Criminal Justice

As execution looms, state says prisoner must show why expired drugs are bad

Death row inmate Christopher Sepulvado’s execution appears closer after federal and state judges issued a series of rulings in the past few days.

Sepulvado, who was convicted in 1993 of murdering his stepson, now is scheduled for lethal injection on Nov. 5, according to a death warrant signed Thursday by Judge Robert E. Burgess of the 42nd Judicial District Court in DeSoto Parish.

The warrant comes after the U.S. Fifth Circuit Court of Appeals   on Aug. 30 overturned a preliminary injunction and stay of execution that Sepulvado had been granted earlier this year.

Sepulvado won the stay in February by arguing he had a constitutional due-process right to understand how the state intends to execute him. He successfully argued that the state wasn’t explaining the execution protocol or providing information on how the state acquired the new lethal drug it plans to use.

On Friday, a three-judge panel of the federal appeals court unanimously reversed that decision, noting that no other appellate court had recognized that due-process claim.

“We decline to be the first,” the decision read.

However, the court said its ruling won’t go into effect until Sept. 27, giving Sepulvado time to ask for a rehearing.

Sepulvado’s attorney, Gary Clements, seized on that effective date in saying that Burgess was premature in issuing a death warrant and setting an execution date. On Friday, Clements asked Burgess to rescind the warrant.

Burgess, however, wasted no time in denying that motion.

A handwritten “denied” was on the bottom of the motion Monday morning, with the note: “No stay has been issued to any court in this matter – only collateral cases which have no authority over the action of this court.”

Also Monday morning, the state filed a motion to dismiss Sepulvado’s federal lawsuit, based the federal appeals court ruling.

The ruling found that the Sepulvado’s due process right was not violated when the state withheld information about pentobarbital, the lethal-injection drug the state bought in May 2011. Sepulvado asked to see a lethal injection protocol, which the state argued to keep secret for security reasons.

In June, a magistrate judge ordered the state to turn over the protocol, and the Department of Corrections complied. However, lawyers subsequently 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.

However, the state’s motion for dismissal argues that Sepulvado doesn’t have a due-process right to know the expiration date of the drug that killed him.

“Inmates scheduled to be executed have no right to know the details of the execution,” the state pleading reads.

The state’s motion also argues that there was no evidence that Louisiana will use drugs that have expired.

In the motion filed Monday, the state maintained that it was Sepulvado’s burden to prove that the drugs which might be used to kill him are rendered less potent by expiration, and that the lack of efficacy would cause any type of cruel or unusual punishment.

“To assume a drug is unsafe without adequate proof is reversible error,” the state argues.

The question of expired drugs had been the focus of several articles written by The Lens in the past year. Most recently, the change of ruling on Sepulvado’s stay of execution raised questions that The Lens has been asking since February: Does the state have the drugs needed to carry out executions, and, if so, when do those drugs expire?

The 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,” Laborde told The Lens in April.

But on Monday, the state argued that even if the drugs were expired, it would be hard to prove that they could be harmful while they’re being used during an execution.

The state says Sepulvado must “explain how potentially expired or illegally-obtained drugs equate to harm during an execution,” the state’s motion reads. “The plaintiff must still establish the link between the questionable drug and the serious harm during an execution.”

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  • NJB

    As long as the drugs do their job (kill him), expiration date should then be irrelevant.