Supreme Court won't stop Texas execution over drug

MICHAEL GRACZYK Associated Press Published:

HUNTSVILLE, Texas (AP) -- The U.S. Supreme Court said Thursday that it won't stop the execution of a Texas serial killer whose attorneys want the state to release information about where it gets its lethal injection drug.

The last-day plea from Tommy Lynn Sells' lawyers was rejected about an hour before his scheduled execution, planned for Thursday evening in Huntsville. The one-paragraph ruling did not elaborate on why the justices made the decision and did not indicate any dissents.

"It is our belief that how we choose to execute prisoners reflects on us as a society," Maurie Levin, one of Sells' lawyers said in a statement responding to the high court ruling. "If we are going to have the death penalty in Texas, then the state cannot cloak its execution process in secrecy, preventing counsel for the condemned, the courts and the public from obtaining basic details regarding the state's execution process."

State attorneys told the Supreme Court it's not in the public interest to stop the execution.

Sells' attorneys made their plea a day after a federal appeals court allowed the execution to remain on schedule. A lower court had stayed the execution Wednesday, ordering Texas to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal.

The appeal was one of two that the justices rejected.

In the second appeal, which had been before the court since last month, Sells' attorneys asked for the punishment to be stopped to review whether Sells' legal help at his trial was deficient, and whether a court improperly denied him money to hire investigators to conduct a probe about his background.

Sells, now 49, was sentenced to death for fatally stabbing a 13-year-old South Texas girl in 1999. Court records show he claims to have committed as many as 70 killings in states including Alabama, California, Arizona, Kentucky and Arkansas.

Sells' attorneys had argued that they need to know the name of the company now providing the state with pentobarbital, the drug used during executions, in order to verify the drug's quality and protect Sells from unconstitutional pain and suffering.

But the 5th U.S. Circuit Court of Appeals sided with Texas prison officials, who contend information about the drug supplier must be kept secret to protect the pharmacy from threats of violence. It also found that the stock of the pentobarbital, a powerful sedative, falls within the acceptable ranges of potency.

The court said that had Texas wanted to use a drug never used before for executions or a completely new drug whose efficiency or science was unknown, "the case might be different."

The Supreme Court last month rejected similar arguments from a Missouri inmate's attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death.

Questions about the source of execution drugs have arisen in several states in recent months as numerous drugmakers -- particularly in Europe, where opposition to capital punishment is strongest -- have refused to sell their products if they will be used in executions.

That's led several state prison systems to compounding pharmacies, which are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies.

A batch of pentobarbital that Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public.

That led Texas to its new, undisclosed supplier.

The court case challenging the state's stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week. But the 5th Circuit ruling affected only Sells.

Sells' execution would be the fifth lethal injection this year in Texas, the nation's busiest state for the death penalty.

A jury convicted him of capital murder in 2000 for the stabbing of 13-year-old Kaylene Harris and slashing of her 10-year-old friend, Krystal Surles, who survived and helped police find Sells. The girls were attacked on New Year's Eve 1999 as they slept in Harris' home in Del Rio, about 150 miles west of San Antonio.