By Jack Elliott Jr./The Associated Press
JACKSON — A federal appeals court has agreed to review a death row inmate’s challenge to Mississippi’s method of execution by lethal injection.
Roger Thorson has appealed to the 5th U.S. Circuit Court of Appeals after a Mississippi federal judge dismissed his lawsuit against Corrections Commissioner Christopher Epps.
The 5th Circuit has scheduled oral arguments for Sept. 7 before a three-judge panel in New Orleans.
Thorson’s case marks the second time the 5th Circuit has considered a challenge to Mississippi’s lethal injection protocol.
In 2008, the 5th Circuit ruled Mississippi’s method of lethal injection “appears to be substantially similar” to a protocol affirmed by the U.S. Supreme Court. The challenge was brought by Leo Dale Bishop, who later was executed for his role in a 2000 slaying.
The language was significant because the U.S. Supreme Court ruled in April 2008 that Kentucky’s method is acceptable, as are “substantially similar” protocols. That ruling came after two death row inmates in Kentucky challenged the procedure in a lawsuit that blocked executions around the country for months.
That defense is raised by the state of Mississippi in response to Thorson’s lawsuit. The state says all the issues raised by Thorson were settled with the U.S. Supreme Court and the 5th Circuit follow-up in the Bishop case.
The state also argued that personnel assigned to perform the execution are trained for and experienced in their jobs.
Thorson had raised the training issue in federal court in Mississippi. The state, under a judge’s order, filed under seal the names and qualifications of staff assigned to executions, including the executioner and assistant executioner.
“Mississippi’s lethal injection protocol is clearly substantially similar to that of Kentucky,” the state says in its brief.
But Thorson, in court documents, said there are significant differences between how executions are conducted in Mississippi and Kentucky.
Thorson contends that “much of lethal injection protocol in Mississippi is based on pattern and practice and not written regulations that govern all corrections officials in Mississippi.”
“Nothing in the pattern and practice upon which the state relies confirms that Mississippi’s protocol is substantially similar to the protocol that passed constitutional muster,” Thorson argues in court documents.
“Leaving the implementation of important medical safeguards to ensure the humane execution of capital defendants to the whim and vagaries of corrections personnel cannot and should not receive the approval of this court,” Thorson argues.
Thorson was sentenced to death for killing a former girlfriend on the Mississippi Gulf Coast in 1987.