(CN) – Texas executed a former Dallas accountant Thursday night who shot his two young daughters to death in 1991 as their mother listened to them scream on the phone.
John Battaglia, 62, died at 9:40 p.m. Thursday from a dose of sodium pentobarbital, after his attorneys’ flurry of last-minute appeals were rejected by a federal judge in Houston, the Fifth Circuit Court of Appeals and the U.S. Supreme Court.
Battaglia’s execution was the third this year in the United States, all in Texas. Executions set for early this year in Pennsylvania, Ohio and Alabama were stayed or rescheduled.
Texas executed William Rayford on Tuesday and Anthony Shores on Jan. 18, both with injections of pentobarbital.
Battaglia’s defense team keyed in on the state’s supply of pentobarbital in a lawsuit filed early Thursday in Houston Federal Court, complaining that Texas planned to kill Battaglia with the same expired batch of the drug it had used on Rayford and Shores.
They said the drug caused complications in Rayford’s and Shores’ executions, and that experts have found that administering drugs that are “unstable, subpotent, or contaminated” can cause excruciating pain.
“During Mr. Rayford’s execution, he attempted to raise his body, was shaking, grimaced, breathed in a strained and heavy manner, and jerked his head into the gurney multiple times,” the petition states.
“During Mr. Shore’s execution, his body shook, he appeared to be struggling to breathe, and he cried out ‘I can feel that it does burn. Burning!’
“Mr. Rayford’s and Mr. Shore’s behavior and actions during their executions reveal that they were suffering extreme pain.”
But U.S. District Judge Nancy Atlas refused to stay the execution, citing Fifth Circuit precedent in which the appellate court rejected other appeals from death row inmates with concerns about degraded pentobarbital.
“Battaglia assumes that the pentobarbital that has very recently passed its BUD [beyond use date] is degraded, and while the state has not had to opportunity to refute that accusation, Battaglia has still not shown that the risk of severe pain is very likely or imminent,” Atlas wrote. She rejected the claim that the execution would violate the Eighth Amendment’s ban on cruel and unusual punishment.
Scheduled for 6 p.m. Thursday, Battaglia’s execution was delayed for nearly four hours as his attorneys unsuccessfully appealed to the Fifth Circuit and the Supreme Court.
A Dallas County jury convicted Battaglia of capital murder and sentenced him to death in April 2002, despite testimony from three psychologists, two for the defense, one for the prosecution, that Battaglia had bipolar disorder, mental problems formerly known as manic depression.
Battaglia had two daughters, Faith and Liberty, with his wife Mary Jean Pearl before they separated in 1999 and divorced in 2000, the Texas Court of Criminal Appeals wrote in a September 2017 order rejecting Battaglia’s attorneys’ claims that his life should be spared due to incompetence.
Pearl testified during Battaglia’s trial that one Christmas morning after they divorced he pulled her hair, pushed her to the floor and kicked her in front of Faith, Liberty and Kristy, his daughter from a previous marriage, leaving her with dark bruises on her head, according to the case record as recounted by the Texas Court of Criminal Appeals.
Pearl got a protective order against Battaglia and called the police around Easter 2001 after he left a message on her answering machine calling her a “fucking pig” and accusing her of “screw(ing)” his daughter Kristy out of her college fund.
Police obtained a warrant for Battaglia’s arrest for violating probation and a policeman told Battaglia on May 2, 2001 that he needed to turn himself in.
That night Battaglia had his customary dinner visit with Liberty and Faith, according to the case record. Battaglia left a message with Pearl’s friend to have Pearl call his apartment phone when the girls were there.
“Battaglia answered, then put the phone on speaker mode, and instructed Faith to ‘Ask her.’ Mary Jean then heard Faith ask, ‘Mommy, why do you want Daddy to go to jail?’
“Then Mary Jean heard Faith say, ‘No, Daddy, please don’t, don’t do it.’ Mary Jean yelled into the phone, ‘Run, run for the door!’ She heard gunshots and her daughters’ screams. She then heard Battaglia yell ‘Merry Fucking Christmas!’”, Judge Bert Richardson wrote in an 8-1 majority opinion in which the Texas Court of Criminal Appeals remanded Battaglia’s case to the trial judge to set his execution date.
Police found 9-year-old Faith and 6-year-old Liberty dead with three and four gunshot wounds.
They arrested Battaglia that night outside a tattoo parlor. Battaglia had gone there with his girlfriend and got roses tattooed on his arm in honor of the daughters he had just killed.
Pearl testified that the day after the murders she played the messages on Faith’s and Liberty’s answering machine in their bedroom.
Battaglia had left this message: “Good night my little babies. I hope you’re resting in a different place. I love you. I wish that you had nothing to do with your mother. She was evil, vicious, stupid. You will be free of her. I love you very dearly. You were very brave girls. Very brave. Liberty, you were oh so brave. I love you so much. Bye.”
Texas has three more executions scheduled for this year. The next one, Thomas Whitaker’s, is set for Feb. 22. Whitaker was convicted of hiring a hitman who murdered Whitaker’s mother and brother in December 2003.