Stay sought in Louisiana execution

Sepulvado faces Feb. 5 execution

Hours after condemned murderer Christopher Sepulvado’s attorneys asked for a stay Monday of his Feb. 5 execution, the state corrections department said it has been unable to procure the drug needed to kill him.

“DOC is notifying Mr. Sepulvado’s attorneys and the Court tonight that DOC has changed the execution protocol. The change consists of adding a two-drug protocol in addition to the current one-drug protocol ... The Department will continue to attempt to obtain the drug or drugs necessary for either of the two protocols,” the agency said in a prepared statement.

The Jindal administration offered no further details.

Earlier in the day, Gov. Bobby Jindal refused to speculate on the likelihood of the execution taking place on the scheduled date. “The most important thing to us is that justice is served,” Jindal said.

Sepulvado’s attorneys and the Jindal administration have been battling in court over the details of the execution. Sepulvado wants to know what drugs will be used and from whom they will be purchased. Louisiana — like most states — is struggling to find execution drugs after manufacturers put a chokehold on orders destined for death penalty chambers.

“Since this lawsuit was initiated over a year ago, the defendants have escalated their strategy of obfuscation and delay, insisting on impeding discovery through spurious claims of state secrets so that they can evade resolution of the issues while attempting to accelerate the pace of executions in Louisiana with Mr. Sepulvado next in their cross-hairs,” attorneys Gary Clements and Kathleen Kelly wrote in a court filing for the U.S. District Court for the Middle District of Louisiana.

The state wants to execute Sepulvado on Feb. 5 for beating and scalding his 6-year-old stepson to death. Executions in Louisiana are carried out by lethal injection.

Sepulvado’s attorneys raised a multitude of issues, among them precisely how the state plans to obtain the drug needed to put him to death. Pharmaceutical companies have put states in a quandary by refusing to sell their drugs for executions. The drugs also often expire before they can be used.

Gerald Bordelon — the last Louisiana inmate put to death — died in 2010 with the assistance of an anesthetic agent called sodium thiopental. The state’s remaining supply of sodium thiopental later expired, and the only U.S. company that manufactured the drug quit making it. Louisiana switched to pentobarbital but its supply expired in September.

In court documents, Sepulvado’s attorneys suggested the state plans to buy pentobarbital from an Oklahoma compounding pharmacy that is not regulated in Louisiana. The state corrections department declined to answer questions Monday about the planned execution because of the ongoing litigation.

The use of pentobarbital in executions is controversial, and states often refuse to detail how they obtain it. Sepulvado’s attorneys cited expert testimony that compounding pentobarbital creates a “substantial risk of serious, unnecessary and substantial harm and mental anguish.”

Earlier this month in Oklahoma, inmate Michael Lee Wilson’s dying words reportedly were “I feel my whole body burning” after he received a lethal dose of pentobarbital. Days later, witnesses reported that Ohio condemned killer Dennis McGuire gasped for at least 10 minutes before succumbing to a drug combination that included pentobarbital.

As of Friday, the Louisiana Department of Corrections did not have any pentobarbital. The department’s attorneys told Sepulvado’s lawyers that the state is trying to procure at least 15 grams of the drug.

Sepulvado was supposed to die in November but the date was thrown out as his attorneys pressed for details on the state’s execution protocol. He was convicted in 1993 for the death of his stepson, Wesley Allen Mercer. The child had third-degree burns over 58 percent of his body as well as significant hemorrhaging and bruising.

Not only does Sepulvado want to know the source of his execution drug, but he wants the right to seek independent testing of it. His attorneys argued that the drug could result in him dying in agony.

“The Department of Corrections seeks to administer an illegally and unsoundly compounded pharmaceutical simply because it can’t purchase the real thing from a legitimate vendor. That practice puts the end user at risk,” his attorneys wrote.