Attorney Josh Lee (far right) addresses Judge Wendell Griffen at today's hearing
Circuit Judge Wendell Griffen
heard testimony this morning on the request by Death Row inmates
to postpone scheduled executions until questions are answered about drugs to be used in the lethal injections.
He didn't rule today, but promised a written ruling by next week. The inmates say the state's plan
to shroud the drugs in secrecy violates an earlier agreement about identifying the source and quality of the drugs.
We'll have more before long from David Koon. He tells me for starters that the judge had sharp words for legislative efforts to dictate what sort of evidence may be gathered in the discovery phase of a lawsuit.
UPDATE FROM DAVID KOON:
Today's hearing started with Judge Wendell Griffen entertaining a motion to allow cameras in the courtroom for the proceeding, a request Griffen granted after an agreement was ironed out among media representatives on how to provide a still and video pool camera and distribute the images.
Deputy AG Jennifer Merritt with the Arkansas Attorney General's Office spoke first, arguing the state's contention that death row inmates and their attorneys have not provided the facts necessary to overcome the state's claim of sovereign immunity. She said that it was not enough to propose that a "slightly safer method" for execution is available. Merritt and Griffen then discussed various alternative methods suggested in filings, including execution by gas, electrocution and death by firing squad, with the bulk of the time spent discussing firing squads. Merritt said that the plaintiffs in the case have presented no evidence that execution by firing squad would be feasible, with Merritt stating that the ADC would have to recruit marksmen from their ranks to carry out the execution, would have to train them until they were skillful in carrying out an execution, and would have to construct or find a facility to perform an execution by firing squad,
Griffen and Merritt then moved on to discussing the prohibition on disclosing the source of the drugs to be used for lethal injection, with Griffen inquiring why disclosing the source would pose a problem for the state. Merritt said that if their identities are disclosed, potential suppliers of execution drugs might be reluctant to supply those drugs for fear of retribution, boycotts or loss of business. She said that under Act 1096, the names and dosages of drugs can be released, but the identity of the specific, FDA-approved supplier of the drugs is protected. To that, Griffen asked, in the first of several variations on the question during the hearing: "Since when did the General Assembly get the power to determine what the rules of evidence are?"
Attorney Josh Lee spoke for the inmates in the case. He said that in filings, attorneys have provided details on five alternative execution methods that they believe would be more humane than the current protocol, including firing squad, gas chamber, and dermal patches that could deliver deadly drugs. Lee described the state's proposed three-drug execution protocol as consisting of "an anxiety-reducing sedative", followed by a paralytic that hinders movement and stops breathing but does not cause unconsciousness, and a final drug that causes "extreme, burning pain" upon injection. The effect of the three drugs, Lee later told the court, is that inmates would be "consciously suffocated to death while being burned alive from the inside."
Contrary to what the state had argued about the alternative firing squad method, Lee said that Arkansas is home to a large number of law enforcement and military personnel who are trained as marksmen, any of whom could be hired as an independent contractor by the ADC to carry out an execution. Lee said that under current case law, those challenging a lethal injection protocol on the grounds that more humane methods exist don't have to outline a detailed plan for carrying out an alternative execution method, they only have to "identify a plausible alternative," which they have done. At that point, the burden for disproving the alternate method is less humane and implausible than the current method falls on the state.
Lee said that the inmates involved have been given no information about the source of the drugs to be used in executions, including whether or not they are from FDA-approved sources, foreign sources or compounding pharmacies. "We have nothing other than the word of the ADC's lawyers that these drugs are FDA approved," Lee said.
In her rebuttal, Merrit said that the plaintiff's motion doesn't include "proven, actual facts." Griffen twice again brought up the issue of the separation of legislative and judicial powers, at one point stating: "I don't understand how the General Assembly got the power to decide what can or can't be discovered in a death case."
Noting that executions are scheduled soon, and that whatever decision he makes will likely be immediately appealed, Griffen said that he expects to have a ruling early next week. Before court was adjourned, Lee asked the court to consider ordering the immediate disclosure of all execution drug suppliers if the ruling is in favor of the inmates involved.