You are on page 1of 43

No.

___________

In the Supreme Court of the United States
October Term, 2013
____________________________
MARCUS A. WELLONS,
Petitioner,
V.
BRIAN OWENS, Commissioner, Georgia Department of Corrections,
BRUCE CHATMAN, Warden, Georgia Diagnostic and Classification Prison, and
OTHER UNKNOWN EMPLOYEES AND AGENTS, Georgia Department of Corrections,
Respondents.
_____________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________
PETITION FOR A WRIT OF CERTIORARI
_____________________________
Gerald W. King Jr. (Ga. Bar No. 140981) Mary Elizabeth Wells (Ga. Bar No. 747852)
Jeffrey Lyn Ertel (Ga. Bar No. 249966) Law Office of M.E. Wells
Federal Defender Program, Inc. 623 Grant Street, SE
101 Marietta Street, Suite 1500 Atlanta, GA 30313
Atlanta, GA 30303 (404) 408-2180
(404) 688-7530
Counsel of Record for Petitioner

CAPITAL CASE
QUESTIONS PRESENTED
Appellants refuse to disclose the provenance of the compounded drugs or the
qualifications of the personnel who will administer them when executing Mr. Wellons by
lethal injection this evening.
1) Does Appellants refusal to disclose information necessary to determine whether their
chosen method of execution will create a substantial risk of significant harm violate
Mr. Wellonss rights pursuant to the Eighth and Fourteenth Amendments to the
United States Constitution?
2) Does Appellants refusal to disclose information necessary to determine whether their
chosen method of execution will create a substantial risk of significant harm
deprive him of due process of law and access to the courts in violation of Mr.
Wellonss rights pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution?
3) Does Appellants refusal to allow access to information about a governmental
proceeding of public interest and to which the public has traditionally had access
violate Mr. Wellonss rights pursuant to the First Amendment to the United States
Constitution?
i
MARCUS A. WELLONS petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The decision of the United States District Court for the Northern District of Georgia
denying Mr. Wellonss action pursuant to 42 U.S.C. 1983, Wellons v. Owens, et al., Civil
Action No. 1:14-CV-1827-WBH, appears as Exhibit 1 to this petition. The decision of the
Eleventh Circuit, Wellons v. Owens, et al., *, appears as Exhibit 2 to this petition.
JURISDICTION
The decision of the Eleventh Circuit was entered on June 17, 2014. Mr. Wellons
invokes the jurisdiction of this Court pursuant to 28 U.S.C. 1254.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Amendment I to the United States Constitution provides, in relevant part: Congress
shall make no law . . . abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. CONST. art. I.
Amendment V to the United States Constitution provides, in relevant part: No person
. . . shall be deprived of life, liberty, or property without due process of law . . . . U.S.
CONST. art. V.
Amendment VIII to the United States Constitution provides: Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S.
CONST. art. VIII.
Amendment XIV to the United States Constitution, section 1, provides, in relevant
part: Nor shall any State deprive any person of life, liberty, or property without due process
of law, nor deny to any person within its jurisdiction the equal protection of the laws. U.S.
CONST. art. XIV, cl. 1.
O.C.G.A. 42-5-36(d) provides:
(1) As used in this subsection, the term 'identifying information' means any
records or information that reveals a name, residential or business address,
residential or business telephone number, day and month of birth, social
security number, or professional qualifications.
(2) The identifying information of any person or entity who participates in or
administers the execution of a death sentence and the identifying information
of any person or entity that manufactures, supplies, compounds, or prescribes
the drugs, medical supplies, or medical equipment utilized in the execution of
a death sentence shall be confidential and shall not be subject to disclosure
under Article 4 of Chapter 18 of Title 50 or under judicial process. Such
information shall be classified as a confidential state secret.
O.C.G.A. 42-5-36 (d).
STATEMENT OF THE CASE
Respondents have told Plaintiff Marcus Wellons that they will execute him by lethal
injection at 7:00 p.m. today. They will tell him little more. Instead, Respondents rely upon
Georgias new lethal injection secrecy act to shield critical aspects of their execution
procedures from scrutiny by Mr. Wellons, the public, and the courts. Respondents refuse to
disclose the provenance and true nature of the substance with which they will inject Mr.
Wellons to end his life. Nor will they confirm the qualifications of the personnel whom they
have delegated to carry out his execution, including those who will place the catheters into
2
his veins.
In his underlying complaint, Mr. Wellons challenges neither the conviction underlying
his sentence of death nor that sentence itself. Nor does he allege that lethal injection as a
form of execution is per se unconstitutional. But Respondents refusal to disclose these
critical aspects of their lethal injection procedures deprives him and the courts of the
information necessary to determine whether those procedures present a substantial risk of
significant harm in violation of his Eighth Amendment rights a risk recently underscored
by Oklahomas secretive and botched execution of Clayton Lockett. It also deprives Mr.
Wellons of his First Amendment right of access to governmental proceedings. Accordingly,
as Respondents conduct cannot be sanctioned by the Constitution, this Court should grant
certiorari review.
Course of Proceedings and Statement of Facts
Mr. Wellons was convicted of malice murder and rape and sentenced to death in the
Superior Court of Cobb County in 1993. The Supreme Court of Georgia affirmed Mr.
Wellonss convictions and sentences, Wellons v. State, 463 S.E.2d 868 (1995), and this Court
denied Mr. Wellonss certiorari petition, Wellons v. Georgia, 519 U.S. 830 (1996). Mr.
Wellons sought state habeas corpus relief, which was denied. Mr. Wellons filed a petition
for writ of habeas corpus in the District Court for the Northern District of Georgia which was
denied. The Eleventh Circuit Court of Appeals affirmed the denial of relief on June 25,
2010. Wellons v. Hall, 554 F.3d 923 (11th Cir. 2006). This Court granted Mr. Wellonss
3
petition for writ of certiorari and remanded Mr. Wellonss case for further consideration.
Wellons v. Hall, 558 U.S. 220 (2010). After the Eleventh Court remanded Mr. Wellonss
1
case to the district court for further proceedings consistent with the Supreme Courts
opinion, Wellons v. Hall, 603 F. 3d 1326 (11 Cir. 2010), that court entered its order and
judgment denying habeas corpus relief on August 5, 2011. The Eleventh Circuit affirmed
the district courts denial of Mr. Wellonss habeas petition on September 19, 2012
(D153-Appendix A). This Court denied his petition for a writ of certiorari on October 7,
2013. Wellons v. Humphrey, 134 S.Ct. 177 (2013). Pursuant to an order entered by the
Superior Court of Cobb County on May 28, 2014, Appellants have scheduled Mr. Wellons
for execution on June 17, 2014.
On June 12, 2014, Mr. Wellons filed a complaint pursuant to 42 U.S.C. 1983 in the
United States District Court for the Northern District of Georgia seeking declaratory and
injunctive relief. Mr. Wellons concurrently a motion for a temporary restraining order and
stay of execution. That Court denied that motion and granted Appellants motion to dismiss
This Court found no procedural bar for Mr. Wellonss claims of judge, juror, and
1
bailiff misconduct, which centered upon unreported ex parte contacts between the jury and
the judge, that jurors and a bailiff had planned a reunion, and that either during or
immediately following the penalty phase, some jury members gave the trial judge chocolate
shaped as male genitalia and the bailiff chocolate shaped as female breasts . . . . Wellons,
558 U.S. 220 (From beginning to end, judicial proceedings conducted for the purpose of
deciding whether a defendant shall be put to death must be conducted with dignity and
respect).
4
on June 16, 2014. Earlier today, Mr. Wellons appealed that judgment to the Eleventh Circuit
Court of Appeals. That Court *denied his appeal. This timely petition for a writ of certiorari
follows.
Summary of Factual Allegations
Only Appellees know exactly how they plan to execute Mr. Wellons on Tuesday night.
In refusing to disclose information about the provenance of their lethal injection drugs,
Appellees rely upon O.C.G.A. 42-5-36, a measure adopted by the Georgia Legislature in
March of 2013 that classifies all identifying information about a person or entity who
participates in or administers the execution of a death sentence . . . [or] that manufactures,
supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment used
in an execution as a confidential state secret not subject to disclosure through Georgias
Open Records Act or judicial process. O.C.G.A. 42-5-36 (d); see also Rhonda Cook and
Bill Rankin, Lethal injection secrecy bill wins approval, ATLANTA JOURNAL-CONSTITUTION
(March 26, 2013). Identifying information includes professional qualifications.
2
Accordingly, Appellees have asserted that this statute excuses them from disclosing any
information concerning the origins of their lethal injection drugs or, for that matter, the
qualifications of those personnel whom they designate to administer the execution.
This lethal injection secrecy act was adopted following a series of embarrassing and
Available at: http://www.ajc.com/news/news/state-regional-govt-politics/
2
lethal-injection-secrecy-bill-wins-approval/nW4tK/ (Last visited June 10, 2014).
5
potentially-illegal missteps by the Appellees as they attempted to obtain drugs for use in
lethal injections in spite of widespread shortages. In their seemingly-desperate quest to
continue executions unabated, Appellees have run afoul of the Drug Enforcement
Administration by illegally importing sodium thiopental. They have also repeatedly and
abruptly altered their lethal injection procedures in spite of a series of botched executions,
once changing their protocol on the very eve of an execution. Rather than be chastened by
these experiences, however, Appellees have evidently decided that the solution to their
problems with lethal injection is to shield their procedures from scrutiny and prevent further
discovery of their errors or improprieties by the public or the courts.
Indeed, the only information Appellees have divulged concerning the substances that
they intend to use in Mr. Wellonss execution is a copy of the lethal injection procedures that
they adopted on July 17, 2012. See Letter from Wilson to Munro of 05/27/2014 (attached
as Ex. 3) at 000005-000017. These procedures outline a one-drug lethal injection protocol
featuring Pentobarbital. Id. As Appellees have not had any FDA-approved Pentobarbital
in their possession since March of 2013 , Mr. Wellons suspects that Appellees will use a
3
substance that purports to be pentobarbital, but that has been manufactured from unknown
ingredients and in unknown circumstances by a compounding pharmacy. The considerable
4
Discussed infra at 11-15.
3
Counsel for Appellees has indicated to Mr. Wellonss counsel that they have obtained
4
Pentobarbital for his execution.
6
risks presented by compounded pentobarbital are discussed infra at *19-25.
5
Further, the statute shields not only the source of the execution drugs, but the
qualifications of the personnel whom Appellees have charged with administering the lethal
injection drugs. This is not an abstract concern. As is discussed infra at 25-32, the
consequences of error in the placement of the intravenous lines during an execution include
suffering that cannot be sanctioned by the Eighth Amendment, as illustrated by Floridas
botched execution of Angel Diaz and Oklahomas botched execution of Clayton Lockett.
The Lethal Injection Secrecy Act Will Conceal Future
Misconduct by Appellees
Any assessment of either the legitimacy of the statute or Appellees motivations in
passing it must account for Georgias checkered history with lethal injection. In the last
several years, there have been widespread shortages of the drugs favored by Georgia and
As Mr. Wellons noted in his complaint below, Georgias lethal injection statute does
5
not limit the drugs that the Appellees can use when carrying out executions beyond requiring
that they use a substance or substances sufficient to cause death . . . . O.C.G.A. 17-10-
38(a), and the Supreme Court of Georgia has empowered Appellees to change their protocol
at will and at any time with no supervision from any other entity or meaningful notice to the
prisoner or the public. Hill v. Owens, 292 Ga. 380 (2013)(as [t]he particular issue of lethal
injection procedures is heavily litigated and closely scrutinized by state and federal courts
throughout the nation, including this Court. . . . judicial review and oversight of the
Department of Corrections procedures is preferable to APA administrative proceedings).
Mr. Wellons accordingly raised the concern that if Appellees opted to change their protocol
at the last minute as they attempted to do on the eve of a scheduled execution in July of
2012 even the little information that Mr. Wellons he had would become obsolete before
June 17. In the proceeding below, counsel for Appellees represented as an officer of the
court that Appellees will execute Mr. Wellons pursuant to their protocol they provided to
him. It is telling, however, that only a lawsuit could compel that commitment.
7
other states for use in executions. Appellees conduct in the face of these shortages suggests
that their primary goal is to carry out executions as rapidly as possible, with little regard for
the safety and efficacy of these drugs or, indeed, the laws that regulate them.
Beginning in 2010, Georgia was faced with an acute nationwide shortage of sodium
thiopental, the first of the three drugs that it administered to prisoners during lethal injections
under its then-protocol. See, e.g., Carol Williams, Maker of Anesthetic Used in Executions
is Discontinuing Drug, LOS ANGELES TIMES, January 22, 2011. When the FDA placed an
6
administrative hold upon a shipment of imported sodium thiopental that Georgia and several
other states had ordered through a U.S. pharmacy, Appellees opted to circumvent federal law
governing the importation of controlled substances by directly purchasing a supply of
mislabeled sodium thiopental for use in lethal injections from Dream Pharma, Inc., a fly-by-
night pharmaceutical wholesaler/distributor which operated out of a storefront driving school
in London, England. Appellees chose this course despite the fact that they were not
registered with the Drug Enforcement Agency (DEA) as an importer of non-narcotic
controlled substances and did not provide a declaration of importation to the DEA. On
7
March 16, 2011, after the Attorney General was notified of Georgias illegal importation, the
DEA seized Georgias entire supply of thiopental. Bill Rankin et al., DEA seizes Georgias
Available at: http://articles.latimes.com/2011/jan/22/local/la-me-execution-
6
drug-20110122 (Last visited June 10, 2014).
Nor did Georgia possess a DEA license to possess, dispense, or distribute a Schedule
7
III non-narcotic controlled substance such as thiopental.
8
supply of lethal injection drug, ATLANTA JOURNAL-CONSTITUTION (March 16, 2011).
8
Unfortunately, this thiopental of questionable provenance had already been used in the
executions of Brandon Rhode and Emanuel Hammond, both of whom appeared to remain
conscious throughout their executions.
9
Following the seizure, Appellees altered its three-drug lethal injection protocol to
replace thiopental with pentobarbital, a barbiturate and controlled substance. Appellees made
this substitution despite the fact that the sole manufacturer of FDA-approved pentobarbital,
Lundbeck Inc., warned them that the drug was not safe for use in judicial lethal injections,
as it had not been tested for the induction of anesthetic comas in humans. Sten Stovall,
LundbeckHorrified at Drug Execution Use, WALL STREET JOURNAL (June 8, 2011).
10
Appellees ignored this caution and, on June 23, 2011, executed Roy Blankenship pursuant
to their new protocol. An AP reporter who witnessed the execution offered the following
account of Mr. Blankenships reaction:
Available at: http://www.ajc.com/news/news/local/dea-seizes-georgias-
8
supply-of-lethal-injection-dru/nQrdf/ (Last visited June 10, 2014).
On September 27, 2010, Georgia used its illegally-imported thiopental in its
9
execution of Brandon Rhode. Mr. Rhodes eyes remained open throughout his execution,
which strongly suggested that he was conscious after the administration of thiopental. On
January 25, 2011, Georgia executed Emanuel Hammond with the same batch of thiopental;
Mr. Hammond opened his eyes and grimaced after the injection of the thiopental, suggesting
that he was inadequately sedated. Liliana Segura, the Executioners Dilemma, the Nation
(May 12, 2011), available at: http://www.thenation.com/article/160648/
executioners-dilemma# (Last visited June 10, 2014).
Available at: http://online.wsj.com/article/
10
SB10001424052702304259304576373020954841208.html (Last visited June 10, 2014).
9
As the injection began, [Blankenship] jerked his head toward his left arm and
made a startled face while blinking rapidly. He soon lurched to his right arm,
lunging with his mouth agape twice. He then held his head up, and his chin
smacked as he mouthed words that were inaudible to observers . . . . His eyes
never closed.
Greg Bluestein, Ga. Executes inmate convicted of Savannah slaying, THE ATLANTA
JOURNAL-CONSTITUTION (June 23, 2011). As another eyewitness said of the execution,
Blankenship was apparently much more aware of his surroundings at a time when he
shouldnt have been. Eddie Ledbetter, Making a date with death, STATESBORO HERALD
(June 25, 2011).
Lundbeck announced on July 1, 2011, that it was establishing a new distribution
system to deny orders from prisons located in states currently active in carrying out death
sentences and prohibiting the redistribution of pentobarbital without its authorization.
Jeanne Whalen and Nathan Koppel, Lundbeck Seeks to Curb Use of Drug in Executions,
WALL STREET JOURNAL (July 1, 2011). Undaunted, Appellees used the same protocol in
11
short order to carry out the executions of Andrew DeYoung on July 21, 2011, and Troy Davis
on September 21, 2011.
Appellees hastily adopted a new, one-drug lethal injection protocol at approximately
noon on July 17, 2012 the day before the scheduled execution of Warren Hill. Rhonda
Cook and Bill Rankin, State changes lethal injection protocol, reschedules execution,
Available at: http://online.wsj.com/article/
11
SB10001424052702304584004576419092675627536.html (Last visited June 10, 2014).
10
ATLANTA JOURNAL-CONSTITUTION (July 17, 2012). While Appellees offered no
12
explanation for this eleventh-hour change, later reports revealed that Georgias supply of
pancuronium bromide the second drug administered pursuant to its now-abandoned
three-drug protocol had expired on July 1, 2012, some two weeks before Mr. Hills
scheduled execution. Rhonda Cook, Expired drugs led to cancellation of execution by lethal
injection, ATLANTA JOURNAL-CONSTITUTION (Aug. 2, 2012).
13
Following litigation over whether state law prohibited Georgia from changing its
protocol without complying with the notice-and-comment procedures of its Administrative
Procedures Act , Appellees promptly scheduled two executions: Warren Hill for February
14
19, 2013, and Andrew Cook on February 21, 2013. It is worth noting that Appellees
decision to schedule Mr. Hill and Mr. Cooks executions within days of each other appears
to have been based upon its mistaken belief that its supply of pentobarbital expired on March
1, 2013; it actually expired on March 31. Ed Pilkington, Georgia rushes through executions
before lethal injection drugs expire, THE GUARDIAN (February 21, 2013)(Georgia confirmed
Mr. Hills execution was ultimately stayed by the Supreme Court of Georgia. The
12
last-minute protocol adopted by Appellees for his execution is the same one that they have
indicated they will use to execute Mr. Wellons. See Ex. 3 at 000005-000017.
Available at: http://www.ajc.com/news/news/local/expired-drugs-led-to-
13
cancellation-of-execution-by-/nQXhn/ (Last visited June 10, 2014).
See discussion supra at 8-9 and n. 6.
14
11
to the Guardian that its entire supply of pentobarbital expires on 1 March). While Mr.
15
Hills execution was stayed, Mr. Cook was executed pursuant to the novel protocol.
Shortly thereafter, in March of 2013, the Georgia Legislature adopted the lethal
injection secrecy act. O.C.G.A. 42-5-36 (d); see also Rhonda Cook and Bill Rankin, Lethal
injection secrecy bill wins approval, ATLANTA JOURNAL-CONSTITUTION (March 26, 2013).
16
As contemporaneous media accounts noted, the legislation had two purposes:
The legislation should make it easier for Georgia to obtain lethal-injection
drugs as companies worldwide, in the face of strong criticism from opponents
of capital punishment, have either stopped making lethal injection drugs or
forbidden such drugs from being used for executions . . . . [and] is also
expected to make it more difficult for lawyers representing death-row inmates
to challenge the states lethal-injection process.
Ibid (emphasis added). Indeed, these same reports suggest that Georgia first erected its
lethal-injection-secrecy legislation in order to shield itself and the compounding pharmacies
with which it might work from the legal and public relations problems with a local
pharmacist making up a batch of lethal injection drug on a case-by-case basis. Rhonda
Cook, Compounding pharmacies may be source of lethal injection drugs, ATLANTA
JOURNAL CONSTITUTION (April 27, 2013)(emphasis added). Interviews with the
17
Available at: http://www.guardian.co.uk/world/2013/feb/21/georgia-
15
executions-lethal-injection-drug-pentobarbital (Last visited June 10, 2014).
Available at: http://www.ajc.com/news/news/state-regional-govt-politics/
16
lethal-injection-secrecy-bill-wins-approval/nW4tK/ (Last visited June 10, 2014).
Available at: http://www.myajc.com/news/news/state-regional/
17
compounding-pharmacies-may-be-source-of-lethal-inj/nXXxT/ (Last visited June 10, 2014).
12
legislations sponsor confirmed this motivation:
The state would be pressed [to obtain drugs] if . . . executions [were]
scheduled in the near future. Thats why its important for the state to shield
the identities of doctors, pharmacists or drug providers that could be involved
with procuring lethal injection drugs, said State Rep. Kevin Tanner, R-
Dawsonville. He sponsored the legislation to keep those identities secret,
expecting the state will have to turn to a pharmacist.
Id.
The act took effect on July 1, 2013. Two days later, on July 3, the Superior Court of
Lee County, Georgia, issued an execution warrant for Mr. Hill, and Appellees set his
execution for July 15. Rhonda Cook, Execution date set for Warren Hill, ATLANTA
JOURNAL CONSTITUTION (July 3, 2013). On July 10, the Georgia Department of
18
Corrections responded to an Open Records Act request made on behalf of Mr. Hill with
redacted documents that failed to disclose the identities of the manufacturer, individuals or
entities in the chain of supply, prescriber, compounding pharmacy, or pharmacist responsible
for making the drugs available to the Department of Corrections for Mr. Hills execution. See
Letter from Wilson to Painter of 07/10/2013 (attached as Ex. 4). The Department of
Corrections expressly relied on O.C.G.A. 42-5-36 as the justification for redacting this
information. Id. at 000001-000005.
The documents nonetheless revealed that beginning on July 2, Defendant GDC had
quickly entered into agreements with an unknown compounding pharmacy and an unknown
Available at http://www.ajc.com/news/news/state-regional/execution-
18
date-set-for-warren-hill/nYc4m/ (Last visited June 10, 2014).
13
prescriber of drugs in order to procure pentobarbital for the execution of Mr. Hill, which was
then scheduled for July 15, 2013. Ex. 4 at 000005-000039. Under the terms of Appellees
proposed Professional Services Agreement with this prescriber which, if signed, would be
effective through June 30, 2014 Appellees agreed to pay him or her a sum of $5,000 per
annum in exchange for writing the prescriptions they require to obtain their lethal injection
drugs. Ex. 4 at 000025-000026. They also offered to provide the prescriber with a litigation
reserve fund of $50,000 and add the prescriber to the Georgia Department of Administrative
Services General Liability Policy, insuring him or her for acts of medical negligence and
omissions in the amount of $1,000,000 per person and $3,000,000 per occurrence. Id.
19
Mr. Hill subsequently filed a declaratory judgment action in the Superior Court of
Fulton County that, pursuant to O.C.G.A. 9-4-1 et seq., challenged the Constitutionality of
O.C.G.A. 42-5-36(d). The Superior Court granted Mr. Hills concurrently-filed request for
In their correspondence with the prescriber, Appellees attempt to reassure him or her
19
of the legality of the arrangement by citing and attaching Section 17-10-38 of the Georgia
Code, which reads:
Notwithstanding any other provision of law, prescription, preparation,
compounding, dispensing, or administration of a lethal injection authorized by
a sentence of death by a court of competent jurisdiction shall not constitute the
practice of medicine or any other profession relating to health care which is
subject by law to regulation, licensure, or certification.
O.C.G.A. 17-10-38(c)(emphasis added); see Ex. 4 at 000022-000032. Tellingly, Appellees
also reassure the prescriber that his or her arrangement with Appellees will never be
discovered, citing O.C.G.A. 42-5-36 for the proposition that the identifying information
about any person or entity assisting in this process is a confidential state secret. Ex. 4 at
000022.
14
an injunction to maintain the status quo until such time as the court could rule upon the
merits of his Complaint for declaratory judgment, which the Supreme Court of Georgia
overturned on interlocutory review on May 19, 2014. Owens v. Hill, No. S14A0092, ---
S.E.2d ----, 2014 WL 2025129 (Ga. May 19, 2014). Mr. Wellonss execution warrant
followed nine days later. As noted supra, Appellees have subsequently refused to disclose
any documents even redacted ones concerning the sources of their lethal injection drugs.
Ex. 3 at 000002-000004.
The Risks of Compounded Pentobarbital
The simple truth about any drug is that unless you know how it was made where,
and from what, and by whom you cannot know what it is. A drug approved by the Food
and Drug Administration provides those assurances. However, [t]he true contents of
pharmacy-compounded pentobarbital injection, or any pharmacy-compounded drug, prepared
from a non-sterile API are unknown. Declaration of Dr. Larry Sasich (Sasich
Decl.)(attached as Ex. 5) at 9. Accordingly, Appellees decision to use compounded
20
pentobarbital from an undisclosed source poses a substantial threat of undue pain and
suffering to Mr. Wellons.
The compounding pharmacy industry operates in a grey market that is not subject
to the FDAs drug-approval process or manufacturing standards. Sasich Decl. at 4. To
Mr. Wellons has attached the Declaration of Dr. Larry Sasich, a pharmacist and
20
consultant specializing in drug safety and efficacy. The parties agreed to stipulate that the
declarations of Dr. Sasich and Dr. Katz would be accepted as testimony.
15
receive FDA approval, injectable drugs must be sterile and meet other stringent requirements
for quality, purity, and stability. Sasich Decl. at 5. These requirements are not luxuries. They
exist because [c]ountless members of the public have suffered and experienced pain before
science-based federal regulations were implemented to protect the public from what had
become the obvious hazards of injectable drugs contaminated with fungi, bacteria, and other
contaminates. Id. at 6.
Indeed, pharmacists began compounding drugs not because they considered FDA-
approval unimportant, but because the needs of some patients could not be met by FDA-
approved products due to medical reasons. Id. at 2 (For example, a two-year-old transplant
patient may require a medication that is only available in an FDA-approved tablet form. In
such a case, tablets may be reformulated into an oral liquid for administration.). This
practice knowingly compromised federal standards, but only because it was necessary in
order to meet critical medical needs. Id. Drug compounding has now grown, however, into
an industry that manufactures what purport to be copies of FDA-approved products, but that
are produced through manufacturing processes that are not federally regulated. Id. Because
compounding pharmacies are not subject to FDAs drug approval process, rigorous checks,
and regulatory procedures, even a compounding pharmacy operating in good faith can make
critical mistakes that it lacks the capacity to detect until the damage has been done. Id.
For example, compounding pharmacies generally are unable to test chemicals to
confirm their identity, potency, and purity, and to detect contamination. Id. at 4-5.
16
Accordingly, while a pharmacist might accurately measure or weigh individual ingredients,
he or she would have no way of discovering in a pharmacy setting if the ingredients
themselves were adulterated or counterfeit. Id. at 5. A pharmacist unable to confirm the
identity of a chemical would miss contaminants a risk present at any stage of the chemicals
manufacture that would cause pain immediately upon intravenous administration. Id.
This is not an abstract problem. Compounding pharmacies frequently purchase bulk
Active Pharmaceutical Ingredients (or APIs) and have become an entry point for
counterfeit product whose manufacturer, impurity profile, age, storage history, manufacturing
environment, and synthesis cannot be determined. Id. at 4. Many come from plants in India
or China that are not registered with the FDA and that in some instances manufacture
pesticides on the same equipment as they make APIs. Id. A product made from such an
ingredient will always be lacking, regardless of the pharmacists skill, and the pharmacist
would be unable to detect its dangers.
Other, subtler risks that would not evade FDA inspection can plague even well-
meaning compounding pharmacies. Cross-contamination can occur when the air supply for
the room in which one drug is being compounded is not scrupulously segregated from the air
supply in the room in which another, allergy-causing agent is being produced. Id. at 6. The
consequence of cross-contamination can be immediate anaphylaxis. Id. Similarly, the
acidity (or pH) of any injectable drug must be carefully adjusted to ensure that the
recipient of the drug does not suffer an immediate painful sensation at the time of injection.
17
Both a compromised API and improper compounding procedures can cause the pH of an
injectable drug to be unacceptable. Id. Contamination with endotoxins can elicit an
inflammatory reaction that causes shock. Id. Particulate matter contaminating sterile
injectable drugs can become lodged in small blood vessels to agonizing effect. Id.
Accordingly, there are parameters beyond [a compounding pharmacys] professional control
that build risk and uncertainty into all compounded products. Id. at 5. This, above all else,
is why FDA approval and oversight is necessary, and why Appellees decision to employ
these drugs behind a veil of secrecy cannot be tolerated.
State Board of Pharmacy Inspections Are Not Equivalent to FDA Approval
While some compounding pharmacies are subject to inspection by state pharmacy
boards, the level of scrutiny applied is insufficient to address the concerns detailed above.
An illustration of this can be found in a recent FDA Warning Letter issued to Grandpas
Compounding Pharmacy, Inc., in Placerville, California, on May 2, 2014, following a four-
day inspection in October of 2013. Id. at 7-8 and App. B. The FDA found serious
deficiencies in the pharmacys production of sterile drug products, including: that the
cleanroom where these products were being manipulated had air supply ductwork that was
held together with duct tape and contained an in-wall air conditioner that could introduce
outside air with unacceptable microbial and particulate levels; that operators were
manipulating these sterile drugs with their wrists and forearms exposed; and that the
pharmacy used tap water to clean the containers and closures intended for injectable drug
18
products. Id. These deficiencies risk the contamination of compounded sterile products and
could pose a substantial risk of immediate harm and pain when injected. Id.
In light of these dangers, it is unsurprising that states using compounded drugs in
executions have seen botched executions. When Oklahoma executed Michael Lee Wilson
with compounded pentobarbital in January 2014, he cried out, I feel my whole body
burning! Charlotte Alter, Oklahoma Convict Who Felt Body Burning Executed With
Controversial Drug, TIME MAGAZINE (January 10, 2014). Mr. Wilsons reaction is
21
consistent with exposure to contaminants introduced by the unsafe compounding of
Pentobarbital. Sasich Decl. at 6-7 (the injection used in Mr. Wilson's execution likely
contained cross-contaminates that he was allergic to, bacteria and endotoxins . . . . [and]
could have had an altered pH due to contaminates or inadequate procedures used in the
preparation of the drug.) Similarly, Jose Luis Villegas complained of a burning sensation
when Texas executed him with compounded pentobarbital in April of 2014.
22
Further, when Eric Robert was executed with compounded pentobarbital in South
Dakota in October 2013, he gasped and snorted heavily, turned a blue-purplish hue, and took
Available at: http://nation.time.com/2014/01/10/oklahoma-convict-who-
21
felt-body-burning-executed-with-controversial-drug/ (Last visited June 9, 2014)
Vivian Kuo and Ralph Ellis, U.S. Supreme Court grants stay of excruciating
22
execution, CNN (May 21, 2014)(discussing Villegas execution), available at
http://www.cnn.com/2014/05/20/justice/missouri-videotaped-
execution-russell-bucklew-duplicate-2/index.html (Last visited June 10, 2014)
19
more than twenty minutes to die. These events were consistent with the administration of
23
a compounded drug that was contaminated or sub-potent. Sasich Decl. at 7. Subsequent
analysis of the States pentobarbital supply indicated that it was, in fact, contaminated with
fungi.
24
It is important to note that the risks detailed above are only those generally raised by
the use of drugs compounded in a pharmacy without FDA approval and regulation. Given
the lack of scrutiny of compounding pharmacies in general, the specific pharmacy used by
Appellees could present different and even graver risks. Appellees refusal to disclose
information about their pharmacy, however, will ensure that those risks do not come to light.
This Court cannot countenance the dangers that this secrecy presents.
The Risks of Botched Intravenous Lines
On April 29, 2014, the State of Oklahoma attempted to execute Clayton Lockett by
lethal injection. Instead, his execution was halted when he began to writhe and gasp after
he had already been declared unconscious and called out oh, man, according to witnesses.
Jill Johnson, Witnesses Describe Events Inside Chamber, KBLT NEWS,
23
available at: http://www.kdlt.com/index.php?option=com_content&task=
view&id=21169&Itemid=72 (Last visited June 10, 2014); see also Steve Young,
Execution: South Dakota Delivers Eric Robert His Death Wish, ARGUSLEADER.COM
(Oct. 16, 2012), available at: http://www.argusleader.com/article/20121016/NEWS/
310160016/Execution-South-Dakota-delivers-Eric-Robert-his-death-wish (Last
visited June 10, 2014).
See South Dakota Covers Up Source of DIY Death Penalty Drugs Ahead Of
24
Execution, REPRIEVE (Oct. 30, 2012).Available at: http://www.reprieve.org.uk/press
/2012_10_30_South_Dakota_execution_drugs/ (Last visited June 10, 2014).
20
Erik Eckholm, One Execution Botched, Oklahoma Delays the Next, N.Y. TIMES (April 30,
2014). One media witness offered a minute-by-minute account of Mr. Locketts agony.
25
6:33 p.m. The doctor checks Lockett a second time after a full minute without
movement. Mr. Lockett is unconscious, [Warden] Trammell states. It seems
like it took longer than expected for this to occur . . . .
6:36 p.m. Lockett kicks his right leg and his head rolls to the side. He
mumbles something we cant understand.
6:37 p.m. The inmates body starts writhing and bucking and it looks like hes
trying to get up. Both arms are strapped down and several straps secure his
body to the gurney. He utters another unintelligible statement . . . .
6:38 p.m. Lockett is grimacing, grunting and lifting his head and shoulders
entirely up from the gurney. He begins rolling his head from side to side. He
again mumbles something we cant understand, except for the word man. He
lifts his head and shoulders off the gurney several times, as if hes trying to sit
up. He appears to be in pain.
6:39 p.m. The physician walks around to Locketts right arm, lifts up the sheet
and says something to Trammell. Were going to lower the blinds
temporarily, she says. The blinds are lowered and we cant see what is
happening.
Ziva Branstetter, Eyewitness account: A minute-by-minute look at what happened during
Clayton Locketts execution, TULSA WORLD, May 1, 2014. Mr. Lockett continued to writhe
26
in agony for thirty minutes. Id. The Oklahoma Department of Corrections later announced
(available at: http://www.nytimes.com/2014/04/30/us/oklahoma-
25
executions.html (Last visited June 10, 2014); see also Erik Eckholm and John Schwartz,
Timeline Describes Frantic Scene at Oklahoma Execution, N.Y. TIMES (May 1, 2014).
Available at: http://www.tulsaworld.com/news/state/eyewitness-account-a-
26
minute-by-minute-look-at-what-happened/article_f7764efc-d036-11e3-af7e-0017a43b237
0.html (Last visited June 10, 2014)
21
that Mr. Lockett had died in the execution chamber of a heart attack at 7:06 p.m. Id.
It seems indisputable that Mr. Locketts execution violated his Eighth Amendment
rights. Erik Eckholm & Motoko Rich, Oklahoma Faces Sharp Scrutiny Over Botched
Execution, N.Y. TIMES, (April 30, 2014)(As [Mr. Lockett] began to buck and moan in
apparent agony, corrections officials pulled the blinds on witnesses.) While the
27
explanation for why Mr. Locketts execution went so horribly awry is not settled, an
independent autopsy of Clayton Lockett has confirmed that Oklahomas execution personnel
punctured Mr. Locketts femoral vein, which resulted in the lethal injection drugs entering
his subcutaneous tissue. Erik Eckholm, Defense Reports Puncture Led to Botched Execution,
NEW YORK TIMES (June 13, 2014) ; see also Oklahoma, Investigating Failure, Extends
28
Delay of Execution To November, N.Y. TIMES, May 8, 2014. Indeed, Oklahoma has
29
disclosed that it took fifty-one minutes to insert an peripheral intravenous line, with the
execution team ultimately inserting it through his groin a more difficult procedure because
Available at: http://www.nytimes.com/2014/05/01/us/oklahoma-faces-sharp-
27
scrutiny-over-botched-execution.html?hp. The White House joined those condemning the
execution, stating that the Lockett execution fell short of the countrys standard that even
when the death penalty is justified, it must be carried out humanely, and pledged to examine
executions by lethal injections.
Available at: http://mobile.nytimes.com/2014/06/14/us/defense-exam-of-body
28
-finds-punctured-vein-led-to-botched-execution.html?hpw&rref=us&_r=0&referrer= (Last
visited: June 16, 2014).
Available at: http://www.nytimes.com/2014/05/09/us/oklahoma-attorney-general-
29
agrees-to-6-month-delay-of-execution.html?src=rechp (Last visited June 10, 2014)) The
Attorney General of Oklahoma has consented to a six-month stay of executions while an
investigation into Mr. Locketts execution is conducted.
22
the intended vein is not visible. Id. This raises the question of whether the placement of
the intravenous line into Mr. Locketts groin was done by a person who lacked the necessary
qualifications to do it properly. The investigation into this possibility, however, will be
restricted by Oklahomas secrecy statute, which as with Georgias states that the sources
of the drugs used and the identities and qualifications of the participants in an execution are
confidential and shall not be subject to discovery in any civil or criminal proceedings.
Cary Aspinwall and Ziva Branstetter, Secrets still shroud Clayton Lockett's execution, Failed
IV line was started by a medical professional whose credentials are a secret under state law,
TULSA WORLD (May 12, 2014).
30
Oklahomas botched execution of Mr. Lockett highlights the risks of Appellees
refusal to disclose the qualifications of the personnel who will prepare Mr. Wellons for his
execution. Pentobarbital is a barbiturate. Declaration of Dr. Eric Katz (Katz
Decl.)(attached as Ex. 6) at 3. When manufactured in accordance with FDA regulations,
Pentobarbital typically has a pH of 9.5, which qualifies it as a strong alkaline, or basic,
chemical. Katz Decl. at 6. It is, by nature, extremely caustic. Id. Accordingly, if
31
Pentobarbital were injected under the skin and not into a vein, it would cause severe and
Available at: http://m.tulsaworld.com/news/state/secrets-still-shroud-clayton-lockett-
30
s-execution/article_5513ea6b-1f24-519e-9340-66c42b109502.html?mode=jqm)(Last visited
June 10, 2014).
As noted supra at 22, one risk associated with compounding pharmacies is errors
31
in pH. Further, an increase of one number on the pH scale reflects a tenfold increase in the
causticity of the drug. Katz Decl. at 5, 6. Accordingly, small deviations in pH can
dramatically affect the causticity of the drug.
23
agonizing chemical burns. Id.
Intravenous access is obtained by using a needle to introduce a catheter into either
a peripheral vein, typically in the arm or hand, or a central vein, typically in the neck, chest
or groin. Katz Decl. at 7. Training and regular experience is required in order to place
either type of line. Id. at 8. The medical standard of care for placement of a peripheral
line would require a professional technician or nurse with demonstrated competency with
the procedure, as the peripheral line is placed in a very small distal vein. Id. Trained and
experienced personnel are also needed in order to anticipate and address difficulties with
venous access. Id.
As placing a central line is a more complicated task, the standard of care would
require a doctor or specialized nurse who has completed specialized training and
demonstrated competence for that procedure. Id. at 9 (placement of central line requires
larger needle; must bore through skin and subcutaneous tissue to reach central vein). Further,
best practices call for ultrasound guidance in the placement of the line, as it can assist in
predicting both the patient's anatomy and any potential complications. Id. at 9. Far riskier
is an attempt to place a central line by feeling certain physical landmarks - a process called
blind placement . . . . Id.
An error in placing either kind of intravenous access would cause the chemical
solution being introduced to the patient to escape into his or her subcutaneous tissue
which, in the case of Pentobarbital, would cause excruciating pain and would diminish
24
[its] efficacy . . . as it would be absorbed much more slowly. Id. at 10. Further, the
improper placement of a central line can have terrible consequences, including extraordinary
pain, damage to vascular and other tissues, embolisms, and death. Id. at 9.
Florida's botched execution of Angel Diaz in 2006 further illustrates the gruesome
consequences of the improper placement of an intravenous line by inexperienced or
unqualified personnel. In Mr. Diazs case, the misplaced line allowed the caustic lethal
injection drugs to leak into the soft tissue of his arms. The drugs accordingly failed to render
him unconscious while causing chemical burns so severe that a great deal of the skin on his
arms sloughed away, mutilating him. Mr. Diaz likely suffocated to death before the
execution drugs could end his life. Ben Crair, Photos from a Botched Lethal Injection, THE
NEW REPUBLIC (May 29, 2014). Another consequence of unqualified execution team
32
personnel is illustrated by the case of Romell Broom, whom Ohio attempted to execute in
2009. After Mr. Broom was brought to the execution chamber, the personnel on Ohios
execution team none of whom were qualified to insert an intravenous line stabbed him
with needles for an hour in an attempt to find a vein. The team ultimately brought in a prison
doctor to assist, but after another ninety minutes of futile attempts and a total of eighteen
needle sticks which left Mr. Broom in agony the governor halted his execution. In the
(available at: http://www.newrepublic.com/article/117898/lethal-injection-photos-
32
angel-diazs-botched-execution-florida (Last visited: June 10, 2014). Mr. Wellons cautions
the Court that the photos of the damage done to Mr. Diaz by the improperly-injected drugs
are quite graphic.
25
five years since, Ohio has been unable to schedule Mr. Brooms execution because of
litigation over whether a state can try again to execute a prisoner who survives the first
attempt, and whether the initial, failed attempt constitutes cruel and unusual punishment
an appeal that will soon go the Ohio Supreme Court. Stephanie Mencimer, Is it legal to try
executing someone twice?, MOTHER JONES (June 6, 2014). A similar situation could readily
33
occur in Georgia, which might delay executions indefinitely.
Any one of these incidents should compel Appellees to provide, at the very least, the
qualifications of those members of the execution team responsible for inserting the catheters
into Mr. Wellonss body. Their refusal to do so cannot be reconciled with the Constitution.
REASONS FOR GRANTING THE WRIT
A. The Eighth Amendment Entitles Mr. Wellons to the Information
Necessary to Determine if Georgias Method of Execution is
Cruel and Unusual
The Eighth Amendments prohibition against cruel and unusual punishment forbids
methods of execution that present a substantial risk of significant harm. U.S. Const. amend
VIII; Baze v. Rees, 553 U.S. 35, 50-52 (2008) (plurality opinion); see also in re Kemmler,
136 U.S. 436, 447 (1890) (Punishments are cruel when they involve torture or a lingering
death). Implicit in that protection is a right to due process as to information about the
method and means by which the State proposes to mete out that punishment. Appellees
Available at: http://www.motherjones.com/politics/2014/06/romell-broom-ohio-
33
execution (Last visited June 10, 2014).
26
refusal to disclose the true nature of the drugs they will use to end Mr. Wellonss life and the
qualifications of those who will carry out the execution seeks to nullify those protections and,
accordingly, Mr. Wellonss rights.
This Court has not hesitated to recognize a due process right to the information
necessary to determine whether an Eighth Amendment violation exists. In Ford v.
Wainwright, 477 U.S. 399, 417-18 (1986), this Court held that the Eighth Amendments
prohibition against the execution of the insane entitled Mr. Ford to adequate procedures for
determining his sanity. Noting that [t]he fundamental requisite of due process of law is the
opportunity to be heard, this Court faulted the Florida procedure for its failure to include
the prisoner in the truth-seeking process in favor of an assessment conducted entirely by the
executive branch. Ford, 477 U.S. at 413. This Court wrote:
34
[C]onsistent with the heightened concern for fairness and accuracy that has
characterized our review of the process requisite to the taking of a human life,
we believe that any procedure that precludes the prisoner or his counsel from
presenting material relevant to his [Eighth Amendment claim] or bars
consideration of that material by the factfinder is necessarily inadequate. The
minimum assurance that the life-and-death guess will be a truly informed
guess requires respect for the basic ingredient of due process, namely, an
opportunity to be allowed to substantiate a claim before it is rejected.
Id. at 414 (1986)(internal quotations omitted). Accordingly, this Court wrote:
[T]he lodestar of any effort to devise a procedure must be the overriding dual
imperative of providing redress for those with substantial claims and of
encouraging accuracy in the factfinding determination. The stakes are high,
Floridas practice did not permit any material relevant to the ultimate decision to be
34
submitted on behalf of the prisoner facing execution. Id.
27
and the evidence will always be imprecise. It is all the more important that
the adversary presentation of relevant information be as unrestricted as
possible.
Ford, 477 U.S. at 417.
Similarly, in Morgan v. Illinois, this Court held that a criminal defendants Sixth
Amendment right to an impartial jury and the requirement of impartiality embodied in the
Due Process Clause of the Fourteenth Amendment in tandem entitled the defendant to
information about whether potential jurors would automatically vote for a death sentence in
every capital case, and required that the trial court afford him adequate process to conduct
voir dire and make challenges for cause. Morgan v. Illinois, 504 U.S. 719, 728-29
(1992)(the Sixth and Fourteenth Amendments . . . ensure the impartiality of any jury that
will undertake capital sentencing). As this Court noted, [w]ere voir dire not available to
lay bare the foundation of petitioners challenge for cause against those prospective jurors
who would always impose death following conviction, his right not to be tried by such jurors
would be rendered as nugatory. Id. at 733 (emphasis added).
Further, in Brady v. Maryland, 373 U.S. 83, 86 (1963), this Court held that due
process requires the government to disclose evidence which would tend to exculpate [the
defendant] or reduce the penalty. The underlying principles of Brady, which recognize that
the government cannot withhold information bearing upon the rights of a person whom they
wish to deprive of life or liberty, apply with equal force here.
28
Finally, a bedrock principle of our rule of law is that where there is a legal right,
there is also a legal remedy by suit or action at law, whenever that right is invaded. See
Marbury v. Madison, 5 U.S. 137, 163 (1803); see also General Oil Co. v. Crain, 209 U.S.
211, 221-30 (1908) (holding that a state court must provide a remedy for a constitutional
violation). Appellees, in denying Mr. Wellons the information necessary to establish an
Eighth Amendment violation are depriving him of the remedy while claiming not to implicate
his rights. That cannot stand.
Mr. Wellons seeks information from Appellees that he and the courts require to
protect his Eighth Amendment rights. He seeks to know where, how, and by whom the lethal
injection drugs will be manufactured. He seeks to know the qualifications of the person or
persons who will manufacture the drugs, and who will place catheters in his veins. This is
not a fishing expedition. The origins and, accordingly, true nature of these drugs will affect,
if not determine, whether he will suffer during his execution. The same can be said of the
training and experience of the person who will place catheters in his veins, and whether it is
adequate to protect against the agonizing consequences of a misplaced line. The Constitution
cannot permit Appellees to withhold that information from him.
B. The Fifth and Fourteenth Amendments Entitle
Mr. Wellons to the Information Necessary to
Determine if Georgias Method of Execution is
Cruel and Unusual
Georgia cannot execute Mr. Wellons without first affording him due process of law.
See U.S. Const. amend. V (1791) (No person shall be deprived of life, liberty, or
29
property, without due process of law); U.S. Const. amend XIV (1868) (nor shall any
State deprive any person of life, liberty, or property, without due process of law); see also
Adams v. United States ex rel. McCan, 317 U.S. 269, 276 (1942)(procedural devices rooted
in experience were written into the Bill of Rights not as abstract rubrics in an elegant code
but in order to assure fairness and justice before any person could be deprived of life,
liberty, or property.) Due process, unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances. Mathews v. Eldridge, 424
U.S. 319, 334 (1976), quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
Rather, due process is flexible and calls for such procedural protections as the particular
situation demands. Id., quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972). It is clear,
however, that due process entitles a person whose constitutional rights might be affected by
state actions to, at minimum, both notice of those actions and an opportunity to be heard at
a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 80
(1972)(emphasis added)(Parties whose rights are to be affected are entitled to be heard; and
in order that they may enjoy that right they must first be notified.)
This refusal also denies Mr. Wellons his constitutional right of access to the courts,
which, per this Court, must be adequate, effective, and meaningful. Bounds v. Smith, 430
U.S. 817, 822-23 (1977); see also Wolff v. McDonnell, 418 U.S. 539, 579 (1974)(right of
access to the courts . . . is founded in the Due Process Clause.) This right of access to
courts, thus, advances the due process notion that the aggrieved have a reasonably adequate
30
opportunity to present claimed violations of fundamental constitutional rights to the courts.
Lewis v. Casey, 518 U.S. 343, 351 (1996) (quoting Bounds, 430 U.S. at 825); see also
Murray v. Giarratano, 492 U.S. 1, 11, n. 6 (1989)(plurality opinion)(access to courts a due
process right).
C. Appellees Refusal to Provide Plaintiff with Information
That Would Enable Him to Determine How the State
Intends to Execute Him Denies Him His First
Amendment Right of Access to Governmental
Proceedings.
This Court has long held that the First Amendment guarantees a qualified right of
access to governmental proceedings. PressEnter. Co. v. Superior Court, 478 U.S. 1, 814
(1986)(preliminary hearings); PressEnter. Co. v. Superior Court, 464 U.S. 501, 51011
(1984)( voir dire ); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 60311
(1982)(testimony of child victim of sex offense); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 579, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)(criminal trials).
This right of access is founded upon the common understanding that a major purpose
of the First Amendment was to protect the free discussion of governmental affairs. Globe
Newspaper, 457 U.S. at 604 (emphasis added)(internal citations omitted); quoting Mills v.
Alabama, 384 U.S. 214, 218 (1966). By offering such protection, the First Amendment
serves to ensure that the individual citizen can effectively participate in and contribute to our
republican system of self-government. Globe Newspaper Co. v. Superior Court for Norfolk
County, 457 U.S. 596, 604 (1982), citing Thornhill v. Alabama, 310 U.S. 88, 95 (1940).
31
Accordingly, while the right of access is not enumerated in the First Amendment, it is
nonetheless necessary to the enjoyment of other First Amendment rights, and is
accordingly implicit to the amendment. Id. at 604.
As this Court has held, the First Amendments expressly guaranteed freedoms share
a common core purpose of assuring freedom of communication on matters relating to the
functioning of government. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 575
(plurality opinion).
This Court has further held that the right to access extends to the information about
prison conditions and operations. In Pell v. Procunier, 417 U.S. 817 (1974), the Court
recognized that the conditions in this Nation's prisons are a matter that is both newsworthy
and of great public importance. Id. at 831 n. 7. Accordingly, both the press and the public
35
must be accorded substantial access to the federal prisons in order to observe and report the
conditions they find there. Saxbe v. Washington Post Co., 417 U.S. 843, 847 (1974).
Per this Court, when determining whether the public has a First Amendment right of
access to a particular governmental proceedings, reviewing courts must inquire into two
complimentary considerations: (1) whether the place and process have historically been
While affirming a prison regulation prohibiting face-to-face interviews between the
35
press and individual inmates, the Court premised that holding upon its conclusion that this
regulation is not part of an attempt by the State to conceal the conditions in its prisons or to
frustrate the press investigation and reporting of those conditions, and upon its satisfaction
that both the press and general public are accorded full opportunities to observe prison
conditions. Id. at 830. Pell also confirms that a prisoner retains those First Amendment
rights that are not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system. Pell, 417 U.S. at 822.
32
open to the press and general public and (2) whether public access plays a significant
positive role in the functioning of the particular process in question. PressEnterprise Co.
v. Superior Court, 478 U.S. 1, 89 (1986).
It is indisputable that executions have historically been open public events. See, e.g.,
California First Amendment Coalition v. Woodford, 299 F.3d 868, 875 (9 Cir.
th
2002)(summarizing history of public executions in U.S.). Even after executions shifted from
the public square to the prison, every state provides public witness to executions. Id. Indeed,
Georgias current Reception and Holding Procedures for death-sentenced prisoners allow the
presence of five media witnesses, and the condemneds counsel, a member of the clergy, and
a reasonable number of relatives and friends. See Ex. 3 at 22-24; O.C.G.A. 17-10-41.
Further, Georgias lethal injection procedures provide that a designated representative of the
media can witness the preparation of the prisoner for the execution, including the placement
of the intravenous accesses. See Ex. 3 at 10.
Further, the means of execution has been open to the public until the adoption of the
lethal injection secrecy act. Prior to the effective date of that legislation, Appellees would,
in response to Open Records Act requests, routinely provide prisoners and members of the
press and public with detailed information about the drugs used in lethal injections, typically
photocopying the labels for the drugs which identified their name, lot number, place of
manufacture, and chemical properties along with invoices for the ordering of the drugs.
See Letter from Whetzel to Yellin of 10/15/2012 (attached as Ex. 7). Further, the public and
33
the press certainly had ready access to information about earlier methods of execution, as
those methods including hanging, the gas chamber, and electricity were decidedly less
opaque than lethal injection. Indeed, [t]he public could not only view the prisoner's death,
they could see the precise cause and its effects. Schad v. Brewer, No. CV-13-2001, 2013
WL 5551668 (D. Ariz. Oct. 7, 2013)(finding states refusal to disclose source of drugs
violative of First Amendment).
Further, public access to information about lethal injection drugs plays a significant
positive role in the functioning of capital punishment. An informed public debate is critical
in determining whether execution by lethal injection comports with the evolving standards
of decency which mark the progress of a maturing society. California First Amendment
Coalition, 299 F.3d at 876 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d
630 (1958)). To determine whether lethal injection executions are fairly and humanely
administered, or whether they ever can be, citizens must have reliable information about the
initial procedures, which are invasive, possibly painful and may give rise to serious
complications. Id. That principle applies with no less force to the lethal injection drugs
themselves and the qualifications of those who administer them.
Once established, the right of access can be overcome only by an overriding interest
based on findings that closure is essential to preserve higher values and is narrowly tailored
to serve that interest. Id. at 9-10 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S.
34
501, 510 (1984)). Mr. Wellons respectfully submits that Appellees cannot approach that
standard.
D. The District Courts Error Is Illustrated by Justice
Benhams Dissent
The district court dismissed the above claims because it presumes that the state acted
in good faith in selecting the company that produced the pentobarbital and in appointing the
team slated to carry out Plaintiff s execution. Ex. 3 at 9(emphasis added). As demonstrated
by Georgias checkered history, this is an insufficient safeguard for Mr. Wellonss
constitutional rights. It is one thing to presume that state government officials . . . carry
out their duties in a good-faith manner and in compliance with the federal laws, Order (Doc.
No. 10) at 8, citing Alaska Dep't of Envtl. Conservation v. E.P.A., 540 U.S. 461, 507, (2004);
Alden v. Maine, 527 US. 706, 755 (1999). We nonetheless have laws and procedures that
exist so that we are not left to trust in presumption alone to protect our rights. Those
protections include Open Records Acts and judicial proceedings such as 1983 proceedings
and habeas. Appellants, however, seek to use their secrecy statute to remove themselves
from the purview of all such scrutiny as they carry out the gravest duty with which we entrust
them.
As Justice Benham noted for himself and Justice Hunstein in dissenting from the
Supreme Court of Georgias decision upholding the lethal injection secrecy act:
I write because I fear this State is on a path that, at the very least, denies Hill
and other death row inmates their rights to due process and, at the very worst,
leads to the macabre results that occurred in Oklahoma. There must be
35
certainty in the administration of the death penalty. At this time, there is a
dearth of certainty namely because of the scarcity of lethal injection drugs.
Georgia's confidential inmate state secret statute does nothing to achieve a
high level of certainty. Rather, the law has the effect of creating the very secret
star chamber-like proceedings in which this State has promised its citizens it
would not engage. See State v. Brown, 293 Ga. 493(1), 748 S.E.2d 376 (2013).
As this Court stated in Atlanta Journal v. Long, 258 Ga. 410(1), 369 S.E.2d
755 (1988), [J]ustice faces its gravest threat when courts dispense it secretly.
Our system abhors star chamber proceedings with good reason. The fact that
some drug providers may be subject to harassment and/or public ridicule and
the fact that authorities may find it more difficult to obtain drugs for use in
executions are insufficient reasons to forgo constitutional processes in favor
of secrecy, especially when the state is carrying out the ultimate punishment.
Owens v. Hill, --- S.E.2d ----, 2014 WL 2025129 at *11 (Benham and Hunstein, JJ.,
dissenting).
The district court ultimately concluded that, given its presumption of good faith by
Appellants, that Mr. Wellonss argument is simply an extension of the speculation that the
Court found unpersuasive in Landrigan. Order at 9. As Justice Benham noted, however,
any speculation as to the implications of Appellees lethal injection procedures for Mr.
Wellonss Eighth Amendment rights arises solely from the States unwillingness, in light
of the secrecy statute, to disclose information that would allow him to make more specific
claims. Hill, 2014 WL 2025129 at *11. Indeed, Justice Benham recognizes Appellants
assurances to the district court for what they truly are.
[I]n this case the State has only made baseline assurances that the
compounding pharmacy it used was able to produce a high quality execution
drug. These assurances amount to little more than hollow invocations of trust
us. While the State produced a redacted laboratory report from an
independent laboratory that it claimed had tested Hills execution drug, Hill,
36
without knowing even the name of the laboratory, was left again with little
more than the States invocation of trust us.
Hill, 2014 WL 2025129 at *11 (Benham and Hunstein, JJ., dissenting)(emphases added).
This Court should not accept such meager assurances.
CONCLUSION
The Eighth Amendment protects Mr. Wellons from cruel and unusual punishment.
That is uncontroversial. But it is a hollow right unless it can be enforced prospectively. Few
would contest that Clayton Locketts Eighth Amendment rights were violated by Oklahomas
botched execution, but there is certainly no redress available to him now. If Mr. Wellons can
be deprived of the information necessary to determine whether Appellees method of
execution presents a substantial risk of significant harm, Baze, then his Eighth Amendment
rights have been nullified. The same is true of his First Amendment rights, if Appellees are
allowed to conceal from him and the public, and this Court how they will carry out the
gravest duty entrusted to them.
But the harm from Appellees conduct is not limited to Mr. Wellons. No better
instrument has been devised for arriving at truth than to give a person in jeopardy of serious
loss notice of the case against him and opportunity to meet it. McGrath, 341 U.S. at 170
(Frankfurter, J., concurring).
The heart of the matter is that democracy implies respect for the elementary
rights of men, however suspect or unworthy; a democratic government must
therefore practice fairness; and fairness can rarely be obtained by secret,
one-sided determination of facts decisive of rights.
37
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72 (1951) (Frankfurter,
J., concurring).
Accordingly, Appellees actions to shield these critical aspects of how they intend to
carry out judicial executions harms not only Mr. Wellons. It deprives the Appellees
themselves of the feedback that could help them avoid a botched execution an opportunity
that those who executed Clayton Lockett would no doubt welcome, in retrospect. Mo r e
critically, it attempts to prevent this Court from fulfilling its central mandate: to protect the
Constitution. Further, it places the courts in the position of deciding issues about which
Appellees have intentionally kept them uninformed. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985) (holding that the process required by due process is
a constitutional question that must be determined by the judiciary).
The district court noted Appellees strong interest in executing its condemned
prisoners in a manner that does not violate their rights. Botched executions lead to
embarrassment, investigations, bad press, and, perhaps worst of all for the individuals
involved, the knowledge that they caused an individual needless pain and suffering. Id.
Appellants have already experienced embarrassment, investigations, and bad press because
of their mismanagement of lethal injection. The executions of Brandon Rhode, Emanuel
Hammond, and Roy Blankenship should at least have given them pause. Instead, they have
moved not to examine how they carry out their duties, but to hide their conduct from Mr.
38
Wellons, the public and the courts. In doing so, they act against the interest of all, including
themselves. They must not be allowed to do so.
For the foregoing reasons, Petitioner Marcus Wellons respectfully requests that this
Court grant a writ of certiorari to review the decision of the Eleventh Circuit Court of
Appeals.
/s/ Gerald W. King, Jr.
Gerald W. King, Jr. (Ga. Bar No. 140981)
Jeffrey Lyn Ertel (Ga. Bar No. 249966)
FEDERAL DEFENDER PROGRAM, INC.
101 Marietta Street, Suite 1500
Atlanta, Georgia 30303
404-688-7530
(fax) 404-688-0768
Gerald_King@fd.org
Jeff_Ertel@fd.org
Mary Elizabeth Wells (Ga. Bar No. 747852)
LAW OFFICE OF M.E. WELLS
623 Grant Street SE
Atlanta, Georgia 30312
(404) 408-2180
ATTORNEYS FOR MARCUS WELLONS
39
No. ___________

In the Supreme Court of the United States
October Term, 2013
____________________________
MARCUS A. WELLONS,
Petitioner,
V.
BRIAN OWENS, Commissioner, Georgia Department of Corrections,
BRUCE CHATMAN, Warden, Georgia Diagnostic and Classification Prison, and
OTHER UNKNOWN EMPLOYEES AND AGENTS, Georgia Department of Corrections ,
Respondents.
_____________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________
CERTIFICATE OF SERVICE
_____________________________
I HEREBY CERTIFY that a true and correct copy of Marcus Wellonss MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR WRIT OF
CERTIORARI are being furnished by email and United States mail, first-class postage
prepaid, to counsel for Respondents, Sabrina Graham, Assistant Attorney General, 40 Capitol
Square, SW, Atlanta, Georgia 30334-1300.
40
This 17 day of June, 2014.
th
/s/ Gerald W. King, Jr.
Gerald W. King, Jr. (Ga. Bar No. 140981)
Jeffrey Lyn Ertel (Ga. Bar No. 249966)
FEDERAL DEFENDER PROGRAM, INC.
101 Marietta Street, Suite 1500
Atlanta, Georgia 30303
404-688-7530
(fax) 404-688-0768
Gerald_King@fd.org
Jeff_Ertel@fd.org
Mary Elizabeth Wells (Ga. Bar No. 747852)
LAW OFFICE OF M.E. WELLS
623 Grant Street SE
Atlanta, Georgia 30312
(404) 408-2180
ATTORNEYS FOR MARCUS WELLONS
41

You might also like