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U.S. court rejects Oklahoma death row inmate's appeal

By TIM TALLEY Published: August 10, 2012

OKLAHOMA CITY (AP) — A federal appeals court on Friday denied an Oklahoma death row inmate's challenge to the state's lethal injection protocol and request to stay his execution, which is scheduled for next week the Oklahoma State Penitentiary in McAlester.

The decision by the 10th U.S. Circuit Court of Appeals upheld a ruling by U.S. District Judge Vicki Miles-LaGrange last week that denied an injunction sought by Michael Hooper, 39, who was convicted of first-degree murder and sentenced to death for the December 1993 shooting deaths of his former girlfriend, 23-year-old Cynthia Lynn Jarman, and her two children, 5-year-old Tonya and 3-year-old Timmy.

Hooper's attorney, Jim Drummond, said he asked the U.S. Supreme Court to stay Hooper's execution shortly after the appellate court's decision was handed down and plans to continue Hooper's appeal.

Hooper sued the state last month in an attempt to force his executioners to have an extra dose of pentobarbital, the first of three drugs administered during a lethal injection, on hand during his execution. Drummond has said that if the sedative is ineffective, the remaining drugs may cause great pain in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

Pentobarbital is used to render a condemned inmate unconscious in Oklahoma's lethal injection protocol. Condemned inmates are given a 5,000-milligram dose of pentobarbital followed by vecuronium bromide, which stops the inmate's breathing, and potassium chloride to stop the heart.

The lawsuit also challenged the constitutionality of the state's three-drug protocol method and said other states have adopted a one-drug process that involves a single fast-acting barbiturate that supporters say causes no pain.

In her ruling, Miles-LaGrange said Hooper's claims were speculative and that he had not shown there was “a substantial risk of severe pain,” reasoning that was adopted by the appeals court. The appellate court said there is nothing to suggest that a 5,000-milligram dose of pentobarbital will be insufficient.

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