Texas appeals court rejects inmate's lawsuit over expired execution drugs

HOUSTON -- A highly debated execution is set to move forward today in Texas.

Willie Trottie, 45, is facing execution for the 1993 shooting deaths of his estranged common-law wife, Barbara Canada, 24, and her brother, Titus, 28, at their home. He would be eighth Texas prisoner executed this year. His attorneys alleged in a federal lawsuit the sedative intended for his lethal injection is expired and its use could cause him unconstitutionally "torturous" pain.

The lawsuit, rejected by a federal judge in Houston and before the 5th U.S. Circuit Court of Appeals on Tuesday, was merely another attempt to force Texas prison officials to reveal its drug provider, they said. State lawyers argued the pentobarbital planned for Trottie was effective through the end of this month.

Texas, like several other states with capital punishment, has addressed the refusal by mainstream drug companies to sell drugs for executions by turning to compounding pharmacies, which operate under less stringent supervision. Also like some other death penalty states, the Texas Department of Criminal Justice has refused to identify its supplier, a practice the courts so far have upheld.

Maurie Levin, the lead attorney for the drug lawsuit, said the pentobarbital for Trottie would come from a supply Texas obtained earlier this year and that scientific literature on compounded drugs suggests they lose effectiveness after a week or a month depending on factors like storage and sterility.

"All they're saying is: Take our word for it - Sept. 30," Levin said, calling Texas prison officials "untrustworthy."

The lawsuit sought a court order identifying the drug source, the compounding date, how it was transported and how it's been stored, and a reprieve for Trottie so the legality and constitutionality of the process can be adjudicated.

The arguments were "nothing more than rank speculation," assistant Texas Attorney General Fredericka Sargent said in a court filing.

The death penalty has come under increased scrutiny since executions recently went awry in Oklahoma and Arizona, states that use drug combinations for capital punishment. Texas uses only pentobarbital.

"Whatever happened in those states has nothing to do with what happens in Texas," Sargent said.

At least one other appeal to halt Trottie's punishment was headed to the U.S. Supreme Court after the 5th Circuit rejected arguments from another legal team that argued defense lawyers at Trottie's trial were deficient for not adequately addressing his assertion that Titus Canada's death was in self-defense.

Trottie didn't deny the shootings but questioned the circumstances that led to his conviction.

"I shot my brother-in-law in self-defense and I shot my wife by accident," he told The Associated Press in a recent interview. "There's no doubt I committed this crime. The dispute is the sequence of how it happened."

Trottie said Titus Canada fired first and he was defending himself. Trottie also said his gun "went off," killing his wife, during a struggle with her and her sister.

Johnny Sutton, the lead prosecutor at Trottie's November 1993 trial, said Barbara Canada began recording Trottie's threatening phone calls to her after their breakup.

"I had him on tape saying exactly what he was going to do, and then, of course, he did it," Sutton said.

The Associated Press contributed to this report.