Fulton judges denies Wellons appeal of contested lethal injection

Condemned killer Marcus Wellons lost a round of last-minute appeals Friday when a Fulton County judge rejected his lawyers’ argument that lethal injection is a medical procedure and the state had to follow certain rules in securing a compounded drug for his scheduled execution on Tuesday.

“Lethal injection does not constitute practice of medicine,” Superior Court Judge Alford Dempsey said as he also gave Wellons’ lawyers a certificate to immediately appeal the decision to the State Supreme Court.

Wellons is also trying to stop his execution on two other fronts. His lawyers have an appointment with the State Board of Pardons and Paroles Monday morning. Later in the day his lawyers will argue in federal court that the secrecy around the identities of the pharmacy and pharmacist who makes the 5000 milligrams of pentobarbital for Wellons’ execution violates his constitutional rights.

Wellons is scheduled to die Tuesday for raping and strangling 15-year-old India Roberts, who lived in a townhouse near the one where Wellons’ girlfriend lived. The teenager kissed her mother good-bye the morning of Aug. 31, 1989, left to meet the school bus but was abducted on the way.

Wellons’ attorney, Bill Morrison, argued that the state should not be allowed to secure the drug for Wellons’ execution from a perscription written by a contracted physician because there is no doctor-patient relaitonship. Without a “valid” prescription for a medical condition or without a doctor-patient relationship, by extension the Department of Correction could give drugs to inmates to control them and get rid of guards, he argured.

“We’re going above and beyond what the law requires,” said Assistant Attorney General Dana Weinberger. “The law doesn’t require us to get a prescription (for lethal injection drugs), but we got one this time.”

On Monday, Wellons attorneys will attack a 2013 law that keeps secret the identities of those who obtain and make lethal injection drugs. Wellons execution was scheduled shortly after the State Supreme Court, in a 5-2 opinion, upheld Georgia’s lethal-injection secrecy law, saying it plays a “positive role” in the capital punishment process.

Secrecy around the drugs also has been an issue raised in other states as they prepare to carry out executions.

If Wellons is executed, he will be first in Georgia to be put to death by a compounded drug, one made specifically for him, and the first to die since it became law that the source of drugs used and the identities of those involved in executions is a secret.

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