NASHVILLE - A death row inmate convicted of killing a Memphis police officer in 1981 was running out of legal options Tuesday as federal courts denied several last-minute moves by his attorneys to get a stay of execution.
Philip Workman was scheduled to die at 1 a.m. CDT Wednesday. It would be Tennessee's third lethal injection since 2000.
Workman spent Tuesday visiting with his brother and two friends in a special cell near the execution chamber, Correction Department spokeswoman Dorinda Carter said. Instead of ordering a last meal, Workman requested that a vegetarian pizza be given to a homeless person, which the Correction Department won't do, Carter said.
Workman has previously been on "death watch" three times and has come within hours of execution before being granted stays.
Although he has exhausted his state appeals, Workman's attorneys filed a motion late Tuesday night with the Tennessee Supreme Court, pleading to allow him time to challenge newly revised execution protocols, which were approved just over a week ago.
Gov. Phil Bredesen imposed a 90-day moratorium on executions in February after an Associated Press review of the execution procedure manual found it was a jumble of conflicting instructions that mixed lethal injection instructions with those for the old electric chair.
"Under the circumstances, he simply never could have litigated the new protocols to a final conclusion given the timeline under which he was placed by the state," his attorneys wrote.
A federal judge halted Workman's execution last week over concerns about the revisions, but a three-judge panel of the 6th U.S. Circuit Court of Appeals lifted that temporary restraining order Monday.
The appeals court rejected a petition Tuesday seeking a hearing by the full court, and denied motions for a stay of execution. Workman's public defender, Kelley Henry, did not immediately return calls after the ruling.
The U.S. Supreme Court on Tuesday rejected separate motions for a stay of execution based on the lethal injection protocol and other claims that he was convicted on perjured testimony and that the state withheld evidence that would have established his innocence. The latter claims were also rejected last week by a three-judge panel of the 6th Circuit.
Workman could also appeal to the governor for clemency. "We'll cross that bridge when we come to it," Bredesen's spokesman Bob Corney said.
A federal judge on Tuesday granted Workman's request that his body not be autopsied after execution.
Besides Tennessee, executions have been halted in 10 other states so procedures could be reevaluated: Florida, California, Missouri, New Jersey, Arkansas, Delaware, Maryland, North Carolina and South Dakota and Ohio.
Tennessee executed Sedley Alley last June and Robert Glen Coe in 2000 - both by lethal injection. The last previous execution was by electrocution in 1960.
Brad MacLean, a Nashville attorney representing another condemned Tennessee inmate, said the three-chemical injection sometimes fails to work and can cause the paralyzed inmates to suffocate and feel pain.
At least 30 states use the three-drug injection: thiopental, an anesthetic; pancuronium bromide, a nerve blocker and muscle paralyzer; and potassium chloride, a drug to stop the heart.
"The fact that they're continuing to use a protocol, a three-chemical cocktail that's been criticized throughout the county, just illustrates the state is not willing to take a serious look at the problems," he said.
Workman, 53, was robbing a Wendy's restaurant and got into a gun battle with police. He wounded one officer and shot at a second, but he contends another officer's bullet accidentally killed police Lt. Ronald Oliver.
Workman told The Tennessean newspaper that the state's new execution procedures would do little to ensure his death is not painful and inhumane.
"It didn't fix anything," Philip Workman said in an interview at Riverbend Maximum Security Institution in Nashville. "You can't move if you're in pain. You can't bat your eyelashes. You can't do anything."
Workman's execution has been delayed on five prior occasions - twice by stays granted by the 6th Circuit Court of Appeals in 2000 and 2001, once by a stay granted by the Tennessee Supreme Court in 2001, once by executive reprieve in 2003 and once by the federal district court in 2004.
Terry Workman, Philip Workman's brother, said he believes the state is intent on putting his brother to death this time.
"It would be kind of like standing in front of someone with a loaded weapon and you're wondering if they're going to shoot you," he said recently.
"It doesn't matter if we have all this evidence. The way the state looks at it is, it was a police officer who was killed and he (Workman) caused the situation to occur. They don't really care whose bullet it was."