Court hearing on drugs in Virginia execution is canceled

AP News
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Posted: Sep 30, 2015 9:28 PM
Court hearing on drugs in Virginia execution is canceled

RICHMOND, Va. (AP) — A scheduled court hearing for a Virginia inmate's challenge of the drugs the state plans to use to put him to death was canceled Wednesday, and an order temporarily blocking Alfredo Prieto's execution remained in place.

U.S. District Court Judge Anthony Trenga had set a hearing in Alexandria for 2 p.m. Thursday after Prieto's attorneys asked the court to stay the 49-year-old's execution until officials disclose more information about the supply of pentobarbital that they obtained from Texas.

But the hearing was canceled late Wednesday after Trenga approved the state's request to transfer the case to Richmond. An order granted Wednesday that temporarily prevents the state from carrying out the execution remained in place.

The state had been planning to execute Prieto at 9 p.m. Thursday, but it was unclear whether that would happen. A spokesman for Attorney General Mark Herring said that the case has been assigned to Judge Henry Hudson but as of Wednesday evening no hearings had been scheduled. Hudson could rule on the matter without holding a hearing or throw out the case and lift the order.

Prieto's attorneys are seeking information about the supplier of the drugs, tests confirming its sterility and potency and documents showing that the drugs were properly handled.

The El Salvador native was on death row in California for raping and murdering a 15-year-old girl when DNA evidence linked him to the 1988 slaying of a young couple in Virginia. Authorities say he has been linked to several other murders in both states but he was never charged because he had already been sentenced to death.

Prieto's attorneys, Rob Lee and Elizabeth Peiffer, said the lack of information about the execution drugs puts the state at risk of carrying out a cruel and painful execution. Texas allows prison officials to shield where they get execution drugs and Prieto's attorneys say Virginia officials have not provided that information.

The Associated Press filed a public records request for the names of the manufacturers and the suppliers of the drugs, but the documents show only that the drugs were provided by the Texas Department of Criminal Justice.

Texas prisons spokesman Jason Clark told AP last week that the three vials of pentobarbital given to Virginia were legally purchased from a compounding pharmacy, which he declined to name. Virginia will substitute the pentobarbital for midazolam that it intended to use because its supply of that sedative expires Wednesday.

A spokeswoman for the Virginia Department of Corrections didn't immediately respond to a request for comment.

Senior Assistant Attorney General Richard Vorhis said in a letter to Peiffer on Tuesday that the drugs were legally acquired, tested and transported in an appropriate manner. He noted that Texas has successfully used the same compound in 24 executions over the past two years with no problems.

Pentobarbital is the first of three drugs that the state intends to use.

Mylan, the manufacturer of the rocuronium bromide — another drug that will be used — said the company sent several letters to Virginia officials when it learned about the drug's possible use and then demanded that the state return the product when it received no response.

Spokeswoman Nina Devlin said in a statement that the company is contractually restricting its distributors from distributing Mylan products, including rocuronium bromide, for use in lethal injection or for any other use outside of the approved labeling or applicable standards of care.

Pharmaceutical companies, under pressure from death penalty opponents, have stopped selling U.S. prisons drugs for lethal injections. So Texas and other states have turned to less regulated compounding pharmacies for made-to-order drugs, and like in this case, have sometimes turned to other states to acquire the necessary drugs.

Prieto's attorneys in Virginia and California have also both asked the U.S. Supreme Court to stay his execution so that they can prove that he's intellectually disabled and therefore ineligible for the death penalty. A federal appeals court said in June he failed to prove that no reasonable juror would find him eligible for execution and that "absent some new 'smoking gun,'" evidence of his ability to handle everyday tasks was "at best inconclusive."

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This story has been corrected to show that the Mylan spokeswoman's name is Nina Devlin, not Mila.

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