Department Of Correction Director Testifies In Arkansas Lethal Injection Lawsuit

May 1, 2019

Arkansas Department of Correction Director Wendy Kelley (center) during a legislative committee meeting in January 2018. She testified Wednesday in federal court about Arkansas execution procedures.
Credit Arkansas Public Media

A federal trial regarding Arkansas’s use of the sedative midazolam in lethal injections is wrapping up. On Wednesday, just over a week since the trial began, attorneys for the state called their final witness. Department of Correction Director Wendy Kelley is named along with Gov. Asa Hutchinson as a defendant in the lawsuit by a group of death row inmates who claim the drug isn’t enough to keep inmates unconscious during the process.

Kelley testified about her role in four executions that took place in 2017. She was in the death chamber as the lethal injections were carried out and was the sole person with the authority to halt an execution and contact the governor if she felt something wasn’t right.

All of the executions were discussed at length by Kelley, but the case of Kenneth Williams got the most attention. Descriptions have varied from different witnesses during the trial on whether he repeatedly lurched forward or if it was an involuntary muscle spasm.

Kelley offered her account during questioning by Senior Assistant Attorney General Christine Cryer. After giving a final statement while strapped to the gurney, she said Williams began speaking in tongues, which faded out about a minute after the midazolam was administered.

"The trunk of his body, the chest I guess, came up off of the table and hit the table like he was coughing, but there wasn’t a coughing sound," Kelley said.

It happened about 15 or 20 times, she said, lasting about 10 seconds. She said there was no expression on his face and that it didn’t seem to be a violent reaction.

"His hands did not clench, it was just the torso. And it was rhythmic to the point that it couldn’t have been on purpose," Kelley said. "It wasn’t violent, it was startling because it was, at least from my point of view, it was unexpected."

Kelley testified that when she was considering whether to take action, Williams became still.

"If that had gone on any longer than the 10 seconds, I probably would have thought something needed to stop, at least paused, but it didn’t," Kelley said. "By the time it sunk in that his chest was, you know, coming off the table and hitting the table, it was over."

Previous witnesses in the trial have testified that Williams was hitting against the restraints that were holding his body against the gurney, but Kelley said, "You couldn’t see the restraints. There’s a sheet that’s over the body. The sheet’s folded back so you can’t see where the IV is placed."

She also disputed claims by witnesses who said they heard a moan of pain.

Public Defender Julie Vandiver noted during cross examination that she had questioned Kelley in the same courtroom just over two years ago as an injunction was being sought to halt the series executions, which were planned to take place before the state’s supply of midazolam expired.

Vandiver presented transcripts of testimony and read what Kelley had said in April 2017 regarding consciousness checks, which were intended to tell if inmates were completely unconscious following the sedative and ready for the second and third drugs to be administered – which would kill the inmates.

"So you agree that your testimony at the preliminary injunction hearing was that if there’s any kind of movement that the designee would say halt and do another check," Vandiver asked.

"Yes, if there was movement after the consciousness check had been done that the procedure would have been stopped so another round of midazolam could administered," Kelley said.

"But in fact none of the condemned received the second 500 milligrams of midazolam. Is that correct?" Vandiver asked.

"Right. There was no movement after the consciousness check."

Vandiver also presented an email that was sent by Department of Correction spokesman Soloman Graves to a liaison from the governor’s office that had "talking points" about how to answer questions regarding Williams’ execution. Kelley suggested that it might have been prepared to assist Hutchinson, but she wasn’t involved.

Extensive logs are kept of various aspects of executions, but Kelley testified Wednesday that she hadn’t thought of having staff note the times that each of the three drugs were administered. It wasn’t announced during the execution, which led to confusion among witnesses to executions about the sequence of event. Kelley said logging when drugs are injected could have easily been done, but no one asked for it to be done.

"I do know when it’s happening," Kelley told Cryer at one point. "I have thought about it. Do I have specific plans to do it as I sit here at this moment? No, but should another execution get scheduled, then at that point is when I will review the policy again."

Closing arguments are expected to be presented Thursday and U.S. District Judge Kristine Baker is to eventually issue a written ruling.