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   HOUSTON (AP) - A federal appeals court on Wednesday threw out a ruling requiring the Texas prison system to disclose more information about where it gets lethal-injection drugs, reversing a judge who had halted an upcoming execution.
   Only hours before the appellate decision, a lower-court judge issued a temporary injunction halting the execution of Tommy Lynn Sells, a convicted serial killer who was set to die Thursday.
   The case originally included Ramiro Hernandez-Llanas, another inmate scheduled to be put to death next week. But the appellate ruling affected only Sells. The appeals court said it would take up Hernandez-Llanas' case at a later date.
   Texas officials have insisted the identity of the drug supplier must be kept secret to protect the company from threats of violence and that the stock of the sedative pentobarbital falls within the acceptable ranges of potency.
   Defense attorneys say they must have the name of the supplier so they can verify the quality of the drug and spare condemned inmates from unconstitutional pain and suffering.
   In the lower-court ruling, U.S. District Judge Vanessa Gilmore ordered the Texas Department of Criminal Justice to provide defense attorneys with details about the supplier and how the drug was tested.
   Lawyers for the state appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, saying the arguments from the inmates' attorneys "are nothing more than a calculated attempt to postpone their executions."
   Last month, the U.S. Supreme Court rejected similar arguments about execution secrecy in a Missouri case, and the condemned prisoner was put to death.
   Gilmore's ruling "honors the importance of transparency in the execution process," said Maurie Levin, an attorney for the inmates. "And the order makes it clear this last-minute litigation and stays of execution would not be necessary if (the prison agency) had not ignored the rule of law and tried to shield this information from the public and the light of day."
   Texas prisons spokesman Robert Hurst said the agency had no comment because the matter was still in court.
   Since obtaining a new supply of pentobarbital two weeks ago, the Department of Criminal Justice had cited unspecified security concerns in refusing to disclose the source and other details about the drug.
   "As a result, the state's secrecy regarding the product to be used for lethal injection has precluded (the inmates and their attorneys) from evaluating or challenging the constitutionality of the method of execution," Gilmore wrote in a five-page opinion.
   Questions about the source of drugs have arisen in several states in recent months as numerous drugmakers - particularly in Europe, where opposition to capital punishment is strongest - have refused to sell their products if they will be used in executions.
   That has led several state prison systems to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.
   A batch of pentobarbital Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.
   The inmates "are entitled to discover how the state plans to put them to death," said Levin and Jonathan Ross, another attorney in the case.
   Levin filed an open-records request on March 11 seeking the name of the supplier from the Department of Criminal Justice.
   Last week, defense attorneys won an order from a state court that directed prison officials to identify the new provider of pentobarbital, but only to them. The Texas Supreme Court put that order on hold on Friday and set a deadline for briefs to arrive after Sells and Hernandez-Llanas' scheduled execution dates.
   The defense turned next to the federal courts, which resulted in Wednesday's ruling.
   Deborah Denno, a Fordham University law professor, said Gilmore's decision showed courts "are skeptical of explanations" offered by prison agencies.
   "I think Texas always draws attention," Denno said, explaining that the state accounts for a third of all executions and has typically resisted oversight of its execution methods.
   Texas appeared to be attempting to match efforts of other states to keep execution details secret, she said.
   "They don't seem to be operating in a vacuum," she said.
   In three previous opinions, the attorney general's office has directed the Texas prison agency to release records about its lethal injection drugs.
   Lauren Bean, a spokeswoman for Attorney General Greg Abbott, said the office had 45 business days to reply.
   Sells, 49, was convicted of killing a 13 year old South Texas girl asleep at her home in 1999. Kaylene Harris was stabbed nearly two dozen times and had her throat slashed. A 10 year old friend also was attacked but survived. Sells confessed to the slaying and has been tied to more than 20 others around the nation. He has claimed responsibility for as many as 70 murders.
   Hernandez-Llanas, 44, a Mexican national, was convicted of killing a Kerrville-area rancher, Glen Lich, 48, who had employed him.
 
Published in National News

   A compounding pharmacy in Oklahoma won't be the one providing Missouri with a made-to-order drug for an upcoming execution.  Court documents filed Monday show that death row inmate Michael Taylor has reached an agreement with The Apothecary Shoppe in Tulsa.  Under the deal, the pharmacy won't prepare or provide pentobarbital or any other drug for use in Taylor's execution.  

   Taylor's attorney, Matt Hellman, says the pharmacy has not already provided any such drug to the Missouri Department of Corrections for Taylor's execution which is scheduled for February 26.

   Missouri Corrections officials have said Taylor's execution will go on as scheduled, but it's not clear where the state will get the necessary drug for lethal injection, or if the state already has enough pentobarbitol on hand for the task. 

   Taylor has pleaded guilty to the 1989 abduction, rape and murder of a 15 year old Kansas City girl.

Published in Local News

   A federal judge agreed late Wednesday to temporarily block an Oklahoma pharmacy from providing an execution drug to the Missouri Department of Corrections for use in an upcoming lethal injection.

   The temporary restraining order was issued after a federal lawsuit was filed in Tulsa by Missouri death row inmate Michael Taylor. His attorneys said the department contracts with The Apothecary Shoppe in Tulsa to provide compounded pentobarbital, the drug set to be used in Taylor's execution on Feb. 26.
   The lawsuit argued that several recent executions involving the drug indicate it would likely cause Taylor "severe, unnecessary, lingering and ultimately inhumane pain."
   In his order Wednesday, U.S. District Judge Terence Kern wrote that Taylor's attorneys submitted "facts demonstrating that immediate and irreparable injury, loss, or damage will result to plaintiff before defendant can be heard in opposition."
   The judge set a hearing for Tuesday and ordered the pharmacy to submit a response to the injunction by Friday. He said the order would remain in effect at least until the hearing.
   But it wasn't immediately clear if the execution would be delayed because of the ruling. The state has not revealed the name of the compounding pharmacy supplying the drug, and The Apothecary Shoppe previously declined to confirm or deny that it was the source of a drug used in an earlier Missouri execution.
   A pharmacy spokeswoman did not return telephone calls seeking comment late Wednesday. Phone and email messages were also left with the Missouri Department of Corrections and the Missouri Attorney General's Office.
   Taylor, 47, pleaded guilty in the 1989 abduction, rape and stabbing death of a 15-year-old Kansas City girl.
   One of Taylor's attorneys, Matthew Hellman of the Washington, D.C., law firm Jenner & Block, said the lawsuit focuses attention on the drug used in Missouri's lethal injections and the laws regarding compounding.
   "We're gratified the court entered the order," Hellman said after the Wednesday order. "This lawsuit is about an unacceptable option in carrying out the death penalty and this is why we're seeking to stop The Apothecary Shoppe from providing this unlawful drug."
   Missouri corrections officials turned to The Apothecary Shoppe to supply compounded pentobarbital after manufacturers of the drug refused to provide it for lethal injections, according to the lawsuit.
   In January 2012, a Danish company that had produced pentobarbital under the trade name Nembutal sold the exclusive rights to the drug to an American company, Akorn Inc., on the condition that Akorn not sell the drug for use in executions.
   "Those manufacturers do not want medication to be used for executions," Hellman said.
   Taylor's lawsuit questions whether the pharmacy can legally produce and deliver compounded pentobarbital. It says the pharmacy is not registered as a drug manufacturer with the Food & Drug Administration and alleges it violates federal law each time it delivers the drug across state lines to Missouri corrections officials.
   Along with asking for a temporary restraining order, the lawsuit seeks an injunction barring the pharmacy from delivering "this unidentified, unregulated, untested and unsafe pharmaceutical product." Hellman declined to say whether The Apothecary Shoppe also sells compounded pentobarbital to states other than Missouri.
   Several recent executions that involved compounded pentobarbital indicate use of the drug will subject Taylor to "inhumane pain," the lawsuit says.
   One such execution was that of Oklahoma death row inmate Michael Lee Wilson, 38. Within 20 seconds of receiving the lethal injection at the Oklahoma State Penitentiary on Jan. 9 Wilson said: "I feel my whole body burning." The lawsuit alleges the statement describes "a sensation consistent with receipt of contaminated pentobarbital."
   The lawsuit also sites an Oct. 15, 2012, execution in which South Dakota death row inmate Eric Robert, 50, cleared his throat, gasped for air and then snored after receiving the lethal injection. His skin turned a purplish hue and his heart continued to beat for 10 minutes after he stopped breathing. It took 20 minutes for authorities to finally declare Robert dead.
   "These events are consistent with receipt of a contaminated or sub-potent compounded drug," the lawsuit says.
   Use of the same drug in Taylor's execution could result in a similar reaction, Hellman said.
   "It is extremely disturbing," he said.
   On Monday, Missouri Corrections Department Director George Lombardi told a legislative panel that the agency pays for the drug to be independently tested to make sure it works and is sterile. He also said the agency had found no substantial issues in a background check of its current supplier.
   Lombardi did not release the name of the pharmacy that provides the drug, saying Missouri could not carry out lethal injections if that information were released. He said the state pays $8,000 in cash to the pharmacy for the drug.

 

Published in Local News
ST. LOUIS (AP) - Attorneys for condemned inmate Herbert Smulls are pressing on with concerns about Missouri's execution drug, even as the state prepares for its third execution since November.
 
Smulls is scheduled to die by injection one minute after midnight Wednesday for killing St. Louis County jeweler Stephen Honickman in 1991. On Sunday, attorneys for Smulls filed a motion with U.S. District Court. It alleges that the state's refusal to name the compounding pharmacy that makes Missouri's execution drug prohibits them from proving that the execution method could cause pain and suffering for the inmate.
 
His attorneys have also asked for clemency from Gov. Jay Nixon.
 
St. Louis County prosecutor Bob McCulloch says Smulls callously planned the killing, and deserves to be executed for the crime.
Published in Local News

ST. LOUIS (AP) - The planned use of a common anesthetic in a Missouri execution next month is raising concerns that the anti-death penalty European Union could limit export of the drug, endangering the supply to thousands of hospitals and clinics across the U.S.

Convicted killer Allen Nicklasson is scheduled to die Oct. 23 in the first execution to use propofol.

Fifty million vials of propofol are administered annually in the U.S. during surgery and other procedures requiring anesthetic. Roughly 85 percent of the U.S. supply is made in Europe by the German company Fresenius Kabi.

But the EU prohibits trade in goods that could be used for executions and is reviewing whether to subject propofol to controls that could slow export to the U.S.

Fresenius Kabi has launched a website expressing its concerns.

 

Published in Local News

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