Alleging the state of Texas botched the year's first two executions by using too-old drugs, lawyers for a death row inmate filed last-minute claims to halt a Thursday night death date for a Dallas man who killed his two daughters. A federal judge denied the claim just an hour before John Battaglia's scheduled execution.
The lawsuit cames on the heels of one execution where witnesses said the prisoner appeared to be jerking in pain, and another where the inmate said the drug burned.
"Ohh weee, I can feel that it does burn," Houston serial killer Anthony Shore said as the lethal dosage began coursing through his veins during his Jan. 18 execution, witnessed by a Chronicle reporter.
Less than two weeks later, William Rayford grimaced and twitched on the gurney before he died, witnesses said.
"William raised the upper part of his body to about 30 degrees. He was shaking and looked at me as if he wanted to say something, as if in distress, as if asking for help," witness Liliane Sticher wrote in an affidavit. "He was shaking. The upper part of his body was shaking."
The Texas Department of Criminal Justice begged to differ.
"This is nothing more than legal maneuvering," said spokesman Jason Clark, pointing out that both men received more than twice the lethal dose of death drugs and were pronounced dead after 13 minutes. "The executions took place without incident. To claim otherwise is not factual."
The problem, lawyers for the condemned Dallas man allege, is that the state's supplies of the lethal barbiturate sodium pentobarbital are simply too old. Compounded drugs - like those used in Texas executions - should have a beyond use date not more than 45 days out, the suit says. But records show the state may be using drugs that are at least a year old.
"It looks like Texas might have caused a botched execution by using substandard compounded drugs that they knew had passed their original beyond use date," said Maya Foa, an expert who works with pharmaceutical companies on protecting medicines from misuse in executions. "They have systematically flouted the regulations on compounding, using secrecy to hide their activities, and potentially causing enormous suffering to prisoners."
Now, lawyers for John Battaglia [
executed on Feb. 1] claim that carrying out his execution with the current drug supply could be a violation of the Eighth Amendment's ban on cruel and unusual punishment, in light of the old drugs and allegedly insufficient testing.
"The symptoms exhibited by Mr. Shore and Mr. Rayford correspond with those caused by the use of expired drugs that, as a result, have become contaminated, degraded, or sub-potent," alleges the suit launched by death penalty attorneys Maurie Levin and Greg Gardner as well as Houston-based lawyer Patrick McCann.
With barely four hours to go till Battaglia's date with death, his lawyers have asked for a reprieve, citing a slew of constitutional violations.
"To carry out Mr. Battaglia's execution with these same drugs knowingly subjects him to a substantial risk of cruel and unusual punishment," the suit notes. "He seeks this Court's intervention."
The latest legal claim comes on the heels of two other high-profile lethal injection suits and a swirling cloud of secrecy regarding the state's drug supplies and suppliers.
Typically the state's drugs have beyond use dates at least a year in the future, but experts have previously voiced suspicions about what the Texas Department of Criminal Justice does with those supplies when they're set to expire.
In July, on the same day a batch of drugs was set to expire, the state sent eight doses back to the supplier and got eight doses back the same day, listed in a log simply as "return from supplier." The state has previously declined to explain what, specifically, that designation indicates - but Levin offered up one possible explanation.
"An educated guess is that they're using the same drugs that they previously stated already expired," Levin - one of the lawyers in Battaglia's civil case - told the Chronicle in August. "But because they insist on keeping this information secret, we don't know what they're doing."
Unraveling the details is challenging, given the state's reluctance to clarify its response to requests. In early January, in response to a Chronicle request for the dates of receipt and expiration for all current lethal injection supplies, the department indicated some of its drugs were initially obtained in 2015 and some in early 2017, though accompanying logs indicated the former was likely inaccurate. When asked to clarify and confirm current supplies included three-year-old drugs, TDCJ declined.
"We will be providing no further information and consider this request closed," the department wrote in an email. A records request received late Thursday seemed to indicate that some of the drugs were received in 2016 as well.
The state last year launched a federal suit over 1,000 vials of a different lethal injection drug - sodium thiopental - seized by the U.S. Food and Drug Administration after the feds said the drugs were improperly labelled and not approved for injection in human. But Texas deemed the move an "unjustified seizure" and filed suit last year, hoping to get the drugs back.
TDCJ is also named in a lethal injection suit on behalf of Bart Whitaker, a Fort Bend man on death row for his role in a murder plot that left dead his mother and brother. That claim, challenging the method of execution and drug testing protocols, is now in front of the U.S. Supreme Court.
Source: chron.com, Keri Blakinger, February 1, 2018
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