Legal Fight Reopens Over Woman's Execution in Georgia

Kelly Gissendaner in her death row cell

Lawyers for Kelly Gissendaner use botched attempt to argue for a stay

Lawyers for a woman awaiting execution in Georgia are asking a federal court to stay her death sentence in the wake of a botched attempt to carry it out.

Kelly Gissendaner's planned execution has been postponed twice over the past 2 weeks: first in late February due to a winter storm, then in the 1st week of March because the drug that was to be used for her execution looked unusually cloudy.

Her supporters are using the postponements to revive pleas that her life be spared, though state and federal officials have declined such appeals in her case several times. She is the only woman on death row in Georgia and would be the 1st woman to be executed in the state in 70 years.

Ms. Gissendaner has admitted to persuading a man with whom she was involved to kill her husband, Doug Gissendaner, in 1997. She was convicted of murder the following year. The man received life in prison without parole in exchange for testifying against Ms. Gissendaner.

Lawyers for Ms. Gissendaner have said in various court filings that she should receive life in prison. They didn't return calls or emails for comment this past week.

The family of her late husband says her execution would bring long-overdue justice.

On Monday, Ms. Gissendaner's lawyers filed suit in U.S. District Court in Atlanta against Georgia Department of Corrections officials, asking for her sentence to be stayed while state execution protocols and procedures are investigated. In the complaint, the lawyers argue the hours of delay involved in the drug-related postponement in early March subjected Ms. Gissendaner to "mortal fear" and violated a prohibition in the U.S. Constitution against cruel and unusual punishment.

"Ms. Gissendaner endured hours of unconstitutional torment and uncertainty - to which she had not been sentenced - while Defendants dithered about whether they could execute her," the lawyers said in the filing.

The lawyers also challenged a 2013 law that declares the manufacturer of any lethal drug used in executions a state secret, arguing that under the law, the public can't know if the drugs are being made and administered to avoid cruel and unusual punishment.

Death-penalty procedures have come under increased scrutiny nationwide in recent years. A few executions have been botched, including a high-profile case in Oklahoma, as some states turned to alternative drug protocols amid a nationwide shortage of traditional lethal-injection drugs. Some pharmaceutical firms have stopped selling them to states, saying they were uncomfortable being linked to executions.

That development, as well as a recent U.S. Supreme Court case by death-row inmates challenging the constitutionality of Oklahoma's lethal-injection protocols, is spurring states to consider alternatives. On Tuesday, Utah legislators approved a bill to allow firing squads for executions. This past week, the Alabama House voted to keep execution drug-suppliers secret and to bring back use of the electric chair if lethal injections can't be performed.

The Georgia Department of Corrections has postponed all executions while officials analyze what happened with the drug prepared for Ms. Gissendaner's execution, said spokeswoman Gwendolyn Hogan. Once the department is ready to resume executions, a state court would have to reissue a new execution order specifically for Ms. Gissendaner, Ms. Hogan said. "The time frame is unknown," she said.

The state Board of Pardons and Paroles, a 5-member body appointed by the governor that has sole authority to grant clemency in Georgia, has declined Ms. Gissendaner's requests for clemency twice.

The state attorney general's office hasn't yet replied to the latest complaint and a spokeswoman had no comment on the case.

While in prison, Ms. Gissendaner has studied theology, earning a degree and corresponding with religious thinkers. As her execution approached, ministers and others opposing the death penalty wrote letters to the state and signed online petitions urging mercy.

The victim's family has steadfastly urged that the sentence be carried out. "Doug is the true victim of this pre-meditated and heinous crime," the family said in a statement last week. "We, along with our friends and supporters and our faith, will continue fighting for Doug until he gets the justice he deserves no matter how long it takes."

The latest woman to be executed in Georgia was Lena Baker, a black maid who was electrocuted in 1945 for killing her white male employer. In 2005, the state Board of Pardons and Paroles issued her a posthumous pardon, calling the 1945 board decision to ignore her claims of self-defense "a grievous error."

Source: Wall Street Journal, March 15, 2015

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