim is to seek a delay in his execution, not merely toeffect an alteration of the manner in which it is carried out." Id., citing Harris v.Johnson, 376 F.3d 414,418 (5th Cir. 2004). The court went on to note that "if this

15


16/47

court were to grant the motion to stay to allow Jones to proceed on his challenge,the implementation of the State's judgment would be delayed many months, if not

years. Jones, in essence, would receive a reprieve from his judgment." This, thecourt concluded, is a commutation of the death sentence. The court declined tointerfere with the State's strong interest in enforcing its judgment.

Similarly, this Court should not permit Hill to invoke the equity to furtherdelay his sentence on the mere speculation that information not available to himmight help him establish his execution with pentobarbital would beunconstitutional. He has had ample opportunity to challenge his sentence.E. Hill Has Not Demonstrated Likelihood Of Success On The Merits.

In addition to establishing the previous three requirements for an injunction,Hill must also establish that he is likely to prevail on his claim that O.C.G.A. 42-5-36(d) is unconstitutional. Hill argues that O.C.G.A. 42-5-36, as amended, isunconstitutional in five ways: 1) it denies him his right to due process by denyinghim meaningful access to the courts; 2) it violates the Georgia constitution becauseit precludes judicial review of the Department ofCorrections' lethal injectionprocedure; 3) it is constitutionally overbroad in its classification of state secretsand provides no mechanism for declassification; 4) it violates the SupremacyClause of the United States Constitution by blocking his ability to vindicate hisEighth Amendment right to be free from cruel and unusual punishment; and, 5) it

16


17/47

causes him uncertainty, unnecessary suffering and mental anguish in violation ofthe Eighth Amendment. Hill has not established that he is likely to prevail on anyof these arguments.

1. O.C.G.A. 42-5-36 only denies Hill identifying information, notmeaningful access to the courts.Hill first argues that O.C.G.A. 42-5-36(d) is unconstitutional in that it

denies him his constitutional rights under both the United States Constitution andthe Georgia Constitution to access to the courts. Specifically, he argues that thestatute erects "a virtually insurmountable barrier to the filing and prosecution of acolorable Eighth Amendment claim," and that the information protected under thestature regarding the source of the pentobarbital is "critical to an assessment of thelikelihood that [his] execution will be botched and/or that it will inflict unnecessary... pain." (See Hill Verified Complaint (the "Hill Complaint") at 16). He furtheralleges that the identifying information protected by the statute "is indispensablyrelevant" to an understanding as to whether his execution will be performed in aconstitutional manner and without it he has "no means to determine the purity" ofthe pentobarbital or to determine whether it has been contaminated. (HillComplaint at 17). Finally, he argues without the information, he had no means toassess the qualifications of the compounding pharmacy and its agents, the qualityassurance whether the facility is equipped to make sterile products, or to determineif the drug to be used is, in fact, pentobarbital. (Hill Complaint at 18). But these

17


18/47

assertions are unpersuasive because O.C.G.A. 42-5-36(d) does not bar Hill'saccess to the courts in any way. It also does not prevent Hill from challenging theone-drug protocol, or from obtaining information on the drug's purity and itssterility. The remaining information he seeks in order to challenge the use of thedrug - the qualifications of the pharmacy and its agents, quality assurance, andwhether the facility is equipped to make sterile products6 - are irrelevant if thedrug is in fact pentobarbital, it is pure, and it is unadulterated. The State isproviding Hill with certifications attesting to these facts, so he has the informationhe needs to seek review and challenge the drug to be used despite his arguments.

"It is now established beyond a doubt that prisoners have a constitutionalright to access to the courts under the Due Process Clause." Cunningham v.District Attorney's Office for Escambia County, 592 F.3d 1237, 1271 (11th Cir.2010), citing Bounds v. Smith, 430 U.S. 817, 821 (1977) (internal quotation marksomitted). "Access to the courts is clearly a constitutional right, grounded in theFirst Amendment, the Article IV Privileges and Immunities Clause, the FifthAmendment, and/or the Fourteenth Amendment." Chappell v. Rich, 340 F.3d1279, 1282 (11th Cir. 2003). "The fundamental constitutional right of access tothe courts requires prison authorities to assist inmates in the preparation and filingof meaningful legal papers by providing prisoners with adequate law libraries or6 These are entirely irrelevant to an analysis ofwhether Hill is entitled to aninjunction.

18


19/47

adequate assistance from persons trained in the law." Bounds, 430 U.S. at 828(1977). Access to the courts "must be 'adequate, effective, and meaningful."

Cunningham, 592 F.3d at 1271, citing Bounds, 430 U.S. at 822.Although a prisoner has a constitutional right to access to the courts, in order

to establish a violation of that right, "a prisoner must show an actual injury."Cunningham, 592 F.3d at 1271, citing Lewis v. Casey, 518 U.S. 343, 349 (1996)."The injury requirement reflects the fact that 'the very point of recognizing anyaccess claim is to provide some effective vindication for a separate and distinctright to seek judicial relief for some wrong." Cunningham, 592 F.3d at 1271,citing Christopher v. Harbury, 536 U.S. 403, 414-415 (2002). "The injuryrequirement means that the plaintiff must have an underlying cause of action thevindication ofwhich is prevented by the denial of access to the courts." Id.

Hill is not being denied access to the courts as a result of Georgia's statuterespecting the privacy of individuals involved in the lethal injection process. Hemay challenge the method of his execution under the Eighth Amendment in bothstate and federal courts, and he has been able to do so as to the one-drug protocolfor approximately one year, but he has chosen not to pursue those avenues ofrelief. The statute at issue simply does not deny him meaningful access to thecourts; it only deprives him of some limited identifying information that he alleges-but does not convincingly establish - is necessary to prove a cruel and unusual

19


20/47

punishment Eighth Amendment claim. There is no right to access of the privateidentifying information that Hill seeks, only a right of access to the courts. Hill has

access to state and federal courts to challenge his method of execution andO.C.G.A. 42-5-36(d) in no way infringes on that right. It certainly does not erecta barrier to the filing and litigation of an Eighth Amendment claim in state orfederal court.

Hill asserts that the information he seeks under the statute, but is beingdenied, is relevant and critical to an Eighth Amendment challenge by him, and thatbecause it is relevant and critical, he is entitled to it or he will be denied access tothe courts. That argument is not supported by any of the case law on access to thecourts. The right to access to the courts does not include the right to receivediscovery of information in the State's possession, (see Cunningham, 592 F.3d at1266-1271 ), and Hill's reliance on case law on the State's discovery obligations incriminal cases is inapposite to the issue he raises. Neither this case nor any caseHill might now bring in state or federal court would be a criminal case in which hehas the fundamental constitutional rights guaranteed by the Fifth and SixthAmendments to confront the evidence against him or present a defense. Instead,the cases would be civil in nature where discovery is governed by rules ofprocedure developed by Congress, the Georgia General Assembly, and the courts.Any reliance by Hill on the rights of a criminal defendant to evidence the

20


21/47

Government intends to use against him at a trial are simply not controlling orrelevant to the issue raised here and this Court should not be guided by those

Constitutional principles governing only the prosecution of criminal trials.Finally, Hill also relies on the right of access to the courts as provided in the

Georgia Constitution. (Hill Complaint at 14-15). But Georgia's right of access tothe courts is limited. First, "[t]here is no express constitutional right of access tothe courts under the Georgia Constitution." Couch v. Parker, 280 Ga. 580, 366(2006), citing Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413 (1984).And second, the Georgia Supreme Court has held that Art. I, Sec. I, Par. XII "wasnever intended to provide a right of access to the courts," Smith v. Baptiste, 287Ga. 23, 24 (201 0), but merely "is a right of choice (between self-representation andrepresentation by counsel) provision, and not an access to the courts provision,"Couch, 280 Ga. at 366 (internal quotation marks omitted) (citing Santana v. Ga.Power Co., 269 Ga. 127, 129 (1998)). Art. I, Sec. I, Par. XII was never intended toprovide a right of access to the courts, but was intended to provide only a right ofchoice between self-representation and representation by counsel. Hill is notseeking to challenge his right to represent himself; therefore, his right to access tothe courts as contained in the Georgia Constitution is not implicated.

Further, to the extent that Hill's argument relies on his right to due processunder the Georgia Constitution as establishing his right to access to the courts,

21


22/47

Georgia has long recognized that "[t]he right to be heard in matters affecting one'slife, liberty, or property is one of the essential elements of due process of law ..... "Couch, 269 Ga. at 366 (citing Southern R. Co. v. Town ofTemple, 209 Ga. 722,724 (1953)). However, the Georgia Supreme Court has noted that the right to beheard is not absolutely unrestricted and that the "'power of the legislature to create,modify or abolish rights to sue has been clearly and repeatedly recognized both bythe U.S. Supreme Court and by this court . . . The enactment of a statutedelineating or, indeed, even abolishing a cause of action before it has accrued,deprives the plaintiffofno vested right."' Couch, 269 Ga. at 366 (citing Love v.Whirlpool Corp., 264 Ga. 701, 705 (1994)). "Thus, due process recognizes acitizen's unfettered right to defend his or her life, liberty, or property [only] inaccordance with those limitations constitutionally established by the GeneralAssembly. Couch, 269 Ga. at 366. Just as the Georgia Assembly could enact astatute limiting Hill's right to sue, it could also enact a statute limiting his access toinformation in the State's possession that affected his cause of action withoutrunning afoul ofHill's right to due process and/or his right of access to the courts.

Because Hill has not demonstrated that O.G.C.A. 42-5-36 in any wayimpedes his federal or state right of access to the courts, he has not demonstratedthat he is likely to prevail on his constitutional challenge to the statute. Therefore,

22


23/47

he has failed to demonstrate that an injunction and a stay of execution should issuein this case.

2. O.C.G.A. 42-5-36 Does Not Preclude Judicial Review OfGeorgia's Lethal Injection Procedure.Hill next argues that O.C.G.A. 42-5-36(d) is unconstitutional because it

violates Georgia's separation ofpowers doctrine in that in enacting the statute, theGeneral Assembly stripped the judiciary of its authority to review the issue ofwhether Hill's execution will violate the Eighth Amendment prohibition on crueland unusual punishment. But as with his previous claim, Hill misrepresents howthe constitutional principles he invokes apply and he overstates the nature andeffect of the statute at issue. The Georgia General Assembly did not strip anyGeorgia court of its authority under the Georgia constitution and did not thereby

violate the Georgia separation of powers principles embodied in the GeorgiaConstitution. Instead, in enacting O.C.G.A. 42-5-36(d) it merely restrictedaccess to identifying information in order to protect the privacy interests ofindividuals who voluntarily participate in a constitutional and lawful Statefunction. If by doing so, it incidentally prevents Hill from obtaining informationfrom a State agency that he deems relevant to proofof a constitutional claim, it hasnot violated the Georgia Constitution. Instead, it has acted within its power toenact legislation, which is its duty under that Constitution.

23


24/47


25/47

cases. The superior courts shall have such appellate jurisdiction, either alone or bycircuit or district, as may be provided by law." Ga. Const., Art. 6, Sec. 4, Par. I.

In his Complaint, Hill blurs separation ofpowers principles under theGeorgia Constitution and their perceived effects on his constitutional challenge.He argues that the Georgia Assembly stepped out of its role and into the judiciary'srole, usurping the judiciary's power, in enacting legislation limiting access toidentifying information that the Georgia Assembly determined should be subject toconfidentiality. But that argument turns the separation of powers requirement onits head. Under Georgia's Constitution, it is the Georgia Assembly that has theright to enact legislation, including legislation that may impact judicialproceedings. For example, the Georgia Assembly is free to enact legislation on themethod of execution to be used in Georgia, see Adams, 274 Ga. at 462, and on therules of evidence applicable in trials in courts in Georgia, Bell v. Austin, 278 Ga.844, 846 (2005). Courts do not have unlimited power of udicial scrutiny ofinformation a defendant deems relevant to a cause of action, such as the identifyinginformation Hill would like access to. Instead, their scrutiny is limited to review ofthe statute at issue for constitutionality or to interpret its meaning. The statute isnot, however, unconstitutional simply because it impacts court proceedings andwhat evidence a plaintiffor defendant may use to prove a claim.

25


26/47

Additionally, the Georgia Supreme Court has never chastised the GeneralAssembly for alleged "power grabbing" for exercising its constitutional power to

enact legislation, even when that legislation limits what might be admissible incourt to prove a claim. (Hill Complaint at 21 ). And, contrary to Hill's implicationin his brief, there is no constitutional violation, or nothing wrong, with the GeorgiaAssembly "unilaterally determining" that certain information regarding executionsin Georgia should not be disclosed, even pursuant to a court order. In fact, it iswholly within the Assembly's constitutional power to enact legislation, unilaterallyor otherwise, that it deems in the best interest of its citizens, subject only to thatlegislation not violating a constitutional right. Hill has not established that thestatute violates any constitutional right he possesses. He merely argues it willmake it harder for him to prove a violation ofhis Eighth Amendment rights. Thatis insufficient to establish that O.C.G.A. 42-5-36( d) is unconstitutional.

Moreover, there is no issue of testimonial privileges created by the statute,(see Hill Complaint at 21-22), and thus, the cases cited by Hill indicating that thelegislative branch may not interfere with the court's right to resolve issues ofprivilege are irrelevant. The statute does not create any privilege on the part of theDepartment of Corrections; instead, it prohibits disclosure of information subject tomisdemeanor penalties. The statute also does not create any conflict in thestatutory authority of the executive and the authority of the court to enforce the

26


27/47

Constitution. The Department ofCorrections has been stripped by the statute ofany authority to reveal the identifying information, and the court is still at liberty to

determine whether the statute violates the Constitution in a proceeding properlyand timely brought before the court. Although the court may not order release ofthe information under the statute as written, if it finds the statute itself isunconstitutional, it may order whatever remedy it deems appropriate. But beforedoing so, it must first find it violates the Constitution, and the arguments presentedby Hill do not support such a finding.

Finally, courts do not have "independent interpretive authority" over theconstitutionality of any statute or over aspects of the execution process. (HillComplaint at 22). What they do have is the authority to interpret statutes,including O.C.G.A. 42-5-36(d), and to review the constitutionality of Georgia'sexecution procedures only within the confines of a properly and timely filed causeof action by one who has standing to bring the suit. Hill has not properly or timelyfiled a cause of action challenging the statute or Georgia's execution procedures.He has chosen once again to bypass the jurisdiction of courts available to hear hisclaims and instead gambled that his voluminous last minute pleadings willoverwhelm the Court and force a stay. The equities existent in this case compel afinding that an injunction should not issue because Hill is not likely to succeed onhis claims that the statute is unconstitutional. He certainly has not demonstrated

27


28/47

that in enacting the statute the Georgia Assembly violated the separation ofpowersby intruding into the power of the courts to hear cases brought before them.

3. O.C.G.A. 42-5-36 Is Not Unconstitutionally Overbroad.Hill next claims that O.C.G.A. 42-5-36 is unconstitutionally overbroad,

provides no mechanism for declassification, and violates the legislature's intentwhen it enacted the Georgia Open Records Act.

"[I]n all interpretations of statutes, the courts shall look diligently for theintention of the legislature and such intent shall be determined from aconsideration of the entire statute." Agnes Scott College v. Hartley, 741 S.E.2d199, 203 (Ga. App. 2013). Article 4 of Chapter 18 ofTitle 50, O.C.G.A., containsGeorgia's Open Records Act, O.C.G.A. 50-18-70, et. seq. O.C.G.A. 50-18-70(a) clearly expresses that the legislature's intent behind Georgia's Open RecordAct was to codify Georgia's strong public policy in favor of open government,requiring narrow interpretation of all record exceptions in the Code to excludefrom public disclosure only those portions of records addressed by an exception.

Public records are defined by O.C.G.A. 50-18-70 to include all documents,computer-based or generated information, data, or similar material prepared andmaintained or received by an agency or private person or entity in the performanceof a service or function for or on behalf of an agency. If the records are public, therecords may be protected from public disclosure by statute. Hardaway Co. v.

28


29/47

Rives, 262 Ga. 631, 632-33 (1992). If the records are not protected by statute, andif there is a valid claim that the disclosure of the public records would invade

individual privacy then the records should be protected by court order. Id.In Hardaway, the Georgia Department ofTransportation (the "DOT")

resisted disclosure of documents it claimed were protected under O.C.G.A. 24-9-21 as a "secret of state." The DOT conceded that the documents were public andtheir disclosure would not result in the invasion of an individual's privacy.Hardaway, 262 Ga. at 633. The court found that a "secret of state" had not beendefined within the Georgia Code, and compared that phrase with the "confidentialstate secret" language used in other statutes including O.C.G.A. 42-5-36, thestatute whose constitutionality Hill currently challenges. The court found that thelanguage of the statute relied upon by the DOT was more general and did notspecify the information exempted from disclosure as was done for "confidentialstate secrets" protected under O.C.G.A. 42-5-36. Therefore, because no issues ofindividual privacy were involved, the DOT was required to disclose thedocuments. Significantly, the court noted that "this holding in no way foreclosesthe General Assembly from amending [the Open Records Act] to exempt thedocuments at issue [from disclosure]." Id. at 636 n.4 (emphasis added).

O.C.G.A. 42-5-36 is narrowly drafted to protect only the "identifyinginformation," a term defined in subpart (d)(l) as meaning "any records or

29


30/47

information that reveals a name, residential or business address, residential orbusiness telephone number, day and month ofbirth, social security number, or

professional qualifications." O.C.G.A. 42-5-36(d)(l). Subpart (d)(2) identifiesthe classes of people to whom this statute classifies as confidential: "any person orentity who 'manufactures, supplies, compounds, or prescribes the drugs"' to beused in a lethal injection execution. O.C.G.A. 42-5-36(d)(2). Interestingly, thesingle-barbiturate protocol used by Georgia is identical to the alternative protocoladvocated by the inmates to the United States Supreme Court in Baze as a painlessand humane alternative to Kentucky's three-drug protocol. See Baze, 553 U.S. at51. Ironically, as execution in the United States rapidly becomes more humaneand pharmacologically mirrors the procedures permitted in certain U.S. states andEuropean countries within the context of assisted suicide, opponents of capitalpunishment tum more shrill and their tactics to thwart a state's democratically-enacted legislation grows increasingly heavy-handed. As recently detailed in apetition submitted to the Florida Supreme Court on behalf ofLundbeck, a Danishcompany that for years supplied pentobarbital for use in executions in the UnitedStates, being outed and mobbed by these partisans can be a death sentence in itselfto companies particularly located overseas:

Lundbeck has a direct financial interest in preventing a negative responsefrom international consumers based on aversion to Lunbeck' s involvementin ... U.S. executions. That interest is compromised by Florida's use ofLundbeck's product.30


31/47

Lundbeck's stakeholders expect Lundbeck to meet certain ethical standardsand their involvement in the execution drug trade did a great deal ofdamageto their reputation. Media reports criticizing the company proliferated inDenmark, the U.S. and elsewhere in Europe, leading to consumer boycottsofLundbeck products and anti-Lundbeck campaigns online. Stock pricesfell and in May 2011, [the] Danish Pension Fund, Unipension, publiclydivested from the company[.]

Petition ofDr. David Nicholl at 9, 120-13, available athttp://www.floridasupremecourt.org/pub_info/summaries/briefs/11111-1851/Filed_09-26-2011_Petition.pdf (last visited July 15, 2013).

In response to the growing shortage of drugs and companies who wouldprovide drugs for use in executions, the Georgia legislature could have rationallyconcluded that these innocent parties face a unique risk of harm in light ofactivists' current harassing tactics. The revelation of the identifying information ofa pharmacy or doctor involved in a lethal execution has and could prospectivelyexpose that person or entity to potential harassment, bullying, intimidation, andharm, and crafted a legislative remedy which is no broader than required to protectthe interests of both parties and preserve the status quo. Cf. Hill v. Colo., 530 U.S.703, 724-725 (U.S. 2000) (upholding legislative creation of eight-foot buffer zoneat abortion clinics motivated by harassing conduct of anti -abortionists); Frisby v.Schultz, 487 U.S. 474 (1988) (upholding anti-picketing ordinance created inresponse to anti-abortionists who wanted to protest in front of a doctor's house

31


32/47

because they viewed abortion as murder). As repeatedly noted, O.C.G.A. 42-5-36 does not prevent Hill from obtaining the information he considers necessary to

investigate whether the execution scheduled for today will potentially violate hisEighth Amendment rights; it simply prevents him and his sympathizers fromaccess to constitutionally-irrelevant information that has been repeatedly misusedto injure innocent parties who have assisted Georgia with carrying-out its lawfulsentences. Accordingly, this Court should deny him an injunction to pursue hisclaim. See Bryan v. State, 753 So.2d 1244, 1250 (Fla. 2000) (upholding publicrecords disclosure exemption of statute exempting information which, if released,would identify persons involved in prescribing, preparing, compounding, anddispensing drugs for use in lethal injections); accord Henyard v. State, 992 So.2d120, 130 (2008).

4. O.C.G.A. 42-5-36 Does not Violate the Supremacy Clause ofthe United States Constitution.

Hill's fourth argument is that in enacting O.C.G.A. 42-5-36(d), theGeorgia legislature violated the Supremacy Clause and his Eighth and FourteenthAmendment rights as guaranteed by the Constitution. Specifically, he argues thatthe Constitution is the supreme law of the land and that any right arising under theConstitution cannot be nullified by any state or federal officials. He further arguesthat O.C.G.A. 42-5-36(d) violates the Supremacy Clause in that it has the effectof preventing him from establishing an Eighth Amendment violation in the

32


33/47

procedures to be used to execute him, thereby nullifying his rights under the Eighthand Fourteenth Amendment. His argument is completely meritless.

The Constitution and law of the United States are the supreme law of theland. Shelby County v. Holder, 2013 U.S. LEXIS 4917 (June 25, 2013). Becauseof the existence of two sovereigns in this country, (the national and stategovernment), "the possibility that laws can be in conflict or at cross purposes"exists and "[t]he Supremacy Clause provides a clear rule that federal law 'shall bethe supreme Law of the Land; and the Judges in every State shall be boundthereby, anything in the Constitution or Laws of any State to the Contrarynotwithstanding."' Arizona v. United States, 132 S. Ct. 2492, 2500 (2012)(internal quotation omitted). "Outside the strictures of the Supremacy clause,States retain broad autonomy in structuring their governments and pursuinglegislative objectives. Indeed, the Constitution provides that all powers notspecifically granted to the Federal Government are reserved to the States orcitizens." Shelby County, 2013 U.S. LEXIS 4917 at *22.

Under the Supremacy Clause, "Congress has the power to preempt statelaw." Arizona, 132 S. Ct. at 2500. And "[t]here is no doubt that Congress maywithdraw specified powers from the States by enacting a statute containing anexpress preemption provision." Id. "State law must also give way to federal law"

33


34/47

when Congress determines that it should exclusively govern a field of conduct andwhen state law is a conflict with federal law. Id. at 2501.

The intent of Congress to displace state law altogether "can be inferred froma framework of regulation 'so pervasive ... that Congress left no room for theStates to supplant it' or where there is a 'federal interest .. . so dominant that thefederal system will be assumed to preclude enforcement of state laws on the samesubject."' Id. (internal citations omitted). A state law conflicts with federal lawwhen compliance with both state and federal law is a physical impossibility andwhen "the challenged states law 'stands as an obstacle to the accomplishment andexecution of the full purposes of objectives of Congress.'" Id. (internal citationsomitted).

The courts of Georgia have acknowledged the Supremacy Clause and thedoctrine ofpreemption, noting it applies "( 1) where there is a direct conflictbetween state and federal regulation; (2) where state law stands as an obstacle tothe accomplishment and execution ofthe full purposes and objectives of Congress;or (3) where Congress had occupied the field in a given area so as to oust all stateregulation." Hernandez v. State, 281 Ga. 559, 561 (2007) (internal citations andpunctuation omitted); accord Gomez-Ramos v. State, 297 Ga. App. 113, 116(2009).

34


35/47

Finally, "[w ]hile federal preemption of state statutes is, of course, ultimatelya question under the Supremacy Clause, .. . analysis ofpreemption issues depends

primarily on statutory and not constitutional interpretation." City ofPhiladelphiav. New Jersey, 430 U.S. 141, 141 (1977).

Hill argues that O.C.G.A. 42-5-36(d) is in conflict with federal lawbecause it allegedly nullifies his rights under the Eighth Amendment to be freefrom cruel and unusual punishment, but it does not. The statute does nothing morethan prevent disclosure of the names, phone numbers, addresses, and qualificationsof individuals assisting the State in its duty to carry out a lawfully imposedsentence. The statute does not prevent Hill from challenging the method ofexecution or the manner in which that execution is carried out; it does not preventhim from obtaining the names of the pharmacy, the supplier, and the manufacturerthe State is to use in his execution from other sources than from the public recordsin the hands of the Department of Corrections; it does not prevent Hill frompresenting experts on the effects of pentobarbital, pure or adulterated, on theindividual into whom it is injected or on error rates in compounding pharmacies orthe risk of contamination. More importantly, it does not prevent him fromchallenging the pentobarbital that the State has indicated it is going to use in hisexecution and the findings of an independent laboratory on the purity and sterilityof that substance. Hill has wholly failed to present any reason why his Eighth

35


36/47

Amendment rights cannot be protected with the information and proceduresavailable to him. He simply wants more, and neither the Constitution nor federal

law entitles him to that something more -the identifying information the GeorgiaAssembly has determined should be protected from disclosure .

Hill has not identified any federal law which conflicts either expressly orimpliedly with O.C.G.A. 42-5-36(d), and there is none. Moreover, Congress hasnever expressed any intent to preempt state law in the death penalty or method ofexecution areas of law, and it has left these areas of the law largely up to the states,indicating repeatedly the important interests in comity. S e e , ~ , Gregg v.Georgia, 428 U.S. 153, 186-87 (1976) ("Considerations of federalism, as well asrespect for the ability of a legislature to evaluate, in terms of its particular State, themoral consensus concerning the death penalty and its social utility as a sanction,require us to conclude, in the absence ofmore convincing evidence, that theinfliction of death as a punishment for murder is not without justification and thusis not unconstitutional."). Hill has again failed to demonstrate that O.C.G.A. 42-5-36(d) is unconstitutional. Because he has failed to do so, he has also failed toshow that he is entitled to an injunction to pursue this meritless claim.

36


37/47


38/47

Due process does not require that this Court provide Hill one more opportunity tochallenge his method of execution.

Due process does require the right to notice and a meaningful opportunity tobe heard as Hill asserts. Hill has had both the means and has been heard for almost22 years, yet he has repeatedly failed to demonstrate any violations ofhisconstitutional rights that injured him. His hyperbolic rhetoric insisting that a grossinjustice will occur ifhe does not obtain the names, addresses, and phone numbersof those involved in providing the pentobarbital to be used in his execution doesnot establish his constitutional rights will be violated, no matter how many timeshe repeats it. The refusal of State officials to disclose information protected byState law regarding the source of the pentobarbital is simply a collateral issue anddoes not deny Hill notice or an opportunity to be heard. It simply denies himprotected private information of individuals equally entitled to the protection oftheir constitutional rights to privacy and to not be harassed.

Moreover, the State would note that it has not refused to disclose the mannerin which the pentobarbital was made, so the accusation that the State is denyingHill due process in not providing that information is not factually accurate nor thebasis for declaring O.C.G.A. 42-5-36(d) unconstitutional.

Further, Hill can be heard on his Eighth Amendment claim regarding the useof pentobarbital and has had the required notice and opportunity to be heard under

38


39/47

the Due Process Clause for almost one year, when the execution protocol waschanged to the use of a single drug. He has not in the year since the protocol

change availed himself of that opportunity. The State did not- and is notdenying him his right to be heard; his own delay in raising his Eighth Amendmentclaim has.

Finally, Hill again relies on disclosure principles only available under theFifth and Sixth Amendments to the Constitution to individuals during theircriminal prosecutions and trials - the right to confront the evidence against themand to discover information in the possession of the State necessary to assert andprove a defense. Hill alleges that there is no reason why the rationale applicable inthose cases should not apply here, but he is simply wrong. The rationaleunderlying those cases was based on constitutional guarantees available only tocriminal defendants during their prosecutions and trials. Those constitutionalguarantees do not, and should not, apply in civil proceedings long after a finding ofguilt has been made, a sentence imposed, and 22 years of appeals litigated. To seethat justice is served, the State's duty is, at this late date, to see that Hill's lawfullyimposed death sentence is carried out.

Hill has not shown any likelihood of success on the merits of hisconstitutional challenges to O.C.G.A. 42-5-36(d). Therefore, this Court shoulddeny him an injunction and a stay of execution.

39


40/47

III. CONCLUSIONFor the above and foregoing reasons, this Court should deny Hill's

Emergency Motion for an Injunction.

Please Address AllCommunications To:SABRINA GRAHAMAssistant Attorney General40 Capitol Square, S.W.Atlanta, Georgia 30334Telephone: (404) 656-7659Facsimile: (404) 651-6459Email: [email protected]

Submitted this 15th day of July, 2013.SAMUEL S. OLENSAttorney GeneralBETH A. BURTONDeputy Attorney General~ ~ABRINA GRAHAMSenior Assistant Attorney GeneralridsJ( LA.M!i:Af.1J ~ ~MITCHELL WATKINS IAssistant Attorney General

40

551540

027500

305755

740559


41/47

CERTIFICATE OF SERVICEI hereby certify that on the 15th day of July, 2013, I have this day served the

within and foregoing RESPONSE, prior to filing the same, by depositing a copythereof, postage prepaid, in the United States Mail, properly addressed, upon:

Brian KammerGeorgia Resource Center303 Elizabeth Street, NEAtlanta, GA [email protected]

MITCHELL WATKINSAssistant Attorney General40 Capitol Square, S.W.Atlanta, Georgia 30334Telephone: ( 404) 651-9298Facsimile: (404) 651-6459Email: [email protected]


42/47

ATTACHMENT A


43/47

Product Release ReportProllmlnaryDateReport Dale 7/10/2013

Sample No. -rot;luct DescriptionLot No. Pentobarbital Sodium 60 mg/mL lnj. Soln.Expiry S/812013Release Specification: SPEC-APST-035.0Procedure Specification Final DataSterility Negative

Assay 92.Q-108.0% 100.4%as Pentobarbllal Sodium ( 5 0 ~ 17 mg/mq

Acce/eraledmri/Uy tNUng for Ibis productbased on USP template.

Status Date of Test

Passes 7/10/2013

ReferenceACC-SOP-001.0USP

TM-217.0


44/47

ATTACHMENT B


45/47


46/47

by State Lethal Injection IDeath Penalty Information Center http://www.deathpenaltyinfo.orgjstate-lethal-inj

a Superior Court judge rejected requests to set execution dates, saying he did not have jurisdiction to orde r theone-drug procedure that has never been used in California (AP. 9/11/12)

Colorado No No executions on hold due to lethal injection challenge in courtsConnecticut No No uses three-drug protocol; death penalty abolished, but 11 inmates remain on death rowDelaware Yes No began using pentobarbital in three-drug protocol on July 29,2011 (delawareonline.com, 7/29/11)Florida Yes No began using pentobarbital in three-drug protocol on September 28, 2011 (Washington Post, 9/29/11)Georgia Yes Yes used foreign-bought sodium thiopental in 2 executions before sodium thiopental was seized by DEA in March 2011

(ACLU of Northern CA, 5/17/11)began using pentobarbital in three-drug protocol on June 23, 2011 (Reuters, 6/23/11)supply of 17 vials of pentobarbital (enough for about 6 executions) expires March 1, 2013 (AP, 2/18/13)began using one-drug protocol on February 21. 2013 (The Guardian, 2 /21/13)

Idaho Yes Yes began using pentobarbital in three-


47/47

by State Lethal Injection IDeath Penalty Information Center http: //www deathpenaltyinfo.orgl state-lethal-injSouth Yes No sodium thiopental was seized by DEA in April 2011 (ACLU of Northern CA, 5/17/11)Carolina

began using pentobarbita l In three .. col on May 6. 2011 (Reuters , 5/6/11)South Yes Yes Department of Corrections officially altered lethal injection procedures to allow for a one-, two- or three-drugDakota execution process. Changes to procedure will aUow either sodium thiopental or pentobarbital to be used in one..

HillGeorgia2013 07.15 Motion to Dismiss (AG)

Documents

Transcript of HillGeorgia2013 07.15 Motion to Dismiss (AG)