As a federal trial on the constitutionality of Arkansas' three-drug lethal injection protocol began winding down Wednesday, the director of the state's prison system offered a unique glimpse into activities inside the death chamber during the April 2017 executions of four men.
Wendy Kelley, director of the state Department of Correction, also described for U.S. District Judge Kristine Baker the conversations she had with the condemned men in the days before their scheduled deaths and the department's methodical preparations to ensure that the process went smoothly.
Eighteen death-row inmates, including one whose sentence was commuted to a life term in 2017, contend that the state's three-drug lethal injection protocol violates their Eighth Amendment rights to be free from cruel and unusual punishment because the first drug, midazolam, cannot sedate them deeply enough to prevent them from feeling the excruciating pain caused by the second and third drugs. The second drug is a paralytic that makes it difficult to breathe and the third drug creates intense burning before stopping the heart.
A lawsuit first filed in 2017 -- before the state raced to execute eight inmates in 11 days because its midazolam supply was soon to expire -- has since been joined by intervening plaintiffs who have cited perceived glitches in the 2017 executions as further proof that midazolam is ineffective. They have also added claims that a prison execution team failed to perform proper consciousness checks on the dying inmates and that the state violated their rights in limiting access to their attorneys during the process.
Kelley, who has been in the courtroom for most of the testimony that began a week and a half ago, said some of what she's heard has caused her to rethink the practice of failing to announce to execution witnesses when each drug is injected, as it left many onlookers confused. She said other practices, though -- such as forbidding witnesses from having cellphones or allowing the procedures to be videotaped -- should remain in place.
Kelley also offered a different interpretation of the movements some witnesses said they saw inmate Kenneth Williams make during his execution.
Following up on testimony a day earlier from William Straughn, warden at the Cummins Unit where the death chamber is, and the department's chief deputy director, Dale Reed, Kelley said she and members of the team chosen to insert the inmates' intravenous lines met with the death-row inmates individually at the Varner Unit, where they are kept until they are moved to the Cummins Unit a few days ahead of the executions.
She said the IV team inspected the inmates' arms ahead of time and she answered any questions they had. As examples, she said inmate Marcel Williams, who weighed about 400 pounds, was concerned that he was too large for the procedure to be properly carried out, prompting her to find larger restraints.
She said Kenneth Williams was concerned about "some domestic litigation concerning a child," and she checked on it for him and provided an answer before his execution. She said Jack Jones wanted his lethal drugs injected through a central line, rather than through separate intravenous lines, and arrangements for that were made beforehand in the infirmary. She said all four inmates were offered sedatives to decrease their anxiety before their executions, and Jones was the only one who accepted the offer.
Kelley was in the death chamber during all four men's executions, beginning with Ledell Lee, the first person she had ever seen put to death. She said she asked Lee if he had any final words and he didn't answer, prompting her to move closer and ask again. But she said he still didn't answer, and "he appeared to me to be scared," unable to make his lips form any words, "like somebody wanting to cry."
Kelley testified that she knew when a "designee," a person who was monitoring Lee in the death chamber, spoke into a microphone to signal the executioner to start the flow of midazolam, and, "I watched the clock to make sure five minutes passed before the consciousness check." As she stood nearby, she said, she watched the consciousness check being performed, noticing that Lee was unresponsive to his eyeball being touched, a sternum rub and an ear pinch, clearing the way for the injection of the remaining drugs. She said the only sound he made was breathing, and the procedure went as expected.
Jones, who was executed next, had received a sedative beforehand, as well as an early dose of his regular prescription of methadone, which Kelley said she authorized. She said he made a final statement, "and then was sort of rambling. He addressed the victim that was present, and I tapped his hand lightly a couple of times and he said, 'OK, I guess I need to stop talking now."
When the midazolam injection began, she said, he started talking again, telling her, "Wendy, you know how I feel about you." She said he then apologized to the executioner, saying, "I'm sorry. No man should ever have to do this."
Other than making a snoring sound, Kelley said, Jones made no other sounds or movements.
With Marcel Williams, who was executed later the same evening, she said he was initially taken into the chamber and restrained to the gurney, but hadn't yet been hooked up to an IV, before she told him a stay had been granted based on the fact that Jones had kept talking after making his last words.
"He rolled his eyes and said, 'I'm fine,'" she said. Kelley said Williams returned to his holding cell, and when he was escorted into the execution chamber a second time, after the stay was lifted, "it didn't appear to me that he was mentally prepared. The first time, he seemed to have made his peace. The second time, he looked fearful."
She said he declined to make a final statement, and after the midazolam was injected, his breathing got heavy, like he was in a deep sleep, and then his right hand relaxed, making it turn a fraction of an inch and causing her to worry that his arm restraint wasn't tight enough and his hand could fall, cutting off the IV line. She said he didn't respond to a consciousness check, and made no more movements before he was pronounced dead.
Asked by Senior Assistant Attorney General Catherine Cryer about the testimony of a witness, Jamie Giani, who described Marcel Williams' chest moving in a jerky manner and his head moving slightly, Kelley said neither happened.
Kenneth Williams, the last person to be executed, had asked Kelley beforehand to hold up a piece of paper for him while he read his last words, she said. She said that after he made his statement with the microphone on, he said he "wanted to speak to his God," and that the microphone didn't need to stay on, "because that was between him and his God."
Kelley said Kenneth Williams then began speaking in tongues, as the midazolam was administered. She said that about a minute later, "the trunk of his body -- his chest -- came off the table and hit the table, like he was coughing but there wasn't a coughing sound." She said his body moved rhythmically for about 10 seconds, fast at first and then slower, but he had no facial expression and his hands didn't clench. Other than his torso hitting the table, she said, there were no sounds.
While at least one other witness had described seeing Kenneth Williams' head moving and hearing him coughing or moaning, even convulsing, she said neither occurred.
"It wasn't violent. It was startling, because at least from my point of view, it was unexpected," Kelley said.
Acknowledging that she was the only person in the room with the authority to stop the procedure, she said she never considered it for the first three, but paused when asked about Kenneth Williams.
"If that had gone on any longer than 10 seconds, I probably would have thought something needed to stop," she said. But she said the movements ended before she "could even get to the thought process of calling it off."
Asked if Kenneth Williams ever appeared to be in pain, she replied, "No. Even if it appeared for that 10 seconds that he was in pain, I would have stopped it."
Under questioning by attorney Julie Vandiver, who represents the inmates, Kelley said she still believes, after hearing all of the testimony, that the state's protocol is effective at preventing inmates from consciously experiencing the effects of the second and third drugs. She said the state hasn't in recent years been able to obtain barbiturates, a proposed alternative, and that while the state could probably build a facility to house a firing squad, another alternative method of execution, she "would not encourage it."
Asked why, she said, "I haven't heard anything sitting in court in the last week that makes me think that's a better method."
She said that in the four executions she witnessed, "I didn't see any suffering. And you didn't have to put a hood over their head," as witnesses testified is done during executions by firing squad. "That doesn't seem respectful to me."
Metro on 05/02/2019