Judge dismisses Alabama prisoner's lethal injection claim

MONTGOMERY, Ala. – A judge on Monday dismissed a death row inmate's claim that Alabama improperly allows "unaccountable bureaucrats" to decide how executions are carried out in the state.

The ruling came as lawyers for Tommy Arthur urged another judge to force the state to release prison records from recent executions, including one where the inmate coughed for 13 minutes.

Arthur is scheduled to be given a lethal injection on May 25 for the 1982 murder-for-hire slaying of Troy Wicker. Investigators said Arthur was having an affair with Wicker's wife and she paid Arthur $10,000 to kill her husband. Arthur was on a prison work-release program for the slaying of his sister-in-law at the time of Wicker's killing.

Montgomery Circuit Judge Truman Hobbs on Monday dismissed Arthur's lawsuit claiming Alabama improperly lets the Department of Corrections determine the lethal injection protocol. Hobbs wrote that Arthur waited too late to raise that claim.

Arthur's lawyers argued in a separate lawsuit that the state is being illegally secretive about recent executions and wrongly refused to release information through a public records request.

The Department of Corrections has refused to release execution logs and other records from recent executions. Arthur's lawyers argued that witness accounts suggested the inmates might not have been fully anesthetized after being given the sedative midazolam.

The state refused to release records saying it "would be detrimental to the public interest" and might identify prison employees involved in executions. The accused Arthur of being on a "fishing expedition" as he tries to stop his execution.

Arthur's attorneys argued in a motion filed Friday that the records are public and the state was using flimsy reasons for not releasing them. Names can be redacted if needed, they wrote.

"For Mr. Arthur, who is scheduled to be executed on May 25, 2017, the need for information regarding his government's affairs — specifically, records concerning the State's last two executions — is especially urgent. But even if Mr. Arthur were not a death row inmate facing imminent execution, he would, like any other citizen of Alabama, have "a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute," Arthur's lawyers wrote.