A federal judge on Friday evening ordered Arkansas to examine Kenneth Williams' execution more closely, hours after Gov. Asa Hutchinson rejected calls for an independent investigation into the lethal injection.
U.S. District Judge Kristine Baker effectively ordered the state's medical examiner to conduct a full autopsy and save vials of Williams' blood and his tissue samples "until further order of this court." Baker issued the ruling less than 24 hours after Williams died from a sequence of three drugs aimed at sedating him, paralyzing him and stopping his heart in the execution chamber at the Cummins Unit.
Conflicting witness accounts emerged earlier over the extent of Williams' movements -- whether he audibly lurched or silently coughed after he was injected with the sedative midazolam and whether he moaned after receiving doses of the other drugs.
The underlying question is whether Williams could have been conscious when an executioner pushed a paralytic, vecuronium bromide, and heart-stopping potassium chloride into his IV line, two drugs that can make it difficult to breathe and can cause severe pain in someone who is awake.
Williams -- strapped to a gurney at his arms, wrists, legs, ankles and chest -- lurched forward 15-20 times at roughly 10:55 p.m., about three minutes after the sedative was administered to begin the execution, media witnesses said.
Williams was "coughing, convulsing, lurching, jerking with sound even with the [execution chamber] microphone turned off," said Kelly Kissel, state news editor for The Associated Press and a witness to the execution. Kissel said Friday he wasn't sure whether the "sound" came from Williams' mouth or from his convulsions on the gurney.
State Sen. Trent Garner, R-El Dorado, a citizen witness to the execution, described the movements in a federal court affidavit as "brief involuntary muscle spasms" and noted that he saw no evidence of "pain or suffering," such as a grimace.
Citing a conversation with state Department of Correction Director Wendy Kelley, who was in the execution chamber with Williams, Hutchinson said the inmate's coughing was "without noise" and that coughing is listed as a side effect on the midazolam package's insert.
Kelley, who traveled out of state on a previously scheduled trip, was not available for a phone interview Friday, prison system spokesman Solomon Graves said.
"From what I have seen and observed from the record, the 10 seconds of movement occurred during that first midazolam injection, so it was not part of the second and third drug protocol," Hutchinson said.
Graves disclosed Friday that the second and third drugs were administered beginning at 10:57 p.m.
That is the same time an attendant inside the execution chamber began conducting the first consciousness check, a process that is done before the potentially painful drugs are pushed through the IV line, according to media witnesses and a Department of Correction log of Williams' execution
Media witnesses said Williams let out a moan at 10:58 or 10:59 p.m., while the prison system director and Garner reported hearing no sounds from the inmate.
Kissel, who initially said the sound was "barely audible," said Friday that he wasn't sure whether he heard a noise at that time. His notebook simply says, "gasp?" at that time, he said. Fellow media witness Knowles Adkisson of the Pine Bluff Commercial said in an interview it sounded like a "moan or groan."
Kissel and Garner sat in the third row of the witness room. Adkisson was in the fourth row.
A coroner was summoned at 11:04 p.m. and pronounced Williams dead at 11:05 p.m., the log says.
Williams' attorney, Shawn Nolan of Philadelphia, learned of Williams' movements from staff attorneys who witnessed the execution. He began typing an emergency motion to halt the lethal injection but didn't finish writing before he was interrupted.
"He's dead," a member of his staff told him.
Williams was the fourth inmate Arkansas executed over an eight-day period that began with the lethal injection of Ledell Lee on April 20, its quickest pace of executions since 1960. Conflicting eyewitness accounts have similarly clouded the execution of Marcel Williams and the lead-up to Jack Jones' lethal injection, both on Monday.
Hutchinson initially scheduled eight inmates to die over 11 days in the state's race against the expiration date on its supply of midazolam. Court orders spared the others, at least temporarily.
Concern about whether Arkansas' use of midazolam would properly sedate inmates was the focal point of a four-day hearing this month before Baker.
Baker granted a temporary injunction for the inmates after deciding there was a "significant possibility" the inmates would succeed in their challenge that the method of their execution would violate the Constitution's Eighth Amendment protections against "cruel and unusual punishment." But the 8th U.S. Circuit Court of Appeals overturned Baker, and the U.S. Supreme Court in a 5-4 vote upheld the appellate court's finding.
Dr. Joseph Antognini, an anesthesiologist who testified on behalf of the state during the hearing, said in court that coughing does not indicate someone is conscious and able to feel pain.
"Just because someone is coughing and so forth doesn't indicate to me that they're conscious," said Antognini, who testified that the state compensated him as a medical expert, according to the transcript.
Dr. Joel Zivot, an anesthesiologist who testified on behalf of the inmates, said Friday that "no benign, innocuous explanation" exists for Williams' movements.
"I think that there is no nominal or innocent reason why he should move," Zivot said, adding that he has used midazolam "thousands of times" in medical practice and never seen a patient cough. "[The explanation is] totally nonsense. The drug doesn't make people cough."
Hutchinson said a "routine review" would be conducted into Kenneth Williams' execution. He said that includes Friday's release of the Department of Correction log and a conversation among officials about the execution that won't produce a written report.
"I think it's totally unjustified," Hutchinson said of an independent investigation. "You don't call for an independent investigation unless there's some reason for it. Last night, one of the goals was there to not be any indications of pain by the inmate. That's what I believe was the case last night. ... I think the public has confidence in what happened."
Asked about conflicting accounts, Hutchinson said he's going to review all witness statements.
"I've been a lawyer a long time, and if you have five witnesses, you're going to have five different descriptions," Hutchinson said, adding that Kelley was "closest" to Williams. "I have a tremendous amount of confidence in her."
A lack of reliable information has made it difficult to reconcile discrepancies. The Correction Department shuts down the microphone inside the execution chamber after inmates make their final statements, and the department does not typically document the specific times that the second and third drugs are administered or that the inmate is deemed to be unconscious on next-day logs.
However, after Kenneth Williams' execution, Graves disclosed the time the second drug was injected and the inmate log included what time an attendant checked to see if Williams was awake.
Hutchinson said concerns about the in-chamber microphone being turned off during the execution is a "fair question" and said he expected the Correction Department to "think through" those policies.
"You got to balance a lot of things there, and so anytime you're balancing things it's fair to say, 'Do we have it right?'" Hutchinson told the Arkansas Democrat-Gazette in an interview after his news conference. "It's fair to have that discussion. I know there's some good policy concerns that the Department of Correction has.
"I'm open to reviewing the transparency aspect of it, not prejudging that anything should be changed."
Information for this article was contributed by John Moritz of the Arkansas Democrat-Gazette.
A Section on 04/29/2017
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