State medical examiner Dr. Charles Kokes testified Tuesday that he reviewed the autopsies of all four Arkansas inmates executed in April 2017 and found nothing to indicate they were conscious or suffering after the second and third drugs were injected.
He was among seven witnesses to testify throughout the day on the state's behalf in a federal trial focused on whether the state's three-drug lethal injection protocol violates death-row inmates' constitutional right to be free from unusual pain and suffering.
Attorneys for 17 death-row inmates and one former death-row inmate say the first drug in the protocol, a sedative called midazolam, isn't powerful enough to prevent the inmates from feeling the suffocating effect of the second drug, vecuronium bromide, and searing pain from the third drug, potassium chloride.
The trial began last week in the Little Rock courtroom of U.S. District Judge Kristine Baker, who is being asked to permanently ban the state from using the protocol. Baker issued a preliminary injunction to that effect two years ago, but she was overturned by the 8th U.S. Circuit Court of Appeals in St. Louis. The state went on to execute four of eight inmates it sought to put to death in quick succession before its stock of midazolam expired.
Kokes, the state's top forensic pathologist, testified Tuesday that the jerking movements and noises that some witnesses to Kenneth Williams' 2017 execution have described "are not indicative of consciousness."
He said that when a high dosage of midazolam is injected intravenously, it "diminishes delivery of blood flow to the heart and brain" and, as in other types of deaths that occur rapidly such as heroin overdoses and hangings, it can result in involuntary movements. He said the hypo-tension caused by the large intravenous infusion also can cause a lack of consciousness.
"If there's that much impairment to the central nervous system, consciousness is not likely," Kokes said.
The state protocol calls for the injection of 500 mg of midazolam, in two back-to-back doses, while the amount of midazolam typically needed to sedate a 200-pound man is 50 mg, other witnesses testified last week.
Assistant Attorney General Jennifer Merritt asked Kokes about witness reports that Williams jerked his head rapidly 15 times and made a moaning sound during his execution on April 27, 2017.
"Was Kenneth Williams conscious and able to feel severe pain when he received the vecuronium bromide?" she asked, referring to the second drug.
"In my opinion," Kokes replied, "he was not conscious."
Merritt asked if he could have felt the injection of potassium chloride, the third drug.
"I think that's absolutely out of the question," Kokes replied.
On cross-examination, he said he agreed with Joseph Cohen, a forensic pathologist who performed a second autopsy on Williams and testified last week that he found signs of petechial hemorrhages on the inside of Williams' upper and lower eyelids, indicating he suffered from hypoxia -- struggling to get air -- before his heart stopped. Kokes said the Arkansas pathologist who examined Williams a day or two earlier at the state Crime Laboratory probably didn't detect the hemorrhages because he performed the exam closer to the time of death, when the eyeballs were still full of fluid.
Asked his opinion of whether midazolam has a "ceiling effect" at which a larger dose has no effect, he said that may apply to the central nervous system's consciousness center, but "there's no ceiling effect for respiratory depression."
"It is a potent central nervous system depressant," he said, adding that the drug has the potential to cause toxic effects that result in death, as well as the potential to cause death by itself.
Kokes' testimony supported that given Monday on the state's behalf by a pharmacologist and an anesthesiologist who said midazolam is effective at blocking the pain from the other two injections. That position was markedly different from testimony offered last week by a pharmacologist, an anesthesiologist and another forensic pathologist, all for the plaintiffs, who said midazolam cannot block pain and can't induce deep enough sedation to prevent suffering from the other two drugs.
Similarly, a string of witnesses to the 2017 executions on Tuesday described much different observations of the executions from what witnesses called by the plaintiffs' attorneys described last week.
Sen. Kim Hammer, R-Benton, who is a Baptist minister and a part-time chaplain at a hospice care facility, described inmate Jack Jones' execution, for which he said he had an "eye-level view" from the witness room. He said that before Jones appeared to lose consciousness, he moved his lips, reciting the Lord's Prayer.
On cross-examination, attorney Ronald Golden asked Hammer, "Are you aware that Jack Jones was actually a Buddhist?"
"I am not," Hammer replied.
Hammer said he saw no facial grimaces or other indications that Jones or Marcel Williams, whose execution he also viewed, experienced pain during any part of the process. On cross-examination, however, he said he may not have been aware that the second drug causes paralysis, preventing facial movements.
Similarly, Sen. Trent Garner, R-El Dorado, described seeing the execution of Kenneth Williams, who experienced "brief, involuntary muscle spasms" for 10 or 15 seconds, before seeming to fall into a heavy sleep.
He said he served as a Special Forces Green Beret in Afghanistan and knows what suffering looks like on a dying person's face. Compared to what he saw on Williams' face in the execution, he said, "they were worlds apart."
Tammy Harrelson, one of two former prosecutors who testified, said Tuesday that she saw the upper part of Kenneth Williams' torso and head move repeatedly during the execution, but she thought the movements were involuntary "because his whole body wasn't involved, like in a seizure. He wasn't flailing. They were too rhythmic."
The judge also heard Tuesday from prison officials who described careful, elaborate preparations to ensure the executions went smoothly, and they said no one involved in the executions ever complained afterward that any problems had arisen.
The trial resumes at 9 a.m. today.
Metro on 05/01/2019