As the questioning of Arkansas Department of Correction Director Wendy Kelley continued late into the night in federal court a host of revelations about the drugs, protocols and people involved in the upcoming seven executions next week were revealed for the first time (See reports from earlier in the hearing and after the hearing).
A surprising disclosure was that the potassium chloride, the third drug in Arkansas’s three-drug protocol, which causes heart failure, was “donated” to the state of Arkansas. Arkansas did not have its needed supply of potassium chloride when the executions were announced. But last month the ADC found a supplier. Kelley said she drove to pick up the potassium chloride, put it in her car and then began a conversation about the method of payment with the supplier. She told the supplier that the payment would have to be processed through another department and, according to Kelley, “[the supplier] said, ‘Nevermind, I’ll just donate it.’ ” The supplier was worried about his or her identity being revealed to the public through the payment process.
This led to a slew of questions about the credibility of the supplier of this drug and its ability to store potassium chloride properly. The potassium chloride, Kelley said, does come with a label that says it is FDA-approved. But, while midazolam, the controversial drug administered first in the three-drug protocol, has been independently tested, Kelley admitted the paralytic second drug — vecuronium bromide — and the “donated” potassium chloride have not been. “There is no need to have them tested,” Kelley answered, “they came from an FDA manufacturer.” When pushed on the fact that neither the men scheduled to be executed nor the public have information from the supplier, because of secrecy laws, about the transfer from that manufacturer to the actual source from which Arkansas bought, Kelley said she was still confident that “[one can] assume they were appropriately stored.”
Kelley also revealed problems in obtaining the other drugs necessary for Arkansas’s protocol. She told the court that these drugs were bought from a supplier and then — that same day — the supplier contacted her to undo the deal. The supplier wanted the drugs back. “But, I did not return the drugs,” she said. The supplier continued to contact state officials and Kelley, according to her testimony, in an attempt to have the drugs returned.
The “donation” of the potassium chloride by a supplier and the desire of a supplier to have the other drugs returned almost immediately after selling them is compounded by the desires of the manufacturers’ to not have middleman suppliers buy drugs and then sell them to states for executions. An amicus brief that was filed by drug manufacturers requested that Arkansas not use their drugs for executions. It said: “The use of the medicines in lethal injections runs counter to the manufacturers’ mission to save and enhance patients’ lives, and carries with it not only a public-health risk, but also reputational, fiscal and legal risks.” (Judge Baker said, at the end of the night, that she would read the brief, but said “I don’t think I will consider it.”)
Kelley is familiar with these drug manufacturer’s concerns, categorizing a desire by companies to not have their drugs used in executions an “understatement.” She said her preferred method of execution would be a barbiturate — the other drug protocol approved by Arkansas statute — but she has been unable to get the drug. And her last supply of barbiturate was seized by the DEA because, she said, “I obtained them from outside the United States.”
Attorneys for the prisoners attempted to push Kelley to reveal more about the discussions she has had in obtaining drugs for executions. They pointed out that they had asked for phone call records, which Kelley mentioned in testimony throughout the night but had not provided. Kelley said she had not purposefully meant to leave out these calls from the public record. But, she also said at one point about her process of buying drugs for the state, “I don’t take notes for obvious reasons.”
Attorneys for the prisoners also dug deeper into those that will be performing the upcoming executions. Kelley said that the team would be the same for all seven executions. Even the executioner, Kelley said, will be the same person for all seven executions and the person “has done it before” in Arkansas. The IV Team will contain two members who, Kelley revealed, had administered an IV “within the last week.” The many people involved in the lethal injection procedure will be made up of a “mixture” of ADC employees and non-ADC employees, according to Kelley. Attorneys for the prisoners hoped to make clear the qualification of those administering the execution because of grave concerns that something could go poorly.
These concerns are increased, for the prisoners’ lawyers, because they will have to take a three-minute drive to a telephone from the execution chamber in order to talk to the court about mistakes occurring during the executions. In the process, they remove themselves from being able to see the execution. Or, Kelley said, they can go into the back hallway right outside the execution chamber near the “quiet cell,” where another inmate could be waiting to die.
For the prisoners, these concerns circled around how to alert ADC staff that they are still conscious if the midazolam had failed to sedate them. The inmates, attorneys emphasized, will be strapped down in a gurney. And, it is unclear what “purposeful movement” is necessary to stop the execution or at least prompt the executioners to again check for consciousness. Kelley said earlier that almost “any movement” would prompt them to check consciousness and specifically if the inmate was able to “open his eyes” or “turn his head.”
But, when given the specific examples of an execution in Alabama where Ronald Bert Smith “coughed” and “moved,” Kelley was less clear on what she would do, saying she had already answered the questioned. This is despite saying in her affidavit that the Bert execution was not botched and that some movements could be expected.
Kelley often discussed the possible failure of midazolam through gritted teeth, saying of the drug’s failure, “I don’t think that is possible.” One of her affidavits backs up this confidence in midazolam by arguing against prisoners’ concerns with drugs by saying, “I disagree with their contentions based on my personal investigation, knowledge, and experience.”
Yet, Kelley continually said she was not aware of some crucial facts in the execution process. She did not know that the second drug was a paralytic, which could cause one to not see that the sedative midazolam had failed in its ability to sedate the prisoner. She instead insisted the botched executions using midazolam throughout the country related purely to IV placement mistakes or differences in protocol. In Arizona and Ohio, they give lower doses of midazolam, she said.
In Oklahoma — where Clayton Lockett died a horrific and prolonged death — she attributed his pain and suffering purely to the misplacement of an IV, despite reports that have said midazolam did make it into Lockett’s system. Kelley said that Arkansas’s planned use of an ultrasound machine in placing the IV would ensure the state does not make the same mistake. This is even though Kelley said she was familiar with the report commissioned by Oklahoma after the execution saying that stress caused by double executions in part led to the misplacement of the IV. The report recommended all executions to be spaced at least a week apart. “What happened to Clayton Lockett can’t happen here,” she said.
Kelley said there would be more stress placing them over eight months, once a month. “It requires so much concentration and preparation,” she said. But, at one point, after a long pause and failing to find better way of saying it, admitted that executions “are not something that anybody is wanting to do.”
Still swirling amongst all of this is just that question: Who wants to do this so quickly? Kelley’s testimony helped reveal some of this. She said in the meeting where the execution schedule was discussed there was an understanding that getting drugs in the future for lethal injection would be difficult. This left the possibility of killing some of the eight men and not others. Which meant, prioritizing some victims’ families over others. “So, the question posed to me was: Can you do it?” Kelley said.