Criminal Justice

Appeals court lets execution move forward

A panel of federal appeals judges has decided that the state should move forward with the execution of death row inmate Christopher Sepulvado.

Sepulvado was convicted in 1993 of killing his stepson. He was scheduled for lethal injection Feb. 13, but was given a stay of execution about a week before when a U.S. District judge decided that Sepulvado deserved more time and resources to determine if a new one-drug execution process amounts to cruel and unusual punishment.

On Friday, however, the United States Court of Appeals for the Fifth Circuit found that the stay of execution was made in “error,” and that Sepulvado is not entitled to injunctive relief.

“A preliminary injunction is an extraordinary remedy,” the ruling reads, going on to state, “the district court abused its discretion by granting Sepulvado’s untimely motion for a stay.”

The change of ruling on Sepulvado’s stay of execution raises questions that The Lens has been asking since earlier this year: Does the state have the drugs needed to carry out executions, and, if so, when do those drugs expire?

The Louisiana Department of Corrections has not provided that information to The Lens, stating instead that records establishing expiration date or current inventory of its supply of pentobarbital were unavailable.

“As I’m sure you are aware … the Department is not required to create a document where one does not exist in responding to a public records request,” DOC communications director Pam Laborde told The Lens in April.

Sepulvado also has been asking Louisiana for more information about how the state intends to kill him.

The stay was issued in connection with a federal lawsuit that also deals with the question of lethal injection drug availability and efficacy. The crux of the lawsuit argued for an inmate’s right to due process to find out that information.

On Friday, the appeals court found that the district court that issued the injunction did not meet the first requirement for that ruling – the “substantial likelihood of success on the merits,” or that Sepulvado was likely to win his lawsuit, based on the argument of right to due process.

The appellate court found that Sepulvado’s right to due process was not violated, as the lawsuit argued.

At the time that Sepulvado was given his stay of execution, his lawyer, Gary Clements, argued as part of the lawsuit that the state lacked a clear procedure – a “protocol” – for executions.

“It has been changed multiple times in the past 10 years,” Clements said in February.

Just days before that ruling, the Louisiana Department of Public Safety and Corrections had announced that the state was switching from a three-drug method to one drug, pentobarbital, due to the unavailability of one of the drugs previously used.

Clements said that the principle of due process means his client deserved more information about who is administering pentobarbital, the shelf life of the drug, its expiration date and when the state obtained it.

Moreover, Clements contended that Louisiana’s method of execution is unconstitutionally cruel and unusual.

Clements had filed a motion to merge his client’s lawsuit with that of Jessie Hoffman, who made the case that the state had failed to provide basic information about the three-drug lethal injection process. When Sepulvado joined the lawsuit, the same two arguments – the right of due process and the question of constitutionality – were applied to the one-drug execution method.

After the two plaintiffs had demanded to see the protocol to find more information about how the state intended to execute them, the state refused to hand over the document, stating that doing so would create “serious security concerns.”

In June, a magistrate judge ordered the state to turn over the protocol, and the Department of Corrections complied. However, a lawyer for Hoffman, Michael Rubenstein, argued that the document the state turned over was still inadequate for his client’s purposes.

Among other things, the document did not include the expiration date for the pentobarbital it orders the state to use during lethal injection.

On Friday, however, the appeals court found that Sepulvado’s due process right was not violated when the state withheld protocol details.

“Perhaps the state’s secrecy masks ‘a substantial risk of serious harm,’ but it does not create one,” the ruling reads.

Moreover, the ruling found that Sepulvado’s lawsuit was untimely, because he challenged the state’s secrecy two years after Louisiana repealed its lethal injection protocol.

“Any harm accrued in December 2010, and Sepulvado has not explained his failure to bring a claim before December 2012,” the court said.

Sepulvado, however, merged his lawsuit with Hoffman’s in January 2013. The protocol, which names pentobarbital as the drug to use for lethal injections, has two dates on it – Jan. 9, 2013 and Dec. 1, 2012, according to a document obtained by

The Department of Corrections bought its supply of pentobarbital in May 2011, according to records obtained by The Lens.

However, there is still the question of when the drug was made. It has a shelf life of three years, according to Lundbeck Inc., the manufacturer that produced the pentobarbital.

“Mr. Sepulvado disagrees with today’s decision of the Fifth Circuit Court of Appeals and intends to file further legal challenges of that opinion, in the form of a motion for a rehearing and, if necessary, subsequent litigation to the United States Supreme Court,” Clements told The Lens in an email.

“The issue of exactly how the State of Louisiana intends to execute Mr. Sepulvado remains unanswered and we will continue to litigate his right to discover and challenge the execution process which remains shrouded in secrecy.”

Louisiana Attorney General Buddy Caldwell cheered the court’s action.

“This horrific murder of a 6-year-old child occurred over 20 years ago. Jurors decided that this murderer beat and scalded to death his stepson, Wesley Allen Mercer, and over the past 16 years, state and federal courts at all levels have confirmed his guilt,” Caldwell said in a written statment.  “Now, the unanimous verdict handed down by a jury of his peers has finally been honored.”

DeSoto Parish District Attorney Richard Johnson said, “This was one of the very first cases that I assisted in prosecuting as an assistant district attorney in DeSoto Parish.  I am glad that the family is finally getting closure and justice will be done.”

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