4/1/12
Attorney questions lethal-injection drug
By Bernie Delinski
Staff Writer

While the Alabama Attorney General’s office seeks to have another execution date set for death-row inmate Tommy Arthur, his defense attorney is hoping for a day in court to challenge the way Alabama carries out executions.

Arthur, 70, a Sheffield native, avoided death for the fifth time last week when the state’s appeal to the 11th U.S. Circuit Court of Appeals to lift Arthur’s stay of execution was denied.

He was convicted of the 1982 murder-for-hire killing of Troy Wicker, of Muscle Shoals. He also was convicted two other times during retrials.

The appeals court’s action again returned Arthur from a special cell beside the death chamber to his regular cell at Holman Prison in Atmore.

Arthur’s attorney, Suhana Han, said she is relieved by the ruling, but it only upheld the stay. It did not address whether to reconsider an earlier decision to let Arthur challenge the execution protocol.

“It’s a three-drug protocol,” she said. “It’s the first drug that’s at issue.”

Han said if that drug — pentobarbital — does not work correctly, it would cause the inmate to experience feelings associated with drowning and excruciating pain as though he were burning up internally.

Arthur contends Alabama’s three-drug lethal injection process is cruel and unusual because pentobarbital might not render an inmate unconscious before the lethal drugs are administered.

A judge dismissed Arthur’s appeal, but a three-member panel of the federal 11th Circuit last week overturned that dismissal. In light of Arthur’s challenge going forward, his attorneys asked for a stay of execution.

Alabama’s attorney general’s office has requested that the full 11th Circuit Court of Appeals reconsider the decision to allow Arthur’s challenge to go forward.

If the court declines that request, Arthur, who has maintained his innocence for more than 29 years on death row, would be allowed to continue his challenge of the lethal injection process.

If the state prevails in its request, the attorney general’s office immediately would file paperwork with the Alabama Supreme Court to have a new execution date set, spokeswoman Joy Patterson said.

Alabama had been using sodium thiopental as the first of three drugs in its lethal-injection process.

In March 2011, Alabama, like several other states have done, turned over its supply of sodium thiopental to the Drug Enforcement Administration because of questions about how and where the states received the drug.

As a result, Alabama switched to pentobarbital as the first drug in the mixture. State officials say they administer the drug to render the inmate unconscious, Han said. That is supposed to prevent the inmate from feeling the effects of the other two drugs.

Han said, based on what she has found through affidavits and other court records, the second drug is pancuroniun bromide. The third is potassium chloride.

She said the drugs’ effects would be brutal if the pentobarbital does not do its job.

“When they administer the second drug, it would cause an inmate to feel like he is drowning and being buried alive,” Han said. “If he’s not unconscious when he gets the second drug, it’s extremely painful.

“The third drug is potassium chloride, which makes you feel like your veins and heart are on fire. So there is no dispute that the second and third drugs in Alabama’s protocol would cause excruciating pain. That’s why it’s extremely important that the first drug acts as it should. If not, the inmate would feel the effects of the last two drugs.”

Han said she also is worried about the fact that pentobarbital is considered a sedative instead of anesthesia. “If it doesn’t act fast enough and allow you to be fully unconscious, then the inmate will feel the pain of the second and third drugs.”

Another challenge Han intends to make involves the consciousness test that is made before administering the second and third drugs.

The process involves calling out the inmate’s name, brushing against the inmates eyelashes and pinching the inmate’s arm, Han said. If none of those causes a reaction, the second and third drugs are administered.

She said there is an eyewitness account stating the pinch test was not performed in a recent Alabama execution.

In addition, Han questions whether the dosage of pentobarbital that Alabama uses in executions is adequate. The state uses 2,500 milligrams, while some other states use as much as twice that amount.

Bernie Delinski can be reached at 256-740-5739 or bernie.delinski@timesdaily.com

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