Lethal Injection Change in Store, TX Inmates Say

HOUSTON (CN) - A death-row inmate set to face a new lethal injection protocol in Texas next week says the state is "experimenting with new drugs and obscuring the information from the public."

Michael Yowell and two other Texas death row inmates sued Texas Department of Criminal Justice directors Brad Livingston and Williams Stephens; James Jones, senior warden at the TDCJ's Huntsville prison, where executions take place; and unknown executioners in Federal Court.

Yowell shot his father dead and strangled his mother in their Lubbock, Texas, home in May 1998.

He then opened a gas valve in the house, leading to an explosion and fire that killed his grandmother.

A jury sentenced him to death in October 1999, unconvinced by his insanity defense.

That execution is scheduled for Oct. 9.

In his new lawsuit with fellow inmates, Yowell says a federal judge should enter a stay until state officials "can demonstrate the integrity and legality of any and all controlled substances they intend to use for plaintiffs' execution."

Yowell insists that the lawsuit is no Hail Mary, but rather the first possible opportunity to sue over "an entirely new drug."

"It was only last week, with the execution of Arturo Diaz on September 26, 2013, that the TDCJ consumed what plaintiffs knew to be the last of their existing supply of Nembutal," the complaint states, using the brand name for pentobarbital.

"Until that event occurred, and TDCJ nonetheless continued to insist that Texas' execution protocol would not be changed, yet refused to timely disclose the source and nature of the drugs that they intend to use to execute Mr. Yowell, plaintiffs contend that this lawsuit was not ripe. However, upon information and belief, the next execution Texas carries out will be with an entirely new drug."

Yowell attributes the short supply of pentobarbital to "pharmaceutical companies' increasing discomfort with their products being used in executions."

"Because Nembutal is no longer available for use in executions, TDCJ has been exploring possible new drugs," the complaint states. "Plaintiffs' counsel have gathered information that TDCJ is in possession of propofol, midazolam, and hydromorphone - drugs that have never been used in an execution, by any state. Expert evidence available to date indicates that use of any of these drugs runs a substantial risk of grave pain."

The TDCJ recently tried to order compounded pentobarbital, but the compounding pharmacy canceled the order when it found out the agency intended to use the drug for executions, Yowell says.

"While TDCJ has (after state court litigation) recently provided information in response to Public Information Act requests for the identity and source of lethal injection drugs, their responses are deceptive, limited, and only come after they consume the full amount of time they are allotted under the Public Information Act," according to the complaint (parentheses in original). "The last time the TDCJ changed the execution protocol (from a three drug formula to a single drug execution), it gave the first inmate scheduled for execution using the new single drug protocol a mere two days' notice."

Yowell says the TDCJ's "secretive and obstructionist approach makes it impossible" for him to find out what drugs they will use on him, their source and their effectiveness in executing him without "cruel and unusual pain."

The other plaintiffs are Thomas Whitaker and Perry Williams.

Whitaker was sentenced to death in March 2007 after his conviction for arranging the murder of his mother and brother so he could collect a $1 million inheritance. His father survived the shooting.

Williams received a death sentence in June 2002 for shooting a man in the head during a robbery in Houston.

The inmates are represented by Bradley Chambers with Baker Donelson Bearman Caldwell & Berkowitz.

TDJC did not respond to a request for comment.

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