wellons - scotus cert petition

8/12/2019 Wellons - SCOTUS Cert Petition

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No. ___________

In the Supreme Court of the United States

October Term, 2013 ____________________________

MARCUS A. WELLONS ,

Petitioner,

V.

BRIAN OWENS , Commissioner, Georgia Department of Corrections,

BRUCE CHATMAN , Warden, Georgia Diagnostic and Classification Prison, and

OTHER U NKNOWN EMPLOYEES AND AGENTS , Georgia Department of Corrections,

Respondents. _____________________________

On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Eleventh Circuit

_____________________________

PETITION FOR A WRIT OF CERTIORARI _____________________________

Gerald W. King Jr. (Ga. Bar No. 140981) Mary Elizabeth Wells (Ga. Bar No. 747852)Jeffrey Lyn Ertel (Ga. Bar No. 249966) Law Office of M.E. WellsFederal Defender Program, Inc. 623 Grant Street, SE101 Marietta Street, Suite 1500 Atlanta, GA 30313Atlanta, GA 30303 (404) 408-2180(404) 688-7530

Counsel of Record for Petitioner


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CAPITAL CASE

QUESTIONS PRESENTED

Appellants refuse to disclose the provenance of the compounded drugs or thequalifications of the personnel who will administer them when executing Mr. Wellons bylethal injection this evening.

1) Does Appellants refusal to disclose information necessary to determine whether their chosen method of execution will create a substantial risk of significant harm violateMr. Wellonss rights pursuant to the Eighth and Fourteenth Amendments to theUnited States Constitution?

2) Does Appellants refusal to disclose information necessary to determine whether their chosen method of execution will create a substantial risk of significant harmdeprive him of due process of law and access to the courts in violation of Mr.Wellonss rights pursuant to the Fifth and Fourteenth Amendments to the UnitedStates Constitution?

3) Does Appellants refusal to allow access to information about a governmental proceeding of public interest and to which the public has traditionally had accessviolate Mr. Wellonss rights pursuant to the First Amendment to the United StatesConstitution?

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MARCUS A. WELLONS petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The decision of the United States District Court for the Northern District of Georgia

denying Mr. Wellonss action pursuant to 42 U.S.C. 1983, Wellons v. Owens , et al. , Civil

Action No. 1:14-CV-1827-WBH, appears as Exhibit 1 to this petition. The decision of the

Eleventh Circuit, Wellons v. Owens , et al. , *, appears as Exhibit 2 to this petition.

JURISDICTION

The decision of the Eleventh Circuit was entered on June 17, 2014. Mr. Wellons

invokes the jurisdiction of this Court pursuant to 28 U.S.C. 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment I to the United States Constitution provides, in relevant part: Congress

shall make no law . . . abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the government for a redress of grievances.

U.S. CONST . art. I.

Amendment V to the United States Constitution provides, in relevant part: No person

. . . shall be deprived of life, liberty, or property without due process of law . . . . U.S.

CONST . art. V.

Amendment VIII to the United States Constitution provides: Excessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S.

CONST . art. VIII.


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Amendment XIV to the United States Constitution, section 1, provides, in relevant

part: Nor shall any State deprive any person of life, liberty, or property without due process

of law, nor deny to any person within its jurisdiction the equal protection of the laws. U.S.

CONST . art. XIV, cl. 1.

O.C.G.A. 42-5-36(d) provides:

(1) As used in this subsection, the term 'identifying information' means anyrecords or information that reveals a name, residential or business address,residential or business telephone number, day and month of birth, socialsecurity number, or professional qualifications.

(2) The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying informationof any person or entity that manufactures, supplies, compounds, or prescribesthe drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosureunder Article 4 of Chapter 18 of Title 50 or under judicial process. Suchinformation shall be classified as a confidential state secret.

O.C.G.A. 42-5-36 (d).

STATEMENT OF THE CASE

Respondents have told Plaintiff Marcus Wellons that they will execute him by lethal

injection at 7:00 p.m. today. They will tell him little more. Instead, Respondents rely upon

Georgias new lethal injection secrecy act to shield critical aspects of their execution

procedures from scrutiny by Mr. Wellons, the public, and the courts. Respondents refuse to

disclose the provenance and true nature of the substance with which they will inject Mr.

Wellons to end his life. Nor will they confirm the qualifications of the personnel whom they

have delegated to carry out his execution, including those who will place the catheters into

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his veins.

In his underlying complaint, Mr. Wellons challenges neither the conviction underlying

his sentence of death nor that sentence itself. Nor does he allege that lethal injection as a

form of execution is per se unconstitutional. But Respondents refusal to disclose these

critical aspects of their lethal injection procedures deprives him and the courts of the

information necessary to determine whether those procedures present a substantial risk of

significant harm in violation of his Eighth Amendment rights a risk recently underscored

by Oklahomas secretive and botched execution of Clayton Lockett. It also deprives Mr.

Wellons of his First Amendment right of access to governmental proceedings. Accordingly,

as Respondents conduct cannot be sanctioned by the Constitution, this Court should grant

certiorari review.

Course of Proceedings and Statement of Facts

Mr. Wellons was convicted of malice murder and rape and sentenced to death in the

Superior Court of Cobb County in 1993. The Supreme Court of Georgia affirmed Mr.

Wellonss convictions and sentences, Wellons v. State , 463 S.E.2d 868 (1995), and this Court

denied Mr. Wellonss certiorari petition, Wellons v. Georgia , 519 U.S. 830 (1996). Mr.

Wellons sought state habeas corpus relief, which was denied. Mr. Wellons filed a petition

for writ of habeas corpus in the District Court for the Northern District of Georgia which was

denied. The Eleventh Circuit Court of Appeals affirmed the denial of relief on June 25,

2010. Wellons v. Hall , 554 F.3d 923 (11th Cir. 2006). This Court granted Mr. Wellonss

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petition for writ of certiorari and remanded Mr. Wellonss case for further consideration.

Wellons v. Hall , 558 U.S. 220 (2010). After the Eleventh Court remanded Mr. Wellonss1

case to the district court for further proceedings consistent with the Supreme Courts

opinion, Wellons v. Hall , 603 F. 3d 1326 (11 Cir. 2010), that court entered its order and

judgment denying habeas corpus relief on August 5, 2011. The Eleventh Circuit affirmed

the district courts denial of Mr. Wellonss habeas petition on September 19, 2012

(D153-Appendix A). This Court denied his petition for a writ of certiorari on October 7,

2013. Wellons v. Humphrey, 134 S.Ct. 177 (2013). Pursuant to an order entered by the

Superior Court of Cobb County on May 28, 2014, Appellants have scheduled Mr. Wellons

for execution on June 17, 2014.

On June 12, 2014, Mr. Wellons filed a complaint pursuant to 42 U.S.C. 1983 in the

United States District Court for the Northern District of Georgia seeking declaratory and

injunctive relief. Mr. Wellons concurrently a motion for a temporary restraining order and

stay of execution. That Court denied that motion and granted Appellants motion to dismiss

This Court found no procedural bar for Mr. Wellonss claims of judge, juror, and1

bailiff misconduct, which centered upon unreported ex parte contacts between the jury andthe judge, that jurors and a bailiff had planned a reunion, and that either during or immediately following the penalty phase, some jury members gave the trial judge chocolateshaped as male genitalia and the bailiff chocolate shaped as female breasts . . . . Wellons,

558 U.S. 220 (From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity andrespect).

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on June 16, 2014. Earlier today, Mr. Wellons appealed that judgment to the Eleventh Circuit

Court of Appeals. That Court *denied his appeal. This timely petition for a writ of certiorari

follows.

Summary of Factual Allegations

Only Appellees know exactly how they plan to execute Mr. Wellons on Tuesday night.

In refusing to disclose information about the provenance of their lethal injection drugs,

Appellees rely upon O.C.G.A. 42-5-36, a measure adopted by the Georgia Legislature in

March of 2013 that classifies all identifying information about a person or entity who

participates in or administers the execution of a death sentence . . . [or] that manufactures,

supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment used

in an execution as a confidential state secret not subject to disclosure through Georgias

Open Records Act or judicial process . O.C.G.A. 42-5-36 (d); see also Rhonda Cook and

Bill Rankin, Lethal injection secrecy bill wins approval , ATLANTA JOURNAL -CONSTITUTION

(March 26, 2013). Identifying information includes professional qualifications.2

Accordingly, Appellees have asserted that this statute excuses them from disclosing any

information concerning the origins of their lethal injection drugs or, for that matter, the

qualifications of those personnel whom they designate to administer the execution.

This lethal injection secrecy act was adopted following a series of embarrassing and

Available at: http://www.ajc.com/news/news/state-regional-govt-politics/2

lethal-injection-secrecy-bill-wins-approval/nW4tK/ (Last visited June 10, 2014).

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potentially-illegal missteps by the Appellees as they attempted to obtain drugs for use in

lethal injections in spite of widespread shortages. In their seemingly-desperate quest to

continue executions unabated, Appellees have run afoul of the Drug Enforcement

Administration by illegally importing sodium thiopental. They have also repeatedly and

abruptly altered their lethal injection procedures in spite of a series of botched executions,

once changing their protocol on the very eve of an execution. Rather than be chastened by

these experiences, however, Appellees have evidently decided that the solution to their

problems with lethal injection is to shield their procedures from scrutiny and prevent further

discovery of their errors or improprieties by the public or the courts.

Indeed, the only information Appellees have divulged concerning the substances that

they intend to use in Mr. Wellonss execution is a copy of the lethal injection procedures that

they adopted on July 17, 2012. See Letter from Wilson to Munro of 05/27/2014 (attached

as Ex. 3) at 000005-000017. These procedures outline a one-drug lethal injection protocol

featuring Pentobarbital. Id. As Appellees have not had any FDA-approved Pentobarbital

in their possession since March of 2013 , Mr. Wellons suspects that Appellees will use a3

substance that purports to be pentobarbital, but that has been manufactured from unknown

ingredients and in unknown circumstances by a compounding pharmacy. The considerable4

Discussed infra at 11-15.3

Counsel for Appellees has indicated to Mr. Wellonss counsel that they have obtained4

Pentobarbital for his execution.

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risks presented by compounded pentobarbital are discussed infra at *19-25. 5

Further, the statute shields not only the source of the execution drugs, but the

qualifications of the personnel whom Appellees have charged with administering the lethal

injection drugs. This is not an abstract concern. As is discussed infra at 25-32, the

consequences of error in the placement of the intravenous lines during an execution include

suffering that cannot be sanctioned by the Eighth Amendment, as illustrated by Floridas

botched execution of Angel Diaz and Oklahomas botched execution of Clayton Lockett.

The Lethal Injection Secrecy Act Will Conceal FutureMisconduct by Appellees

Any assessment of either the legitimacy of the statute or Appellees motivations in

passing it must account for Georgias checkered history with lethal injection. In the last

several years, there have been widespread shortages of the drugs favored by Georgia and

As Mr. Wellons noted in his complaint below, Georgias lethal injection statute does5

not limit the drugs that the Appellees can use when carrying out executions beyond requiringthat they use a substance or substances sufficient to cause death . . . . O.C.G.A. 17-10-38(a), and the Supreme Court of Georgia has empowered Appellees to change their protocolat will and at any time with no supervision from any other entity or meaningful notice to the

prisoner or the public. Hill v. Owens, 292 Ga. 380 (2013)(as [t]he particular issue of lethalinjection procedures is heavily litigated and closely scrutinized by state and federal courtsthroughout the nation , including this Court. . . . judicial review and oversight of theDepartment of Corrections procedures is preferable to APA administrative proceedings).

Mr. Wellons accordingly raised the concern that if Appellees opted to change their protocolat the last minute as they attempted to do on the eve of a scheduled execution in July of 2012 even the little information that Mr. Wellons he had would become obsolete beforeJune 17. In the proceeding below, counsel for Appellees represented as an officer of thecourt that Appellees will execute Mr. Wellons pursuant to their protocol they provided tohim. It is telling, however, that only a lawsuit could compel that commitment.

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other states for use in executions. Appellees conduct in the face of these shortages suggests

that their primary goal is to carry out executions as rapidly as possible, with little regard for

the safety and efficacy of these drugs or, indeed, the laws that regulate them.

Beginning in 2010, Georgia was faced with an acute nationwide shortage of sodium

thiopental, the first of the three drugs that it administered to prisoners during lethal injections

under its then-protocol. See, e.g., Carol Williams, Maker of Anesthetic Used in Executions

is Discontinuing Drug , LOS A NGELES TIMES , January 22, 2011. When the FDA placed an6

administrative hold upon a shipment of imported sodium thiopental that Georgia and several

other states had ordered through a U.S. pharmacy, Appellees opted to circumvent federal law

governing the importation of controlled substances by directly purchasing a supply of

mislabeled sodium thiopental for use in lethal injections from Dream Pharma, Inc., a fly-by-

night pharmaceutical wholesaler/distributor which operated out of a storefront driving school

in London, England. Appellees chose this course despite the fact that they were not

registered with the Drug Enforcement Agency (DEA) as an importer of non-narcotic

controlled substances and did not provide a declaration of importation to the DEA. On7

March 16, 2011, after the Attorney General was notified of Georgias illegal importation, the

DEA seized Georgias entire supply of thiopental. Bill Rankin et al., DEA seizes Georgias

Available at: http://articles.latimes.com/2011/jan/22/local/la-me-execution-6

drug-20110122 (Last visited June 10, 2014).

Nor did Georgia possess a DEA license to possess, dispense, or distribute a Schedule7

III non-narcotic controlled substance such as thiopental.

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supply of lethal injection drug , ATLANTA JOURNAL -CONSTITUTION (March 16, 2011). 8

Unfortunately, this thiopental of questionable provenance had already been used in the

executions of Brandon Rhode and Emanuel Hammond, both of whom appeared to remain

conscious throughout their executions. 9

Following the seizure, Appellees altered its three-drug lethal injection protocol to

replace thiopental with pentobarbital, a barbiturate and controlled substance. Appellees made

this substitution despite the fact that the sole manufacturer of FDA-approved pentobarbital,

Lundbeck Inc., warned them that the drug was not safe for use in judicial lethal injections,

as it had not been tested for the induction of anesthetic comas in humans. Sten Stovall,

LundbeckHorrified at Drug Execution Use , WALL STREET JOURNAL (June 8, 2011). 10

Appellees ignored this caution and, on June 23, 2011, executed Roy Blankenship pursuant

to their new protocol. An AP reporter who witnessed the execution offered the following

account of Mr. Blankenships reaction:

Available at: http://www.ajc.com/news/news/local/dea-seizes-georgias-8

supply-of-lethal-injection-dru/nQrdf/ (Last visited June 10, 2014).

On September 27, 2010, Georgia used its illegally-imported thiopental in its9

execution of Brandon Rhode. Mr. Rhodes eyes remained open throughout his execution,which strongly suggested that he was conscious after the administration of thiopental. OnJanuary 25, 2011, Georgia executed Emanuel Hammond with the same batch of thiopental;Mr. Hammond opened his eyes and grimaced after the injection of the thiopental, suggestingthat he was inadequately sedated. Liliana Segura, the Executioners Dilemma , the Nation(May 12, 2011), available at: http://www.thenation.com/article/160648/executioners-dilemma# (Last visited June 10, 2014).

Available at: http://online.wsj.com/article/10

SB10001424052702304259304576373020954841208.html (Last visited June 10, 2014).

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As the injection began, [Blankenship] jerked his head toward his left arm andmade a startled face while blinking rapidly. He soon lurched to his right arm,lunging with his mouth agape twice. He then held his head up, and his chinsmacked as he mouthed words that were inaudible to observers . . . . His eyesnever closed.

Greg Bluestein, Ga. Executes inmate convicted of Savannah slaying , THE ATLANTA

JOURNAL -CONSTITUTION (June 23, 2011). As another eyewitness said of the execution,

Blankenship was apparently much more aware of his surroundings at a time when he

shouldnt have been. Eddie Ledbetter, Making a date with death , STATESBORO HERALD

(June 25, 2011).

Lundbeck announced on July 1, 2011, that it was establishing a new distribution

system to deny orders from prisons located in states currently active in carrying out death

sentences and prohibiting the redistribution of pentobarbital without its authorization.

Jeanne Whalen and Nathan Koppel, Lundbeck Seeks to Curb Use of Drug in Executions ,

WALL STREET JOURNAL (July 1, 2011). Undaunted, Appellees used the same protocol in11

short order to carry out the executions of Andrew DeYoung on July 21, 2011, and Troy Davis

on September 21, 2011.

Appellees hastily adopted a new, one-drug lethal injection protocol at approximately

noon on July 17, 2012 the day before the scheduled execution of Warren Hill. Rhonda

Cook and Bill Rankin, State changes lethal injection protocol, reschedules execution ,

Available at: http://online.wsj.com/article/11

SB10001424052702304584004576419092675627536.html (Last visited June 10, 2014).

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ATLANTA JOURNAL -CONSTITUTION (July 17, 2012). While Appellees offered no12

explanation for this eleventh-hour change, later reports revealed that Georgias supply of

pancuronium bromide the second drug administered pursuant to its now-abandoned

three-drug protocol had expired on July 1, 2012, some two weeks before Mr. Hills

scheduled execution. Rhonda Cook, Expired drugs led to cancellation of execution by lethal

injection , ATLANTA JOURNAL -CONSTITUTION (Aug. 2, 2012). 13

Following litigation over whether state law prohibited Georgia from changing its

protocol without complying with the notice-and-comment procedures of its Administrative

Procedures Act , Appellees promptly scheduled two executions: Warren Hill for February14

19, 2013, and Andrew Cook on February 21, 2013. It is worth noting that Appellees

decision to schedule Mr. Hill and Mr. Cooks executions within days of each other appears

to have been based upon its mistaken belief that its supply of pentobarbital expired on March

1, 2013; it actually expired on March 31. Ed Pilkington, Georgia rushes through executions

before lethal injection drugs expire , THE GUARDIAN (February 21, 2013)(Georgia confirmed

Mr. Hills execution was ultimately stayed by the Supreme Court of Georgia. The12

last-minute protocol adopted by Appellees for his execution is the same one that they haveindicated they will use to execute Mr. Wellons. See Ex. 3 at 000005-000017.

Available at: http://www.ajc.com/news/news/local/expired-drugs-led-to-13

cancellation-of-execution-by-/nQXhn/ (Last visited June 10, 2014).

See discussion supra at 8-9 and n. 6.14

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to the Guardian that its entire supply of pentobarbital expires on 1 March). While Mr.15

Hills execution was stayed, Mr. Cook was executed pursuant to the novel protocol.

Shortly thereafter, in March of 2013, the Georgia Legislature adopted the lethal

injection secrecy act. O.C.G.A. 42-5-36 (d); see also Rhonda Cook and Bill Rankin, Lethal

injection secrecy bill wins approval , ATLANTA JOURNAL -CONSTITUTION (March 26, 2013). 16

As contemporaneous media accounts noted, the legislation had two purposes:

The legislation should make it easier for Georgia to obtain lethal-injectiondrugs as companies worldwide, in the face of strong criticism from opponentsof capital punishment, have either stopped making lethal injection drugs or forbidden such drugs from being used for executions . . . . [and] is alsoexpected to make it more difficult for lawyers representing death-row inmatesto challenge the states lethal-injection process.

Ibid (emphasis added). Indeed, these same reports suggest that Georgia first erected its

lethal-injection-secrecy legislation in order to shield itself and the compounding pharmacies

with which it might work from the legal and public relations problems with a local

pharmacist making up a batch of lethal injection drug on a case-by-case basis. Rhonda

Cook, Compounding pharmacies may be source of lethal injection drugs , ATLANTA

JOURNAL CONSTITUTION (April 27, 2013)(emphasis added). Interviews with the17

Available at: http://www.guardian.co.uk/world/2013/feb/21/georgia-15

executions-lethal-injection-drug-pentobarbital (Last visited June 10, 2014).

Available at: http://www.ajc.com/news/news/state-regional-govt-politics/16

lethal-injection-secrecy-bill-wins-approval/nW4tK/ (Last visited June 10, 2014).

Available at: http://www.myajc.com/news/news/state-regional/17

compounding-pharmacies-may-be-source-of-lethal-inj/nXXxT/ (Last visited June 10, 2014).

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legislations sponsor confirmed this motivation:

The state would be pressed [to obtain drugs] if . . . executions [were]scheduled in the near future. Thats why its important for the state to shieldthe identities of doctors, pharmacists or drug providers that could be involvedwith procuring lethal injection drugs, said State Rep. Kevin Tanner, R-Dawsonville. He sponsored the legislation to keep those identities secret,expecting the state will have to turn to a pharmacist .

Id.

The act took effect on July 1, 2013. Two days later, on July 3, the Superior Court of

Lee County, Georgia, issued an execution warrant for Mr. Hill, and Appellees set his

execution for July 15. Rhonda Cook, Execution date set for Warren Hill, ATLANTA

JOURNAL CONSTITUTION (July 3, 2013). On July 10, the Georgia Department of 18

Corrections responded to an Open Records Act request made on behalf of Mr. Hill with

redacted documents that failed to disclose the identities of the manufacturer, individuals or

entities in the chain of supply, prescriber, compounding pharmacy, or pharmacist responsible

for making the drugs available to the Department of Corrections for Mr. Hills execution. See

Letter from Wilson to Painter of 07/10/2013 (attached as Ex. 4). The Department of

Corrections expressly relied on O.C.G.A. 42-5-36 as the justification for redacting this

information. Id. at 000001-000005.

The documents nonetheless revealed that beginning on July 2, Defendant GDC had

quickly entered into agreements with an unknown compounding pharmacy and an unknown

Available at http://www.ajc.com/news/news/state-regional/execution-18

date-set-for-warren-hill/nYc4m/ (Last visited June 10, 2014).

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prescriber of drugs in order to procure pentobarbital for the execution of Mr. Hill, which was

then scheduled for July 15, 2013. Ex. 4 at 000005-000039. Under the terms of Appellees

proposed Professional Services Agreement with this prescriber which, if signed, would be

effective through June 30, 2014 Appellees agreed to pay him or her a sum of $5,000 per

annum in exchange for writing the prescriptions they require to obtain their lethal injection

drugs. Ex. 4 at 000025-000026. They also offered to provide the prescriber with a litigation

reserve fund of $50,000 and add the prescriber to the Georgia Department of Administrative

Services General Liability Policy, insuring him or her for acts of medical negligence and

omissions in the amount of $1,000,000 per person and $3,000,000 per occurrence. Id. 19

Mr. Hill subsequently filed a declaratory judgment action in the Superior Court of

Fulton County that, pursuant to O.C.G.A. 9-4-1 et seq ., challenged the Constitutionality of

O.C.G.A. 42-5-36(d). The Superior Court granted Mr. Hills concurrently-filed request for

In their correspondence with the prescriber, Appellees attempt to reassure him or her 19

of the legality of the arrangement by citing and attaching Section 17-10-38 of the GeorgiaCode, which reads:

Notwithstanding any other provision of law, prescription, preparation,compounding, dispensing, or administration of a lethal injection authorized bya sentence of death by a court of competent jurisdiction shall not constitute the

practice of medicine or any other profession relating to health care which issubject by law to regulation, licensure, or certification.

O.C.G.A. 17-10-38(c)(emphasis added); see Ex. 4 at 000022-000032. Tellingly, Appelleesalso reassure the prescriber that his or her arrangement with Appellees will never bediscovered, citing O.C.G.A. 42-5-36 for the proposition that the identifying informationabout any person or entity assisting in this process is a confidential state secret. Ex. 4 at000022.

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an injunction to maintain the status quo until such time as the court could rule upon the

merits of his Complaint for declaratory judgment, which the Supreme Court of Georgia

overturned on interlocutory review on May 19, 2014. Owens v. Hill , No. S14A0092, ---

S.E.2d ----, 2014 WL 2025129 (Ga. May 19, 2014). Mr. Wellonss execution warrant

followed nine days later. As noted supra , Appellees have subsequently refused to disclose

any documents even redacted ones concerning the sources of their lethal injection drugs.

Ex. 3 at 000002-000004.

The Risks of Compounded Pentobarbital

The simple truth about any drug is that unless you know how it was made where,

and from what, and by whom you cannot know what it is. A drug approved by the Food

and Drug Administration provides those assurances. However, [t]he true contents of

pharmacy-compounded pentobarbital injection, or any pharmacy-compounded drug, prepared

from a non-sterile API are unknown. Declaration of Dr. Larry Sasich (Sasich

Decl.)(attached as Ex. 5) at 9. Accordingly, Appellees decision to use compounded20

pentobarbital from an undisclosed source poses a substantial threat of undue pain and

suffering to Mr. Wellons.

The compounding pharmacy industry operates in a grey market that is not subject

to the FDAs drug-approval process or manufacturing standards. Sasich Decl. at 4. To

Mr. Wellons has attached the Declaration of Dr. Larry Sasich, a pharmacist and20

consultant specializing in drug safety and efficacy. The parties agreed to stipulate that thedeclarations of Dr. Sasich and Dr. Katz would be accepted as testimony.

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receive FDA approval, injectable drugs must be sterile and meet other stringent requirements

for quality, purity, and stability. Sasich Decl. at 5. These requirements are not luxuries. They

exist because [c]ountless members of the public have suffered and experienced pain before

science-based federal regulations were implemented to protect the public from what had

become the obvious hazards of injectable drugs contaminated with fungi, bacteria, and other

contaminates. Id. at 6.

Indeed, pharmacists began compounding drugs not because they considered FDA-

approval unimportant, but because the needs of some patients could not be met by FDA-

approved products due to medical reasons. Id. at 2 (For example, a two-year-old transplant

patient may require a medication that is only available in an FDA-approved tablet form. In

such a case, tablets may be reformulated into an oral liquid for administration.). This

practice knowingly compromised federal standards, but only because it was necessary in

order to meet critical medical needs. Id. Drug compounding has now grown, however, into

an industry that manufactures what purport to be copies of FDA-approved products, but that

are produced through manufacturing processes that are not federally regulated. Id. Because

compounding pharmacies are not subject to FDAs drug approval process, rigorous checks,

and regulatory procedures, even a compounding pharmacy operating in good faith can make

critical mistakes that it lacks the capacity to detect until the damage has been done. Id.

For example, compounding pharmacies generally are unable to test chemicals to

confirm their identity, potency, and purity, and to detect contamination. Id. at 4-5.

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Both a compromised API and improper compounding procedures can cause the pH of an

injectable drug to be unacceptable. Id. Contamination with endotoxins can elicit an

inflammatory reaction that causes shock. Id. Particulate matter contaminating sterile

injectable drugs can become lodged in small blood vessels to agonizing effect. Id.

Accordingly, there are parameters beyond [a compounding pharmacys] professional control

that build risk and uncertainty into all compounded products. Id. at 5. This, above all else,

is why FDA approval and oversight is necessary, and why Appellees decision to employ

these drugs behind a veil of secrecy cannot be tolerated.

State Board of Pharmacy Inspections Are Not Equivalent to FDA Approval

While some compounding pharmacies are subject to inspection by state pharmacy

boards, the level of scrutiny applied is insufficient to address the concerns detailed above.

An illustration of this can be found in a recent FDA Warning Letter issued to Grandpas

Compounding Pharmacy, Inc., in Placerville, California, on May 2, 2014, following a four-

day inspection in October of 2013. Id. at 7-8 and App. B. The FDA found serious

deficiencies in the pharmacys production of sterile drug products, including: that the

cleanroom where these products were being manipulated had air supply ductwork that was

held together with duct tape and contained an in-wall air conditioner that could introduce

outside air with unacceptable microbial and particulate levels; that operators were

manipulating these sterile drugs with their wrists and forearms exposed; and that the

pharmacy used tap water to clean the containers and closures intended for injectable drug

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products. Id. These deficiencies risk the contamination of compounded sterile products and

could pose a substantial risk of immediate harm and pain when injected. Id.

In light of these dangers, it is unsurprising that states using compounded drugs in

executions have seen botched executions. When Oklahoma executed Michael Lee Wilson

with compounded pentobarbital in January 2014, he cried out, I feel my whole body

burning! Charlotte Alter, Oklahoma Convict Who Felt Body Burning Executed With

Controversial Drug , TIME MAGAZINE (January 10, 2014). Mr. Wilsons reaction is21

consistent with exposure to contaminants introduced by the unsafe compounding of

Pentobarbital. Sasich Decl. at 6-7 (the injection used in Mr. Wilson's execution likely

contained cross-contaminates that he was allergic to, bacteria and endotoxins . . . . [and]

could have had an altered pH due to contaminates or inadequate procedures used in the

preparation of the drug.) Similarly, Jose Luis Villegas complained of a burning sensation

when Texas executed him with compounded pentobarbital in April of 2014. 22

Further, when Eric Robert was executed with compounded pentobarbital in South

Dakota in October 2013, he gasped and snorted heavily, turned a blue-purplish hue, and took

Available at: http://nation.time.com/2014/01/10/oklahoma-convict-who-21

felt-body-burning-executed-with-controversial-drug/ (Last visited June 9, 2014)

Vivian Kuo and Ralph Ellis, U.S. Supreme Court grants stay of excruciating 22

execution , CNN (May 21, 2014)(discussing Villegas execution), available athttp://www.cnn.com/2014/05/20/justice/missouri-videotaped-execution-russell-bucklew-duplicate-2/index.html (Last visited June 10, 2014)

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more than twenty minutes to die. These events were consistent with the administration of 23

a compounded drug that was contaminated or sub-potent. Sasich Decl. at 7. Subsequent

analysis of the States pentobarbital supply indicated that it was, in fact, contaminated with

fungi. 24

It is important to note that the risks detailed above are only those generally raised by

the use of drugs compounded in a pharmacy without FDA approval and regulation. Given

the lack of scrutiny of compounding pharmacies in general, the specific pharmacy used by

Appellees could present different and even graver risks. Appellees refusal to disclose

information about their pharmacy, however, will ensure that those risks do not come to light.

This Court cannot countenance the dangers that this secrecy presents.

The Risks of Botched Intravenous Lines

On April 29, 2014, the State of Oklahoma attempted to execute Clayton Lockett by

lethal injection. Instead, his execution was halted when he began to writhe and gasp after

he had already been declared unconscious and called out oh, man, according to witnesses.

Jill Johnson, Witnesses Describe Events Inside Chamber , KBLT NEWS ,23available at: http://www.kdlt.com/index.php?option=com_content&task=view&id=21169&Itemid=72 (Last visited June 10, 2014) ; see also Steve Young,

Execution: South Dakota Delivers Eric Robert His Death Wish , ARGUS LEADER .COM(Oct. 16, 2012), available at: http://www.argusleader.com/article/20121016/NEWS/

310160016/Execution-South-Dakota-delivers-Eric-Robert-his-death-wish (Lastvisited June 10, 2014).

See South Dakota Covers Up Source of DIY Death Penalty Drugs Ahead Of 24 Execution , R EPRIEVE (Oct. 30, 2012).Available at: http://www.reprieve.org.uk/press/2012_10_30_South_Dakota_execution_drugs/ (Last visited June 10, 2014).

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Erik Eckholm, One Execution Botched, Oklahoma Delays the Next , N.Y. TIMES (April 30,

2014). One media witness offered a minute-by-minute account of Mr. Locketts agony.25

6:33 p.m. The doctor checks Lockett a second time after a full minute withoutmovement. Mr. Lockett is unconscious, [Warden] Trammell states. It seemslike it took longer than expected for this to occur . . . .

6:36 p.m. Lockett kicks his right leg and his head rolls to the side. Hemumbles something we cant understand.

6:37 p.m. The inmates body starts writhing and bucking and it looks like hestrying to get up. Both arms are strapped down and several straps secure his

body to the gurney. He utters another unintelligible statement . . . .

6:38 p.m. Lockett is grimacing, grunting and lifting his head and shouldersentirely up from the gurney. He begins rolling his head from side to side. Heagain mumbles something we cant understand, except for the word man. Helifts his head and shoulders off the gurney several times, as if hes trying to situp. He appears to be in pain.

6:39 p.m. The physician walks around to Locketts right arm, lifts up the sheetand says something to Trammell. Were going to lower the blindstemporarily, she says. The blinds are lowered and we cant see what ishappening.

Ziva Branstetter, Eyewitness account: A minute-by-minute look at what happened during

Clayton Locketts execution , TULSA WORLD , May 1, 2014. Mr. Lockett continued to writhe26

in agony for thirty minutes. Id. The Oklahoma Department of Corrections later announced

(available at: http://www.nytimes.com/2014/04/30/us/oklahoma-25

executions.html (Last visited June 10, 2014); see also Erik Eckholm and John Schwartz,Timeline Describes Frantic Scene at Oklahoma Execution , N.Y. TIMES (May 1, 2014).

Available at: http://www.tulsaworld.com/news/state/eyewitness-account-a-26

minute-by-minute-look-at-what-happened/article_f7764efc-d036-11e3-af7e-0017a43b2370.html (Last visited June 10, 2014)

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that Mr. Lockett had died in the execution chamber of a heart attack at 7:06 p.m. Id.

It seems indisputable that Mr. Locketts execution violated his Eighth Amendment

rights. Erik Eckholm & Motoko Rich, Oklahoma Faces Sharp Scrutiny Over Botched

Execution , N.Y. TIMES , (April 30, 2014)(As [Mr. Lockett] began to buck and moan in

apparent agony, corrections officials pulled the blinds on witnesses.) While the27

explanation for why Mr. Locketts execution went so horribly awry is not settled, an

independent autopsy of Clayton Lockett has confirmed that Oklahomas execution personnel

punctured Mr. Locketts femoral vein, which resulted in the lethal injection drugs entering

his subcutaneous tissue. Erik Eckholm, Defense Reports Puncture Led to Botched Execution ,

NEW YORK TIMES (June 13, 2014) ; see also Oklahoma, Investigating Failure, Extends28

Delay of Execution To November , N.Y. TIMES , May 8, 2014. Indeed, Oklahoma has29

disclosed that it took fifty-one minutes to insert an peripheral intravenous line, with the

execution team ultimately inserting it through his groin a more difficult procedure because

Available at: http://www.nytimes.com/2014/05/01/us/oklahoma-faces-sharp-27

scrutiny-over-botched-execution.html?hp. The White House joined those condemning theexecution, stating that the Lockett execution fell short of the countrys standard that evenwhen the death penalty is justified, it must be carried out humanely, and pledged to examineexecutions by lethal injections.

Available at: http://mobile.nytimes.com/2014/06/14/us/defense-exam-of-body28

-finds-punctured-vein-led-to-botched-execution.html?hpw&rref=us&_r=0&referrer= (Lastvisited: June 16, 2014).

Available at: http://www.nytimes.com/2014/05/09/us/oklahoma-attorney-general-29

agrees-to-6-month-delay-of-execution.html?src=rechp (Last visited June 10, 2014)) TheAttorney General of Oklahoma has consented to a six-month stay of executions while aninvestigation into Mr. Locketts execution is conducted.

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the intended vein is not visible. Id. This raises the question of whether the placement of

the intravenous line into Mr. Locketts groin was done by a person who lacked the necessary

qualifications to do it properly. The investigation into this possibility, however, will be

restricted by Oklahomas secrecy statute, which as with Georgias states that the sources

of the drugs used and the identities and qualifications of the participants in an execution are

confidential and shall not be subject to discovery in any civil or criminal proceedings.

Cary Aspinwall and Ziva Branstetter, Secrets still shroud Clayton Lockett's execution, Failed

IV line was started by a medical professional whose credentials are a secret under state law ,

TULSA WORLD (May 12, 2014). 30

Oklahomas botched execution of Mr. Lockett highlights the risks of Appellees

refusal to disclose the qualifications of the personnel who will prepare Mr. Wellons for his

execution. Pentobarbital is a barbiturate. Declaration of Dr. Eric Katz (Katz

Decl.)(attached as Ex. 6) at 3. When manufactured in accordance with FDA regulations,

Pentobarbital typically has a pH of 9.5, which qualifies it as a strong alkaline, or basic,

chemical. Katz Decl. at 6. It is, by nature, extremely caustic. Id. Accordingly, if 31

Pentobarbital were injected under the skin and not into a vein, it would cause severe and

Available at: http://m.tulsaworld.com/news/state/secrets-still-shroud-clayton-lockett-30

s-execution/article_5513ea6b-1f24-519e-9340-66c42b109502.html?mode=jqm)(Last visitedJune 10, 2014).

As noted supra at 22 , one risk associated with compounding pharmacies is errors31

in pH. Further, an increase of one number on the pH scale reflects a tenfold increase in thecausticity of the drug. Katz Decl. at 5, 6. Accordingly, small deviations in pH candramatically affect the causticity of the drug.

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agonizing chemical burns. Id.

Intravenous access is obtained by using a needle to introduce a catheter into either

a peripheral vein, typically in the arm or hand, or a central vein, typically in the neck, chest

or groin. Katz Decl. at 7. Training and regular experience is required in order to place

either type of line. Id. at 8. The medical standard of care for placement of a peripheral

line would require a professional technician or nurse with demonstrated competency with

the procedure, as the peripheral line is placed in a very small distal vein. Id. Trained and

experienced personnel are also needed in order to anticipate and address difficulties with

venous access. Id.

As placing a central line is a more complicated task, the standard of care would

require a doctor or specialized nurse who has completed specialized training and

demonstrated competence for that procedure. Id. at 9 (placement of central line requires

larger needle; must bore through skin and subcutaneous tissue to reach central vein). Further,

best practices call for ultrasound guidance in the placement of the line, as it can assist in

predicting both the patient's anatomy and any potential complications. Id. at 9. Far riskier

is an attempt to place a central line by feeling certain physical landmarks - a process called

blind placement . . . . Id.

An error in placing either kind of intravenous access would cause the chemical

solution being introduced to the patient to escape into his or her subcutaneous tissue

which, in the case of Pentobarbital, would cause excruciating pain and would diminish

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[its] efficacy . . . as it would be absorbed much more slowly. Id. at 10. Further, the

improper placement of a central line can have terrible consequences, including extraordinary

pain, damage to vascular and other tissues, embolisms, and death. Id. at 9.

Florida's botched execution of Angel Diaz in 2006 further illustrates the gruesome

consequences of the improper placement of an intravenous line by inexperienced or

unqualified personnel. In Mr. Diazs case, the misplaced line allowed the caustic lethal

injection drugs to leak into the soft tissue of his arms. The drugs accordingly failed to render

him unconscious while causing chemical burns so severe that a great deal of the skin on his

arms sloughed away, mutilating him. Mr. Diaz likely suffocated to death before the

execution drugs could end his life. Ben Crair, Photos from a Botched Lethal Injection , THE

NEW R EPUBLIC (May 29, 2014). Another consequence of unqualified execution team32

personnel is illustrated by the case of Romell Broom, whom Ohio attempted to execute in

2009. After Mr. Broom was brought to the execution chamber, the personnel on Ohios

execution team none of whom were qualified to insert an intravenous line stabbed him

with needles for an hour in an attempt to find a vein. The team ultimately brought in a prison

doctor to assist, but after another ninety minutes of futile attempts and a total of eighteen

needle sticks which left Mr. Broom in agony the governor halted his execution. In the

(available at: http://www.newrepublic.com/article/117898/lethal-injection-photos-32

angel-diazs-botched-execution-florida (Last visited: June 10, 2014). Mr. Wellons cautionsthe Court that the photos of the damage done to Mr. Diaz by the improperly-injected drugsare quite graphic.

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five years since, Ohio has been unable to schedule Mr. Brooms execution because of

litigation over whether a state can try again to execute a prisoner who survives the first

attempt, and whether the initial, failed attempt constitutes cruel and unusual punishment

an appeal that will soon go the Ohio Supreme Court. Stephanie Mencimer, Is it legal to try

executing someone twice? , MOTHER JONES (June 6, 2014). A similar situation could readily33

occur in Georgia, which might delay executions indefinitely.

Any one of these incidents should compel Appellees to provide, at the very least, the

qualifications of those members of the execution team responsible for inserting the catheters

into Mr. Wellonss body. Their refusal to do so cannot be reconciled with the Constitution.

REASONS FOR GRANTING THE WRIT

A. The Eighth Amendment Entitles Mr. Wellons to the Information Necessary to Determine if Georgias Method of Execution isCruel and Unusual

The Eighth Amendments prohibition against cruel and unusual punishment forbids

methods of execution that present a substantial risk of significant harm. U.S. Const. amend

VIII; Baze v. Rees , 553 U.S. 35, 50-52 (2008) (plurality opinion); see also in re Kemmler ,

136 U.S. 436, 447 (1890) (Punishments are cruel when they involve torture or a lingering

death). Implicit in that protection is a right to due process as to information about the

method and means by which the State proposes to mete out that punishment. Appellees

Available at: http://www.motherjones.com/politics/2014/06/romell-broom-ohio-33

execution (Last visited June 10, 2014).

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refusal to disclose the true nature of the drugs they will use to end Mr. Wellonss life and the

qualifications of those who will carry out the execution seeks to nullify those protections and,

accordingly, Mr. Wellonss rights.

This Court has not hesitated to recognize a due process right to the information

necessary to determine whether an Eighth Amendment violation exists. In Ford v.

Wainwright , 477 U.S. 399, 417-18 (1986), this Court held that the Eighth Amendments

prohibition against the execution of the insane entitled Mr. Ford to adequate procedures for

determining his sanity. Noting that [t]he fundamental requisite of due process of law is the

opportunity to be heard, this Court faulted the Florida procedure for its failure to include

the prisoner in the truth-seeking process in favor of an assessment conducted entirely by the

executive branch. Ford , 477 U.S. at 413. This Court wrote:34

[C]onsistent with the heightened concern for fairness and accuracy that hascharacterized our review of the process requisite to the taking of a human life,we believe that any procedure that precludes the prisoner or his counsel from

presenting material relevant to his [Eighth Amendment claim] or barsconsideration of that material by the factfinder is necessarily inadequate. Theminimum assurance that the life-and-death guess will be a truly informedguess requires respect for the basic ingredient of due process, namely, anopportunity to be allowed to substantiate a claim before it is rejected.

Id. at 414 (1986)(internal quotations omitted). Accordingly, this Court wrote:

[T]he lodestar of any effort to devise a procedure must be the overriding dualimperative of providing redress for those with substantial claims and of encouraging accuracy in the factfinding determination. The stakes are high,

Floridas practice did not permit any material relevant to the ultimate decision to be34

submitted on behalf of the prisoner facing execution. Id.

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and the evidence will always be imprecise. It is all the more important thatthe adversary presentation of relevant information be as unrestricted as

possible.

Ford , 477 U.S. at 417.

Similarly, in Morgan v. Illinois , this Court held that a criminal defendants Sixth

Amendment right to an impartial jury and the requirement of impartiality embodied in the

Due Process Clause of the Fourteenth Amendment in tandem entitled the defendant to

information about whether potential jurors would automatically vote for a death sentence in

every capital case, and required that the trial court afford him adequate process to conduct

voir dire and make challenges for cause. Morgan v. Illinois , 504 U.S. 719, 728-29

(1992)(the Sixth and Fourteenth Amendments . . . ensure the impartiality of any jury that

will undertake capital sentencing). As this Court noted, [w]ere voir dire not available to

lay bare the foundation of petitioners challenge for cause against those prospective jurors

who would always impose death following conviction, his right not to be tried by such jurors

would be rendered as nugatory . Id. at 733 (emphasis added).

Further, in Brady v. Maryland , 373 U.S. 83, 86 (1963), this Court held that due

process requires the government to disclose evidence which would tend to exculpate [the

defendant] or reduce the penalty. The underlying principles of Brady , which recognize that

the government cannot withhold information bearing upon the rights of a person whom they

wish to deprive of life or liberty, apply with equal force here.

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property, without due process of law); U.S. Const. amend XIV (1868) (nor shall any

State deprive any person of life, liberty, or property, without due process of law); see also

Adams v. United States ex rel. McCan , 317 U.S. 269, 276 (1942)(procedural devices rooted

in experience were written into the Bill of Rights not as abstract rubrics in an elegant code

but in order to assure fairness and justice before any person could be deprived of life,

liberty, or property.) Due process, unlike some legal rules, is not a technical conception

with a fixed content unrelated to time, place and circumstances. Mathews v. Eldridge , 424

U.S. 319, 334 (1976), quoting Cafeteria Workers v. McElroy , 367 U.S. 886, 895 (1961).

Rather, due process is flexible and calls for such procedural protections as the particular

situation demands. Id. , quoting Morrissey v. Brewer , 408 U.S. 471, 481 (1972). It is clear,

however, that due process entitles a person whose constitutional rights might be affected by

state actions to, at minimum, both notice of those actions and an opportunity to be heard at

a meaningful time and in a meaningful manner. Fuentes v. Shevin , 407 U.S. 67, 80

(1972)(emphasis added)(Parties whose rights are to be affected are entitled to be heard; and

in order that they may enjoy that right they must first be notified.)

This refusal also denies Mr. Wellons his constitutional right of access to the courts,

which, per this Court, must be adequate, effective, and meaningful. Bounds v. Smith , 430

U.S. 817, 822-23 (1977); see also Wolff v. McDonnell , 418 U.S. 539, 579 (1974)(right of

access to the courts . . . is founded in the Due Process Clause.) This right of access to

courts, thus, advances the due process notion that the aggrieved have a reasonably adequate

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opportunity to present claimed violations of fundamental constitutional rights to the courts.

Lewis v. Casey , 518 U.S. 343, 351 (1996) (quoting Bounds , 430 U.S. at 825); see also

Murray v. Giarratano , 492 U.S. 1, 11, n. 6 (1989)(plurality opinion)(access to courts a due

process right).

C. Appellees Refusal to Provide Plaintiff with InformationThat Would Enable Him to Determine How the StateIntends to Execute Him Denies Him His FirstAmendment Right of Access to GovernmentalProceedings.

This Court has long held that the First Amendment guarantees a qualified right of

access to governmental proceedings. PressEnter. Co. v. Superior Court , 478 U.S. 1, 814

(1986)(preliminary hearings); PressEnter. Co. v. Superior Court , 464 U.S. 501, 51011

(1984)( voir dire ); Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 60311

(1982)(testimony of child victim of sex offense); Richmond Newspapers, Inc. v. Virginia ,

448 U.S. 555, 579, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)(criminal trials).

This right of access is founded upon the common understanding that a major purpose

of the First Amendment was to protect the free discussion of governmental affairs . Globe

Newspaper , 457 U.S. at 604 (emphasis added)(internal citations omitted); quoting Mills v.

Alabama , 384 U.S. 214, 218 (1966). By offering such protection, the First Amendment

serves to ensure that the individual citizen can effectively participate in and contribute to our

republican system of self-government. Globe Newspaper Co. v. Superior Court for Norfolk

County , 457 U.S. 596, 604 (1982), citing Thornhill v. Alabama , 310 U.S. 88, 95 (1940).

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Accordingly, while the right of access is not enumerated in the First Amendment, it is

nonetheless necessary to the enjoyment of other First Amendment rights, and is

accordingly implicit to the amendment. Id. at 604.

As this Court has held, the First Amendments expressly guaranteed freedoms share

a common core purpose of assuring freedom of communication on matters relating to the

functioning of government. Richmond Newspapers, Inc. v. Virginia , 448 U.S. at 575

(plurality opinion).

This Court has further held that the right to access extends to the information about

prison conditions and operations. In Pell v. Procunier , 417 U.S. 817 (1974), the Court

recognized that the conditions in this Nation's prisons are a matter that is both newsworthy

and of great public importance. Id. at 831 n. 7. Accordingly, both the press and the public35

must be accorded substantial access to the federal prisons in order to observe and report the

conditions they find there. Saxbe v. Washington Post Co. , 417 U.S. 843, 847 (1974).

Per this Court, when determining whether the public has a First Amendment right of

access to a particular governmental proceedings, reviewing courts must inquire into two

complimentary considerations: (1) whether the place and process have historically been

While affirming a prison regulation prohibiting face-to-face interviews between the35

press and individual inmates, the Court premised that holding upon its conclusion that this

regulation is not part of an attempt by the State to conceal the conditions in its prisons or tofrustrate the press investigation and reporting of those conditions, and upon its satisfactionthat both the press and general public are accorded full opportunities to observe prisonconditions. Id. at 830. Pell also confirms that a prisoner retains those First Amendmentrights that are not inconsistent with his status as a prisoner or with the legitimate penologicalobjectives of the corrections system. Pell, 417 U.S. at 822.

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open to the press and general public and (2) whether public access plays a significant

positive role in the functioning of the particular process in question. PressEnterprise Co.

v. Superior Court , 478 U.S. 1, 89 (1986).

It is indisputable that executions have historically been open public events. See, e.g.,

California First Amendment Coalition v. Woodford , 299 F.3d 868, 875 (9 Cir.th

2002)(summarizing history of public executions in U.S.). Even after executions shifted from

the public square to the prison, every state provides public witness to executions. Id. Indeed,

Georgias current Reception and Holding Procedures for death-sentenced prisoners allow the

presence of five media witnesses, and the condemneds counsel, a member of the clergy, and

a reasonable number of relatives and friends. See Ex. 3 at 22-24; O.C.G.A. 17-10-41.

Further, Georgias lethal injection procedures provide that a designated representative of the

media can witness the preparation of the prisoner for the execution, including the placement

of the intravenous accesses. See Ex. 3 at 10.

Further, the means of execution has been open to the public until the adoption of the

lethal injection secrecy act. Prior to the effective date of that legislation, Appellees would,

in response to Open Records Act requests, routinely provide prisoners and members of the

press and public with detailed information about the drugs used in lethal injections, typically

photocopying the labels for the drugs which identified their name, lot number, place of

manufacture, and chemical properties along with invoices for the ordering of the drugs.

See Letter from Whetzel to Yellin of 10/15/2012 (attached as Ex. 7). Further, the public and

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the press certainly had ready access to information about earlier methods of execution, as

those methods including hanging, the gas chamber, and electricity were decidedly less

opaque than lethal injection. Indeed, [t]he public could not only view the prisoner's death,

they could see the precise cause and its effects. Schad v. Brewer , No. CV-13-2001, 2013

WL 5551668 (D. Ariz. Oct. 7, 2013)(finding states refusal to disclose source of drugs

violative of First Amendment).

Further, public access to information about lethal injection drugs plays a significant

positive role in the functioning of capital punishment. An informed public debate is critical

in determining whether execution by lethal injection comports with the evolving standards

of decency which mark the progress of a maturing society. California First Amendment

Coalition , 299 F.3d at 876 (quoting Trop v. Dulles , 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d

630 (1958)). To determine whether lethal injection executions are fairly and humanely

administered, or whether they ever can be, citizens must have reliable information about the

initial procedures, which are invasive, possibly painful and may give rise to serious

complications. Id. That principle applies with no less force to the lethal injection drugs

themselves and the qualifications of those who administer them.

Once established, the right of access can be overcome only by an overriding interest

based on findings that closure is essential to preserve higher values and is narrowly tailored

to serve that interest. Id. at 9-10 (quoting Press-Enterprise Co. v. Superior Court , 464 U.S.

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501, 510 (1984)). Mr. Wellons respectfully submits that Appellees cannot approach that

standard.

D. The District Courts Error Is Illustrated by JusticeBenhams Dissent

The district court dismissed the above claims because it presumes that the state acted

in good faith in selecting the company that produced the pentobarbital and in appointing the

team slated to carry out Plaintiff s execution. Ex. 3 at 9(emphasis added). As demonstrated

by Georgias checkered history, this is an insufficient safeguard for Mr. Wellonss

constitutional rights. It is one thing to presume that state government officials . . . carry

out their duties in a good-faith manner and in compliance with the federal laws, Order (Doc.

No. 10) at 8, citing Alaska Dep't of Envtl. Conservation v. E.P.A. , 540 U.S. 461, 507, (2004);

Alden v. Maine , 527 US. 706, 755 (1999). We nonetheless have laws and procedures that

exist so that we are not left to trust in presumption alone to protect our rights. Those

protections include Open Records Acts and judicial proceedings such as 1983 proceedings

and habeas. Appellants, however, seek to use their secrecy statute to remove themselves

from the purview of all such scrutiny as they carry out the gravest duty with which we entrust

them.

As Justice Benham noted for himself and Justice Hunstein in dissenting from the

Supreme Court of Georgias decision upholding the lethal injection secrecy act:

I write because I fear this State is on a path that, at the very least, denies Hilland other death row inmates their rights to due process and, at the very worst,leads to the macabre results that occurred in Oklahoma. There must be

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certainty in the administration of the death penalty. At this time, there is adearth of certainty namely because of the scarcity of lethal injection drugs.Georgia's confidential inmate state secret statute does nothing to achieve ahigh level of certainty. Rather, the law has the effect of creating the very secretstar chamber-like proceedings in which this State has promised its citizens itwould not engage. See State v. Brown , 293 Ga. 493(1), 748 S.E.2d 376 (2013).As this Court stated in Atlanta Journal v. Long , 258 Ga. 410(1), 369 S.E.2d755 (1988), [J]ustice faces its gravest threat when courts dispense it secretly.Our system abhors star chamber proceedings with good reason. The fact thatsome drug providers may be subject to harassment and/or public ridicule andthe fact that authorities may find it more difficult to obtain drugs for use inexecutions are insufficient reasons to forgo constitutional processes in favor of secrecy, especially when the state is carrying out the ultimate punishment.

Owens v. Hill , --- S.E.2d ----, 2014 WL 2025129 at *11 (Benham and Hunstein, JJ.,

dissenting).

The district court ultimately concluded that, given its presumption of good faith by

Appellants, that Mr. Wellonss argument is simply an extension of the speculation that the

Court found unpersuasive in Landrigan . Order at 9. As Justice Benham noted, however,

any speculation as to the implications of Appellees lethal injection procedures for Mr.

Wellonss Eighth Amendment rights arises solely from the States unwillingness, in light

of the secrecy statute, to disclose information that would allow him to make more specific

claims. Hill , 2014 WL 2025129 at *11. Indeed, Justice Benham recognizes Appellants

assurances to the district court for what they truly are.

[I]n this case the State has only made baseline assurances that thecompounding pharmacy it used was able to produce a high quality executiondrug. These assurances amount to little more than hollow invocations of trust us. While the State produced a redacted laboratory report from anindependent laboratory that it claimed had tested Hills execution drug, Hill,

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without knowing even the name of the laboratory, was left again with littlemore than the States invocation of trust us.

Hill , 2014 WL 2025129 at *11 (Benham and Hunstein, JJ., dissenting)(emphases added).

This Court should not accept such meager assurances.

CONCLUSION

The Eighth Amendment protects Mr. Wellons from cruel and unusual punishment.

That is uncontroversial. But it is a hollow right unless it can be enforced prospectively. Few

would contest that Clayton Locketts Eighth Amendment rights were violated by Oklahomas

botched execution, but there is certainly no redress available to him now. If Mr. Wellons can

be deprived of the information necessary to determine whether Appellees method of

execution presents a substantial risk of significant harm, Baze , then his Eighth Amendment

rights have been nullified. The same is true of his First Amendment rights, if Appellees are

allowed to conceal from him and the public, and this Court how they will carry out the

gravest duty entrusted to them.

But the harm from Appellees conduct is not limited to Mr. Wellons. No better

instrument has been devised for arriving at truth than to give a person in jeopardy of serious

loss notice of the case against him and opportunity to meet it. McGrath , 341 U.S. at 170

(Frankfurter, J., concurring).

The heart of the matter is that democracy implies respect for the elementaryrights of men, however suspect or unworthy; a democratic government musttherefore practice fairness; and fairness can rarely be obtained by secret,one-sided determination of facts decisive of rights.

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Joint Anti-Fascist Refugee Committee v. McGrath , 341 U.S. 123, 170-72 (1951) (Frankfurter,

J., concurring).

Accordingly, Appellees actions to shield these critical aspects of how they intend to

carry out judicial executions harms not only Mr. Wellons. It deprives the Appellees

themselves of the feedback that could help them avoid a botched execution an opportunity

that those who executed Clayton Lockett would no doubt welcome, in retrospect. M o r e

critically, it attempts to prevent this Court from fulfilling its central mandate: to protect the

Constitution. Further, it places the courts in the position of deciding issues about which

Appellees have intentionally kept them uninformed. See Cleveland Bd. of Educ. v.

Loudermill , 470 U.S. 532, 541 (1985) (holding that the process required by due process is

a constitutional question that must be determined by the judiciary).

The district court noted Appellees strong interest in executing its condemned

prisoners in a manner that does not violate their rights. Botched executions lead to

embarrassment, investigations, bad press, and, perhaps worst of all for the individuals

involved, the knowledge that they caused an individual needless pain and suffering. Id.

Appellants have already experienced embarrassment, investigations, and bad press because

of their mismanagement of lethal injection. The executions of Brandon Rhode, Emanuel

Hammond, and Roy Blankenship should at least have given them pause. Instead, they have

moved not to examine how they carry out their duties, but to hide their conduct from Mr.

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Wellons, the public and the courts. In doing so, they act against the interest of all, including

themselves. They must not be allowed to do so.

For the foregoing reasons, Petitioner Marcus Wellons respectfully requests that this

Court grant a writ of certiorari to review the decision of the Eleventh Circuit Court of

Appeals.

/s/ Gerald W. King, Jr. Gerald W. King, Jr. (Ga. Bar No. 140981)Jeffrey Lyn Ertel (Ga. Bar No. 249966)FEDERAL DEFENDER PROGRAM, INC.101 Marietta Street, Suite 1500Atlanta, Georgia 30303404-688-7530(fax) [email protected][email protected]

Mary Elizabeth Wells (Ga. Bar No. 747852)LAW OFFICE OF M.E. WELLS623 Grant Street SEAtlanta, Georgia 30312(404) 408-2180

ATTORNEYS FOR MARCUS WELLONS

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No. ___________

In the Supreme Court of the United States

October Term, 2013 ____________________________

MARCUS A. WELLONS ,

Petitioner,

V.

BRIAN OWENS , Commissioner, Georgia Department of Corrections,

BRUCE CHATMAN , Warden, Georgia Diagnostic and Classification Prison, and

OTHER U NKNOWN EMPLOYEES AND AGENTS , Georgia Department of Corrections ,

Respondents. _____________________________

On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Eleventh Circuit

_____________________________

CERTIFICATE OF SERVICE _____________________________

I HEREBY CERTIFY that a true and correct copy of Marcus Wellonss MOTION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR WRIT OF

CERTIORARI are being furnished by email and United States mail, first-class postage

prepaid, to counsel for Respondents, Sabrina Graham, Assistant Attorney General, 40 Capitol

Square, SW, Atlanta, Georgia 30334-1300.

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This 17 day of June, 2014.th

/s/ Gerald W. King, Jr. Gerald W. King, Jr. (Ga. Bar No. 140981)Jeffrey Lyn Ertel (Ga. Bar No. 249966)FEDERAL DEFENDER PROGRAM, INC.101 Marietta Street, Suite 1500Atlanta, Georgia 30303404-688-7530(fax) [email protected][email protected]

Mary Elizabeth Wells (Ga. Bar No. 747852)LAW OFFICE OF M.E. WELLS623 Grant Street SEAtlanta, Georgia 30312(404) 408-2180

ATTORNEYS FOR MARCUS WELLONS

wellons - scotus cert petition

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