Senior U.S. District Judge William O’Kelley repeatedly referenced in his order Tuesday the findings of another federal judge who heard the appeal of Marcus Wellons, who was put to death June 17 by a drug made specifically for him by a compounding pharmacy that was not identified.
Wellons also argued that Georgia’s secrecy law threatened his Eight Amendment protection from cruel and unusual punishment because he could not verify the quality of the drugs made by an unidentified compounding pharmacy.
“There has been no indication that anything untoward happened then,” O’Kelley said about Wellons’ execution, which was the first since Georgia law made a state secret the identities of the source of lethal injection drugs and the anyone who participated in the execution. “The (Department of Corrections), operating under the current drug protocol as well as the secrecy act, has carried out an execution which was undisputedly successful from an Eighth Amendment perspective.”
O’Kelley said Waldrip could not argue there was a “substantial likelihood” that his death could be unconstitutionally painful in light of “the reliability of the DOC’s source for pentobarbital and its personnel” in the Wellons execution.
In their last-minute appeals, Waldrip’s lawyers are making the same arguments they made last month as Wellons’ execution approached. Both times lawyers for the condemned challenged the 1-year-old law that was adopted to get around the difficulty of finding lethal injection drugs in light of the nationwide increasing public pressures on the companies that make them.
Georgia has never named the compounding pharmacy that made the sedative pentobarbital for Wellons’ and now Waldrip’s executions.
Waldrip was sentenced to die in Dawson County for the 1991 murder of a convenience store clerk who was supposed to testify against Waldrip’s son in an armed robbery trial two days later.
But, according to testimony, the Waldrips and Howard Livingston, Tommy Lee Waldrip’s brother, intercepted Evans as he was driving home from work on April 13, 1991. First they fired birdshot into the windshield of Evans’ truck. Then the younger Waldrip and Livingston drove the truck, with Evans in the passenger seat, to a neighboring county where the three men beat him to death with a blackjack, buried him and set his truck on fire.
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