The director of the public defender's office that represented Alabama Death Row inmate Ronald Bert Smith, who was executed Thursday night, believes the execution was "botched" and that Smith felt pain as he died.
The Alabama Department of Corrections disagreed and said the execution went according to its protocol.
Either way, the execution is likely to become an issue in lawsuits by death row inmates who claim the first drug in Alabama's lethal injection procedure doesn't ease the pain for the two fatal drugs that follow. The inmates claim the state's lethal injection method is unconstitutional and represents cruel and unusual punishment.
During a 13-minute portion of Thursday night's execution Smith's chest heaved, he appeared to gasp for breath, and at one point his left hand clinched before he stopped moving.
"I think it was botched," said Christine Freeman, executive director of the Federal Public Defender's Office in Montgomery which represented Smith in his appeals. She was one of the execution witnesses on Thursday.
The Alabama Department of Corrections issued a statement Friday that states that throughout the execution, the department followed an established protocol upheld as constitutional. Smith had his eyes closed and did cough but at no time during the execution was there observational evidence that he suffered, according to the statement.
"We followed our protocol," Alabama Prisons Commissioner Jeff Dunn said in a press conference after the execution.
Dunn said there was no discussion among prison officials during the execution about stopping the execution once Smith started coughing and his chest heaved.
He also contradicted witnesses who said Smith reacted to consciousness tests that a corrections officer administered to determine when the first drug, midazolam, had sedated Smith enough for the administration of the two other drugs that would kill him. "From where I was seated, I didn't see any reaction to the consciousness assessment," Dunn said.
The consciousness assessment consists of a corrections officer loudly calling the inmate's name, brushing the inmate's left eyelash and pinching the inmate's upper arm. In past lethal injection executions, the inmate was given one test, but on Thursday night there were two after Smith continued to move and cough after the first one.
And Smith's right hand moved shortly after the second test.
Dunn declined to provide details of the execution protocol the state uses. But the protocol has been approved after examination by the medical community, prison officials and the courts, he said.
Freeman said that "since the protocol is secret I can't make any guesses about whether it was followed."
But Freeman questioned how anyone could consider the execution going as planned. "It indicated that the protocol was not adequate," she said.
"The object of the protocol is to create a painless execution and that is not what we saw last night," Freeman said.
The ADOC says an autopsy will determine if there were any "irregularities" with the execution.
The federal public defender's office says an autopsy may show some things. "But no autopsy can measure the extent of Ron Smith's suffering as he died," according to the public defender's statement.
Escambia County Medical Examiner Dr. Dan Raulerson said Friday that the coroner's office transported the executed inmate's body for examination by one of the doctors at the state forensics laboratory in Mobile. "Basically what they look for is any sign of inappropriate trauma ... and that the prisoner died in a humane fashion," he said.
The forensics laboratory can run toxicology tests, Raulerson said. Once completed, the forensics lab sends him a report in about six weeks to three months on the autopsy, he said. That report will be filed in his office where it will become public record, he said.
Raulerson notes that he doesn't attend the executions. "I'm very much opposed to capital punishment. As a doctor it is my job to save lives," he said.
Smith's execution could find its way into the pending lawsuits other death row inmates have filed challenging midazolam and Alabama's three-drug lethal injection protocol, Freeman said.
Alabama changed its drug protocol a few years ago after drug manufacturers began declining to sell their drugs to it and other states for executions.
The drugs were changed, with midazolam being the first one administered.
Inmates in Alabama - including Smith - and around the country have filed lawsuits over the use of midazolam.
Robert Dunham, director of the Death Penalty Information Center, said that midazolam isn't meant to be an anesthesia that can block all pain. "One of midazolam's failures is that a person unconscious can be jolted back into consciousness by the execution drugs," he said.
Dunham said there are several examples of inmates struggling to breathe after midazolam has been administered. One of those was in 2014 in Ohio with the execution of Dennis McGuire, who gasped for air for about 25 minutes while the drugs hydromorphone and midazolam took effect. "Witnesses reported that after the drugs were injected, McGuire was struggling, with his stomach heaving and fist clenched, making 'horrible' snorting and choking sounds," according to the death penalty information website.
The U.S. Supreme Court in 2015 ruled in a case out of Oklahoma that involved midazolam that its use was constitutional in a multi-drug combination.
Dunham believes Smith's execution will serve as one more example for inmates seeking to have a court declare the use of midazolam in the state's lethal injection method will be ruled unconstitutional. "Midazolam should not be used in these type protocols," he said.
Raulerson, however, said he has used midazolam in procedures, such as colonoscopies. "And it works quite well ... It doesn't mean your patient won't move or could not react to pain. But I guarantee you when they wake up they have no memory at all," he said.
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