Judge orders videotaping of scheduled execution

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By Bill Rankin and Rhonda Cook

The Atlanta Journal-Constitution

A Fulton County judge has ordered that an execution scheduled for Wednesday be videotaped after hearing claims from attorneys that the state’s new lethal injection procedure may cause needless pain and suffering.

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AJC file Andrew Grant DeYoung at his death penalty trial in Cobb County in October 1995.

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Superior Court Judge Bensonetta Tipton Lane, in an order signed Monday, said the taping shall occur so long as condemned killer Andrew Grant DeYoung does not object to it. She also ordered the videotape, once compiled, be submitted immediately to the court under seal.

DeYoung is scheduled to be executed at 7 p.m. Wednesday for the 1993 murders of his parents and his sister. Cobb County prosecutors said DeYoung stabbed them to death because he expected to get an inheritance he couple put towards a business opportunity.

DeYoung's lawyers were in federal court most of Tuesday trying to persuaded a judge to stop the execution until there was more information about how well pentobarbital anesthetizes an inmate before the next two drugs are administered -- the paralytic pancuronium and the potassium chloride that stopped his heart. U.S. District Judge Steve Jones did not immediately render a decision based on Tuesday's hearing.

The argument concerns efforts by Georgia -- and other states -- to find an alternative to sodium thiopental when the drug manufacturer stopped making it. Georgia and other states replaced thiopental with pentobarbital, commonly used to euthanize dogs and cats.

Death penalty opponents and the maker of the maker of pentobarbital say the anesthetic is unsafe for executions.

Lane's order, however, did not involve DeYoung's appeal. Instead it concerned another Death Row inmate, Gregory Walker.

“This court is not making a finding that any executions have been ‘botched,’ but is finding that there are many facts relevant to the constitutionality of the state’s execution process that it has refrained from disclosing to those who seek to challenge it,” Lane wrote.

The merits of the execution, Lane added, were not before her, only the question as to whether Walker can gather evidence for his claim.

Lane said that the type of evidence being sought “is of a type that is likely to be relevant to a determination regarding whether the method of execution … violates federal and state constitutional restrictions against inflicting cruel and unusual punishment.”

DeYoung's lawyers argued Tuesday that it does.

Dr. David Waisel, an expert called by DeYoung's lawyers, said in court Tuesday descriptions of the execution of the man most recently put to death in Georgia suggest it was unconstitutionally painful because pentobarbital is inadequate and unsafe.

Some witnesses to Roy Blankenship's execution for the murder of an elderly Savannah woman 33 years ago said the 55-year-old jerked his head several times early in the procedure but his movement and breathing slowed within minutes. Prison officials say Blankenship’s movements occurred before the sedative took hold.

But Waisel said in court witnesses also had observed similar reactions when Eddie Duvall Powell was executed in Alabama on June 16 and when Johnnie Baston was put to death in Ohio on March 10. He said the movement in the Georgia and Alabama executions came because they felt pain when the other drugs were administered. Ohio uses on pentobarbital in its executions.

“Pentobarbital has not been scientifically tested as a free-standing anesthesia on humans; the test Georgia conducted on the first inmate executed using pentobarbital, Roy Blankenship, resulted in his needless suffering,” a court filing said.