Some federal appeals court judges fear lethal injection drug danger

Just hours before Brandon Astor Jones' scheduled execution, several judges on the federal appeals court in Atlanta warned of dire consequences if the state continues to shroud the lethal injection process in secrecy — never revealing who made the pentobarbital or the qualifications of that pharmacist.

"Today Brandon Jones will be executed, possibly in violation of the Constitution," 11th U.S. Circuit Court of Appeals Judge Robin Rosenbaum wrote in one of four dissenting opinions. "He may also be cruelly and unusually punished in the process. But if he is, we will not know until it's too late — if ever."

Three other judges on the appeals court agreed.

The debate over the Georgia law that conceals the identities of the pharmacists who produce lethal injection drugs is ongoing in other states as well. Repeatedly, courts nationwide have supported laws created to shield lethal injection drug makers from public pressure and ensure a supply of drugs for executions.

But some courts seem to be wavering.

The decision released Tuesday suggested an intense conflict among the 11 judges who hear federal appeals from Georgia, Florida and Alabama.

Typically, a three-judge panel of the appeals court hears such cases, although a party may ask that the court hear an appeal “en banc” — in which all 11 judges hear the case.

Six judges agreed with a prior decision that Jones had waited too late to ask that his execution be stopped so all 11 judges on the Court of Appeals here could hear his challenge to Georgia’s secrecy law. The six also noted that the state Department of Corrections released records about a previous planned execution that was stopped last year because the pentobarbital was cloudy.

“There has been no claim that Georgia has encountered cloudy drugs since, nor that it has ever used contaminated drugs in an execution,” Judge Stanley Marcus wrote for the majority. “Jones has done nothing to suggest that he has diligently prosecuted any claim challenging Georgia’s secrecy law. He waited until almost three years after the codification of (the law) and over nine months after Georgia publicly disclosed its discovery of the ‘cloudy’ pentobarbital before commencing this … suit in federal district court at the end of December 2015.”

Jones is sentenced to die for the 1979 murder of the manager of a Cobb County Tenneco. His execution is scheduled for 7 p.m. today.

Jones’ co-defendant, Van Solomon Roosevelt, was executed in 1985, four years before a federal judge ordered Jones resentenced because the jury in his first trial had a Bible in the room during deliberations.

Even before his execution date was set, however, Jones filed a lawsuit in federal court asking that the entire 11th Circuit Court of Appeals hear his challenge to the state’s secrecy law. His lawyers noted that none of the judges who opposed that law ever constituted a majority on the three-judge panel that has decided the issue before, upholding Georgia’s law.

In the four written dissents, a total of five judges warned of the dangers of not knowing the source of the execution drug or the qualifications of the drug maker.

“Denied a fair opportunity to challenge their methods of execution, Jones and other Georgia Death Row prisoners will spend the final moments of their lives in fear, not only of death, but also of being subjected to a painful execution in violation of the Eighth Amendment,” Judge Charles Wilson wrote on behalf of himself and Judges Beverly Martin, Robin Rosenbaum and Jill Pryor.

Last month, Ohio was in court defending its decision to keep secret the identity of the source of its lethal injection drugs. And the Arkansas Supreme Court upheld that state’s statute.

One state after another has moved to shield information about the source of its lethal injection drugs as it became more difficult — and in many cases impossible — to find those drugs because of public pressure on drug makers.

Georgia's execution process has received increased scrutiny since March 2015, when the state postponed the execution of Kelly Gissendaner because the vial of pentobarbital was cloudy and contained clumps. The Department of Corrections said storing the drug in cold temperatures had caused the solids in the liquid to separate. Jones' attorneys later learned there were problems with two batches of lethal injection drugs made by the same pharmacist.

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