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“OUR MOST CRUEL EXPERIMENT YET” Chilling Testimony in a Ten
Tue Aug 7, 2018 05:54
This image taken from a video recorded by prison officials shows Robert Glen Coe as he is wheeled to the execution chamber at Riverbend Maximum Security Institution in Nashville, Tenn., on April 19, 2000. Photo: AP

But Edgar found some details that jumped out. “I was struck by the abnormality in the lungs,” Edgar said. “All of the lungs were heavy with fluid.” An average lung, he explained, would weigh about 350 to 400 grams. But the autopsies he studied showed lungs more than double that weight. What’s more, most of the lungs showed signs of pulmonary edema — “evidenced by bubbles, froth and foam both in the lung tissue and in the larger airways.”

Edgar had created a chart to compile his findings. He underlined the parts that indicated proof of pulmonary edema. In total, 23 of the 27 autopsy reports. Among them were the autopsies of Joseph Wood and Kenneth Williams. Wood’s right lung weighed 980 grams, his left weighed 945. There were “marked amounts of blood and frothy fluid” indicating “acute pulmonary edema,” Edgar said.

“As it gets even worse, they may have a sense of terror, panic, drowning, asphyxiation.”

Assistant Federal Public Defender Amy Harwell asked Edgar to explain the symptoms of pulmonary edema. “When it begins, the patients are short of breath. They feel like they can’t catch their breath and they breathe a little bit faster,” he said. “As it gets worse, they may have a sense of air hunger and be gasping for air. As it gets even worse, they may have a sense of terror, panic, drowning, asphyxiation. It’s a medical emergency and a stage of extreme discomfort.” In a hospital setting, he explained, a patient would be given diuretics to remove fluid from the lungs. “Because they’re in such a state of panic,” they would also be given morphine, he added.

Chilling Testimony in a Tennessee Trial Exposes Lethal Injection as Court-Sanctioned Torture
Liliana Segura

August 5 2018, 10:40 a.m.

JULIE HALL SMILED on the witness stand as she recalled a memory of her old client Joseph Wood. He had spent most of the last two decades living in solitary confinement, with his recreation confined to a cage, when the Arizona Department of Corrections began to loosen some restrictions over people on death row. A basketball court was built outside his unit on the sprawling desert prison complex in Florence, about an hour south of Phoenix. At 55, Wood was relatively healthy — “he loved going out and playing,” Hall said. A prison sergeant even played a round of basketball with Wood, which meant a lot. “He felt like he was being treated like he was human for the first time in a long time.”

Hall’s smile disappeared when she described the day Wood died. It was July 23, 2014. His execution was scheduled for 10 a.m. Hall arrived at the prison that morning at 6:45, then waited almost an hour to see him. When the Arizona Supreme Court granted a temporary stay of execution, Hall told him the good news. Wood was prepared to die, she told the court; ever since he committed the murders that sent him to death row, he had felt he did not deserve to live. Still, “he wanted someone to listen to us when we said that this was an experimental method of execution.”

Wood was the first to face a new form of lethal injection in Arizona that used a combination of the opioid hydromorphone and the sedative midazolam. The latter had raised controversy over its use in executions. Florida first tried it in 2013 to kill a man named William Happ “in what seemed like a labored process,” according to one media witness. Happ “remained conscious longer and made more body movements after losing consciousness” than people executed under the old formula, according to another report. The Florida Department of Correction, which refused to say how it chose the drug, dismissed the concerns — and soon other states were trying out midazolam. In January 2014, Ohio used it to execute Dennis McGuire. Witnesses described how he struggled and gasped, clenching his fists and striving to breath. A few months later, in April 2014, Oklahoma used midazolam to kill Clayton Lockett in one of the most notorious botched executions in recent memory.

But Arizona stuck to the plan. By noon that day, Wood’s stay of execution had been lifted. Prison staff provided Hall with a pencil and paper and led her to the witness chamber. No phones were allowed. Once inside, she was told, she would be forbidden from leaving the room. Hall watched as a pair of TV monitors were turned on above the closed curtains. “That’s where we could view the insertion of the IV lines,” she explained. Hall was surprised at the amount of blood she saw — some of it dripped onto the floor. With the IVs eventually placed, the monitors went dark. The curtains opened. Wood lay strapped to the gurney, thick straps over his arms and a white sheet covering his legs.

After 20 minutes and 134 gasps, she stopped counting.
At 1:52 p.m., a voice came over the loudspeaker. The lethal injection was about to start.

After five minutes, with the first dose of midazolam presumably administered, a man entered to conduct a consciousness check on Wood. The voice came back to announce he was sedated. But three minutes later, Hall said, “I saw a quiver in his cheek, which surprised me a little.” She didn’t know whether it was normal or not. It was two minutes after that when she saw Wood gasp for air. Then he did it again. And again.

“He just kept gasping,” Hall said. She began counting the gasps on her notepad. After 20 minutes and 134 gasps, she stopped counting. “I just didn’t know what the point was anymore.” Hall struggled to describe what it looked like. It reminded her of a fish that was dying after being pulled from the water — “that opening of the mouth; trying to get air and just not getting it.”

At 2:50 p.m., Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit, who was seated behind Hall, passed her a note. “Go now,” it said, instructing her to call their colleagues in Phoenix. Hall hurried out of the witness room and asked a guard if she could use his phone. He refused, then escorted her outside of the death house, through a maze of sally ports and checkpoints, and finally, out to the administration building. It took nine minutes. Only then was Hall able to make a call, to tell someone that “something was going very, very wrong and it looked like Mr. Wood was suffering.”

Hall was still on the phone when Wood was finally declared dead at 3:53 p.m. The next day, media witness Michael Kiefer published his own account of Wood’s struggle to breathe. Over the two-hour execution, he reported, Wood gasped more than 640 times.

HALL TOLD HER story in fits and starts, answering questions in a courtroom in Nashville, Tennessee. It was July 9, 2018, day one of Abu Ali Abdur’Rahman v. Tony Parker, a trial over Tennessee’s lethal injection protocol. Parker is the head of the Tennessee Department of Correction, or TDOC. The named plaintiff is one of 33 men facing execution under a new formula that includes midazolam. Three have been scheduled to die by the end of the year. One of them, Billy Ray Irick, is set for execution on August 9.

Hall was one of more than 20 witnesses called by the plaintiffs, including some dozen defense attorneys who had witnessed their clients’ executions. They dramatized what lawyers argued in their trial brief: that Tennessee’s new protocol violates the Eighth Amendment ban on cruel and unusual punishment. First issued in January, it called for the injection of three drugs: midazolam, followed by a paralytic called vecuronium bromide, and culminating with potassium chloride to stop the heart. With midazolam chosen to provide anesthesia, the attorneys argued it was not only possible but very likely their clients would suffer. What’s more, they said, the protocol prevents defense attorneys from having access to a phone during the execution, in violation of their clients’ constitutional rights.

The inescapable conclusion was that states have almost certainly been torturing people to death in their execution chambers.

The witnesses described executions in Alabama, Arizona, Arkansas, Ohio, Virginia, Florida, and Oklahoma. Many had never spoken publicly. Their accounts ranged from subtle but unusual movement on the gurney to gasping, lurching, and clenching of fists. They were bolstered by leading medical experts who explained the scientific reasons why midazolam was inadequate to provide anesthesia.

One pathologist presented evidence that had never been shown in court. He had reviewed 27 autopsy reports out of the 32 total executions carried out using midazolam. In most of the cases, he found signs of pulmonary edema — fluid in the lungs that indicated the men had been in respiratory distress. The inescapable conclusion was that states have almost certainly been torturing people to death in their execution chambers — and that Tennessee might be ready to do the same.
Davidson County Chancellor Ellen Hobbs Lyle presides over a lawsuit contesting the use of lethal injection in Nashville, Tenn., on July 23, 2018. Photo: Larry McCormack/The Tennessean via USA Today Network

After weeks of testimony, a ruling came quickly, on July 26. It sided with the state. In her order upholding Tennessee’s lethal injection protocol, Davidson County Chancellor Ellen Hobbs Lyle wrote that the plaintiffs had failed to prove their case, while acknowledging that the use of midazolam might leave them vulnerable to pain during their execution. The U.S. Supreme Court was “aware of the risk of midazolam,” she wrote, and upheld it anyway in Glossip v. Gross. Though “dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions.”

For anyone who has followed the legal evolution of lethal injection, Lyle’s ruling was not a surprise. The decision ultimately turned not on midazolam, but on a different provision of Glossip. Under the ruling, the plaintiffs had to prove not only that Tennessee’s protocol was cruel and unusual, but that there was a viable alternative. In her dissent in Glossip, Supreme Court Justice Sonia Sotomayor decried this “surreal requirement,” one that puts attorneys in the perverse position of identifying methods that should be used to kill their clients. Though Lyle conceded that this law “seems odd,” the requirement was clear. “That proof has not been provided in this case.”

Decisions in chancery court have limited sway. Under Tennessee’s Declaratory Judgment Act, Lyle’s ruling amounts to a “declaration” — an opinion that can only be weaponized by bringing it to a different forum.

Most lethal injection challenges are brought before federal courts that have the power to stop executions. Lyle did not. In bringing the lawsuit in chancery court, Federal Public Defender Kelley Henry hoped to win a ruling that could influence the state Supreme Court or governor to intervene.
On May 6, 2015, Kelley Henry argues on behalf of plaintiffs on whether death row inmates can properly challenge the constitutionality of electrocution as a possible method of execution. Photo: Adam Lau/Knoxville News Sentinel via AP
Ricky Bell, then-warden of Riverbend Maximum Security Institution in Nashville, Tenn., gives a tour of the prison’s execution chamber on Oct. 13, 1999. Photo: Mark Humphrey/AP
Nashville’s Metropolitan Courthouse. Photo: Radley Balko/The Intercept

Yet the order belies the significance of the trial itself. As Henry said in her closing argument on July 24, it was the first time a three-drug protocol using midazolam had been the subject of a “real trial.” Until now, most hearings on midazolam were on whether to grant a preliminary injunction to stop a looming execution. Such hearings are rushed by their nature — witnesses often appear by Skype. This was not the case in Nashville. Though the trial moved quickly, the testimony was extensive and nuanced, providing a much fuller picture of the science behind the drugs used in lethal injection. Lyle was deliberate and measured — and cautious not to allow witnesses to testify beyond their expertise.

The questionable analysis of expert witnesses has had major consequences where lethal injection is concerned. At the preliminary injunction hearing that paved the way for Glossip, Alabama-based pharmacist Dr. Roswell Lee Evans peddled opinions divorced from scientific reality.

Among his claims was that 500 milligrams of midazolam — the same dose as in the Tennessee protocol — would render someone unconscious to the point that they would not feel pain. Anesthesiologists adamantly disagreed. In an amicus brief to the Supreme Court, 16 professors of pharmacology cited the “overwhelming scientific consensus” that midazolam was incapable of inducing the “deep comalike unconsciousness” called for in lethal injection.

On the eve of oral arguments in Glossip, the case was embroiled in controversy over the revelation that Evans had relied on sources like the website


Liliana Segura
July 15 2018

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