Lethal Injection

Independent Pathologist Says Autopsy Reveals Problems With Virginia's Execution of Ricky Gray

Something went wrong during the execution of Ricky Gray (pictured), who was put to death in Virginia on January 18, 2017, according to an independent expert who reviewed the official autopsy report of Gray's death. Dr. Mark Edgar, associate director of bone and soft tissue pathology at the Emory University School of Medicine, reviewed the official autopsy report, which Gray's family obtained from the Virginia medical examiner's office. Dr. Edgar says Gray suffered an acute pulmonary edema during the execution, with liquid in his upper airways and blood entering his lungs while he was still breathing. “The anatomic changes described in Ricky Gray’s lungs are more often seen in the aftermath of a sarin gas attack than in a routine hospital autopsy." Edgar said. "This is of concern especially given the fact that midazolam is not an anesthetic, but a sedative often used for medical procedures requiring conscious sedation and the issue that the compounded drugs used in this case may have lacked potency or been impure.” Virginia's lethal-injection protocol consists of three drugs: midazolam, a sedative intended to render the prisoner unconscious, followed by a paralytic intended to stop the prisoner's breathing, followed by potassium chloride, which stops the prisoner's heart. The use of midazolam in executions is controversial because it is not an anesthetic, it is used in medical settings only for lower levels of sedation rather than to produce full unconsciousness, and its use has been linked to numerous problematic executions. In Virginia, both the midazolam and the potassium chloride are produced by compounding pharmacies whose identities are secret under state law. “This way of dying is intolerable. You can’t control your breathing—it is terrible,” Edgar said. “When it is this severe, you can experience panic and terror and, if the individual was in any way aware of what was happening to them, it would be unbearable.” After Edgar's report was released on July 6, lawyers for William Morva—whose execution was scheduled in Virginia that night—asked Governor Terry McAuliffe for a temporary reprieve. “We believed a reprieve was appropriate to allow time for further investigation to ensure that the Commonwealth carries out future executions—including Mr. Morva’s—in a manner that avoids unnecessary pain and suffering,” explained Rob Lee, one of Morva's attorneys. McAuliffe denied the reprieve, and witnesses reported that Morva made a loud noise after the midazolam was administered and had several sharp contractions of his abdomen. The same three-drug protocol used in Virginia has been proposed for use in Ohio, but is being challenged in court by death-row prisoners. 

Execution Drugs Three States Attempted to Illegally Import Have Now Expired

Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."

Federal Appeals Court Upholds Ohio Lethal-Injection Process, Vacates Execution Stays

A divided U.S. Court of Appeals for the Sixth Circuit on June 28 reversed the decision of a federal district court that had stayed executions in Ohio. In an 8-6 en banc decision, the court voted to allow Ohio to proceed with executions using a proposed combination of the controversial sedative midazolam, the paralytic drug pancuronium bromide, and the heart-stopping drug potassium chloride. Midazolam has been implicated in botched executions in Alabama, Arizona, Ohio, and Oklahoma and flawed executions in Arkansas. After a five-day evidentiary hearing in early January 2017, the District Court issued a preliminary injunction that stayed the executions of Ohio death-row prisoners Ronald Phillips, Raymond Tibbetts, and Gary Otte. At that time, it found "that administration of a paralytic drug and potassium chloride will cause a person severe pain" that would not be amerliorated by using midazolam, that the protocol itself created a "substantial" and "objectively intolerable" risk of serious harm, and that a compounded version of the drug pentobarbital was available as an alternative method of execution. The State appealed that decision to the Sixth Circuit, and in April, a three-judge panel affirmed the lower court's decision. The State then appealed that decision to the full court (a procedure called en banc review). The majority agreed that the prisoners "have shown some risk that Ohio’s execution protocol may cause some degree of pain," but said "some risk of pain 'is inherent in any method of execution—no matter how humane'” and "the Constitution does not guarantee ‘a pain-free execution.’” Allen Bohnert, one of the lawyers for the prisoners, said in a statement: "Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection, and especially when used with the two excruciatingly painful drugs Ohio abandoned in 2009. ... Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs." He said the prisoners will seek review of the decision in the U.S. Supreme Court because "[n]o one in Ohio wants to see another botched execution." The decision permits Ohio to move forward with 30 executions that are scheduled between this month and 2021, while the District Court conducts a full trial on the lethal-injection challenge brought by death-row prisoners. Ohio has scheduled the execution of Ronald Phillips for July 26.

Arizona Makes Key Concessions, Reaches Deal With Prisoners to Settle Lethal-Injection Lawsuit

Death-row prisoners and the state of Arizona have reached a tentative settlement to address the state's lethal-injection protocol. Under the settlement, which could have an impact on lethal-injection litigation across the country, Arizona has dropped a three-drug formula from its protocol in favor of using a high dose of single barbiturate, and will honor a prior commitment not to use the sedative midazolam. The state also agreed not to use any paralytic drug in the execution process—which defense lawyers argued had served only to mask the prisoners' reaction to the painful third drug used to stop his heart. The proposed agreement provides greater transparency and accountability throughout the execution process, permitting witnesses to see corrections personnel escort the prisoner into the execution chamber, strap him to the gurney, and insert the intravenous line. The witnesses also will be able to view via closed-circuit monitors the drugs being inserted into the IV lines. In the past, Arizona had been sharply criticized for repeatedly changing execution procedures, and the state has agreed that the director of the Department of Corrections would no longer be able to make last-minute changes to the execution process. Arizona also agreed to test the drugs before they are used in an execution, and committed to not use expired drugs. Previously, the state had agreed it would not use the sedative midazolam—which was used in the botched execution of Joseph Wood in 2014—but had hedged on that commitment in a revised protocol published in 2015. At a hearing before U.S. District Judge Neil Wake, Assistant Attorney General Jeff Sparks said the agreement wouldn't immediately restart executions. "The state doesn't have drugs right now and has no intention of seeking a warrant," Sparks said. Dale Baich, a lawyer for the death-row prisoners, praised the settlement. "Arizona has had this history of problematic executions, but today the state is taking steps to decrease the risk that prisoners will be tortured to death," he said. Prisoners in Ohio are raising similar challenges as the state has repeatedly changed its proposed protocol, promising in 2009 that it would never again use a three-drug formula, then proposing exactly such a protocol in 2016. Arizona's lethal-injection procedure is still the subject of another lawsuit brought by a group of media organizations that are seeking transparency on the source of execution drugs and the qualifications of executioners.

Federal Court Grants Lethal-Injection Stay to Alabama Prisoner With Claims of Attorney Abandonment, Flawed Forensics

Robert Melson (pictured), an Alabama death-row prisoner whose clemency petition alleges that abandonment by his post-conviction lawyers prevented him from adequately challenging the flawed forensic evidence in his case, received a stay of execution from the U.S. Court of Appeals for the 11th Circuit on a challenge to Alabama's lethal-injection protocol. Melson was convicted of three murders at a Popeye's restaurant in 1994. A survivor of the crime recognized one of two assailants as Cuhuatemoc “Tempo” Peraita, an acquaintance of Melson's, and described the second assailant only as a black man. More than an hour after the crime occurred, police pulled over Peraita's car, and arrested him along with the black male passenger, Robert Melson. At the suggestion of police, Peraita—a 17-year-old with intellectual impairments—confessed to having been present during the crime, but claimed Melson had shot the victims. (Peraita has since recanted his accusation.) Melson has consistently maintained his innocence. During the interrogation, police took Melson's shoes from him. According to Melson's clemency petition, "Five days later, a police evidence technician belatedly discovered, photographed, and cast footprints in a rainy drainage ditch behind Popeye’s restaurant, which they later said matched Mr. Melson’s shoes." Peraita didn't testify at Melson's trial, and the witness who had identified Peraita did not identify Melson in a photo lineup. No other forensic evidence—such as fingerprints or DNA—linked Melson to the crime. As a result, Melson's conviction relied heavily on the shoeprint evidence, a type of evidence that the landmark 2009 report on forensic science by the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward, found to be unreliable, unscientific, and susceptible to bias. In addition to the problems inherent with shoeprint evidence, nearly two inches of rain had fallen between the time of the crime and the time police reported discovering the shoeprint. Melson should have been able to challenge the shoeprint evidence during his post-conviction appeal, but was represented by an inexperienced volunteer attorney who was not licensed in Alabama and a local attorney who had a history of malpractice. The lawyers did not properly file Melson's state post-conviction petition, and then, on appeal, they filed the documents in the wrong court, causing his appeal to be dismissed. The error was compounded because the attorneys failed to inform Melson of the dismissal. Melson's time to file a petition for habeas corpus in federal court ran out before he learned his state case had been dismissed. Cases like Melson's raise concerns about Alabama's recently passed "Fair Justice Act," which would potentially exacerbate errors like those made by his attorneys, since state deadlines would be shorter and stricter and all state death penalty appeals would run concurrently. In a separate case, Melson and several other Alabama death-row prisoners challenged Alabama's use of midazolam in executions, highlighting problems that have occurred when the drug was used in past executions. The 11th Circuit stayed Melson's June 8 execution to allow time for it to consider that challenge. [UPDATE: The U.S. Supreme Court vacated the stay of execution, and Melson was executed as scheduled.]

Indiana Appeals Court Voids State's Lethal-Injection Protocol

The Indiana Court of Appeals has voided the state's lethal-injection protocol. In a ruling on June 1, 2017, the state intermediate appeals court held that the Indiana Department of Corrections (DOC) had failed to comply with state rulemaking procedures when it adopted a never-before-used execution protocol without public notice or comment. In 2014, the DOC announced that it had adopted a new execution protocol "informally as an internal DOC policy." The protocol called for a three-drug lethal-injection combination of the barbiturate methohexital (Brevital), followed by pancuronium bromide, a paralytic, followed by potassium chloride to stop the prisoner's heart. No state has ever carried out an execution using that drug combination. Death-row prisoner Roy Lee Ward challenged the protocol, saying that DOC's use of informal internal procedures to put the protocol in place violated the Indiana Administrative Rules and Procedure Act (ARPA) and his right to due process. A lower court dismissed the lawsuit. On appeal, the DOC argued that it was exempt from the ARPA, but the appeals court flatly rejected that argument. It wrote: "If the legislature intended to exempt the DOC from the purview of ARPA altogether, or even to exempt the DOC’s execution protocols, it could have easily done so, but it has not." The court held, "[a]s a matter of law, DOC must comply with ARPA when changing its execution protocol, and its failure to do so in this case means that the changed protocol is void and without effect." David Frank, who represented Ward in the appeal, praised the ruling, saying "[t]he public has a right to know what unelected bureaucrats at state agencies are doing." The decision does not mean Indiana cannot carry out executions, he said, but "bring[s] what [Indiana is] doing out of the shadows" and makes state officials "accountable to the public." Indiana has not carried out an execution since 2009.

Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a "substantial threat of physical harm." Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014. The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state's Public Information Act. The prisoners' attempt to litigate a challenge to the state's lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was "public information" subject to disclosure under the state public records law. The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a "substantial threat of physical harm." The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier's identity from disclosure. The court recognized that "[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue." But under the law, the "sole permissible focus" is the "threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political 'firestorms,' or even threats of harm to property short of harm to persons." In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court's ruling, saying: "They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest." And she added, "That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important." The decision is limited to the source of the state's execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.

Alabama Prisoner Facing Eighth Execution Date Claims Innocence, Challenges Execution Procedures

Tommy Arthur (pictured), an Alabama death-row prisoner whose 35-year journey through the court system has frustrated both proponents and opponents of the death penalty, is scheduled to be executed on May 25, 2017, the eighth time Alabama has set an execution date in his case. Arthur—whose conviction and death sentence has twice been overturned by the courts and was sentenced to death by his trial judge based upon a non-unanimous jury sentencing recommendation—has steadfastly maintained his innocence in the 1982 murder of Troy Wicker. Most recently, an evenly divided U.S. Supreme Court issued a stay of execution four hours after Arthur's execution was set to begin on November 3, 2016, so the Court could consider whether to review Arthur's challenge to Alabama's use of the controversial drug midazolam and his request to be executed by firing squad. The Court ultimately declined to review both that claim and Arthur's separate challenge to the constitutionality of Alabama's non-unanimous sentencing practices. Arthur has repeatedly raised innocence claims, seeking new forensic testing of evidence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hiring Arthur to kill her husband, testified at her trial that her husband had been murdered by a burglar who beat and raped her. After Ms. Wicker's conviction, she changed her testimony when a prosecutor, who had previously represented her at a parole hearing, offered her early release if she testified against Arthur. The rape kit taken from Ms. Wicker at the time of the murder was lost or destroyed without being tested for DNA and, according to Arthur's current lawyer, Suhana Han, “[n]either a fingerprint or a weapon, nor any other physical evidence connects Arthur to the murder of Troy Wicker.” Hairs found near the victim have also never been tested with modern DNA technology. Arthur has also argued that his trial counsel was ineffective, and continues to litigate issues relating to Alabama's lethal injection protocol. He currently has an emergency motion pending before the U.S. Court of Appeals for the 11th Circuit, challenging the state's planned use of midazolam, a drug that has been linked to many problematic executions, including that of Ron Smith in Alabama in December 2016. He has also challenged the state's refusal to disclose records related to the Smith execution, which his lawyers say may provide critical evidence for his lethal-injection challenge. The Alabama Court of Criminal Appeals issued a preliminary ruling in Arthur's favor on a separate issue on May 23, reversing a Montgomery Circuit judge's order rejecting Arthur's claim that the legislature, rather than the Department of Corrections, should determine the state's execution method. But that procedural ruling will not delay his execution. His motion stated, "The role of the legislature is particularly critical given the controversial nature of the ADOC's current midazolam-based execution protocol. ...The choice of the first drug (midazolam) to be used is critical, because without an effective anesthetic, the second and third drugs would cause unbearable pain. But the drug the ADOC chose (in secret), midazolam, is not used in medical practice as a general anesthetic; rather, it is an anti-anxiety sedative in the same drug family as Valium and Xanax, and its use in lethal injection has been extremely problematic." [UPDATE: Alabama executed Thomas Arthur near midnight on May 25. He was pronounced dead at 12:15 a.m. on May 26. Media witnesses reported no visible indicators that the drugs had failed.]

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