Appeals court overturns Texas execution delay

Tommy Lynn Sells, center, laughs with law enforcement officers after getting off a plane at Central Flying Service in Little Rock, Ark., Wednesday, March 22, 2000. Sells was brought to Little Rock by Texas Rangers to talk to authorities about two murders he claims to have committed in Little Rock. The killings are among 13 that Tommy Lynn Sells says he carried out in seven states. But Texas authorities have said they are less sure about the accuracy of Sells' Arkansas claims than about some of the other slayings. (AP Photo/Chris Johnson) less Tommy Lynn Sells, center, laughs with law enforcement officers after getting off a plane at Central Flying Service in Little Rock, Ark., Wednesday, March 22, 2000. Sells was brought to Little Rock by Texas ... more Photo: CHRIS JOHNSON, Associated Press Photo: CHRIS JOHNSON, Associated Press Image 1 of / 20 Caption Close Appeals court overturns Texas execution delay 1 / 20 Back to Gallery

At least one execution was back on late Wednesday after a federal appeals court overturned a Houston federal judge's ruling that put two deaths on hold until the state of Texas shares details of the drugs that will be used to end the mens' lives.

An appeal to the U.S. Supreme Court was expected Thursday.

Texas prison officials, who are seeking to keep the name of the drug maker secret due to security concerns, planned to proceed with the executions after the 5th U.S. Circuit Court of Appeals Wednesday evening overturned an order issued earlier in the day by U.S. District Judge Vanessa Gilmore of Houston.

Tommy Lynn Sells, convicted of stabbing a 13-year-old South Texas girl to death in 1999, is scheduled to be executed in Huntsville Thursday.

Ramiro Hernandez-Llanas, a citizen of Mexico who was convicted of beating a Kerrville rancher to death with a crowbar in 1997, is scheduled to be executed next week.

While the opinion vacated the Houston judge's order regarding both executions, it was unclear late Wednesday whether only the Sells execution was back on for Thursday - and whether the Hernandez-Llanas execution was still open to debate, as The Associated Press reported.

Lawyers for the two men are seeking to find out how and where Texas' lethal-execution drug, the powerful sedative pentobarbital, was made so they can determine whether to challenge its use on the grounds it causes cruel and unusual punishment. They contend that in the face of a nationwide shortage, the drug now is being made in a new, unregulated and secretive manner that could result in a product that causes suffering for inmates being executed by lethal injection.

In its decision, the appeals court ruled that speculation about Texas' drug was not enough to stop the executions.

The state used the last of its previous supply of the drug last Thursday when it executed Anthony Doyle for the 2003 death of a food-delivery person.

In her order, Gilmore said lawyers for the inmates should be given the opportunity to scrutinize the drug.

"Until Plaintiffs have full disclosure of their product with which Texas will cause their death, they cannot fully develop a challenge to its process," Gilmore wrote. "The question is not whether some error may cause a significant chance of pain in the execution procedure, but whether even a properly conducted execution will result in intolerable pain because of the standard used."

She further stated that redacted reports released by the state at the last minute deny the opportunity to assess whether the executions would be cruel and unusual punishment, and ordered that Texas confidentially share information about the drug's supplier, as well as how it has been tested.

Gilmore said the executions would remain stayed until the state produces the information.

The Texas Attorney General's Office, which has sought to protect the supplier from threats and public demonstrations, declined comment Wednesday.

Lawyers for the inmates point to recent executions in South Dakota and Oklahoma, in which forms of pentobarbital were used and inmates complained of extreme burning sensations and other pain.

Maurie Levin, an attorney representing the convicts, said that, regardless of what someone may think of Sells and Hernandez-Llanas, the law declares there is a proper way to put people to death. She said an appeal to the U.S. Supreme Court would be filed.

"We are a long way from when we would take somebody who has done something like this and tar and feather them, and tie their hands and feet and pull them apart or put their head on a pike," Levin said. "We don't do that anymore. We want to handle things in a way that is better than many defendants may have handled their own lives."

The case ended up in Houston federal court on Wednesday after state officials last week were ordered by a Travis County state court judge and the state's 3rd Court of Appeals to disclose the drug information. The attorney general's office then appealed the case to the Texas Supreme Court and, because of the fast-approaching execution dates, the attorneys for the convicted men filed the federal lawsuit that landed before Gilmore.