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Despite Botched Execution Claims, Supreme Court Rejects Texas Drug Case

The U.S. Supreme Court on Monday turned down a legal claim over the secrecy surrounding Texas' lethal injection practices and the possibility that aging death drugs could cause suffering.

By Keri Blakinger

The U.S. Supreme Court on Monday turned down a legal claim over the secrecy surrounding Texas' lethal injection practices and the possibility that aging death drugs could cause suffering.

"Texas' current drug supply is so old, using it to carry out executions amounts to scientific experimentation, on human beings," said Maurie Levin, one of the attorneys representing prisoners in the case. "Unfortunately, I expect we will see increasingly problematic executions -- which will only highlight, again, the consequences of Texas' commitment to secrecy above all else."

The move comes weeks after attorneys in a separate case came forward with claims of botched executions in which the prisoners seemed to suffer.

The Texas Department of Criminal Justice pushed back against those claims at the time, and spokesman Jeremy Desel reiterated those objections Monday.

"Compounded pentobarbital has been used by the TDCJ for many years without incident," he said. "The drugs are tested for potency and purity."

Attorneys originally filed the lethal injection suit in 2013, just weeks after the state began using compounded pentobarbital as its drug of choice for executions. The claim initially included three death row prisoners as plaintiffs, though one has since been executed. Another, Thomas "Bart" Whitaker, was granted clemency on Thursday, minutes before his scheduled execution.

But the day after the governor spared Whitaker, the Supreme Court discussed whether to take up the case. On Monday morning, the justices turned it down without comment.

The long-lived legal claim initially centered around the state's then-new protocol. At first, a trial court dismissed the case because none of the three plaintiffs had an execution date set, according to court documents. An appellate court later reversed that, and the prisoners revised their complaint to focus on an alleged lack of safeguards -- including drug testing and adherence to beyond-use dates -- and refusal to release certain information about the protocols.

After what the prisoners' lawyers describe as "limited" discovery, Texas agreed to do more testing before the men's executions, and a court eventually dismissed the case, citing a two-year statute of limitations. Though the suit was filed far less than two years after the state changed its protocol, lawyers wrangled over whether that was the appropriate start date.

But ultimately a higher court agreed with that dismissal, and now the Supreme Court has declined to take it up.

Nearly five years after the case was first filed, just one of the men -- Perry Williams -- is still on Texas' death row.

The court's decision not to take up the case comes on the heels of another failed legal claim surrounding lethal injection practices.

At the start of the month, hours before Dallas prisoner John Battaglia's execution, Levin -- along with defense attorneys Greg Gardner and Patrick McCann -- filed last-minute paperwork alleging the prior two executions had been botched when the state used too-old drugs.

Two days earlier, witnesses said another executed Dallas prisoner, William Rayford, appeared to be jerking in pain as he died. And in January, Houston-area serial killer Anthony Shore said the drug burned, just before he slipped out of consciousness.

Lawyers for Battaglia claimed that the apparent suffering may have stemmed from a practice of extending expiration dates.

"We're starting to see the impact of the use of old drugs -- we saw that in the executions of Rayford and Shore," Levin said Monday. "And they're only getting older so issues of accountability and transparency -- neither of which Texas appears interested in -- will only increase over time."

(c)2018 the San Antonio Express-News

Caroline Cournoyer is GOVERNING's senior web editor.
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