“It is not with malice or glee that (state officials) are forced to conceal information. It is with forced resignation from the knowledge that those opposed to the death penalty will stop at no measure to thwart this constitutional means of punishment.”
-- State's court filing regarding execution secrecy
Lawyers for a condemned killer are seeking to force the state to find a new source for its lethal-injection drugs, contending the compounding pharmacy being used now produces drugs that pose too great a risk of causing needless suffering during executions.
Their court motion was recently filed on behalf of Brandon Astor Jones, 72, who is scheduled to be executed Feb. 2. As expected, Senior U.S. District Judge Charles Pannell dismissed the case on Thursday. Jones’ lawyers had told Pannell their motion was foreclosed by recent precedents set by the federal appeals court in Atlanta, but they wanted the entire court to take a fresh look at the issue.
Jones, the oldest inmate on Georgia’s death row, is under death sentence for the 1979 robbery and murder of Roger Dennis Tackett, 30, a high school teacher working a second job as manager of a convenience store in Cobb County.
Jones’s codefendant in the murder was executed 30 years ago.
In a recent court filing, state attorneys said the last seven executions carried out by the state used a compounded lethal-injection drug — pentobarbital — and all seven inmates were calm, fell asleep and remained still until they were put to death.
State attorneys also attached “execution timelines” compiled by officials who observed the most recent executions.
The person observing Brian Keith Terrell’s execution on Dec. 9, for example, wrote that Terrell was “still and quiet” at 12:32 a.m. when receiving an injection from a second syringe. At 12:37, Terrell “appears to be asleep” and three minutes later was still, the observer wrote. At 12:52 a.m., after doctors checked for signs of life, the warden announced Terrell’s execution had been carried out.
But Jones’ lawyers note that two prior executions were put on hold last year after batches of pentobarbital that were to be used in those lethal injections were found to be cloudy. This translates into an unacceptable error rate of about 20 percent, the motion said.
Cloudiness poses a threat because the “injection of a precipitated solution would be akin to having small pieces of broken glass projected into your blood vessels,” Jones’ lawyers said. To avoid such a risk, the state should obtain its drugs from another source.
The request by Jones’ legal team is an unusual tactic. In 2008, the U.S. Supreme Court set an important precedent when upholding Kentucky’s method of execution. To prevail when challenging an execution protocol, inmates must not only show that lethal injection poses a demonstrated risk of severe pain, the high court said; they also must show the risk is substantial when compared to other, reasonably available alternative methods.
Jones’ lawyers are saying that a better alternative is not another method of execution, just another source of pentobarbital.
The lawyers are also asking that Georgia’s lethal-injection secrecy law be declared unconstitutional. The law shields from public view many facets of the execution process, such as the identities of the compounding pharmacist, the prescribing physician and those who carry out the lethal injections.
The law enables the state to carry out executions “with no scrutiny of any kind, save for their superficial and outcome-determinative self-investigation,” the filing said. “In short, (the state carries out its) gravest duty with impunity and no accountability whatsoever.”
State attorneys responded by saying the secrecy law has been a success because the state’s source of pentobarbital has been protected from the “rabid manipulations of death penalty opponents” during the past seven executions.
“It is not with malice or glee that (state officials) are forced to conceal information,” the filing said. “It is with forced resignation from the knowledge that those opposed to the death penalty will stop at no measure to thwart this constitutional means of punishment.”
As for the cloudy drugs detected last March, that problem “has now clearly been solved,” the state’s motion said. It added there is no evidence that inmates Terrell, Kelly Gissendaner and Marcus Johnson suffered any pain when they were injected with compounded pentobarbital during the final four months of 2015.
Jones’ lawyers have noted that prior rulings by three-judge panels on the 11th Circuit Court of Appeals in Atlanta sparked concern from three judges on the court. Writing either dissents or separate opinions, these judges questioned the legality of Georgia’s secrecy law. The 11th Circuit currently has 11 judges, meaning six of its members must agree for the full court to hear Jones’ appeal.
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