Witnesses describe botched executions in Oklahoma, Alabama; American Bar objects to executions

A federal judge heard hours of testimony Tuesday (April 11) from out-of-state execution witnesses intended to highlight that the rush to send seven Arkansas death row inmates to the execution chamber in six days could potentially result in mistakes on the lethal injection table.

An all-day hearing before U.S. District Judge Kristine Baker in Little Rock included detailed testimony from execution witnesses from Alabama and Oklahoma, both of whom described details of botched executions in those states involving the same three-drug protocol that Arkansas plans to use in executions schedule to begin on April 17.

Gov. Asa Hutchinson on March 6 set execution dates two at a time over an 11-day period starting April 17 and ending April 27.
• April 17: Don Davis, Bruce Ward;
• April 20: Stacey Johnson, Ledelle Lee;
• April 24: Marcel Williams, Jack Jones; and
• April 27: Jason McGehee, Kenneth Williams.

However, the State Parole Board on April 4 recommended the governor grant clemency to one of the condemned, Jason McGehee. On April 6, U.S. District Court Judge D. Price Marshall ruled in federal court that there must be at least a 30-day period before the Parole Board makes that recommendation. That would place McGehee’s execution past April 30, when the state’s supply of midazolam, one of three drugs used in its executions, expires.

ODD BODY MOVEMENTS
Spencer Hahn, a federal defender for the Middle District of Alabama, testified about the execution of Ronald Smith Jr., who died by lethal injection in December at the hands of the Alabama Department of Corrections. Hahn was selected as an “attorney witness” during the execution of Smith, who confessed to killing and attempting to rob Alabama convenience store clerk Casey Wilson.

Hahn testified that during the lethal injection of Smith the Alabama death-row inmate was first given the sedative Midazolam. That drug was meant to render Smith unconscious, followed by a second drug that paralyzed him and a third injection that stops the heart, he said.

But according to Hahn, several minutes into the execution Smith attempted to move his arm and “mouth words,” an indication that something had gone wrong. He said after Smith was administered Midazolam, the Alabama prison inmate reacted strangely before the other two drugs were administered. He said the Alabama inmate attempted to open his eyes, made odd bodily movements and coughed incessantly.

“I don’t know if you know anybody who has asthma, but it sounded almost like a seal is barking,” Hahn said. “He was looking around trying to mouth words and clinching his fist.”

Hahn said those reactions continued for 15 to 16 minutes while Smith was under sedation until the second “paralyzing drug” was given, followed by a so-call “consciousness check” by the executioner.

“At that point, I realized Mr. Smith was still conscious,” said the Alabama attorney. “At that point, I thought ‘I don’t know what they are going to do.’ Then I began to hear panicked, loud voices coming from the (prison) commissioner’s room. I didn’t know what was going on in there, but they were having issues trying to figure out what had gone wrong.”

According to media reporters, Smith was later pronounced dead about 34 minutes after the three-drug protocol began at the Holman Correctional Facility in Atmore, Ala.

‘BLOODY MESS’ IN OKLAHOMA
After Hahn’s testimony and cross examination by the state’s attorney, media witness Ziva Branstetter gave her colorful observations on the Tulsa World’s award-winning coverage of the botched execution of Oklahoma death-row inmate Clayton Lockett three years ago.

Like Hahn, Branstetter gave graphic details of the death of Lockett while she was a reporter with the Tulsa World newspaper in 2014. Midazolam was also used in Lockett’s death, who was on death row for murder, rape and kidnapping of 19-year old Stephanie Neiman in 1999.

Branstetter testified only to the media articles she wrote before and after witnessing the Lockett execution on April 29, 2014. The Oklahoma reporter told court officials she has served as a media witness to four executions in that state, but said the Lockett lethal injection was unlike any other “death chamber” experience.

“The other three executions I witnessed … is not something that I volunteered for eagerly. They were all about eight minutes and all of the inmates ended up, sort of snoring at the end. They were all very much the same,” Branstetter said. “Clayton Lockett’s lasted 43 minutes.”

The series of articles by Branstetter and Cary Aspinwall of the Tulsa World are credited with starting the national discussion about the secrecy surrounding execution drugs and lethal injection protocols. In 2015, The Tulsa World was a Pulitzer Prize finalist for local reporting for the series of articles written by Branstetter’s and Aspinwall on the Lockett execution and related stories.

In her hour-long testimony, Branstetter described one scene she reported on in which the Oklahoma prison inmate attempted to get up off the gurney about 15 minutes into his execution. In one account by the Tulsa World submitted to the Pulitzer panel, Lockett’s execution was described by one prison official as “a bloody mess.” Due to supply issues with Midazolam, Oklahoma used an untested mixture of midazolam, vecuronium bromide, and potassium chloride for Lockett’s execution.

“It was clear that no one was ready for the situation that occurred,” said Branstetter, who  now serves as editor-in-chief of The Frontier, a nonprofit investigative news portal in Tulsa.

HEARING MAY CONTINUE TO THURSDAY
Arkansas plans to use that same three-drug protocol for the upcoming executions that begin on Monday (April 17).  The state’s supply of midazolam, a sedative, expires April 30. Resupplying execution drugs has proven a challenge because manufacturers do not wish to be associated with the death penalty for moral or public relations reasons.

Attorneys for the state of Arkansas objected to the testimony of Branstetter, Huhn, and other out-of-state witnesses testifying in the hearing to stay the executions of the seven Arkansas inmates. However, Judge Baker allowed the testimony. In cross examination of Huhn and Branstetter, attorneys representing Gov. Asa Hutchinson’s office and the state Department of Corrections also clarified that the Alabama public defender and Oklahoma reporter were not medical experts who could testify to the efficacy of Arkansas’ execution protocol.

Originally, the attorney for eight death-row inmates argued that holding clemency hearings within 30 days of the execution dates was a violation of their due process. The motion, filed March 27, asked the federal court for a preliminary injunction to prevent the state from executing the prisoners on the appointed dates between April 17 and April 27 “so that the court may adequately consider their claims on the merits.”

Judge Baker has extended testimony in the federal hearing before the U.S. District Court until Thursday. Several court officials said they expect the federal judge to render a quick decision on the case ahead of the first scheduled execution of Arkansas inmates Don Davis and Bruce Ward on Monday.

AMERICAN BAR ASSOCIATION OBJECTS TO EXECUTIONS
Separately, American Bar Association President Linda Klein wrote a letter to Gov. Hutchinson, saying she was “troubled” that the aggressive execution schedule “appears not to allow for these necessary safeguards and prioritizes expediency above due process.”

“Because neither Arkansas decision-makers nor defense counsel have adequate time to ensure that these executions are carried out with due process of law, we simply ask that you modify the current execution schedule to allow for adequate time between executions,” Klein said, adding that ABA has no position on the death penalty.

Also, the Arkansas Coalition to Abolish the Death Penalty plans to hold a press conference Wednesday (April 12) at the State Capitol. More than 200 clergy are expected to ask Hutchinson to “show mercy as it pertains to his decision to push forward the executions of seven men.”