Texas execution halted, new appeal granted in unanimous court ruling

May 13, 2014 2:15 PM PT

Reporting from Houston — Hours before Texas could carry out the nation’s first execution since Oklahoma officials botched a lethal injection last month, the U.S. 5th Circuit Court of Appeals issued a dramatic unanimous ruling Tuesday that halted Robert Campbell’s execution and granted him a new appeal.

The court cited new defense evidence that Campbell is intellectually disabled, with an IQ of 69 -- below the minimum threshold set by most courts that would make it unconstitutional for him to be executed.

“Campbell and his attorneys have not had a fair opportunity to develop Campbell’s claim of ineligibility for the death penalty,” the court wrote. “In light of the evidence we have been shown, we believe that Campbell must be given such an opportunity.”

Campbell, 41, was convicted of murder in the 1991 killing of a 20-year-old Houston bank teller who was robbed, raped and shot. He had been scheduled for execution at 6 p.m. Central Daylight Time on Tuesday.

His attorneys had appealed to the courts and to Gov. Rick Perry for a stay of execution on two main grounds: that Campbell suffers from intellectual disability and that he is entitled to know the details of the state’s execution procedures, which have not been fully disclosed.

The attorneys argued that Texas should especially be compelled to disclose the details of its lethal injection procedure in light not only of Oklahoma’s botched execution, but of problems with other lethal injections. They noted that when Jose Villegas, 39, was executed last month in Texas for murdering his girlfriend, he complained of a burning sensation, as did an Oklahoma inmate executed in January.

In Oklahoma, the governor ordered a review of lethal injection procedures after Clayton Lockett, 38, failed to die immediately during his execution April 29, struggling and moaning as he lingered for 43 minutes before succumbing to an apparent heart attack. Prison officials later blamed a collapsed vein, though autopsy results are pending.

Two years ago, Texas switched from a three-drug formula for lethal injections that was similar to Oklahoma’s to a single drug because of shortages after drug manufacturers and distributors facing protests against capital punishment restricted supply, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice.

The single barbiturate that Texas now uses, pentobarbital, has also been in short supply. So, like Oklahoma and other states, Texas turned to compounding pharmacies, which manufacture drugs without FDA approval.

The state has used the drug in 33 executions but has so far refused to identify which compounding pharmacy or pharmacies supply it, Clark said.

“We’re not disclosing the pharmacy because threats have escalated to threats of physical harm and death,” Clark told the Los Angeles Times.

Oklahoma officials have also refused to identify their compounding pharmacy supplier, citing safety concerns for the company.

Maurie Levin, one of Campbell’s attorneys, insisted the information should be made public to ensure that the lethal injection meets accepted standards.

“The extreme secrecy which surrounded lethal injection in Oklahoma prior to Mr. Lockett’s execution led directly to the disastrous consequences,” Levin said in a statement released to The Times.

“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,” she added in the statement, released before the 5th Circuit acted.

Late Monday, the 5th Circuit had rejected Campbell’s appeal based on Texas’ refusal to disclose all information related to its lethal injection protocols, saying there wasn’t enough evidence that the execution would violate constitutional prohibitions on cruel and unusual punishment.

Texas Atty. Gen. Greg Abbott, a Republican campaigning for governor, has opposed staying Campbell’s execution. In a Monday court filing, he argued that the state’s execution procedure was “vastly different” from Oklahoma’s, that pentobarbital had been used successfully thus far in Texas and that testing showed the batch of the drug the state planned to use was potent and “free of contaminants.”

Campbell’s execution would have been the eighth this year in Texas, which puts more inmates to death than any other state — 515 since lethal injections began in 1982. In fact, Texas has executed more inmates than the next half-dozen busiest death penalty states combined (Virginia, Oklahoma, Florida, Missouri, Alabama and Georgia).

But that wasn’t always the case. Texas executed fewer than 10 people a year until 1992, when executions jumped under then-Gov. Ann Richards, a Democrat. The current governor, Republican Rick Perry, has presided over more executions than any governor in modern history.

Deborah Denno, a professor at Fordham Law School and a death penalty expert, cautioned against assuming that because Texas executes so many inmates, officials have the benefit of experience.

“To assume that they have the volume and people must know what they’re doing is wrong,” Denno told The Times. “You can’t assume the same people perform all executions or that same protocol used, same amount of drug or same drug because this is a compounded pentobarbital in Texas. We don’t know whether the same company is being used, whether one batch looks the same as another. So there’s an enormous amount of variability in this execution.”

Denno said the single-drug lethal injection using a sedative like pentobarbital to induce respiratory arrest has been shown to be more humane and effective with fewer botches, since it only has to be administered once, and does not include a second drug, a paralytic, that has been problematic and led to numerous legal challenges.

But she said that even if the pentobarbital works, there are still questions about the expertise of those administering the lethal injection.

Texas execution protocol requires each lethal injection “drug team” to have “at least one medically trained individual,” including a certified medical assistant, emergency medical technician, phlebotomist, paramedic or military corpsman.

All Texas inmates are executed at the same prison, the Walls Unit in Huntsville, about an hour’s drive north of Houston.

The city of about 39,000 is home to Sam Houston State University, but it is more commonly known for being the headquarters of the state prison system and home to the busy death chamber, which earned it the nickname “The Death Penalty Capital of the World.”

Executions are such an everyday matter in Huntsville that Jim Willett was surprised when he started getting phone calls from reporters this week.

“It’s the usual thing in town,” said Willett, former warden at the Huntsville prison, now director of the nearby Texas Prison Museum that houses, among other things, the state’s decommissioned electric chair, “Old Sparky.”

As warden, Willett oversaw scores of executions. He recalled only one botched execution -- Raymond Landry Sr. in 1988 -- when he worked at the prison but was not yet warden.

Usually officials used two needles for the lethal injection, saving one for backup. In Landry’s case, they had trouble finding a vein, so they used just one needle, he said, “And the needle came out.”

A tube attached to the needle began leaking and shooting drugs across the death chamber toward witnesses, according to reporters’ accounts. The warden pulled a curtain to block their view of Landry.

When prison officials reopened the curtain minutes later, Landry was motionless with his eyes half-closed, and a few minutes later he was declared him dead.

“They just started all over and the execution went forward,” Willett said.