This morning, attorneys for Robert James Campbell, who is scheduled to be executed tomorrow in Texas, filed a stay motion and an appeal with the Fifth Circuit Court of Appeals, urging the court, as a federal judge did on Friday, to reconsider its jurisprudence regarding the secrecy surrounding Texas’ lethal injection drugs, particularly in light of the recent horrific botched execution in Oklahoma. The appeal can be accessed here.
As today’s filing notes, Mr. Campbell’s “8th Amendment rights can only be protected if he is provided the information required to ensure a humane, non-torturous execution.” (p. 21) The appeal also states: “By depriving [Mr. Campbell] … of the means to determine whether his rights will be violated, Defendants are effectively nullifying those rights.” (p. 2)
Mr. Campbell seeks information about the source and testing of the drugs Texas plans to use in his lethal injection execution, scheduled for Tuesday at 6 pm Central time. Last week, following the botched execution of Clayton Lockett in Oklahoma, Mr. Campbell filed a civil rights action and stay motion in the U.S. District Court for the Southern District of Texas. It was only recently, with its purchase of the most recent batch of lethal injection drugs, that Texas began to follow the path of secrecy shared by Oklahoma in the weeks leading up to Mr. Lockett’s horrific death. The complaint can be accessed here.
On Friday, May 9, 2014, Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas denied Mr. Campbell’s stay motion, writing:
“The horrific narrative of Oklahoma’s botched execution of Clayton Lockett on April 29, 2014 requires sober reflection on the manner in which this nation administers the ultimate punishment. While the law currently does not permit injunctive relief, this Court urges the Fifth Circuit to reconsider its jurisprudence that seems to shield crucial elements of the execution process from open inquiry.”
As Mr. Campbell’s attorney Maurie Levin commented, “The extreme secrecy which surrounded lethal injection in Oklahoma prior to Mr. Lockett’s execution led directly to the disastrous consequences. This is a crucial moment when Texas must recognize that death row prisoners can no longer presume safety unless full disclosure is compelled so that the courts can fully review the lethal injection drugs to be used and ensure that they are safe and legal.”
Texas’ lethal injection protocol calls for a single dose of pentobarbital. Pentobarbital is no longer legally available in FDA-regulated form, but only from compounding pharmacies, which operate outside of FDA oversight, making it impossible to know if the drugs have been properly prepared and tested in order to ensure the execution will be carried out in a manner that comports with the Constitution. In addition, documents show that TDCJ is in possession in midazalom, the first drug used in the botched execution of Mr. Locket: https://drive.google.com/file/d/0BxR5nee8pBYQOTVldW11MGRPVE0/edit?usp=sharing
Executions in Oklahoma and South Dakota that used compounded pentobarbital appeared to have had serious problems. On January 9, 2014, Oklahoma executed Michael Wilson, presumably also using compounded pentobarbital as the first drug in the three-drug formula. Prior to losing consciousness, Mr. Wilson cried out, “I feel my whole body burning.” Those were his last words. The State has refused to provide any information about what might have gone wrong in Mr. Wilson’s execution, but expert pharmacologist Larry D. Sasich, PharmD, MPH, FASHP, signed a sworn affidavit stating, “It is my opinion that Mr. Wilson’s reaction is consistent with contaminated pentobarbital sodium injection.”
Dr. Sasich’s affidavit is here.
The sworn statement of another anesthesiologist, Dr. Waisel, is here.
In October 2012, in South Dakota, Eric Robert was executed using compounded pentobarbital. Witnesses reported that he “appeared to clear his throat and gasp heavily, at which point his skin turned a blue-purplish hue. Mr. Robert opened his eyes and they remained open until his death, and his heart continued beating for 10 minutes after he ceased to breathe.”
On April 14, 2014, in Texas, Jose Villegas was executed with compounded pentobarbital. “As a journalist witness wrote: “Just as the dose of pentobarbital began taking effect, he said, ‘It does kind of burn. Goodbye.’ He gasped several times, then began breathing quietly. (pp. 11-12 of the civil rights complaint:https://docs.google.com/file/d/0BxR5nee8pBYQakdBUFQyQndmMFk/edit?pli=1).” Additionally, there have been multiple documented problematic executions in Texas via lethal injection, detailed on pp. 13-14 of the civil rights complaint.
Additionally, Mr. Campbell’s case contains other areas of concern, highlighted in his state habeas filing, including intellectual disability, quality of legal representation, disparity in sentencing, and possible racial bias at trial. Testing indicates that Mr. Campbell is a person with intellectual disability. At the age of 18, he and another man, Mr. Lewis, committed a tragic rape and murder. Although the DNA evidence implicates the men equally, Mr. Lewis is now free while Mr. Campbell is on death row. Mr. Campbell’s right to post-conviction review was essentially forfeited by an appointed lawyer who filed a boilerplate brief that was identical to the ones he filed for four other condemned men. Finally, Mr. Campbell is an African American man who was prosecuted in Harris County, Texas, during an era which has been widely criticized for overt racial bias in other cases in that area. The state habeas filing can be accessed here: https://docs.google.com/file/d/0BxR5nee8pBYQZmFSMVBLcmpRcU0/edit
While the Texas Criminal Court of Appeals (CCA) denied Mr. Campbell’s habeas filing, its ruling was a close 5-4 split, including a powerful dissent by Judge Acala calling the evidence of Mr. Campbell’s mental retardation ‘compelling.’ Judge Acala noted the fundamental unfairness of the CCA’s decision considering that the reason that Mr. Campbell did not have the evidence in 2003 when the CCA first turned away Mr. Campbell’s mental retardation claim is that state officials affirmatively misled Mr. Campbell’s lawyers when they told him they had no records of IQ testing of Mr. Campbell from his time on death row. The state had such test results, and they placed Mr. Campbell squarely in the range for a diagnosis of mental retardation. As Judge Alcala puts it, “It would be unjust to penalize [Mr. Campbell] for not uncovering such a falsehood previously, when he had no basis to believe that a falsehood had been conveyed to him. . . . This Court should not base its decisions that determine whether a person will live or be executed based on misinformation or wholly inadequate information.’” (p. 5 Read the Judge’s dissent here: https://drive.google.com/file/d/0BxR5nee8pBYQTXk5c1l1VGQzSHc/edit)
For more information, including information about the Texas lethal injection protocol, drugs in the TDCJ’s possession, background on previous disputes between TDCJ and pharmacies, contact Laura Burstein at Laura.Burstein@squiresanders.com, (202) 626-6868. To speak to counsel for Mr. Campbell, contact Maurie Levin at firstname.lastname@example.org, and (512) 294-1540.