The attorneys for a man scheduled to die next week for the 1989 murder of a 15 year-old girl are trying to stop his lethal injection by challenging the drug that will be used, the source of it as well as how it was prescribed.
Attorneys for Marcus Wellons filed an appeal in Fulton Superior Court late Wednesday and one in federal court on Thursday — both attacking the drug Georgia plans to use but taking different tactics.
In Fulton Wellons’ lawyers challenge the authority to write a prescription for the drug. In federal court, they attack the secrecy around the identity of the pharmacy making the sedative to be used.
If Wellons is executed, he will be the first in Georgia to be put death by a single drug provided by a compounding pharmacist whose identify is secret. Only once has Georgia used a 5,000-milligram dose of pentobarbital alone to carry out an execution but in that case the drug was mass produced and not compounded specifically for the February 2013 execution of Andrew Cook.
Wellons was sentenced to death for sexually assaulting and strangling India Roberts, who lived in a Vinings townhouse in the same complex as Wellons.
Wellons’ then-girlfriend had told him to leave and she went to stay with a friend while he moved his things. The next day, Wellons abducted the teenager shortly after she left to walk to the school bus stop on the morning of Aug. 31, 1989. The Campbell High School sophomore was possibly strangled with a telephone cord, according to an autopsy report.
The motion filed in Fulton County Superior Court says the state has retained a doctor for $5,000 a year to fill out prescriptions so a compounding pharmacy can make pentobarbital for executions. That person also is covered by the state’s liability coverage — $1 million per person and $3 million per incident, according to Wellons’ motion.
“In entering into this contract with (the state), the prescriber is enriching himself or herself … by selling his or her prescription pad,” the motion says.
Wellons’ lawyers also wrote that state and federal law prohibit dispensing a prescribed drug for “no legitimate medical purpose” or writing a prescription when there is no physician-patient relationship.
For those reasons, the pentobarbital prescription has been issued illegally and is illegitimate, the motion says.
“We’re just trying to make sure the state follows the law,” said Bill Morrison, one of Wellons’ attorneys. “We’re not challenging the death sentence. We’re not challenging the method of execution. The law governs how physicians fill prescriptions, what kinds of prescriptions they can fill and what the prescriptions can be used for.”
In response, state attorneys say lethal injection does not constitute the practice of medicine and pharmacy under state law. Also, Wellons and other death-row inmates litigated, and lost, a similar challenge last year, the state’s motion said.
A hearing on that appeal is set for Friday afternoon.
The issue to be argued before a federal judge Monday afternoon is on a topic that has been debated nationwide — whether it’s constitutional to keep secret the identity of the provider of lethal injection drugs.
A 2013 Georgia law keeps secret the identities of those who obtain and make lethal injection drugs — the physicians as well as the compounding pharmacy or drug manufacturer.
The argument in support of the secrecy is public pressure on those involved in executions had made it harder for states to secure execution drugs.
Last month, 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. But the two justices who disagreed expressed concern that secrecy could lead to “macabre” executions like the one that occurred in Oklahoma in April.
The execution of Clayton Derrell Lockett was stopped after the Oklahoma killer writhed, gasped and struggled to lift his head after the first of three drugs was injected. He died of a heart attack a short time later. Oklahoma used a different sedative than Georgia — the sedative midazolam but the source of Oklahoma’s drugs is also secret.
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