Georgia must face civil rights claims by some of its prisoners on death row who allege they’re not being given the protections offered to others in line for execution, a federal appeals court has ruled.
The state agreed in 2021 not to execute nine prisoners until certain conditions related to the coronavirus pandemic had been met. The agreement, still protecting those prisoners, did not extend to other prisoners on death row who at the time were still appealing their detention.
Three prisoners not covered by the agreement — Lyndon Pace, Jerry Heidler and Warren King — can sue the state alleging unequal treatment, the 11th U.S. Circuit Court of Appeals ruled Friday.
The court, which covers Georgia, Florida and Alabama, reversed a decision by a federal judge in Atlanta who dismissed the case in September 2024 before any evidence had been exchanged.
“The unequal treatment between death-row prisoners who are covered by the agreement and those who aren’t is a sufficiently concrete equal-protection injury,” a three-judge panel of the 11th Circuit wrote in the ruling.
A spokesperson for the office of Georgia Attorney General Chris Carr, which is defending the state in the case, declined to comment.
Nathan Potek, a federal defender who argued the case on behalf of the prisoners, said they are “pleased that the 11th Circuit has ensured that we will have our day in court and we look forward to litigating the constitutionality of the state’s unequal treatment of our clients on the merits.”
The three prisoners, on death row since the 1990s, can now pursue the relief they sought when they filed their case in April 2024: the same treatment afforded to the prisoners covered by the agreement.
Georgia has 33 prisoners on death row, the state Department of Corrections reports.
At the time the complaint was filed, Pace, Heidler and King were the only prisoners on death row who had exhausted their detention appeals but were excluded from the agreement, solely because their appeals hadn’t ended until 2023. Their lawsuit came about a month after the state executed the only other prisoner in the same situation.
Prisoners covered by the agreement ended their detention appeals before a pandemic-era judicial emergency expired in June 2021. They get more time to prepare for clemency, their last chance to avoid execution.
Under the agreement, the state promised to wait six months after all pandemic-related conditions were met before seeking an execution. It also promised to seek the maximum warrant period of 20 days and wait at least 30 days before seeking another execution.
That amount of notice and preparation time is not afforded to prisoners outside the agreement, Pace, Heidler and King argued, claiming the state is violating their constitutional rights to equal protection and due process.
Willie Pye, the prisoner whose detention appeal also ended in 2023, was executed 20 days after the state obtained his death warrant in early 2024, the 11th Circuit noted in its ruling. It said the risk that Pace, Heidler and King “will face an impaired clemency proceeding is substantial.”
Pace raped and strangled to death four women, three of whom were more than 78 years old, the 11th Circuit said. It said Heidler broke into a couple’s home and shot them and two of their children to death, and that King and an accomplice shot and killed a woman as she left work for the night.
The state is arguing in a separate case that all conditions of the agreement have been met and it should be free to seek execution warrants. The Georgia Supreme Court recently held that a vaccine-related condition of the agreement has been satisfied. A Fulton County judge must now decide in that case if visitation at Georgia prisons has returned to normal.
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