The Austin Chronicle

Death Watch: Appeals, Waived Appeals, and Conflicting Findings

5th Circuit strikes down request to test death drugs

By Chase Hoffberger, September 23, 2016, News

The 5th Circuit Court of Appeals has denied a motion for stay of execution pending appeal for Terry Edwards and Ramiro Gonzales, two death row inmates named in the five-inmate petition seeking to require that the state of Texas test their doses of compounded pentobarbital (the drug used for executions) before carrying out each killing. Three judges from the federal court were "not persuaded these prisoners have made the showing required" for the stay, the 5th stated in a Sept. 12 opinion. Cir­cuit judge Patrick Higginbotham wrote that the petitioning inmates "failed to reach the Eighth Amendment bar on unnecessarily severe pain that is sure, very likely, and imminent." The three other named inmates – Jeffery Wood, Rolando Ruiz, and Robert Jennings – have each received stays on their executions for reasons outside of this particular issue.

In the court's denial, Higginbotham wrote that since unconsciousness precedes death when pentobarbital is the sole drug used to execute, the "problem of conscious pain and suffering" is "effectively obviat[ed]." Essentially, if inmates aren't alert to feel and express their pain, does it really matter if their death is painful? The logic is rooted in part on the belief that the state has used compounded pentobarbital to execute 32 inmates "without issue" since turning to the compounded drug in 2013. But the inmates have argued that this thinking is flawed: The state's acquisition of compounded pentobarbital is hardly an aboveboard process, with shipments of the drug coming to Huntsville from unidentified compounding pharmacies, and a Department of Criminal Justice that won't disclose what's in the cocktail.

The state granted one inmate the right to have his dose tested for purity before his execution in 2015 when the Attorney General's Office extended the courtesy to Perry Williams. But then a state district judge withdrew Williams' July 14, 2016, execution date when TDCJ curiously failed to run its promised test in the six months after Williams received his death date. Wood et al.'s attorneys have argued that if the state sees fit to grant Williams new testing, it should serve as precedent for other inmates. Higgin­botham's brief indicates that the 5th Circuit will rule otherwise, writing that an equal protection claim premised on differential treatment for those not considered a "class" (as inmates aren't) may only be reviewed in the context of a "class of one." That, he said, would apply to Williams, not the other five inmates: "The prisoners' primary contention now is that re-testing in [Williams' case] created a right to re-testing for all prisoners, a novel and flawed invocation of equal protection doctrine."

Edwards is currently scheduled for execution on Oct. 19. Gonzales is set for the gurney two weeks later: Nov. 2. They await word on their appeal alongside Wood, Ruiz, and Jennings.

"A knowing, intelligent, and voluntary decision"

Barney Fuller was the sixth inmate with a death date as of Aug. 12 – the only one not named on the petition seeking new testing on compounded drugs. Last December, Fuller filed a motion to hold a hearing on whether he's competent enough to waive his outstanding appeals and get on with his execution. The 58-year-old was sentenced to death in July 2004 for the grisly double murder of his Houston County neighbors, Annette and Nathan Copeland, with whom Fuller had a court date to determine what should be done about his habit of shooting guns off at their house. (Fuller pleaded guilty to the charge of capital murder at his trial.)

A federal appeal filed in January indicates that efforts to save Fuller's life hinged on arguments that his trial attorneys provided him with weak counsel, but in late May Fuller went before U.S. federal judge Ron Clark in an effort to waive the appeal. In a June 1 opinion and order of dismissal, Clark wrote that Fuller "understands his legal position and the options available to him. He understands that a determination that he is competent to waive any further proceedings would stop his habeas review and allow the State to proceed with his execution." He said Fuller feels deserving of the punishment and is "ready to move on."

Fuller is scheduled for execution on Wed­nes­day, Oct 5. He'll be the 538th Texan executed since 1976 but only the seventh put to death this year. He'll be the first since Pablo Vasquez, killed on April 6.

Supplemental copies of supple­ment­al findings of Reed's facts

Bastrop Visiting Judge Doug Shaver has taken rubber stamping to a new level. On Sept. 9, the retired judge appointed to consider the re-testing of DNA evidence in Rodney Reed's case, signed two pre-prepared Findings of Fact – one presented to him by the state and one by the defense – and sent both off to the Court of Criminal Appeals to rule on Reed's July 2014 motion. Naturally, those findings differed: The state's copy determined that the chain of custody had been disrupted, and DNA on certain items of evidence could be contaminated; the version Reed's camp sent to Shaver proposed testing could still be done. The Bastrop County District Attor­ney's Office has requested that the CCA return both docs to Shav­er for clarification on his standing. Reed's attorney Bryce Benjet told the Austin American-Statesman last Friday that he intends to object to that suggestion, and will request that a new judge handle the case on the district level. "When you have an error of this magnitude, we think it's appropriate for the court to reassign the case to a judge who can issue orders based on the record," Benjet told the daily.

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