Whether the Eighth Amendment and state-created liberty interests prohibit executing a prisoner with lethal injection drugs that were exposed to extreme heat in a prison fire without adequate procedural opportunity to develop evidence of the drugs' chemical degradation and resulting risk of severe pain

No question identified. : concluded that: 1) the fire raged through the very administration area of the facility where the drugs were stored;2 2) the drugs’ exposure to the 1800+ conditions of the long-burning fire certainly would have caused chemical changes to the stability of the drugs;3 and 3) the chemical changes created a significant risk of pain to Mr. Murphy. He accordingly filed a legal action in the Texas state courts arguing violations of (among other things) the Eighth and Fourteenth Amendments; and Texas-law-created liberty interests in freedom from “torture, ill treatment, or unnecessary pain[.]” Texas Code of Criminal Procedure, Art. 43.24.4 Yet, Texas provided no meaningful procedural gateway for Mr. Murphy to vindicate his liberty interests. In Mr. Murphy's state action, the district court and then the Court of Criminal Appeals denied his claims on the merits, finding his factual assertions “unproved,” while at the same time denying him an evidentiary hearing. Mr. Murphy’s submitted evidence meets the legal thresholds of a risk of “serious 46k illness and needless suffering,” “an objectively intolerable risk of harm,” a risk of “severe pain and suffering,” and/or a risk of “ill treatment, or unnecessary pain,” see Glossip v. Gross, 576 U.S. 863, 877-78 (2015); Baze v. Rees, 553 U.S. 35, 50 (2008); Tex. Code Crim. to be the location of the lethal injection drugs. However, once these men reached the location of the pharmacy area, they ended up fleeing for their lives as the fire was about to “breach” the room. See Exhibit 5 to Writ, App.1.ln a recent filing in the Western District of Texas, the State could have but did not dispute that the drugs were indeed in the section of the prison most-damaged by the fire. Murphy v. Lumpkin et al., No. 1:23cv1199-RP, dkt. 07 (Opposition to Motion for Stay). As that section of the building has been described a “total loss,” the exposure of the drug to the fire’s heat is a matter of common sense. 2Seen.1. 3 See Writ, pp. 13-16, citing Exh. 6 (Report of Dr. Almgren) and other exhibits, App. 1. * This state-created interest is more protective than the Eighth Amendment. See Baze v. Rees, 553 U.S. 35, 50 (2008) (Eighth Amendment violated not merely by any risk of pain, but by “serious illness and needless suffering,” “an objectively intolerable risk of harm”). See also Glossip v. Gross, 576 U.S. 863, 87778 (2015) (‘severe pain and suffering”). Article 43.24 explicitly prohibits “unnecessary pain,” as well as “ill treatment.” This is a lower bar than “needless suffering” and “severe pain.” The liberty interest granted by Article 43.24 is therefore more-inclusive than the Eighth Amendment. 2 Proc. Art. 43.24. Yet, even if it doesn’t, Texas has clearly denied him due process of law in denying these claims on the merits without permitting evidentiary development. This mismatch between a liberty interest and its procedure independently violates the federal constitution. See Dist. Atty’s Ofc. For Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009). Not only did the state bar Mr. Murphy from developing his claims in court; but it also ignored or refused every other attempt he made to obtain additional information about the effect of the fire on the drugs. Writ, pp. 16-19, App. 1. At the same time, the State presented to the lower courts a lab test result it argues proves the safety of the drugs. Their report is meaningless, however, because they conducted the wrong scientific test. Even though Mr. Murphy put the State on clear notice that “potency” testing does not resolve legitimate concerns about their chemical’s safety in the wake of that exposure, see Writ, pp. 22-25, App. 1 (fH must be tested, and solutions visually examined for particulates; “potency” testing is not a test), the only tests TDCJ appears to have performed since the August 25, 2023 fire are potency and sterility tests. The unique factual circumstances arising from the August 25, 2023 fire meet all the equitable