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Documents: Georgia officials indecisive about execution
Georgia Execution Werm
Michael Patter, senior minister at Central Congregational United Church of Christ, prays silently during a vigil for Kelly Gissendaner and protest against the death penalty Monday on the steps of the State Capitol. - photo by Associated Press

ATLANTA — Georgia prison officials were indecisive about whether to proceed with a cloudy lethal injection drug, at one point saying they weren't sure whether they checked "this week's or last week's" batch, according to court documents.

Ultimately, they postponed the execution of Kelly Renee Gissendaner late Monday night. A day later, they decided to temporarily halt all executions until they could more carefully analyze the cloudy pentobarbital.

The cloudy drug bolstered death penalty opponents, who have been vocal in their opposition after several botched executions in other parts of the country and the increasing use of compounding pharmacies for execution drugs.

Gissendaner had originally been set for execution last week on Feb. 25, but it was postponed because of a threat of bad weather.

Attorneys for Gissendaner, who was convicted of murder in the February 1997 slaying of her husband, said in a filing with the U.S. Supreme Court that a lawyer for the state called them around 10:25 p.m. Monday to say the execution would be postponed several days because the state's pharmacist had looked at the drug an hour earlier and determined it was cloudy.

The state's lawyer called back about five minutes later to say the prison wasn't sure which drugs they had checked, "this week's or last week's," and that they were considering going forward, the filing says.

The lawyer then called a third time, saying "this particular batch (of drugs) just didn't come out like it was supposed to" and they weren't going to proceed, according to the court filing.

About 11 p.m., the state told reporters the drug was sent to an independent lab to check its potency and the test came back at an acceptable level, but the prison was postponing the execution "out of an abundance of caution."

The back and forth was detailed in Gissendaner's emergency motion for a stay of execution filed late Monday with the U.S. Supreme Court.

Georgia and other death penalty states have been buying made-to-order execution drugs from compounding pharmacies in recent years after pharmaceutical companies stopped selling to U.S. prisons. Georgia's execution calls for a single-drug injection using pentobarbital.

Since switching from a three-drug combination to pentobarbital alone in July 2012, Georgia has carried out five executions, four of them with drugs bought from a compounding pharmacy.

Many death penalty states have also adopted secrecy laws to hide the identity of their drug providers. A 2013 Georgia law prohibits the release of any identifying information about the source of execution drugs or any entity involved in an execution, classifying that information as a "confidential state secret."

Gissendaner's appeals before the Supreme Court — including one that argues Georgia's lethal injection procedures aren't transparent enough to allow a court challenge — are still pending.

Gissendaner would have been the first woman executed in Georgia in 70 years and only the 16th woman put to death nationwide since the Supreme Court allowed the death penalty to resume in 1976. About 1,400 men have been executed since then, according to the Death Penalty Information Center.

Gissendaner and her husband, Douglas Gissendaner, had a troubled relationship and Gregory Owen was her on-again, off-again lover.

Prosecutors said Gissendaner repeatedly pushed Owen to kill her husband. Acting on her instructions, Owen ambushed her husband while she went out with friends, forced him to drive to a remote area and stabbed him multiple times.

Owen and Gissendaner then met up and set fire to the dead man's car in an attempted cover-up. Both initially denied involvement, but Owen eventually confessed and testified against his former girlfriend. Owen is serving a life prison sentence and is eligible for parole in eight years.


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