The next person executed by Tennessee will almost certainly suffer symptoms similar to drowning, if the state uses the lethal injection drugs it intends to purchase, attorneys for 33 death row inmates argued Monday in court.
An expert medical witness testified in Davidson County Chancery Court that autopsies of previously executed inmates showed evidence the inmates suffered symptoms also typically found in drowning, after injection of toxins into the body or after exposure to toxic gas.
The argument is key to this case: if death row inmates are essentially drowning during an execution, their attorneys say the state is conducting unconstitutional torture.
The outcome of this case may have immediate ramifications. Tennessee plans to execute Billy Ray Irick on Aug. 9. The 59-year-old Knox County man has been convicted of the 1985 rape and murder of a 7-year-old girl.
Central question: When does execution become torture?
Attorneys for the death row inmates used expert witness Dr. Mark Edgar to explain why they believe certain lethal injection drugs cause torture.
Edgar, a pathologist at Emory University, analyzed 27 autopsies of inmates executed around the country using a drug called midazolam. Tennessee plans to use a form of midazolam as the first of three drugs in its execution protocol.
The Tennessee Department of Correction argues midazolam renders an offender unconscious and unable to feel pain. The next two drugs stop the heart and the lungs, according to the department.
Later in this trial, the state plans to call a different medical expert who will testify the use of the proposed three-drug protocol does not amount to torture.
However, Edgar said his autopsy analysis repeatedly found evidence offenders were able to feel immense pain throughout their executions.
He based that conclusion on finding evidence in 23 of 27 autopsies reviewed of a condition called pulmonary edema.
In layman's terms, Edgar explained someone suffering from pulmonary edema shows signs of bubbles, froth or foam in the lungs or airways.
"I was struck by the abnormalities in the lung," Edgar said, referencing his takeaways from his analysis of the autopsies.
"In addition to that, the majority of them – over 85 percent of them – showed pulmonary edema."
These very small bubbles, foam or froth can cause immense pain and terror, Edgar said.
“It’s a medical emergency, and it’s a state of extreme discomfort," Edgar said, describing the pain and panic induced by the final stages of pulmonary edema.
'Death penalty abolitionists' blamed for blocking Tennessee executions
During a 15-minute cross-examination, attorneys with the Tennessee attorney general asked Edgar about a Georgia case where he also testified. In that case, he testified about an analysis of autopsies where the state used pentobarbital, a different drug.
In those cases, he also found evidence some of the inmates suffered from pulmonary edema.
To start the trial, the state argued death penalty abolitionists have prevented Tennessee from obtaining pentobarbital to use in its execution. Many states have been unable to obtain the drug because the manufacturer objects to its use in executions.
Attorneys for the death row offenders argue Tennessee did not do enough to obtain pentobarbital. Using pentobarbital would result in less of a chance of pain when an inmate is executed, the attorneys stated in their opening trial brief. They argue midazolam has a different impact on an offenders body, allowing for pain that pentobarbital largely prevents.
On Monday, an attorney for the death row offenders alluded to this argument after the attorney general's cross examination. She asked Edgar if an inmate put to death using pentobarbital or midazolam would feel pain from pulmonary edema, if the medication had not rendered the inmate unable to feel pain.
Edgar said yes.
Source: The Tennessean, Dave Boucher, July 16, 2018
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