Federal Trial Begins As Arkansas Death Row Inmates Challenge Execution Drug

Apr 23, 2019

The federal courthouse in Little Rock Tuesday where the lawsuit over Arkansas's use of midazolam is being heard.
Credit Michael Hibblen / KUAR News

A federal trial is underway with a group of Arkansas death row inmates challenging the state’s use of a sedative which is the first of three drugs used in the current lethal injection protocol. Attorneys for the plaintiffs argue that midazolam is not effective in fully knocking prisoners unconscious before the lethal drugs are administered, causing an unnecessary amount of pain. An attorney for the state said the inmates can’t prove its use is unconstitutional.

Opening statements and the first witnesses were called to the stand Tuesday at the federal courthouse in Little Rock, with U.S. District Judge Kristine G. Baker considering the case. 18 witnesses were on a list of those expected to be called to testify during the trial, which is scheduled to run through May 2. Gov. Asa Hutchinson and Arkansas Department of Correction Director Wendy Kelley are named as defendants.

"We believe this evidence will convince you that it is certain the condemned are aware of the effects the second and third drugs have on their bodies as they die," public defender John C. Williams told the judge. "You will find few of any scientific reportings beside the state’s own experts who are willing to say that midazolam can prevent awareness to surgical stimulants."

At the center of discussion Tuesday were the executions of two of the four inmates who were put to death by Arkansas in 2017 during a rush to carry out executions before the state’s supply of lethal injection drugs expired. Eight executions had been scheduled, but four were halted by courts.

Williams said the role of medical personnel in the death chamber was insufficient in determining whether to continue the lethal injection process after midazolam had been given to inmates.

"I don’t know how else to say this, but the consciousness check is hocus pocus. The important question in any surgical procedure, and in these executions as well, is whether the subject is aware of what is being done to him, which here is the injection of the very painful second and third drugs," he said.

Kenneth Williams
Credit Arkansas Department of Correction

The attorney cited witnesses to the execution of Kenneth Williams who said he repeatedly lurched forward, appearing to exhibit pain several minutes after the process began. In the death of Marcel Williams, the attorney said it took 45 minutes to establish an intravenous line and that there was confusion as to when each drug was administered.

Senior Assistant Attorney General Jennifer Merritt countered that the case being brought by the plaintiffs will not meet the standard required by courts.

"The evidence will show that the state’s midazolam protocol does not violate the constitutional ban against cruel and unusual punishment. The United States Supreme Court and every other court in the nation that has considered the constitutionality of this protocol have rejected the prisoners’ cruelty claims, and we will ask the court to do the same at the closing of the evidence," Merritt said.

She added that the Bucklew v. Precyth decision issued by the nation’s high court on April 1 said "the 8th Amendment does not guarantee a prisoner a painless death or demand the avoidance of all risk of pain in carrying out executions."

The first person called to the witness stand was Kelly Kissel, a former Associated Press reporter and editor who said he has witnessed 10 executions in Arkansas and Oklahoma over the years, with the last two involving midazolam. He had reported in 2017 about seeing Kenneth Williams convulse against the leather straps of the execution gurney.

"Three or four minutes into the execution was where he had the episode in which his body lurched forward 15 times in quick succession and then five additional times at a slower rate," Kissel testified. "It was lurching, jerking, convulsing."

He also described a loud moan made by the inmate, which could be heard by those watching through the glass in the witness section of the death chamber, even though the microphone inside the chamber had been turned off.

Two attorneys with the Federal Community Defender Office in Philadelphia, who had assisted in providing legal representation for the inmates in the weeks before the executions, were then called to testify. Eric Motylinski and Cassandra Belter described watching the execution of Kenneth Williams.

Motylinski testified that the process "didn’t look right," so he stepped outside the chamber to make an emergency phone call about the situation. When he returned four minutes later, he said the inmate was silent and still. Under cross examination by the state, Motylinski noted that he had no medical training.

Belter described Williams’ chest beginning to rise and fall in what seemed like the rhythm of his heartbeat. She said the convulsions then increased.

"Through the next few minutes they got stronger and more violent. He was convulsing up and, like, bucking against the restraints. At that point, I think at 10:55 [p.m.], he also groaned in pain. The breathing became audible, he was gasping as it grew stronger to the point that it sounded like he was choking," Belter said.

Photographs expected to be introduced as evidence during the trail were available for reporters to view in a binder in the courtroom before proceedings began. They included graphic images from the autopsy of Kenneth Williams that appeared to show wounds and bruises on his body.

Testimony will resume in the trial Wednesday.