Five days before Georgia planned to kill Willie Pye by lethal injection, Assistant Federal Public Defender Nathan Potek stood before a U.S. district judge and made a final pitch to save his client. Everyone, even a man condemned to die, was entitled to equal protection under the law, Potek said. Yet his client was a member of a “disfavored class” thanks to discriminatory actions by the state. And it was about to cost him his life.

Pye was sentenced to die in 1996 for murdering his former girlfriend, Alicia Lynn Yarbrough. His conviction raised red flags, from Pye’s low IQ score to his trial attorney’s alleged racism toward his own clients. Yet Potek wasn’t arguing that Pye faced racial discrimination or that his sentence violated the Eighth Amendment ban on executing people with intellectual disabilities. As far as the law was concerned, those claims were null and void.

Instead, Potek proposed a novel argument. Of the 41 people on Georgia’s death row, Pye was one of several who had exhausted their appeals. Yet Pye alone faced imminent execution while the others were shielded by a legal agreement with the state that had placed executions on hold. “There is no meaningful difference” between Pye and these other men, Potek said.

In many ways, Pye’s predicament came down to bad timing. Georgia’s moratorium dated back to March 2020, when the Covid-19 pandemic led the Georgia Supreme Court to declare a judicial emergency, halting executions. As months passed, death penalty lawyers became concerned over the growing number of clients whose cases were reaching their final appeals — and who would be hamstrung by restrictions on prison visitation that prevented their attorneys from preparing for clemency applications and late-stage litigation once executions restarted.

The eventual result was a written agreement in April 2021 between the Federal Defender Program in Atlanta and the Georgia Attorney General’s Office, which promised not to seek any new execution dates until the judicial emergency had been lifted, normal visitation had resumed, and the Covid vaccine had been made available to “all members of the public.”

Still, there was a catch: The agreement only applied to people whose appeals were exhausted during the judicial emergency, which was officially lifted in June 2021.

Today, the same visitation restrictions remain in place. The Georgia Department of Corrections does not allow as many visits as it did before the pandemic, which has “impaired counsel’s ability to … prepare for clemency proceedings and adequately represent their clients,” as the Georgia Supreme Court found. Yet Pye is not protected by the Covid-era contract. Because his appeals were exhausted in 2023, his execution will almost certainly move forward.

It was not long ago that Pye stood a good chance of getting off death row. As the federal defenders were negotiating the April 2021 agreement, a panel of the 11th U.S. Circuit Court of Appeals was considering a legal challenge alleging that Pye’s trial attorney had provided ineffective representation. It was a long shot; although Pye’s attorney had failed him in profound ways, the barriers standing in the way of relief are hard to overcome. But that same month, the panel vacated Pye’s death sentence, sending the case back for resentencing. It was rare for a federal court to intervene when it came to such a Sixth Amendment claim, the panel acknowledged. “This is one of those rare cases.”

Pye’s victory was short-lived. At the urging of the attorney general’s office, the full circuit court reversed the panel’s order the following year on procedural grounds. Whatever the failures of Pye’s trial lawyer, it ruled, under the Antiterrorism and Effective Death Penalty Act, Pye was not entitled to relief after all.

If the reinstatement of Pye’s death sentence was devastating, there was an additional irony that proved especially cruel. Had the 11th Circuit simply rejected his appeal, Pye would have been protected by the agreement between the federal defenders and the state. Instead, the temporary relief led his case to fall through the cracks, placing him in line for execution. His trial lawyer’s failures had doomed him a second time.

With few good options, Pye’s lawyers challenged the looming execution using a civil rights claim ordinarily associated with class-action lawsuits. Under the 14th Amendment, Pye was entitled to equal protection under the law. By excluding Pye from the agreement, the state had created “a distinct, disfavored class of death row prisoners, one without the baseline guarantee of adequate representation,” Potek wrote in a federal court filing. This further violated Pye’s Fifth Amendment right to due process and deprived him of the fundamental right to life.

An oral argument on the matter was set for March 15 at the federal courthouse in Newnan, Georgia. Presiding over the hearing was Timothy Batten, chief judge of the U.S. District Court for the Northern District of Georgia. A former trial attorney nominated by George W. Bush, Batten had presided over Pye’s federal appeals since 2013. He did not hide his skepticism of Potek’s argument.

“He’s already lost his right to life, right?” Batten asked. Potek conceded that while it was a lawful execution order, Pye was entitled to constitutional rights as long as he was still alive — and his disparate treatment ahead of his clemency hearing violated those rights. “I’m sure you would have cited it if there was any case in the country that was like this,” Batten said.

Potek tried to impress upon the judge how hastily and opportunistically the state had moved to execute his client. As recently as late February, Pye’s lawyers were negotiating a potential settlement with the attorney general’s office to apply the Covid-era agreement to his case. But on February 27, lawyers for the attorney general abruptly ended the negotiations. Two days later, “with no notice,” the state obtained an execution order. Pye’s date was set for March 20 at 7 p.m. “They didn’t have to provide any notice, did they?” Batten said. “Not statutorily,” Potek said, but it was nonetheless “alarming” behavior. “That wasn’t alarming to me,” Batten replied bluntly. “So go on.”

The hearing lasted less than an hour. Pye’s argument was nothing more than a delay tactic, a lawyer for the attorney general’s office told the judge. “All of it is about more time to get ready for an execution he has known about for over 25 years.”

Outside the courtroom, anti-death penalty activist Cathy Harmon-Christian expressed dismay. The executive director of Georgians for Alternatives to the Death Penalty, she was working to get word out about Pye’s case........

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