Application — Billy Ray Irick, Applicant v. Tennessee

IN THE

SUPREME COURT OF THE UNITED STATES

No. 18-_______

_________________________________

IN RE:

BILLY RAY IRICK,

Movant,

_________________________________

APPLICATION FOR STAY OF EXECUTION

THIS IS A CAPITAL CASE

EXECUTION SET FOR AUGUST 9, 2018 AT 7 PM

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax: (615) 736-5265

*Counsel of Record

CARL GENE SHILES, JR.

SPEARS, MOORE, REBMAN & WIILLIAMS

P.O. Box 1749

Chattanooga, TN 37401

Phone: (423) 756-7000

Fax: (423) 756-4801

August 7, 2018

To the Honorable Elena Kagan, Associate Justice of the United States and

Circuit Justice for the Sixth Circuit:

Movant, Billy Ray Irick respectfully moves for an order staying his execution

which is set for August 9, 2018, 7 p.m. CDT, in the above-entitled proceeding,

pending the adjudication of the appeal in the underlying state court action

challenging Tennessee’s new lethal injection protocol.

Pursuant to Supreme Court Rules 23.1, 23.2, and 28 U.S.C. § 1651(a), the

stay may lawfully be granted.

The All Writs Act gives your Honor and this Court the power to issue a stay

to maintain its jurisdiction of the underlying matter. “The Supreme Court and all

courts established by Act of Congress may issue all writs necessary or appropriate

in aid of their respective jurisdictions and agreeable to the usages and principles of

law.” Here, a stay is necessary because the lower court will be deciding novel

constitutional questions that involve interpretation of this Court’s decision in

Glossip v. Gross, 135 S.Ct. 2726 (2015) and overlap with issues raised in Bucklew v.

Precythe, No. 17-8151.

In Barefoot v. Estelle, 463 U.S. 880 (1983), superseded on other grounds by

28 U.S.C. § 2253(c), this Court held that a stay may be granted when there is “a

reasonable probability that four members of the Court would consider the

underlying issue sufficiently meritorious for the grant of certiorari or the notation of

probable jurisdiction; ... a significant possibility of reversal of the lower court’s

decision; and ... a likelihood that irreparable harm will result if that decision is not

stayed.” Barefoot, 463 U.S. at 895. Further, a stay should be granted when

necessary to “give non-frivolous claims of constitutional error the careful attention

that they deserve” and when a court cannot “resolve the merits [of a claim] before

the scheduled date of execution to permit due consideration of the merits.” Id. at

888–89.

The appeal below raises the following important constitutional questions:

o The plurality in Baze v. Rees, 553 U.S. 35 (2008), held: “It is

uncontested that, failing a proper dose of sodium thiopental that would

render the prisoner unconscious, there is a substantial,

constitutionally unacceptable risk of suffocation from the

administration of pancuronium bromide and pain from the injection of

potassium chloride." Id. at 53 (emphasis added). At trial, the Plaintiffs

presented proof from four preeminent experts and a dozen eyewitnesses to Midazolam executions, who collectively established that

Midazolam cannot and does not render inmates insensate, so that they

will experience suffocation from the paralytic (described as being

buried alive) and excruciating pain from the potassium chloride

(described as being burned from the inside). Based on this proof, the

trial court concluded that “Midazolam does not elicit strong analgesic

effects and the inmate being executed may be able to feel pain from the

administration of the second and third drugs.” Attachment C, July 26,

2018 Order, p.23, Abdur’Rahman, et al. v. Parker, et al., No. 18-183-III

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(Davidson County Chancery Court). 1 Pursuant to Baze, did plaintiffs

demonstrate a constitutionally unacceptable risk, so that the threedrug Midazolam protocol is unconstitutional under the 8th

Amendment?

o Did the proof presented by plaintiffs establish that the three-drug

protocol amounts to constitutionally unacceptable torture, as it will

first cause pulmonary edema from the injection of 500 mg of pH 3.0

acid, leading inmates to drown in their own bodily fluids, secondly it

will cause suffocation from vecuronium bromide, which paralyzes the

inmate’s face, body and lungs, and finally it will inflict excruciating

pain from the injection of 100 times the necessary dose of potassium

chloride?

o Was Plaintiffs’ proof elicited on cross-examination of State officials

that drug suppliers could have provided pentobarbital to Tennessee in

when the state was seeking drugs in 2017 sufficient to satisfy Glossip’s

requirement that a feasible and readily available alternative be

shown?” This question is related to Questions Presented in Bucklew v.

Precythe, No. 17-8151.

o What should an inmate’s burden of proof be to show a feasible and

readily available alternative when the state bypassed the opportunity

The trial proof shows that the drug supplier warned in an email dated September 7, 2017, “Here is

my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The

subjects may be able to feel pain from the administration of the second and third drugs.” Exhibit 114.

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to purchase alternative drugs due to negligence, bureaucratic

ineptitude and/or an desire to secure the lowest possible price? This

question is related to Questions Presented in Bucklew, No. 17-8151.

o Must an inmate provide the drugs for his own execution?

o Does the state waive Glossip’s feasible and readily available

alternative requirement when it relies on State secrecy laws to

affirmatively prevent inmates from learning the identity of some 80

drug suppliers who—according to redacted and protected State

records--expressed willingness to sell the alternative drug,

pentobarbital, including the identity of 10 suppliers who claimed to

have supplies of pentobarbital on hand? Does the State similarly

waive Glossip’s alternative requirement, when it chooses to delegate

the procurement of lethal injection drugs to a person who is outside of

the power of plaintiffs to interview, depose or subpoena, again due to

State secrecy laws?

o The plurality in Baze v. Rees, 553 U.S. 35 (2008), held: “It is

uncontested that, failing a proper dose of sodium thiopental that would

render the prisoner unconscious, there is a substantial,

constitutionally unacceptable risk of suffocation from the

administration of pancuronium bromide and pain from the injection of

potassium chloride." Id. at 53 (emphasis added). Here, the Plaintiffs

established the Midazolam does not work like sodium thiopental and

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that the inmates will experience suffocation from the paralytic and

excruciating pain from the potassium. Given those facts, is an inmate

required to meet the second prong of Glossip?

o Can a state court use a procedural technicality to exclude from

consideration an alternative that the evidence supports and which

meets the second prong of Glossip?

o Is Glossip binding on the state court where the factual underpinnings

of that opinion have now been fully repudiated by the expert upon

which this Court relied? That is, in this case, the primary expert from

Glossip, Dr. Roswell Lee Evans, conceded that (a) plaintiffs’ four

experts’ correctly explained the science, and (b) Midazolam does not

and cannot render a human being insensate to pain or bring them to a

plane of general anesthesia.

Mr. Irick sought a stay of execution from the Tennessee Supreme Court

which is the only state court empowered to issue a stay of execution under

Tennessee law. The Tennessee Supreme Court denied his motion on August 6, 2018.

Appendix A, Order, State v. Irick, No. M1987-00131-SC-DPE-DD (Tenn. 2018).

Justice Sharon Lee issued a strong dissent. Appendix B. In her dissent, Justice Lee

wrote:

If an appellate court determines that the State's lethal injection

protocol, adopted on July 5, 2018, is unconstitutional, the harm to Mr.

Trick is irreparable. Yet a brief delay in the execution until after

appellate review is concluded causes only minimal, if any, harm to the

State. By denying Mr. Irick's motion to vacate his August 9 execution,

the Court deprives Mr. Irick of his right to appellate review of his

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challenge to the State's lethal injection protocol. I will not join in the

rush to execute Mr. Irick and would instead grant him a stay to

prevent ending his life before his appeal can be adjudicated.

Appendix B, p. 1.

I.

Procedural Background

Mr. Irick is a plaintiff in the case of Abdur’Rahman v. Parker, No. 13-183-III

(Davidson County Chancery Court, filed February 20, 2018), a declaratory judgment

action challenging the constitutionality of Tennessee’s January 8, 2018 lethal

injection protocol. That protocol provided the option of using pentobarbital as

Option A or, alternatively, a three-drug Midazolam/vecuronium bromide/potassium

protocol as Option B. The claims that proceeded to trial alleged that the

Midazolam-based protocol provided as Option B constitutes cruel and unusual

punishment; that the protocol violated Plaintiffs’ procedural due process rights, as

it requires no notice to Plaintiffs of which method the State would use to execute

them or standards by which that decision would be made; that the protocol violates

their substantive due process rights, as the State’s decision to use Midazolam in its

three-drug protocol despite its knowledge of its ineffectiveness shocks the conscience

and constitutes deliberate indifference; and that the protocol violates their rights to

counsel and access to the courts, as it does not provide their counsel with access to a

telephone to reach the courts during the execution.

On July 2, 2018, Plaintiffs filed a Second Amended Complaint alleging that

Option B constitutes cruel and unusual punishment as the three-drug protocol will

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cause unnecessary and severe pain and suffering. 2 Plaintiffs also alleged that

Option A, the one-drug pentobarbital protocol, constituted a feasible and readily

available alternative to the three-drug protocol.

On July 5, 2018, Defendants adopted a new lethal injection protocol,

removing Option A (Plaintiffs’ pled alternative), designating former Option B, the

three-drug Midazolam protocol, as the sole method of lethal injection in Tennessee,

and making other substantial changes. On that same day, July 5, 2018, Plaintiffs

filed their trial brief. In that brief, Plaintiffs asserted that, notwithstanding

Defendants’ recent refusal to procure pentobarbital for use in Option A, the onedrug pentobarbital protocol remained a feasible and readily available alternative to

Tennessee’s three-drug Midazolam protocol. Plaintiffs also added that a viable

alternative method of execution for purposes of the second prong of Glossip would be

the removal of the second drug, vecuronium bromide. The removal of that paralytic

drug is clearly available and readily implemented, and it would substantially

reduce pain and suffering by (1) hastening Plaintiffs’ deaths and (2) sparing

Plaintiffs the horrifying experience of suffocation brought on by vecuronium

bromide. Plaintiffs had earlier pled that the use of vecuronium bromide as part of

Tennessee’s three-drug protocol was unnecessary and that its inclusion created

additional severe pain and terror.

The second amended complaint added allegations regarding the use of compounded Midazolam and

potassium chloride.

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On July 7, 2018, Defendants answered Plaintiffs’ Second Amended

Complaint, denying for the first time that the one–drug pentobarbital protocol

constituted a feasible and readily available alternative to their three-drug protocol. 3

Trial began on July 9, 2018. The Chancery Court heard from 23 witnesses

over the course of 10 trial days. 4 More than 139 exhibits were introduced into the

record. Plaintiffs presented extensive testimony from four witnesses who were

recognized by the trial court as “well-qualified and imminent experts” (conversely,

the trial court noted that the Defendants’ two experts “did not have the research

knowledge and imminent publications that Plaintiffs’ experts did.”). Attachment C,

Chancery Court Order, p. 21.

Plaintiffs first presented the testimony of Dr. Craig Stevens a

neuropharmacologist who has published extensively, including co-authoring a

leading textbook in his field, Pharmacology. 5 Dr. Stevens provided an overview of

neuropharmacology and explained how various anesthetic and sedative drugs affect

Theretofore, on April 11, 2018, counsel for Defendants stated in open court and upon the record

that his clients would not declare whether the one-drug protocol was available and/or would be

available for Mr. Irick’s execution. Defendants persisted in their refusal notwithstanding the trial

court’s express warning that Plaintiffs could not determine whether to plead another alternative

without such information and that Defendants’ refusal would create the need for extensive discovery.

On May 5, 2018, in their answer to Plaintiffs’ First Amended Complaint, Defendants continued in

their refusal, stating that they were without sufficient knowledge to admit or deny whether Option A

constituted a feasible and readily available alternative. It was not until the June 20, 2018 deposition

of Department of Correction Commissioner Tony Parker that Defendants stated in this proceeding

that they had not been able to obtain pentobarbital. Commissioner Parker, even then, stated

Defendants were continuing to search for pentobarbital and that the one-drug protocol would be used

if it were found. See generally Attachment D, April 11, 2018 Transcript Excerpt; Attachment E, May

2, 2018 Transcript Excerpt; Attachment F, May 21, 2018 Transcript Excerpt.

4

For a detailed discussion of the proof presented at trial see, Segura, L.,“Our Most Cruel Experiment

Yet,” August 5, 2018, available at: https://theintercept.com/2018/08/05/death-penalty-lethal-injectiontrial-tennessee/ (last checked August 6, 2018).

5

Brenner, G.M. and Stevens, C.W., Pharmacology, 4th edition. Pharmacology textbook for medical

and health professional students, Saunders/Elsevier, Philadelphia/London, 2013.

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the inhibitory and excitatory centers in the human brain. He then explored the

limitations of Midazolam (vis-a-vis barbiturates and anesthetic gases) in the lethal

injection context. Dr. Stevens explained that Midazolam’s single, limited

mechanism of action (unlike the three mechanisms of barbiturates, or the five of

halogenated anesthetic gases) prevents it from ever bringing a human to a state

where they are insensate to pain. Because of its inherent limitations, persons

administered Midazolam may be initially sedated, and can even pass a

consciousness check. But once noxious stimuli is applied, those persons will be

roused from their sedated state and will be aware and will feel pain. Dr. Stevens

further explained that the excitatory neurotransmitters in the body will overwhelm

the limited sedative effects of Midazolam. As he explained in his overview, sedation

is created through the interplay of both excitatory and inhibitory

neurotransmitters—Midazolam only works, to a very limited degree, on the

inhibitory side of the equation. Dr. Stevens explained why Midazolam’s efficacy is

not increased with greater dosage: its limited mechanism of action limits what it

can do. This “ceiling effect” is not unique to Midazolam, rather it is a common

pharmacological property possessed by aspirin (regardless of dose, it cannot numb

the pain of an amputation) and myriad other common pharmaceuticals.

Dr. David Greenblatt is an M.D. and clinical pharmacologist. He is the

leading expert in the country on benzodiazepines. He was part of the team that

conducted the seminal research on the efficacy of Midazolam. His publications in

the area are authoritative—and were cited by Defendants’ pharmacy expert, Dr.

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Roswell Evans, as underlying his conclusions. Dr. Greenblatt echoed Dr. Stevens

testimony regarding the limitations of Midazolam. Not only does Midazolam not

protect the inmates from feeling pain, it is incapable of keeping them in a state of

unawareness. Dr. Greenblatt testified that the inmates will be aroused from

sedation by the noxious stimuli of pulmonary edema, the paralytics’ suffocating

effects and the burning of potassium chloride. Dr. Greenblatt testified that

Midazolam is so acidic, with a pH of 3.0, that the 500 mg administered under the

protocol will destroy the lining of the lungs, causing the inmate to experience

pulmonary edema. Dr. Greenblatt’s testimony on this point is corroborated by Dr.

Mark Edgar. Dr. Edgar reviewed all available autopsies of inmates executed with

Midazolam and found that 85% were recorded to have suffered pulmonary edema. 6

The pulmonary edema will cause the inmate’s lungs to fill with bodily fluids, and

they will begin drowning.

Dr. Greenblatt explained that as the inmates experience the feeling of

drowning from pulmonary edema, the paralytic will take effect, and then that

noxious stimuli will be followed by the burning of potassium chloride. Dr.

Greenblatt testified that Midazolam is incapable of protecting the inmate from any

of these three noxious stimuli—regardless of the dose delivered.

Dr. Greenblatt relied on scientific data to explain that Midazolam as used in

the lethal injection protocol will not render the inmates in a deep coma-like state.

It is impossible to know how many of the remaining 15% had pulmonary edema that was not

observed, due to a cursory autopsy, not diagnosed due to inattention, or if diagnosed was not deemed

worthy of being recorded.

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His credible testimony eviscerates the underpinning of this Court’s decision in

Glossip.

Dr. David Lubarsky, co-author of the chapter in Miller’s Anesthesia on the

Use of Intravenous Anesthetics, explained the limitations of Midazolam from a real

world perspective. Dr. Lubarsky is an internationally renowned expert on pain

management.

Dr. Lubarsky testified that the physical movements that have been observed

by lay witnesses to midazolam executions in every jurisdiction to use midazolam are

indicative that the inmates were aware and sensate during their executions.

Dr. Lubarsky testified that under the Midazolam protocol, inmates will not

be in a state of general anesthesia and will feel as if they are “locked in a box and

someone has covered [their] mouth and [their] lungs and [their] brain are

screaming.” Dr. Lubarsky further testified that the feeling of the potassium chloride

will be as if every nerve in the body has been “set on fire.” The pain and terror will

be excruciating.

Regarding alternatives, Plaintiffs elicited testimony during the trial that a 2drug alternative is feasible, available, and substantially reduces the risk of pain and

suffering. Defendant, TDOC Commissioner Tony Parker, admitted that his

department could conduct an execution with Midazolam and potassium chloride,

and that vecuronium was not needed. Drs. Stevens, Greenblatt and Lubarsky all

testified that vecuronium did nothing to protect the inmate or to hasten the

inmate’s death—rather, it simply added greater noxious stimuli (suffocation and

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paralysis), while delaying the inmate’s ultimate demise (which would be effected by

the potassium chloride). Neither of Defendants’ experts, Dr. Evans or Dr. Feng Li,

disputed these contentions.

At the close of the evidence, Plaintiffs made an oral motion pursuant to Rule

15.02 asking the court to allow the amendment of the pleadings to conform to the

evidence based on Plaintiffs’ evidence that the State had a feasible, readily

available alternative which would substantially reduce the risk of pain to Mr. Irick

and other Plaintiffs, i.e., a two-drug protocol. As established by the evidence,

elimination of the paralytic (which is not necessary to kill the inmate) eliminates

the chemical veil and speeds up the execution by at least four minutes. The trial

court denied Plaintiffs’ motion. 7

On July 26, 2018, the Chancery Court issued its order, denying relief.

Attachment C, Order. In large part, this Order explored a novel legal question: if

death occurs, on average in 13 minutes, is it torture? The Chancellor answered this

question in the negative: “if the law were to be expanded to provide for a torture

exception to the Glossip requirement for inmates to prove a known and available

alternative method of execution, the Tennessee three-drug lethal injection protocol

would not come within the exception.” Id. at p. 28. Nonetheless, the Chancellor did

7 The Chancellor

had previously denied a motion to amend the complaint to add an as-applied claim

challenging the State’s new plan to compound some or all of the lethal injection chemicals needed for

Option B, which presents many additional dangers, which are even further exacerbated by the

State’s decision to use a compounding pharmacy and pharmacist who are unlicensed in this state,

have a history of disciplinary infractions in their home state, and who only received approval to

compound in their home state on June 26, 2018. The state court Plaintiffs will also appeal this ruling

which again, implicates Bucklew where plaintiffs seek to raise an as applied challenge to the use of

an unregulated compounding pharmacy with a history of disciplinary infractions and questionable

licensing status.

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find that Defendant’s “experts established that Midazolam does not elicit strong

analgesic effects and the inmate being executed may be able to feel pain from

the administration of the second and third drugs.” Id. at p. 21.

On August 6, 2018, the Tennessee Supreme Court denied Mr. Irick a

stay of execution. Attachment A. The Honorable Sharon Lee dissented for a

variety of reasons, not limited to her observation that the states of Texas and

Georgia were successfully carrying out executions with pentobarbital in 2018:

“Surely, our [Department of Corrections] should be as resourceful and able as

correction officials in Texas in Georgia in obtaining pentobarbital.”

Attachment B, p. 6.

Absent a stay from this Court, Mr. Irick will be denied his right to appeal and

will be executed under a protocol using compounded Midazolam and compounded

potassium chloride. Only one other state (Virginia) has used this protocol.

The appeal in this case will present numerous and nuanced claims of legal

and constitutional error – including the Chancellor’s refusal to permit Plaintiffs to

allege that the Tennessee Department of Corrections (“TDOC”) has a feasible

readily available alternative which substantially reduces the risk of pain and

suffering: a two-drug protocol utilizing Midazolam and potassium chloride and

eliminating the paralytic. All of the expert witnesses testified that the paralytic is

unnecessary and increases the risk of pain and suffering by causing and prolonging

suffocation. This evidence is uncontroverted.

II.

Plaintiffs proved a feasible and readily implemented alternative.

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The proof in the technical record and in the transcripts will show that the

Plaintiffs in the Abdur’Rahman case pled and proved two feasible and readily

available alternatives, as required by Glossip v. Gross, 135 S. Ct. 2726 (2015).

A.

Other courts have recognized that a two-drug protocol meets the

Glossip alternative requirement

In First Amendment Coalition of Arizona, Inc. v. Ryan, 188 F. Supp. 3d 940

(D. Ariz. 2016), the district court considered the constitutionality of a three-drug

protocol similar to Tennessee’s Midazolam-based protocol. The Arizona protocol

used (1) 500 mg of Midazolam, (2) 100 mg of vecuronium bromide, rocuronium

bromide, or pancuronium bromide, and (3) 240 mEq of potassium chloride. Id. At

949. The district court held that the inmates’ proposed alternative to

“remov[e] the paralytic from the protocol, which will ‘eliminat[e] the substantial

likelihood of awareness of suffocation-through-paralysis’” satisfied Glossip. Id. The

Court further observed:

The inmates counter that the holdings in Glossip and Baze are not

dispositive. They note that Glossip did not consider a challenge to the

paralytic, while Baze considered the paralytic in the context of a

different sedative—sodium thiopental, a barbiturate, which the

petitioners conceded would “eliminate any meaningful risk” of pain

from injection of the subsequent drugs. Baze, 553 U.S. at 49, 128 S. Ct.

1520. Noting the posture in which the case reached the Supreme

Court, the inmates also contend that Glossip “did not enshrine one

court’s findings after an emergency injunction hearing as scientific fact

beyond challenge, let alone endorse Midazolam’s constitutionality in

all cases.” (Doc. 102 at 3–4.)

The inmates' arguments are well taken. Neither Baze nor Glossip is

dispositive of their Eighth Amendment claims. The inmates challenge

Protocol C, alleging that Midazolam is not reliable as a sedative, which

means the paralytic will mask the inmate’s pain. In Baze, by contrast,

there was no dispute that the first drug, sodium thiopental, would

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render the inmate insensate to pain caused by the paralytic and the

potassium chloride. 553 U.S. at 49, 128 S.Ct. 1520.

Glossip does not foreclose relief. Glossip held only that the district

court did not clearly err in denying a preliminary injunction based on

the evidence before it. Here, the inmates indicate they will present

substantial new evidence challenging Midazolam’s efficacy as a

sedative. (Doc. 102 at 4.) Glossip underscores that this is a fact-based

inquiry, and the inmates are entitled to present evidence in support of

the allegations. See Glossip, 135 S. Ct. at 2740 (explaining that “an

inmate challenging a protocol bears the burden to show, based on

evidence presented to the court, that there is a substantial risk of

severe pain”) (emphasis added).

The inmates have stated an Eighth Amendment claim that is plausible

on its face. Assuming the alleged material facts as true and construing

them in the light most favorable to the inmates, Claim 1 adequately

alleges that Protocol C, by calling for a paralytic after an ineffective

sedative, is very likely to cause serious illness and needless suffering.

Baze, 553 U.S. at 50, 128 S. Ct. 1520. The inmates have also

adequately alleged that removing the paralytic from the three-drug

protocol is a feasible, readily implemented alternative that would

significantly reduce a substantial risk of severe pain. Id. at 52, 128 S.C

t. 1520. They also allege that alternatives to Midazolam, such as

pentobarbital, are readily available. (Doc. 102 at 4 n.4.)

Id. at 950–51. Under this analysis, Mr. Irick met the second prong of Glossip

through the pleadings and the proof. The Chancellor’s denial of Mr. Irick’s Rule

15.02 motion to amend was constitutional error. 8

B.

The proof in the record establishes that a two-drug protocol

eliminating the paralytic is feasible, readily available, and

substantially reduces the risk of severe pain presented by the

three-drug Midazolam protocol.

The proof in the record also shows that after the district court entered the order in the First

Amendment Coalition case, the State of Arizona agreed to never again use a paralytic or Midazolam

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in their lethal injection executions. After these two agreements, the case was settled and dismissed.

Exhibits 30-33.

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A two-drug protocol is easy to implement. The State has access to the drugs.

There is no difference in the administration of the chemicals, except that there are

three fewer syringes to push. Pushing fewer syringes means that the length of the

execution will be cut by one-third, which the evidence shows roughly equates to four

minutes. That reduction in time is significant when one considers that the time

spent prior to the administration of the potassium chloride is spent with the inmate

feeling as if he is “buried alive,” “suffocating,” as well as “drowning” from

pulmonary edema.

Furthermore, the uncontroverted evidence is that vecuronium is not used to

hasten death. Instead, vecuronium is intended, and does in fact, act as a chemical

veil making it appear as if death is brought about peacefully while hiding the

violence occurring inside the inmate who cannot scream out in pain because his

vocal chords are paralyzed. The Defendants’ protestations that vecuronium ensures

a “dignified” procedure is truly Kafkaesque - “sanitizing” the final images of death

for the public while the inmate suffers an agonizing death muted by paralysis.

C.

Plaintiffs gave adequate notice of intent to amend.

As early as April 11, 2018, Plaintiffs gave notice that they would amend their

complaint to add additional alternatives depending on the outcome of discovery. See

Attachment D, April 11, 2018 Transcript, pp. 5, 19-32; Attachment E, May 2, 2018

Transcript pp. 5, 81-82; Attachment F, May 21, 2018 transcript, 15-24, 44-45.

Because of the extraordinary speed with which the case was brought to trial,

discovery did not end until the week before the trial. Further, Defendants did not

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abandon pentobarbital as an alternative in the protocol until July 5 – 4 days before

trial. On that same day, Plaintiffs gave notice of their intent to elicit evidence and

proof regarding the two-drug protocol. Attachment G, Excerpt of Plaintiffs’ Trial

Brief. Under these circumstances, where Mr. Irick plainly met the second prong of

Glossip, a stay is warranted to preserve this Court’s jurisdiction to decide whether a

state can hide behind a procedural technicality to execute an inmate in violation of

the Eighth Amendment.

D.

The proof in the record establishes that pentobarbital is available to

Defendants.

The trial court relied in large part, directly or indirectly, upon the testimony

of Commissioner Parker and Ms. Inglis on whether pentobarbital was available to

the State. Neither witness has personal knowledge of this fact. Plaintiffs were

prohibited from deposing the only two people with direct knowledge of Defendants’

access to pentobarbital - the staffer to whom the job of finding the drugs was

delegated (the “Drug Procurer”) and the for-profit pharmacist to whom the staffer

abdicated his responsibility. The testimony of Commissioner Parker and Ms. Inglis

was, in fact self-serving, inadmissible hearsay. Nevertheless, their testimony was

contradicted by the Drug Procurer, whose notes and PowerPoint indicate that of the

pharmacies the Drug Procurer contacted, 80% were willing to sell the TDOC

pentobarbital. Ex. 105. 9 Further, the notes indicate that the TDOC was quoted a

price of $27,500 per pentobarbital execution. The trial record further demonstrates

This proof completely undoes the narrative that anti-death penalty advocates are preventing states

from obtaining lethal injection drugs.

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that Texas and Georgia continue to obtain supplies of pentobarbital. See

Attachment B, p. 6. This is compelling proof that the drug is available to

Defendants.

Finally, Mr. Irick submits that it is fundamentally unfair and a denial of his

constitutional rights for Defendants to hide behind a secrecy statute, T.C.A. § 10-7504(h), and produce nothing but hearsay in an attempt to insulate a purely

administrative decision to not seek pentobarbital but instead to substitute

Midazolam for matters of cost, convenience, and/or continued secrecy.

E.

Tennessee’s conduct regarding the two-drug alternative.

The State does not deny that a two-drug alternative is feasible and readily

available. Further, it does not dispute that a two-drug protocol will substantially

reduce the risk of pain and suffering to Mr. Irick. For purposes of this motion, the

Court should consider those facts admitted.

The record will show that Plaintiffs introduced the alternative of removing

vecuronium bromide from the protocol in their original complaint and continued to

stress the use of the dangerous paralytic as unnecessary and increasing pain and

suffering throughout the litigation. The record will also show that the issues of the

function and effect of the vecuronium bromide in the protocol, as well as removing

the vecuronium bromide from the protocol were thoroughly tried and vigorously

tested. The experts were questioned about this protocol. i They testified that the

vecuronium bromide was not necessary to bring about the death of the inmate and

caused significant additional terror because of the inmate’s experiencing the

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sensation of being unable to breathe. Both Dr. Stevens and Dr. Greeblatt were

expressly asked whether removal of vecuronium bromide would reduce the risk of

pain and suffering and both replied that it would. The expert testimony established

that a protocol without the paralytic would significantly reduce the substantial risk

of severe pain. The State had the opportunity to challenge this testimony but did

not. The Commissioner also testified that the State could carry out a two-drug

protocol. Plaintiffs introduced the First Amendment Coalition of Arizona v. Ryan,

188 F. Supp. 3d 940 (D. Ariz. 2016) case as an exhibit and introduced proof that

Arizona agreed to eliminate the paralytic from its protocol. Plaintiffs presented

expert testimony that the law prohibits the use of a paralytic in animal euthanasia.

The State continued to suggest that it could obtain pentobarbital up until

1:00 PM on July 5 (4 days before trial). On that same day, Plaintiffs affirmatively

represented in their trial brief that a two-drug protocol would be offered as a

Glossip alternative at trial. 10 Under these circumstances, the appeal will show that

the Chancellor abused her discretion in refusing to consider the two-drug

alternative in her Glossip analysis.

F.

The pentobarbital alternative.

The January 8, 2018 protocol contained two options, single drug

pentobarbital and the three drug protocol. The State did not affirmatively allege

that it was unable to obtain pentobarbital until July 5, 2018. The proof in the trial

court raises serious issues as to whether the State simply chose not to purchase

10

See Attachment G, Excerpt of Plaintiffs’ Trial Brief.

19

pentobarbital because of price or lack of reasonable effort. Just because the State

does not possess pentobarbital, does not mean that they cannot obtain it. Texas and

Georgia continue to use pentobarbital with no apparent problems in the supply

chain, as Tennessee Supreme Court Justice Sharon Lee noted in her dissent

The appeal in this case also will raise serious questions of first impression

regarding exactly what the burden of proof is in a case where the State could obtain

drugs for a pentobarbital protocol but bypassed the option due to hopes of securing

a lower-price, negligence, or bureaucratic ineptitude.. Tennessee secrecy laws

shielded the “Drug Procurer” from being interviewed, deposed or called as a

witness. Thus, why he chose not to purchase pentobarbital from any or all of the

ten (10) suppliers who, his records reflect, possessed pentobarbital, and were willing

to sell pentobarbital, is unknown.

Further, the appeal will raise questions of first impression regarding the

burden on plaintiffs to prove an alternative where the proof of availability of the

drugs lies with persons shrouded in secrecy by the State and to whom plaintiffs are

prohibited access. The State does not deny that the testimony the commissioner and

Ms. Inglis regarding the availability of pentobarbital is rank hearsay. These sorts

of evidentiary questions will be directly addressed by this Court in Bucklew v.

Precythe, et al., No. 17-8151. It is exceedingly unfair to execute Mr. Irick while

these important legal issues remain unsettled.

III.

The trial record upends the factual predicate of this Court’s opinion in

Glossip.

20

In Glossip, this Court observed that “[t]estimony from both sides supports the

District Court's conclusion that Midazolam can render a person insensate to pain.”

135 S. Ct. at 2741. That could not be further from the reality of the evidence

presented in this case. As Justice Lee observed:

To begin with, this is the first time a Midazolam-based protocol has

been challenged in Tennessee. No court has previously determined its

constitutionality in this state. Second, every case must be decided on

its own merits and facts. Cases may present the same issues of law and

similar facts, but no two cases are identical, particularly in terms of

the evidence introduced by the parties. Third, since 2014 when Glossip

was tried, new evidence may have developed that would result in a

different ruling. Mr. trick claims indeed that "the state's expert in

Glossip, Dr. Evans who testified here, repudiated key portions of his

Glossip testimony that were central to the Supreme Court's holding."

He further contends that he presented evidence not considered by

other courts that executed inmates "suffered from pulmonary edema

that likely aroused them from the inadequate sedation provided by

[M]idazolam and left them awake, sensate, and experiencing the

sensations of drowning." The State did not respond to any of these

assertions.

Appendix B, p. 7 (footnote omitted). Indeed, the evidence presented by the Plaintiffs

shows that the state’s expert in Glossip, Dr. Evans who testified here, repudiated

key portions of his Glossip testimony that were central to this Court’s holding. For

instance, Dr. Evans now admits that Midazolam has a ceiling effect, has no

analgesic properties, and that the entirety of his speculation about Midazolam’s

ability to induce a coma is based on a single anecdote of a 63 year-old man who

entered a coma after being administered a therapeutic dose of Midazolam. Dr.

Evans was heavily impeached with previous testimony and the Chancellor agreed

that Plaintiffs experts were vastly more credentialed – and credible. In contrast to

21

Glossip, Plaintiffs here presented evidence that no other court has considered—

namely that no less than 85% of the autopsies done of inmates executed using

Midazolam show that they suffered from pulmonary edema that likely aroused

them from the inadequate sedation of Midazolam through the noxious stimuli of

drowning in their own fluids. Plaintiffs also presented persuasive expert testimony

not presented to any court in this country regarding the ineffectiveness of

Midazolam. Plaintiffs’ proof includes four extremely qualified experts—including

the scientist who conducted much of the preliminary research used to get

Midazolam FDA approval in the 1980s—who collectively presented overwhelming

evidence that Midazolam is not effective for rendering an inmate insensate to the

extremely noxious stimuli presented in the protocol. Mr. Irick should have the

opportunity to fully brief the expert testimony that was presented to this the

Supreme Court. Further, Plaintiffs presented unchallenged eyewitness testimony

from witnesses in every single state that has used Midazolam that collectively

demonstrated widespread and significant problems with Midazolam-based

executions for the exact reasons the experts explained in great scientific detail—

Midazolam does not work in this context. This evidence is more than enough to

establish a likelihood of success on the merits.

Failing to engage with Plaintiffs’ overwhelming evidence, the Chancellor

created an entirely new Eighth Amendment standard whereby it is constitutionally

acceptable for an inmate to be aware and able to feel pain, as the Chancellor found

here, as long that suffering lasts 10-18 minutes. There is no supporting case law for

22

this ruling. Our state and federal constitutions prohibit torture, even if it only lasts

10-18 minutes. The Chancellor’s ruling ignores Baze v. Rees, 553 U.S. 35 (2008),

and every other court that has held that if an inmate is able to feel and experience

the second two drugs the constitution is violated. The chancellor’s order is at odds

with the Chief Justice of the United States Supreme Court. “It is uncontested that,

failing a proper dose of sodium thiopental that would render the prisoner

unconscious, there is a substantial, constitutionally unacceptable risk of suffocation

from the administration of pancuronium bromide and pain from the injection of

potassium chloride." Id. at 53. A stay is warranted.

IV.

The proof in the record establishes a significant risk that Plaintiffs will

experience pain and suffering as a result of the use of Midazolam in place of

sodium thiopental in a three-drug protocol.

A.

The law is clear, if an inmate establishes that he will experience the

effect of a paralytic and potassium chloride, the inmate has proven a

“constitutionally unacceptable risk.” Baze v. Rees, 553 U.S. 35, 53

(2008).

Tennessee’s three-drug protocol substitutes Midazolam (a benzodiazepine) for

sodium thiopental (a barbiturate) for the express and sole purpose of preventing

pain. 11 This Court previously held, “Proper administration of an adequate amount

of sodium thiopental is essential to the constitutionality of Tennessee's three-drug

protocol.” West, 2010 Order, p. 2. The Court’s holding echoed the United States

Supreme Court in Baze v. Rees, 553 U.S. 35 (2008). In the plurality opinion, Chief

Justice Roberts wrote, “It is uncontested that, failing a proper dose of sodium

The protocol also substitutes the paralytic vecuronium bromide for the similar paralytic

pancuronium bromide. These two drugs are equivalents.

11

23

thiopental that would render the prisoner unconscious, there is a substantial,

constitutionally unacceptable risk of suffocation from the administration of

pancuronium bromide and pain from the injection of potassium chloride." Id. at 53

(emphasis added).

Under this binding Supreme Court precedent, where—as here—an inmate

can feel and experience the suffocation and pain of the second two drugs, the lethal

injection protocol is unconstitutional. Mr. Irick therefore has a meritorious appeal

which he is entitled to pursue.

B.

The record establishes, and the Chancellor found, that Midazolam

has no pain relieving properties. Moreover, Midazolam will not render

an inmate unaware of the pain and suffering caused by the

administration of drugs under the protocol.

Midazolam’s sole intended purpose in the July 5, 2018 protocol is to provide

pain relief from the administration of the second and third drugs which this Court

has already recognized will cause severe pain without an effective analgesic used

first. See, Attachment C, Order, p. 4. Yet, the proof in the record – established by

every expert who testified - is that Midazolam is not an analgesic and cannot

provide pain relief. Dr. David Greenblatt who participated in the research which

later led to FDA approval for Midazolam’s uses as a sedative established that

Midazolam’s absence of analgesic properties is not seriously debated within the

scientific/medical community. In fact, as the expert witnesses testified, the leading

textbook in this area, Miller’s Anesthesia states quite clearly that drugs like

Midazolam “lack analgesic properties and must be used with other anesthetic drugs

to provide sufficient analgesia.” Miller, R., et al. eds., Miller’s Anesthesia, Vol. 1, p.

24

842 (8th ed. 2015). 12 Dr. Lubarsky plainly stated, “there simply is no debate” about

Midazolam’s limitations. Instead the use of Midazolam in pain-producing

procedures is always accompanied with a pain-relieving opioid such as fentanyl.

Additionally, the Chancellor’s decision failed to address Plaintiffs’ proof that

the administration of Midazolam alone causes severe pain which will overcome any

limited sedative effect of the drug. Plaintiffs provided uncontested proof that 23 out

of 27 inmates executed using a Midazolam-based lethal injection protocol suffered

pulmonary edema. The testimony in the record is that the pulmonary edema is a

noxious stimuli which will of rouse inmates sedated with Midazolam. The finding of

pulmonary edema is similar to findings with persons who have drowned or suffered

sarin gas attacks.

Dr. Greenblatt testified that the most likely reason for the pulmonary edema

is the acidic quality of the massive dose of Midazolam that will not be buffered until

after it has passed through the lungs. The lungs will be assaulted with acid a

second time with the subsequent massive dose of Midazolam. As a result, the lungs

will fill with fluid, and the inmate will feel as if he is being drowned. One expert

compared the experience to chemical waterboarding. The credible expert testimony

established that the most likely cause of the pulmonary edema is the Midazolam,

based on specific findings made in the vast majority of autopsies of inmates

executed using Midazolam. The Chancellor’s order fails to address this additional

Plaintiffs’ expert Dr. David Lubarsky co-wrote the chapter on the use of intravenous anesthetics

for a number of years. His work is acknowledged in the most current edition.

12

25

cause of pain and suffering, which no court, including the Supreme Court in

Glossip, had ever heard before.

In summary, the uncontradicted evidence from Plaintiffs’ experts (explicitly

found by the trial court to be well qualified and eminent) when considered in light of

Baze and this Court’s ruling in the 2010West opinion establishes that Plaintiffs

proved that the use of Midazolam in the Tennessee protocol violates the Eighth

Amendment in that “there is a substantial, constitutionally unacceptable risk of

suffocation from the administration of [the paralytic] and pain from the injection of

potassium chloride." Baze, 535 U.S. at 53. In addition, Midazolam alone will cause

pulmonary edema and cause severe, unnecessary pain. Finally, Dr. Lubarsky’s

unrebutted testimony is that the protocol’s consciousness check is (a) inadequate

and (b) impossible to carry out given the way the inmate is strapped to the gurney.

Moreover, the way that the inmate is restrained to the gurney prevents the warden

and others from observing signs of awareness and sensation.

C.

Uncontested evidence demonstrates that inmates in every state that

has used Midazolam have demonstrated physical signs of awareness

and sensation following what prison officials call a “consciousness

check.”

Plaintiffs presented eyewitness proof that the science as described by

Plaintiffs’ experts has played out in real life in every jurisdiction to use Midazolam.

Witnesses from these states witnessed inmates raising their arms, clenching their

fists, trying to speak (the microphones are always turned off), moving their hands,

moving their feet, straining against the straps, writhing, producing tears,

struggling and choking. All of these observations were made after DOC employees

26

declared the inmates “unconscious.” Dr. Lubarsky confirmed that these physical

reactions are proof that the inmates were not unconscious. Rather, with his

training and expertise, Dr. Lubarsky recognizes these physical actions as signs of

awareness and pain.

The State did not produce a single witness to refute the testimony of

Plaintiffs’ imminently qualified experts or lay witnesses.

V.

The appeal below presents serious and nuanced issues of constitutional law

necessarily implicates issues which this Court is considering in Bucklew.

The appeal below involve questions of first impression in Tennessee,

including, inter alia, what is the nature of the Plaintiffs’ burden to prove an

alternative under Glossip? Can a plaintiff rely on inference and proof from the

Defendants’ witnesses--an issue is likely to be addressed by this Court in Bucklew v.

Precythe, et al., No. 17-8151? Is the burden on Plaintiffs to prove an alternative

altered in light of Tennessee’s secrecy laws related to the State’s’ procurers and

suppliers of lethal linjection chemicals? Did the Chancellor err in her interpretation

of the Tennessee public records act secrecy provision? Is there a torture exception to

West/Glossip?

It is appropriate then for this Court to exercise its authority under the All

Writs Act to stay Mr. Irick’s execution so that his right to appeal and ultimately to

seek certiorari from this Court is preserved.

27

VI.

Conclusion

The state has adopted a new and controversial lethal injection protocol. Mr.

Irick is not to blame for this change. Based upon the evidence in the record and

existing law, it is more likely than not that Mr. Irick will prevail on appeal.

Morover, the other issues to be decided on appeal are weighty and should only be

decided after a studied review of the voluminous record. Equity demands a stay of

execution enter to prevent Mr. Irick’s execution before the appellate process has

even begun. Denial of this motion will deny Mr. Irick his right to appeal and to seek

certiorari from this this Court. Accordingly, the motion should be granted.

Respectfully submitted,

/s/ Kelley J. Henry

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax: (615) 736-5265

*Counsel of Record

/s/ Carl Gene Shiles, Jr.

CARL GENE SHILES, JR.

SPEARS, MOORE, REBMAN & WIILLIAMS

P.O. Box 1749

Chattanooga, TN 37401

Phone: (423) 756-7000

Fax: (423) 756-4801

Counsel of record for the Petitioner

28

CERTIFICATE OF SERIVCE

I hereby certify that a true and correct copy of the foregoing document was

sent to the following via email on this the 7th day of August, 2018, to:

Ms. Andree Blumstein

Solicitor General

Ms. Jennifer Smith

Associate Solicitor General

P.O. Box 20207

Nashville, TN 37202

Hard copies will follow in the United States Mail.

/s/ Kelley J. Henry

Kelley J. Henry

Counsel of Record

i

For example, the amended complaint alleges:

96.

Vecuronium bromide is not necessary to execute Plaintiffs.

97.

The pain and suffering caused by vecuronium bromide is not necessary to execute

Plaintiffs.

153.

There exists a substantial risk that the use of Midazolam in new

Protocol B will not prevent Plaintiffs from experiencing pain, suffering, and the terror of

suffocation caused by vecuronium bromide.

29

[Heading on p. 33] The use of vecuronium bromide in Protocol B increases the risk of

unnecessary and serious pain and suffering.

160.

Vecuronium bromide is the second drug used in Protocol B.

161.

Vecuronium bromide is a neuromuscular blocking agent that produces

paralysis, including paralysis of respiratory muscles.

162.

A neuromuscular blocking agent blocks the receptor sites in muscle

tissue that receive nerve impulses.

163.

When these sites are blocked, the nerve impulses have no effect on the

muscle tissue, which means that the muscle tissue will no longer contract causing paralysis.

164.

A neuromuscular blocking agent has no effect on the central nervous

system, and consequently it has no effect on consciousness or the sensation of pain and

suffering.

165.

When the diaphragm and other muscles that control breathing are

paralyzed, Plaintiffs will experience the sensation of suffocation without being able to

respond.

166.

Plaintiffs will not be able to respond by breathing, or by moving, or by

facial or vocal expressions.

167.

This will cause a frantic, desperate sensation which, in turns, results

in inhumane and constitutionally intolerable suffering.

30

168.

Because of the way neuromuscular blocking agents function,

Tennessee law prohibits their use, in any form (with or without anesthetics), in euthanizing

non-livestock animals, and veterinary ethical standards prohibit their use in euthanizing any

kind of animal. See the Nonlivestock Animal Humane Death Act, Tenn. Code Ann. § 44-17303(c).

169.

The use of vecuronium bromide under Protocol B will render Plaintiffs

unable to move.

170.

The use of vecuronium bromide under Protocol B will render Plaintiffs

unable to breathe.

171.

The pain and terror caused by suffocation, if felt by Plaintiffs, is

unconstitutional.

172.

The use of vecuronium bromide will likely prevent any pain responses

from being observed.

173.

Midazolam, as used in Protocol B, will not prevent Plaintiffs from

experiencing the serious constitutionally intolerable pain and suffering of

suffocation.

174.

When a human being experiences suffocation the biological response is

an immediate and extreme spike in adrenaline and other stress hormones.

175.

Vecuronium bromide is a noxious stimuli.

31

176.

A human beings’ biological response to the administration of vecuronium bromide is

sure or very likely to overcome the sedative effect of

Midazolam.

177.

The use of vecuronium bromide is unnecessary.

230.

The inclusion of vecuronium bromide in new Protocol B needlessly

increases the risk that an execution will continue even as Plaintiffs are sensate to the severe

pain, and suffering caused by suffocation but will show no outward indications of such pain.

231.

The inclusion of vecuronium bromide in new Protocol B needlessly

increases the risk that an execution will continue even as Plaintiffs are sensate to the severe

pain, and suffering caused by potassium chloride, but will show no outward indications of

such pain.

[Heading on p. 46 ] C. Available Alternative

302.

The second drug utilized in Protocol B, vecuronium bromide, causes

paralysis and severe mental anguish and terror.

303. The second drug utilized in Protocol B, vecuronium bromide, causes

suffocation and severe mental anguish, terror, and pain.

308. The absence from Protocol A of vecuronium bromide and potassium

chloride significantly reduces the substantial risk under Protocol B of severe pain caused by

vecuronium bromide and potassium chloride.

32

33