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Della Hasselle on why a Louisiana judge halted a lethal injection

click to enlarge Ulf Wiinberg is the president and CEO of Lundbeck, a global pharmaceutical company based in Denmark, which objected to the use of pentobarbitol, a drug it once manufactured, for use in lethal injections. Wiinberg called it a "distressing misuse of our product." - PHOTO COURTESY H. LUNDBECK A/S
  • PHOTO COURTESY H. LUNDBECK A/S
  • Ulf Wiinberg is the president and CEO of Lundbeck, a global pharmaceutical company based in Denmark, which objected to the use of pentobarbitol, a drug it once manufactured, for use in lethal injections. Wiinberg called it a "distressing misuse of our product."

A Louisiana death row inmate was granted an eleventh-hour stay of execution earlier this month when a federal judge said too much is unknown about the state's intended switch to a new, single-drug lethal injection method.

  The potential use of pentobarbital — the lethal drug slated to replace a three-drug cocktail — has death row-inmate lawyers arguing that the new execution process is hazy at best, unconstitutional at worst.

  U.S. District Court Judge James J. Brady ordered the stay of execution Feb. 7 for death row inmate Christopher Sepulvado during a hearing for a federal lawsuit the inmate had joined earlier this month against the state. He had been scheduled to die by lethal injection on Ash Wednesday, Feb. 13.

  "Fundamental fairness requires no less (than a stay)," Brady said during the ruling in his Baton Rouge courtroom.

  From the bench, Brady said there were two issues raised in the hearing: the Eighth Amendment, assuring freedom from cruel and unusual punishment, and the Fourteenth Amendment, guaranteeing the right to due process.

  Sepulvado, 69, of DeSoto Parish, was convicted in 1993 for the 1992 murder of his 6-year-old stepson, Wesley Allen Mercer. Court documents outline the boy's death in gruesome detail, describing how he was beaten with a screwdriver and his body immersed in a tub of scalding water, causing significant burns and ultimately death.

  The question of the constitutionality of Sepulvado's execution preceded the Feb. 7 ruling. His lawyers had been trying since 2010 to get their hands on a written protocol for his execution, after suspecting that the state no longer had one of the three drugs previously used to kill death row inmates. But the lawyers were caught off guard when state officials unexpectedly said in court two days earlier that they've found a way around the shortage of that one drug, by using a different single dose.

  Previously, the state used sodium thiopental, pancuronium bromide and potassium chloride. A nationwide shortage of the first drug led to a delay in some death sentences in various states. However, Texas first used the single-drug method with pentobarbital in July; other states have followed suit.

  Even before Louisiana announced the use of a new drug, Sepulvado wanted the execution thrown out so he could challenge the state's lethal injection process. As in cases in other states, his attorney says any drug replacement or unknown procedure could violate his constitutional rights.

  Brady granted Sepulvado's wish, agreeing with his lawyers that Sepulvado deserves more time to learn the facts about how the state intends to kill him.

  The stay was issued in connection with a lawsuit filed in federal court by attorneys for Jessie Hoffman, another Louisiana inmate sentenced to death.

  Sepulvado's lawyer, Gary Clements, filed a motion in January to join Hoffman's lawsuit, which faulted the state for not providing basic information about the three-drug lethal injection process.

  Clements raised the same argument on Sepulvado's behalf, this time targeting the one-drug process. He said he needed more time to determine if it causes excruciating pain, as some contend.

  Clements said he needs more information than what was on hand in court: a two-page Wikipedia article about pentobarbital the state submitted after first announcing the drug change, and a 15-page document the judge said might be available. Specifically, Clements wants information about who administers the drug, the shelf life of the pentobarbital, and when the state obtained it, he said.

  Michael Rubenstein, a lawyer representing Hoffman, said in an email that just because the state has named a new drug, a proper protocol is not necessarily in place.

  "The State continues to refuse to provide basic information about how it intends to execute Louisiana citizens, such as whether any medical authorities were consulted regarding the incorporation of a new drug; the source of the new drug; or the training of personnel who will implement the new procedure for the first time," he wrote on Feb. 7.

  The Louisiana Department of Public Safety and Corrections (DPSC) representative who appeared in court did not have a state-issued written procedure of how to administer the drug for the first time, Rubenstein said.

  "There is only one pharmaceutical company that makes pentobarbital that has been approved for use in this country, and that company has made the drug unavailable for departments of corrections to use in executions," Rubenstein said.

  "For this reason, it is imperative that the Louisiana DOC be forthright ... about where it got the pentobarbital it plans to use and whether it is an FDA-approved product."

  The DPSC did not respond to requests for comment on the origin of the drug, though in a court filing, the department said it was acquired legally.

Since 1982, Texas has used pentobarbital as part of a three-drug cocktail, including pancuronium bromide, a muscle relaxant. With pancuronium bromide now in short supply, several other states — including Ohio, Arizona, Idaho, Washington and Georgia — have decided to switch to the single-injection procedure.

  During a hearing on Feb. 7, Corrections Department attorney Wade Shows provided an affidavit stating that the pentobarbitol on hand at the Louisiana State Penitentiary at Angola was purchased from Lundbeck Inc., a Danish-based international pharmaceutical company that was the FDA's only source of approved pentobarbital. But according to defense lawyers, Lundbeck has opposed use of its pentobarbitol for lethal injection since July 2011.

  "Lundbeck adamantly opposes the distressing misuse of our product in capital punishment," Lundbeck chief executive officer Ulf Wiinberg said in a company news release. "Since learning about the misuse we have vetted a broad range of remedies — many suggested during ongoing dialogue with external experts, government officials, and human rights advocates."

  Sepulvado's lawyers argued that the company's restrictions on use of the drug for executions make it likely that Louisiana's supply is years old, or from out of the country, casting doubt on its efficacy.

  The state says the drug is legal.

  "DPSC procured it through lawful means and did not go out of country to get it," lawyers for the state wrote in a court filing.

  "Finally, the fact that a manufacturer may have a problem with the State of Louisiana executing an individual for committing an especially heinous crime against a ... defenseless child is completely irrelevant for the purpose of an Eighth Amendment challenge."

  Louisiana's most recent execution, in 2010, was of Gerald Bordelon, 47, for the murder of Courtney LeBlanc. Bordelon was executed by use of the three-drug cocktail.

At the age of 69, Sepulvado would be the oldest inmate ever to be put to death by Louisiana, according to the Louisiana Coalition for Alternatives to the Death Penalty. Born in 1943, the seventh of eight children, Sepulvado abused alcohol from the age of 12 and has a history of mental illness, according to a state Supreme Court decision from 1996. Nonetheless, the decision said, "defendant is able to distinguish from right and wrong."

  Sepulvado, then 48, married the victim's mother three days before the boy's death.

  According to court files, the 6-year-old defecated in his pants and was then forced to sleep in soiled clothes and was denied food for two days.

  According to the 1996 decision:

  "At around 10:00 a.m. on Sunday, [Sepulvado] and the victim were in the bathroom, preparing to attend church services. [Sepulvado] instructed the victim to wash out his soiled underwear in the toilet and then take a bath. When the victim hesitated to do so, [Sepulvado] hit him over the head with the handle of a screwdriver several times with enough force to render him unconscious. Thereafter, the victim was immersed in the bathtub which was filled with scalding hot water."

  The boy was taken to the hospital about three hours later, according to the court documents, where he was pronounced dead. The death was attributed to scald burns covering 60 percent of the victim's body.

  "The scalding was so severe that the victim's skin had been burned away. In addition to the burns, medical examination revealed that the victim had been severely beaten. The victim's scalp had separated from his skull due to hemorrhaging and bruising," the document continues.

  A DeSoto Parish jury convicted Sepulvado of murder and imposed the death penalty in April 1993.

  Sepulvado's lawyers have filed several appeals at the state and federal levels; all of them have been denied.

  "Even with these severe injuries, defendant did not seek medical attention for the victim until three hours later, after the victim had gone into shock, began vomiting, and died from the burns," the State Supreme Court wrote in the 1996 decision. "Undoubtedly, considering the nature of the abuse visited upon this six-year-old child over the weekend preceding his death, the boy was the victim of pitiless torture and needless infliction of pain."

— This story is published in cooperation with The Lens, a nonprofit online newsroom based in New Orleans: www.thelensnola.org.

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