Georgia is scheduled tonight to execute a second death row inmate since resuming lethal injections last month, but questions linger about whether the state’s new three-drug cocktail inflicts pain as it works.
Lawyers for Cobb County triple murderer Andrew Grant DeYoung sought Tuesday to delay his execution, arguing in federal court that more research is needed. Meanwhile, a Fulton County judge hearing another death row inmate’s appeal has issued an extraordinary order allowing the videotaping of DeYoung’s execution.
The ruling, by Superior Court Judge Bensonetta Tipton Lane, ordered the videotape to be immediately submitted, under seal, to the court after DeYoung’s execution. She also said a defense expert can be present during DeYoung’s autopsy, and said the taping can only occur with DeYoung’s consent.
Since Georgia’s electric chair was declared unconstitutional a decade ago, death penalty opponents have repeatedly attacked lethal injection, contending it is cruel and unusual punishment. The state’s recent switch to the sedative pentobarbital -- the first of three drugs used in the process -- prompted new attacks.
Witnesses to the June 23 execution of Roy Willard Blankenship, put to death for a 1978 rape and murder of a Savannah woman, gave mixed accounts of what happened. An Associated Press reporter wrote that Blankenship’s eyes remained open after the pentobarbital was injected and that the inmate jerked his head from side to side, grimaced and appeared to cry out. The publisher of the Claxton Enterprise has reported he saw Blankenship show discomfort and mouth “ow,” but that Blankenship did not appear to be suffering or in agony.
Witness accounts of Blankeship’s execution were scrutinized Tuesday by U.S. District Court Judge Steve Jones, who was asked by DeYoung’s lawyers to stop his execution until more information could be gathered. Jones did not issue an immediate ruling.
Dr. David Waisel, an expert called by DeYoung’s lawyers, said he had reviewed the witness accounts and concluded Blankenship’s execution was botched. “During this process Mr. Blankenship exhibited needless pain and suffering,” Waisel testified.
Sabrina Graham, an attorney for the state Attorney General’s Office, said there is no evidence Blankenship needlessly suffered. DeYoung’s lawyers presented “nothing more than speculation,” she said.
Jones also heard an account of a June 16 execution in Alabama, which uses the same drug combination as Georgia. Eddie Duvall Powell abruptly raised his head, pressed against his restraints and clenched his jaw for about a minute, Powell’s lawyer, Matt Schulz, testified Tuesday. But the general counsel of the Alabama prison system, in an affidavit, said Powell lifted his head with his eyes open and appeared distracted for only three seconds before lowering his head and drifting off.
During a March execution in Ohio, where pentobarbital is the only lethal-injection drug used, the condemned inmate grimaced and winced after being given the drug. But Carlo LoParo, spokesman for the Ohio prison system, said Tuesday the state has carried out two more executions since then “without incident” and that pentobarbital is “humane.”
Carl Tobias, a University of Virginia law professor and expert on the death penalty, said of the media witness accounts, “They aren’t scientists. They’re not doctors. But you hear these horror stories. Its hard to know what the truth is.”
DeYoung fatally stabbed his 41-year-old parents, Kathryn and Gary, and his 14-year-old sister Sarah at the family’s northeast Cobb County home in 1993. He was a straight-A business major at Kennesaw State College at the time and hoped to reap a financial windfall from his parents’ estate.
Lethal injection was first used in Texas in 1982, and Georgia first used it in October 2001, 20 days after the Georgia Supreme Court found the electric chair unconstitutional.
When lethal injection became the common execution method, one primary concern was the efficacy of the anesthetic, at that time sodium thiopental. But the U.S. Supreme Court upheld the use of lethal injections and said executions may cause some pain that is not cruel and unusual. In Georgia, an injection of pentobarbital is followed by the paralytic pancuronium bromide and finally potassium chloride, which causes cardiac arrest.
Last year, Hospira, the only company to make sodium thiopental, stopped producing it. Georgia continued to use its stockpile this year until the Drug Enforcement Administration seized the supply after DeYoung’s lawyers accused the state of failing to comply with federal law when it imported the drug last year from England. Georgia then substituted pentobarbital for sodium thiopental, and resumed executions with Blankenship.
The Danish company Lundbeck Inc., which makes pentobarbital, has since stated the drug is not approved for lethal injections and is trying to prevent its use by any of the 34 death penalty states.
In an interview this week, Mark Derwitz, a University of Massachusetts anesthesiology professor, said it’s not uncommon for some patients’ eyes to remain open after being anesthetized with pentobarbital and any movements are most likely “’involuntary muscle protraction.” It’s also no surprise, he said, that “some lay witnesses” may interpret that movement as convulsions.
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