A hearing continued into the evening tonight before U.S. District Judge Kristine G. Baker at the Federal Courthouse in Little Rock, with attorneys for Arkansas death row prisoners seeking to make the case that the state’s abbreviated execution schedule — which
would see eight inmates executed in 10 days this month — would violate the Eighth Amendment and their right to effective counsel.
In February, Governor Hutchinson scheduled double executions for each of four nights, April 17, 20, 14 and 27. The state’s supply of the sedative midazolam, one of a controversial three-drug cocktail*, will expire at the end of the month. Arkansas adopted the three-drug protocol in 2015. Inmates are first injected with midazolam to theoretically render them unconscious, followed by the paralytic vercuronium bromide, and finally potassium chloride, which stops the heart. Critics say midazolam might not render an inmate completely unconscious, leaving them in excruciating pain.
First on the stand this morning was Craig Stevens, a professor of pharmacology at the University of Oklahoma, who had submitted a report on midazolam to attorneys for the inmates in March. Under questioning by attorney John Williams, Stevens said that, unlike the barbiturates that had previously been used in executions before their supply to death penalty states was choked off by pharmaceutical companies, midazolam apparently cannot cause coma or death on its own, and must be mixed with other drugs to cause full anesthesia. Stevens said that his own experiments show that there’s a “ceiling effect” beyond which midazolam produced no further anesthetic effects, even if the dose was increased. Drawing on his laboratory experiments, Stevens estimated that the dose where this “ceiling effect” was reached in an adult human is 228 milligrams of midazolam. Arkansas’s protocol calls for an initial dose of 500 milligrams, with the option of administering another 500 milligrams if needed. Given that potassium chloride causes an extreme burning sensation all over the body if injected, Stevens said there is the potential for the executed inmates to experience “extreme suffering” if the midazolam fails to produce unconsciousness.
On cross examination by state’s attorney Jennifer Merritt, Stevens made the case that the animal and “in vitro” experiments conducted by Stevens don’t necessarily translate to humans, and repeatedly referred to a 2015 report submitted by Stevens in which Stevens said that the “ceiling effect” of midazolam kicked in at roughly 20 milligrams, a number that he said was due to an arithmetic error on his part, and since corrected. Referring to “Pharmacology,” a textbook Stevens co-wrote with colleague George Brenner, attorneys for the state noted a passage that says benzodiazepenes — a class of drugs that includes midazolam — can produce anesthesia and respiratory depression. Stevens said his co-author wrote the passage. Attorneys then presented Stevens with the FDA packaging label for midazolam, pointing out the “black box warning” at the top, which says that midazolam has been associated with respiratory distress and can result in death, with sedation occurring in 3 to 5 minutes from a 1 to 2.5 milligram dose. Stevens noted that sedation and anesthesia, which is needed to insulate patients from extreme pain such as surgery, are not the same thing. Stevens insisted throughout questioning that midazolam can only induce general anesthesia when used with other drugs.
After a lunch break, attorneys for the inmates called to the stand Ziva Branstetter, a reporter who witnessed the botched execution of Oklahoma death row inmate Clayton Lockett in April 2014. The first of what was to have been a double execution, Lockett lived for 43 minutes, groaning and writhing in apparent pain, before succumbing to a heart attack after being given a three-drug cocktail that included a 100 milligram dose of midazolam. Branstetter, who worked at the time for the Tulsa World newspaper and has since worked for the online publication The Frontier, published a series of stories about the Lockett execution, the state investigation into the botched execution, and Oklahoma’s death row protocol.
Branstetter said the state’s investigation revealed that the prison staff was under tremendous pressure the night of Lockett’s execution, due to the back-to-back nature of a double execution. An I.V. line was eventually placed in a vein in Lockett’s groin due to medical staff being unable to find a vein in his arm. Paramedics described the scene in the execution chamber as “a cluster” that night, Branstetter said, adding that it was clear that no one was ready for the situation that occurred. Branstetter testified that an investigation found that Oklahoma Governor Mary Fallin wasn’t “running the execution,” and had instead handed duties off to her general counsel while she attended an Oklahoma City Thunder basketball game. Branstetter testified that reporters later learned that the method for communication inside and outside the execution chamber in Oklahoma was that staff inside the chamber would stick a colored pencil through a small hole in the wall: green for all good, red for stop. Branstetter also testified that a traumatized public defender who had also come to witness Lockett’s execution began to weep in frustration because the attorney couldn’t communicate with the Lockett’s defense team as the inmate died on the gurney, having surrendered all electronics and been told to “sit down and shut up” by guards.
Under cross examination by the state, Branstetter said that she was only testifying to what she’d witnessed and reported on in Oklahoma, and is not an expert in Arkansas’s execution protocol. She said that she also witnessed the January 2015 execution of Oklahoma inmate Charles Warner, who was executed with a cocktail that included an initial 500 milligram dose of midazolam. That execution went smoothly.
Next up, after a short break, was Yale law professor Lawrence J. Fox, who testified by video. A lecturer and author on the issue of legal ethics, Fox is the director of The Ethics Bureau at Yale, and is the author or co-author of six books on legal ethics. He’s also the chair of the American Bar Association committee on ethics, and helped write the ABA’s death penalty ethics guidelines.
Fox said the defense contacted him a little over two weeks ago and asked him to speak about the ethics and duties of the lawyers involved in defending the eight condemned men scheduled to die this month. Fox said that because there is no physical way lawyers for the eight inmates can devote enough time and energy to defend their clients properly, “I am of the view that the lawyers involved are systematically in violation of ethical conduct.”
Fox, who said he has consulted on 25-30 death penalty cases in his career, repeatedly called the task faced by attorneys for the eight men “an impossible situation” given the time constraints and the number of cases at hand. Capital crimes defense, Fox said, is “the brain surgery of litigation.” Defendants facing the death penalty have the most on the line of any defendant, he said, and thus deserve the gold standard of representation. “Death is different,” Fox said. “There’s no way you can do a cost/benefit analysis.” The lawyers involved in the eight cases in Arkansas, he said, are in a situation where “every hour they allocate to one client is an hour that take from every other client… Every hour you spend with Client A, you’re stealing from Client B.” Fox said that lawyers are required by ethics to keep their clients up to date on hearings, and all eight clients should be updated on today’s hearings. That might be impossible, given the time constraints, he said. That can lead to feelings of guilt, shock and grief in attorneys involved in even single death penalty cases, Fox said. “You’re between a rock and a hard place,” Fox said. “You’re in an impossible situation.” Fox called the standard of representation in most death penalty cases “abysmal” and “shocking.”
“The Supreme Court has accepted a level of representation that shocks the conscience,” Fox said, “but you’ve compounded it in Arkansas with what you’re doing today.”
After Fox completed his testimony, Judge Baker told attorneys they would continue later tonight, but added “This hearing will end at 8:15 Thursday night.”
*A previous version of this post said the U.S. Supreme Court had approved the use of midazolam. The Court merely said prisoners had been unable to prove that it constituted cruel and unusual punishment.