EX PARTE - alt.coxnewsweb.comalt.coxnewsweb.com/statesman/metro/012604vickers_writ.pdf · EX PARTE § IN THE 6th ... BILLY FRANK VICKERS § LAMAR COUNTY, TEXAS APPLICATION FOR WRIT

WRIT NO. 14793HC-1 — 02EX PARTE § IN THE 6th

§§ 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.

11.071 §5, and in support thereof would show this Honorable Court the following:

Applicant advances the following claims:

CLAIM ONE: THE SECOND DEATH WARRANT IS NOTAUTHORIZED BY LAW.

CLAIM TWO: THE FEDERAL DOUBLE JEOPARDY PROVISIONPRECLUDES A SECOND EXECUTION PROCESS AGAINST THESAME PERSON FOR THE SAME OFFENSE AFTER THE SAMEPERSON HAS ALREADY UNDERGONE A FORMER EXECUTIONPROCESS TAKEN TO COMPLETION.

CLAIM THREE: ARTICLE I §14 OF THE TEXAS CONSTITUTIONPRECLUDES A SECOND EXECUTION PROCESS AGAINST THESAME PERSON FOR THE SAME OFFENSE AFTER THE SAMEPERSON HAS ALREADY UNDERGONE A FORMER EXECUTIONPROCESS TAKEN TO COMPLETION.

CLAIM FOUR: THE EXECUTION OF BILLY FRANK VICKERSUNDER THE CIRCUMSTANCES CONSTITUTES CRUEL ANDUNUSUAL PUNISHMENT UNDER THE EIGHTH ANDFOURTEENTH AMENDMENTS.

Billy Frank “Sonny” Vickers Subsequent Writ Application2

CLAIM FIVE: THE EXECUTION OF BILLY FRANK VICKERSUNDER THE CIRCUMSTANCES CONSTITUTES BOTH “CRUEL”AND “UNUSUAL” PUNISHMENT UNDER ARTICLE I §13 OF THETEXAS CONSTITUTION.

Section 5 Requirements are Met and this Court may Consider the Merits of theseClaims

This is a subsequent application for writ of habeas corpus from a Texas

prisoner scheduled to be killed on January 28, 2004. Under Section 5 of Article

11.071 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, 2003. 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.


Section 5 Requirements are Met for Consideration of the Two Lethal InjectionClaims

Applicant also advances the following claims:

CLAIM SIX: THE CURRENTLY-ADMINISTERED LETHALINJECTION EXECUTION METHOD IN TEXAS VIOLATES THEEIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITEDSTATES CONSTITUTION.

CLAIM SEVEN: THE CURRENTLY-ADMINISTERED LETHALINJECTION EXECUTION METHOD IN TEXAS VIOLATESARTICLE 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. 1 §11. Should this Court decide that this claim cannot form

the basis for a post-conviction writ application under Article 11.071 §5 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 §24.008

(“Other Jurisdiction”). See also Tex. Gov. Code , §21.001 (inherent power and duty of

courts); Tex. Gov. Code §24.011 (“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 78th Legislature’s ban on the use of pancuronium bromide (the muscle-

paralyzer) became effective, long after Mr. Vicker’s 11.071 initial writ application was


filed on January 22, 1998. Moreover, the American Veterinary Medical Association did

not issue their report and findings until 2001. 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 abouthow lethal injection is carried out. Two days ago, state Senator Kyle Janek claimed in an


CLAIM ONE: THE SECOND DEATH WARRANT IS NOT AUTHORIZED BYLAW.

Article 43.141 (d) & (e) of the Code of Criminal Procedure addresses themodification and withdrawal of death warrants and orders setting execution dates. Thecourt in this case did not withdraw or modify the December 9th order setting theexecution date. Article 43.14 of the Code of Criminal Procedure requires that the inmatebe killed “at any time after the hour of 6 p.m. on the day set for the execution.” There isno provision in law for the issuance of a second order setting an execution date orissuance of a death warrant after a previous order expired. The death warrant and ordersetting 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,


Vickers was scheduled to be put to death by lethal injection on December 9, 2003.

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, 2003. 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, 2004.


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


continuing state of anxiety and insecurity....” Green v. United States, 355 U.S. 184, 187-

188 (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 oflife as a concentration camp is from prison. It adds to death a rule, a publicpremeditation known to the future victim, an organization which is itself asource of moral sufferings more terrible than death. Capital punishment isthe most premeditated of murders, to which no criminal’s deed, howevercalculated, can be compared. For there to be an equivalency, the deathpenalty would have to punish a criminal who had warned his victim of thedate at which he would inflict a horrible death on him and who, from thatmoment 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 CONSTITUTIONPRECLUDES A SECOND EXECUTION PROCESS AGAINST THE SAMEPERSON FOR THE SAME OFFENSE AFTER THE SAME PERSON HASALREADY UNDERGONE A FORMER EXECUTION PROCESS TAKEN TOCOMPLETION.

Article I, §14 of the Texas Constitution provides:

No person, for the same offense, shall be twice put in jeopardy of life orliberty, nor shall a person be again put upon trial for the same offense, aftera verdict of not guilty in a court of competent jurisdiction.

The Texas Constitution’s double jeopardy provision has independent vitality. This


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, 2003. That jeopardy was

terminated at midnight that night. His therefore may not be put in jeopardy again under

this state’s constitution.



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, 134-36 (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


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


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 471-72

(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 cruelor unusual punishment inflicted. All courts shall be open, and everyperson for an injury done him, in his lands, goods, person or reputation,


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).


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 nofailure. The procedure in this case contrasts with common knowledge ofprecautions generally taken elsewhere to insure against failure ofelectrocutions. The high standard of care generally taken evidences thesignificance properly attached to the unconditional requirement of a singlecontinued 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


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 470-471

(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 478-480

(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, 501


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 theword ‘unusual’ is to have any meaning apart from the word ‘cruel,’ however, themeaning should be the ordinary one, signifying something different from that which isgenerally done.”). Permitting a death warrant to expire for no legal reason is the mostunusual action the State has ever undertaken. No one has heard of such an event in thehistory of Texas capital punishment. Because the unprecedented nature of this inactionresulted in the infliction of pain, it is unconstitutionally unusual under the TexasConstitution.

CLAIM SIX: THE CURRENTLY-ADMINISTERED LETHAL INJECTIONEXECUTION METHOD IN TEXAS VIOLATES THE EIGHTH ANDFOURTEENTH 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 theindependence of the Texas Constitution’s Cruel or Unusual Punishment Clause, but for purposesof brevity does not repeat them here. Claims Six and Seven are discussed at the same timebecause they both concern the constitutionality of the current method of execution in this state.


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. § 821.052(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.

§§ 828.058 and 828.065 (enacted in 1984); Georgia, Ga. Code Ann. § 4-11-5.1 (enacted


in 1990); Maine, Me.Rev.Stat. Ann., Tit. 17, § 1044 (enacted in 1987); Maryland,

Md.Code Ann., Criminal Law, § 10-611 (enacted in 2002); Massachusetts,

Mass.Gen.Laws § 140:151A (enacted in 1985); New Jersey, N.J.S.A. 4:22-19.3 (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. § 44-17-303 (enacted in

2001). Other States have implicitly banned such practices. See Illinois, 510 Ill. Comp.

Stat., ch. 70, § 2.09; Kansas, Kan. Stat. Ann. § 47-1718(a); Louisiana, La. Rev. Stat. Ann.

§ 3:2465; Missouri, 2 CSR 30-9.020(F)(5); Rhode Island, R.I. Gen. Laws § 4-1-34,

Connecticut, Conn. Gen.Stat. § 22-344a; Delaware, Del.Code Ann., Tit. 3, § 8001;

Kentucky, Ky.Rev.Stat. Ann. § 321.181(17) and 201 KAR 16:090, § 5(1); South

Carolina, S.C.Code Ann. § 47-3-420. 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


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 1191. 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, 311-12 (2002)(quoting Trop v. Dulles, 356 U.S. 86, 100-101(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


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 informedby objective factors to the maximum possible extent[.] We have pinpointedthat the clearest and most reliable objective evidence of contemporaryvalues 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


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


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


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


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 (6th Cir. 2000), cert. granted on other grounds, 122 S.Ct. 1463 (U.S. April 8, 2002)

(No. 01-9094).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, 50th Ed. (1996) at 438-40.

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 executedindividuals. The refusal to collect any post-mortem data precludes any direct evidence that thedosage of the sedative ensures that no inmates has suffered the fate of being killed while awakeand paralyzed.


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 perfusionist4 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 ascarried out during the death penalty, potassium (and other agents) areadministered intravenously to the defendant. Such administration is, in myprofessional opinion based upon my knowledge, training, and experience,and within a reasonable degree of medical certainty, entirely inadequate inorder to achieve reasonable cardiac standstill. Since the agents areintroduced intravenously, there will occur an immediate dilution of thesolution, weakening any potential effect it may have. By illustration an 80kilogram person would have a blood volume of approximately 5.5 to 6liters. An administration of 100 milli-equivalents of potassiumintravenously to the 80 kilogram person would result in a bloodconcentration of only 16.6 meq/L. Such a dose is according to scientificliterature . . . and as evidenced in my practice, inadequate to achieve cardiacstandstill.

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 commonlyused during open-heart surgeries of all kinds. The arena involving the chemical arrest of theheart lies uniquely within the practice of the clinical perfusionist.


Furthermore, it must be remembered that [in contrast to the administrationof potassium chloride in the surgical context] such administration is: (1)NOT DIRECTED INTO THE CORONARY ARTERIES; (2) DIRECTEDONLY IN AN ANTEGRADE FASHION; AND (3) IS ATMORMOTHERMIA (37 degrees Celsius, NOT at five degrees Celsius).Without reasonable data regarding any one person’s anatomic andpathologic state as to their myocardial function prior to administration ofthe potassium, there can be no reasonable certainty that the potassiumsolution intended to arrest the heart would be distributed in a fashion thatwould arrest the heart. Thus, the very orchestrated and methodical methodsused in surgery should not be thought of as optimizing the arrest of theheart, but should be considered to be necessary as the only reasonablemeans of ensuring that the heart is arrested. If the heart could be arrestedby intravenous objections, cardiac surgery today would be a very differentanimal – science and research tell us that mere intravenous injection ofpotassium 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 (6th Cir.

2000), cert. granted on other grounds, 122 S.Ct. 1463 (U.S. April 8, 2002) (No. 01-9094)

(emphasis added).

Events in the death chamber over the years confirm the likelihood that Texas iscruelly killing inmates meant to experience a humane execution. Examples include:5

5 Sources for this information include: Michael Radelet, On Botched Executions, Peter


Raymond Landry — December 13, 1988 – Pronounced dead 40 minutesafter being strapped to the execution gurney and 24 minutes after the drugsfirst started flowing into his arms. Two minutes into the killing, the syringecame out of Landry’s vein, spraying the deadly chemicals across the roomtoward the witnesses. The execution team had to reinsert the catheter intothe vein. The curtain was drawn for 14 minutes so witnesses could not seethe intermission.

Stephen McCoy — May 24, 1989 – Had such a violent physical reaction tothe drugs (heaving chest, gasping, choking, etc.) that one of the witnesses(male) fainted, crashing into and knocking over another witness. Houstonattorney Karen Zellars, who represented McCoy and witnessed theexecution, thought that the fainting would catalyze a chain reaction. TheTexas Attorney General admitted the inmate “seemed to have a somewhatstronger reaction,” adding “The drugs might have been administered in aheavier dose or more rapidly.”

Justin Lee May – May 7, 1992 – May had an unusually violent reaction tothe lethal drugs. According to Robert Wernsman, a reporter for the Item(Huntsville), Mr. May “gasped, coughed and reared against his heavyleather restraints, coughing once again before his body froze . . . .”Associated Press reporter Michael Graczyk wrote, “He went into coughingspasms, groaned and gasped, lifted his head from the death chamber gurneyand would have arched his back if he had not been belted down. After hestopped 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 1989. Alberta Phillips, Editorial, Questioning the Myth of

Painless Execution, AUSTIN AMERICAN-STATESMAN, Dec. 11, 2003. Rev. Pickett

Hodgkinson and William Schabas (eds.); Capital Punishment: Strategies for Abolition(Cambridge University Press, 2001); and Stephen Trombley, The Execution Protocol (1992).


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 aboutseven to 12 seconds and you will be asleep. Don’t worry. You’ve alreadydone 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 ofthe 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 soyou 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 sodiumthiopental flowed through one of the young man’s veins. Pickett could feelCarlos’ 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 anagonizing death due to the use of pancuronium bromide, which is outlawedin Texas for euthanizing animals in shelters. If he is right, Carlos wasawake 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 andwrestles with his conscience about whether he misled the young man abouthis execution being swift and painless – like falling asleep.

“He gave me a look in his face, which I interpreted to mean, ‘Did you tellme the truth? Because this is taking longer than 7 seconds.’”


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, 2004. 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. HAMPTON1103 Nueces StreetAustin, Texas 78701(512) 476-8484(512) 762-6170 (cell phone)Texas Bar. No. 08873230


filed this date, January 23, 2004.


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 theauthority to prepare and to verify Mr. Vicker’s Successor Application forPost-Conviction Writ of Habeas Corpus.

3. I have helped to prepare and have read the foregoing Successor Applicationfor Post-Conviction Writ of Habeas Corpus, and I believe all the allegationstherein to be true and correct.

KEITH S. HAMPTON1103 Nueces StreetAustin, Texas 78701(512) 476-8484(512) 762-6170 (cell phone)Texas Bar. No. 08873230

SUBSCRIBED AND SWORN TO BEFORE ME on January 23, 2004.

_________________________________Notary Public, State of Texas

CERTIFICATE OF SERVICE: By my signature above, I hereby certify that onthis day, January 23, 2004, a true and correct copy of the foregoing pleading was servedby Fed-ex to

Mr. J. Kerye Ashmore, 119 Norht Main Street, Paris, Texas 75460 and faxed toJudge Lovett as well.

Documents

EX PARTE - alt.coxnewsweb.comalt.coxnewsweb.com/statesman/metro/012604vickers_writ.pdf · EX PARTE § IN THE 6th ... BILLY FRANK VICKERS § LAMAR COUNTY, TEXAS APPLICATION FOR WRIT