By Michael Graczyk
The Associated Press
Originally published April 2, 2014, in the Austin American-Statesman
HOUSTON — A federal appeals court on Wednesday threw out a ruling requiring the Texas prison system to disclose more information about where it gets lethal-injection drugs, reversing a judge who had halted an upcoming execution.
Only hours before the appellate decision, a lower-court judge issued a temporary injunction halting the execution of Tommy Lynn Sells, a convicted serial killer who was set to die Thursday.
The case originally included Ramiro Hernandez-Llanas, another inmate scheduled to be put to death next week. But the appellate ruling affected only Sells. The appeals court said it would take up Hernandez-Llanas’ case at a later date.
Texas officials have insisted the identity of the drug supplier must be kept secret to protect the company from threats of violence and that the stock of the sedative pentobarbital falls within the acceptable ranges of potency.
Defense attorneys say they must have the name of the supplier so they can verify the quality of the drug and spare condemned inmates from unconstitutional pain and suffering.
In the lower court ruling, U.S. District Judge Vanessa Gilmore ordered the Texas Department of Criminal Justice to provide defense attorneys with details about the supplier and how the drug was tested.
Lawyers for the state appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, saying the arguments from the inmates’ attorneys “are nothing more than a calculated attempt to postpone their executions.”
Last month, the U.S. Supreme Court rejected similar arguments about execution secrecy in a Missouri case, and the condemned prisoner was put to death.
The 5th Circuit reversed Gilmore’s ruling before attorneys for the inmates had filed a brief opposing the state’s appeal. The court said if Texas was using a drug never used before for executions or a completely new drug whose efficiency or science was unknown, “the case might be different.”
But the panel said the prisoners’ lawyers were speculating the new pentobarbital “may be different and may cause a risk of severe pain.”
“Speculation is not enough,” they said.
Maurie Levin, an attorney for the inmates, said Sells’ case would be appealed to the U.S. Supreme Court.
Gilmore’s ruling “honors the importance of transparency in the execution process,” she said. “And the order makes it clear this last-minute litigation and stays of execution would not be necessary if (the prison agency) had not ignored the rule of law and tried to shield this information from the public and the light of day.”
Texas prisons spokesman Robert Hurst said the agency had no comment because the matter was still in court.
Since obtaining a new supply of pentobarbital two weeks ago, the Department of Criminal Justice had cited unspecified security concerns in refusing to disclose the source and other details about the drug.
“As a result, the state’s secrecy regarding the product to be used for lethal injection has precluded (the inmates and their attorneys) from evaluating or challenging the constitutionality of the method of execution,” Gilmore wrote in a five-page opinion.
Questions about the source of drugs have arisen in several states in recent months as numerous drugmakers — particularly in Europe, where opposition to capital punishment is strongest — have refused to sell their products if they will be used in executions.
That has led several state prison systems to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.
A batch of pentobarbital Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.
The inmates “are entitled to discover how the state plans to put them to death,” said Levin and Jonathan Ross, another attorney in the case.
Levin filed an open-records request on March 11 seeking the name of the supplier from the Department of Criminal Justice.
Last week, defense attorneys won an order from a state court that directed prison officials to identify the new provider of pentobarbital, but only to them. The Texas Supreme Court put that order on hold on Friday and set a deadline for briefs to arrive after Sells and Hernandez-Llanas’ scheduled execution dates.
The defense turned next to the federal courts, which resulted in Wednesday’s ruling.
Deborah Denno, a Fordham University law professor, said Gilmore’s decision showed courts “are skeptical of explanations” offered by prison agencies.
“I think Texas always draws attention,” Denno said, explaining that the state accounts for a third of all executions and has typically resisted oversight of its execution methods.
Texas appeared to be attempting to match efforts of other states to keep execution details secret, she said.
“They don’t seem to be operating in a vacuum,” she said.
In three previous opinions, the attorney general’s office has directed the Texas prison agency to release records about its lethal injection drugs.
Lauren Bean, a spokeswoman for Attorney General Greg Abbott, said the office had 45 business days to reply.
Sells, 49, was convicted of killing a 13-year-old South Texas girl asleep at her home in 1999. Kaylene Harris was stabbed nearly two dozen times and had her throat slashed. A 10-year-old friend also was attacked but survived. Sells confessed to the slaying and has been tied to more than 20 others around the nation. He has claimed responsibility for as many as 70 murders.
Hernandez-Llanas, 44, a Mexican national, was convicted of killing a Kerrville-area rancher, Glen Lich, 48, who had employed him.