Howard’s lawyers cite degraded pentobarbital, invoke Tennessee case in appeal

Lawyers for death-row inmate Jamaal Howard, 46, asked the Texas Court of Criminal Appeals on Wednesday to halt his scheduled execution, arguing the state’s pentobarbital could fail in the same way the drug did during Christa Pike’s botched lethal injection in Tennessee last week. The planned execution would be the first in the United States since Pike survived two doses of the sedative.

In their motion, Howard’s attorneys wrote that there is “a similar risk” that “Texas’s execution drugs are likewise degraded, as they are far past the original beyond-use dates that the pharmacopeia allows for drugs of this kind.” The filing said the attorneys had requested information about the lethal dose of pentobarbital the Texas Department of Criminal Justice planned to use. The Texas attorney general’s opinion on those requests is not expected to be returned until after the scheduled execution, meaning Howard cannot litigate whatever decision the state might make on releasing that information, his lawyers argued.

The motion follows the Fifth Circuit Court of Appeals’ decision last week declining a separate request to stop the execution.

Pike’s was the second botched execution in Tennessee this year. She regained consciousness on Tuesday and her lawyers say she has pneumonia and is unable to move her arms. Pike had complained during the procedure that her arms felt like they were going to explode as the sedative was administered.

Howard was found guilty of capital murder in 2001 for robbing a convenience store in Silsbee, a town north of Beaumont, and fatally shooting 42-year-old clerk Vickie Swartout. His legal team has separately argued that Howard was intellectually disabled at the time of the crime and thus ineligible for the death penalty under a 2002 Supreme Court ruling. That intellectual-disability claim is separate from the drug-expiration challenge raised in Wednesday’s motion.

Tennessee Governor Bill Lee has barred further lethal injections in his state for the rest of the year and ordered a probe into why Pike’s execution failed. Pike’s lawyers had previously argued her blood disorder would make a lethal injection painful. Speculation has also swirled over the quality of the pentobarbital.

Texas officials did not immediately return a request for comment Wednesday morning.