Arkansas execution rules block out parts; getting full picture difficult, lawyers, other witnesses say

Arkansas has executed three death-row inmates this month. From left: Ledell Lee, Jack Jones and Marcel Williams.
Arkansas has executed three death-row inmates this month. From left: Ledell Lee, Jack Jones and Marcel Williams.

A full account of what happened during two Arkansas executions Monday -- journalists reported the deaths were not abnormal, while attorneys outlined disturbing concerns -- has been difficult to establish given restrictions on what witnesses can see and hear.

The executions of Jack Jones Jr., 52, and Marcel Williams, 46, took 14 minutes and 17 minutes, respectively, and were held about three hours apart inside the execution chamber at the Cummins Unit prison in Grady.

The double execution followed the state-imposed death of Ledell Lee, 51, which took 12 minutes last Thursday and by all accounts occurred without problem.

Attorneys for Jones and Williams had argued that health problems -- both were diabetic, and Williams weighed nearly 400 pounds -- could complicate the lethal injection process.

Within an hour of Jones' death, called at 7:20, Williams' attorneys had filed an emergency motion to call off the second execution over concerns that it took 45 minutes to place an IV line in Jones' veins and that he was "gulping for air" as he died.

The last-minute plea was filed as Williams was already strapped to the gurney. A federal judge reviewed the appeal and rejected it about two hours later.

Media witnesses said they saw Jones moving his lips after the initial injection, but they said it was unclear whether Jones was talking, gasping or simply moving. The execution occurred very close to its scheduled 7 p.m. start, and prison officials had given no indication there had been a problem placing the IV line.

Attempts to clarify the discrepant reports were fruitless. Neither the media witnesses nor the attorneys had been allowed to witness officials place the IVs, per prison department policy, which a prison spokesman said also led officials to turn off an audio connection between the execution chamber and witness room shortly after Jones uttered his final statement.

[đź“„ Click here to read documents detailing executions of Williams, Jones]

Prison spokesman Solomon Graves said the policy has been in place since at least 1990, though he declined to produce a copy of the policy, which he said was exempt from public disclosure. An Associated Press reporter who has witnessed Arkansas executions dating back decades agreed that the policy is long-standing.

When asked to explain the reasoning behind the policy, Graves directed reporters to state law.

"By law the execution itself is a private event," Graves said. "It is not public."

The law Graves referred to, Arkansas Code Annotated 16-90-502, declares executions "private," though it establishes a list of those allowed to view the process, including as many as a dozen citizen witnesses "whose presence is necessary to verify that the execution was conducted in the manner required by law."

Others allowed to be present include family members of the victims, as well as attorneys and a spiritual adviser for the prisoner. Reporters are not mentioned by the law, though the state director of prisons may designate other witnesses, and three slots have typically been provided to the media.

On Tuesday, state Department of Correction Director Wendy Kelley, who oversaw the executions from within the execution room, described her account what Jones was doing as the first of three execution drugs, a sedative, entered his body.

"He said, 'Wendy, you know how I feel about you,' and to the executioner, 'No man should ever have to do this,'" Kelley recounted.

"He was never gasping for air. He never appeared to be in any distress or pain at all," Kelley said, offering the same observation for Williams' and Lee's executions, too.

Department of Correction logs of inmates' and officials' activities leading up to and through the executions were released late Tuesday, but they left several questions unanswered.

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The logs list the time when the drugs are first administered but do not note when the second and third drugs are injected. They list the time when absence of a pulse is first assessed but not when the inmate is determined to be unconscious.

They include no notes of words spoken when the microphone is shut off.

Again citing that executions are private events, Graves said he could not answer specific questions about what transpired inside the death chamber beyond what's on the logs, officially completed by the department's internal affairs division. Kelley determines the logs' format, which is consistent across all executions, Graves said.

The logs indicated that it took less than 10 minutes to hook up the catheters to IV lines in Jones' arms just before the execution, though Jones' attorney said the lines themselves were inserted earlier Monday rather than at the execution chamber.

Jones spent at least two hours at the prison infirmary -- where a medical professional pierced his neck but couldn't find a vein -- before opting to instead have lines placed in each arm, Jones told his attorney, Jeff Rosenzweig, upon returning to his isolated cell shortly after 5 p.m.

Robert Dunham, executive director of the nonprofit Death Penalty Information Center in Washington, D.C., said while other states have adopted policies that limit the scope of what witnesses may observe in executions, Arkansas' rules appeared especially troubling.

"You may call them eyewitnesses, but much of what we process is through hearing as well," Dunham said. "There's not a legitimate reason to turn off the sound."

News accounts in other states indicate that reporters are often barred from seeing prison employees attempt to locate a usable vein to place an IV to administer the lethal drugs, though mistakes in this procedure were linked to problems that arose in the prolonged 2014 execution of Clayton Lockett in Oklahoma, which led to greater concern about the three-drug protocol that uses the sedative midazolam.

Dunham said he did not know if other states turn off audio during the lethal injection process.

In Texas, which has carried out four executions this year, "the practice is to leave the microphone on," Jason Clark, a spokesman for the Texas Department of Criminal Justice, said in an email.

A four-day hearing before U.S. District Judge Kristine Baker earlier this month focused on whether the state's use of midazolam risked leaving inmates conscious, exposing them to pain when the next two drugs, a paralytic and a heart-stopping dose of potassium chloride, are injected.

Williams and Jones said in their appeals that their health ailments put them at greater risk of pain and suffering from the use of midazolam. All three levels of the federal judiciary, including the U.S. Supreme Court, rejected those appeals.

Attorneys echoed those concerns after Monday night's double execution.

Jamie Giani, an assistant public defender on Williams' legal team who witnessed his execution, said she watched officials conduct the execution but was uncertain throughout about what was actually happening.

"[Williams] was moving," Giani said. "He was showing signs of consciousness, of movement, up until at least three minutes before they declared him dead. Just the fact that there was no clarity on what was happening -- no clarity on whether a determination was made that he was unconscious -- caused me great concern."

Until the coroner entered the execution room to assess whether Williams was dead, Giani believed the executioner had not progressed beyond administering midazolam. Giani said that was her impression because the Department of Correction worker tasked with determining the inmate's state of consciousness never made it visibly affirmative that Williams was unconscious.

The worker as late as 10:31 p.m. brushed Williams' eyelids, which Giani interpreted in real time as a check to see if he was awake. Williams was pronounced dead at 10:32 p.m.

"If they would have administered the next two drugs while he was still conscious, he would have suffered unbearable pain, which is what we wanted to avoid," Giani said.

Kelly Kissel, the state news editor for The Associated Press, witnessed Williams' execution Monday and eight previous lethal injections in Arkansas and Oklahoma. He said he would not describe Williams' reactions as painful or a sign that the midazolam was not working.

"I did not see anything that was distressed other than a large man with diabetes that was on his back," Kissel said.

The Department of Correction worker conducted the first apparent consciousness check on Williams at 10:22 p.m., Giani said, when he touched the convicted murderer's eyes and eyelashes and spoke into his ear.

Williams' eyes had shut at 10:17 p.m., one minute after the execution began, Giani said. But at 10:28 p.m. Williams' right eye -- the only eye Giani could see from her vantage point -- opened, she said. She said his pupil moved.

She noted that Williams' pupil moved as late as 10:29 p.m. A coroner, summoned to the room, pronounced Williams dead at 10:32.

Williams' right eye was open the last time Giani saw him, she said, when a curtain was drawn between the witnesses and the execution room.

Metro on 04/26/2017

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