By Carole Carlson
Post-Tribune
MERRILLVILLE, Ind. — An Indiana Death Row inmate says Indiana violated its own rules by adding a new drug to its lethal injection execution protocol without public scrutiny.
A Fort Wayne attorney filed a lawsuit in LaPorte County Circuit Court last month on behalf of convicted killer Roy Lee Ward, 43. In 2007, Ward received the death penalty for the brutal murder of 15-year-old Stacy Payne in downstate Dale, near Evansville.
Indiana’s Death Row is located inside the Indiana State Prison in Michigan City, which is in LaPorte County.
David W. Frank, Ward’s attorney, says the lawsuit focuses on what he called the state’s disregard of its own rules and procedures, not the merits of Ward’s case. It lists Bruce Lemmon, commissioner of the Department of Correction and Ron Neal, superintendent of the Indiana State Prison, as defendants.
The lawsuit cites state law permitting the DOC to adopt rules for executions through the Indiana Administrative Rules and Procedures Act. When it added a new drug, Brevital, to its lethal injection protocol in 2014, it did not follow those rules, the lawsuit maintained.
“You can do it. The lawsuit says don’t do it in secret,” said Frank. “Let us know by what means you’re going to inject poison into a human being until they die. Let’s have a frank conversation about what we’re going to do.”
Bryan Corbin, spokesman for Attorney General Greg Zoeller, said Tuesday the Department of Correction adheres to the U.S. and Indiana constitutions and to federal and state statutes. He said the office would review the lawsuit and file a response.
“It should be noted that plaintiff Roy Lee Ward pleaded guilty and was sentenced to death in 2007 for the rape and murder of 15-year-old Stacey Payne in Spencer County in 2001. Ward viciously murdered Ms. Payne by disemboweling her with a knife while he raped her during a home invasion.”
Corbin said Ward’s attorneys filed notice to initiate his latest appeal to the U.S. 7th Circuit Court of Appeals in Chicago. An execution date is not scheduled and is not expected this year, he said.
Indiana, which hasn’t had an execution since 2009, turned to Brevital in 2014 after drug makers opposed to capital punishment refused to sell thiopental sodium to states for use in executions. A sedative, it had been the first drug in a three-drug cocktail used in lethal injections in Indiana. It’s followed by injections of pancuronium bromide and potassium chloride.
Brevital, also known as methohexital, is a barbiturate anesthetic in the same class as thiopental sodium.
Other death penalty states have similar problems finding drugs. Neighboring Ohio has postponed all executions until 2017 because it can’t obtain the lethal injection drugs needed. The move impacted a dozen scheduled executions.
The lawsuit states the DOC placed orders for Brevital on at least six separate occasions between September 2012 and May 2014. The lawsuit also included a copy of a confidential directive from the superintendent of the state prison allowing methohexital to be used in executions. Frank obtained the documents through a Freedom of Information Act request.
“IDOC and its Indiana State Prison adopted these new rules even though no state in the United States, nor the U.S. federal government itself has ever once used methohexital or a combination of methohexital, pancuronium bromide and potassium chloride to execute a person,” the lawsuit states.
Frank said the new rules violated Ward’s rights to due process. He’s seeking a permanent injunction, stopping the DOC from carrying out its new rules.
Oklahoma’s bungled execution of convicted murderer Clayton Lockett in 2014 reignited a national death penalty debate as states began experimenting with other drugs because of the shortage.
When it executed Lockett, Oklahoma used a sedative called midazolam as part of its three-drug protocol. Witnesses said Lockett writhed through the execution. Oklahoma officials said Lockett lost consciousness, but a vein collapsed in his groin and the tube failed that was administering the drugs. Lockett died of a heart attack 43 minutes after the execution began.
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