Hours before Kelly Gissendaner’s execution early Wednesday morning, the federal appeals court in Atlanta issued a ruling that showed just how effective Georgia’s lethal-injection secrecy law has become.
The court, in a 2-1 opinion, rejected Gissendaner’s contention that Georgia’s lethal-injection protocol was untrustworthy and that the state’s execution practices posed a serious risk that she would be subjected to needless suffering during her execution. But the dissenting judge questioned how, after problems with Gissendaner’s previously scheduled execution in March, the state could “hide behind that veil of secrecy” and not provide some level of assurance its compounded pentobarbital would no longer be a problem.
Gissendaner, 47, was put to death Wednesday at 12:21 a.m., hours after once again being denied clemency by the State Board of Pardons and Paroles. Its decision, issued Tuesday afternoon, was also cloaked in secrecy.
The Atlanta Journal-Constitution’s Rhonda Cook was among those who witnessed Gissendaner’s execution. In her account, Cook said Gissendaner began singing “Amazing Grace” as the lethal injection process began. Her voice was joyful during the first verse, but the condemned woman struggled to sing during the second verse as the pentobarbital took hold.
Gissendaner was sentenced to death because she persuaded her lover, Gregory Owen, to kill her husband in 1997. Owen knocked Doug Gissendaner unconscious, then stabbed him repeatedly in the neck. Owen pleaded guilty and testified against Gissendaner; he will be eligible for parole in seven years.
In a special report published in June, the AJC showed how the lethal-injection process works. The challenge mounted by Gissendaner’s lawyers noted her previously scheduled execution on March 2 had been called off because the state’s doctor and pharmacist concluded that the compounded pentobarbital that was to be injected into her was visibly cloudy and not appropriate for medical use.
After that execution was called off, Gissendaner lawyers filed a challenge to Georgia’s lethal-
injection process in federal court in Atlanta. The cloudy, unacceptable drug, the lawyers said, threw into question the state’s prior assurances that compounded pentobarbital would be the same as pentobarbital approved by the Food and Drug Administration.
And, because of Georgia’s secrecy law, it would be impossible to confirm whether the state’s assurances were correct, Gissendaner’s lawyers said.
This caught to attention of 11th Circuit Judge Adalberto Jordan, an appointee of President Barack Obama who joined the court in 2012. Jordan dissented to the three-judge panel’s ruling that denied Gissendaner a stay of execution.
“Georgia can certainly choose, as a matter of state law, to keep much of its execution protocol secret, but it cannot hide behind that veil of secrecy once something has gone demonstrably wrong with the compounded pentobarbital it has procured,” Jordan wrote. “It is not asking too much to require Georgia to put on some evidence that will provide some level of confidence that its compounded pentobarbital is no longer a problem.”
Chief Judge Ed Carnes and Judge Gerald Tjoflat disagreed. In a joint majority opinion, they said the allegations raised by Gissendaner’s lawyers about the problems with the compounded drug on March 2 fail to establish that she faced a substantial risk of serious harm during her execution.
“To the contrary, the allegations that those charged with carrying out her previously scheduled execution stopped it out of a concern that there might be a problem with the lethal injection drug, evidences exactly the opposite,” Carnes and Tjoflat wrote. “The allegations show that the defendants were cautious and took steps to avoid a substantial risk of serious harm.”
The two judges also noted the U.S. Supreme Court had already recognized that opponents of capital punishment had made Georgia’s execution drug, pentobarbital, largely unavailable through open channels.
“To require, as Gissendaner is seeking, that Georgia open up about its source of pentobarbital would result in the drug becoming completely unavailable for use in executions, even though its use does not violate the Eighth Amendment,” the majority opinion said.