Death Watch: Can Texas Keep a Secret?

The Texas Supreme Court caved under pressure last Friday, Oct. 19, granting the Texas Department of Criminal Justice a rehearing regarding a 2014 lawsuit over whether the state should be allowed to keep secret its execution drug suppliers. That in itself isn't shocking, but the decision comes four months after the court rejected the state's appeal of a lower court's ruling, and the 3rd Court of Appeals' affirmation, which ordered the state to name the supplier.

Court records show Texas Attorney General Ken Paxton and Solicitor General Kyle D. Hawkins filed a motion of support for the TDCJ on Oct. 3, reiterating the argument that suppliers should remain unnamed due to the "substantial threat of physical harm" should the pharmacy – described as an open-to-the-public "retail compounding pharmacy" in an "urban" area – be identified. Also in a show of support for the TDCJ, the state of Arizona submitted an amicus brief in July alleging that the COA's ruling would cause "dire consequences" that would threaten the death penalty nationwide. According to the brief, "Public disclosure of a rare and valuable supplier of lethal-injection drugs chills other current and potential suppliers, and facilitates the escalating 'guerilla war against the death penalty.'"

The original 2014 suit was filed by three attorneys with clients on death row seeking to avoid botched executions. But even if the high court rules in their favor, it's unlikely to have much impact since a state law passed in 2015 now allows the TDCJ to keep ­suppliers secret. Either way, the court's ruling hangs in limbo until the rehearing. Oral arguments have been scheduled for Jan. 23, 2019.

Meanwhile, another execution has been halted. The Texas Court of Criminal Appeals granted Kwame Rockwell a last-minute stay on Friday, Oct. 19. Rockwell, who was set to die on Wednesday, Oct. 24, argued he is mentally unfit for execution, and though the trial court denied his request, the CCA has since concluded that Rockwell has, in fact, raised "substantial doubt" regarding his competency. The state's highest criminal court has reversed the lower court's ruling and has ordered the court to appoint "at least two" mental health experts to Rockwell's case. Three stays, including Rockwell's, have been granted in the last month, knocking 2018's grisly total down from 16 executions to 13 – still almost double the seven performed by the state last year.