One of four inmates executed in April 2017 with Arkansas' three-drug combination may have remained conscious long enough after the injection of the first drug, midazolam, to feel the painful effects of the second drug, which causes paralysis and suffocation, a forensic pathologist testified Tuesday.
Joseph I. Cohen, a California pathologist who has performed more than 7,000 autopsies in 25 years, testified on behalf of 18 Arkansas death-row inmates who are challenging the state's use of the sedative, saying it isn't always effective and thus its use violates their constitutional right to be free from unusual pain and suffering.
Cohen said that on April 30, 2017, two days after an initial autopsy by the state medical examiner's office, he performed a second autopsy on inmate Kenneth Williams, whom witnesses described as breathing hard and lurching forward during the execution, and came away believing "there's a problem with that drug. ... There is unpredictability in how it is affecting somebody."
Cohen said he believes, based on a fresh bruise he found inside Williams' scalp and several signs of petechial hemorrhages he found on the inside of Williams' upper and lower eyelids, that the inmate experienced asphyxia and hypoxia -- problems getting air that are commonly seen in victims of drownings and hangings -- before he died. Neither finding was cited in the state autopsy.
Asked by attorney Scott Braden of the federal public defender's office how Williams may have felt, Cohen said, "There would be a sensation of air hunger, fear, shortness of breath, respiratory distress, dizziness."
Asked if he thought Williams experienced pain, Cohen said, "I believe ... he did. "
Cohen said he didn't think the drug fully sedated Williams, as it was intended to do. Questions about the ability of a 500mg dose of the drug to effectively sedate inmates has led other states to stop using it in executions. While that dose is considered a very high dose, and it is rapidly injected with the intention of overwhelming the inmate's system, some in the medical community believe it has a "ceiling" of effectiveness that prevents it from completely sedating everyone to whom it is administered, no matter how high the dose.
"The second drug may have been infused when he was still in a conscious state," Cohen said, referring to Williams.
Later, Assistant Attorney General Jennifer Merritt asked if it's also possible that the second drug -- vecuronium bromide -- was administered when Williams was unable to feel pain. He replied: "OK, that's fair. ... [But] I have some concerns about it."
He agreed that the movements witnesses described could have been involuntary and occurred while Williams was in a state of unconsciousness or semiconsciousness.
Ultimately, he said, he didn't know for sure, but that the slightly varying descriptions provided earlier by three witnesses to Williams' execution only supported his opinion.
The third drug administered -- potassium chloride -- causes extreme burning and stops the heart.
Looking at a photograph of the gurney on which Williams lay as he was executed, Cohen noted that its leather straps seemed to have "wiggle room" that likely allowed Williams' head to bounce around and strike something, causing the bruise that isn't otherwise accounted for on a log of his activities leading up to the execution.
As for the straps that hold the body and the slightly padded wooden L-shaped boards designed to hold an inmate's head in place, Cohen said, "I just see this apparatus as being incompetent."
He said there doesn't seem to be much consistency in the equipment and methods used in executions across the country.
Whether Williams' movements were a response to pain or an involuntary response in the dying process, he said, "It shouldn't be a violent process, in my opinion. I don't think it's intended to be a violent process, but it is. There's something that's not right about it."
After listening to the testimony of the witnesses -- a news reporter and two out-of-state attorneys -- Cohen said he believes that "If he was not restrained, I think he would have bounced off the table."
The first witness was Kelly Kissel, a former Arkansas news editor for The Associated Press who said that since August 1994, he has witnessed 10 executions in Arkansas and Oklahoma, only two of which involved midazolam: the executions of both Marcel Williams and Kenneth Williams in April 2017 at the state Department of Correction's Varner Unit.
Kissel was unsuccessful in an effort to quash his subpoena, after U.S. District Judge Kristine Baker determined that attorneys for the inmates who subpoenaed him weren't seeking a confidential source or unpublished material, but information that Kissel had already published and talked about publicly. She agreed that as a neutral observer, his testimony was important to the plaintiffs, whose other witnesses are attorneys who admit they are opposed to the death penalty.
In the previous eight executions, Kissel said, the condemned men would occasionally breathe heavily but then "would just go to sleep."
He said that in Marcel Williams' case, "the labored breathing appeared to go on longer than any of the previous eight." He also testified that he saw an unidentified person, whose job appeared to be to conduct consciousness checks on Williams, examine him after the movements stopped and then mouth the words to somebody else, "I don't know."
Three nights later, Kissel saw the execution of Kenneth Williams from the same witness room -- located about six to eight feet away from the gurney where the condemned men lay with their right sides closest to the witnesses.
He described seeing Kenneth Williams, who had made a final statement, stop talking in mid-sentence after someone announced that the execution had begun. Witnesses weren't told when each of the three drugs were injected, making it hard for them to know which drug caused which reaction. But Kissel said Williams took a series of deep breaths and then, three to four minutes into the process, "his body lurched forward 15 times in quick succession," followed by five slower lurches.
Kissel described seeing Williams' head push "violently up against the leather restraint" before his breathing became shallower.
"I've never seen that in a non-midazolam execution," he testified.
Asked by Assistant Attorney General KaTina Guest whether Williams appeared to be in pain, Kissel said: "I'm a journalist, not a doctor. Whether he was in pain or not, I have no idea."
Two other witnesses to Kenneth Williams' execution, Eric Motylinski of the federal public defender's office in Philadelphia, and Cassandra Belter, an investigator for the office, testified that they became alarmed when they saw Williams' head move rapidly, watched his body rise up against the straps across his chest and heard him emit a sound that may have been choking or groaning.
The nonjury trial in Baker's courtroom resumes at 9 a.m. today and is expected to last two weeks.
Metro on 04/24/2019