In an opinion issued Monday, the 6th U.S. Circuit Court of Appeals in Cincinnati vacated a temporary restraining order handed down Friday by a U.S. District Court judge in Nashville.
Workman's execution is scheduled for Wednesday at 1 a.m. CDT. His attorneys planned to appeal the ruling Tuesday and ask for a hearing by the full circuit.
Workman was placed on death watch about 6 p.m. Monday at Riverbend Maximum Security Institution in Nashville, meaning he is now in a holding cell near the execution chamber and being monitored around the clock by guards, Department of Corrections spokeswoman Dorinda Carter said.
He is allowed to visit with his spiritual adviser and family members.
In the 2-1 majority opinion, Judge Jeffrey S. Sutton wrote that Workman has come within days of being executed five previous times and never before challenged the state's three-drug lethal injection procedures.
Workman's lawyers claimed that Tennessee's new death penalty guidelines unveiled last week could still cause unconstitutional pain and suffering, but similar arguments have failed in the higher courts, Sutton wrote.
"The Supreme Court has never invalidated a state's chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 28 other jurisdictions)," Sutton wrote. "Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005)." The governor imposed a 90-day moratorium on the death penalty ending May 2 to allow time to fix its outdated procedure manual. An Associated Press review found that the manual was a jumble of conflicting instructions that mixed lethal injection instructions with those for the old electric chair. "Gov. Bredesen called the old lethal injection protocol ridiculous, sloppy, deficient, a cut-and-paste job that would likely lead to errors in the administration (of the death penalty)," said Kelley Henry, a federal public defender representing Workman. "His lawyers told the 6th Circuit Court of Appeals that the new protocols haven't changed anything." "That's unacceptable," she said. "We will continue to fight that on Philip's behalf as long as we can." Bredesen's staff did not immediately return calls seeking comment Tuesday night. Last week the three-member 6th Circuit panel also denied Workman a stay of execution based on his claims that he was convicted on perjured testimony and that the state withheld evidence that would have established Workman's innocence. Workman, 53, who was convicted for the 1981 shooting death of Memphis Police Lt. Ronald Oliver, robbed a Wendy's restaurant and then got into a gun battle with police. He wounded another officer and shot at a third, but he now contends Oliver was accidentally shot by another officer. His attorneys and opponents of the death penalty met Monday night in Nashville to discuss the case. "There have been many people who have been found innocent who were on death row for many years," said Workman's brother, Terry. "It makes you wonder how many have slipped through the cracks. I have no doubt in my mind if we don't get some kind of miracle, he's going to be one of those who slipped through the cracks. " Death penalty opponents also have questioned whether there has been enough scrutiny of the panel that revamped the execution protocol. "For a governor that has been such a supporter of open government, these were put in place in the dark, in closed rooms, completely shrouded from the public's eye," said Alex Wiesendanger, associate director of the Tennessee Coalition to Abolish State Killing. AP-CS-05-07-07 2107EDT