Attorneys for the state arrive at the federal courthouse this morning.
Another late night for attorneys arguing for and against a federal lawsuit brought by Arkansas death row prisoners
seeking to make the case that the state's abbreviated execution schedule — which would see seven men executed this month — would violate the Eighth Amendment and their right to effective counsel.
The hearing continued past 6 p.m. tonight before U.S. District Judge Kristine G. Baker at the Federal Courthouse in Little Rock, and resumes for a final day tomorrow at 9 a.m. In February, Governor Hutchinson scheduled double executions for each of four nights, April 17, 20, 24 and 27. A federal judge later stayed the execution of one of the men scheduled to die, Jason McGehee, after the state Parole Board recommended his clemency.
Read our coverage of day two of the hearing here.
First up this morning was Dr. Jonathan Groner, M.D.
, a professor at the Ohio State University College of Medicine who specializes in trauma, burns and pain response. Under cross examination by the state, Groner agreed that in previous articles, he has called execution by lethal injection "a stain on the face of medicine," that provides a veneer of medicality to execution.
Speaking of the potential use of the firing squad as a potential method of execution, Groner said the face-to-face nature of the firing squad would "remove the veneer of medical respect" from the act of killing an inmate. Groner said that he doesn't not believe the sedative drug midazolam can render a person "deeply unconscious" enough for an operation, and — in a point that would become relevant as the day's questioning wore on — said that he only knew a very small percentage of physicians who know how to properly insert a "central line" — also known as a central venous catheter, a thin, flexible tube inserted through the arm or chest and then threaded into a large vein. The point is important because the Arkansas state lethal injection protocol states that if the "I.V. team" can't find an vein to start the I.V. used to deliver the lethal drugs, a person of the required experience, education and training will step in and place a central line to deliver the drugs.
Next on the stand was state's witness Dr. Daniel Buffington
, a doctor of pharmacology who teaches at the University of South Florida in Tampa, and is a licensed pharmacist in Florida and Georgia. Buffington testified that he worked with the state of Arkansas to develop its midazolam-included lethal injection protocol in 2015, and has also worked with Florida, Ohio, Georgia, Alabama and California on their lethal injection protocols. Buffington said that it is his opinion that the 500 milligrams of midazolam stipulated in the Arkansas protocol is sufficient to produce sedation if properly administered, and that inmates will not suffer pain from the second and third drugs of the state's three-drug cocktail if protocols are followed. Buffington said that the botched execution of Clayton Lockett in Oklahoma — which figured heavily in yesterday's questioning — was "an outlier," due to an improperly administered I.V. line, "not a medication issue," adding that he believes it to be likely that Lockett did not receive the full 100 milligram dose of midazolam called for then in the Oklahoma protocols due to errors by the team tasked with setting the I.V. He said he is unaware of any botched executions using the protocol that requires a 500 milligram initial dose of midazolam.
Buffington said that midazolam has "unique properties," including doing what he called an excellent job of providing the "rapid induction of general anesthesia." The issue is that while midazolam can induce anesthesia quickly, "it is also fleeting," Buffington said, with a typical dose wearing off in 30 minutes to an hour. For this reason, he said, midazolam is often used as an "induction agent" during surgery, with anesthesia maintained by longer acting drugs if necessary. However, because the lethal injection process is over quickly, he said the fleeting nature of midazolam is irrelevant — presumably because the inmate will be dead long before the anesthetizing effect of midazolam has time to wear off. He called the idea that midazolam doesn't induce deep sedation to the point of general anesthesia "a flawed concept," and said that the laboratory experiments carried out by Tuesday's witness Dr. Craig Stevens — in which Stevens said midazolam exhibits a "ceiling effect" after which a higher dosage doesn't induce further sedation — has "many assumptions," and that it would be inappropriate to assume conclusions drawn from experiments conducted on in vitro cells would apply to directly to a person. He noted that benzodiazapenes, a family of drugs of which midazolam is a member, are believed to contribute to 10,000 accidental deaths in the U.S. per year and feature respiratory effects similar to opiates and barbiturates.
Buffington also testified that it is his opinion that — contrary to claims that inmates might suffer searing, burning pain from the potassium chloride injection if the midazolam fails to work — he believes there is no evidence that any of the drugs used in the Arkansas lethal injection protocol would produce severe pain in every inmate. While Buffington said that the vercuronium bromide and potassium chloride as "vesicants and irritants," there is nothing in medical literature to suggest that the paralytic vercuronium bromide can cause severe pain (he later called the experience of being physically paralyzed by the drug "a peaceful experience"), or that potassium chloride always causes severe pain. "It can cause pain," he said, "but you can't say it will always cause pain."
Shown redacted photos of sample vials containing the state's supply of midazolam, each with an expiration date at the end of this month, Buffington testified that the expiration date listed on factory-sealed drugs only serve as the date when the product is guaranteed to be 100 percent potent. He said FDA tests have shown that many I.V. drugs take more than five years past their expiration date to degrade to 90 percent of their initial potency. He said there is no evidence that the state supply of midazolam is ineffective or needs to be retested for potency on the expiration date if it is still in the manufacturers packaging.
Buffington said that in his role as a consultant for other states developing death penalty protocols, he had tried to find a compounding pharmacy that would produce phenobarbital for use in lethal injections — the drug used for sedation in pre-midazolam protocols — and was unsuccessful. Nevertheless, he said the current ADC protocol will not cause severe pain.
After lunch, former ADC director Larry Norris
took the stand. Norris, who started out as a phlebotomy tech at Cummins Unit in the days when the state sold inmate blood (but before, he noted under questioning, the prison blood scandal in which poorly screened blood from the ADC infected hemophiliacs worldwide with HIV and hepatitis), was questioned extensively by both sides about executions he oversaw while ADC director, with particular emphasis on the single-day double and triple executions he oversaw during his tenure. Norris said that there was only one occasion in which a staff member didn't want to participate in an execution. Asked if he believes the eight in 10 execution schedule proposed for this month will cause undue stress on the prison staff, Norris said that if he had to do the executions, he would have asked for four in one night and four on another, or a similar scheme. It would be better, Norris said, "to get everybody ramped up, trained and get them done."
Norris said that during his time with ADC, there was a mandatory mental-health briefing with execution staff the day after every execution. It was mandatory, he said, because "you have the John Wayne guys who think nothing will bother them, so we made it mandatory. I think even the John Waynes appreciated it." Norris said that as long as the training is good, he believes the current ADC staff will be able to carry out the executions without a problem.
During cross examination by inmate attorney Lee Short
, Norris said that during his time as ADC director, any concerns about protocol or methods raised during an execution were discussed and used to implement changes to avoid those problems in the next execution. Short repeatedly asked Norris about the stress prison officials and staff were under during executions, including asking if the multiple executions resulted in more stress. Norris said that the execution process is stressful. Of the scheduled execution of seven inmates, Norris eventually said it would be stressful. "You're staying in a wrapped-up mode for 11 days," he said. "It is what it is."
After Short attempted to make an analogy between an execution and the stress and fatigue of a Razorback football or basketball game, and what it would be like to play two games back to back, Short asked Norris about the fatigue experienced by the execution teams on his watch. "Fatigue factor, to me, doesn't change the scope of what's happening," Norris said. Fatigue, he said, never stopped him from focusing during an execution. Asked whether he believes his execution team slept well the night before an execution, Norris said he couldn't recall sending an officer home because of fatigue.
Next up was ADC chief deputy director Dale Reed.
Reed said that he has been participating in preparations and practices for next week's executions. Under questioning, Reed gave a step-by-step description of the process for preparing the death chamber, bringing in the inmate, and getting him strapped to the gurney, including putting down a stool to help the inmate step up to the high bed where he will die. Reed said that around 30-35 people will be directly involved with each execution, and there will be an employee debriefing the day after each night's executions at a site off the prison grounds, run by an ADC mental health employee. Reed said that while state attorneys will be allowed to bring their cell phones into Varner Unit — but not into the witness room — during the executions, attorneys for the inmates will not. Phones and a fax machine will be available in the warden's office for both AG and defense attorneys, Reed said. Reed said that he does not believe the stress of the multiple executions will lead to error.
Last before the 6 p.m. break was Rory Griffin,
the ADC's deputy director for medical and dental services. Griffin, who testified that he started at ADC as a licensed practical nurse contracted to the department's medical provider, said that he has also been involved in preparations for the upcoming executions. He said he will be the official responsible for preparing the lethal injection drugs — including mixing the powdered vancuronium bromide with water — and transporting them to the execution chamber on the nights of the executions, but will not be part of or supervising the "I.V. team" that actually sets the I.V., nor will he perform the "consciousness check" to show that the inmate is anesthetized.
Under a long session of questioning by inmate attorney Julie Vandiver
, Griffin said he wasn't consulted on setting the execution dates, and wasn't involved in obtaining the lethal injection drugs, but did participate in discussions to determine the dosage of each drug. He said he's never participated in an execution, because he was a contract employee the last time an execution was performed in the state. Griffin testified that at the time of the executions this month, there will be no monitoring devices hooked to the inmate. Death will be determined by personnel in the chamber by way of a stethoscope, but there will not be a doctor in the execution chamber.
Griffin testified that he selected the I.V. team, and that it will be unsupervised and offered no guidance during the procedure to set the I.V. lines in each inmate's body, because — per the state protocol — they are medical professionals with two years experience, their employment is verified and they are qualified to start an I.V. While not naming the two-person I.V. team, Griffin said their experience is "current," with each licensed in their field. Under the state protocol, displayed in court today, medical professionals who can be included on an I.V. team EMTs, paramedics, nurses, physicians assistants or physicians. "They don't require supervision," Griffin would later testify.
Griffin said that as of Monday this week, he, the I.V. team, and the warden have met with four of the condemned men to assess their bodies and look for the best vein to use during execution. Assessments are planned for the others.
Griffin said that on the night of the execution, if I.V. access can't be established, the ADC director will stop the I.V. team after awhile if they're having troubling finding a vein. Griffin said it would be under 10 sticks with a needle before I.V. access is determined to be failed, but there will be no time limit to determine if setting the I.V. is "taking too long," even if the first execution runs into the time allotted for the second. If an I.V. line can't be established, under the state protocol, a second trained, educated, experienced medical professional, separate from the I.V. team, will step in and set a central line. Griffin said he doesn't know the person who has been assigned that task, and doesn't have the education and experience to set a central line himself. A hand-held ultrasound will be available in the execution chamber to help find a vein if necessary, Griffin said.
Around the 6 p.m. hour, the court recessed for a short break, with questioning of Griffin — including "confidential" questions that Griffin couldn't answer in open court — continuing afterward.