Questions remain on cloudy drug, even as new execution looms

THE NEXT TO DIE

Four death row inmates have exhausted most of their legal appeals and are waiting for an execution date to be set:

Marcus Ray Johnson: Sentenced to die for the 1994 murder of Angela Sizemore in Dougherty County. A judge stayed his execution scheduled for October 2011 to allow time for testing of newly-discovered DNA evidence.

Brian Keith Terrell: Sentenced to die in Newton County for the 1992 murder of John Henry Watson, a friend of Terrell's mother. His execution that was set for March 10 was called off because the state wanted to determine the problem with the execution drug that was acquired for Gissendaner's execution.

Travis Hittson: Enlisted in the Navy and was sentenced to die in Houston County for the 1992 murder and dismemberment of shipmate Conway Utterbeck.

Joshua Daniel Bishop: Sentenced to die for the 1998 beating death in Baldwin County of Leverett Morrison because Morrison would not turn over the keys to his Jeep.

Three inmates are awaiting final appeals pending before the U.S. Supreme Court:

Kenneth Fults: Sentenced to die for the 1996 murder in Spalding County of Cathy Bounds, who was shot five times in the back of her head. The U.S. Supreme Court is considering whether to hear his appeal alleging that one of the jurors in his case was racist.

Daniel Joseph Lucas: Sentenced to die for the 1998 murders of three members of a Jones County family. His co-defendant, Brandon Joseph Rhodes, was executed for the crime in 2010.

Brandon Astor Jones: Sentenced to die in the 1979 robbery and murder of Roger Tackett, a 30-year-old teacher who was working a second job managing a gas station. His co-defendant, Van Roosevelt Solomon, was executed on Feb. 20, 1985, but Jones was granted a new trial because there was Bible in the jury room during deliberations.

THE NEXT TO DIE

Four death row inmates have exhausted most of their legal appeals and are waiting for an execution date to be set:

Marcus Ray Johnson: Sentenced to die for the 1994 murder of Angela Sizemore in Dougherty County. A judge stayed his execution scheduled for October 2011 to allow time for testing of newly-discovered DNA evidence.

Brian Keith Terrell: Sentenced to die in Newton County for the 1992 murder of John Henry Watson, a friend of Terrell's mother. His execution that was set for March 10 was called off because the state wanted to determine the problem with the execution drug that was acquired for Gissendaner's execution.

Travis Hittson: Enlisted in the Navy and was sentenced to die in Houston County for the 1992 murder and dismemberment of shipmate Conway Utterbeck.

Joshua Daniel Bishop: Sentenced to die for the 1998 beating death in Baldwin County of Leverett Morrison because Morrison would not turn over the keys to his Jeep.

Three inmates are awaiting final appeals pending before the U.S. Supreme Court:

Kenneth Fults: Sentenced to die for the 1996 murder in Spalding County of Cathy Bounds, who was shot five times in the back of her head. The U.S. Supreme Court is considering whether to hear his appeal alleging that one of the jurors in his case was racist.

Daniel Anthony Lucas: Sentenced to die for the 1998 murders of three members of a Jones County family. His co-defendant, Brandon Joseph Rhodes, was executed for the crime in 2010.

Brandon Astor Jones: Sentenced to die in the 1979 robbery and murder of Roger Tackett, a 30-year-old teacher who was working a second job managing a gas station. His co-defendant, Van Roosevelt Solomon, was executed on Feb. 20, 1985, but Jones was granted a new trial because there was Bible in the jury room during deliberations.

In late March, William King placed a vial of pentobarbital in a refrigerator at the state prison in Jackson and dutifully logged the temperature at 34 degrees. Earlier that same month, the execution of the only woman on Georgia’s death row had been halted abruptly after prison officials noticed that the drug that was supposed to stop her breathing appeared cloudy.

Now King — an investigator with the state Department of Corrections — was attempting to prove a theory: that the lethal barbiturate took on a clumpy, opaque quality because it had been stored in the cold. The experiment was a bust. Eleven days after the vial was chilled, records show, the drug remained crystal clear.

As the state again prepares to execute Kelly Gissendaner on Tuesday they still cannot explain with certainty what was wrong with the drug that put the brakes on her execution earlier this year. State officials maintain the cold temperature caused the drug to separate as it did. But death penalty opponents contend that's little more than an unproven theory. What would have happened if it was used on Gissendaner is also an open question.

It’s a puzzle that worries some, especially as Georgia prepares to ramp up executions this fall. As many as eight condemned inmates could have their execution dates set over the next year or so.

“It gives me great pause,” said Norman Fletcher, a former chief justice for Georgia’s highest court who recently came out in opposition to the death penalty.

“No one really knows what happened, or what could have happened, and that does concern me very much.”

Gwinnett County District Attorney Danny Porter has no such concerns.

“The drugs are perfectly effective for their purpose,” said Porter, who successfully convinced a jury to sentence Gissendaner to death. “What did the Supreme Court say? No death is painless? The drugs are perfectly adequate in the way they are administered and for the purpose they are intended.”

The death sentence, if it's carried out, will signal that Georgia's capital punishment machine is kicking into high gear after an eight-month hiatus. Gissendaner could be the first of five — and possibly as many as eight executions — in the coming months. According to the state attorney general's office, four other condemned inmates are soon to be execution eligible.. Three more inmates could be added to the list if the U.S. Supreme Court declines to hear their appeals after the new term begins on Oct. 1.

VIEW INTERACTIVE: Click here to view the Marshall Project

VIEW AJC SPECIAL REPORT EXPLAINING HOW LETHAL INJECTION WORKS: Click here

That accelerated pace would come even as some states have moved away from capital punishment — some with unofficial moratoriums as they sort out drug supply and other issues. Currently, 31 states still have capital punishment laws on the books. The number of executions nationally has dropped or held steady every year since 2009.

Lauren Sudeal Lucas, who is on the board of the Southern Center for Human Rights and a law professor at Georgia State University, said she isn’t surprised that Georgia is moving to swiftly resume executions, bucking the national trend.

“I have heard they are planning to set dates for all the people mentioned,” Lucas said. “It marches on regardless.”

THE “MOST LIKELY” CAUSE

Gissendaner was already in a holding area near the death chamber at the Georgia Diagnostic and Classification Prison on March 2 when prison officials noticed something was amiss with the syringe of pentobarbital. Several hours passed while they decided what to do.

Late that night, a Department of Corrections spokeswoman told reporters only that the drug appeared cloudy and Gissendaner’s lethal injection was called off in “an abundance of caution.”

Six weeks later, they released a video showing the suspect syringe. In it, chunks of a white solid material floated in the solution.

They also released documents. Among them was an affidavit from University of Georgia pharmacy professor Jason Zastre who wrote that “there is no evidence that the solution was adulterated.” Instead, Zastre wrote, it was “most likely” that the drug was shipped and stored at a temperature that was too low — 37 degrees over seven days. The drug manufacturer advises that the solution should be stored at a controlled room temperature not less than 59 degrees, he said.

But Zastre also provided an alternate explanation, the solvent and the powder form of the drug separated because it was not properly mixed.

By that time, King had already conducted his experiment, which showed no change in drugs stored in a refrigerator. In a log that covered nine of the 11 days, he recorded the temperature and remarked that the solution was clear.

Still, the state has stood by the claim that the cold temperature was to blame and, in an opinion issued last month, the U.S. District Court for the Northern District of Georgia dismissed a challenge from Gissendaner's team, clearing the way for the state to proceed on Tuesday.

Georgia Attorney General Sam Olens declined an interview request from The Atlanta Journal-Constitution because the case is ongoing. A spokesman pointed the newspaper to the state’s legal filings.

Bob Keller, who was Clayton County’s district attorney for nearly three decades before serving on the state parole board, said it wasn’t unusual for Gissendaner’s lawyer to key in on the drug problem since it was new.

“The cloudy drug, the refusal to disclose who is doing those things, those things are unique and can be litigated. But once those issues are cleared, it’s cleared for everybody so you don’t have anything unique,” Keller said of last-minute appeals.

A SCRAMBLE FOR DRUGS

To understand how perilous the stakes are for officials weighing what to do about the drugs in the Gissendaner case, it’s important to look back five years or so. As political pressure mounted from anti-death penalty forces, the supply of lethal injection drugs nationwide began to evaporate. Georgia and other capital punishment states hunted for drugs far and wide. Georgia once bought lethal injection drugs from a London pharmacy that shared an office with a driving school. That resulted in a raid by the U.S. Drug Enforcement Administration. The DEA said the state lacked a license to import the drug, which was at the time part of a three-drug lethal injection cocktail.

Georgia eventually followed the lead of other states in turning to pentobarbital, which had been used for years to euthanize animals.

But again, protests led drug companies worldwide to refuse to supply the drug for executions. Last year, Georgia began to use a compounding pharmacist to assemble the drug themselves so it would have a ready supply.

So far, there have been no high-profile complications with pentobarbital. But other drugs have been blamed for botched executions elsewhere. In Ohio, Dennis McGuire snorted, gasped for air and appeared to struggle as the lethal injection drugs hydromorphone and midazolam took effect. Clayton Locket writhed, clenched his teeth and strained to lift his head when Oklahoma attempted to put him to death using a three drug-cocktail in April. Locket died 43 minutes later of a heart attack. And in Arizona, Joseph Wood gasped for an hour and 40 minutes before he was pronounced dead of a two-drug cocktail, midazolam and hydromorphone. Arizona officials said Wood was only snoring loudly.

IT’S A SECRET

In the Gissendaner case, the pharmacist who assembled the drug was the first to suggest the cold storage caused the cloudiness.

Who is that pharmacist? The state of Georgia won’t say. Nor will they provide information on the pharmacist’s credentials.

Though compounded pharmacists are licensed, their work does not receive the same oversight as drug manufacturers. The Food and Drug Administration does not approve compounded drugs because they are mixed one batch at a time for one, specific purpose. Compounding pharmacies can be accredited but it isn’t required.

Questions about the pharmacists are among the many facts surrounding the execution process that the state keeps shrouded in secrecy.

A law adopted in 2013 specifically prohibits the state from divulging the manufacturer of the lethal drugs as well as the identities of those directly involved in the execution process. It's designed to prevent intimidation, supporters say. But state officials have said the spirit of the law allows them to withhold other information as well, such as the quality standards in production, when the state acquired the drugs or the credentials of those involved.

Those who argue for more transparency say that effectively abolishes accountability in what is the greatest exercise of power the state may exert.

Nonetheless, the state’s highest court last May upheld the secrecy law by a 5-2 vote. That decision by the Georgia Supreme Court was similar to rulings in other states who have backed secrecy laws.

“I DON’T DESERVE TO DIE”

On Monday morning, Gissendaner's lawyers will appear before a federal district court judge to make a last-ditch plea to delay the death sentence. The state Board of Pardons and Parole turned down Gissendaner's clemency appeal earlier this year.

She was convicted of conspiring with her lover to kill her husband, Douglas Gissendaner, in 1997.

That Gissendaner is a woman has certainly led to heightened curiosity about her case. Women remain a rarity on death row. Nationally, she is one of just 56 — less than 2 percent of the overall death-row population.

But there are other unique elements to her story as well. Gissender was sentenced to die by a Gwinnett County jury even though she wasn’t even present when her husband was knocked unconscious with nightstick and then repeatedly stabbed in the neck.

Gregory Owen, who pleaded guilty to the brutal slaying, was sentenced to life in prison with the possibility of parole after serving 25 years.

It is exceedingly rare for those who didn’t actually commit a murder to be executed. Out of 1,414 murderers executed since the 1970s, only five were co-conspirators like her, according to an Atlanta Journal-Constitution analysis of death penalty records.

Additionally, Gissendaner's apparent conversion behind bars to a deeply religious mentor for other inmates has attracted a robust crowd of supporters to her cause. A number of religious groups are urging the state to reconsider the decision to execute her. Some of her most passionate supporters include a loose-knit group of former women inmates who credit Gissendaner with helping them move on to productive lives. Two of Gissendaner's three children have filmed an emotional video pleading with the state not to take away their remaining parent.

But the parents of the husband she had killed remain staunch supporters of her execution.

Porter said that Gissendaner may not have wielded the knife, but she was the instigator. She spent the night of the murder at a bar with friends while Owen waited for Douglas at the Gissendaner house. She gave Owen a night stick and a hunting knife, Porter said.

Gissendaner’s lawyers and prison officials declined to make her available to the AJC.

But in a 2004 interview with the newspaper she made her thoughts on the matter clear: “I deserve to be here,” she said. “But I don’t deserve to die.”