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Tennessee execution: Billy Ray Irick tortured to death, expert says in new filing

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Editor's note: Reporter Dave Boucher was one of seven state-required media witnesses at Irick's execution. 
Billy Ray Irick felt searing pain akin to torture before he died in a Tennessee prison in August, but steps taken in carrying out his execution blocked signs of suffering, according to a doctor who reviewed information about the lethal injection.
In new court filings entered late Thursday amidst an ongoing legal challenge of Tennessee’s lethal injection protocol, Dr. David Lubarsky said statements from people who witnessed the execution indicated the controversial drug midazolam failed to ensure Irick could not feel pain during his death.
As a result, the death row inmate “experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride,” Lubarsky wrote in the filing.
The document also says the state did not follow its own lethal injection protocol, raising questio…

Court considers constitutionality of Ohio execution process

COLUMBUS, Ohio — A federal appeals Court plans to consider arguments over the constitutionality of Ohio's lethal injection process as the state tries to start carrying out executions once again.

At issue is whether a contested sedative, midazolam, is powerful enough to put inmates into a deep state of unconsciousness before two subsequent drugs paralyze them and stop their hearts.

A related issue is whether Ohio has a realistic chance of finding an alternative drug — a barbiturate called pentobarbital — that once was widely used in executions but has become difficult or, in Ohio's case, impossible to obtain.

The 6th U.S. Circuit Court of Appeals in Cincinnati had scheduled arguments for Tuesday, but reset them for March 7. The court's ruling, likely a few weeks afterward, will be closely watched not just in Ohio but in other states that use midazolam or might be looking to try it.

The case reached the court after Ohio appealed a federal judge's ruling that rejected the state's current three-drug method.

Executions have been on hold since January 2014 when inmate Dennis McGuire took 26 minutes to die under a never-before-tried two-drug method that began with midazolam. The same drug was involved in a problematic execution later that year in Arizona.

Ohio announced its three-drug method in October, and said it had enough for at least four executions, though records obtained by The Associated Press indicated the supply could cover dozens of procedures.

The prison system used 10 milligrams of midazolam on McGuire. The new system calls for 500 milligrams. The state said there's plenty of evidence proving the larger amount will keep inmates from feeling pain.

Ohio also said the U.S. Supreme Court upheld the use of midazolam in 2015 in a case out of Oklahoma.

"Ohio has the capability to perform constitutional executions now. It should be permitted to do so," Thomas Madden, an assistant attorney general, said in Ohio's appeal.

Attorneys for death row inmates said Magistrate Judge Michael Merz got it right in last month's ruling, when he said that the "three-drug midazolam protocol creates a substantial risk of serious harm."

Those attorneys also said the U.S. Supreme Court case involved evidence unique to Oklahoma. And they said Ohio has an alternative option: finding pentobarbital.

Ohio disagrees, and said that over time it asked seven states in vain for the drug. Of the seven, only Georgia, Missouri and Texas appear to have reliable sources of pentobarbital when needed. Those states won't reveal the source.

On Feb. 10, Republican Ohio Gov. John Kasich delayed eight executions to allow time for the appeals court arguments.

Ronald Phillips, who was scheduled to die Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993, is now set for execution May 10.

Source: Associated Press, Andrew Welsh-Huggins, February 21, 2017

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