A federal appeals court has rejected a Texas death row inmate's appeal that his execution could result in a bungled lethal injection similar to one two weeks ago in Oklahoma.
The 5th U.S. Circuit Court of Appeals said late Monday that speculation about Texas' use of a lethal drug from a secret provider is not enough to prove Robert James Campbell's claim that the punishment could cause unconstitutional pain and suffering.
Oklahoma authorities say a broken vein caused the failure of Clayton Lockett's execution.
Campbell's execution is scheduled for Tuesday evening. His attorney says she's taking the matter to the U.S. Supreme Court.
Another appeal contending Campbell is mentally impaired and ineligible for execution remains before the 5th Circuit. Attorneys have a petition about the issue before the Supreme Court.
Oklahoma has agreed to a six-month stay of execution for another inmate while the state conducts an investigation of the death of Lockett, who began writhing, clenching his teeth and straining to lift his head after he was injected with lethal drugs last month. The blinds were eventually lowered to prevent viewing of the death chamber. It could take at least two months for a complete autopsy report to be received, Oklahoma officials said Monday.
Campbell's attorneys -- citing the Oklahoma case that President Barack Obama called "inhumane" -- renewed arguments raised earlier in Texas that secrecy over the source of the pentobarbital drug to be used could mean that Campbell is subjected to unconstitutional pain and suffering.
"Frighteningly, Texas is pursuing the path of secrecy in the midst of these deeply troubling events, and even in the immediate wake of events in Oklahoma," said Maurie Levin, Campbell's lead attorney in a federal civil rights suit. "Information about the source of lethal injections drugs -- particularly in today's fraught arena -- is vital."
Attorneys for the state of Texas disputed Levin's arguments, saying they were "speculative" and did not demonstrate a significant risk of pain. Texas was not using a new method of execution and did not employ the three-drug procedure used in Oklahoma, they said. Texas had carried out three executions with the new drug supply and courts already had ruled the process was acceptable, the state said.
The Texas procedures are "vastly different from the situation in Oklahoma in which an admittedly new protocol was used," said Ellen Stewart-Klein, an assistant attorney general.
If Campbell's execution proceeds it would be the fourth in recent weeks in Texas to use a lethal dose of pentobarbital obtained from a compounding pharmacy prison officials have refused to identify. Three previous executions were carried out without incident.
A federal judge in Houston last week rejected Campbell's appeal on the secrecy issue, saying his hands were tied because of rulings from the 5th U.S. Circuit Court of Appeals in previous cases. But U.S. District Judge Keith Ellison urged the 5th Circuit to reconsider the issue because it seemed to "shield crucial elements of the execution process form open inquiry."
Texas obtained a new execution drug supply and invoked secrecy in late March as a previous stock was reaching its expiration date. The confidentiality was necessary to keep the provider, a compounding pharmacy, from threats of violence from death penalty opponents, prison officials said.
Campbell's civil rights lawsuit joined another appeal Monday in the 5th Circuit that contended Campbell was mentally impaired, making him ineligible for execution under U.S. Supreme Court rulings.
Campbell, 41, was convicted of capital murder for the January 1991 slaying of a 20-year-old Houston bank teller, Alexandra Rendon, who was abducted while putting gas into her car, robbed, raped and shot. A companion of Campbell's, Leroy Lewis, pleaded guilty, received 35 years in prison and is now on parole. Campbell was 18 at the time of the slaying and on parole after serving four months of a five-year sentence for robbery.
"I can't imagine her last moments," Rendon's cousin, Israel Santana, said last week. "She had no chance. Think about what hell she endured ... the agony she had to go through."
Campbell would be the eighth inmate executed in Texas so far this year.
Even before the Oklahoma problems, questions about execution procedures had drawn renewed attention from defense attorneys and death penalty opponents in recent months. States have scrambled to find new sources of execution drugs after several drugmakers, including many based in Europe, refused to sell their products for use in executions.