Attorneys win appeal in lethal injection case in Virginia. What happens next?

Attorneys in death penalty case say they're concerned about the quality of the lethal drugs and whether they would bring 'gratuitous and unnecessary pain.'

Virginia Department of Corrections/AP
Virginia is poised to execute Alfredo Prieto, a convicted serial killer shown in this undated Department of Corrections photo, who claims he’s intellectually disabled using lethal injection drugs from Texas because the state’s supply of another controversial drug will expire the day before the execution is supposed to take place.

Attorneys for a convicted serial killer are appealing to the state of Virginia to spare his life, which is slated to end at 9 p.m. on Thursday at the Greensville Correctional Center. Alfredo Prieto's attorneys have raised concerns about one of the lethal injection drugs that the state intends to use. A federal judge in Alexandria, Va., approved an order Wednesday temporarily blocking Mr. Prieto's execution, and called for a hearing. 

Prieto, an El Salvador native, was already on death row in California for the rape and murder of a teenage girl when Virginia authorities found DNA evidence attaching him to another to rape and murder of Rachael Raver, and the death of her boyfriend, Warren Fulton III. Prieto has not been prosecuted again because he is already sentenced to death, but he is believed to be responsible for as many as nine killings in California and Virginia.

The execution appeal hearing has not been scheduled because the case was transferred to a new court in Richmond. 

Virginia obtained pentobarbital from Texas to replace its supply of another sedative, midazolam, which expired Wednesday.

Prieto's attorneys have expressed concern over the quality of the drugs, saying the drugs may bring Prieto "gratuitous and unnecessary pain."

Prieto's lawyers have requested the name of the drug supplier, test results showing sterility and potency, and evidence that the drugs were handled properly. Lawyers for another death row inmate in Oklahoma, accused Texas of manufacturing it's own supply without a license, during an appeal for Richard Glossip last week. In Texas, prison officials are allowed to keep where they get execution drugs confidential, and Virginia officials have not provided any information about the drugs.

Virginia Attorney General Mark Herring's office has encouraged the judge to dismiss Prieto's case, pointing out that Texas has administered 24 executions over the past two years without issue, adding that delaying Prieto's execution may "fully indulge his speculations" and could push the case past the drug's expiration date.

Back in March, the American Pharmacists Association voted to oppose participation in executions, stating that to help put a person to death violates the goals of the profession. That decision came just a week after the International Academy of Compounding Pharmacists took a similar stance. 

“It’s never been legal in the US to write a prescription to execute a person," William Fassett, the board member and professor emeritus of pharmacotherapy at Washington State University, Spokane, who drafted the policy, told The Huffington Post at the time. "The basic federal law is that a prescription is to be used for medical proposes in the context of an established patient-physician relationship."

The US Supreme Court is also considering Prieto's appeals to stop the execution on the grounds that he's intellectually disabled. Prieto's attorneys say he would likely be deemed intellectually disabled if he was allowed to fight his death penalty case in the state of California.

"There is a substantial likelihood that he's intellectually disabled but he's never had a fair and reliable hearing to prove it," wrote Hilary Potashner, a federal public defender based in Los Angeles. "Without a stay, it is likely that the Commonwealth of Virginia will execute an intellectually disabled man."

This report contains material from the Associated Press.

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