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June 29, 2011

Georgia execution raising new questions (and more litigation) about new drug protocols

As detailed in this AP article,which is headlined "Ga. Execution Is Fodder for Challenges to New Drug," a notable recent execution is prompted the usual classic complaints from lawyers for death row defendants. Here is how the article begins:

The thrashing, jerking death of Roy Willard Blankenship has lawyers for death row inmates plotting fresh arguments against the drug used to execute him, even though they may never be able to prove that it caused the spasms in his last moments.

Medical experts say it's possible that Georgia prison staff botched the procedure last week using a controversial new sedative, that Blankenship had some sort of jarring reaction to the drug, or even that he faked it. Still, defense attorneys around the nation say they plan to cite Blankenship in requests to stop executions using pentobarbital, a chemical being adopted by a growing number of states as they run out of another commonly-used drug.

Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital on Thursday in Georgia's death chamber. Inmates are usually much more still during a lethal injection, but medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.

"As he's going to sleep, there could be many kinds of reactions. He could have had the same reaction with sodium thiopental," which was once the predominant execution drug, said Dr. Howard Nearman, who chairs the anesthesiology department at Case Western Reserve University's medical school. "And he could have been faking it. Anything's possible."

Georgia's prison department has stopped short of publicly launching an investigation, but said in a statement it will work with the state attorney general's office to ensure "execution procedures are medically appropriate."

Whatever conclusions the state reaches, defense attorneys said they are planning to invoke Blankenship's execution in court filings as evidence that pentobarbital could violate the ban on cruel and unusual punishment. "It is clear that something went very wrong during the Blankenship execution and lawyers challenging lethal injection in other states will be taking a very close look at what happened," said Ty Alper, a California attorney who represents several death row inmates and works with the death penalty clinic at the University of California-Berkeley.

The execution of Blankenship, condemned for the 1978 murder of an elderly Savannah woman, was the first in Georgia using pentobarbital as part of a three-drug execution combination. The state was forced to switch after it surrendered its supply of sodium thiopental to federal officials amid an investigation into how the drug was obtained.

Georgia is one of several states that have adopted pentobarbital, which is commonly used to destroy dogs and cats, since the sole U.S. manufacturer of sodium thiopental stopped making it in 2009 and dropped plans to resume production earlier this year.

Among the objections to the new drug were multiple challenges by Blankenship's attorneys, who argued in state and federal court that it could cause him needless pain and suffering. Each request was rejected.

As the injection began, Blankenship jerked his head toward his left arm and began rapidly blinking. He then lurched toward his right arm, lunging twice with his mouth wide open as if he were gasping for air. A minute later, he pushed his head forward while mouthing inaudible words. His eyes never closed. The movements stopped within three minutes, and he was declared dead 12 minutes later.

June 29, 2011 at 11:12 AM | Permalink

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Comments

"medically appropriate" execution. Just an interesting little juxtiposition.

Posted by: Ala JD | Jun 29, 2011 11:34:35 AM

Do you think his victim suffered for more than 3 minutes? The courts have said he's not entitled to a "pain free" execution. This guy was a rabid anti-dp goof and made clearly antagonistic comments in his last words. My guess is he's a great actor and faker.

Posted by: DeanO | Jun 29, 2011 8:27:27 PM

STATE OF MASSACHUSSETTS
COUNTY OF SUFFOLK
AFFIDAVIT OF DAVID B. WAISEL, MD
Comes now the Affiant, David B. Waisel, MD, who, being first duly sworn by an officer authorized by law to administer oaths, deposes and states as follows:
1. My name is David B. Waisel. I am over the age of eighteen and competent to testify to the truth of the matters contained herein.
2. I am a practicing anesthesiologist at Children’s Hospital Boston and an Associate Professor of Anaesthesia, Harvard Medical School. I have been practicing clinical anesthesiology, primarily pediatric anesthesiology, for approximately 18 years.
3. I have been asked by the attorneys who represent Roy Blankenship to provide an expert medical and scientific opinion about observations of his execution by lethal injection on June 23, 2011.
4. I was not in attendance at the execution. My information about the execution comes from a comprehensive interview of an eyewitness, Greg Bluestein, an AP reporter. Mr. Bluestein’s report is the type of information experts in my field normally and regularly rely on in forming expert opinions. Mr. Bluestein informed me that neither he nor any other witness was able to hear the proceedings within the execution chamber as the microphone was off.

OBSERVATION REPORT
5. According to Mr. Bluestein, as the lethal injection commenced Mr.Blankenship jerked his head toward his left arm and made a startled face while
blinking rapidly. He had a “tight” grimacing expression on his face and leaned backward.
6. Shortly thereafter, Mr. Blankenship grimaced, gasped and lurched twice toward his right arm.
7. During the next minute, Mr. Blankenship lifted his head, shuddered and mouthed words.
8. Three (3) minutes after the injection, Mr. Blankenship had his eyes open and made swallowing motions.
9. Four (4) minutes after injection, Mr. Blankenship became motionless.
10. About six (6) minutes after the injection, the nurse assessed Mr. Blankenship’s eyes using a stick-like instrument about fingertips-to-mid-forearm length to do something to the area on or about his eyes. Critically, Mr.Blankenship’s eyes were still open and never closed during the entirety of the lethal injection process.
11. About thirteen (13) minutes after the injection, Mr. Blankenship was declared dead. Again, his eyes were open throughout.

OPINION
12. Based on his lurching toward his arms and the lifting of his head and the mouthing of words, I can say with certainty that Mr. Blankenship was inadequately anesthetized and was conscious for approximately the first three minutes of the execution and that he suffered greatly. Mr. Blankenship should not have been conscious or exhibiting these movements, nor should his eyes have been open, after the injection of pentobarbital.
13. Given prior executions of Brandon Rhode and Emanuel Hammond in September 2010 and January 2011, respectively, during which these inmates reportedly exhibited similar movements and opened their eyes (Rhode’s eyes were open throughout the execution process), Mr. Blankenship’s execution further evidences that during judicial lethal injections in Georgia there is a substantial risk of serious harm such that condemned inmates are significantly likely to face extreme, torturous and needless pain and suffering.
14. The fact that executions using pentobarbital of inmates in other jurisdictions (approximately 14 have occurred thus far, to my knowledge) have not generated reports of problems like those observed in Mr. Blankenship’s case is not dispositive of the safety, efficacy or reliability of pentobarbital as used to induce anesthetic coma in human beings. Only when a drug has been tested systematically on thousands of subjects, with their consent, can one begin to reliably assess how an untested use of a drug will affect human subjects. We do not have relevant data in similar populations for pentobarbital. Because we do not have sufficient data, there is no way to know, in any given case, how an overdose of pentobarbital will affect basically healthy inmates. Mr. Blankenship’s reaction to the pentobarbital injection may be indicative of other inmates’ reactions.
15. It has been opined in a recent news article1 that “Blankenship's movements could also have come during an ‘excitement phase.’” Although subanesthetic doses of pentothal (and likely other barbiturates such as
pentobarbital, although I have been unable to find any documentation of that) may cause a very brief excitement phase, in my expert opinion that was not what caused Blankenship’s movements. The excitement phase is abolished with higher doses. Given the massive amount of the dosing claimed by the State, any excitement phase could not last three minutes during the administration of pentobarbital.
Further, the localization of the pain and the mouthing of words are actions inconsistent with the excitement phase.
16. It has also been opined in the same aforementioned article that “...[Blankenship] could have been faking it.” Faking would require a level of consciousness inconsistent with how the State claims pentobarbital should work. The intentional act of faking could only be explained if the pentobarbital did not work as the State claims it should work. And one cannot fake eyes-wide-open at death.
Dated this ___ day of ____________, 2011.
_________________________
David B. Waisel, MD
Sworn to and subscribed before me
this __ day of ___________, 2011.
____________________________
NOTARY PUBLIC

Posted by: peter | Jun 30, 2011 3:16:42 PM

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