As is typical before any scheduled execution, attorneys for death-row inmate Willie Trottie are fighting the clock. As Trottie - a Harris County man convicted of murdering his ex-girlfriend and her brother in 1993 - awaits his date with the country's most active death chamber tomorrow, his appellate attorneys are fighting a battle that now seems to accompany every execution: Trottie's attorneys want detailed information about the drug Texas will use to carry out the ultimate punishment, which the state refuses to provide.
Texas, like many other death penalty states, says the source of its execution drug of choice - the sedative pentobarbital - can and should remain secret. Attorneys for death-row inmates insist the number of botched executions this year in other death-penalty states has made knowing the source and potency of those drugs all the more important. But in recent weeks, as Trottie's attorneys feverishly sought any info on Texas' current batch of pentobarbital (which is still of unknown origin), it looks like the Texas Department of Criminal Justice tried to run out the clock.
In 2012, Texas and other death-penalty states were forced to find another source for their lethal-injection drugs after a Danish drug maker announced it would no longer supply drugs for use in executions. Texas turned to compounding pharmacies, which are not regulated by the FDA. And while Attorney General Abbott used to favor disclosing the source of the drugs as public record, that changed earlier this year - perhaps because it became clear that compounding pharmacies that will provide the drugs in secret won't do so in public.
Since the execution-drug crunch, TDCJ's pentobarbital purchases "have been riddled with deceptive and questionable practices and communications," claims Maurie Levin, one of Trottie's attorneys, in a motion filed with the federal Fifth Circuit Court of Appeals today. "Their responses to requests for information have similarly been deceptive, limited, and are only provided after they consume every day and hour they are allotted under the Public Information Act."
Here's the timeline Levin lays out in the appeal to stay Trottie's execution:
- August 13: Trottie's lawyers send Sharon Howell, general counsel for TDCJ, an email asking for information on the drugs to be used in Trottie's execution
- August 20: With no response for a week, Trottie's lawyers send another email to Howell.
- August 21: Howell responds, "We will be using compounded pentobarbital and following the same protocol we have been following since July 2012." She tells Trottie's lawyers that they're asking for information Texas Attorney General Greg Abbott has already ruled can be kept secret (namely the source of the drugs), and informs them that TDCJ will seek an AG opinion on the matter. Trottie's attorneys respond the same day, saying they know of Abbott's opinion, but "Given the imminence of Mr. Trottie's scheduled execution, we would greatly appreciate it if you would both provide the requested information not exempted by the Attorney General's ruling, and not wait the full ten days to request an opinion from the Attorney General." They also ask for materials to be sent via email, not snail mail.
- August 26: With still no response from TDCJ's attorney, Trottie's lawyers send another email asking that the department at least acknowledge it received their previous message.
- August 28: TDCJ's Howell responds: "We will provide you with an electronic copy." Trottie's lawyers immediately respond, asking when that might happen. They get no response.
- September 2: A copy of TDCJ's request for an AG opinion - dated August 28, postmarked August 29 - comes via snail mail. Just before 5 p.m., TDCJ's attorney sends over an email with information the department deemed public.
Trottie's attorneys claim what information TDCJ did turn over about the drugs was either useless or misleading. While TDCJ provided the most recent test results on the state's drug supply, they insist those results are five months old, indicating that any remaining drugs are past their use-by date. They also claim the state didn't conduct critical drug-safety tests.
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TDCJ contends the current batch of drugs is set to expire at the end of this month, not before Trottie's execution.
Levin argues that the secrecy surrounding Texas' supply of pentobarbital makes it impossible to be sure the drug can provide a quick, painless execution. "What little information Defendants did reveal is meaningless, with one exception: the indication that the drugs Defendant intended to use are expired or beyond their 'use date' - and thus give rise to substantial risk that Mr. Trottie will suffer the excruciating pain to which other inmates have very recently been subjected," Levin wrote in her motion.
In her court filing, Levin references the executions this year of Michael Lee Wilson in Oklahoma (who said on the gurney, "I feel my whole body burning"), Dennis McGuire in Ohio (who, according to reports, "struggled, made guttural noises, gasped for air, and chocked for about 10 minutes.") She also references the now-infamous Oklahoma execution of Clayton Lockett - who regained consciousness during his execution, writhed, moaned, groaned, and took 43 minutes to die - and the execution of Arizona death-row inmate Joseph Wood, who took nearly two hours to die.
Levin argues that there is a "substantial risk" that Texas could subject Trottie to "torturous pain," a violation of the constitution's Eight Amendment ban on cruel and unusual punishment. In its court filings, TDCJ argues that botched executions in other states are irrelevant, since those states used different drugs in different combinations. In her filing Tuesday, Levin argues that "it is the system of execution by lethal injection that is failing...One wonders, if execution by hanging or firing squad was the dominant method being questioned, if Defendants would distinguish Texas on the basis of the rope fiber or bullets used."