Criminal Justice

State appeals judge’s order to reveal source of lethal injection drug

Lawyers for the state Department of Corrections haven’t complied with a federal judge’s order to disclose information about the source of Louisiana’s lethal injection drugs, instead asking an appeals court to reverse the decision.

Lawyers representing a convicted child-killer on death row responded Tuesday, saying this “is simply the latest effort by the Defendants to shroud their lethal injection protocol in secrecy.”

Last week, U.S. District Court Judge James Brady ordered the state to reveal the manufacturer and source of the lethal injection drugs that officials plan to use in execution.

Earlier this year, shortly before Christopher Sepulvado was to be executed, the state changed its plan to allow for a mix of the sedative midazolam and the painkiller hydromorphone. The state wants to withhold information regarding the acquisition and administration of those drugs — just as it tried to do with a previous execution drug.

“As the Plaintiffs have pointed out, this Court has twice denied similar attempts by the Defendants to protect information concerning the execution protocols,” Brady wrote in his order.

He did grant some of the state’s requests for secrecy, including identities of those “directly and personally involved in the process of carrying out the execution,” but not those involved with making or testing the drugs. State law protects the identities of people directly and indirectly involved in executions.

The deadline to produce the information was Monday. Instead, the state filed a motion to stay Brady’s order and a separate appeal with the U.S. Court of Appeals for the Fifth Circuit.

In its motion in Brady’s court, the state said his order to disclose the information was an “abuse of discretion.”

Later Tuesday, Brady denied the motion to stay his order.

According to a letter filed in appeals court, the state was supposed to produce information about the source of the drug by the end of the day Wednesday. But that deadline was supplanted by the appeals court, which put a hold on Brady’s order so it could consider the state’s appeal.

Officials for the Louisiana Department of Public Safety and Corrections have argued that individuals involved with manufacturing, testing or administering of the drugs could suffer harassment from death-penalty opponents. They wanted to reveal certain information — including the source of the drug, the lot number and the identities of people involved — only to people involved in the lawsuit.

In Monday’s motion in Brady’s court, Department of Corrections lawyer James Hilburn added that the identity of the drug’s manufacturer doesn’t make a difference in the lawsuit because they don’t “render the end-product any worse or any better.”

The drugs in question were used once before in what death penalty opponents call a botched execution. In Ohio, the mix of midazolam and hydromorphone reportedly caused convicted rapist and killer Dennis McGuire to gasp and snort before dying during his January execution.

In late January, death-penalty opponents argued that an execution using those drugs could amount to “human experimentation.”

The legal proceedings are part of a lawsuit filed by Sepulvado, who in 1993 was convicted of murder for killing his stepson by beating him with a screwdriver and submerging his body into scalding water, and by death-row inmate Jessie Hoffman, who was convicted of the 1996 kidnapping, rape and murder of Mary “Molly” Elliott.

The innmates argue that they have a right to know exactly how the state intends to execute them, and that they have a right not to suffer a cruel or unusual death under the U.S. Constitution.

Around the country, states are arguing for secrecy as they seek viable lethal injection drugs.

In February, two days before Sepulvado was set to be executed with the new two-drug mix, a federal judge granted him a stay of execution to allow for a hearing to determine the constitutionality of the drugs.

The hearing was set for April, but it’s since been pushed back to June so the state can revise its lethal injection protocol.

This story was updated after publication to reflect that Brady denied the state’s motion and that the state has until the end of the day Wednesday to produce the information. It was updated again after the appeals court stayed Brady’s order. (March 11 and 13, 2014)

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