Petition for Writ of Certiorari — Stacey Johnson, et al., Petitioners v. Dexter Payne, Director, Arkansas Division of Correction, et al.

Supreme Court briefApr 13, 2023

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Appendix

Appendix A

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-1965

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Stacey Eugene Johnson,

lllllllllllllllllllllPlaintiff - Appellant,

Bruce Earl Ward,

lllllllllllllllllllllPlaintiff - Appellant,

Don William Davis; Terrick Terrell Nooner,

lllllllllllllllllllllPlaintiffs - Appellants,

Justin Anderson; Ray Dansby; Gregory DeCay; Kenneth Isom; Alvin Bernal

Jackson; LaTavious Johnson; Timothy Wayne Kemp; Brandon E. Lacy; Zachariah

Marcyniuk; Roderick Leshun Rankin; Andrew Sasser; Thomas Springs; Mickey Thomas,

lllllllllllllllllllllIntervenor Plaintiffs - Appellants,

Asa Hutchinson, Governor of the State of Arkansas, in his official capacity;

Dexter Payne, Director, Arkansas Division of Correction,

lllllllllllllllllllllDefendants - Appellees.

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Appeal from United States District Court

for the Eastern District of Arkansas - Central

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Submitted: January 12, 2022

Filed: August 16, 2022

____________

Before COLLOTON, KELLY, and KOBES, Circuit Judges.

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COLLOTON, Circuit Judge.

Stacey Johnson and other death-row prisoners in Arkansas sued the governor

and a corrections official, arguing that Arkansas’s three-drug execution protocol

violates the Eighth Amendment. After a bench trial, the district court* found that the

prisoners failed to establish a violation, and denied a motion for new trial. We affirm.

In February 2017, Governor Hutchinson of Arkansas scheduled the executions

of Stacey Johnson and seven other prisoners for April 2017. The eight men and a

ninth prisoner sued the governor and the director of the Arkansas Division of

Correction. They alleged that Arkansas’s three-drug execution protocol violates the

Eighth Amendment. The prisoners also sought a preliminary injunction to stay the

executions pending trial. The district court granted a preliminary injunction, but this

court vacated the order. McGehee v. Hutchinson, 854 F.3d 488 (8th Cir. 2017) (en

banc) (per curiam). The case then proceeded to trial.

Arkansas’s execution protocol involves several steps. First, a prison official

administers 500 mg of a sedative called midazolam to the prisoner. The official next

performs a number of physical tests to assess whether the inmate is conscious; if the

The Honorable Kristine G. Baker, United States District Judge for the Eastern

District of Arkansas.

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inmate is responsive, then the official administers an additional 500 mg of

midazolam. The official then administers vecuronium bromide, a paralytic drug.

Finally, the official administers potassium chloride, which causes the prisoner’s heart

to stop.

After trial, the district court entered judgment in favor of the state officials on

the Eighth Amendment claim. The court found that the prisoners had failed to prove

that the protocol created a substantial risk of severe pain. Alternatively, the court

found that the prisoners had failed to show that a feasible and readily implemented

alternative would significantly reduce a risk of severe pain. The prisoners later

moved for a new trial, asserting newly discovered evidence about the availability of

pentobarbital for use as a single-drug alternative to the execution protocol. The court

concluded that the evidence was cumulative and unlikely to produce a different result,

and thus denied the motion.

The prisoners appeal. We review the district court’s factual findings for clear

error and its legal conclusions de novo.

II.

To prove a method-of-execution claim under the Eighth Amendment, an inmate

must satisfy two elements. First, he must demonstrate that the State’s method

“presents a risk that is ‘sure or very likely to cause serious illness and needless

suffering,’ and give rise to ‘sufficiently imminent dangers.’” Glossip v. Gross, 576

U.S. 863, 877 (2015) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality

opinion)) (internal quotation omitted). The risk must be “a ‘substantial risk of serious

harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from

pleading that they were ‘subjectively blameless for purposes of the Eighth

Amendment.’” Id. (quoting Baze, 553 U.S. at 50 (plurality opinion)). Second, he

“must show a feasible and readily implemented alternative method of execution that

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would significantly reduce a substantial risk of severe pain and that the State has

refused to adopt without a legitimate penological reason.” Bucklew v. Precythe, 139

S. Ct. 1112, 1125 (2019).

The prisoners argue that the district court clearly erred in finding that they

failed to demonstrate that the Arkansas execution protocol creates a substantial risk

of severe pain. Their argument proceeds as follows: They posit that midazolam has

a so-called “ceiling effect” at a dose no greater than 0.4 mg/kg, after which increasing

the dosage does not produce greater sedative effect. At a dosage of 0.4 mg, they say,

at least 72% of persons sedated with midazolam will be aware of pain. Because

midazolam does not suppress pain, they contend, prisoners who remain sensate will

experience severe pain when the second and third drugs in the protocol are

administered.

The district court rejected the prisoners’ assertion that midazolam has a ceiling

effect at 0.4 mg/kg. The court assumed for the sake of analysis that midazolam has

a ceiling effect, but concluded that there is no medical consensus about the dose at

which the effect occurs. The court also found that there are no human studies that

have used doses large enough to establish a ceiling effect.

The prisoners argue that these findings are clearly erroneous. To establish that

individuals sedated with midazolam are sure or very likely to remain sensate, the

prisoners rely on a study by Dr. Ian Russell. Seventy-two percent of the participants

in the Russell study responded to oral commands after sedation with midazolam. But

the Russell study administered only 0.2 mg/kg of midazolam to anesthetize the

participants, with an additional 0.15 mg/kg administered over the course of each hour

of surgery. This dose, which is equivalent to 20 mg plus 15 mg per hour for a 220pound man, is far less than the 500 mg administered as part of the execution protocol.

Unless midazolam has a ceiling effect at or below the dosage used in the Russell

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study, the study does not compel the conclusion that prisoners are sure or very likely

to remain aware of pain after receiving the doses of midazolam used in the protocol.

In an effort to make that showing, the prisoners cite expert testimony from Dr.

Craig Stevens and Dr. Gail Van Norman that midazolam has a ceiling effect that

occurs at a dose between 0.2 to 0.4 mg/kg. These experts relied on two medical

studies, which are known by the names of their principal authors as the Inagaki study

and the Miyake study.

The State’s experts, however, presented competing opinions. Dr. Joseph

Antognini and Dr. Daniel Buffington disputed the proffered interpretations of the

Inagaki and Miyake studies. Dr. Antognini testified that the studies may suggest that

midazolam has a ceiling effect, but do not prove that one exists. He stated that when

searching for a ceiling effect, researchers typically test the clinical effects of a drug

across a broad range of dosages, but that the Inagaki and Miyake studies did not do

so. Dr. Buffington agreed that the Miyake study failed to demonstrate a ceiling

effect, and opined that no study has established that midazolam has a ceiling effect.

On cross-examination, the prisoners’ expert Dr. Van Norman testified that a ceiling

effect “can be seen to start at around .4 milligrams per kilogram,” but that the study

“never reached the full ceiling effect.” She also acknowledged that there is no

scientific consensus on the dose at which the ceiling effect occurs.

With no scientific consensus and a paucity of reliable scientific evidence

concerning the effect of large doses of midazolam on humans, the district court did

not clearly err in finding that the prisoners failed to demonstrate that the Arkansas

execution protocol is sure or very likely to cause severe pain. Accordingly, the

district court properly dismissed the claim under the Eighth Amendment.

The prisoners argue that additional findings of fact are required, because the

court failed adequately to address their evidence. After a bench trial, a district court

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“must find the facts specially and state its conclusions of law separately.” Fed. R.

Civ. P. 52(a). But the court need not address every piece of evidence or disputed

point; it is sufficient for the court to “set forth its reasoning with enough clarity that

the appellate court may understand the basis of the decision.” Leonard v. Dorsey &

Whitney LLP, 553 F.3d 609, 613 (8th Cir. 2009).

The findings here are adequate. Although the court did not specifically discuss

the Miyake and Inagaki studies, the court did address the expert testimony regarding

any midazolam ceiling effect, and the experts based their opinions on the studies.

Consistent with Dr. Van Norman’s testimony, the court concluded that there was no

scientific consensus regarding the dose of midazolam at which the ceiling effect is

reached. Consistent with the testimony of Drs. Antognini, Buffington, and Van

Norman, the court found that there are no human studies that have established the

dose at which there is a true ceiling effect. The court’s rationale is adequately

explained, and there are sufficient findings to facilitate appellate review. Having

reviewed the expert testimony and the medical literature received as evidence, we see

no clear error in the district court’s findings about the lack of scientific consensus or

human studies establishing a ceiling effect for midazolam.

The prisoners also challenge the district court’s denial of their motion for a new

trial. They argue that new evidence of the federal government’s ability to acquire

pentobarbital for use in federal executions merits a new trial. Setting aside whether

the State would have the same access to pentobarbital, this evidence was not material.

The prisoners failed to establish that the State’s existing method was sure or very

likely to cause needless suffering, so the State was not required to consider alternative

methods. The district court did not abuse its discretion in denying the motion.

The judgment of the district court is affirmed.

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KELLY, Circuit Judge, concurring.

The court concludes that, “[w]ith no scientific consensus and a paucity of

reliable scientific evidence concerning the effect of large doses of midazolam on

humans, the district court did not clearly err in finding that the prisoners failed to

demonstrate that the Arkansas execution protocol is sure or very likely to cause

severe pain.” I agree that under our precedent the district court did not clearly err.

However, I write separately to highlight how impossible a prisoner’s burden has

become to succeed on an Eighth Amendment method-of-execution claim, and how

hollow our review continues to be as a result.

To begin, I note that the district court did not find that the prisoners offered a

“paucity of reliable scientific evidence.” The record shows, in fact, that the prisoners

presented a substantial amount of scientific evidence supporting their position that

persons who receive a 500-mg dose of midazolam are likely to remain aware of

painful stimuli such as the second and third drugs in Arkansas’s protocol. For

example, Dr. Van Norman testified that, “[t]o a virtual medical certainty,” a prisoner

executed under Arkansas’s midazolam protocol “will experience pain and suffering”

because midazolam “has no significant clinical analgesic effects” and does not

prevent awareness. Dr. Van Norman relied on multiple studies in reaching this

conclusion. Of course, the State offered testimony from its own experts, one of whom

testified that there is only “speculation” that the protocol would cause prisoners to

suffer severe pain. But the prisoners’ evidence can only be considered thin if one

determines that it is unreliable or inaccurate. The district court did not make findings

about the credibility of the experts or the underlying data on which they relied,

instead identifying disagreements between the experts and then concluding that the

prisoners failed to meet their burden.

More broadly, however, our demand that prisoners present overwhelming

“scientific evidence” and show a “scientific consensus” about the effect of drug

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dosages that will never ethically be tested on humans has shown itself to be an

insurmountable task.

As the court explains, the first prong of the test from Baze and Glossip requires

a prisoner to show that a state’s method of execution “presents a risk that is ‘sure or

very likely to cause serious illness and needless suffering.’” Glossip, 576 U.S. at 877

(first emphasis added) (quoting Baze, 553 U.S. at 50 (plurality opinion)). Neither the

majority in Glossip nor the plurality in Baze held that this test requires a prisoner to

show that there is a “scientific consensus” that a state’s method is sure or very likely

to cause severe pain.1 The term “scientific consensus” appears only in Justice Alito’s

concurrence in Baze, which no other justice joined, and only in the context of the

requirement that a prisoner demonstrate that modifying a state’s lethal injection

protocol would “significantly reduce a substantial risk of severe pain.”2 See Baze,

553 U.S. at 67 (Alito, J., concurring) (quotation omitted).

Nevertheless, in McGehee, this court suggested that establishing a scientific

consensus might be part of the prisoner’s burden under the Baze and Glossip test. In

that case, the district court granted a stay of execution, while acknowledging that

there was no “well-established scientific consensus” that the use of midazolam in the

Arkansas protocol was very likely to cause severe pain. McGehee, 854 F.3d at 492.

But the district court considered the standard proposed by Justice Alito in Baze to be

In fact, the petitioners in Baze conceded that if the first drug in Kentucky’s

execution protocol—sodium thiopental—was administered as intended, it would

“result in a humane death” and would “eliminate[] any meaningful risk that a prisoner

would experience pain from the subsequent injections of pancuronium and potassium

chloride.” Baze, 553 U.S. at 41, 49 (plurality opinion); see also Glossip, 576 U.S. at

950 (Sotomayor, J., dissenting).

The Supreme Court has used the term “consensus” in assessing whether there

is a “national” or “legislative” consensus about evolving standards of decency. See,

e.g., Atkins v. Virginia, 536 U.S. 304, 311–13 (2002).

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“a high bar to reach and level of certainty to achieve,” in part due to “the limitations

of human study at 500 mg, 1,000 mg, or higher doses of midazolam.” Id. at 492–93.

In vacating the district court’s decision, this court stated, “If there is no scientific

consensus and a paucity of reliable scientific evidence concerning the effect of a

lethal-injection protocol on humans, then the challenger might well be unable to meet

[the burden set forth in Baze and Glossip].” Id. at 493. The court concluded that the

“equivocal evidence” in that case “[fell] short of demonstrating a significant

possibility that the prisoners will show that the Arkansas protocol is ‘sure or very

likely’ to cause severe pain and needless suffering.” Id. Since McGehee, we have

cited a lack of “scientific consensus” in rejecting two additional method-of-execution

challenges. See Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir. 2017) (“As in

McGehee, the evidence is ‘equivocal,’ lacks ‘scientific consensus’ and presents ‘a

paucity of reliable scientific evidence’ on the impact of the lethal-injection protocol

on a person with Williams’s health conditions.” (quoting McGehee, 854 F.3d at

492–93)); Bucklew v. Precythe, 883 F.3d 1087, 1096 (8th Cir. 2018) (concluding that

prisoner failed to establish his risk of severe pain would be substantially reduced by

alternative method of execution because his evidence was “equivocal, lack[ed]

scientific consensus and present[ed] a paucity of reliable scientific evidence”

(quotation omitted)), aff’d, 139 S. Ct. 1112 (2019).3 Today, the court relies on this

language again.

It is true that the test from Baze and Glossip creates a high bar. See Barr v.

Lee, 140 S. Ct. 2590, 2591 (2020) (per curiam) (explaining that a claim challenging

an execution protocol “faces an exceedingly high bar”); see also In re Ohio Execution

In affirming our Bucklew decision, the Supreme Court did not use the term

“scientific consensus.” Instead, it concluded that the risks asserted by Bucklew

“rest[ed] on speculation unsupported, if not affirmatively contradicted, by the

evidence” and that “the record contain[ed] insufficient evidence” to support his

argument that his alternative method of execution would eliminate the substantial risk

of severe pain. Bucklew, 139 S. Ct. at 1130.

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Protocol Litig., 946 F.3d 287, 290 (6th Cir. 2019); In re Ohio Execution Protocol, 860

F.3d 881, 886 (6th Cir. 2017) (describing plaintiff’s burden as a “rigorous showing”).

It is also true that other circuits have made clear that speculative evidence cannot

meet this standard. See Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1265

(11th Cir. 2014) (“We have held that speculation that a drug that has not been

approved will lead to severe pain or suffering ‘cannot substitute for evidence that the

use of the drug is sure or very likely to cause serious illness and needless suffering.’”

(quoting Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir. 2013))); Whitaker v.

Livingston, 732 F.3d 465, 469 (5th Cir. 2013) (“[S]peculation cannot substitute for

evidence that the use of the drug is sure or very likely to cause serious illness and

needless suffering.” (quoting Brewer v. Landrigan, 562 U.S. 996, 996 (2010)));

Cooey v. Strickland, 589 F.3d 210, 231 (6th Cir. 2009) (“Uncertainties built on so

many other uncertainties cannot show a substantial risk of severe pain and needless

suffering.”). However, rejecting “speculation” or “[u]ncertainties built on so many

other uncertainties” is not the same as demanding a showing of “scientific

consensus.” No other circuit imposes such a stringent requirement. And, in my view,

our case law has conflated a demanding legal standard with the factual question of

whether a scientific consensus exists. Establishing a scientific consensus is not

required under Supreme Court precedent and, in this context, it is a nearly impossible

standard for prisoners to meet.

The Supreme Court repeatedly uses the term “risk” in describing what a

prisoner must show to prevail on an Eighth Amendment method-of-execution claim.

See Glossip, 576 U.S. at 877 (explaining that a plaintiff must show “a substantial risk

of serious harm, an objectively intolerable risk of harm that prevents prison officials

from pleading that they were subjectively blameless for purposes of the Eighth

Amendment” (cleaned up) (quoting Baze, 553 U.S. at 50)). It may be that the use of

the word “risk” reflects the inherent uncertainty involved—both in the fact that the

potentially harmful state action has not yet occurred and in the fact that all science

carries a degree of uncertainty. Moreover, the Supreme Court has suggested that

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courts are ill-equipped to assess whether the scientific community has reached a

“consensus” on a particular issue. See id. at 882 (“[C]hallenges to lethal injection

protocols test the boundaries of the authority and competency of federal courts.

Although we must invalidate a lethal injection protocol if it violates the Eighth

Amendment, federal courts should not ‘embroil themselves in ongoing scientific

controversies beyond their expertise.’” (cleaned up) (quoting Baze, 553 U.S. at 51));

Baze, 553 U.S. at 105 (Thomas, J., concurring) (“Which brings me to yet a further

problem with comparative-risk standards: They require courts to resolve medical and

scientific controversies that are largely beyond judicial ken.”). But here, there is an

additional layer of “risk”: current execution protocols—including

Arkansas’s—involve the administration of drugs at dosages that have never been

tested in humans and likely never will be.

The uncertainty about midazolam’s ceiling effect in this case exemplifies the

problem with demanding a “scientific consensus.” The prisoners’ experts testified

that midazolam likely has a ceiling effect at doses between 20 mg to 40 mg. The

State’s experts opined that there are no human studies confirming a ceiling effect for

midazolam and sought to undermine the studies relied on by the prisoners by

emphasizing that those studies did not administer 500-mg doses of midazolam. The

district court ultimately concluded that, “[e]ven if there is general medical consensus

that Midazolam has a ceiling effect, there is no such consensus on the dose of

Midazolam at which a ceiling effect is exhibited.”4 But again, one of the reasons for

this lack of consensus is the lack of reliable clinical studies. And Dr. Antognini, one

Of course, the existence of a ceiling effect and the dose at which it is reached

are relevant only if there is some lower dose at which a person would remain aware

of painful stimuli. Moreover, “the precise dose at which midazolam reaches its

ceiling effect is irrelevant if there is no dose at which the drug can, in the Court’s

words, render a person ‘insensate to pain.’” See Glossip, 576 U.S. at 964

(Sotomayor, J., dissenting).

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of the State’s experts, acknowledged the “ethical issues” of using large doses of

midazolam in human studies. He testified that “you would have to give more

[midazolam] to really say that there’s a true ceiling effect” but added that “they can’t

do that” because study “volunteers would take a long time to wake up” and “[t]he

ethics committee would never approve that.” Because a study using 500 mg of

midazolam cannot be conducted, there will continue to be a degree of

speculation—and thus a lack of consensus—about the effect of such a dose. At least

where the science is now, the only “studies” using such a high dose of midazolam will

be the execution of prisoners—individuals who will be paralyzed during the

administration of subsequent drugs and unable to explain afterwards whether they

experienced any pain. See In re Ohio Execution Protocol, 860 F.3d at 887 (calling

it “obviously correct” that “there are not now and never will be clinical studies of the

effect of injecting 500 mg of midazolam into a person” and “we certainly cannot ask

the executed whether they experienced pain after the injection of midazolam” but

nevertheless emphasizing that “the applicable legal standard requires the plaintiffs to

prove their allegations to a high level of certainty”).

In choosing an execution protocol, states can select dosages that have not been

reliably studied, and experts will likely continue to disagree about the effect of those

dosages on human subjects and about the degree of uncertainty involved. That is, of

course, the nature of science and the scientific method. But if those disagreements

persist—and based on the evidence presented in this case, a reliable study that would

answer the midazolam ceiling effect question is not currently possible—it is unclear

how a prisoner could ever prevail in a method-of-execution challenge to a lethal

injection protocol under this circuit’s current standard.

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Case 4:17-cv-00179-KGB Document 206 Filed 05/31/20 Page 1 of 106

Appendix B

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IN THE UNITED STATES DISTRICT COURT

EASTERN DIVISION OF ARKANSAS

CENTRAL DIVISION

JASON MCGEHEE, et al.

PLAINTIFFS

Case No. 4:17-cv-00179 KGB

ASA HUTCHINSON, et al.

DEFENDANTS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came before the Court for a bench trial (Dkt. Nos. 186-193). Plaintiffs Stacey

Johnson, Bruce Ward, Terrick Nooner, and Don Davis,1 as well as intervenor-plaintiffs Justin

Anderson, Ray Dansby, Gregory Decay, Kenneth Isom, Alvin Jackson, Latavious Johnson,

Timothy Kemp, Brandon Lacy, Zachariah Marcyniuk, Roderick Rankin, Andrew Sasser, Thomas

Springs, and Mickey Thomas (collectively, “plaintiffs”) (Dkt. No. 111), were represented by

counsel and presented proof (Dkt. No. 194). Defendants Asa Hutchinson, who is sued in his

official capacity as Governor of Arkansas, and Wendy Kelley, who is sued in her official capacity

as Director of the Arkansas Department of Correction (“ADC”) (collectively, “defendants”), were

represented by counsel and presented proof (Dkt. No. 195).

Plaintiffs bring claims under 42 U.S.C. § 1983 challenging defendants’ method of

execution, performance of consciousness checks during executions, and viewing policy during

executions (Dkt. No. 117). Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes

the following specific findings and conclusions. The Court determines that defendants are entitled

to judgment in their favor on plaintiffs’ claim one under the Eighth Amendment and on plaintiffs’

claim two under the Eighth Amendment and the Equal Protection Clause. The Court further

On November 14, 2017, the parties jointly filed a notice of commutation, confirming that the

Governor commuted Jason McGehee’s sentence from death to life without parole, thereby

rendering the claims as to Mr. McGehee moot (Dkt. Nos. 100; 170, Stipulations, ¶ 3).

Case 4:17-cv-00179-KGB Document 206 Filed 05/31/20 Page 2 of 106

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determines that plaintiffs are entitled to judgment in their favor, in part, and that defendants are

entitled to judgment in their favor, in part, on plaintiffs’ claims three and four under the First

Amendment and the right to counsel under 18 U.S.C. § 3599.

Procedural History

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

On March 27, 2017, plaintiffs initiated this case by filing a complaint and motion for preliminary

injunction (Dkt. Nos. 2, 3).2 In response to the complaint, defendants filed a motion to dismiss

and responded in opposition to the motion for preliminary injunction (Dkt. Nos. 26, 28). The

Court conducted a hearing on the motion for preliminary injunction at which plaintiffs and

defendants were represented by counsel and presented proof (Dkt. Nos. 34–36, 38–40, 46–52).

This Court entered an order granting, in part, and denying, in part, defendants’ motion to dismiss

plaintiffs’ initial complaint in this matter (Dkt. No. 53). The Court also entered a Preliminary

Injunction Order (Dkt. No. 54). The Eighth Circuit Court of Appeals issued an order vacating this

Court’s preliminary injunction, see McGehee v. Hutchinson, 854 F.3d 488, 490 (8th Cir. 2017)

(per curiam), from which a motion for stay of execution of sentence of death and petition for writ

of certorari was taken. The United States Supreme Court denied the stay of execution of sentences

of death and denied the petition for writ of certorari. See McGehee v. Hutchinson, 137 S. Ct. 1275

(2017).

While the appeal of the Preliminary Injunction Order to the Eighth Circuit was pending,

the parties jointly proposed an execution viewing policy (“Joint Execution Viewing Policy”) (Dkt.

Each of the named plaintiffs identified in the initial complaint filed a separate action in this

Court. On March 30, 2017, the Court entered an Order consolidating the pending cases into the

McGehee case and directed that all filings be made in the McGehee case going forward (Dkt. No.

8).

Case 4:17-cv-00179-KGB Document 206 Filed 05/31/20 Page 3 of 106

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Nos. 62, 63). Plaintiffs moved later to clarify the policy, and defendants opposed the motion (Dkt.

Nos. 73, 75). The Court denied plaintiffs’ motion to clarify the jointly agreed to viewing policy

(Dkt. No. 76).

The Court was available by telephone to all counsel during each of the four April 2017

executions that proceeded. For reasons not related to this litigation, the other executions set for

April 2017 did not proceed. On April 20, 2017, then-separate plaintiff Ledell Lee filed an

emergency motion for injunction, which defendants opposed (Dkt. Nos. 70, 71). The Court was

prepared to rule orally on Mr. Lee’s motion at 11:50 p.m., as his execution progressed. Mr. Lee

was pronounced dead at 11:56 p.m. on April 20, 2017. By written order entered the next day, the

Court denied Mr. Lee’s motion for reasons set out in the Order (Dkt. No. 72).

On April 24, 2017, then-separate plaintiffs Jack Jones and Marcel Williams3 were

executed. Mr. Jack Jones was executed first. After Mr. Jack Jones’ execution but prior to the

commencement of Mr. Marcel Williams’ execution, Mr. Marcel Williams filed an emergency

motion to stay his execution based on allegations arising from events that occurred during Mr.

Jack Jones’ execution. Plaintiff Marcel Williams’ Emergency Motion to Stay Unconstitutional

Execution, Williams v. Kelley, No. 5:17-CV-00103-KGB (E.D. Ark. Apr. 24, 2017), ECF No. 36.

This Court temporarily stayed Mr. Marcel Williams’ execution until defendants could respond in

opposition to the motion. Defendants opposed the motion. Opposition to Plaintiff Marcell

Mr. Marcel Williams filed in his own case an individual as-applied challenge under 42 U.S.C.

§ 1983 based on Eighth Amendment claims. See Williams v. Kelley, No. 5:17-CV-00103-KGB

(E.D. Ark. July 21, 2017). On April 21, 2017, the Court conducted a preliminary injunction

hearing with respect to these as-applied challenges and entered a written order denying the request

for preliminary injunctive relief, which the Eighth Circuit affirmed on April 24, 2017. See

Williams v. Kelley, 854 F.3d 998 (8th Cir. 2017). Mr. Marcel Williams filed a petition for writ of

certiorari in the Supreme Court, which was denied. See Williams v. Kelley, 137 S. Ct. 1284 (2017).

Several docket entries relevant to matters addressed in this Order appear in Mr. Marcel Williams’

individual case.

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Williams’ Emergency Motion to Stay Execution, Williams, No. 5:17-CV-00103-KGB, ECF No.

38. The Court conducted a hearing on the motion, denied the emergency motion, and lifted the

temporary stay of execution. Mr. Marcel Williams was executed that night.

On April 27, 2017, then-separate plaintiff Kenneth Williams was executed. After Mr.

Kenneth Williams’ execution, plaintiffs filed an emergency motion for relief order to preserve

evidence (Dkt. No. 78). Defendants opposed the motion (Dkt. No. 81). The Court conducted a

hearing and then issued a written Order granting plaintiffs’ motion (Dkt. Nos. 82, 83).

On June 21, 2018, plaintiffs filed an amended complaint that is the operative complaint in

this matter (Dkt. No. 117). Defendants filed an answer (Dkt. No. 121). Defendants also filed a

motion for summary judgment directed to certain counts in the amended complaint, which

plaintiffs opposed (Dkt. Nos. 144, 150). The Court granted, in part, and denied, in part, defendants’

motion for summary judgment with respect to certain claims prior to the bench trial (Dkt. No. 181).

Prior to trial, defendants filed a trial brief, to which plaintiffs responded (Dkt. Nos. 157,

166). Defendants submitted proposed findings of fact (Dkt. No. 169). The parties submitted

jointly stipulated facts (Dkt. No. 170). The Court conducted an eight-day bench trial (Dkt. Nos.

186–93). After the bench trial concluded, the parties filed post-trial briefing for the Court’s

consideration (Dkt. Nos. 198–200, 203–205).

II.

Findings Of Fact

The Court considers the evidence that was received with regard to the motion for

preliminary injunction and that would be admissible at the bench trial as a part of the trial record.

See Fed. R. Civ. P. 65(a)(2). Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure,

this evidence was not required to be repeated at trial for the Court to consider it, even though the

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Court did not advance the trial on the merits and consolidate it with the preliminary injunction

hearing.

Except when pertinent for the analysis set forth in this Order, the Court does not

repeat all of its findings of fact set forth in the Preliminary Injunction Order (Dkt. No. 54).

The Court adopts the parties’ pre-trial stipulations (Dkt. No. 170).

Parties

Plaintiffs, with the exception of Mr. McGehee, whose sentence was commuted

from death to life imprisonment by Arkansas Governor Asa Hutchinson, are death-sentenced

inmates currently incarcerated at the Varner/Varner Supermax Unit (“Varner Unit”) of the ADC,

in Lincoln County, Arkansas, which is in the Eastern District of Arkansas and under defendants’

supervision and control.

Defendants Governor Hutchinson and Director Kelley, who are sued in their

official capacity, are responsible for taking, and required by Arkansas law to take, certain actions

specific to setting, setting the logistical procedures for, conducting, and, if necessary, suspending

executions in Arkansas. See Ark. Const. art. 6, § 18; Ark. Code Ann. §§ 5-4-617, 16-90-502, 1690-506, 16-90-507.

Executions In Arkansas Generally

In 1983, the Arkansas General Assembly phased out electrocution as a means of

executing inmates and adopted lethal injection as the primary method of execution through the

Arkansas Method of Execution Act (“MEA”). See Ark. Code Ann. § 5-4-617. The current version

of the Arkansas MEA provides two options for execution by lethal injection: “(1) [a] barbiturate;

or (2) Midazolam, followed by vecuronium bromide, followed by potassium chloride.” Ark. Code

Ann. § 5-4-617(c).

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The State carried out four Midazolam executions in April 2017. Ledell Lee was

executed on April 20, 2017, Jack Jones and Marcel Williams were executed on April 24, 2017,

and Kenneth Williams was executed on April 27, 2017 (Dkt. No. 170, Stipulations, ¶ 2).

Prior to the 2017 Arkansas executions, the then-current version of the Arkansas

MEA took effect on April 6, 2015. The Court recited the history of legal challenges to the MEA

in its Preliminary Injunction Order (Dkt. No. 54, at 3–7).

Prior to the 2017 Arkansas executions, Director Kelley adopted and made public a

written document regarding lethal-injection protocol for executions using Midazolam (“the

Arkansas Midazolam Protocol”) (Dkt. No. 2-2, Ex. 1).4

10.

The Arkansas Midazolam Protocol became final on August 6, 2015. The protocol

calls for executions to be performed as follows: First, the prisoner will be injected with 500

milligrams (“mg”) Midazolam. At least five minutes after administration of the Midazolam has

begun, the ADC Deputy Director or the ADC Deputy Director’s Designee (“the Designee”) will

check the prisoner’s consciousness using “all necessary and medically-appropriate methods.” If

the Deputy Director or designee determines that the prisoner remains conscious, the prisoner will

be injected with another 500 mg Midazolam. Once the ADC Deputy Director or Designee

determines that the prisoner is unconscious, the prisoner will be injected with 100 mg vecuronium

bromide followed by 240 milliequivalents (“mEq”) potassium chloride. The parties stipulate to

admit the Arkansas Midazolam Protocol as a trial exhibit (Dkt. No. 170, Stipulations, ¶ 1).

11.

The parties do not dispute that vecuronium bromide is a paralytic intended to

paralyze the condemned individual and that potassium chloride is intended to stop the condemned

In certain filings and during the proceedings in this case, counsel and the parties have referred

to the Arkansas Midazolam Protocol as “Attachment C.”

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19a

individual’s heart and to cause death. The parties in this litigation dispute the role that Midazolam

plays in the Arkansas Midazolam Protocol.

12.

General Scientific And Medical Evidence Relevant To Executions

When discussing relevant medical concepts, the Court understands that there is a

distinction between awareness, which is the ability to perceive an event, and amnesia, which is the

inability to remember or recall later the event (Dr. Van Norman).5

13.

There is general medical consensus that Midazolam is effective in an overwhelming

majority of individuals, but not all individuals, at rendering individuals unable to remember or

recall later (Dr. Van Norman; Dr. Antognini; Dr. Buffington).

14.

Memory and pain are not the same thing; it is possible to experience pain but not

to remember it (Dr. Antognini).

15.

Midazolam has an anxiolytic effect; in other words, it reduces or inhibits anxiety

(Dr. Buffington).

16.

The science with respect to the study of Midazolam and its effects continues to

evolve (Dr. Van Norman; Dr. Antognini).

17.

According to plaintiffs’ expert Gail Van Norman, M.D., who is a professor of

anesthesia and pain medicine at the University of Washington, there is general medical consensus

that Midazolam has a “ceiling effect,” which is the phenomenon in which a drug reaches a

maximum effect, so that increasing the drug dosage does not increase its effectiveness (Dr. Van

Norman). At the preliminary injunction hearing, defendants’ expert Joseph Antognini, M.D.,

admitted to testifying under oath previously that, at a clinical dose, he would expect to see what

The Court cites generally to the witness or witnesses upon whose testimony the Court

relies in making certain factual findings; the final transcript of the bench trial is not yet available.

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20a

he termed, “the knee in the curve” (i.e., the ceiling effect), and conceded that the academic

literature supports a ceiling effect (Dkt. No. 54, at 62). However, at the bench trial, defendants’

experts Daniel Buffington, Ph.D., who is a clinical pharmacologist and toxicologist and also a

licensed pharmacist, and Charles Kokes, M.D., the Chief Medical Examiner of the Arkansas State

Crime Laboratory, do not concede this (Dr. Buffington; Dr. Kokes).

18.

Even if Midazolam has a ceiling effect, there are no human studies of Midazolam

that involve doses likely necessary to test a ceiling effect or that involve doses comparable to the

dose required by the Arkansas Midazolam Protocol (Dr. Stevens; Dr. Buffington).

19.

It is unclear whether any ethics committee would approve studying in humans a

dose of Midazolam large enough to examine a true ceiling effect (Dr. Antognini).

20.

There is no general medical consensus on the dose of Midazolam at which a ceiling

effect is exhibited (Dr. Van Norman; Dr. Stevens).

21.

The Food and Drug Administration (“FDA”)-approved dose of Midazolam is 0.6

mg per kilogram (“kg”), which equates to 60 mg per 220 pounds. The recommendations on the

FDA-approved package insert for Midazolam vary, depending on factors such as whether the

patient is premedicated and the age of the patient (Dr. Antognini).

22.

According to Dr. Antognini, a typical induction dose of Midazolam in a clinical

setting is 0.2 to 0.3 mg per kg, which he anticipates would last 15 to 20 minutes and maybe more

(Dr. Antognini).

23.

Scientific studies report the use of Midazolam alone prior to performing

colonoscopies, tracheal intubation, bronchoscopy, urological procedures, and dental procedures

(Dr. Antognini).

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24.

21a

The generally accepted use of Midazolam in a clinical setting has evolved over time

(Dr. Van Norman; Dr. Antognini). Currently, the generally accepted use of Midazolam is as a preoperative sedative agent in the pre-operative holding area. In the past, Dr. Van Norman trained in

cardiac anesthesia beginning in the late 1980s and early 1990s by using a combination anesthetic

that included a high-dose benzodiazepine in combination with a high-dose narcotic, plus a muscle

paralytic agent. At some point in her practice, Midazolam was the high-dose benzodiazepine used.

At some point in her practice, the use of Midazolam in this manner was discontinued (Dr. Van

Norman).

25.

In this protocol under which Dr. Van Norman trained, according to Dr. Van

Norman, a high-dose narcotic was used because Midazolam has no clinically significant analgesic

(i.e., pain relief) properties, and the narcotic was administered for pain relief (Dr. Van Norman).

26.

Dr. Antognini agrees that Midazolam is not a potent analgesic (Dr. Antognini).

27.

According to Dr. Van Norman, she does not use Midazolam as the solo drug to

produce general anesthesia for a surgical procedure and does not know of any reputable

anesthesiologist who would do so today (Dr. Van Norman).

28.

Dr. Antognini maintains that Midazolam can be used to induce general anesthesia

but that he would not want to use it for a prolonged procedure (Dr. Antognini).

29.

The American Society of Anesthesiologists makes a clinical recommendation that

benzodiazepines, such as Midazolam and diazepam, not be used for general anesthesia (Dr.

Antognini).

30.

Dr. Antognini agrees that there are currently available better drugs than

benzodiazepines to induce general anesthesia, but he maintains that does not mean that

benzodiazepines could not be used in that way (Dr. Antognini).

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31.

22a

Dr. Van Norman described studies that, by using the isolated forearm technique,

have demonstrated that, even if individuals are prevented by benzodiazepines and Midazolam in

general from remembering things, these types of drugs may not necessarily be good at preventing

people from being aware of and experiencing them in the moment (Dr. Van Norman).

32.

According to Dr. Van Norman, a lack of movement by plaintiffs during the

Arkansas Midazolam Protocol would not necessarily indicate a lack of awareness. Midazolam has

the potential to reduce responsiveness, and any movement may be masked by the introduction of

the paralytic agent (Dr. Van Norman).

33.

There is general medical consensus that, in medical practice, healthcare providers

titrate drugs like Midazolam based on the healthcare providers’ evaluation of the level of

consciousness in patients and that those consciousness checks rely on clinical observations of how

patients are responding, not on any machines or monitors that can be applied to patients because

no machines or monitors exist that reliably provide this information (Dr. Van Norman; Dr.

Antognini).

34.

Researchers and clinicians developed a way to measure the depth of general

anesthesia using the technique of electroencephalograms (“EEG”). The EEG recordings are

processed on a computer with a method called bispectral analysis (“BIS”). BIS gives a single

number on a scale from 100, which indicates completely awake and alert, to 0, which indicates

coma and EEG burst suppression (Dkt. No. 2-2, Exhibit 16, at 32).

35.

The BIS, although helpful, is not a perfect monitor or 100% accurate in regard to

determining consciousness or unconsciousness during surgery (Dr. Antognini).

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36.

23a

The EEG, although helpful, does not necessarily relay all of the information an

anesthesiologist would need to know about how a patient is responding clinically to an anesthetic

drug (Dr. Antognini).

37.

Dr. Van Norman described for the Court a scientific study involving halothane and

Midazolam in which researchers examined “PRST response,” which according to Dr. Van Norman

looks at blood pressure, heart rate, and whether the person is sweating or tearing as examples of

consciousness because the subjects of the study were paralyzed and unable to respond in other

ways (Dr. Van Norman; Pls.’s Ex. 31).

38.

Typically, if an individual is awake and experiencing pain, it is expected that his

heart rate and blood pressure will be higher (Dr. Antognini).

39.

Clinical techniques that are used in operating rooms across the nation to assess

intraoperative consciousness include checking for purposeful movement, response to commands,

open eyes, eyelash reflex, pupillary responses, perspiration, and tearing (Dr. Van Norman).

40.

Although Dr. Van Norman described the Isolated Forearm Technique as a reliable

way to assess awareness under anesthesia, even she concedes that she has never used the technique

in her practice and that it is not the standard of care in the United States for monitoring awareness

during surgical procedures (Dr. Van Norman).

41.

In medical practice, patients are given a paralytic drug prior to some procedures to

prevent the patient from moving and particularly when the surgeon needs deep muscle relaxation

for the purpose of technically performing the surgery (Dr. Van Norman).

42.

In medical practice, patients are strapped down to the operating table so that the

patient does not move or fall, especially when the operating table is tilted mechanically for the

procedure (Dr. Van Norman).

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43.

24a

The American Society of Anesthesiologists, an educational, research, and scientific

association of physicians organized to raise the standards of medical practice of anesthesiology as

well as to improve patient care, produces a Continuum of Depth of Sedation Chart. According to

the Chart, to be in a state of deep sedation and analgesia, the individual must purposely respond

following repeated or painful stimulation, with a notation that withdrawal from painful stimulation

is not considered a purposeful response. To be in a state of general anesthesia, according to the

Chart, the individual is unarousable even with painful stimulus (Dr. Van Norman; Defs.’ Ex. 82).

44.

According to the FDA-approved package insert, known side effects of Midazolam

include involuntary movements and muscle tremors (Dr. Antognini; Dr. Buffington).

45.

Midazolam can in some cases, but not all, cause an individual to stop breathing

from either the “central” mechanism, meaning the drive to breathe just stops, or it can cause airway

obstruction, resulting from the tongue falling back, the airway muscles collapsing in a way, and

the individual being unable to maintain his or her airway (Dr. Antognini; Dr. Buffington).

46.

It is not uncommon with benzodiazepines like Midazolam for individuals to

experience partial airway obstruction, which can lead to feelings of air hunger and suffocation and

can often arouse an individual out of sedation to breathe a little harder or to make harder respiratory

efforts to get air in (Dr. Van Norman).

47.

It is generally understood that upper airway obstruction is not an indicator or denier

of consciousness. An individual can be obstructed and be fully awake or be obstructed and fully

asleep (Dr. Van Norman).

48.

If an individual is aware of the airway obstruction, it is anticipated that the

individual will be aroused and breathe on his or her own to maintain the airway but that does not

occur when an individual has achieved a certain level of anesthesis or sedation (Dr. Antognini).

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49.

25a

Midazolam can cause cerebral hypoxia, which means an individual can get

respiratory depression and then can stop breathing due to airway obstruction. Cerebral hypoxia,

which results from a lack of oxygen in the brain, can lead to unconsciousness (Dr. Antognini).

50.

An individual unconscious from hypoxia would not feel any type of stimulus or

perceive the stimulus (Dr. Antognini).

51.

Coughing is a reflex response; it does not indicate consciousness or awareness (Dr.

Antognini; Dr. Buffington).

52.

It is generally accepted that it would be very difficult to kill an otherwise healthy

individual with a benzodiazepine like Midazolam alone (Dr. Van Norman; Dr. Stevens).

53.

Dr. Buffington, however, believes that this discussion about the potentially lethal

effects of benzodiazepines alone is more complicated, given that Midazolam, according to the

package insert from the FDA, indicates that airway obstruction, apnea, and cardiopulmonary arrest

can occur and result in central nervous system depression (Dr. Buffington).

54.

By examining the Arkansas Midazolam Protocol, Dr. Van Norman is unable to say

at what point any individual would experience extreme suffering and, instead, claims that that will

vary from person to person (Dr. Van Norman).

55.

Dr. Van Norman conceded that she has no direct scientific data to support the

proposition that any inmate experienced severe pain and suffering during an execution (Dr. Van

Norman).

56.

Pharmacology Of Midazolam

Craig Stevens, Ph.D., has his doctorate in pharmacology, is a professor of

pharmacology, and testified on behalf of plaintiffs (Dr. Stevens).

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57.

26a

Dr. Stevens testified as to how the drugs in the Arkansas Midazolam Protocol work

mechanically (Dr. Stevens).

58.

Dr. Stevens does not believe that Midazolam produces general anesthesia, which

he defines as unconscious, unaware, and, most importantly, insensate to pain ready for surgical

cuts (Dr. Stevens).

59.

Dr. Buffington opines that a 500-mg dose of Midazolam, as outlined in the

Arkansas Midazolam Protocol, is sufficient and appropriate based on its pharmacologic properties

to render an inmate to a sufficient degree of sedation, consistent with industry standards to be

insensate or unaware of pain (Dr. Buffington).

60.

Dr. Buffington has observed Midazolam used as the sole anesthetic agent for

selective painful medical procedures that are short in duration, such as interventions or surgeries

like colonoscopies, resetting bone, bone fractures, inner ear surgery, laser in-situ keratomileusis

(“LASIK”) eye surgery, Mohs surgery in dermatology, bone grafts, tonsillectomies, and

vasectomies (Dr. Buffington).

61.

According to Dr. Buffington, when Midazolam has been given to an individual, due

to the FDA reported side effects of Midazolam, reported physical movement or sound is not

indicative of pain (Dr. Buffington).

62.

Dr. Stevens opined that Midazolam and benzodiazepines have a ceiling effect

because the mechanism of action requires available gamma-Aminobutyric acid (“GABA”) in the

human body for the benzodiazepine to bind to and to produce the drug’s intended effect. Dr.

Stevens maintains that it is generally accepted that there is a finite amount of GABA in the human

body. Thus, injecting more Midazolam, with no available GABA, will not have the intended

effect, according to Dr. Stevens (Dr. Stevens).

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63.

27a

Dr. Buffington maintains that individuals do not run out of or deplete their supply

of GABA; the body constantly reproduces it (Dr. Buffington).

64.

Dr. Buffington further maintains that, if the FDA dose and package insert recognize

the ability of Midazolam to induce anesthesia, he does not find relevant any discussion of a ceiling

dose or effect. At the lower dose, the drug had its effect, according to Dr. Buffington (Dr.

Buffington).

65.

Dr. Stevens also addressed the mechanisms of action for the other two drugs in the

Arkansas Midazolam Protocol, vecuronium bromine and potassium chloride, as well as for

barbiturates, pentobarbital, secobarbital, and the potent synthetic opioid fentanyl (Dr. Stevens).

66.

Execution Eyewitnesses’ Testimony

The Court heard testimony from numerous witnesses to the most recent Arkansas

executions and to certain past executions in other states, describing their observations; this

testimony was offered by both plaintiffs and defendants.

67.

With respect to executions outside of Arkansas, at the bench trial, the Court

received testimony from Lisa Lagos, who works in the Federal Defender Capital Habeas Unit in

the Southern District of Ohio and who witnessed Ronald Phillips’ execution in Ohio in July 2017,

under the then-current Ohio lethal-injection protocol; Santino Coleman, who, while working as a

Federal Defender in the Middle District of Alabama, witnessed Torrey McNabb’s execution in

Alabama in October 2017, under the then-current Alabama lethal-injection protocol; and Steven

Hale, who is a reporter in Tennessee and who witnessed Billy Ray Irick’s execution in August

2018, under the then-current Tennessee lethal-injection protocol.

Witness Will Jones

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68.

28a

Will Jones, who is a lawyer in the Special Investigation Division of the Arkansas

Attorney General’s Office, testified about what he witnessed during Mr. Lee, Mr. Jack Jones, and

Mr. Marcel Williams’ executions in April 2017 under the Arkansas Midazolam Protocol (Will

Jones).

69.

He observed the Designee touch Mr. Lee’s eyeball, as well as engage in other

actions, such as squeezing Mr. Lee’s hands, checking his sternum, and squeezing his trapezius, as

part of the consciousness check, and Mr. Will Jones observed no reaction from Mr. Lee (Will

Jones).

70.

Mr. Will Jones testified to the same observations during Mr. Jack Jones’ execution,

including the touching of his eyeball with no visible reaction from Mr. Jack Jones (Will Jones).

71.

Mr. Will Jones also testified to observing a consciousness check during Mr. Marcel

Williams’ execution with no movement by Mr. Marcel Williams following it (Will Jones).

72.

Mr. Will Jones admitted to having no formal training in what a consciousness check

should look like and based his testimony on his own understanding and observations (Will Jones).

73.

Further, Mr. Will Jones explained that he was not sure if the sternum part of the

check was to check consciousness near the start of the execution or to check breathing and for

signs of life at the end of the execution (Will Jones).

74.

Witness Kim Hammer

Kim Hammer is an Arkansas State Senator in the first year of his first term. Prior

to serving as an Arkansas State Senator, Senator Hammer served in the Arkansas House of

Representatives for eight years (Hammer).

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75.

29a

Senator Hammer works as a church pastor and part-time chaplain for hospice. In

that capacity, for approximately 24 years, Senator Hammer has witnessed individuals at the end of

life (Hammer).

76.

Senator Hammer witnessed the executions of Mr. Jack Jones and Mr. Marcel

Williams in April 2017 under the Arkansas Midazolam Protocol. He testified to observing similar

consciousness checks during both executions and recalled seeing no movement from either Mr.

Jack Jones or Mr. Marcel Williams after that time (Hammer).

77.

Senator Hammer was unaware that the second drug in the Arkansas Midazolam

Protocol is a paralytic and that Mr. Jack Jones and Mr. Marcel Williams were administered a

paralytic as a part of their executions (Hammer).

78.

Senator Hammer did not testify to sternum rubs or trapezius pinches being

performed during either of the executions he witnessed because he did not recall whether they

were performed or not; he recalled the palm check and eyelid check (Hammer).

79.

Witness Phyllis Hendrix

Phyllis Hendrix, prior to her retirement, served as Chief Deputy of the White

County, Arkansas, Prosecutor’s Office (Hendrix).

80.

She witnessed Mr. Marcel Williams and Mr. Jack Jones’ execution; she was not

involved in investigating or prosecuting either individual at any time (Hendrix).

81.

She described a consciousness check that involved the Designee listening to Mr.

Marcel Williams’ breathing, touching his face, and checking his eyes by looking into them,

although she does not recall the Designee physically touching Mr. Marcel Williams’ eyes

(Hendrix).

82.

She observed no response from Mr. Marcel Williams to these checks (Hendrix).

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83.

30a

She further observed that Mr. Marcel Williams was at peace and did not appear to

suffer any pain throughout the entire process (Hendrix).

84.

She offered no direct testimony about consciousness checks during Mr. Jack Jones’

execution and offered no testimony about sternum rubs or trapezius pinches during consciousness

checks (Hendrix).

85.

Ms. Hendrix was unaware that the second drug in the Arkansas Midazolam Protocol

is a paralytic and that Mr. Jack Jones and Mr. Marcel Williams were administered a paralytic as a

part of their executions (Hendrix).

86.

Witness Jacob Rosenberg

Jacob Rosenberg, who was a local reporter in April 2017, witnessed and described

Mr. Marcel Williams’ execution under the Arkansas Midazolam Protocol (Rosenberg).

87.

Based on his observations of Mr. Marcel Williams during the first few minutes of

the execution and what he expected to occur during the execution, he believed that a second dose

of Midazolam would have been administered to Mr. Marcel Williams, but Mr. Rosenberg

admittedly has no personal knowledge of whether a second dose was given (Rosenberg).

88.

Witness Jami Giani

Jami Giani, who was a lawyer with the Federal Defender Capital Habeas Unit in

Little Rock, Arkansas, at the time, witnessed and described Mr. Marcel Williams’ execution under

the Arkansas Midazolam Protocol (Giani).

89.

According to Ms. Giani, Mr. Marcel Williams declined to make a final statement,

and his execution commenced at 10:16 p.m. (Giani).

90.

Ms. Giani, who questioned Director Kelley and heard her prior testimony at the

preliminary injunction hearing before this Court about what a consciousness check should involve,

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31a

questioned whether one was performed during Mr. Marcel Williams’ execution, after having

observed the execution (Giani).

91.

Ms. Giani saw the Designee touch Mr. Marcel Williams’ neck, arms, and hands

with what appeared to be light touches at approximately 10:19 and 10:20 p.m.; saw him lean down

to Mr. Marcel Williams’ ear and speak into it with what appeared to be soft tones; and saw him

touch Mr. Marcel Williams’ eyelashes. She recalled the Designee on the right side of Mr. Marcel

Williams, on the side with the intravenous (“IV”) lines (Giani).

92.

She testified to observing slight head movements from Mr. Marcel Williams from

time to time (Giani).

93.

Ms. Giani recalled the Designee placing a pulse oximeter on Mr. Marcel Williams’

finger at 10:21 p.m. and removing it at 10:22 p.m. during the execution (Giani).

94.

Ms. Giani heard Mr. Marcel Williams cough at 10:25 p.m. and saw the Designee

touch his eyelashes, hand, and arm again with what appeared to her to be soft touches (Giani).

95.

Then, at 10:28 p.m., Ms. Giani saw Mr. Marcel Williams’ eye open and observed

his iris and pupil actually moving (Giani).

96.

Ms. Giani still saw eye movement at 10:29 p.m.; saw what she believed to be the

Designee touching Mr. Marcel Williams’ eyelashes again at 10:31 p.m., with Mr. Marcel

Williams’ eye still open; and then saw the Designee pull out a stethoscope to check Mr. Marcel

Williams and ask to call the coroner (Giani).

97.

Ms. Giani cannot testify if the cough, slight head movements, and eye movements

she saw were voluntary or involuntary (Giani).

Witness Kelly Kissel

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98.

32a

At the time of the April 2017 executions, Kelly Kissel was news editor and

supervisory correspondent at the Associated Press in Little Rock, Arkansas (Kissel).

99.

From August 1994 to April 2017, Mr. Kissel witnessed 10 executions in Arkansas

and Oklahoma, two of which were conducted under the Arkansas Midazolam Protocol: (1) Mr.

Marcel Williams and (2) Mr. Kenneth Williams (Kissel).

100.

During the April 2017 executions, Mr. Kissel did not see the medical technicians

place the IV lines, and it was not announced when each of the execution drugs had been injected

and were starting to flow (Kissel).

101.

In Arkansas, there is no audio from the execution chamber to the witness room after

the execution commences (Kissel).

102.

These practices with respect to placement of IV lines, administration of execution

drugs, and audio from the execution chamber were consistent with other Arkansas executions Mr.

Kissel witnessed in the past (Kissel).

103.

Mr. Kissel, who has lost a portion of his hearing and consequently developed the

ability to read lips, testified that, after a consciousness check, the individual who conducted the

check mouthed, “I don’t know.” Mr. Kissel is unaware to what the individual was referring or

what question prompted this response (Kissel).

104.

During Mr. Marcel Williams’ execution, Mr. Kissel observed that Mr. Marcel

Williams appeared to have more labored breathing for a period of time as compared to what Mr.

Kissel remembered from past executions that did not involve Midazolam (Kissel).

105.

During Mr. Kenneth Williams’ execution, Mr. Kissel observed heavy breathing

from Mr. Kenneth Williams; then, three to five minutes after the execution commenced, the upper

portion of Mr. Kenneth Williams’ body lurched forward approximately 15 times in quick

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33a

succession, hitting the gurney and the leather straps, banging very quickly; and then the upper

portion of his body lurched forward another five additional times in slower movements (Kissel).

106.

Although there was no audio from the execution chamber to the witness room after

the execution commenced, Mr. Kissel heard the thrashing noise of Mr. Kenneth Williams’ upper

body and heard a groan or moan (Kissel).

107.

Mr. Kissel did not interpret the groan or moan as evincing pain; it did not sound

painful (Kissel).

108.

Mr. Kissel observed consciousness checks. Based on his testimony, those did not

draw his particular notice, and he was not able to offer detailed testimony about the checks (Kissel).

109.

Witness Trent Garner

Trent Garner, an Arkansas State Senator since 2016, testified as to what he

witnessed during Mr. Kenneth Williams’ execution under the Arkansas Midazolam Protocol

(Garner).

110.

Senator Garner is a combat veteran, and he was a gunshot victim during a violent

crime (Garner).

111.

Senator Garner testified that, approximately two to three minutes after the curtain

to the execution chamber opened, Mr. Kenneth Williams lost consciousness in that his already

slurred speech stopped and there was no movement, no eye movement, no speech, and no action

(Garner).

112.

Senator Garner testified that, for approximately 10 to 15 seconds, Mr. Kenneth

Williams appeared to have involuntary muscle spasms during which his chest rose two to three

inches a few times, had more than a pronounced heavy breathing for approximately 10 to 15

seconds, but expressed no pain or grimacing on his face, made no noise to indicate pain, did not

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34a

reach his arms up to the restraints, and did not move his legs in a way to fight the restraints

(Garner).

113.

After that, Senator Garner observed Mr. Kenneth Williams breathe heavily with

almost a snore for approximately two to three minutes with no other kind of movement (Garner).

114.

Then, Senator Garner observed the consciousness checks but did not recall any of

the precise movements made by the Designee. He described the movements of the Designee as

clinical and testified that he observed no response from Mr. Kenneth Williams (Garner).

115.

Witness Tammy Harrelson

Tammy Harrelson, who worked as Chief Counsel for the Arkansas Office of

Medicaid Inspector General at the time she testified, described what she observed as an execution

witness during Mr. Kenneth Williams’ execution under the Arkansas Midazolam Protocol

(Harrelson).

116.

At the time of the April 2017 executions, Ms. Harrelson worked for the Arkansas

Attorney General’s Office in the Medicaid Fraud Control Unit (Harreslon).

117.

At some point earlier in her career, Ms. Harrelson worked as a prosecutor in Pulaski

County, Arkansas (Harrelson).

118.

Ms. Harrelson had no investigatory or prosecutorial responsibility for any cases

against Mr. Kenneth Williams (Harrelson).

119.

She did have prosecutorial responsibility for the capital conviction of Mr. Marcel

Williams and testified against clemency at his clemency hearing (Harrelson).

120.

She also had prosecutorial responsibility for prior non-capital convictions of Mr.

Lee (Harrelson).

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121.

35a

In addition, while she has no formal medical training, Ms. Harrelson worked

previously as a plaintiffs’ attorney, suing nursing homes, and, in that capacity, reviewed medical

records and documents to assess the condition of her clients (Harrelson).

122.

Ms. Harrelson testified that, as a prosecutor, she was involved in putting someone

on death row, so it was important to her that the punishment be done clinically, professionally, and

with as little pain as possible (Harrelson).

123.

Further, given her prior experience as a plaintiffs’ attorney, she believed that she

knew what to look for during the execution to observe pain (Harrelson).

124.

As a result, she was really looking for signs and symptoms of pain during the April

2017 executions but saw none (Harrelson).

125.

During Mr. Kenneth Williams’ execution, Ms. Harrelson observed him make his

final statement, speak in religious tongues, and then go silent, just breathing and appearing

unconscious (Harrelson).

126.

After approximately two or three minutes from the start of the execution, Ms.

Harrelson saw Mr. Kenneth Williams’ upper body begin to spasm. This lasted between 10 and

15 seconds. Then, Mr. Kenneth Williams continued to breathe heavily but did not spasm again

(Harreslon).

127.

After that, she observed a consciousness check, specifically recalling someone

sticking a finger into Mr. Kenneth Williams’ eye but not recalling other steps taken. Mr. Kenneth

Williams did not respond to that (Harrelson).

128.

Then, she observed Mr. Kenneth Williams’ breathing slow and then stop. After

that, he was pronounced dead (Harrelson).

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129.

36a

The movements Ms. Harrelson described as involuntary muscle spasms did not

involve Mr. Kenneth Williams’ whole body, so she did not believe them to be the result of a grand

mal seizure. The movements were rhythmic and did not appear voluntary or like Mr. Kenneth

Williams was trying to move (Harrelson).

130.

During the time Mr. Kenneth Williams was spasming, Ms. Harrelson did not

observe any facial grimacing, clenching of fists, or any signs or symptoms that she was taught to

look for when someone is unconscious and you are looking for signs and symptoms of pain

(Harrelson).

131.

According to Ms. Harrelson, Mr. Kenneth Williams did not respond to the

consciousness checks (Harrelson).

132.

Witness Eric Motylinski

Eric Motylinski, a lawyer with the Federal Defender Capital Habeas Unit in

Philadelphia, Pennsylvania, was appointed 16 days prior to Mr. Kenneth Williams’ scheduled

execution to represent him.

133.

Mr. Motylinski testified that, a few days prior to his scheduled execution, Mr.

Kenneth Williams agreed to the placement of stents due to a concern with finding a suitable vein

for purposes of the execution and that the procedure to place the stents took almost an hour. Mr.

Kenneth Williams suffered from sickle cell anemia, which can sometimes make it difficult to find

a vein (Motylinski).

134.

Mr. Motylinski was present during Mr. Kenneth Williams’ execution and testified

about the procedures of the Joint Execution Viewing Policy that were followed (Motylinski).

135.

Mr. Motylinski testified that, after it was announced that the execution would

commence and audio to the execution chamber was turned off, he saw Mr. Kenneth Williams’

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37a

chest rise up and down, his head move back and forth, his jaw clench, and his cheek muscles move.

He observed this for a minute or less (Motylinksi).

136.

Then, about a minute later, he described Mr. Kenneth Williams moving his head,

heaving, choking, coughing, and moaning. Mr. Motylinksi said it appeared that Mr. Kenneth

Williams began to convulse up against the straps repeatedly and rhythmically, forcefully hitting

the straps. This occurred for approximately one minute (Motylinski).

137.

Mr. Motylinski then observed labored breathing from Mr. Kenneth Williams after

these movements stopped (Motylinski).

138.

Mr. Motylinski grew concerned; conferred with the other lawyer-witness present,

Cassandra Belter; and stepped outside of the witness room to make a phone call regarding these

events. He was out of the witness room from 10:57 until approximately 11:01 p.m. (Motylinski).

139.

He returned to the witness room after making the phone call, observed what he

believed to be a consciousness check, and then witnessed Mr. Kenneth Williams be pronounced

dead (Motylinski).

10.

140.

Witness Cassandra Belter

Ms. Belter, also a lawyer, works as an investigator with the Federal Defender Office

in the Capital Habeas Unit in Philadelphia, Pennsylvania. She, along with Mr. Motylinski,

represented Mr. Kenneth Williams at the time of his execution (Belter).

141.

She witnessed Mr. Kenneth Williams’ execution. She heard his last statement at

around 10:51 p.m. (Belter).

142.

The execution then commenced at 10:53 p.m. (Belter).

143.

At that time, Ms. Belter saw Mr. Kenneth Williams’ eyes and mouth close and his

raised thumb drop. There was no movement (Belter).

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144.

38a

Then, later that same minute, Ms. Belter saw Mr. Kenneth Williams’ head begin to

bob or rock forward and backward, and then his chest began to rise basically at the same beat as

his head. These movements appeared to be syncopated and as fast as the beat of a heart (Belter).

145.

Through the next minute, Ms. Belter observed that the movements grew stronger

and more violent, and Mr. Kenneth Williams appeared to be convulsing and hitting the restraints.

Ms. Belter has observed convulsions before; she did not recall whether Mr. Kenneth Williams’

head was restrained (Belter).

146.

At 10:55 p.m., according to Ms. Belter, Mr. Kenneth Williams groaned in pain. His

breathing was audible, and he gasped as it grew stronger. Then, it sounded like he was choking

(Belter).

147.

The noise was loud, unpleasant to hear, and in conjunction with his movements,

which is why Ms. Belter used the term “pain” (Belter).

148.

At approximately 10:56 or 10:57 p.m., Mr. Motylinski left the witness room to

make a call, and Ms. Belter stayed to witness the execution (Belter).

149.

She said that, when Mr. Motylinksi left the room, Mr. Kenneth Williams was still

convulsing and gasping. Then, Mr. Kenneth Williams’ chest movements started to slow, but his

head continued to bob (Belter).

150.

At approximately 10:58 p.m., it appeared to Ms. Belter that a consciousness check

started, with men in the room interacting with Mr. Kenenth Williams by touching his eye (Belter).

151.

Mr. Kenneth Williams’ head continued to move, and his mouth opened, according

to Ms. Belter (Belter).

152.

The pace of these movements changed over time (Belter).

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153.

39a

Then, the same man who had been interacting with Mr. Kenneth Williams moved

to the left of Mr. Kenneth Williams and began manipulating or pushing on his shoulder, at which

point, apparently in response, Mr. Kenneth Williams groaned in pain, according to Ms. Belter

(Belter).

154.

This was the second time that Mr. Kenneth Williams made a sound that indicated

pain to Ms. Belter (Belter).

155.

Mr. Kenneth Williams’ head and chest continued to move until approximately

10:59 p.m., when movement stopped, according to Ms. Belter (Belter).

156.

At around 11:01 p.m., Mr. Motylinski returned to the room. It appeared to Ms.

Belter that another consciousness check was performed, and Mr. Kenneth Williams was

pronounced dead (Belter).

157.

Cummins Unit Warden William Straughn

William Straughn, Warden of the Cummins Unit of the ADC from 2015 through

the date he testified in this matter, described his involvement in executions as an employee of the

ADC since 1982 (Warden Straughn).

158.

The execution chamber is, and has always been during Warden Straughn’s

employment, at the Cummins Unit.

He has participated in various ways throughout his

employment in preparation for and the carrying out of executions (Warden Straughn).

159.

Director Kelley conferred with Warden Straughn before the April 2017 executions

were set. Giving due consideration to the preparation time necessary and the stress and demands

placed on ADC staff, Warden Straughn suggested that the executions be scheduled as they were,

two executions per night with a few nights in between the scheduled executions (Warden

Straughn).

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160.

40a

According to Warden Straughn, he proceeded as required by ADC policy in

preparing ADC staff to carry out the executions in April 2017 (Warden Straughn).

161.

Warden Straughn assembled the necessary staff to carry out the duties and

responsibilities for each execution. Staff were not required to participate, but no staff member

opted out of participation. Warden Straughn met with every staff member to let them know what

to expect (Warden Straughn).

162.

Staff practice for executions, going through the entire process to ensure staff are

familiar with it and so that the process can go as smoothly as possible (Warden Straughn).

163.

Condemned inmates are not involved in these practices (Warden Straughn).

164.

Warden Straughn obtains information on the physical characteristics of each

condemned inmate and, if necessary, plans and prepares staff to address those characteristics

during the process. For example, Mr. Marcel Williams was a very large man, while one of Mr.

Jack Jones’ legs had been amputated (Warden Straughn).

165.

Condemned inmates are not always housed in the Cummins Unit. As a result, prior

to the April 2017 executions, it was necessary to transfer the condemned inmates to the Cummins

Unit (Warden Straughn).

166.

During and immediately after the transfer, Warden Straughn met with each

condemned inmate and explained what would happen, who would be responsible for certain duties,

and who to contact with questions. Warden Straughn’s goal was to make the process as peaceful

as possible for the condemned inmate and staff; he believed that knowing what was going to

happen in the days and hours leading up to the execution aided in that. After the condemned

inmate arrived at the Cummins Unit, each day before he left for the day, Warden Straughn met

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41a

with the condemned inmate to check on how the day went; sometimes he met with condemned

inmates multiple times during the day (Warden Straughn).

167.

Warden Straughn also explained to the condemned inmate step-by-step what would

happen when staff on the restraint team came to take him from his cell at the Cummins Unit to the

execution room, and Warden Straughn was present during that entire process when it actually

occurred (Warden Straughn).

168.

Warden Straughn was present when the IV team member installed the IVs for all

but Mr. Marcel Williams, but he did not install the IVs himself (Warden Straughn).

169.

The IV team had difficulty installing the IVs for Mr. Marcel Williams and requested

assistance. During that time, Director Kelley excused everyone from the execution room while

Mr. Marcel Williams’ IVs were placed. Warden Straughn returned to the execution room after

Mr. Marcel Williams’ IVs were placed (Warden Straughn).

170.

Warden Straughn was in the execution room during Mr. Lee, Mr. Jack Jones, Mr.

Marcel Williams, and Mr. Kenneth Williams’ executions. Warden Straughn opened the curtain to

the execution room at the start. After each condemned inmate was afforded time to make a

statement, Warden Straughn announced when each execution commenced, which was the signal

to proceed with the chemicals (Warden Straughn).

171.

Warden Straughn testified that, for Mr. Lee, Mr. Jack Jones, and Mr. Marcel

Williams, he observed a consciousness check that included a rubbing of the chest or sternal rub,

someone speaking to the condemned inmate, and someone checking his eye area. Warden

Straughn saw no reaction from any of the condemned inmates (Warden Straughn).

172.

A tongue depressor also was used with Mr. Jack Jones to check him during the

execution (Warden Straughn).

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173.

42a

For Mr. Marcel Williams, one of his hand restraints was left loose due to the fact

that an IV was placed in his hand, according to Warden Straughn (Warden Straughn).

174.

For Mr. Kenneth Williams, Warden Straughn was present, Mr. Kenneth Williams

made his statement, and the execution started while he was still talking. He quit midsentence.

Between the commencement of the execution and the consciousness check that Warden Straughn

observed, he also observed Mr. Kenneth Williams’ chest area, upper abdomen area, raising and

lowering like someone was breathing very heavily. He recalled hearing no sound during that time.

He recalled no facial or expression changes on Mr. Kenneth Williams, and he observed no

movements of Mr. Kenneth Williams’ during that time (Warden Straughn).

175.

After the consciousness check of Mr. Kenneth Williams and until he was declared

deceased, Warden Straughn observed no movement or reaction from him (Warden Straughn).

176.

Logs are kept for each execution; Warden Straughn does not take notes himself

during the executions and has no reason to question the logs (Warden Straughn).

177.

Warden Straughn met with staff following Mr. Lee and Mr. Kenneth Williams’

executions; no staff member asked to be, and no staff member was, removed from the execution

team after Mr. Lee’s execution (Warden Straughn).

178.

Warden Straughn reports to ADC Chief Deputy Director Dale Reed. Director

Kelley, Chief Deputy Director Reed, the Designee, and the Recorder also were in the execution

room during the April 2017 executions (Warden Straughn).

179.

According to Warden Straughn, cell phones are not permitted in the visitation room

because the ADC does not want anything to be recorded or videoed or to be disturbing to the

victims or witnesses (Warden Straughn).

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180.

43a

According to Warden Straughn, the microphone to the viewing area has always

been cut off at some point during executions and witnesses in the viewing room have never been

allowed to observe placement of IVs into condemned inmates (Warden Straughn).

181.

Correctional officers have their own training and are required to be proficient to

ADC standards on firing certain weapons, including a .22 caliber rifle and a 12-gauge shotgun

(Warden Straughn).

182.

If the method of execution were firing squad, Warden Straughn has concerns about

an appropriate space and having staff fire the weapons, witnesses view the execution, and someone

designated to clean up and dispose of the remains (Warden Straughn).

183.

ADC Deputy Director Dale Reed

Dale Reed, who has worked for the ADC for 45 years and served as Chief Deputy

Director of the ADC at the time of the April 2017 executions, explained the role that he played in

the April 2017 executions (Reed).

184.

Deputy Director Reed attends meetings and practices and completes specific duties

that he is called upon to perform prior to each execution. He does not set the schedule for

executions, meetings, or practices. He was not involved in creating the execution protocol,

obtaining execution drugs, or selecting the execution team (Reed).

185.

He was present for Mr. Lee, Mr. Jack Jones, Mr. Marcel Williams, and Mr. Kenneth

Williams’ executions in April 2017 under the Arkansas Midazolam Protocol (Reed).

186.

Deputy Director Reed observed consciousness checks with each condemned inmate

and recalls those being the same steps for each check and each inmate (Reed).

187.

Deputy Director Reed testified inconsistently as to when he observed Mr. Kenneth

Williams’ movement where he appeared to breathe really hard and his chest came up like a

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44a

coughing movement but with no noise. Deputy Director Reed initially testified that these

movements occurred after the consciousness check, but then changed his testimony to be

consistent with his prior sworn affidavit asserting that these movements occurred after the

execution started but before the consciousness check (Reed).

188.

Deputy Director Reed admitted that he did not write his prior sworn affidavit but

did read it and agree with its contents before he signed (Reed).

189.

ADC Deputy Director Designee

The Court received confidential, under seal testimony from a highly confidential

witness who served as the Designee for the 2017 Arkansas executions under the Arkansas

Midazolam Protocol. The Designee described the consciousness checks called for by the Arkansas

Midazolam Protocol and described how those checks were conducted in the most recent Arkansas

executions (Highly Confidential Witness).

190.

The Court heard testimony from the Designee about each step of the consciousness

checks as developed by the Designee, when the consciousness checks were conducted in relation

to when the Midazolam injection was started and completed, and that the same consciousness

checks were given to each individual during each of the four executions in Arkansas in 2017

(Highly Confidential Witness).

191.

At various points, the Designee was holding the hand of the condemned individual

and watching the condemned individual intently from 18 to 24 inches away, at the most. When it

began, each consciousness check involved brushing the eyelashes, giving verbal commands at

varying volumes from a whisper to a normal voice, listening to breathing sounds, checking for

pulse by placing fingers on the carotid artery and checking a pulse oximeter, pinching the ear lobe,

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45a

pinching or squeezing the trapezius muscle, touching the eyeball, and then rubbing the sternum, in

that order and for each individual (Highly Confidential Witness).

192.

The Designee testified that there was no change in the reading from the pulse

oximeter during the administration of Midazolam, during the five-minute period after it, or during

the consciousness checks. Instead, for each individual, the changes in the pulse oximeter readings

started sometime during the administration of the next two drugs in the Arkansas Midazolam

Protocol (Highly Confidential Witness).

193.

After the conclusion of the Arkansas Midazolam Protocol, the Designee completed

a second round of consciousness checks, used a stethoscope to check for heartbeat, and determined

that the pulse oximeter reading was zero (Highly Confidential Witness).

194.

ADC Director Kelley

Director Kelley spoke with each condemned individual in the days leading up to

the execution, asked if a member of the IV team could inspect his arms for IV placement in advance

of the execution, and offered each condemned individual the option of having a central line placed

prior to the execution, if the individual was concerned about IV placement, among other matters.

Director Kelley testified about what she recalled from her discussions with each of the condemned

individuals (Director Kelley).

195.

Director Kelley was in the execution room when each of the four condemned

individual was escorted into the room in April 2017 and remained in the room for the duration of

the executions (Director Kelley).

196.

Director Kelley testified that, prior to each execution in April 2017, each

condemned individual was offered a sedative, that a prescription for a sedative was written for

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46a

each individual, and that she specifically knew that Mr. Jack Jones took the sedative (Director

Kelley).

197.

Director Kelley conceded that she did not know whether the availability of a

sedative for each condemned individual was called for or disclosed in the written Arkansas

Midazolam Protocol, but she explained, “It’s always been done.” (Director Kelley).

198.

Director Kelley explained that, during the execution, an individual serving as a

recorder stands behind the podium (“the Recorder”), and Director Kelley stands next to that

individual. She and the Recorder both have pens and hand write to fill in blanks on a log, although

some of the blanks on the log are filled in prior to events in the execution room because those

blanks relate to a meal and shower (Director Kelley).

199.

After the execution is over, she returns to her office. ADC Internal Affairs

Administrator Raymond Naylor brings the handwritten version of the log to Director Kelley’s

office, and the handwritten notes are typed up in Director Kelley’s assistant’s office. The log and

the handwritten notes are reviewed to make certain they match; the log is given to the media

(Director Kelley).

200.

Director Kelley testified that the times written on the logs were identical to the

times handwritten on the notes. Director Kelley further testified that, after each execution, she and

the other responsible individuals did their best to make sure that everything was clear on the log

and reflected accurately what happened (Director Kelley).

201.

Director Kelley’s Description Of Leddel Lee’s Execution

Director Kelley was present for the placement of the IV lines into Mr. Lee and

recalled no problem with placement of the lines (Director Kelley).

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202.

47a

Director Kelley asked Mr. Lee if he had any final words, and Mr. Lee did not

audibly respond. Director Kelley then approached Mr. Lee so that she was basically leaning over

him face-to-face, asked a second time while making eye contact with Mr. Lee, and determined that

Mr. Lee probably could not talk because he appeared to her to be so scared. As a result, she stepped

back, nodded to the Warden, and the Warden announced that the execution was ready to proceed

(Director Kelley).

203.

At that point, Director Kelley understands the Midazolam was administered. This

is her understanding because they previously practiced this sequence of events; the executioner

was told to administer the Midazolam; the Midazolam was already drawn into syringes; and the

syringes were already connected to the IV lines. The executioner only had to push the drug

(Director Kelley).

204.

In addition, Director Kelley testified that the Designee had a habit of raising his

hand to his microphone on the headset he wore when speaking to the executioner. The Designee

raised his hand to the microphone when Midazolam was started during each execution, according

to Director Kelley (Director Kelley).

205.

From that time, Director Kelley watched the clock in the execution room to ensure

that five minutes passed before the consciousness check happened (Director Kelley,).

206.

Director Kelley watched the Designee conduct the consciousness check. She

testified that she observed the Designee’s hand go near Mr. Lee’s ear and neck, the Designee touch

one of Mr. Lee’s eyeballs, and the Designee’s hand go under the sheet to do a sternum rub (Director

Kelley).

207.

Director Kelley observed no movement and heard no response or sounds from Mr.

Lee, other than his breathing (Director Kelley).

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208.

48a

According to Director Kelley, Mr. Lee’s execution went as it was supposed to go

(Director Kelley).

209.

Director Kelley’s Description Of Jack Jones’ Execution

Mr. Jack Jones opted to have a central line installed prior to the night of the

execution (Director Kelley). Mr. Jack Jones’ attorney, Jeff Rosenzweig, offered testimony with

respect to this decision and these events. Transcript of Hearing on Emergency Motion to Stay

Execution, Williams, No. 5:17-CV-00103-KGB (E.D. Ark. Apr. 24, 2017), ECF No. 40.

210.

Mr. Jack Jones took one prescribed dose of an unspecified sedative prior to his

execution, and he asked Director Kelley for a second dose. Director Kelley asked the medical

provider if he would prescribe an extra dose, and the medical provider did that. As a result, Mr.

Jack Jones received a second dose of the sedative (Director Kelley).

211.

Mr. Jack Jones also had a prescription for methadone, and he received his evening

dose of methadone prior to his scheduled execution (Director Kelley).

212.

Director Kelley was present when Mr. Jack Jones was escorted into the execution

room (Director Kelley).

213.

Director Kelley afforded Mr. Jack Jones the opportunity to make a final statement,

after which the Warden announced that the execution was ready to proceed and the microphone in

the execution room was turned off (Director Kelley).

214.

Director Kelley described comments that Mr. Jack Jones made to her after the

microphone was turned off, saying that she knew how he felt about her, and to the executioner,

saying that he was sorry because no man should have to do this (Director Kelley).

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215.

49a

From the time the execution commenced until the consciousness check was

performed, Director Kelley observed no movement from Mr. Jack Jones, although he went to sleep

and started to snore (Director Kelley).

216.

Over certain concerns with Mr. Jack Jones, the Designee prior to performing the

consciousness checks used a tongue depressor to make sure there were no problems with Mr. Jack

Jones (Director Kelley).

217.

Director Kelley observed the consciousness check being performed on Mr. Jack

Jones, the same way it had been performed on Mr. Lee (Director Kelley).

218.

Director Kelley saw no movement and heard no sounds, other than breathing that

included snoring, between the consciousness checks and the time that Mr. Jack Jones was declared

dead (Director Kelley).

219.

Director Kelley’s Description Of Marcel Williams’ Execution

Plaintiffs’ counsel filed an emergency motion to stay Mr. Marcel Williams’

execution that night; the Court held a hearing and denied the motion. Pl.’s Emergency Mot. Stay

Unconstitutional Execution, Williams, No. 5:17-CV-00103-KGB (E.D. Ark. Apr. 24, 2017), ECF

Nos. 36, 39.

220.

Prior to the execution, the IV team member could not place an IV in Mr. Marcel

Williams’ left arm. Director Kelley cleared the execution room, had the executioner attempt to

place the IV, and the executioner was able to place a second IV line into Mr. Marcel Williams’

right arm. Director Kelley testified that it took approximately 40 minutes to place an IV line for

Mr. Marcel Williams prior to his execution and that his attorneys were not allowed to view that

process (Director Kelley).

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221.

50a

Director Kelley secured the hand restraints after this second IV line was placed and

intentionally left them loose so as not to cut off the IV line flow (Director Kelley).

222.

The log from Mr. Marcel Williams’ execution reflects the time that events occurred

after he was brought into the execution room for the second time that night, after the temporary

stay of execution was lifted, according to Director Kelley (Director Kelley).

223.

Director Kelley contrasted her impression of Mr. Marcel Williams looking like he

had made peace with what was about to occur when he was escorted into the execution room the

first time and his looking fearful when escorted into the execution room the second time (Director

Kelley).

224.

The Warden announced that the execution was ready to proceed (Director Kelley).

225.

According to Director Kelley, after the Midazolam was administered, Mr. Marcel

Williams’ breathing got heavy like he was asleep (Director Kelley).

226.

Director Kelley observed Mr. Marcel Williams’ right hand relax, after the

Midazolam was started but before the consciousness check. According to Director Kelley, this

made Mr. Marcel Williams’ hand turn a fraction of an inch, maybe, but she was concerned about

it because she had placed that restraint. Other than this, Director Kelley observed no movement

from the time the Midazolam was administered until the consciousness check was performed

(Director Kelley).

227.

Director Kelley observed the consciousness check on Mr. Marcel Williams. The

checks were done on the right side of Mr. Marcel Williams, as opposed to the left side on which

the checks were performed for each of the other condemned individuals. This was the result of

the IV placement for Mr. Marcel Williams (Director Kelley).

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228.

51a

Director Kelley observed no movement after the consciousness check was

performed until Mr. Marcel Williams was pronounced deceased (Director Kelley).

229.

Director Kelley saw Mr. Marcel Williams’ chest move from breathing but would

not describe it in the way that Ms. Giani did. Director Kelley saw no head movement from Mr.

Marcel Williams, nor did she see Mr. Marcel Williams open his eyes. She also testified that the

Designee used a pulse oximeter during all four April 2017 executions, placed it on each condemned

individual, and may have adjusted it slightly during the execution, but did not remove it until each

execution was complete (Director Kelley).

230.

Director Kelley’s Description Of Kenneth Williams’ Execution

Prior to the execution, Director Kelley spoke to Mr. Kenneth Williams about his

last words and knew that she would hold a copy of a statement that Mr. Kenneth Williams would

read and that then the microphone would be turned off as Mr. Kenneth Williams spoke to his God.

Mr. Kenneth Williams said that he needed people to hear only his written statement (Director

Kelley).

231.

Director Kelley held up the written statement, and Mr. Kenneth Williams read it.

Then, the microphone was turned off, and he proceeded to appear to speak in tongues to his God

(Director Kelley).

232.

After the Warden announced that the execution was ready to proceed and the

Midazolam was administered, based upon Director Kelley’s observation of the Designee raising

his hand to the microphone, and the time the consciousness check was administered, Director

Kelley saw movement from Mr. Kenneth Williams (Director Kelley).

233.

She explained that Mr. Kenneth Williams was quiet for approximately one minute

after the execution started and then the trunk of his body or chest came up off the table and hit the

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52a

table like he was coughing, only there was no coughing sound. Director Kelley described it as

occurring during a span of approximately 10 seconds and happening approximately 15 to 20 times,

with the first few times going faster and the last few times going slower (Director Kelley).

234.

She described these movements as rhythmic and did not believe that they could

have been on purpose, based on what she observed (Director Kelley).

235.

Director Kelley saw no facial movements or facial reactions from Mr. Kenneth

Williams during this time, and she was in a position to observe this (Director Kelley).

236.

She also did not see Mr. Kenneth Williams move his head, heave, choke, cough, or

moan (Director Kelley).

237.

She did not hear any sounds from Mr. Kenneth Williams during this time, nor did

she observe Mr. Kenneth Williams gasping for air (Director Kelley).

238.

Director Kelley saw no movement, clenching, or releasing of his fists or turning of

his arms at this time (Director Kelley).

239.

She did not see any part of Mr. Kenneth Williams’ lower body move at this time

(Director Kelley).

240.

Director Kelley did not describe these actions as violent, but she did describe them

as startling.

241.

Director Kelley testified that, had the events with Mr. Kenneth Williams gone on

any longer, she would have thought that something needed to stop with the execution. However,

before that thought could formulate, the events with Mr. Kenneth Williams were over, according

to Director Kelley (Director Kelley).

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242.

53a

Director Kelley testified that, after the 10 seconds of rhythmic movements from

Mr. Kenneth Williams stopped, at least 2 minutes passed before the consciousness check started

(Director Kelley).

243.

Director Kelley neither saw nor heard a response from Mr. Kenneth Williams to

the consciousness checks, and she observed no movements and heard no sounds from him between

the time the consciousness checks were performed and his death was announced (Director Kelley).

244.

From the time that he was moved from death row, which is at the Varner Unit, to

the holding cell at the Cummins Unit, Mr. Kenneth Williams was monitored constantly and

observations were recorded by the ADC in a log. Further, because the holding cell is restricted

housing, medical would make rounds every day to administer medication and check on the

condemned individual, including recording or making a note of any medical injuries or issues even

if the condemned individual did not report or complain to medical (Director Kelley).

245.

Director Kelley has never seen any records to indicate that Mr. Kenneth Williams

was knocked in his head while he was in the holding cell prior to his execution (Director Kelley).

246.

Director Kelley’s Handwritten Notes From The Executions

Director Kelley explained that, when she kept notes with the Recorder during the

executions, there were some instances in which she jotted down the time that the second and third

drugs in the Arkansas Midazolam Protocol were administered during an execution, but she did not

do that for all executions (Director Kelley).

247.

Director Kelley assumes that her handwritten notes are shredded after the log to be

released to the media is typed from the handwritten notes taken by her and the Recorder and three

individuals compare the information on the log to be released to the media and the handwritten

notes to ensure accuracy. (Director Kelley).

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248.

54a

The times that the second and third drugs in the Arkansas Midazolam Protocol are

administered are not reported on the log to be released to the media, and Director Kelley took no

steps to ensure that her handwritten notes were kept after these executions (Director Kelley).

249.

When asked whether she had plans to change her policy with respect to disclosing

or recording the time each drug in the Arkansas Midazolam Protocol is administered, Director

Kelley said that she contemplated doing that, that it could easily be done, that it was not done, and

that no one had asked that it be done (Director Kelley).

250.

Director Kelley testified that, leading up to the trial, no one had suggested to her

that the policy needed to change to inform those observing as to when a particular drug was

administered (Director Kelley).

251.

Director Kelley acknowledged that she knows when the drugs are administered and

that, in the future, this is an aspect of the policy that she might change (Director Kelley).

252.

The Autopsy Of Kenneth Williams

Mr. Kenneth Williams was executed on April 27, 2017 (Dr. Cohen). Frank Peretti,

M.D., performed an autopsy of Mr. Kenneth Williams on behalf of the State of Arkansas, but did

not testify in this matter (Dr. Kokes). Then, on April 30, 2017, Joseph I. Cohen, M.D., a forensic

pathologist retained by plaintiffs, performed a second autopsy of Mr. Kenneth Williams (Dr.

Cohen).

253.

As is standard for autopsies performed by the Arkansas State Crime Laboratory,

two additional pathologists reviewed Dr. Peretti’s report. One conducted a technical review, and

the other conducted an administrative review (Dr. Kokes).

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254.

55a

Charles Kokes, M.D., then then-Chief Medical Examiner of the Arkansas State

Crime Laboratory, conducted the administrative review and testified on behalf of defendants (Dr.

Kokes).

255.

Dr. Cohen, who testified on behalf of plaintiffs, is licensed to practice medicine in

Arizona, California, and New York (Dr. Cohen).

256.

Dr. Cohen has worked as a forensic pathologist for 25 years, performing over 7,000

autopsies. A forensic pathologist is a medical doctor who generally performs autopsies for the

purpose of determining the cause of death. He has conducted autopsies on other individuals after

execution by lethal injection, including Clayton Lockett and Joseph Wood (Dr. Cohen).

257.

The manner of death when an execution is conducted by the State of Arkansas is

mandated by statute (Dr. Kokes).

258.

At the time of the autopsy, a high toxic level of Midazolam was in Mr. Kenneth

Williams’ system; the blood level was 1.8 micrograms per milliliter (Dr. Kokes).

259.

The State of Arkansas did not test for vecuronium or potassium chloride (Dr.

Kokes).

260.

Dr. Cohen’s opinion is that Mr. Kenneth Williams likely succumbed to the

combined respiratory depressant effects of the Midazolam and vecuronium with probable

contribution by the cardio toxic effect of potassium leading to cardiac arrest (Dr. Cohen).

261.

Dr. Cohen observed petechial hemorrhages at certain points on the underside of Mr.

Kenneth Williams’ eyelids; a contusion about two inches in greatest dimension on the right side

of his occipital scalp behind the ear and a bit lower; and that his lungs were congested and

edematous, which is heavy with water and blood (Dr. Cohen).

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262.

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Petechial hemorrhages are seen in deaths resulting from mechanical or positional

asphyxia; they can result from seizure activity and hypoxia (Dr. Cohen; Dr. Kokes).

263.

Asphyxia is a complete lack or absence of air, and hypoxia is a shortage of air or

an impediment of the passage of air from the environment into the lungs (Dr. Cohen).

264.

Dr. Cohen cannot testify at what point during the execution the petechial

hemorrhages formed (Dr. Cohen).

265.

Dr. Cohen acknowledged that hypoxia can cause seizures and that seizures cause

involuntary movements (Dr. Cohen).

266.

If a person is suffering from hypoxia or hypotension, the person is unconscious (Dr.

Kokes).

267.

Dr. Kokes is unaware of any data that shows that, if a person is experiencing agonal

breathing, he or she is feeling or experiencing pain (Dr. Kokes).

268.

Petechial hemorrhages were a non-specific finding by Dr. Cohen, meaning that the

finding can be associated with a number of underlying conditions or problems and could have been

formed in a number of different ways and for a number of different underlying reasons (Dr. Kokes).

269.

Dr. Kokes explained that formation of petechial hemorrhages requires a functioning

cardiovascular system. According to Dr. Kokes, Mr. Kenneth Williams’ petechial hemorrhages

likely formed sometime after the first dose of Midazolam was administered to him but before his

death (Dr. Kokes).

270.

The petechial hemorrhages may also have resulted from agonal breathing, which is

seen externally as irregular gasping, gurgling-type breathing (Dr. Kokes).

271.

Dr. Cohen concluded that the contusion likely occurred prior to Mr. Kenneth

Williams’ death (Dr. Cohen).

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272.

57a

Dr. Cohen saw no documentation that Mr. Kenneth Williams suffered an injury

prior to the start of his execution. Dr. Cohen is unable to explain with certainty how the contusion

occurred (Dr. Cohen).

273.

Dr. Kokes testified that, because Dr. Cohen never examined the contusion under a

microscope, Dr. Cohen is not able to say when Mr. Kenneth Williams suffered the contusion (Dr.

Kokes).

274.

Dr. Cohen testified that the contusion resulted from force that would be painful and

felt by a conscious or semi-conscious person (Dr. Cohen). However, Dr. Cohen is unable to

quantify any pain to Mr. Kenneth Williams, even if pain resulted from the contusion (Dr. Cohen).

275.

Further, Dr. Kokes does not agree that suffering the contusion means that Mr.

Kenneth Williams experienced pain. Dr. Kokes’ opinion is that, if Mr. Kenneth Williams suffered

the contusion at the time of the execution, it likely resulted from involuntary movement (Dr.

Kokes).

276.

Lungs that are congested and edematous are consistent with respiratory failure.

Fluid buildup in the lungs also could be caused from the dying process, terminal agonal breathing,

and the effects of the paralytic (Dr. Cohen).

277.

Dr. Kokes testified that fluid in the lungs is a common result of death resulting from

respiratory depression caused by multiple drug intoxication (Dr. Kokes).

278.

Dr. Cohen, having heard testimony of eyewitnesses to Mr. Kenneth Williams’

execution and having conducted his autopsy, could not say if the movements of Mr. Kenneth

Williams during the execution, as testified to by those witnesses, were voluntary or involuntary

(Dr. Cohen).

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279.

58a

According to Dr. Kokes, the movements described by witnesses to Mr. Kenneth

Williams’ execution likely were involuntary and unconscious movements, as they appeared to be

convulsions and were likely due to cerebral hypoxia resulting from several factors, including the

respiratory depression and apnea caused by excessive amounts of Midazolam and hypotension,

which is another known toxic effect of Midazolam. According to Dr. Kokes, these conditions also

can lead to involuntary sounds (Dr. Kokes).

280.

Director Kelley’s Viewing Policies

On March 10, 2017, plaintiffs’ counsel sent a letter to Director Kelley requesting

disclosure of her viewing policies on the dates of the scheduled executions (Dkt. No. 2-2, Ex. 8).

Specifically, plaintiffs’ counsel sought disclosure of Director Kelley’s policies regarding

permission for plaintiffs’ counsel to witness the executions in the viewing area and the right of

plaintiffs’ counsel to bring telecommunications devices to the prison on the dates of the executions

(Id., at 1).

281.

By letter to plaintiffs’ counsel dated March 16, 2017, counsel for Director Kelley

responded to the inquiry regarding viewing policies during the executions (Dkt. No. 2-2, Ex. 9).

Counsel for Director Kelley asserted that only one attorney per inmate would be permitted in the

viewing room during each execution (Id., at 1). Counsel for Director Kelley further asserted that

plaintiffs’ counsel would not be permitted to bring cell phones or tablets inside the prison facility,

but Director Kelley would permit plaintiffs’ counsel to “bring a lap top [sic] computer so long as

the device is not equipped with photography, video, or audio recording capabilities.” (Id.). The

letter indicates that “[i]f counsel decides to return to the deputy warden’s office rather than

proceeding to the viewing area, there will be two phone lines . . . for inbound or outbound calls.”

(Id., at 2).

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282.

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On March 20, 2017, counsel for Director Kelley sent an email to plaintiffs’ counsel,

clarifying the viewing policies with regard to telephone access (Dkt. No. 2-2, Ex. 10). The email

indicates that, “[i]f the attorney chooses to go to the viewing area, she will have no access to a

phone during the execution” and that “[t]he attorney will not be allowed to leave and then return

to the viewing area. No phone access in the viewing area.” (Id.).

283.

On April 3, 2017, counsel for Director Kelley sent to plaintiffs’ counsel a letter

containing a document entitled “Execution Protocol – Legal Counsel for Inmates with Scheduled

Executions” (Dkt. No. 28-16). This letter indicated that changes had been made to the previous

viewing policies including “provisions for the second legal counsel for the inmate.” (Id., at 1). The

attached execution protocol specified that, “[a]t the request of the inmate, one additional legal

counsel will be allowed to enter the unit on the date of execution. Such counsel shall be escorted

directly to the Deputy Warden’s office and shall remain there for the duration of his or her stay at

the unit.” (Id., at 4). The execution protocol further indicated that, “[o]n the date of execution[,]

one legal counsel for the inmate shall be allowed to visit the inmate at the holding cell” and that,

when the inmate is escorted to the execution chamber, “legal counsel may choose to be escorted

to the witness room or . . . the Deputy Warden’s Office or the visitation center.” (Id., at 3).

284.

On April 6, 2017, Director Kelley signed an affidavit, a copy of which was attached

to defendants’ response to plaintiffs’ motion for preliminary injunction, filed on April 7, 2017

(Dkt. No. 28-1). In the affidavit, Director Kelley articulated different viewing policies than were

represented in the letter dated March 20, 2017. Specifically, Director Kelley provided that “legal

counsel may choose to be escorted to the witness room, or, in the alternative, choose to be escorted

to the Deputy Warden’s office or the visitation center. Legal counsel must remain in that chosen

location until the execution is complete.” (Id., ¶ 46) (emphasis added). Citing Arkansas Code

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Annotated § 16-90-502(e)(1)(E), Director Kelley stated that, based on her investigation, “Arkansas

law and ADC policy have always allowed only one attorney for the condemned inmate to witness

an execution.” (Id., ¶ 47). Director Kelley then stated that, “at the request of the inmate, one

additional legal counsel will be allowed to enter the unit,” but that “[s]uch counsel shall be escorted

directly to the Deputy Warden’s office and shall remain there for the duration of his or her stay at

the unit.” (Id., ¶ 48). Director Kelley further stated that “[a]ll witnesses, including attorneys for

the ADC, must surrender all cell phones, tablets, cameras, computers, and other recording devices

at the ADC’s Central Office in Pine Bluff before being transported to the Cummins Unit.” (Id., ¶

50). Director Kelley explained that “[t]wo outbound phone lines will be made available at the

holding cells for the use of legal counsel. Inbound and outbound phone lines and an inbound and

outbound fax line will be made available in the Deputy Warden’s office. An outbound phone line

will also be made available in the visitation center.” (Id., ¶ 51). Finally, Director Kelley stated

that “upon request, legal counsel for the inmate will be permitted to bring a laptop computer into

the unit and immediately to the Deputy Warden’s office. Any such laptop computer shall remain

in the Deputy Warden’s office for the duration of legal counsel’s stay.” (Id., ¶ 52).

285.

During the preliminary injunction evidentiary hearing in this case in 2017, Director

Kelley testified about plaintiffs’ counsel’s access to the viewing room and outbound phone lines.

Director Kelley testified that plaintiffs’ lawyers “would have to choose between calling the Court

and advising them of something happening with [their] client or actually witnessing the

execution.” (Testimony of Hearing on Motion for Preliminary Injunction, Vol. 4, at 1218, Apr.

13, 2017). When the Court questioned Director Kelley, she testified that the viewing room is a

three-minute car ride from the Deputy Warden’s office, where the telephone is that the attorneys

can use to access the Court (Id., at 1270–72).

Director Kelley also answered somewhat

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61a

ambiguously when asked whether the attorneys would be able to use a telephone in a “quiet cell,”

but she asserted that “[i]deally, they would go to the front where they have a phone and a fax and

everything.” (Id., at 1271). By “front,” the Court understands Director Kelley to be referencing

the Deputy Warden’s office.

286.

Also at the preliminary injunction evidentiary hearing, Director Kelley testified

about the number of attorneys permitted to witness the executions. At that time, Director Kelley

suggested through her testimony that, because the witness room was very crowded, there was room

for only one attorney to be present in the viewing room during the execution (Id. at 1135–37).

However, Director Kelley acknowledged in her testimony that one of her predecessors permitted

two attorneys to witness executions (Id. at 1137, 1279 (“I don’t know about under Mr. [Art L.]

Lockhart, but I know under Mr. [Larry] Norris, only one attorney was present, and even, to my

knowledge, and we can ask Jeff [Rosenzweig], when Jeff was there under Mr. Lockhart and there

were two attorneys, one didn’t leave”)). Director Kelley testified that there would be 24 chairs in

the viewing room, which she explained provided seats for up to 6 of the victim’s family members,

the inmate’s attorney and spiritual advisor, and 12 citizen witnesses (Id., at 1135).

287.

When the Court questioned Director Kelley about why 12 witnesses were necessary

when the applicable statute provides for 6 to 12, Director Kelley stated that, “because I’m asking

the witnesses to stay for two executions, I think that there’s a chance that some of them won’t, and

I want to make sure I have at least six for the next one.” (Id., at 1273). The Court then asked, “If

you don’t have more than six, if you have just the number you need, you have extra chairs in the

witness room, would you entertain having lawyers come in if there’s more than one lawyer for the

inmate?” (Id.). Director Kelley and her counsel answered ambiguously and stated that she would

have to review the statute before answering that question (Id., at 1273–74). Finally, with respect

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62a

to the document entitled “Execution Protocol,” which was attached to a letter dated April 3, 2017,

Director Kelley testified that she had “the authority to make changes except for what the law tells

me I can’t change.” (Id. at 1281; Defs.’ Hr’g Ex. 16).

288.

After the Court entered its Preliminary Injunction Order in this case, the parties

proposed a Joint Execution Viewing Policy (Dkt. No. 62).

289.

In a series of questions asked at the bench trial in this matter, Director Kelley was

asked repeatedly about the ADC’s past policy and practice during executions. Director Kelley was

specifically asked, “Has it ever been the policy of the Department of Correction to allow more than

one attorney for the inmate inside the witness room?” She testified, “That’s never been the policy.

We did allow it in 2017.” (Director Kelley).

290.

Director Kelley was never asked what the past practice, prior to 2017, had been

regarding allowing more than one attorney for the condemned individual inside the witness room.

291.

At the bench trial in this matter, Director Kelley testified that, during the April 2017

executions, she allowed two attorney witnesses to be present for each execution, and the Deputy

Director of the ADC held a cell phone that did not have a camera provided by the attorney

witnesses and that was given to the attorney witnesses to use, if requested (Director Kelley).

292.

Director Kelley was not aware of any issues with that practice during the April 2017

executions (Director Kelley).

293.

While Director Kelley serves as Director of the ADC, if another execution is

scheduled, she testified that she does not plan to go back on the agreement that was reached in this

case (Director Kelley).

294.

Director Kelley is not opposed to the practice implemented by the parties’ Joint

Execution Viewing Policy being made a part of the ADC policy, but she would prefer that the

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63a

practice not be court-mandated due to concerns about a bill being considered by the Arkansas

legislature that would jam cell phones in prison housing areas due to contraband and security

issues. Director Kelley is concerned that, if the bill becomes law, then cell phones in the area

where executions are conducted might also be jammed and unusable. Further, Director Kelley

does not plan to make changes to the policy unless another execution is scheduled because she

explained that she does not work on policy that is not being used (Director Kelley).

295.

Firing Squad As Potential Alternative Execution Method

The last execution by firing squad in the United States was carried out in 2010 by

the State of Utah (Dkt. No. 170, Stipulations, ¶ 5).

296.

James Williams, M.D., has a background in emergency medicine and as a SWAT

medical director and officer. He offered testimony based on his experience personally in being

shot in the chest by a friend with a .22 caliber rifle, which he described as initially not painful but

instead as a severe numb sensation that persisted for several hours. He also offered testimony

based upon his medical training, his treatment of numerous gunshot wound victims, his discussions

with other medical providers, and anecdotal evidence regarding gunshot wounds (Dr. Williams).

297.

He testified that, if a gunshot wound were delivered to the cardiovascular complex

such that the bullet transected the individual’s chest causing cessation of the circulation of blood

to the brain, the individual would potentially experience pain for 7 to 10 seconds and then, after

another 7 to 10 seconds, lose consciousness. However, Dr. Williams said the potential for pain

during that period would likely mean feeling nothing more than the sensation of a powerful blow

to the chest (Dr. Williams).

298.

Dr. Antognini agrees that it would take 7 to 10 seconds for an individual to lose

consciousness, but he believes that these individuals would experience pain between being shot

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64a

and losing consciousness, based on his experience treating gunshot victims in his career (Dr.

Antognini).

299.

Dr. Antognini believes that the risk that a condemned individual would experience

severe pain if Arkansas were to adopt for executions the firing squad certainly is not less, and is

probably greater, than the risk of pain under the Arkansas Midazolam Protocol (Dr. Antognini).

300.

Dr. Williams conceded that he has never treated a gunshot victim within 60 seconds

of receiving an injury to the chest, nor within 10 to 15 seconds of receiving an injury to the chest

(Dr. Williams).

301.

Dr. Williams has also never treated a gunshot victim who has received five gunshot

wounds to the chest with a .30 caliber rifle, which would be comparable to a firing squad, although

he has treated a victim shot twice in the chest with a .30 caliber rifle (Dr. Williams).

302.

Dr. Williams acknowledged that there is nothing in the medical literature that

addresses these issues (Dr. Williams).

303.

Dr. Williams could not testify that an execution by firing squad would be pain free.

In fact, Dr. Williams testified that, if shot in a bone or joint causing a fracture, the gunshot wound

would be painful, but he testified based on personal and medical experience that fractures in ribs

are less painful than fractures in other bones or joints (Dr. Williams).

304.

Joseph Cummings, a senior investigator in the Federal Defender Capital Habeas

Unit in the Eastern District of Arkansas, testified about touring the execution chamber of the Utah

State Prison and photographing and taking measurements of the entire layout and the schematics

of the layout where an execution by firing squad previously was carried out (Cummings).

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305.

65a

Gregory Peay, who is a Director of the Utah Department of Correction, offered

testimony through deposition about prior executions in Utah, including an execution by firing

squad (Peay)

306.

Steven Turley, who also is a Director of the Utah Department of Correction, offered

testimony through deposition about prior executions in Utah, including an execution by firing

squad (Turley).

307.

Secobarbital As Potential Alternative Execution Method

The Court heard testimony from Charles Blanke, M.D., a physician licensed in

Oregon. Dr. Blanke described his academic, research, and clinical experience in the area of

medical aid in dying, which refers to a physician helping a terminally ill patient obtain a

prescription for lethal medication which if taken is intended to end the patient’s life (Dr. Blanke).

308.

Secobarbital, a barbiturate, is the drug most commonly used for medical aid in

dying. Dr. Blanke has prescribed secobarbital for use in more than 90 medical-aid-in-dying

procedures. The dose of secobarbital depends on the body mass of the patient (Dr. Blanke).

309.

Secobarbital generally comes in a capsule form.

For medical-aid-in-dying

procedures, the capsules are opened, emptied into four ounces of a liquid, and then consumed by

drinking that liquid within two minutes (Dr. Williams).

310.

In certain cases the liquid can be administered through a nasogastric or feeding

tube, inserted with the aid of the anesthetic lidocaine, which is readily available, through an

individual’s nose directly into their stomach. Dr. Blanke testified that insertion of a feeding tube

in this matter is not particularly painful (Dr. Blanke).

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311.

66a

Dr. Blanke has had 100 percent of his patients die from this procedure, typically by

falling asleep after consuming the liquid, falling into a coma within about five minutes, and dying

within typically 25 minutes later (Dr. Blanke).

312.

Death usually results from respiratory breathing or cardiovascular heart death (Dr.

Blanke).

313.

Secobarbital is not a paralytic (Dr. Blanke).

314.

Dr. Blanke concedes that the literature does include cases in which patients have

woken up after taking such doses, although he recited a low percentage of cases, and testified that

he is not aware of any pain being experienced by patients who have woken up (Dr. Blanke).

315.

Dr. Blanke also concedes that half of the patients take longer than 25 minutes to

die, with one reported case of a patient taking approximately four days to die (Dr. Blanke).

316.

Dr. Blanke acknowledges that determining the factors that might impact the time

between ingestion and death is an evolving area of research. There also is less data available

starting in 2010 because Oregon changed its law then to no longer require a physician to be present

for the procedure. Secobarbital costs more today than in years past, so other, less expensive drugs

are being considered and used more widely in this area (Dr. Blanke).

317.

Dr. Blanke is only aware of secobarbital coming in powder form (Dr. Blanke).

318.

Although Dr. Blanke was aware of a pharmacy that was willing to provide

secobarbital for use in executions, that pharmacy is no longer willing to provide the drug for use

in that way (Dr. Blanke).

319.

The Court heard testimony from John Kirtley, Ph.D., who serves as the Executive

Director of the Arkansas State Board of Pharmacy. He testified as to application and legal

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67a

requirements for pharmacies within and outside the state selling and supplying certain types of

controlled substances, including certain types of compounded controlled substances (Dr. Kirtley).

320.

According to Dr. Kirtley, injectable secobarbital would have to be compounded

(Dr. Kirtley).

321.

Potential Alternative Execution Methods

Dr. Blanke testified that pentobarbital, another drug used in the past for aid in dying

purposes, is no longer readily available (Dr. Blanke).

322.

Sevoflurane gas has never been used to carry out an execution (Dkt. No. 170,

Stipulations, ¶ 4).

III.

Evidentiary Matters

There are two evidentiary matters that were raised at the bench trial and addressed by the

parties’ post-trial filings. At the outset, the Court addresses and resolves these matters before

turning to the merits of the parties’ dispute.

Plaintiffs’ Request For Adverse Inference

Plaintiffs argue in their post-trial brief:

Wendy Kelley testified that she took notes of when the drugs were administered.

Astoundingly, she shredded them (or allowed them to be shredded) after the

executions. This litigation was ongoing and that information would have been

highly probative to the questions before the Court. Destruction of this record was

prejudicial to Plaintiffs. Because Kelley allowed the destructions, the Court should

infer that the evidence would have been favorable to Plaintiffs’ case. See Dillon v.

Nissan Motor Co., 986 F.2d 263, 266–69 (8th Cir. 1993).

(Dkt. No. 198, at 36 n.3).

“A court’s inherent power includes the discretionary ‘ability to fashion an appropriate

sanction for conduct which abuses the judicial process.’” Stevenson v. Union Pac. R.R. Co., 354

F.3d 739, 745 (8th Cir. 2004) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991)).

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“In order for an adverse inference instruction for spoliation to be warranted, a district court is

required to make two findings: ‘(1) there must be a finding of intentional destruction indicating a

desire to suppress the truth, and (2) there must be a finding of prejudice to the opposing party.’”

Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 879 (8th Cir. 2015) (quoting Hallmark Cards,

Inc. v. Murley, 703 F.3d 456, 460 (8th Cir. 2013)). This is a high bar because “[a]n adverse

inference instruction is a powerful tool”; it “brands one party as a bad actor, guilty of destroying

evidence that it should have retained for use by the jury,” and “necessarily opens the door to a

certain degree of speculation by the jury, which is admonished that it may infer the presence of

damaging information.” Morris v. Union Pac. R.R., 373 F.3d 896, 900 (8th Cir. 2004). “The

district court ‘has substantial leeway to determine intent through consideration of circumstantial

evidence, witness credibility, motives of the witnesses in a particular case, and other factors.’”

Davis v. White, 858 F.3d 1155, 1160 (8th Cir. 2017) (quoting Morris, 373 F.3d at 901).

The Eighth Circuit appears to draw a distinction between the spoliation of evidence prior

to litigation and during litigation. When the destruction of evidence is alleged to have occurred

pre-litigation, “a district court must issue explicit findings of bad faith and prejudice prior to

delivering an adverse interference instruction.” Murley, 703 F.3d at 461. In contrast, when a party

is found to have destroyed evidence during litigation, “a district court is entitled to fashion

appropriate sanctions for such evasive litigation tactics—‘even absent an explicit bad faith

finding.’” Id. (quoting Stevenson, 354 F.3d at 750).

The Eighth Circuit’s decision in Stevenson is instructive. Stevenson arose out of a gradecrossing collision in which plaintiff-motorist’s vehicle was hit by a train, and his wife was killed.

See 354 F.3d at 742. The district court imposed the sanction of an adverse-inference jury

instruction against defendant-railroad because, both prior to the filing of the lawsuit and during its

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pendency, it destroyed two types of evidence:

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(1) “the tape of any recorded voice radio

communications between the train crew and dispatchers on the date of the accident,” and (2) “all

track maintenance records close in time to the accident.” Id. at 745. The railroad appealed. The

Eighth Circuit found that the district court was within its discretion when it sanctioned the railroad

for its pre-litigation destruction, pursuant to its routine document retention policy, of the taperecorded voice radio communications, reasoning that it was unreasonable and amounted to badfaith conduct for it to adhere to the policy in the circumstances of the case. See id. at 747. The

Eighth Circuit explained that:

The requisite element of prejudice is satisfied by the nature of the evidence

destroyed in this case. While there is no indication that the voice tape destroyed

contained evidence that could be classified as a smoking-gun, the very fact that it

is the only recording of conversations between the engineer and dispatch

contemporaneous with the accident renders its loss prejudicial to the plaintiffs. We

find no abuse of discretion in the district court’s decision to sanction the Railroad

through an adverse inference instruction for its prelitigation destruction of the voice

tape.

Id. at 748.

The Eighth Circuit also found that the district court was within its discretion when it

sanctioned the railroad for its destruction, pursuant to its routine document destruction policy, of

track maintenance inspection records after the commencement of litigation and the filing of

plaintiffs’ request for production of documents, reasoning that it amounted to bad faith for the

railroad to make no effort to preserve these documents from its routine document destruction

policy. See id. at 748. The Eighth Circuit elaborated: “Sanctioning the ongoing destruction of

records during litigation and discovery by imposing an adverse inference instruction is supported

by either the court’s inherent power or Rule 37 of the Federal Rules of Civil Procedure, even absent

an explicit bad faith finding, and we conclude that the giving of an adverse inference instruction

in these circumstances is not an abuse of discretion.” Id. at 750.

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At the same time, the Eighth Circuit determined that the district court abused its discretion

when it sanction the railroad for its pre-litigation destruction of track maintenance inspection

records, reasoning that there was no showing that it “knew that litigation was imminent when,

prior to any litigation, it destroyed track maintenance records from up to two years prior to the

accident pursuant to its document retention policy,” and that plaintiffs were not prejudiced by

destruction of these records because they would not have shown the exact condition of the track at

the time of the collision. Id. at 748–49.

Director Kelley testified that, during the April 2017 executions, an internal affairs

representative was present. Director Kelley was present, too, standing next to the internal affairs

representative. Both had pens in their hands during the executions and took notes regarding certain

events; they did this to aid in completing the log required as a part of ADC policy, to be released

after each execution. In some instances, but not all, Director Kelley wrote down what time the

second and third drugs of the Arkansas Midazolam Protocol were administered. After each

execution, the log is transported by the internal affairs representative back to Director Kelley’s

office, and she meets the representative there. Three individuals are present; they check all of the

times to make sure that everything is correct on the log. Then, the log is publicly released.

Director Kelley assumes that, after that, her notes are shredded. She testified that the

internal affairs log includes only as much information as the ADC policy requires. Director Kelley

testified at trial that she now thinks that it might be a good idea to have information regarding

when the second and third drugs of the Arkansas Midazolam Protocol are administered added to

the internal affairs log. She testified essentially that it could have been done if anybody had asked

for it to be done ahead of time.

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To be clear, plaintiffs challenge in their operative complaint Director Kelley’s viewing

policy, claiming that plaintiffs’ counsel cannot tell when each drug is injected to ensure that the

Arkansas Midazolam Protocol is followed and to ensure plaintiffs’ right to counsel and right to

access the courts (Dkt. No. 117, ¶ 51). Specifically, in their operative complaint, plaintiffs seek

visual and audible signals of when each drug is being injected during the execution (Id., ¶ 59).

This claim and request for relief were first added to this action in June 2018, with the filing of

plaintiffs’ amended complaint (Dkt. No. 117).

However, when the April 2017 executions occurred and Director Kelley’s notes were

destroyed, the claim was still not in the case. On March 27, 2017, when plaintiffs filed their initial

complaint in this case, they did not raise this specific claim (Dkt. No. 2). Although plaintiffs

challenged Director Kelley’s viewing policy in their initial complaint, they filed suit specifically

over the number of lawyers for plaintiffs permitted to view each execution and those lawyers’

access to a telephone during each execution (Dkt. No. 2, ¶¶ 166–73). The Court granted

preliminary injunctive relief on this claim, finding plaintiffs likely to prevail on their claim that

the viewing policy then in effect likely violated plaintiffs’ right to counsel and right of access to

the courts (Dkt. No. 54, at 101). As a result, the Court directed the parties to confer on the terms

of a viewing policy to assure plaintiffs’ right to counsel and right of access to the courts for the

entire duration of all executions, stating that, if the parties failed to agree, each party could present

its proposal in writing to the Court (Id.). The parties reached an agreement on the viewing policy

that Director Kelley would follow during the April 2017 executions (Dkt. No. 62). That agreement

included no mention of information about when the second and third drugs in the Arkansas

Midazolam Protocol were administered.

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After reaching that agreement but before the scheduled April 2017 executions, plaintiffs

filed a motion with the Court to alter the agreed upon viewing policy, requesting that plaintiffs’

counsel be permitted to view the entire execution, including the time period from when each

plaintiff entered the execution chamber to be strapped to the gurney and to have intravenous lines

affixed and not just from the time right before the execution drugs were about to flow (Dkt. No.

73). Defendants responded in opposition to the motion, and the Court denied the motion prior to

the executions (Dkt. Nos. 75, 76). Prior to the April 2017 executions, plaintiffs made no request

to modify the agreed upon viewing policy to address when the second and third drugs in the

Arkansas Midazolam Protocol were administered. Additionally, in their original complaint,

plaintiffs allege that their “right to counsel requires that their attorneys have a complete visual and

audio access to the execution from the time plaintiffs enter the chamber to the time they are

pronounced dead.” (Dkt. No. 2-2, ¶ 180). This allegation was related to Director Kelley’s alleged

shutting off of the execution chamber’s audio, which would prevent plaintiffs’ attorneys from

hearing any audible reaction plaintiffs might have to the drugs (Id.).

Further, there is no evidence in the record before the Court that, at the time of the April

2017 executions, there was a pending discovery request to defendants specifically seeking this

information or documents including this information.

On this record, considering the controlling legal authorities, the Court declines to impose

an inference that the evidence in Director Kelley’s notes of when, in some instances but not all,

the second and third drugs of the Arkansas Midazolam Protocol were administered would have

been favorable to plaintiffs’ case.

Defendants’ Request To Admit Numerous Documents

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At the preliminary injunction hearing, defendants introduced numerous exhibits through

the testimony of Dr. Buffington and Dr. Antognini by merely asking the expert witness on the

stand if he relied on the study (Transcript of Hearing on Motion for Preliminary Injunction, Vol.

3, at 624–25, Apr. 12, 2017; Vol. 4, at 979–988). Aside from citing studies as reliance materials,

the experts offered little, if any, explanation for many of these studies at that time. Many of these

exhibits were admitted at the hearing on the motion for preliminary injunction without objection

from plaintiffs’ counsel (Dkt. No. 48). Many of these studies were not listed on defendants’ exhibit

list for the bench trial (Dkt. No. 195), nor were these studies reviewed with defendants’ expert

witnesses during their testimony at the bench trial.

Beginning during Dr Stevens’ direct testimony at the bench trial, defendants objected under

Federal Rule of Evidence 803(18) to plaintiffs’ introduction into evidence of numerous treatises

and studies. Defendants asserted that the documents are hearsay and may be read into evidence,

but the documents themselves should not to be received as evidence by the Court. In response to

the objection, plaintiffs asserted that they intended to ask to admit each exhibit after the exhibit

was discussed with the witness on the stand pursuant to Federal Rule of Evidence 703. Plaintiffs

explained that their experts had based their opinions in part in reliance upon the treatises and

studies marked as exhibits, used that data in considering their opinions and informing their

opinions, and that the probative value of admitting the treatises and studies as evidence would be

greater than the prejudicial effect.

The Court clarified that defendants’ position was that an expert could read word for word

the treatise or study into evidence but that the document could not be admitted under Rule 803(18),

a proposition with which defendants agreed. Further, the Court clarified that defendants had no

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objection to the testimony being offered by the expert witness, only to the request by plaintiffs for

the Court to admit the document (Dr. Stevens).

The Court determined that, even if objectionable under Rule 803(18), Rule 703 trumped

Rule 803(18). Pursuant to Rule 703, even if inadmissible, the proponent of the opinion may

disclose the otherwise inadmissible facts or data to the jury if probative in helping the jury evaluate

the opinion and if the probative value substantially outweighs the prejudicial effect. See Fed. R.

Evid. 703. As a result, the Court received the exhibit at issue during Dr. Stevens’ testimony and

other similar exhibits as evidence offered by plaintiffs during this bench trial.

The Court

recognized a continuing objection from defendants and ruled consistently on the objections.

Later during the bench trial, defense counsel represented that all counsel agreed, based

upon Federal Rule of Civil Procedure 65(a)(2), that evidence received on the motion for

preliminary injunction that would be admissible at trial becomes part of the trial record and need

not be repeated. As a result, defense counsel claimed that, for purposes of trial, all treatises and

studies referred to by defendants’ witnesses at the preliminary injunction hearing were admitted

for purposes of the bench trial (Dr. Stevens; Dr. Buffington). Defense counsel requested to

incorporate the prior testimony of Dr. Antognini and Dr. Buffington offered at the preliminary

injunction hearing and to move into evidence for purposes of the bench trial the following treatises,

studies, and articles: Defense Exhibits 5, 6, 12, 16, 25, 26, 35–42, 44–73 (argument post-bench

trial).

Plaintiffs’ counsel disagreed with the general representation regarding the parties’

purported agreement, asserting that the parties agreed prior to the bench trial to abide by Federal

Rule of Civil Procedure 65(a)(2) and preserved all objections, meaning only if an item is

admissible at trial should it become part of the trial record (Dr. Stevens). Further, plaintiffs’

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counsel raised a number of objections to the specific defense exhibits referenced (argument postbench trial). Specifically, plaintiffs’ counsel recounted that, at the preliminary injunction hearing,

defense counsel gave the title of a treatise, study, or article; asked Dr. Antognini or Dr. Buffington

if he relied on it; and then admitted it at the hearing in many instances with no further discussion

or reference to the exhibit. Plaintiffs’ counsel observed that the treatise, article, or study cited is

hearsay under Rule 803(18), as defense counsel previously claimed, but there was no discussion

with the witness at the preliminary injunction hearing or bench trial regarding the treatise, article,

or study, nor was there a showing under Rule 703 that admission would be more probative than

prejudicial (argument post-bench trial).

Defense counsel admitted that, as a result of the Court’s ruling with respect to Rule 703

and the admission of each treatise, article, or study discussed by plaintiffs’ experts at the bench

trial, defendants were belatedly seeking to meet proof with proof (argument post-bench trial).

As an initial matter, the Court observes that the evidentiary ruling was made by the Court

during the bench trial in plaintiffs’ case-in-chief, specifically with Dr. Stevens’ testimony, before

defendants’ experts ever took the stand to testify during the bench trial, including Dr. Antognini

and Dr. Buffington. Defendants did not address this matter during their presentation of proof with

defense witnesses but certainly could have done so.

In their post-trial submission, plaintiffs withdraw their objections to the following exhibits,

having reviewed the preliminary injunction record: Defendants’ Exhibits 12, 26, 36, 40, 43, 49,

50, 51, 62, 68, 70, 73 (Dkt. No. 198, at 24–25 n.2). Plaintiffs maintain their objection to the

remaining exhibits, arguing that defendants “have made no showing that their probative value

outweighs their prejudicial effect under Rule 703.” (Id. at 25 n.2).

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The Court has examined the preliminary injunction record in this matter, as well as the trial

record. This dispute goes to whether to admit the purportedly scientific source material on which

the experts claim to rely. Many of these studies involve BIS data. As plaintiffs acknowledge:

the experts have been using the BIS studies for two distinct purposes. The first

purpose is to show changes in brain activity relative to either the passage of time or

the injection of more [M]idazolam. This is a valid exercise and provides useful

evidence for the ceiling effect of [M]idazolam or for the duration of the drug’s

effect. The second purpose is to show that [M]idazolam itself renders a person

unaware to painful stimulus. This use is more questionable. As both Drs.

Antognini and Van Norman explained, the BIS monitor can’t reliably gauge

whether someone is unaware and ready for surgery. Moreover, Dr. Buffington was

forced to admit on cross-examination at trial that the studies he relies on don’t

exhibit general anesthesia even by the manufacturer’s stated criterion (a score

below 60 on a 100-point scale). Faced with this data, Dr. Buffington contended

that the drug generates “deep sedation” and that there’s no requirement to achieve

general anesthesia in the first place. That point undermines his earlier testimony

that midazolam will achieve a state of general anesthesia necessary to prevent the

inmates from feeling pain from the second and third drugs.

(Dkt. No. 198, at 24).

The Court is the factfinder in this bench trial. When examining all admissible record

evidence in this case, the Court is mindful of the parties’ arguments regarding the studies, the

weight to be afforded the studies, and the weight to be afforded to the expert testimony, if any,

offered in claimed reliance on the studies. Having considered the parties’ arguments and legal

authority, the Court rules on each exhibit defendants moved to admit consistent with Court’s

Exhibit A attached hereto.

IV.

Conclusions Of Law

The Court now turns to the merits of the parties’ claims.

Claim 1: The Eighth Amendment Prohibition On Cruel And Unusual

Punishment And The Arkansas Midazolam Protocol

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“[C]apital punishment is constitutional. It necessarily follows that there must be a means

of carrying it out.” Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality opinion)6 (citation omitted).

The Eighth Amendment, made applicable to the states through the Due Process Clause of the

Fourteenth Amendment, proscribes “cruel and unusual punishment.” U.S. Const. amend. VIII;

see also Hall v. Florida, 572 U.S. 701, 707–08 (2014) (recognizing that the Fourteenth

Amendment applies the Eighth Amendment’s restrictions on “cruel and unusual punishments” to

the states). The Eighth Amendment’s protections do not evaporate because a person commits

“heinous crimes.” Roper v. Simmons, 543 U.S. 551, 560 (2005). However, those protections

derived from the Eighth Amendment do not guarantee a pain-free execution. See Bucklew v.

Precythe, 139 S. Ct. 1112, 1124 (2019).

In the execution context, “[t]he Eighth Amendment does not come into play unless the risk

of pain associated with the State’s method [of execution] is ‘substantial when compared to a known

and available alternative.’” Id. at 1125 (quoting Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015).

Thus, courts analyze Eighth Amendment challenges to a state’s method of execution under the

two-prong Baze/Glossip test. See id. at 1129 (stating that “anyone bringing a method of execution

claim alleging the infliction of unconstitutionally cruel pain must meet the Baze-Glossip test”).

Under the first prong, a method-of-execution challenger must establish that a state’s chosen

method “presents a risk that is ‘sure or very likely to cause serious illness and needless suffering,’

and give rise to ‘sufficiently imminent dangers.’” Glossip, 135 S. Ct. at 2737 (quoting Baze, 553

U.S. at 50). Stated differently, to prevail on a method-of-execution claim, “there must be a

‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison

In Bucklew v. Precythe, the Supreme Court noted that Glossip v. Gross, 135 S. Ct. 2726

(2015), clarified that Chief Justice John Roberts’s plurality opinion in Baze was controlling under

Marks v. United States, 430 U.S. 188 (1977). See 139 S. Ct. 1112, 1121 (2019).

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officials from pleading that they were ‘subjectively blameless for purposes of the Eighth

Amendment.’” Id. (quoting Baze, 553 U.S. at 50). The Baze/Glossip test’s second prong requires

a method-of-execution challenger to demonstrate “a feasible and readily implemented alternative

method of execution that would significantly reduce a substantial risk of severe pain and that the

State has refused to adopt without a legitimate penological reason.” Bucklew, 139 S. Ct. at 1125

(citing Glossip, 135 S. Ct. at 2732–38, and Baze, 553 U.S. at 52).

Plaintiffs claim in count one of their amended complaint that the use of Midazolam in the

Arkansas Midazolam Protocol poses an objectively intolerable risk of substantial harm that is sure

or very likely to occur and that alternative execution methods that would avoid the risk are feasible

and readily available to the ADC (Dkt. No. 117, ¶ 26). The Court examines each prong of the

Baze/Glossip test in the light of the proof presented by the parties.

Baze/Glossip First Prong

To prevail on their Eighth Amendment challenge, plaintiffs must first prove that

Arkansas’s current method of execution “entails a substantial risk of severe pain.” Glossip, 135

S. Ct. at 2731. Neither the Supreme Court nor the Eighth Circuit has provided a bright line

delimiting when a risk is substantial or what threshold of pain is sufficiently severe so as to give

rise to an “objectively intolerable risk of harm.” Id. at 2737 (quoting Baze, 553 U.S. at 50). The

Court looks to the case law for guidance.

In Baze, the Supreme Court stated that “a condemned prisoner cannot successfully

challenge a State’s method of execution merely by showing a slightly or marginally safer

alternative.” 553 U.S. at 51. The Baze Court warned that hinging an Eighth Amendment violation

on such a showing threatened “to transform courts into boards of inquiry charged with determining

‘best practices’ for executions.” Id. Under Baze, the mere fact that “an execution method may

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result in pain, either by accident or as an inescapable consequence of death, does not establish the

sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” 553 U.S. at 50.

To illustrate this idea, the Supreme Court compared two circumstances to explain what

constitutes an objectively intolerable risk. The Court referred to its plurality decision in Louisiana

ex rel. Francis v. Resweber, 329 U.S. 459 (1947), which “upheld a second attempt at executing a

prisoner by electrocution” after a mechanical issue thwarted the first attempt. Id. The Baze Court

noted that the second attempt did not violate the Eighth Amendment because the first attempt was

“‘an accident, with no suggestion of malevolence[.]’” Id. (quoting Resweber, 329 U.S. at 463).

The Baze Court remarked that “an isolated mishap alone does not give rise to an Eighth

Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty,

or that the procedure at issue gives rise to a ‘substantial risk of serious harm.’” Id. (quoting Farmer

v. Brennan, 511 U.S. 825, 842 (1994)). In comparison, the Baze Court explained that, if the state’s

subsequent attempt to execute the prisoner had followed “a series of abortive attempts at

electrocution,” the subsequent execution “would demonstrate an ‘objectively intolerable risk of

harm’ that officials may not ignore.” Id. (first quoting Resweber, 329 U.S. at 471 (Frankfurter, J.,

concurring); then citing Brennan, 511 U.S. at 846 n.9). Stated differently, if the state attempted to

execute a prisoner using a method that had repeatedly failed, that would suggest that the state was

acting wantonly or that the procedure at issue presented a “substantial risk of serious harm.” Id.

(quoting Brennan, 511 U.S. at 842).

In Bucklew, the Supreme Court confronted an as-applied7 challenge to Missouri’s lethal

injection method of execution, a single-drug protocol using the sedative pentobarbital. See 139 S.

Bucklew settled the question of whether “as-applied” challenges are subject to the same

analysis as facial challenges. Mr. Bucklew conceded that Missouri’s “lethal injection protocol

[was] constitutional in most applications,” but he argued that, because of his unique medical

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Ct. at 1120–22. There, the Supreme Court emphasized that it “has yet to hold that a State’s method

of execution qualifies as cruel and unusual,” but it accepted the possibility that a state may cross

the line and credited Baze with providing “critical guidance” in drawing this line of demarcation.

Id. at 1124, 1125.

As originally understood, the Eighth Amendment forbid as cruel only those methods that

intensified the death sentence by “superadd[ing] terror, pain, or disgrace,” to the punishment. Id.

at 1124. Thus, the Baze/Glossip test’s first prong incorporates the “available-alternative” prong to

conduct a comparative analysis to answer whether a method of execution “cruelly superadds pain

to the death sentence.” Id. at 1126 (citing Glossip, 135 S. Ct. at 2732–38, and Baze, 553 U.S. at

52). “Distinguishing between constitutionally permissible and impermissible degrees of pain . . .

is a necessarily comparative exercise”; it “isn’t something that can be accomplished by examining

the State’s proposed method in a vacuum, but only by ‘compar[ing]’ that method with a viable

alternative.” Id. (alteration in original) (quoting Glossip, 135 S. Ct. at 2737–38).

The Eighth Circuit’s analysis in Zink v. Lombardi also examines the interplay between the

Baze/Glossip test’s two prongs and provides insight into whether a State’s method of execution is

cruel and unusual. See 783 F.3d 1089, 1097 (8th Cir. 2015) (en banc). There, the Eighth Circuit

construed Baze as standing for the proposition that a state’s refusal “to adopt a readily available

alternative method of execution that would significantly reduce a substantial risk of severe pain .

. . can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” Id. (citation and internal

condition, the protocol as applied to him would be cruel and unusual punishment. Bucklew, 139

S. Ct. at 1119. Mr. Bucklew argued that the Baze/Glossip test “should govern only facial

challenges, not as-applied challenges like his.” Id. at 1122. Thus, Mr. Bucklew sought a test that

divorced the “available-alternative” prong. Id. The Eighth Circuit rejected the argument, holding

that neither precedent nor history countenances a deviation from the substantive test. See id. at

1126–29.

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quotation marks omitted). The Zink court, however, admonished against resting an Eighth

Amendment method of execution claim under the Baze/Glossip test’s first prong based “entirely

on hypothetical and speculative harms that, if they were to occur, would only result from isolated

mishaps.” Id. at 1102.

Here, all parties agree that the generally accepted use of Midazolam in a clinical setting

has evolved over time. Currently, the generally accepted use of Midazolam is as a preoperative

sedative agent in the pre-operative holding area. Although Dr. Van Norman testified that neither

she nor any reputable anesthesiologist to her knowledge would use Midazolam as the solo drug to

produce general anesthesia for a surgical procedure today, when she trained in cardiac anesthesia

beginning in the late 1980s and early 1990s, she trained by using a combination anesthetic that

included a high-dose benzodiazepine in combination with a high-dose narcotic, plus a muscle

paralytic agent. At some point in her practice, Midazolam was the high-dose benzodiazepine used.

At some point later in her practice, the use of Midazolam in this manner was discontinued. Dr.

Van Norman maintains that, in this protocol under which she trained, a high-dose narcotic was

used because Midazolam has no clinically significant analgesic properties, and the narcotic was

administered for pain relief.

The Arkansas Midazolam Protocol calls for the administration of a much higher dose of

Midazolam than the FDA-approved dose. Even if there is general medical consensus that

Midazolam has a ceiling effect, there is no such consensus on the dose of Midazolam at which a

ceiling effect is exhibited.

By examining the Arkansas Midazolam Protocol, Dr. Van Norman is unable to say at what

point any individual would experience extreme suffering and, instead, claims that that will vary

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from person to person. Further, Dr. Van Norman conceded that she has no direct scientific data to

support the proposition that any inmate experienced severe pain and suffering during an execution.

With respect to the testimony offered by eyewitnesses to the April 2017 Arkansas

executions, the Court observes, as an initial matter, that eyewitnesses to the same executions are

not all in agreement as to what they observed. Additionally, according to the FDA-approved

package insert, Midazolam’s reported side effects include involuntary movements and muscle

tremors. Coughing is generally a reflex response; it does not have to be a conscious response.

Plaintiffs and defendants’ expert witnesses agree that Midazolam can in some cases, but not all,

cause an individual to stop breathing due to either the central mechanism, meaning that the drive

to breathe just stops, or from upper airway obstruction, resulting from the tongue falling back, the

airway muscles collapsing in a way, and the individual being unable to maintain his airway. These

events can lead to feelings of air hunger and suffocation and can often arouse an individual out of

sedation to breathe a little harder or to make harder respiratory efforts to get air in. However, it is

generally understood that upper airway obstruction is not an indicator or denier of consciousness.

In other words, nothing about the reported movements or sounds during the most recent executions

as described by the eyewitnesses, even if the Court credits all testimony as favoring plaintiffs,

pushes plaintiffs closer to meeting their burden to prove that Arkansas’s current Arkansas

Midazolam Protocol entails a substantial risk of severe pain.

In sum, based on the record before it, the Court determines that plaintiffs have failed to

meet the first prong of the Baze/Glossip test. The Court cannot conclude that plaintiffs have proven

that the Arkansas Midazolam Protocol entails a substantial risk of severe pain as a result of the use

of a 500-mg dose of Midazolam as the first drug in the three-drug protocol. See In re Ohio

Execution Protocol Litig. (Hennes), 946 F.3d 287, 290 (6th Cir. 2019) (reasoning that the use of a

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500-mg dose of Midazolam in Ohio’s three-drug execution protocol did not violate the Eighth

Amendment, even though it could cause pulmonary edema, because there was no evidence in the

record that “a person deeply sedated by a 500 milligram dose of Midazolam is still ‘sure or very

likely’ to experience an unconstitutionally high level of pain”). Plaintiffs’ proof falls short.

Baze/Glossip Second Prong

Because plaintiffs fail to meet their burden with respect to the first prong of Baze/Glossip,

plaintiffs cannot prevail on their Eighth Amendment claim. Even if plaintiffs could meet this

burden, they would still fail on the evidence before the Court to satisfy the Baze/Glossip test’s

second prong. Under this second prong, “an inmate cannot successfully challenge a method of

execution under the Eighth Amendment unless he identifies an alternative that is feasible, readily

implemented, and in fact significantly reduces a substantial risk of severe pain.” Bucklew, 139 S.

Ct. at 1121 (citation and internal quotations omitted).

The burden that the Baze/Glossip test places on an inmate “can be overstated,” as “[a]n

inmate seeking to identi

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