ATLANTA A Georgia judge indefinitely extended a stay of execution on Thursday for condemned killer Warren Lee Hill that will allow him to challenge a new law shielding the identity and methods of the company that makes the state's lethal injection drugs.
State attorneys will ask the Georgia Supreme Court to lift the stay and allow the execution to proceed on Friday evening. If the stay is lifted, Hill could become the first Georgia prisoner executed with drugs obtained in secret.
If the court declines to act, Hill's punishment could be delayed for months while the law is challenged. That could similarly affect other executions in the state, defense attorney Brian Kammer told Reuters.
Hill, 53, was sentenced to die for fatally beating another inmate in 1990 while serving a life term for killing his girlfriend. His execution had been scheduled for earlier this week but was delayed for Thursday's hearing.
The new Georgia law, which went into effect on July 1, allows the state to conceal the source of lethal injection drugs from the public, attorneys and judges in court proceedings.
Fulton County Superior Court Judge Gail Tusan ruled on Thursday that Hill's attorneys were "likely to prevail" on the challenge to the new law, which has never been tested in court.
It was passed in March by legislators concerned about the dwindling supplies of pentobarbital, the injection drug, amid pressure by anti-death penalty advocates on companies that provide lethal injection drugs to the state, attorneys said.
State attorneys said the law was designed to protect those companies from harassment and lawsuits, but defense attorneys argued the law makes it impossible to determine whether a drug has been tainted with other substances that could cause excessive pain to the prisoner.
It is unconstitutional to execute a prisoner in a manner considered to be cruel and unusual punishment, but the law would prevent an inmate's ability to be protected under that provision, attorneys said.
"It could be made in a factory where they make pesticides," Kammer said. "If an execution was botched, the court can't even investigate what went wrong. They say to Mr. Hill, 'Just trust us.'"
State attorneys told Tusan that the dose of the single drug, pentobarbital, Georgia uses in lethal injections is so large that an inmate is rendered unconscious in a few seconds. Even if the drug were contaminated, it would not cause the prisoner undue pain, they said.
"They perish quite quickly," Sabrina Graham, a Georgia assistant attorney general, told Tusan during the hearing.
Georgia has nearly 100 inmates on its death row, some for several decades, according to the state's Department of Corrections website. Hill's is the only execution currently scheduled.
If the state Supreme Court agrees with Tusan's ruling, it could delay the other executions from being scheduled while the legal challenge moves through the courts, Kammer said.
In addition to challenging the constitutionality of the state law, Hill's lawyers have also filed an appeal to the U.S. Supreme Court saying he should not be executed because he is mentally disabled.
(Editing by Karen Brooks and Ken Wills)