Appeals court: New drug OK for executions
BY ROBERT BOCZKIEWICZ World Correspondent
Wednesday, December 15, 2010
12/15/10 at 5:34 AM
DENVER - An appeals court ruled Tuesday that Oklahoma can proceed with executions, including one on Thursday, using a new lethal injection drug.
The 10th U.S. Circuit Court of Appeals rejected a claim by a death row inmate that the drug, pentobarbital, could cause cruel and unusual punishment, in violation of the U.S. Constitution.
A panel of the Denver-based court concluded 3-0 that the amount of pentobarbital that prison authorities plan to inject as the first of three execution drugs would by itself "likely be lethal in most, if not all, instances."
The 10-page decision clears the way for the execution of John David Duty at 6 p.m. Thursday in the Oklahoma State Penitentiary in McAlester, and of Jeffrey Matthews on Jan. 11.
Duty, 58, strangled his cellmate in 2001 while in prison for first-degree rape and two other crimes.
Matthews, 38, was convicted of killing his great-uncle, Otis Earl Short, 77, during a 1994 home invasion robbery in Rosedale.
Prison authorities said a few months ago that they would start using pentobarbital because there is a nationwide shortage of sodium thiopental, which has been the first of three drugs used for executions.
Matthews, citing testimony of a medical doctor who is a professor of anesthesia at Harvard Medical School, contended that using pentobarbital as an anesthetic might not work to prevent "severe, excruciating pain" from the subsequent drugs.
The appellate judges based their decision in large part on the testimony of the state's witness, a medical doctor who is a professor of anesthesiology at the University of Massachusetts, who disputed the testimony of Matthews' witness.
The judges said the state's witness "has substantially more clinical experience with the use of pentobarbital" than did Matthews' witness.