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Pulaski County judge issues restraining order on state's use of lethal-injection drug, blocking all executions

by Arkansas Online staff | April 19, 2017 at 10:27 a.m. | Updated April 19, 2017 at 7:31 p.m.

6:37 p.m. UPDATE:

A Pulaski County judge issued a verbal temporary restraining order Wednesday on Arkansas’ planned use of one of three drugs used for lethal injections, effectively blocking all executions.

Pulaski County Circuit Judge Alice Gray gave the ruling after testimony from top Arkansas Department of Correction officials, who defended their process for obtaining vecuronium bromide from supplier McKesson Medical-Surgical Inc.

Arkansas Attorney General Leslie Rutledge plans to appeal the decision to the Arkansas Supreme Court, said Judd Deere, a spokesman for the attorney general's office.

Rory Griffin, the department’s deputy director of health services and inmate programs, told the court Wednesday afternoon that he had advised Tim Jenkins, an account manager for McKesson, of the drug's specific use as part of the state’s lethal injection protocol.

That testimony did not match that of earlier statements from Jenkins, who told the court that he wouldn’t have completed the sale had he known its purpose.

Griffin testified that he had spoken with Jenkins over the phone and via text messages. He noted an initial conversation with the drug salesman expressing his intent and desire for further conversations about the transaction to be confidential and limited.

Director Wendy Kelley said that the practice of the Correction Department is to avoid as much of a paper trail as possible when it comes to execution drug transactions.

Griffin said he had phone conversations and exchanged text messages with Jenkins, but did not keep the messages recorded on his phone.

Text messages saved from Jenkins’ phone were presented in court, none of which mentioned the use of the drug.

in closing arguments, Assistant Attorney General Colin Jorgensen said that McKesson had "brought this problem on themselves."

One of McKesson's attorneys, meanwhile, contended that Jenkins had been “duped” into selling the drug, and noted that use of the vecuronium bromide would result in “irreparable harm.”

Gray agreed with the McKesson in her verbal ruling about 6:20 p.m., denying use of the drug and putting all executions at a halt.

Two executions were scheduled for Thursday and three others were set for next week.

Minutes before Gray's ruling, the Arkansas Supreme Court barred the execution of one of the inmates set to die Thursday: Stacey Johnson.

Read Thursday's Arkansas Democrat-Gazette for full details.

— Brandon Riddle

3:10 p.m. UPDATE:

The medical supplier employee who sold Arkansas its supply of vecuronium bromide said in court Wednesday he would not have made the sale if knew the state intended to use the drug in executions.

Tim Jenkins, an account manager for the drug distribution company McKesson Corp., testified in front of Pulaski County Circuit Judge Alice Gray as part of his employer’s suit against the state Department of Correction.

McKesson's lawyers argued that Gray should issue a temporary injunction blocking the five executions scheduled this week and next because the state used deceit to obtain the drug, the Arkansas Democrat-Gazette reported. Vecuronium bromide, a paralytic that relaxes the respiratory system, is one of the three drugs used in the state’s lethal-injection protocol.

Jenkins, who has worked in sales for McKesson for about 24 years, said in court he was driving sometime last summer when he got a call from Rory Griffin, the deputy director of health programs for the Department of Correction. Griffin told him he was interested in buying the drug, and Jenkins instructed him to email him the name of it so he could get the spelling right.

Griffin then told Jenkins he’d “prefer not to” and instead gave the name again over the phone while Jenkins wrote it down on paper, the employee told the courtroom. Griffin then texted Jenkins the next day with the corresponding company number for the drug, and Jenkins placed the order, he said.

At no time did they discuss that the drug was to be used for executions, Jenkins said, noting he would not have completed the sale if he knew.

"I wouldn’t have done it,” he said.

At one point, Griffin offered to pick up the ten boxes of the drug in person, Jenkins said. The vials had already been shipped via UPS to the prison, he said.

Later questioned by the defense, Jenkins told the courtroom Griffin never explicitly said the drugs were not going to be used for executions. In response to a different question, Jenkins said he has no authority to tell the organizations he works with what to do with the drugs they order.

In his opening statement, one of McKesson’s lawyers, Steven Quattlebaum, said there is a “relationship of trust” in commercial transactions, and the Arkansas Department of Correction breached that trust.

Griffin obtained the paralytic drug by using a medical license that was already on file that is supposed to cover supplies for a “legitimate medical use,” Quattlebaum said. Under Arkansas law, executions are not a legitimate medical purpose, he said.

When the Department of Correction “got caught” and McKesson learned of the drug’s intended use, the company asked for the vials back, but the request was ignored, Quattlebaum said.

McKesson expected “transparent, honest transactions” with the state of Arkansas, which they did not receive, Quattlebaum argued.

McKesson is not arguing to stay the executions, Quattlebaum said repeatedly. What they are seeking is a “maintenance of the status quo” until the issue can be fully litigated, he said.

Assistant Attorney General Colin Jorgensen disagreed and told Gray that McKesson’s argument is “cleverly characterized” as a temporary injunction, but is really an attempt to stay the scheduled executions of five condemned men.

If Gray were to side with McKesson, the state does not have another supply of the paralytic, and they likely won’t be able to get the drug any time soon, Jorgensen said. So “the effect, no matter how you word it, is to stay the executions,” and circuit courts in Arkansas have no authority to do so, he said.

Jorgensen said the state believes the case should be dismissed, the drug company has no legal authority and the state Department of Correction has “sovereign immunity” in the matter.

Jorgensen also said McKesson said being associated with the executions will cause the company “irreparable harm,” including financial damages. Yet the state took great pains to not identify any “manufacturer, supplier or distributor” involved in the executions, Jorgensen said.

The company sent out a press release, showed up in court and “announced to the world” that they were involved, Jorgensen said. If they had not done so, very few people would have known, he said.

Gray told the courtroom before witnesses began testifying that she had not made up her mind in the case. A few times during the attorneys’ opening statements, she encouraged them get to the point faster.

Check back with Arkansas Online for updates and read Thursday’s Arkansas Democrat-Gazette for full details.

— Emma Pettit


A complaint brought by a medical supplier that seeks to prevent one of its drugs from being used in lethal injections in Arkansas should be thrown out, the state's attorney general said in a filing Wednesday.

McKesson Medical-Surgical Inc. on Tuesday filed a complaint in Pulaski County Circuit Court seeking a temporary restraining order or injunction "to prevent the use of our product for something other than a legitimate medical purpose," it said in a statement. 📄 Click here to read the full complaint filed Tuesday by McKesson.

Arkansas Attorney General Leslie Rutledge later Tuesday requested that the case be moved to Faulkner County Circuit Court and Wednesday filed a motion requesting it be dismissed entirely. 📄 Click here to read the Wednesday filing.

The filing from Rutledge contends McKesson's complaint fails to "state facts upon which relief can be granted" and notes that it "amounts to a stay of executions" because a court order barring the drug's use would prevent the lethal injections from proceeding.

"[T]his Court lacks jurisdiction to grant a stay of executions as a matter of settled Arkansas law," Rutledge wrote. "The complaint should be dismissed accordingly."

A hearing on the case before Circuit Judge Alice Gray is scheduled for 12:30 p.m.

The executions of Ledell Lee and Stacey Johnson are scheduled Thursday night.

Check back for updates and read Thursday's Arkansas Democrat-Gazette for full details.

— Gavin Lesnick


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