By Leslie Acevedo
AUSTIN, TX – Shawn Nolan—an attorney for death row prisoners Wesley Ruiz and John Lezell Balentine, whose executions are set for Feb. 1 and Feb. 8—this week charged a divided Texas Court of Criminal Appeals (“CCA”) is wrong in barring the Texas civil courts from deciding whether the State of Texas is violating its own statutes by using expired drugs to execute prisoners.
The attorney said two judges on that court wrote an opinion to show the CCA is wrong, noting prisoners are looking to force a proper execution according to the state law, because the CCA opinion “creates a Catch-22 in which death-row inmates have a civil remedy to pursue claims . . . but may not stop the execution to raise them.”
Nolan added, in a lawsuit, the defense will continue to push for their clients to have their executions conducted on the basis of Texas law.
The legal action asserts Texas is “[v]iolating its own law and creating a serious risk of pain and suffering during their executions by using compounded pentobarbital that expired as far back as 2019.”
Defense lawyers have filed a petition for temporary injunction challenging the state’s use of long-expired execution drugs.
A third petitioner, Robert Fratta, whose execution is scheduled for Jan. 10, has now joined the lawsuit.
Nolan explained Texas intends to “[c]arry out executions with compounded pentobarbital (pentobarbital is a sedative that slows the activity of the brain and nervous system) that expired years ago, in violation of its own state law.”
Expired compounded drugs are inconsistent and unpredictable, Nolan added, and said expired compounded execution drugs “will act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain.”
The complaint also maintains Texas is “[v]iolating the Texas Pharmacy Act, the Texas Controlled Substances Act, the Texas Food, Drug, and Cosmetics Act, and the Texas Penal Code” by using expired execution drugs.”
Dr. Michaela Almgrem, Pharm.D., M.S., a pharmacology professor at the University of South Carolina School of Pharmacy, said Texas’ pentobarbital is beyond the expiration date, adding Texas’ purported extension of that Beyond Use Date is based on a method that is “completely unscientific and incorrect, and therefore the result is invalid.”
Attorney Nolan has argued, “We must have a hearing to ensure that Texas does not violate the law and place prisoners at serious risk of pain and suffering in the execution process.”
The state of Texas has asked “Texas Court of Criminal Appeals to halt the proceedings before the lower court can issue a ruling.” The State has not challenged that the execution drugs are expired.