A federal lawsuit filed on behalf of a man scheduled to be put to death next week alleges that Florida prison officials used expired drugs in at least four recent executions.

Prison drug supply logs indicate that executioners in two other recent cases may have used lower doses than is required by the state’s lethal injection protocol, the lawsuit claims.

Those and other allegations form the basis of a request to stay the execution of Frank Walls, who is scheduled to be put to death Dec. 18. The lawsuit accuses the prison system of negligence in how it administers lethal injection, asserting that Walls will likely suffer severe pain akin to torture.

Such an outcome would be “constitutionally repugnant,” wrote Assistant Federal Defender Sean Gunn, arguing that Walls’ execution would violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

“Mr. Walls is at heightened risk of a disastrous execution in light of (the prison system’s) documented negligence in adhering to their own protocol,” Gunn wrote.

Lawyers for the state countered that Walls’ arguments were a last-ditch attempt to delay his “well-deserved execution.”

“He has been in poor health for years, but waited until the eve of his execution to file suit long after the time to do so had passed,” wrote Assistant Attorney General Jason Rodriguez.

The state’s written request to dismiss the case did not directly refute the claim about expired drugs but called the related arguments that he could suffer needless pain “speculative” and “tenuous.”

On Tuesday afternoon, U.S. District Judge Mark Walker issued an order denying the request to stop Walls’ execution. While acknowledging evidence that Walls may suffer a cruel death, the judge found that he could have raised those claims well before his execution was imminent.

Walls’ attorneys quickly filed an appeal of the ruling.

Drug logs raise questions

Walls, 58, was sentenced to death for the 1987 murders of Edward Alger and Ann Peterson in Okaloosa County. He accosted the couple after breaking into their home, according to court records, then bound and gagged them. He slashed Alger’s throat before shooting him in his head, then shot Peterson twice in her head.

Gov. Ron DeSantis signed Walls’ death warrant last month. His execution is slated to be the 19th in Florida this year, the highest number of executions in any single year since the state reinstituted the death penalty in the 1970s. DeSantis, who previously went years without signing any death warrants, said in a recent news conference in Jacksonville that the surge in executions is driven by a need to help families of murder victims.

Florida’s execution protocol calls for the systematic injection of three drugs.

The first, etomidate, is a short-acting sedative that is supposed to render the condemned person unconscious. The second and third, rocuronium bromide and potassium acetate, are meant to paralyze the person and stop their heart.

The state has used what’s known as the etomidate protocol in executions for nearly a decade. Courts have previously upheld its constitutionality.

While information about the source from which the state purchases its execution drugs is shielded from state public records laws, the Department of Corrections maintains handwritten logs detailing the amounts of each substance in its drug supply.

It is from those logs that Walls’ attorneys gleaned that the state used an expired supply of etomidate in four recent executions.

The log sheets, according to the complaint, indicate that a supply of etomidate with an expiration date of Jan. 31, 2025, was used on dates corresponding with the August and September executions of Kayle Bates, Curtis Windom, David Pittman and Victor Jones.

The logs also show that the state noted the removal of seven vials of potassium acetate — the heart-stopping drug — from its supply on June 12, two days after the execution of Anthony Wainwright. This suggests that the executioners used about 41% less than the dosage required by the lethal injection protocol, according to the lawsuit, which asserted that the state is straying from its own protocol and raising the likelihood that an execution might not go as intended.

The logs also show that the state recorded the removal of 10 vials of rocuronium bromide from its supply on June 25, a day after the execution of Thomas Gudinas. Those 10 vials total 1,000 milligrams, which is half the amount of the paralytic required by the lethal injection protocol, the lawsuit states.

The complaint noted several instances in which the log shows execution drugs being removed a day or two after an execution. This, the complaint alleged, indicates the records are inaccurate and being filled out afterward.

In one example — the July 15 execution of Michael Bell — the logs show no entry indicating that etomidate was removed, according to the lawsuit. Yet toxicology testing that accompanied Bell’s autopsy showed etomidate in his blood. It is unclear whether the etomidate used in his execution came from the state’s supply or somewhere else.

Other peculiarities noted in the complaint include the use of lidocaine during the executions of Edward James and Michael Tanzi, who were executed in March and April, respectively.

Lidocaine, a numbing agent, is not part of the state’s lethal injection protocol. Its use, the complaint states, “indicates a level of improvisation and unpredictability” about the execution process that “should require an explanation.”

Walls’ attorneys unsuccessfully sought a hearing to elicit more details about the execution process.

The Department of Corrections did not respond to two emails and a phone call seeking comment for this story.

A ‘dignified death’ versus ‘needlessly cruel’

Ricky Dixon, the secretary of the Florida Department of Corrections, was named as a defendant in the lawsuit, along with Randall Polk, the warden of Florida State Prison. Dixon is in charge of regularly reviewing and updating the state’s lethal injection protocol.

In February, before the surge in executions, Dixon sent a routine letter to DeSantis, certifying that he had reviewed the lethal injection procedure. He wrote that he found it “compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology, and technology.”

“The process will not involve unnecessary lingering or the unnecessary or wanton infliction of pain and suffering,” Dixon wrote. “The foremost objective of the lethal injection process is a humane and dignified death.”

Four months before the governor ordered Walls to die, the lawsuit states that he began to suffer a rapid health decline marked by dizzy spells and shortness of breath.

The court records include an affidavit from Dr. Joel Zivot, an anesthesiologist and professor at the Emory University School of Medicine in Atlanta. He conducted an evaluation of Walls at the request of defense attorneys.

Zivot noted Walls has numerous medical problems, including heart disease, high cholesterol, a thyroid disorder, obstructive lung disease and chronic back pain. He is also morbidly obese, weighing more than 350 pounds.

The doctor opined that Walls’ poor health increases the risk of complications during an attempt to execute him. In particular, Zivot said Florida’s lethal injection protocol is likely to induce a pulmonary edema — essentially a blood clot in the lungs.

The drugs may cause his lungs to fill with blood, Zivot wrote. He compared the feeling to that of drowning or being asphyxiated, writing that prisoners who go through this “choke on their own blood.”

“Mr. Walls will die a needlessly cruel death if Florida insists on trying to kill him with Florida’s version of lethal injection,” Zivot wrote.

Walls’ attorneys cited several cases of men who were executed in other states and by the federal government who were later found to have developed pulmonary edema as they died. Some were described as having bloody froth in their throats.

One case cited is that of Byron Black, who was executed in Tennessee using the drug pentobarbital. Media reports of his execution state that he raised his head during the process, looked at his spiritual adviser and said, “It hurts so bad.”

Witnesses to several Florida cases cited in the records described the condemned prisoners heaving and twitching as they died. Autopsies showed several had heavy, congested lungs.

The state countered that the massive initial dose of etomidate will render Walls unconscious in less than a minute, making any pain from pulmonary edema “irrelevant.”

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