The question of whether the state's three-drug lethal injection protocol violates the U.S. Constitution is now in the hands of U.S. District Judge Kristine Baker, who heard final testimony and closing arguments Thursday morning in a nonjury trial that lasted nine days.
She took the matter "under advisement," and hasn't said when she will issue a written ruling. However, there are currently no executions scheduled.
Attorneys sued over the protocol in 2017, when eight executions were pending. After a flurry of judicial proceedings, four of those inmates were executed just before the state's supply of midazolam, the sedative that is at the heart of the lawsuit, expired.
Although Baker issued a preliminary injunction in 2017 forbidding the state from using the protocol until the matter could be examined more closely at trial, she was overturned by the 8th U.S. Circuit Court of Appeals. Since then, other death-row inmates have joined the constitutional challenge, raising the number of plaintiffs to 18, including one inmate whose death sentence was commuted in 2017 to a life sentence.
There are currently 30 inmates on Arkansas' death row.
In closing arguments Thursday, an attorney for the inmates said they have demonstrated that the use of midazolam as the first of three drugs administered intravenously doesn't guarantee that the inmates won't experience excruciating pain as the final drugs are injected. But the Arkansas attorney general's office, which is defending Wendy Kelley, director of the state Department of Correction, and Gov. Asa Hutchinson, the two named plaintiffs, countered that the inmates "have produced no reliable proof to substantiate their claims."
The second drug, vecuronium bromide, is a paralytic that the inmates' attorneys say causes difficulty breathing and prevents the inmates from displaying the searing pain they feel from the injection of the third drug, potassium chloride, which stops the heart.
Being injected with potassium chloride "is like having gasoline poured on you and being set on fire," attorney Will Freeman of Boston said several times during his closing argument on the inmates' behalf.
He said anesthesiology is a complicated subject -- so much so that anesthesiologists must "use multiple drugs to carefully get the exact results they want."
He recalled testimony from a pharmacologist that each drug is "targeted like a lock on a key to work on one certain thing," and midazolam is useful only as a sedative, not as a pain-killer.
The U.S. Food and Drug Administration has approved the use of midazolam as a sedative for "the induction of general anesthesia," Freeman said, citing the agency's drug label and emphasizing that it is approved for use "before the use of other anesthetic agents."
He cited the testimony of two pharmacologists that midazolam is also a fast-acting drug that can start to lose its effectiveness within four to eight minutes, or 10 to 15 minutes, after being administered. Freeman said each of the four executions carried out in 2017 lasted 10 to 15 minutes.
Freeman said that Kenneth Williams, the last of the four inmates to be executed in April 2017, was observed by several witnesses "lurching forward" rhythmically several times for about 10 to 15 seconds, starting two to four minutes into the process, when observers weren't certain how many of the drugs had been administered because it hadn't been announced.
He said that while the state may dismiss "dramatized descriptions by media witnesses," a former Associated Press news editor who "is undisputably not connected to either side," clearly described seeing Williams lurch 15 to 20 times, and continue moving "till the minute he died."
The editor, Kelly Kissel, testified that Williams' body lurched forward 15 times in quick succession, followed by five slower lurches, and then his breathing appeared to become shallower, saying, "I've never seen that in a non-midazolam execution."
Kissel said that out of 10 executions he has witnessed, only the two he witnessed in Arkansas in 2017 involved midazolam.
Kelley, the prison director who was in the execution chamber at the time, testified that Williams' movements startled her, but that she didn't see any indication that he was in pain. When Kissel was asked if Williams appeared to be in pain, he said, "I'm a journalist, not a doctor. Whether he was in pain or not, I have no idea."
The bottom line, Freeman argued Friday, is that midazolam "cannot be relied upon to render an inmate fully insensate to pain."
He said the inmates had also met their legal burden of presenting two viable alternatives for the state to use to execute inmates -- a firing squad, which was used in Utah in 2010, and secobarbital, a barbiturate that experts said induces a deeper state of sedation that includes unconsciousness.
He cited the testimony Wednesday of Dr. Charles Blanke of Oregon, who uses the drug to provide assisted suicide in that state. Freeman said that Blanke called the barbiturate "a reliable, painless, easy way to go."
Freeman also argued that Arkansas would have no more difficulty obtaining the barbiturate for use in lethal injections than it has had obtaining other drugs, including midazolam, whose manufacturers don't want them used in executions.
Jennifer Merritt, a senior assistant attorney general, argued that the 2017 executions were carried out "with dignity and professionalism." She said the prisoners' burden "is not to show the possibility of pain. ... They must show that midazolam is sure or very likely to cause pain," and have "simply failed."
"Just because it is not preferred for long surgeries doesn't mean it cannot work for a 10- to 15-minute duration procedure," Merritt said.
She said any observers' beliefs that they saw any of the four inmates executed in Arkansas display signs of pain "is pure, rank speculation. Movement does not equate to pain."
She reminded the judge of testimony from the state's medical experts that "all of those movements are known side effects of a rapidly injected high dose of midazolam. That is the scientific consensus the court should credit."
Merritt noted that in each of the four executions in 2017, none of the inmates responded to consciousness checks, which are "the same procedures anesthesiologists use in operating rooms across the country."
Among the state's witnesses Wednesday was a "confidential witness" for whom the courtroom was closed to the public. Merritt's closing argument indicated the witness may have been the person referred to during the trial as "the designee," an anonymous volunteer who stood near the inmates during the execution process, performed the checks and talked quietly into a microphone to the unseen executioner.
Merritt said "the designee" was "very careful in explaining to the court how the consciousness checks were performed."
She said "four or five" reports of physical reactions out of 35 midazolam-assisted executions that have been performed across the country "does not come close" to proving that pain is a likely consequence of Arkansas' protocol.
Merritt discounted the suggested use of secobarbital instead, saying it has never been used for an execution. She recounted Blanke's testimony that one patient took four days to die after receiving the drug, and that "eight patients have actually woken up" after the drug was given.
Blanke testified that secobarbital usually takes only about 25 minutes to work. He said it has been used in 28 deaths in Oregon, but is expensive, costing more than $3,000 a dose. Another barbiturate, pentobarbital, is no longer available in North America.
Merritt also dismissed the idea of using a firing squad to execute inmates, saying that even if an inmate dies within minutes of being hit by a barrage of .30-caliber bullets fired into his chest by four rifles, he would still experience pain.
Freeman countered that "we have shown to a medical certainty that pain will occur" if Arkansas' protocol is used. He said the medical consensus is that "when midazolam is used, it must be used with other anesthetic agents."
Metro on 05/03/2019