Reply Brief — Billy Ray Irick, Applicant v. Tennessee

IN THE

SUPREME COURT OF THE UNITED STATES

No. 18A142

_________________________________

IN RE:

BILLY RAY IRICK,

Movant,

_________________________________

REPLY IN RESPONSE TO

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 8, 2018

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

Circuit Justice for the Sixth Circuit:

In Response to Mr. Irick’s application for a stay pursuant to the All Writs

Act, Respondent contends that the state court’s adjudication of Mr. Irick’s challenge

to the lethal injection protocol is “in line with this Court’s decision in Glossip and

the decisions of other federal appellate courts that have uniformly rejected Eighth

Amendment challenges to lethal injection protocols that use midazolam as the first

drug in a three-drug combination.” Brief in Opposition at p. 11 (citing Glossip v.

Gross, 135 S. Ct. 2726, 2739-40 (2015)). In so arguing, Respondent attempts to elide

this Court’s holding in Baze v. Rees, 553 U.S. 35 (2008): “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 supplied). Where the trial court here found

that Mr. Irick (and the other petitioners) have “established that midazolam does not

elicit strong analgesic effects and the inmate being executed may feel pain from the

administration of the second and third drugs,” this Court’s precedent requires a

stay so that the appellate court can rectify the trial court’s failure to apply Baze to

the facts established at the trial. See Attachment C to Stay Motion, July 26, 2018

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

Chancery Court).

Respondent’s contention that the trial court’s order was in line with Glossip

is mistaken. The evidence presented in the state-court trial challenging Tennessee’s

method of execution is directly contrary to the record that supported this Court’s

decision in Glossip. The record before this Court in Glossip was from an evidentiary

hearing on a motion for preliminary injunction (in contrast to the full trial here) and

contained a finding, based upon pharmacist Lee Evans’ testimony, that midazolam

“would make it a virtual certainty that any individual will be at a sufficient level of

unconsciousness to resist the noxious stimuli which could occur from the application

of the second and third drugs.” Glossip, 135 S. Ct. at 2736. Dr. Evans no longer

takes that position and the record in the state-court trial was to the contrary.

The proof now establishes (and Dr. Evans now concedes) that “midazolam

does not elicit strong analgesic effects and [Mr. Irick] may feel pain from the

administration of the second and third drugs.” Id. Dr. Stevens, a pharmacologist

credited as credentialed and authoritative by the trial court, testified that

midazolam in any dose is incapable of rendering an inmate insensate to pain and

that the inmate would feel “pain and terror” from the administration of the second

two drugs in the protocol. Dr. Stevens testified, “First and primarily the first drug,

midazolam, will not render the inmate insensate to pain . . . Secondly, when the

vecuronium is then given, there will be noxious stimuli from the paralysis, the fear,

suffocation, and that will cause increased excitation, and therefore, even causing

less sedation as midazolam could provide. And then thirdly, the potassium chloride.

Again, given that midazolam cannot cause the inmate to be insensate of pain, that

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will cause feelings of burning, "fire," as I think it’s been called, that won't be as

noticeable [to observers] because the vecuronium is on board. But without having a

state of general anesthesia, it will be experienced.” (Stevens testimony, 160:12 to

161:13). 1 Dr. Greenblatt, the leading authority on benzodiazepines testified,

“Midazolam does not produce general anesthesia by itself. It can’t be used for that

purpose. It’s doesn’t have that property. And basically all sources agree to

that.” 497, 22

Dr. Greenblatt also testified that in his almost 50 years of research, he have

never met a person who believes, read an article that asserts, or seen research that

suggests that any amount of midazolam can induce a state of anesthesia where a

person would be insensate to or unaware of noxious stimuli like suffocation from

vecuronium bromide or the chemical burn of potassium chloride.

Further, in addition to the finding based on Dr. Evans’ now-discredited

testimony, the Glossip Court cited to 12 other midazolam executions that

“appear[ed] to have been conducted without any significant problems.” Glossip, 135

S. Ct. at 2745-46 (emphasis added). The Tennessee plaintiffs presented testimony

from eleven witnesses to midazolam-based executions—at least one from every

jurisdiction that has used midazolam—who observed indications of inmates being

sensate and aware during the administration of the second two drugs. Order at 2728. As the record in Tennessee now demonstrates, 24 of the 27 autopsied inmates

1 Portions of the Trial Transcript were received today and filed with the Chancery

Court for purposes of preparing the record on appeal.

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executed with midazolam showed clear signs of pulmonary edema. 2 The

“appear[ance]” of no significant problems this Court relied upon in Glossip has been

When this Court relied on the fact that 12 midazolam executions (other than

Lockett and Wood) “appear[ed]” to have gone as intended, this Court did not have a

record of the pulmonary edema nor of the fact that inmates have shown signs of

being aware and sensate during the administration of the constitutionally

unacceptable, final two drugs.

Despite the procedurally distinct postures and the resulting differences in the

records, Respondent points to litigation from the Sixth, Eighth and Eleventh

Circuits as further support for this position. None of the cases cited, however,

presented this Court with a record wherein midazolam was conceded to lack

analgesic properties or where it was found that midazolam would not render the

inmate insensate.

•

Respondent misrepresents and vastly overstates the import of the

Sixth Circuit’s decision in In re: Ohio Execution Protocol, 860 F.3d 881

(6th Cir. 2017). There the appellate court reversed a preliminary

As Dr. Greenblatt explained, “[In the Protocol] you’re injecting a total of 100

milliliters of a highly acidic solution. . . . The whole injection is carried first to the

heart and then immediately to the lungs, so it will be a high acid load in the lungs. .

. . That’s a very thin and delicate membrane, sensitive to acid. So when that much

acid gets into the lungs, it causes damage to those membranes and makes it leaky

so that it’s no longer an adequate barrier to fluid from the circulation. So fluid

leaks from the blood into the [] alveoli, the airspaces in the lungs, that are supposed

to have only air. So the lungs acquire fluid. We call that pulmonary edema. And

that makes air exchange difficult if maybe not impossible. . . . That would be

immediate in the Protocol.” 542, 18

2

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injunction finding that the district court magistrate, in determining

the inmates’ likelihood of success on the merits, had not applied the

proper standard of risk of pain set forth in Glossip or made explicit

findings in support of its decision. See Ohio Execution Protocol, 860

F.3d at 855. See also Id. at 886 (“To some extent [the district court’s]

omission [to offer much reasoning in support of its decision] is

understandable, given the tight timelines applicable here.”) The Sixth

Circuit’s decision – rendered by the en banc court with six of 13 judges

dissenting – was that the science presented in the “tight timelines” of

the preliminary injunction hearing “could go either way,” and that

showing was insufficient for the district court to have granted the

injunction. In fact, the Ohio lethal injection litigation is ongoing and a

full merits hearing has yet to be held. The case offers no support for

Respondent’s position.

•

In McGhee v. Hutchison, 854 F.3d 488 (8th Cir. 2017) the Eighth

Circuit denied relief for three independent legal grounds: primarily, a

failure to timely file a challenge to Arkansas’ lethal injection protocol,

secondly, due to the use of the wrong standard of proof, and thirdly,

based on the Eighth Circuit’s specific interpretation of the readily

feasible alternative requirement. Id. at 491-93. In passing, and

without any development, the court simply called the underlying proof

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“equivocal;” which, as it was significantly less-developed than that

presented in Tennessee, may have been a fair statement. Id. at 492.

•

The Eleventh Circuit’s decision in the Arthur case cited by the State has

no relevance to Mr. Irick’s Eighth Amendment challenge. Resp. at 12

(citing Arthur v. Comm’r, Alabama Dep’t of Corr., 840 F.3d 1268, 1282

(11th Cir. 2016), cert. denied, 137 S. Ct. 725 (2017)). Arthur challenged

the adequacy of Alabama’s consciousness check, presenting an expert

who testified that the prison officials did not pinch the inmates hard

enough to check for consciousness. Id. at 1281-82. Arthur also raised an

as-applied challenge, presenting a cardiologist to testify that he had

reviewed Arthur’s medical records and concluded that, as a result of

Arthur’s history of heart problems, he would likely have a heart attack

before the midazolam could take effect, which would render the

execution protocol cruel and unusual as applied to him. Id. at 1288. The

Eleventh Circuit’s rejection of Arthur’s challenges to Alabama’s

midazolam-based method of execution has no applicability to the issues

presented in Mr. Irick’s challenge to the Tennessee protocol. Mr. Irick

presented four highly-esteemed experts who established in a facial

challenge that a midazolam-based protocol is sure or very likely to cause

needless suffering

Respondent claims that this Court’s pending resolution of the issues

presented in Bucklew v. Precythe, No. 17-8151 (U.S.) will have “no bearing on this

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case.” Response at 11. Respectfully, Respondent’s attempt to cabin this Court’s

inquiry in Bucklew is not persuasive. Though the issues presented in Bucklew

arose in the context of an “as applied” challenge to a lethal injection protocol, where

this Court sua sponte has asked the parties to address the petitioner’s burden under

Glossip and where Respondents seek to rebuff Mr. Irick’s constitutional claims with

those very requirements, this Court’s resolution of Bucklew will directly affect the

resolution of the appeal of the other petitioners in the action below – and Mr. Irick

should remain alive to benefit from the just resolution of those issues.

Respondent claims that Mr. Irick cannot show a “significant possibility of

success on the merits” without affirmatively presenting proof as to where the State

of Tennessee could purchase pentobarbital. Response at 9. Respondent is wrong.

Mr. Irick presented proof of an alternative method of lethal injection that would

“significantly reduce a substantial risk of severe pain,” to wit a two drug protocol

eliminating the vecuronium bromide. The trial court found the petitioners’ experts

to be highly credentialed and “imminent”: Dr. Stevens, a pharmacologist testified

that vecuronium bromide as used in the protocol does not hasten death, but rather

prolongs the inmate’s suffering:

Q.· · · From a pharmacological perspective and to a reasonable degree

of scientific certainty, will vecuronium bromide do anything to

expedite the inmate's death or make it less painful?

A.· · · No, it wouldn't.

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Q.· · · From a pharmacological perspective and to a reasonable degree

of scientific certainty, would a two-drug protocol involving just

midazolam and potassium chloride, but removing the three-minute

interlude with vecuronium, be less painful and cause less suffering

than the present three-drug protocol?

A.

It would in the sense of death comes sooner.

(162:14 to 163:2).

Where Mr. Irick has presented compelling proof, credited by the trial court

and unrebutted by comparable experts, 3 that a 2 drug protocol would significantly

reduce a substantial risk of severe pain, Mr. Irick has shown a significant

possibility of success on the merits such that a stay should issue.

Respondent’s cynical position that a stay under the All Writs Act is not

necessary because some of the other plaintiffs will still be alive after Mr. Irick is

executed is shocking and incorrect. 4 Mr. Irick faces irreparable harm. The record

developed below in a 10 day trial with four experts –all of whom are creditedestablishes a likelihood of success. The harm to the state is negligible. Mr. Irick

remains on death row. He is being punished every single day.

Conclusion

3 The trial court noted that respondents’ experts, while qualified to testify, “did not

have the research knowledge and imminent publications that Plaintiff’s counsel

did.” Order at 21.

4 Nothing in the application requires the Court to interpret State Law.

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Based upon the evidence in the record and existing law, it is more likely than

not that Mr. Irick will prevail on appeal. Equity demands a stay of execution enter

to prevent Mr. Irick’s execution so that his rights may be vindicated. 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

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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 8th 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

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