Out-of-state experts in the fields of medicine, prisons and law testified Monday on Arkansas' plan to use lethal injection on seven inmates this month, as attorneys for the condemned began another push in federal court to stave off the executions.
The lawsuit being heard is the most recent attempt by a group of death-row inmates who have said for years that the state's preferred method to kill them will be excruciatingly painful.
There is little time to hear the case, with the first pair of executions scheduled to begin at 7 p.m. Monday. Whatever decision U.S. District Judge Kristine Baker comes to, it is almost certain to prompt a last-minute appeal to the 8th U.S. Circuit Court of Appeals in St. Louis, attorneys said Monday.
As the first of four expected days of testimony began in Baker's Little Rock courtroom, the Arkansas Parole Board announced that the final bid for clemency, that of convicted killer Jack Jones Jr., was deemed to be without merit.
Jones wrote in a letter to the board Friday that his clemency request was made in a show of solidarity for his peers, who are hoping for mercy from Gov. Asa Hutchinson, but that he'd rather be put to death this month than spend more of his life in prison.
Of the six inmates who have applied for clemency, the Parole Board has ruled in favor of only Jason McGehee. His execution, one of eight scheduled originally, was put on hold last week by D. Price Marshall Jr., another federal judge in the Eastern District of Arkansas.
Marshall ruled against the other inmates, who had argued in a separate lawsuit that the state's expedited clemency process to accommodate the approaching execution dates was unconstitutional.
In this week's action, the inmates allege that the rush to use a soon-to-expire lethal injection drug on seven prisoners in 11 days amounts to cruel and unusual punishment and that it diminishes their right to counsel.
Forgoing opening statements, the inmates' attorneys began their case with an Emory University anesthesiologist who said the experience of being injected with the three-drug cocktail used by the state would be "terrifying."
The lead attorney for a group of Ohio public defenders who were recently successful blocking a similar method of execution also testified for the inmates, as did a former North Carolina prison warden, who described the toll carrying out a death sentence can have on the executioners.
Speaking to a reporter after the hearing, Arkansas Department of Correction Director Wendy Kelley said any prison employees participating in the executions will have to attend a subsequent "debriefing" conducted by mental health professionals.
Declining to offer specifics, Kelley said "several" employees with a planned role in the current slate of executions have experience from the last time the state carried out an execution, in 2005.
Arkansas Solicitor General Lee Rudofsky -- representing the governor and the Department of Correction -- said the inmates' complaints about the lethal injection protocol are "serial, piecemeal litigation" intended to delay indefinitely their punishments.
The highest courts in Arkansas and the United States have upheld the state's plan to execute the inmates -- via an injection of midazolam to sedate the inmate, followed by doses of vecuronium bromide, a paralytic, and potassium chloride, to stop the heart.
The problem with that plan, according to Joel B. Zivot, the anesthesiologist who testified on the inmates' behalf, is that midazolam does not block the pain that is inflicted by the subsequent pair of drugs.
Zivot said that except in rare circumstances, midazolam is given in surgical settings as part of a concoction of drugs to render a patient unconscious.
Zivot described how the inmates, without a complete anesthetic dose, could be subject to the painful effects of the paralytic halting breathing -- "like being held underwater" -- and the potassium chloride, which can "burn up the vein."
Rudofsky said the potential for a painful death is not enough to put a stop to the executions. U.S. Supreme Court precedent from its 2015 ruling in a case brought by Oklahoma inmate Richard Glossip states that inmates have to provide a "known and available alternative" when seeking to prevent the state's chosen execution method.
To satisfy that requirement, the inmates have suggested alternatives not considered under state law: a firing squad, or using inhaled anesthetics before lethal injection.
Rudofsky said the inmates had failed to show the state can carry out any of their suggested alternatives.
The state sought in court filings over the weekend to have Baker dismiss the case as frivolous.
"The more information this court hears, the more it muddies the water," Rudofsky said Monday.
However, Baker declared her intention Monday of having the inmates' case heard out. She scheduled hearings set to last past sunset over the next several days.
Information for this article was contributed by reporter Emma Pettit of Arkansas Online.
A Section on 04/11/2017
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