WRIT NO HC-1 02 EX PARTE IN THE 6 th DISTRICT COURT OF BILLY FRANK VICKERS LAMAR COUNTY, TEXAS APPLICATION FOR WRIT OF HABEAS CORPUS

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1 WRIT NO HC-1 02 EX PARTE IN THE 6 th DISTRICT COURT OF BILLY FRANK VICKERS LAMAR COUNTY, TEXAS APPLICATION FOR WRIT OF HABEAS CORPUS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES BILLY FRANK VICKERS, Applicant, by and through his attorney, KEITH S. HAMPTON, in the above entitled and numbered cause and files this Application for Writ of Habeas Corpus, pursuant to TEX. CODE CRIM. PROC. ANN., art , and in support thereof would show this Honorable Court the following: Applicant advances the following claims: CLAIM ONE: THE SECOND DEATH WARRANT IS NOT AUTHORIZED BY LAW. CLAIM TWO: THE FEDERAL DOUBLE JEOPARDY PROVISION PRECLUDES A SECOND EXECUTION PROCESS AGAINST THE SAME PERSON FOR THE SAME OFFENSE AFTER THE SAME PERSON HAS ALREADY UNDERGONE A FORMER EXECUTION PROCESS TAKEN TO COMPLETION. CLAIM THREE: ARTICLE I 14 OF THE TEXAS CONSTITUTION PRECLUDES A SECOND EXECUTION PROCESS AGAINST THE SAME PERSON FOR THE SAME OFFENSE AFTER THE SAME PERSON HAS ALREADY UNDERGONE A FORMER EXECUTION PROCESS TAKEN TO COMPLETION. CLAIM FOUR: THE EXECUTION OF BILLY FRANK VICKERS UNDER THE CIRCUMSTANCES CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS.

2 CLAIM FIVE: THE EXECUTION OF BILLY FRANK VICKERS UNDER THE CIRCUMSTANCES CONSTITUTES BOTH CRUEL AND UNUSUAL PUNISHMENT UNDER ARTICLE I 13 OF THE TEXAS CONSTITUTION. Section 5 Requirements are Met and this Court may Consider the Merits of these Claims This is a subsequent application for writ of habeas corpus from a Texas prisoner scheduled to be killed on January 28, Under Section 5 of Article of the Code of Criminal Procedure, this Court may not consider the merits of this application or grant relief unless it contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article because the legal basis for the claim was unavailable on the date Applicant filed the previous application. The first four claims contained herein involve the decision of the State of Texas to forego Applicant s execution on December 9, Thus, the claims could not have been previously advanced and became available only after that day. Thus, the requirements of Section 5 are satisfied for these claims. 2

3 Section 5 Requirements are Met for Consideration of the Two Lethal Injection Claims Applicant also advances the following claims: CLAIM SIX: THE CURRENTLY-ADMINISTERED LETHAL INJECTION EXECUTION METHOD IN TEXAS VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. CLAIM SEVEN: THE CURRENTLY-ADMINISTERED LETHAL INJECTION EXECUTION METHOD IN TEXAS VIOLATES ARTICLE I 13 OF THE TEXAS CONSTITUTION. Mr. Vickers also proceeds under the authority of the Texas Constitution seeking relief from that part of the judgment which requires execution by lethal injection. See Tex. Const. art. V, 8; art Should this Court decide that this claim cannot form the basis for a post-conviction writ application under Article of the Code of Criminal Procedure, then Vickers invokes the plenary power of district courts to hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity. Tex. Gov. Code ( Other Jurisdiction ). See also Tex. Gov. Code, (inherent power and duty of courts); Tex. Gov. Code ( writ power ). In an abundance of caution, Applicant is also raising these claims before the Court of Criminal Appeals as well. The legal basis for this state constitutional claim was unavailable until September 1, 2003, when the 78 th Legislature s ban on the use of pancuronium bromide (the muscleparalyzer) became effective, long after Mr. Vicker s initial writ application was 3

4 filed on January 22, Moreover, the American Veterinary Medical Association did not issue their report and findings until See 218 Journal of the American Veterinary Medical Association, 669, 681 (2001)(2000 Report of the American Veterinary Medical Association Panel on Euthanasia). Thus, the claim that the current use of the sedative with the muscle-paralyzer violates the state constitution as reflected by the veterinarian report and the subsequent state ban could not have been previously advanced and became available only after the events. Thus, the requirements of Section 5 are satisfied for this independent state constitutional claim. The legal basis for the federal constitutional claim was likewise unavailable at the time that Mr. Vickers filed his initial writ application. The claim that the use of these drugs violate the federal constitution was unavailable until the United States Supreme Court ruled in 2002 that the evolution of standards of decency governing the meaning of the Eighth Amendment s Cruel and Unusual Punishment provision is defined by consistency of the direction of change. Atkins v. Virginia, 536 U.S. 304, 315 (2002). In 1998, no such consistency existed. However, in light of this state s own ban on the chemicals less than a year ago on the basis of expert findings issued two years ago, the basis for this claim is now available and this Court should consider its merits. Thus, the requirements of Section 5 are satisfied for this federal constitutional claim. 1 1 Indeed, new bases for these claims appear to arise every day as new assertions are made about how lethal injection is carried out. Two days ago, state Senator Kyle Janek claimed in an 4

5 CLAIM ONE: THE SECOND DEATH WARRANT IS NOT AUTHORIZED BY LAW. Article (d) & (e) of the Code of Criminal Procedure addresses the modification and withdrawal of death warrants and orders setting execution dates. The court in this case did not withdraw or modify the December 9 th order setting the execution date. Article of the Code of Criminal Procedure requires that the inmate be killed at any time after the hour of 6 p.m. on the day set for the execution. There is no provision in law for the issuance of a second order setting an execution date or issuance of a death warrant after a previous order expired. The death warrant and order setting the execution date of January 28, 2004 is therefore not authorized by law. CLAIM TWO: THE FEDERAL DOUBLE JEOPARDY PROVISION PRECLUDES A SECOND EXECUTION PROCESS AGAINST THE SAME PERSON FOR THE SAME OFFENSE AFTER THE SAME PERSON HAS ALREADY UNDERGONE A FORMER EXECUTION PROCESS TAKEN TO COMPLETION. The Fifth Amendment provides:... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. U.S. Const. amend. V. This guarantee is applicable to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784 (1969). The double jeopardy guarantee is applicable not only to trials, but extends to any proceeding that results in the imposition of punishment for criminal conduct. See, e.g., Dept.of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994); United States v. Halper, 490 U.S. 435 (1989). editorial that inmates are given 3 grams or ten times the normal amount of the sedative, 5

6 Vickers was scheduled to be put to death by lethal injection on December 9, This scheduled execution put Vickers in jeopardy of life. The offense for which Vickers will be placed in jeopardy on January 28, 2004 is the same offense for which he was placed in jeopardy on December 9, Thus, he will be twice placed in jeopardy for the same offense, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. In this case, it is the execution proceeding and death-preparation process that is at issue. This process has already taken place, Vickers was placed in jeopardy, and that jeopardy was terminated by expiration of the death warrant. Compelling Vickers to undergo this proceeding a second time would therefore subject him to repeated proceedings for the same offense in violation of the constitutional protection against persons being put twice in jeopardy of their lives. It may be contended that while Vickers will be placed in jeopardy of his life on January 28, 2004 for the same offense, this jeopardy is but a continuation of his original death sentence. See Ball v. United States, 163 U.S. 662 (1896). See also United States v. Scott, 437 U.S. 82, 91 (1978)(retrial after defendant successfully appealed is no act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect ). However, the death warrant in his case was not withdrawn, nor was any stay ever granted, actions which could be analogized to the continuing jeopardy arising from an appellate reversal. Instead, the warrant expired by thereby ensuring their unconsciousness. Houston Chronicle, Viewpoints, January 21,

7 governmental acquiescence, thereby terminating the execution of judgment. After midnight Mr. Vickers was still living, despite the fact that the warrant had not been withdrawn and his motion to stay his execution had been denied. When the warrant expired at that moment, jeopardy for his life was terminated in a way analogous to an acquittal. In this way, the federal double jeopardy provision ensures that a person may be subjected only once to an execution process carried to its completion through either the death of the inmate or the expiration of the death warrant. No legal impediment existed to prevent the State from executing Mr. Vickers. This circumstance distinguishes it from the grant of a stay. A stay raises the prospect that the inmate may never be executed and is a remedy affirmatively sought by the inmate himself. In this case, Mr. Vickers motion for stay was denied. He was therefore left in expectation of imminent execution in accordance with the law, having exhausted his available and legally-recognized remedies to prevent the execution. Preclusion of a second execution process in this case serves the values the double jeopardy provision was meant to vindicate. Among other interests, the double jeopardy preclusion serves a constitutional policy of finality for the defendant s benefit. United States v. Jorn, 400 U.S. 470, 479 (1971). The death warrant expired with the approval of the State. A renewed effort to kill Mr. Vickers is contrary to that policy of finality. The double jeopardy value to the citizen in harm s way is protection from repeated subjection to embarrassment, expense and ordeal and compelling [them] to live in a 7

8 continuing state of anxiety and insecurity... Green v. United States, 355 U.S. 184, (1957). The ordeal in this case is worse than trial. Because it involves the very act of dying, it the most acute state of anxiety and insecurity that a human being can undergo. As one observant writer has expressed the circumstance of being condemned to death: An execution is not simply death. It is just as different from the privation of life as a concentration camp is from prison. It adds to death a rule, a public premeditation known to the future victim, an organization which is itself a source of moral sufferings more terrible than death. Capital punishment is the most premeditated of murders, to which no criminal s deed, however calculated, can be compared. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Albert Camus, Reflections on the Guillotine, Resistance, Rebellion and Death (1966). For Billy Frank Vickers, once should be enough. CLAIM THREE: ARTICLE I 14 OF THE TEXAS CONSTITUTION PRECLUDES A SECOND EXECUTION PROCESS AGAINST THE SAME PERSON FOR THE SAME OFFENSE AFTER THE SAME PERSON HAS ALREADY UNDERGONE A FORMER EXECUTION PROCESS TAKEN TO COMPLETION. Article I, 14 of the Texas Constitution provides: No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction. The Texas Constitution s double jeopardy provision has independent vitality. This 8

9 provision has never been placed in lockstep with federal rationales and continues to be interpreted in an independent fashion. See Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996). See also Graham v. Board of Pardons & Paroles, 913 S.W.2d 745 (Tex.App. Austin 1996). A textual comparison of the two provisions reveals that they are more dissimilar than similar; for example, the federal clause protects double jeopardy of life or limb while the Texas section protects life or liberty. The Fifth Amendment provides:... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, and included this clause with a clump of other rights. The Texas Constitution, on the other hand, created a separate section for our double jeopardy guarantee. The Texas double jeopardy guarantee includes two separate rights: the right not to be twice put in jeopardy of life or liberty, and the right not to be again put upon trial for the same offense. This provision, like its federal counterpart, protects defendants from multiple convictions and punishments for the same offense and limits the opportunities for the State to obtain multiple convictions or to inflict multiple punishments for the same offense. Significantly, the Texas provision protects against repeated put in jeopardy of life or liberty separately from the protection against repeated trial for the same offense after acquittal. While Vickers has been tried but once, his life was placed in jeopardy on December 9, That jeopardy was terminated at midnight that night. His therefore may not be put in jeopardy again under this state s constitution. 9

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11 CLAIM FOUR: THE EXECUTION OF BILLY FRANK VICKERS UNDER THE CIRCUMSTANCES CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS. In Wilkerson v. Utah, 99 U.S. 130, (1878), the Supreme Court held that an execution by shooting as punishment for murder did not constitute cruel and unusual punishment. However, the Court did indicate that certain forms of torture would be prohibited by the Eighth Amendment, such as where a prisoner is drawn or dragged to the place of execution, burned or disembowelled alive, publicly dissected, or beheaded and quartered, remarking that punishments in the same line of unnecessary cruelty violate the Eighth Amendment as well. Thus, even in its earliest days of its interpretation, the Eighth Amendment prohibited executions with cruelty not inherently part of the killing process itself. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, reh g denied, 330 U.S. 853 (1947), the Court decided that the Fourteenth Amendment would not prevent a second attempt at electrocution on grounds that it would constitute cruel and unusual punishment. However, it reaffirmed the Eighth Amendment s condemnation of unnecessary pain. Unnecessary pain, that is, pain beyond that inherent in a constitutionally-acceptable manner of execution, is first and foremost prohibited by the Cruel and Unusual Punishment Clause. Gregg v. Georgia, 428 U.S. 153, 173 (1976)(Stewart, Powell & Stevens, JJ). While the circumstance of awaiting one s 11

12 execution is psychologically tortuous, it is undoubtedly inseparable from the execution process itself and thus is not violative of the Eighth Amendment. But the circumstances of this case are different. In this case, Mr. Vickers was transported to the place of execution and was prepared to die. No legal impediment existed to preclude his execution. His motion to stay the execution had been denied. After midnight, he was taken from the place of execution and returned to his cell. The State prepared him for death, then for extra-legal reasons, did not carry out the execution. To compel Mr. Vickers to continue to suffer another experience of expectation of imminent death is to subject him to two execution processes. While this is true for any inmate whose motion to stay the execution is granted, it is never true for one whose motion to stay has been denied. In the former circumstance, the inmate himself has raised the hope that he may avoid imminent death by having filed such a motion. This rationale cannot be applied where the motion has been denied. Thus, the State s planned infliction of the tortuous pain of undergoing yet another execution process is not only unprecedented but unconstitutionally cruel. This unusual process of raising an inmate s expectation of imminent death itself constitutes cruel and unusual punishment. The unfortunate plurality holding of Louisiana ex rel. Francis v. Resweber, supra is distinguishable. In Resweber, the failure to kill was unintentional and accidental, due wholly to a technical malfunction. In this case, the 12

13 failure to kill was a conscious decision of the agents of the government. Furthermore, Louisiana ex rel. Francis v. Resweber was a four-judge opinion, with Justice Frankfurter concurring. In his concurrence, Frankfurter wrote that had the facts been something other than an unforeseeable accident, different questions would be raised. Id. at (Frankfurter, J., concurring). There was no Resweber accident in this case. Whatever the source or cause, it is the nature of the execution process in this case which is the substantive issue. No inmate should be made to repeatedly experience the government s preparation of killing him. It is akin to killing a man twice. Every other inmate experiences it but once. It is therefore unnecessarily painful and unconstitutionally cruel and unusual to execute Billy Frank Vickers under these unprecedented and unique circumstances. CLAIM FIVE: THE EXECUTION OF BILLY FRANK VICKERS UNDER THE CIRCUMSTANCES CONSTITUTES BOTH CRUEL AND UNUSUAL PUNISHMENT UNDER ARTICLE I 13 OF THE TEXAS CONSTITUTION. This state has its own and different prohibition against excessive sentences which should be interpreted independently from the federal interpretation of the federal due process and Eighth Amendment guarantees. Article I, 13 of the Texas Constitution provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, 13

14 shall have remedy by due course of law. The Texas provision ( cruel or unusual ) is manifestly different from and broader than the federal provision ( cruel and unusual ). As the Michigan Court noted regarding its own clause, it seems self-evident that any adjectival phrase in the form A or B necessarily encompasses a broader sweep than a phrase in the form A and B. The set of punishments which are either cruel or unusual would seem necessarily broader than the set of punishments which are both cruel and unusual. People v. Bullock, 485 N.W.2d 866, n.11 (Mich. 1992). The textual difference between or and and are logically irreconcilable words, underscoring that this state s constitutional provision is independent from its federal and more limited counterpart. Other states have interpreted their cruel or unusual punishment provision differently than the federal provision. See, e.g., People v. Lorentzen, 194 N.W.2d 827 (Mich. 1972); Thomas v. State, 634 A.2d 1 (Md..App.1993); Epps v. State, 634 A.2d 20 (Md.App.1993). See also Dodd v. State, 879 P.2d 822, 828 (Ok. 1994)(Chapel, J., concurring and dissenting). See also Francis v. State, 877 S.W.2d 441(Tex.App. Austin 1994, pet. ref d). Furthermore, this state interpreted this provision before the Eighth Amendment even became applicable to the states. See, e.g., Clem v. Evans, 291 S.W. 871, 51 A.L.R.1135 (1927). Therefore, Article I, 13 has an independent vitality which should be recognized and vindicated by this Court. See Sax v. Voteller, 648 S.W.2d 661 (Tex. 1983)(recognizing the independence of this provision). 14

15 This Court should adopt the reasoning of the dissent in Louisiana ex rel. Francis v. Resweber as a matter of Texas law to conclude that it is cruel to force Mr. Vickers to undergo another experience of being prepared to be killed. Specifically, intent to inflict cruelty should not be the touchstone for protecting citizens against cruel punishment: Lack of intent that the first application be less than fatal is not material. The intent of the executioner cannot lessen the torture or excuse the result. It was the statutory duty of the state officials to make sure that there was no failure. The procedure in this case contrasts with common knowledge of precautions generally taken elsewhere to insure against failure of electrocutions. The high standard of care generally taken evidences the significance properly attached to the unconditional requirement of a single continued application of the current until death results. Louisiana ex rel. Francis v. Resweber, 329 U.S. at 477 (Burton, J., dissenting). It should matter only under the Texas Constitution whether the inmate would suffer cruel punishment if forced to undergo the execution preparation process again under the circumstances. The Resweber plurality decision was wrongly decided and should be rejected as a matter of state constitutional law. In Resweber, Willie Francis was strapped into an electric chair and the execution commenced, but the killing apparatus malfunctioned. As Justice Reed s opinion flippantly put it, Accidents happen. Louisiana ex rel. Francis v. Resweber, 329 U.S. at 462. While repeated subjection of a colored citizen of Louisiana, as the plurality quaintly put it, to the execution process may not have offended evolving standards of decency in 1946, they do today. Louisiana ex rel. Francis v. Resweber, 329 U.S. at 460. Justice Frankfurter, while [s]trongly drawn to the dissent, nevertheless 15

16 concurred only because he believed the Court should abstain with interference with State action unless its action offended a principle of justice rooted in the traditions and conscience of our people. Louisiana ex rel. Francis v. Resweber, 329 U.S. at (Frankfurter, J., concurring)(quoting Snyder v. Massachusetts, 291 U.S. 97(1934)). At that time, none of the federal constitutional rights asserted had been found to be applicable to the States. See Robinson v. California, 370 U.S. 660 (1962)(cruel and unusual punishment applicable to States); Benton v. Maryland, 395 U.S. 784 (1969)(double jeopardy applicable to States). Furthermore, there was no reliable factual record in the case. See Louisiana ex rel. Francis v. Resweber, 329 U.S. at (Burton, J., dissenting)(pointing out the very different accounts of witnesses to the execution). Finally, the Fourteenth Amendment Due Process question for the Court at that time required that the alleged constitutional violations in Resweber be fundamental. Louisiana ex rel. Francis v. Resweber, 329 U.S. at 469 (Frankfurter, J., concurring). Under an ambiguous record and a high standard for review, then, the Court s decision is at least more understandable. But today both the double jeopardy and cruel and unusual punishment protections are applicable to the States under the more precise standards of their respective veins of jurisprudence. Moreover, the facts are undisputed: Mr. Vickers was prepared for death and the warrant requiring his death was permitted to expire. Thus, the clarity lacking in Resweber is present in this case both in law and in fact. The punishment is also constitutionally unusual. See Harmelin v. Michigan,

17 U.S. 957, 976 (1991)( [T]he word unusual could hardly mean contrary to law. But it... continues to mean such as [does not] occur in ordinary practice, [or] such as is [not] in common use. )(quoting dictionaries); Trop v. Dulles, 356 U.S. 86, 101 (1958)( If the word unusual is to have any meaning apart from the word cruel, however, the meaning should be the ordinary one, signifying something different from that which is generally done. ). Permitting a death warrant to expire for no legal reason is the most unusual action the State has ever undertaken. No one has heard of such an event in the history of Texas capital punishment. Because the unprecedented nature of this inaction resulted in the infliction of pain, it is unconstitutionally unusual under the Texas Constitution. CLAIM SIX: THE CURRENTLY-ADMINISTERED LETHAL INJECTION EXECUTION METHOD IN TEXAS VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. CLAIM SEVEN: THE CURRENTLY-ADMINISTERED LETHAL INJECTION EXECUTION METHOD IN TEXAS VIOLATES ARTICLE I 13 OF THE TEXAS CONSTITUTION. 2 Lethal injection was adopted in this State because it was thought to be a humane method to carry out a death sentence. The inmate would be rendered unconscious through a sedative, then killed instantly through a heart-stopping drug. Another drug would ensure that nothing would cause the condemned to awaken. But the public has been duped. The drugs that are currently used in Texas executions include the same which the Texas Legislature recently outlawed against euthanized animals. The reasons for this 2 Applicant incorporates the same arguments as contained in the claim regarding the independence of the Texas Constitution s Cruel or Unusual Punishment Clause, but for purposes of brevity does not repeat them here. Claims Six and Seven are discussed at the same time because they both concern the constitutionality of the current method of execution in this state. 17

18 policy are as valid for prohibiting their use against human beings as against other creatures of the animal kingdom. And these same reasons also compel the conclusion that the standardless use of these drugs in executions of human beings constitutes cruel and unusual punishment. On January 28, 2004, Texas state government officials intend to kill Mr. Vickers by poisoning him with a lethal combination of an ultrashort-acting barbiturate, a muscle paralyzer, and a horribly painful chemical used to cause cardiac arrest. The administration and oversight of these drugs is cloaked in secrecy. While euthenasia is performed under established protocols by licensed veterinarians, lethal injection is administered by persons whose qualifications are wholly unknown under written standards which may not exist. Texas recently passed legislation mandating humane methods of euthanizing animals which precludes the use of neuromuscular blocking agents such as pancuronium bromide. Tex. Health & Safety Code Ann (a), (b) (West 2003) (specifically prescribing the methods of euthanasia for cats and dogs in the custody of animal shelters and requiring that shelters euthanize all other animals only in accordance with the applicable methods, recommendations, and procedures set forth in the 2000 Report of the American Veterinary Medical Association Panel on Euthanasia.... ). With this legislation, Texas has joined numerous states with laws recognizing that use of these chemicals would be inhumane in the euthanasia of dogs and cats. See Florida, Fla. Stat and (enacted in 1984); Georgia, Ga. Code Ann (enacted 18

19 in 1990); Maine, Me.Rev.Stat. Ann., Tit. 17, 1044 (enacted in 1987); Maryland, Md.Code Ann., Criminal Law, (enacted in 2002); Massachusetts, Mass.Gen.Laws 140:151A (enacted in 1985); New Jersey, N.J.S.A. 4: (enacted in 1987); New York, N.Y.Agric. & Mkts 374 (enacted in 1987); Oklahoma, Okla. Stat., Tit. 4, 501 (enacted in 1981); Tennessee, Tenn.Code Ann (enacted in 2001). Other States have implicitly banned such practices. See Illinois, 510 Ill. Comp. Stat., ch. 70, 2.09; Kansas, Kan. Stat. Ann (a); Louisiana, La. Rev. Stat. Ann. 3:2465; Missouri, 2 CSR (F)(5); Rhode Island, R.I. Gen. Laws , Connecticut, Conn. Gen.Stat a; Delaware, Del.Code Ann., Tit. 3, 8001; Kentucky, Ky.Rev.Stat. Ann (17) and 201 KAR 16:090, 5(1); South Carolina, S.C.Code Ann The reasons for this policy is that use of these drugs is inhumane because this particular combination of chemicals likely causes the subject to consciously suffer an excruciatingly painful and protracted death. The judiciary has recognized that the drugs used in lethal injections pose a substantial threat of torturous pain to persons being executed. Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983), overturned on other grounds, Heckler v. Chaney, 470 U.S. 821 (1985). The Court of Appeals found that Appellants have presented substantial and uncontroverted evidence to support their claim that execution by lethal injection poses a serious risk of cruel, protracted death. See ROYAL COMMISSION ON CAPITAL PUNISHMENT, 1949_1953 REPORT (1953), Exhibit 1 to Letter to the 19

20 Secretary, supra, JA 34_40. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own slow, lingering asphyxiation. Id. at In recognition of this reality, numerous states over the last two decades including Texas have condemned the use of these drugs for the euthanasia of animals because of its risk of cruelty. Since 1981, at least nineteen states, including Texas, have passed laws that preclude the use of a sedative in conjunction with a neuromuscular blocking agent. Moreover, in 2000, the leading professional association of veterinarians promulgated guidelines for euthanasia that prohibit the practice. Those guidelines specifically state that [a] combination of pentobarbital with a neuromuscular blocking agent is not an acceptable euthanasia agent. (2000 Report of the American Veterinary Medical Association Panel on Euthanasia, 218 Journal of the American Veterinary Medical Association, 669, 681 (2001)). This trend reflects that the standard of decency has evolved. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, (2002)(quoting Trop v. Dulles, 356 U.S. 86, (1958)). A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the Bloody Assizes or when the Bill of Rights was adopted, but 20

21 rather by those that currently prevail. Atkins, 536 U.S. at 311. The scope of the substantive protections afforded by the Eighth Amendment, as this Court recently reiterated, is defined by evolving standards of decency that mark the progress of a maturing society. Id. at 312 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Atkins re-emphasized that evolving standards of decency are best reflected in the various relevant laws enacted throughout the country: Proportionality review under those evolving standards should be informed by objective factors to the maximum possible extent[.] We have pinpointed that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country s legislatures. Id. (citations and internal quotation marks omitted). Moreover, [i]t is not so much the number of these States that is significant, but the consistency of the direction of change. Id. at 315. The unmistakable trend over the past two decades of condemning the use of neuromuscular blocking agents, such as pancuronium bromide, in euthanasia is clear evidence that the practice violates the Eighth Amendment ban on cruel and unusual punishment. These recent alterations of euthanasia protocols for pets underscore the inhumanity of the chemicals currently used in Texas. It can hardly be disputed that if certain euthanasia techniques are banned because they are cruel to animals, those same practices must violate our current standards of decency regarding the execution of humans. This society has determined that the combination of these chemicals to kill constitutes an act of cruelty and has banned their use. Lethal injection, as currently 21

22 planned against Mr. Vickers, therefore will result in the unconstitutional infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Punishments are cruel when they involve... a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890). It is such unnecessary pain that is prohibited by the Eighth Amendment s proscription against cruel and unusual punishment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (opinion of Reed, J.); Fierro v. Gomez, 865 F.Supp. 1387, 1413 (N.D. Cal. 1994)(execution by lethal gas in California held unconstitutional where evidence indicated death by this method is not instantaneous. Death is not extremely rapid or within a matter of seconds. Rather... inmates are likely to be conscious for anywhere from fifteen seconds to one minute from the time that the gas strikes their face and during this period of consciousness, the condemned inmate is likely to suffer intense physical pain from air hunger ; symptoms of air hunger include intense chest pains... acute anxiety, and struggling to breath ), aff d, 77 F.3d 301, 308 (9th Cir.), vacated on other grounds, 519 U.S. 918 (1996). A punishment is particularly constitutionally offensive if it involves the foreseeable infliction of unnecessary suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973), citing Resweber, supra (had botched execution been intentional and not unforeseen, punishment would have been, like torture, so degrading and indecent as to amount to a refusal to accord the criminal human status ). The use of these drugs is, in 22

23 the considered judgment of Texas and most other States, cruel. The details of that cruelty are explicated next. Sodium Thiopental. Sodium thiopental, or sodium pentothal, is used to render the inmate unconscious. But it is a short-acting barbiturate which is ordinarily used to render a surgical patient unconscious for mere minutes, only in the induction phase of anesthesia, specifically so that the patient may re-awaken and breathe on his own power if any complications arise in inserting a breathing tube before surgery. Because of its brief duration, sodium thiopental may not provide a sedative effect throughout the entire execution process. Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, recently explained: Sodium thiopental is not a proper anesthetic for use in lethal injection. Indeed, the American Veterinary Medical Association standards for euthanasia indicate that the ideal barbituric acid derivative for animal euthanasia should be potent, long acting, stable in solution, and inexpensive. Sodium pentobarbital (not sodium thiopental) best fits these criteria. Sodium thiopental is a potent barbituric acid derivative but very short acting with one therapeutic dose. (Affidavit of Dr. Dennis Geiser, Texas v. Jesus Flores, No. 877,994A). Due to the chemical combination used in the Texas execution process, there is also 23

24 a probability that the sedative effect of the sodium thiopental is neutralized by the second chemical, pancuronium bromide, the muscle-paralyzer. As Dr. Mark Heath, Assistant Professor of Clinical Anesthesia at Columbia University states: If the solution of sodium thiopental comes into contact with another chemical, such as pancuronium bromide, the mixture of the two will cause the sodium thiopental immediately to precipitate or crystallize. These factors are significant in the risk of the inmate not being properly anesthetized, especially since no one checks that the inmate is unconscious before the second drug is administered. (Affidavit of Dr. Heath, Texas v. Jesus Flores, No. 877,994A). The risk of an awakened inmate is further heightened by the lack of medical personnel, the lack of proper monitoring of the inmate during the process and the lack of inmate-specific dosing of the barbiturate. According to Dr. Geiser: [T]he dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject s blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the 24

25 subject may experience the untoward effects of the neuromuscular blocking agent... Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdur Rahman v. Bell, 226 F.3d 696 (6 th Cir. 2000), cert. granted on other grounds, 122 S.Ct (U.S. April 8, 2002) (No ). 3 Dr. Geiser s testimony echoes the warnings from drug manufacturers which caution that without careful medical supervision of dosage and administration, sedatives can cause paradoxical excitement and can heighten sensitivity to pain. See Physicians Desk Reference, 50 th Ed. (1996) at Pancuronium Bromide. The second chemical involved in the lethal injection process, pancuronium bromide, acts as a neuromuscular blocking agent. If the sedative is ineffective or neutralized, the pancuronium bromide does nothing more than mask the excruciating pain of the condemned inmate. Eye surgery patient, Carol Weihrer, underwent exactly this experience of concern here. During Ms. Weihrer s surgery the sedative she received was ineffective and she was conscious of the entire surgery. Due to the administration of a neuromuscular blocking agent like pancuronium bromide, however, she was unable to indicate her consciousness to doctors: I experienced what has come to be known as Anesthesia Awareness, in 3 In 1989, the Texas Department of Criminal Justice ceased conducting autopsies of executed individuals. The refusal to collect any post-mortem data precludes any direct evidence that the dosage of the sedative ensures that no inmates has suffered the fate of being killed while awake and paralyzed. 25

26 which I was able to think lucidly, hear, perceive and feel everything that was going on during the surgery, but I was unable to move. It burnt like the fires of hell. It was the most terrifying, torturous experience you can imagine. The experience was worse than death. (Affidavit of Carol Weihrer, in Texas v. Jesus Flores, No. 877,994A). An awakened condemned inmate will be forced into total paralysis as he experiences the potassium chloride ravaging his internal organs. Potassium Chloride. Finally, the use of potassium chloride itself raises important Eighth Amendment concerns. James J. Ramsey, a certified perfusionist 4 and currently the Program Director in the Program in Cardiovascular Perfusion at Vanderbilt Medical Center, Nashville, Tennessee has stated that: It is my understanding that during the performance of lethal injection as carried out during the death penalty, potassium (and other agents) are administered intravenously to the defendant. Such administration is, in my professional opinion based upon my knowledge, training, and experience, and within a reasonable degree of medical certainty, entirely inadequate in order to achieve reasonable cardiac standstill. Since the agents are introduced intravenously, there will occur an immediate dilution of the solution, weakening any potential effect it may have. By illustration an 80 kilogram person would have a blood volume of approximately 5.5 to 6 liters. An administration of 100 milli-equivalents of potassium intravenously to the 80 kilogram person would result in a blood concentration of only 16.6 meq/l. Such a dose is according to scientific literature... and as evidenced in my practice, inadequate to achieve cardiac standstill. 4 Perfusion involves the study of medicine related to the artificial circulation technologies, including but not limited to the operation of the heart-lung machine, a medical device commonly used during open-heart surgeries of all kinds. The arena involving the chemical arrest of the heart lies uniquely within the practice of the clinical perfusionist. 26

27 Furthermore, it must be remembered that [in contrast to the administration of potassium chloride in the surgical context] such administration is: (1) NOT DIRECTED INTO THE CORONARY ARTERIES; (2) DIRECTED ONLY IN AN ANTEGRADE FASHION; AND (3) IS AT MORMOTHERMIA (37 degrees Celsius, NOT at five degrees Celsius). Without reasonable data regarding any one person s anatomic and pathologic state as to their myocardial function prior to administration of the potassium, there can be no reasonable certainty that the potassium solution intended to arrest the heart would be distributed in a fashion that would arrest the heart. Thus, the very orchestrated and methodical methods used in surgery should not be thought of as optimizing the arrest of the heart, but should be considered to be necessary as the only reasonable means of ensuring that the heart is arrested. If the heart could be arrested by intravenous objections, cardiac surgery today would be a very different animal science and research tell us that mere intravenous injection of potassium is not sufficient. Additionally, in my professional opinion and within a reasonable degree of medical certainty, barring an effective cardiac arrest, it is entirely possible that a lethal injection as I understand it will serve ONLY to arrest the function of the pulmonary system, thereby causing a state of ischemia to the entire body (no oxygen delivery), which, in turn, will ultimately arrest the heart as well (with no oxygen delivery to it.) As a result, the defendant is simply suffocated due to lack of oxygen. Affidavit of James J. Ramsey, in Abu-Ali Abdur Rahman v. Bell, 226 F.3d 696 (6 th Cir. 2000), cert. granted on other grounds, 122 S.Ct (U.S. April 8, 2002) (No ) (emphasis added). Events in the death chamber over the years confirm the likelihood that Texas is cruelly killing inmates meant to experience a humane execution. Examples include: 5 5 Sources for this information include: Michael Radelet, On Botched Executions, Peter 27

28 Raymond Landry December 13, 1988 Pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms. Two minutes into the killing, the syringe came out of Landry s vein, spraying the deadly chemicals across the room toward the witnesses. The execution team had to reinsert the catheter into the vein. The curtain was drawn for 14 minutes so witnesses could not see the intermission. Stephen McCoy May 24, 1989 Had such a violent physical reaction to the drugs (heaving chest, gasping, choking, etc.) that one of the witnesses (male) fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought that the fainting would catalyze a chain reaction. The Texas Attorney General admitted the inmate seemed to have a somewhat stronger reaction, adding The drugs might have been administered in a heavier dose or more rapidly. Justin Lee May May 7, 1992 May had an unusually violent reaction to the lethal drugs. According to Robert Wernsman, a reporter for the Item (Huntsville), Mr. May gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze.... Associated Press reporter Michael Graczyk wrote, He went into coughing spasms, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down. After he stopped breathing his eyes and mouth remained open. In light of the effect of the paralytic drug, it is an open question how many other inmates suffering were even noticeable. Death row chaplain Rev. Carroll Pickett was present for the execution of Carlos DeLuna in December of Alberta Phillips, Editorial, Questioning the Myth of Painless Execution, AUSTIN AMERICAN-STATESMAN, Dec. 11, Rev. Pickett Hodgkinson and William Schabas (eds.); Capital Punishment: Strategies for Abolition (Cambridge University Press, 2001); and Stephen Trombley, The Execution Protocol (1992). 28

29 reassured Mr. DeLuna that the process would be quick and painless, and then stood by with his hand Mr. DeLuna s leg during the execution: Carlos was basically very scared, Pickett said. I said, It will take about seven to 12 seconds and you will be asleep. Don t worry. You ve already done the hard part with the needles. He said, OK and thanked me for being there and being his last friend... He never took his eyes off me. I moved back to my position at the foot of the gurney. He asked if I could hold his hand, but I said I couldn t do that because You will be strapped down, so I ll hold your right leg and squeeze it so you know I will be right here, right here. Id. According to Rev. Pickett, however, Mr. DeLuna s death was not quick: Carlos pulse continued after the first drug and anesthesia sodium thiopental flowed through one of the young man s veins. Pickett could feel Carlos pulse as he clutched his ankle and stared into his big brown eyes, which never blinked. Carlos ankle jerked after the second lethal drug, pancuronium bromide, dripped into another vein. His eyes remained open. The pulse kept throbbing until a third drug kicked in. Id. Carlos DeLuna s execution was so traumatic for Rev. Pickett that he sought therapy and remains haunted by the experience: Pickett sought out a Dallas therapist because he believed Carlos endured an agonizing death due to the use of pancuronium bromide, which is outlawed in Texas for euthanizing animals in shelters. If he is right, Carlos was awake as the pancuronium bromide collapsed his diaphragm and lungs; conscious as a third drug potassium chloride shut down his heart. * * * * Pickett still sees the frightened, questioning eyes of Carlos DeLuna and wrestles with his conscience about whether he misled the young man about his execution being swift and painless like falling asleep. He gave me a look in his face, which I interpreted to mean, Did you tell me the truth? Because this is taking longer than 7 seconds. 29

30 Id. The cruelty of these drugs is known and has been widely condemned for use against animals. The State plans to use this unconstitutional method of execution against Billy Frank Vickers on January 28, This Court should therefore grant conditional relief and order that the lethal injection process be changed so that the humane method originally intended by the Legislature and assumed by the public at large is fulfilled. PRAYER FOR RELIEF WHEREFORE, Applicant respectfully requests that the Court: 1. Consider the merits of this subsequent application for writ of habeas corpus, order a hearing, and grant Applicant the requested relief; 2. Stay his execution; and 3. Grant Applicant such other and further relief as may be just and proper. Respectfully submitted, KEITH S. HAMPTON 1103 Nueces Street Austin, Texas (512) (512) (cell phone) Texas Bar. No

31 filed this date, January 23,

32 STATE OF TEXAS TRAVIS COUNTY VERIFICATION BEFORE ME, the undersigned authority, on this day personally appeared Keith S. Hampton, who upon being duly sworn by me testified as follows: 1. I am a member of the State Bar of Texas. 2. I am the duly authorized attorney for Billy Frank Vickers, having the authority to prepare and to verify Mr. Vicker s Successor Application for Post-Conviction Writ of Habeas Corpus. 3. I have helped to prepare and have read the foregoing Successor Application for Post-Conviction Writ of Habeas Corpus, and I believe all the allegations therein to be true and correct. KEITH S. HAMPTON 1103 Nueces Street Austin, Texas (512) (512) (cell phone) Texas Bar. No SUBSCRIBED AND SWORN TO BEFORE ME on January 23, Notary Public, State of Texas CERTIFICATE OF SERVICE: By my signature above, I hereby certify that on this day, January 23, 2004, a true and correct copy of the foregoing pleading was served by Fed-ex to Mr. J. Kerye Ashmore, 119 Norht Main Street, Paris, Texas and faxed to Judge Lovett as well. 32