A Virginia inmate set to be executed on Wednesday for murdering 2 young sisters during a 2006 killing spree has asked the Supreme Court for a stay, arguing that the 1st-ever use of compounded lethal drugs violates his constitutional rights.
Ricky Gray, 39, is scheduled to die by lethal injection on Wednesday evening at the Greensville Correctional Center if the U.S. high court turns down his bid for a stay.
Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the 3-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment.
The execution would mark the 1st time a U.S. state has used 2 of the drugs - midazolam and potassium chloride - provided by a compounding pharmacy, according to the court filing.
Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration.
Midazolam is an anesthetic and potassium chloride stops the heart. The 3rd drug in the so-called cocktail, rocuronium bromide, causes paralysis
Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.
Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret.
Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.
Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39.
His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.
Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia.
If carried out, the execution will be second in the United States this year. The United States has executed 1,453 people since the Supreme Court reinstated the death penalty in 1976, according to the Death Penalty Information Center.
Gray Execution: Last Stop, Supreme Court
A Virginia inmate scheduled to be put to death this week for the slayings of two young girls has asked the U.S. Supreme Court to halt his execution.
Ricky Gray filed an emergency appeal with the high court on Tuesday. Gray is scheduled to be executed Wednesday for the slayings of 9-year-old Stella Harvey and her 4-year-old sister Ruby. Gray was convicted of killing the girls and their parents at their home on New Year's Day 2006.
Gray is challenging the state's plans to use lethal injection drugs from a secret compounding pharmacy. A federal court in Richmond and the 4th U.S. Circuit Court of Appeals have rejected Gray's efforts to put his execution on hold so that he can bring his legal challenge.
Gray says the use of compounded midazolam will cause him a cruel and painful death.
Source: Associated Press, January 18, 2017
Emergency stay request from Ricky Gray before U.S. Supreme Court
The Virginia Attorney General's office is asking the U.S. Supreme Court to reject an 11th hour stay request from Ricky Javon Gray, set to die tonight for the 2006 slayings of 2 young Richmond sisters.
Gray's lawyers filed the request Tuesday alleging that 2 drugs made by a compounding pharmacy - not manufactured by a pharmaceutical company - that the Virginia Department of Corrections plans to use on Gray risk chemically torturing him in violation of his protection against cruel and unusual punishment.
But the attorney general's office complained in a brief filed with the high court that, "Despite the decade he has spent on death row, Gray waited until 35 days before his scheduled execution to challenge the compounded drugs Virginia procured for his execution."
The state argued that U.S. District Judge Henry Hudson held an evidentiary hearing and ruled that Gray was not entitled to a preliminary injunction stopping the execution so his drug concerns could be further litigated. Hudson's ruling was upheld without comment by the 4th U.S. Circuit Court of Appeals on Friday.
The wake of Ricky Javon Gray's murder rampage that claimed two Richmond families 11 years ago leads tonight to the death house at the Greensville Correctional Center.
"The timing of Gray's challenge left (Hudson) with 'little doubt that the real purpose behind his claim is to seek a delay of his execution, not merely to effect an alteration in the manner in which it is carried out,'" wrote the attorney general.
Gray's lawyers complained Wednesday that the attorney general's position makes it clear the state is "intent on 'running out the clock' on Mr. Gray, seeking to execute him before they are required to respond to his complaint challenging the method of execution that they seek to use to kill him."
"All that he seeks in this case is a stay to permit his constitutional claims to be fully and fairly litigated," argue Gray's lawyers.
The state's "accusation that Mr. Gray was late in bringing this constitutional challenge is stunning. It mischaracterizes the factual and procedural history of this case, and it wrongly suggests that this case is a last-minute act of desperation aimed at sparing his life," wrote Gray's lawyers.
They said Gray could not start his challenge of the drugs until the state revealed what it intended to use in October.
States that conduct lethal injections have been unable to obtain the necessary drugs from pharmaceutical manufactures which no longer make them available for executions. In response, Virginia law was changed allowing the state to obtain the required drugs from a compounding pharmacy and to keep the identity of the pharmacy confidential.
An expert testified for the state that compounding drugs was a safe and common practice and that the planned use of them in an execution should not cause a problem. Gray's experts testified compounded drugs represented a number of potential problems.
Virginia uses a 3-drug procedure, as do some other states. The 1st drug is intended to render the inmate unconscious, the 2nd to cause paralysis, and the drd stops the heart.
Chemicals authorized for use by the department of corrections' execution manual include midazolam, sodium thiopental or pentobarbital for use as the 1st drug; rocuronium bromide or pancuronium bromide as the 2nd; and potassium chloride as the final drug.
For Gray's execution the state plans to use midazolam and potassium chloride made by a licensed compounding pharmacy in Virginia and tested monthly to verify identity and potency.
The chemicals are injected into 1 of 2 intravenous lines - the 2nd line is a backup - with a saline flush following the injection of each chemical. 2 minutes after the 1st saline flush, the inmate is pinched or otherwise tested to make sure he or she is unconscious.
Critics contend that if the st drug fails to render the inmates unconscious, they could be awake but paralyzed by the 2nd drug and unable to signal they are suffering pain. Compounded midazolam has never been used in an execution before, say Gray's lawyers.
Carl Tobias, a professor at the university of Richmond School of law, said Tuesday that, "It seems unlikely that (the high court) will grant Gray's request for a stay for several reasons."
Tobias said, "The Justices might concomitantly take into account Judge Hudson's hearing and full decision denying Gray relief and the 4th Circuit's rapid, terse disposition of Gray's appeal from Hudson's ruling."
Gray, 39, was sentenced to die for the Jan. 1, 2006, slayings of Ruby Harvey, 4, and Stella Harvey, 9. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39, in their South Richmond home.
Less than a week later, Gray and accomplice Ray Dandridge, 39, killed Ashley Baskerville, 21; Baskerville's mother, Mary Tucker, 47; and stepfather, Percyell Tucker, 55, in their Richmond home. Ray Dandridge, his nephew and accomplice, was sentenced to life.
Virginia set to execute man with controversial drug
"Midazolam will produce relaxation and that relaxation may be sufficiently severe to produce sleep, but in studies we've conducted, it does not eliminate sensation to pain." - S. Stevens Negus, professor of pharmacology at Virginia Commonwealth University
If death row inmate Ricky Gray is executed in Virginia on Wednesday evening, he will be injected with a controversial drug obtained as part of a process shrouded in secrecy.
Virginia's Department of Corrections has never used midazolam, which has been involved in several prolonged and apparently painful executions in other states. Virginia procured the drug from a compounding pharmacy whose name is shielded from the public.
Attorneys for Gray, who murdered a well-loved Richmond couple and their young daughters in 2006, filed an emergency application for a stay of execution Tuesday with the U.S. Supreme Court, after Gov. Terry McAuliffe (D) declined to commute his sentence.
"It is the Governor's responsibility to ensure that the laws of the Commonwealth are properly carried out unless circumstances merit a stay or commutation of the sentence," said a statement from McAuliffe, who is opposed to the death penalty but has promised to uphold the state's capital punishment law. "After extensive review and deliberation, I have found no such circumstances."
McAuliffe's refusal came after the U.S. Court of Appeals for the 4th Circuit declined last week to halt the execution.
"Ricky's execution will serve no purpose other than retribution," Gray's attorneys, Jon Sheldon and Rob Lee, said in a statement after McAuliffe announced his decision. "We regret that he will no longer be able to try to make amends for his past wrongs."
The execution of Gray, 39, would be the 1st since October 2015 and the 1st to take place since the state passed a law to keep secret the identities of pharmacies that produce the lethal drugs, as a way to protect them from political pressure.
Gray has admitted that, with help from his nephew Ray Dandridge, he beat his wife to death with a lead pipe and dumped her body on a hill in Washington, Pa. in October 2005. 3 months later, on New Year's Eve, they attacked Ryan Carey as he walked from his car to his parents' home in Arlington, stabbing him multiple times, according to Gray's confession. Carey ran into the home and survived, but he permanently lost the use of his right arm.
The next day, as the Harvey family in Richmond prepared for its New Year's Day party, Gray and Dandridge entered their home through an unlocked door. They brought Kathryn, Bryan, 9-year-old Stella and 4-year-old Ruby to the basement, tied them up and taped their mouths closed. After ransacking the house, Gray cut every family member's throat. He bludgeoned them with claw hammers. Then he poured 2 bottles of wine over an easel and lit a match, setting the basement on fire. The men left with some electronics, a wedding ring and a plate of homemade cookies.
The scene was so awful that when homicide detectives arrived, they cried.
Gray and Dandridge say 21-year-old Ashley Baskerville helped them target the Harveys and hide after the murders. A week later, they planned to attack Baskerville's mother and stepfather. They were bound, stabbed, then gagged and suffocated in their home. So was Baskerville, who Gray reportedly complained was nagging him for money.
Advocates against the death penalty argue that Gray's crimes are irrelevant to the concerns regarding midazolam, a drug normally prescribed for anxiety and minor surgery.
"One of the hallmarks of constitutional safeguards is that they exist to protect everybody," said Robert Dunham, executive director of the Death Penalty Information Center. "One does not get to torture somebody because you don't like what they've been convicted of doing."
In 5 out of 19 executions in which midazolam has been used since its introduction in 2014, according to statistics compiled by the Death Penalty Information Center, the condemned person has shown signs of pain or difficulty breathing and has taken longer to die than expected.
Although use of the drug in executions was narrowly upheld by the Supreme Court, the pharmacologist who testified in favor of its use relied heavily on the consumer website drugs.com. Arizona has pledged to stop using midazolam.
Because of the way the drug affects the brain, experts say, there's a limit on how effective even a massive dose can be.
"It's used to decrease anxiety - it's not used by itself to produce anesthesia," said S. Stevens Negus, a professor of pharmacology at Virginia Commonwealth University and 1 of 16 pharmacologists who told the Supreme Court that midazolam was not being used appropriately in executions. "It will produce relaxation and that relaxation may be sufficiently severe to produce sleep, but in studies we've conducted, it does not eliminate sensation to pain."
In Virginia, midazolam will be used as the first drug in a three-drug protocol, along with rocuronium bromide to cause paralysis and potassium chloride to stop the heart. The 1st and 3rd drugs were produced by a compounding pharmacy; under a 2016 state law, the name and other particulars are kept secret.
A spokesman for the Virginia Department of Corrections said a similar protocol has "been used successfully ... many times in states like Florida."
Gray's lawyers also say his traumatic upbringing and drug use was not fully explained or appreciated when he was sentenced to death. In a video released last week, family members say that as a child, Gray was beaten by his father almost daily with cords, pipes, and a leather belt labeled with Ricky's name. He was violently raped by an older brother almost as often. Gray began using PCP as a small child and was high on the drug during his killing spree.
"Remorse is not a deep enough word for how I feel," Gray says in the video. "I robbed them of a lifelong supply of joy. I've stolen Christmas, birthdays, and Easters, Thanksgivings, graduations, and weddings, children. ... I'm sorry they had to be a victim of my despair."
2 of Gray's nieces say in the video that since going to prison, Gray has become a father figure, encouraging them to do well in school and stay out of trouble.
"If he was executed ... I would just lose all my motivation, I just wouldn't even have a purpose anymore," one niece says.
Last week, lawyers for Gray presented the evidence of abuse to Judge Henry Hudson, who ruled that Gray failed to prove that use of midazolam, compounded or otherwise, is unconstitutional. Moreover, he said that Virginia offers all prisoners a constitutional alternative: the electric chair.
Source: Washington Post, January 18, 2017
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