The Tennessee Supreme Court ruled Monday that a Knoxville inmate challenging the state's lethal injection protocol had failed to pass a legal test, confirming his execution would proceed Thursday, Aug. 9.
The order released Monday afternoon was unsigned. Justice Sharon Lee submitted a dissenting opinion arguing the stakes were too high not to allow Billy Ray Irick's case to proceed.
The Associated Press reported that federal public defender Kelley Henry had requested Haslam's temporary stay while the drugs are studied further. She said she will request a stay with the U.S. Supreme Court.
Also Monday, Gov. Bill Haslam declined to get involved in the case.
“I took an oath to uphold the law. Capital punishment is the law in Tennessee and was ordered in this case by a jury of Tennesseans and upheld by more than a dozen state and federal courts," Haslam said in a statement. "My role is not to be the 13th juror or the judge or to impose my personal views, but to carefully review the judicial process to make sure it was full and fair. Because of the extremely thorough judicial review of all of the evidence and arguments at every stage in this case, clemency is not appropriate.”
Federal appeals are expected.
Tennessee hasn't executed an inmate since 2009.
Irick, 59, is set to die for raping and killing 7-year-old Paula Dyer of Knoxville in June 1985 in her Exeter Avenue home. He's being held at the state's Riverbend Maximum Security Institution.
Irick is among 33 death row inmates in Tennessee challenging the state's three-drug method of execution, which calls for use of midazolam, vecuronium bromide and potassium chloride.
Related: AG says it's time to execute Irick
Last week a Davidson County chancellor turned back the challenge, ruling defense attorneys had failed to show the state's method was unconstitutional. Attorneys argued midazolam fails to properly sedate the inmate, subjecting him or her to unconstitutional pain and suffering as the other two drugs take effect.
Irick's lawyers then appealed, and on Monday, the five-member Tennessee Supreme Court stepped in.
Under rules adopted by the court in 2015, Irick has to show he has "a likelihood of succeeding on the merits of that litigation."
Under legal precedent, Irick had to show there was another constitutional method of lethal injection that could be applied.
Defense attorneys argued during the Davidson County Chancery Court trial that the state could use a single drug called pentobarbital. The high court, however, said state authorities told Chancellor Ellen Hobbs Lyle they weren't readily able to get pentobarbital.
The justices said they couldn't assume that because it has been used elsewhere including Georgia that it's now available for Tennessee.
"Mr. Irick has not demonstrated a likelihood of success on the merits of this element," the court's Per Curiam ruling states.
Justice Lee dissented and submitted her own opinion Monday night.
Lee said Irick's challenge to the three-drug method is still pending and should be heard by an appellate court. The brief delay that would be caused by putting off this week's execution causes "minimal, if any, harm to the State," she wrote.
Lee wrote: "I will not join in the rush to execute Mr. Irick and would instead grant him a stay to prevent ending his life before his appeal can be adjudicated."
Lee noted the state has changed its proposed method of lethal injection several times over the past eight years.
Irick has been on death row since 1986. His execution has been reset several times through the years.
At the time of the rape and killing, Irick was babysitting Paula and four other children in their Exeter Avenue home.