Testimony in a federal lawsuit over Arkansas’s use of the sedative midazolam in lethal injections shifted Wednesday from witnesses of recent executions to expert testimony. Attorneys for a group of death row inmates are trying to establish that the execution process inflicts unconstitutional pain and suffering.
Craig W. Stevens, a professor of pharmacology at Oklahoma State University in Tulsa, said that midazolam, which is the first of three drugs used, would not effectively keep inmates from feeling the following drugs, which stop the heart and paralyze the muscles.
"For a certain, it’s going to cause severe pain because midazolam does not produce anesthesia," Stevens testified. He explained that there is a "ceiling effect" for benzodiazepines, which is the class of drugs midazolam falls into, meaning that increasing the dose won’t have an increased effect.
"Even at massive doses, persons still respond to noxious stimulus," which is a tissue damaging event. "There will be pain and suffering masked by the paralytic," Stevens said.
But he was challenged on his assertion that midazolam is not effective as an anesthetic by a textbook that Stevens coauthored with George M. Brenner. Arkansas Senior Assistant Attorney General Jennifer Merritt showed Stevens a table inside Pharmacology which listed drugs and their uses. For midazolam, its use was listed as an anesthetic.
"Yes, I mean I’ll go along with that. I don’t think there’s really any good research for that, but that’s what Brenner wrote and I, as junior author, went along with it," Stevens said.
Brenner was chair of the university department that Stevens served under, he said.
"I would have added induction of anesthesia," Stevens said. "This is just a short form to make it easier for students. It’s not as accurate as I would like to make it."
Merritt asked Stevens, "then perhaps there’s room for some disagreement between pharmacologists on that particular point?"
"No. No room for disagreement, but room and words that are used to express it," Stevens replied.
Testimony earlier on Wednesday came from people who had witnessed lethal injections involving midazolam. One of those executions was of Marcel Williams, one of four inmates who Arkansas put to death in 2017.
Former Arkansas Times reporter Jacob Rosenberg, who today works for Mother Jones magazine in San Francisco, testified via video about what he saw when the curtain opened for witnesses in the death chamber at Williams’ execution. Williams didn’t have any last words, so Rosenberg said the lethal injection process began.
"At the time he was breathing heavily with [his] chest lifting off of the gurney and his back arching in order to do so. And his eyes began to slowly droop, though one sort of stayed open throughout this process, and his heavy breathing and arching sort of continued throughout this time," Rosenberg said.
Asked by defense attorney Julie Vandiver why he couldn’t count how many times his back arched off the gurney, Rosenberg said, "It became too many times for me to count."
Under cross-examination by Assistant Attorney General Ka Tina Guest, Rosenberg acknowledged that it was difficult to tell if Williams suffered any pain.
Another witness to Williams’ death, former Assistant Federal Public Defender Jamie Giani, also testified about movements that suggested he was still conscious after being given midazolam.
"At 10:28 [p.m.] I saw his eye open slightly and I noticed his… I could tell that his eyeball was moving. I could see the iris or the pupil actually moving from his open eye."
Giani said a medical official in the death chamber eventually approached Williams.
"He took out his stethoscope and checked Marcel with the stethoscope and at 10:32 he says, 'I think we need to call the coroner,' which was audible from where I was standing," Giani said.
"Were you surprised when you saw the stethoscope," plaintiffs attorney Casey Kraning asked.
"Well, I was shocked when he said they were going to call the coroner because I was still waiting for the consciousness check. I obviously was seeing signs of consciousness and I had assumed that they had not pushed the second dose of midazolam or the second or third drugs," Giani said.
Witnesses to executions elsewhere in the country involving midazolam also testified Wednesday. Public defender Santino Coleman spoke about the 2017 lethal injection of Torrey McNabb in Alabama in which the inmate made a facial expression several minutes into the execution that "looked like he was going to get off the table."
Reporter Steven Hale with the Nashville Scene testified by phone about the execution of Billy Ray Irick last year in Tennessee. When the process began, Hale said Irick initially began to snore loudly, but after a few minutes made a cough or choking sound, then pulled up against the restraints.
Plaintiffs in the Arkansas lawsuit, which names Gov. Asa Hutchinson and Department of Correction Director Wendy Kelly as defendants, will continue calling witnesses Thursday. Attorneys for the state will eventually present their side, with the trial scheduled to run through Thursday, May 2.
This story has been corrected to note the attorney who questioned Jamie Giani.
