THE CAPITAL, TALLAHASSEE, Aug. 4, 2011 -

Brandon Larrabee, The News Service of Florida

A state judge turned aside a convicted murderer's challenge of one of the drugs that will be used for his execution, setting the stage for a battle before the Florida Supreme Court.

The high court ordered the hearing on the state's new execution procedure in a divided decision last week. Lawyers for Manuel Valle, 61, have questioned the effectiveness of pentobarbital as an anesthetic to induce unconsciousness in humans.

The state began using that drug after the company that manufactured another drug, sodium thiopental, stopped production.

Valle faces death for the 1978 murder of Coral Gables police officer Louis Pena.

But Circuit Court Judge Jacqueline Hogan Scola ruled Wednesday that Valle's lawyers failed to prove that there were enough questions about pentobarbital to warrant barring his execution under the U.S. Constitution's prohibition of cruel and unusual punishment.

"In order to do so, in the lethal injection context, a defendant must show an objectively intolerable risk of harm which must be sure or very likely to cause needless suffering," Scola wrote. "Not only has the defendant failed to meet this standard, he has failed to present any credible evidence of any risk of needless suffering. ...

"The defendant must prove that there is substantial risk, not that the risk is unknown."

Much of the testimony at the evidentiary hearing centered on the June execution of Roy Blankenship in Georgia. The defense's expert, drawing on accounts of the execution, questioned whether the drug worked as intended. But state witnesses -- including some who were at Blankenship's execution -- said there was nothing unusual.

Ultimately, Scola found the state's witnesses more credible. The judge also brushed off the objections of Danish company Lundbeck, which made the drug but opposes the use of the chemical in executions primarily on ethical grounds. Defense lawyers highlighted a letter Lundbeck sent to Gov. Rick Scott urging the state not to use its product in executions.

"There was no mention of medical evidence or anything relevant to the courts inquiry," Scola wrote. "This exhibit is of no legal value and carries no weight."

Attorney General Pam Bondi hailed the decision.

"This drug has been used for lethal injection in many other states and has already been upheld in three federal district courts," she said. "This man killed a police officer, and his execution is long overdue."

The case now returns to the Supreme Court, which could hear oral arguments on Aug. 24.

Valle's original execution date had been Aug. 2, but the court stayed it until Sept. 1 to allow for a ruling on the use of the drug.