Amicus Curiae Brief — Hill v. McDonough

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72) ee rye amt 7

No. 05-8794 | MAR 6 ~ 2036

IN THE

Supreme Court of the United States

CLARENCE E. HILL,

Petitioner,

JAMES R. MCDONOUGH, INTERIM SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS, et al.

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICUS CURIAE

DARICK DEMORRIS WALKER

SUPPORTING PETITIONER

DAVID W. OGDEN

Counsel of Record

LARA A. ENGLUND

HANNAH S. ABD

ERIC R. COLUMBUS

ALISON J. NATHAN

WILL L. CROSSLEY, JR.

WILMER CUTLER PICKERING

HALE AND DORR LLP

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

QUESTIONS PRESENTED

1. Whether a complaint brought under 42 U.S.C.

§ 1983 by a death-sentenced state prisoner, who seeks to

stay his execution in order to pursue a challenge to the

chemicals utilized for carrying out the execution, is properly

recharacterized as a habeas corpus petition under 28 U.S.C.

§ 2254?

2. Whether, under this Court’s decision in Nelson, a

challenge to a particular protocol the State plans to use dur-

ing the execution process constitutes a cognizable claim un-

der 42 U.S.C. § 1983?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..........c.cccscsorsessrseressereseerseseseeee eee

TABLE OF AUTHORITIEG............ccccccssscssssssersesesveseseressosecenees v

STATEMENT OF INTEREST............ccsccocscssssvserersersesersesesens 1

SSUTIREARRY OF ARRGIUBIIOIND ccsccsctsicevsesccessnscecovsssovsbinssccenvonicia 1

GRATE OUPE © scisksiinsinitcisiitinienpisiicuiueptintetsaginniiasasianstilintnbgtuininnasdeisiitiuhin’ 3

I. SECTION 1983 IS A VITAL TOOL TO ENSURE

THAT LETHAL INJECTION IS CONDUCTED IN A

CONSTITUTIONAL MANNER. .....cccscosscsssssscsscsececossescesvesseess 3

II. VIRGINIA’S PROTOCOL, WHICH GREATLY RE-

SEMBLES THE PROTOCOLS USED BY ALL

STATES THAT PERFORM EXECUTIONS BY LE-

THAL INJECTION, IS SEVERELY DEFICIENT

AND EXPOSES THE INMATE TO SERIOUS, UN.

NECESSARY, AND UNCONSTITUTIONAL HARM .............. 6

A. Virginia’s Lethal Injection Protocol Raises

Grave Concern That Condemned Inmates

Will Suffer Excruciating Paim................:ccccsssessesseeees 6

1. Virginia’s Lethal Injection Protocol

Requires Prison Employees Without

Adequate Training to Administer

Dangerous Drugs Via a Dangerous

FPN sisicdiadicticbinbuiatlntnsreicthdeabevnleiaiavetiiniyetgi 7

a) Virginia has chosen a three-drug

combination that may inflict ex-

treme ANd UNNECESSALY AGONY.........000ce000 7

b) Virginia’s choice of execution pro-

tocol and executioners needlessly

increases the danger that the in-

mate will suffer unbearable pain...........++- 8

(iii)

TABLE OF CONTENTS—Continued

Page

2. Numerous Aspects of Virginia’s Le-

thal Injection Protocol Raise Serious

Concerns About Whether Virginia Is

Taking Adequate Steps To Ensure

That Inmates Do Not Suffer Excruci-

a iia sok sataiabaesceiiincseticibentniinetie 1]

B. Virginia Can Execute Inmates By Lethal

Injection In A Way That Does Not Raise

Constitutional COncerne..........0ccccccsrssccerserseesrseseeseses 16

CBI is Fip Pal ncencibevcisdciainsiinsinintartebinivnnensincnhiiguianiinhaaininnasl 18

TABLE OF AUTHORITIES

CASES

Page(s)

Anderson v. Jones, No. CIV-05-825-F (W.D. Okla.

PORE AEGIS CELESTE 26 UDG eae OTC 3

Anderson v. Mullin, No. 04-6397 (10th Cir. May 31

RRS SSSR CR A AMAT 2 See RO See Oe 3

Banks v. Dretke, 540 U.S. 668 (2004) .000.....ccccccececeecsenscenseeeeeees 3

Evans v. Saar, No. 1:06-cv-00149-BEL (D. Md.).................... 3

Evans v. State, No. 107, 2006 WL 269980 (Md. Feb.

RS NE REL ET AE Ee ROM BONE OOS OLE CETTE 3

Morales v. rer cane Nos. C 06-219 JF & C 06-926

JF RS, 2006 WL 335427 (N.D. Cal. Feb. 14,

RRRIER MSS EES TRIN 29: IE 2 ade Rae: PRR 15, 17

Nelson v. Campbell, 541 U.S. 637 (2004) 0000... cee ceecseeeeeees ii, 4

Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md. 2004).................. 16

Page v. Beck, No. 5:04-ct-00004-BO (E.D.N.C. Aug.

a 3

Raby v. Livingston, No, H-05-765 (S.D. Tex. Nov.

i osiepnonal 3

Taylor v. Gibson, No. 6:01-CV-00252-JHP-KEW

Ins Un a I a olaleetl 3

Walker v. Johnson, No. 05-0934 (E.D. Va. Dec. 20.

FREESE SS Re Oe ae er ae AP OT IO 5

Walker v. Johnson, No. 05-0934 (E.D. Va. Oct. 28

ARREARS A I GeO ER HATE SSRIS OCR 4,5,8

Walker v. Johnson, No. 05-0934 (E.D. Va. Feb. 8

ESE RAE TRIER EET Ss BES SON Sah FeO DEN AP Aa OE 4,5

Walker v. True, 126 S. Ct. 1028 (2006)............ccccessecssececeseseeeees 3

Walker v. True, 399 F.3d 315 (4th Cir. 2005) .........cccccceceeseeees 3

STATUTES

a ssisenssipaieiblilint ii

I aeeniination ii, 1

EN SITS AERO SE STOVER ED 10

ee ee Pdi tier ieitinntenitensericenccmadsienssieiinetgnetianannes 10

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Ist Try Fails to Execute Texas Death Row Inmate,

Orlando Sent., Apr. 23, 1998, at A16

Page(s)

Cook, Rhonda, Gang Leader Executed By Injection

Death Comes 25 Years After Boy, 11, Slain,

Atlanta J. Const., Nov. 7, 2001, at B1

. 16

Grazyk, Michael, Convicted Killer Gets Lethal In-

jection, Herald (Denison, Tex.), May 8, 1992

. 16

Karwath, Rob & Kuczka, Susan, Gacy Execution

Delay Blamed on Clogged IV Tube, Chicago

Trib., May 11, 1994, at 1

O’Neil, Tim, To0o0-Tight Strap Hampered Execution,

St. Louis Post-Dispatch, May 5, 1995, at B1

Overall, Michael & Smith, Michael, 22-Year-Old

Killer Gets Early Execution, Tulsa World, May

SD Peep GN a icchcittaciincetibatiatcnstiticacedsins

.- 16

Witness to a Botched Execution, St. Louis Post-

Dispatch, May 8, 1995, at 6B ......

STATEMENT OF INTEREST'

Amicus Darick Demorris Walker is a death-sentenced

inmate in Virginia who is uniquely positioned to provide the

Court with information regarding the importance of the

availability of 42 U.S.C. § 1983 to challenge the method by

which states administer lethal injection as a form of execu-

tion. He has filed such a challenge in Virginia and in the

course of pursuing his lawsuit, he has obtained substantial

discovery regarding Virginia’s lethal injection procedure,

which is similar in key respects to the procedure used by all

other states that employ lethal injection, including Florida.

The information learned by Amicus regarding Virginia is not

readily available to the public and would not otherwise be

known by the Court without the submission of an amicus

brief of this kind. Amicus, therefore, submits this amicus

brief to inform the Court about serious problems with state

lethal injection protocols and the need for Section 1983 to

enable death-sentenced inmates to redress such problems.

SUMMARY OF ARGUMENT

Virginia, like other states, has chosen a lethal injection

procedure that raises grave constitutional concerns. Amicus

has learned via discovery that Virginia entrusts the admini-

stration of its three-drug chemical combination to prison

employees who lack any training in administering anesthe-

sia. The executioners—led by a high school graduate with

no medical training whatsoever—have no idea how to de-

termine whether an inmate has achieved a sufficiently deep

level of sedation that he is adequately shielded from the

agonizing pain caused by the lethal chemicals. Even if the

executioners had been taught how to monitor the level of

sedation, their training would be useless because they are

physically separated from the inmate by a curtain during the

' No counsel for a party authored this brief in whole or in part, and

no person or entity other than counsel to Amicus made a monetary contri-

bution to the preparation or submission of this brief. Letters from the

parties consenting to the filing of this brief are on file with the Clerk.

entire procedure. And the inmate cannot express conscious-

ness or pain because he has been administered, for cosmetic

reasons, a paralyzing drug that neither aids his anesthesia

nor hastens his death.

The state’s protocol itself reveals either a lack of con-

cern about the infliction of extreme pain or ignorance of how

each chemical operates. For example, if the prisoner re-

mains alive ten minutes after the drugs are applied, the pro-

tocol directs the executioner to readminister the painful kill-

ing drugs—but not the anesthesia. If the inmate is still alive

after ten minutes, however, it is probably because the exe-

cutioners failed to properly administer the drugs—and that

the anesthesia either wore off or never took hold. Yet Vir-

ginia will not apply additional anesthesia.

Virginia adheres to its unsound method of conducting

lethal injection despite evidence of problems in other states

that use similar methods and despite the ready availability

of alternative methods. Virginia could readily use different,

less painful drugs, or it could employ personnel who are

trained in ensuring that the person is properly anesthetized

and therefore does not experience pain. Without meaningful

explanation, the state rejects both options.

Absent a cause of action under Section 1983, Amicus

would not have been able to expose the astonishing inade-

quacies inherent in the design and implementation of Vir-

ginia’s protocol. The state has fought tenaciously to shield

its procedures from public disclosure and judicial review.

Only Amicus’s lawsuit has forced Virginia to disclose its pro-

cedures—over the Commonwealth’s vehement and repeated

objections before both the district judge and the magistrate

judge. Even after disclosing its procedures in discovery,

Virginia unsuccessfully tried to prevent Amicus from pre-

senting information about those procedures to this Court.

This penchant for secrecy underscores the need for courts to

adjudicate Section 1983 challenges to specific lethal injection

protocols in order to ensure that lethal injection is in fact

carried out in a constitutional manner.

ARGUMENT

I. SEcTION 1983 Is A VITAL TOOL TO ENSURE THAT LETHAL

INJECTION Is CONDUCTED IN A CONSTITUTIONAL MANNER

Amicus has filed his suit to challenge serious yet wholly

avoidable problems with Virginia’s lethal injection protocol.

His suit questions not whether he may be executed, nor even

when, but rather how. The tight veil of secrecy in which

Virginia and other states cloak their execution procedures

prevents death-sentenced inmates from learning the details

about how the state intends to kill them. In pursuing his

Section 1983 claim, Amicus has learned new and disturbing

facts about Virginia’s lethal injection procedure, which he

discusses in depth below. See infra pp. 8-15. Amicus accord-

ingly believes that Section 1983 is critical to ensuring that if

he is to be executed, his execution does not unnecessarily

and unconstitutionally risk causing him excruciating pain.

Amicus’s execution is unscheduled. He currently has

pending two separate habeas petitions: a petition on remand

from this Court for reconsideration in light of Banks v.

Dretke, 540 U.S. 668 (2004),’ and an authorized successive

petition raising a claim of mental retardation in which the

Fourth Circuit has ordered an evidentiary hearing.’

? See Walker v. True, 126 S. Ct. 1028 (2006).

* See Walker v. True, 399 F.3d 315 (4th Cir. 2005). Amicus is aware

of pending lawsuits in at least four other states—Maryland, North Caro-

lina, Oklahoma, and Texas—that are being pursued while collateral at-

tacks remain outstanding. In Oklahoma, two inmates whose federal ha-

beas petitions are still pending have filed § 1988 suits. See Anderson v.

Jones, No. C1V-05-825-F (W.D. Okla. July 20, 2005) (§ 1983 suit filed by

two inmates); Anderson v. Mullin, No. 04-6397 (10th Cir. May 31, 2005)

(habeas petition); Taylor v. Gibson, No. 6:01-CV-00252-JHP-KEW (E.D.

Okla. Nov. 29, 2001) (same). In Maryland, an inmate is pursuing a § 1983

claim while his state collateral attack remains pending. See Evans v.

Saar, No. 1:06-cv-00149-BEL (D. Md.) (§ 1983 suit); Evans v. State, No.

107, 2006 WL 269980 (Md. Feb. 6, 2006) (state collateral attack remains

pending). The same is true for inmates in Texas and North Carolina. See

Raby v. Livingston, No. H-05-765 (S.D. Tex. Nov. 16, 2005) (denying mo-

tion to dismiss § 1988 claim and discussing procedural posture); Page v.

Beck, No. 5:04-ct-00004-BO (E.D.N.C. Aug. 5, 2004) (same).

In light of this Court’s decision in Nelson v. Campbell,

541 U.S. 637 (2004), and in light of his concerns about the

grave yet wholly unnecessary risk of severe pain imposed by

Virginia’s lethal injection protocol, Amicus filed a Section

1983 complaint in the Eastern District of Virginia on August

10, 2005. The district court denied Virginia’s motion to dis-

miss and held that Amicus stated a claim under Section

1983.‘ The district court subsequently denied Virginia’s mo-

tion to exclude from the challenge all consideration of the

selection, training and qualifications of personnel involved in

administering lethal injection.’

Following the denial of Virginia’s motion to dismiss,

Amicus has conducted extensive discovery and has learned a

considerable amount about the grave inadequacies of Vir-

ginia’s lethal injection process. The facts that Amicus has

learned, and the unnecessary threat of severe pain that Vir-

ginia gratuitously imposes upon the persons that it executes,

are a testament to the necessity of Section 1983 as a vehicle

to investigate and prosecute such claims.

Without Section 1983, information about the method of

lethal injection employed by states and the unnecessary risk

of pain that results from these methods would be difficult, if

not impossible, to come by. Virginia—like many other

states—is extraordinarily secretive about its execution pro-

tocols. Not until 2004 did Virginia even disclose the drugs

that it uses to execute inmates. Even that disclosure was

not accompanied by any disclosure of the training or qualifi-

cations of the personnel administering lethal injection.

In Amicus’s pending lawsuit, the Commonwealth has

fought relentlessly to avoid disclosing anything about its

procedures; only by repeated and persistent motions prac-

tice before the district court has Amicus succeeded in ex-

tracting information. Even after losing its motion to dismiss

Amicus’s Section 1983 suit, Virginia continued to wage a

* See Walker v. Johnson, No. 05-0934-¢B.D. Va. Oct. 28, 2005).

* See Walker v. Johnson, No. 05-0934 (E.D. Va. Feb. 8, 2006).

two-front war aimed at shielding its execution procedures

from the light of day. Before the district judge, Virginia

filed three subsequent motions attempting to dismiss, post-

pone, or limit Amicus’s lethal injection challenge. All were

denied.°

Before the magistrate judge, Virginia argued repeat-

edly that its security concerns exempted it from the normal

discovery obligations of a civil litigant. Virginia adamantly

refused to disclose its execution manual until forced to do so

by the court—and even then, Virginia insisted that counsel

to Amicus sign a strict confidentiality agreement pursuant

to a protective order. Similarly, Virginia adamantly resisted

Amicus’s attempts to depose its current executioners until

the district court intervened and ordered Virginia to do so.

Virginia even failed to produce any relevant documents

other than its execution manual until Amicus filed a motion

to compel. And finally, the Commonwealth fought Amicus’s

attempt to amend the protective order to present this brief

to the Court, forcing Amicus to seek and receive specific

permission from the magistrate judge.

Only through such discovery—over the Common-

wealth’s heated objections—has Amicus been able to learn

the details of Virginia’s lethal injection process and the

magnitude of risk inherent therein.’

® See Walker v. Johnson, No. 05-0934 (E.D. Va. Oct. 28, 2005) (deny-

ing motion to dismiss); Walker v. Johnson, No. 05-0934 (E.D. Va. Dec. 20,

2005) (denying motion for reconsideration of order denying motion to dis-

miss lethal injection claim; denying motion for certification as an inter-

locutory appeal); Walker v. Johnson, No. 05-0934 (E.D. Va. Feb. 8, 2006)

(denying motion to exclude all consideration of selection, qualifications,

and training of personnel administering the lethal injection). The motion

for reconsideration was granted insofar as it related to Virginia’s alterna-

tive option of electrocution.

’ Because of Virginia’s continuing attempts to keep its method of

execution secret, Amicus is currently subject to a broad protective order

issued by the magistrate judge at Virginia’s request. See Protective Or-

der, Walker v. Johnson, No. 05-0934 (E.D. Va. Dec. 9, 2005) (Jones, Mag.

J.); Hearing on Motions Oral Argument Tr., Dec. 9, 2005, at 40 (“Every-

II. VIRGINIA’S PROTOCOL, WHICH GREATLY RESEMBLES THE

PROTOCOLS USED BY ALL STATES THAT PERFORM EXECU-

TIONS BY LETHAL INJECTION, IS SEVERELY DEFICIENT AND

EXPOSES THE INMATE TO SERIOUS, UNNECESSARY, AND UN-

CONSTITUTIONAL HARM

A. Virginia’s Lethal Injection Protocol Raises Grave

Concern That Condemned Inmates Will Suffer

Excruciating Pain

On execution day in Virginia, the Commonwealth places

the inmate in the hands of prison employees who lack the

appropriate training to conduct the potentially painful pro-

cedure that Virginia uses to conduct executions by lethal

injection. Rather than adopt one of the many possible ways

of performing lethal injection without risk of severe pain—or

employ trained professionals who would virtually eliminate

that risk—Virginia, like every state that conducts execu-

tions by lethal injection, does so using a method that cava-

lierly risks excruciating pain. Even Virginia’s own expert

witness concedes that the protocol is constructed in this way

for cosmetic reasons, to make the prisoner appear serene.’

Yet this appearance of serenity may actually mask unbear-

able pain.

The protocol for lethal injection used by Virginia and by

other states raises serious Eighth Amendment concerns.

These concerns arise from the complexity of the mechanism

thing else that we have been talking about is counsel's eyes only until oth-

erwise allowed.”). Amicus has obtained specific permission (over the

state’s vigorous objections) to amend the protective order to discuss cer-

tain enumerated topics in this brief. See Walker v. Johnson, No. 05-0934

(E.D. Va. Feb. 8, 2006) (Jones, Mag. J.). Accordingly, Amicus confines

himself to discussion of those topics, and cannot reveal all that he knows

about Virginia’s execution protocol and how it has been implemented.

* Expert Report of Dr. Mark Dershwitz in Walker v. Johnson, at 4

(Jan. 23, 2006). All expert reports, depositions, interrogatory responses

anc letters cited in this brief are available from counsel to Amicus upon

request by this Court. All such documents will be provided in redacted

form to conform to the protective order that has been issued by the mag-

istrate judge at Virginia’s behest. See supra n.7.

for administering the drugs, the use of personnel with in-

adequate training to monitor the procedure, and the use of

chemicals that, without adequate safeguards, can cause ex-

treme pain. These concerns deserve full review by federal

courts.

1. Virginia's Lethal Injection Protocol Requires

Prison Employees Without Adequate Training

to Administer Dangerous Drugs Via a Danger-

ous Procedure

a. Virginia has chosen a three-drug com-

bination that may inflict extreme and

unnecessary agony

Virginia—like Florida, and like every other state that

conducts lethal injection—uses a three-drug chemical com-

bination that consists of an anesthetic, a muscle paralyzer,

and a painful drug that kills by stopping the heart. In Vir-

ginia, the drugs are sodium thiopental, pancuronium bro-

mide, and potassium chloride, respectively.

Sodium thiopental is an ultra-short-acting anesthetic

that is customarily used in surgery to induce anesthesia for a

brief period of time. The drug is packaged in powdered form

and must be properly mixed with water in the right concen-

tration in order to have the intended effect. If sodium thio-

pental is not properly delivered into the inmate's blood-

stream, then he may never become adequately anesthetized.

Alternatively, even if the inmate is initially anesthetized, his

anesthesia may wear off prior to, or during, the application

of the subsequent drugs—the last of which is, as discussed

below, extraordinarily painful.

Pancuronium bromide is a neuromuscular blocking

agent that acts by paralyzing the muscles—yet has no effect

on awareness, cognition, or sensation. It is used in surgery

by trained anesthesiologists when it is imperative that the

patient not move during the surgery—such as, for example,

during delicate eye surgery, in which the slightest move-

ment could prove catastrophic. When pancuronium bromide

is injected in the quantity mandated by Virginia’s protocol,

an inmate is unable to make any voluntary movements—

much less talk or cry out in pain. If he is conscious and in

excruciating agony, he will have no way of expressing it. He

will be trapped in a chemical tomb.”

Potassium chloride is an electrolyte that when adminis-

tered rapidly and in a high dose causes cardiac arrest. Injec-

tion of concentrated potassium activates sensory nerve fi-

bers, causing severe pain as the drug travels through the

venous system. There is universal medical agreement that,

without adequate anesthesia, an injection of a potassium

chloride overdose causes excruciating pain prior to causing

cardiac arrest."

b. Virginia’s choice of execution protocol

and executioners needlessly increases

the danger that the inmate will suffer

unbearable pain

If an inmate is properly anesthetized for the entire le-

thal injection process, then—by definition—he will feel no

pain, except for the trivial amount of pain associated with

the initial insertion of the needle. But Virginia, for reasons

of its own choosing, has failed to take steps that would en-

sure that an inmate is properly anesthetized. The Com-

monwealth enlists executioners who lack training in assess-

ing anesthesia and deploys them in a way that makes it par-

ticularly difficult to ascertain whether an inmate is properly

anesthetized.

Virginia assigns execution responsibilities to prison em-

ployees who have other jobs and who work on the execution

team as a sideline without receiving extra compensation."

* See Expert Report of Dr. Mark J.S. Heath in Walker v. Johnson, at

6 (Jan. 23, 2006).

'° See id. at 5-6. Even Virginia’s only expert witness agrees with

Amicus on this point. See Expert Report of Dr. Mark Dershwitz in

Walker v. Johnson, at 5 (Jan. 23, 2006).

'' Named Witness 1 Dep. Tr. 130-131. The magistrate judge has or-

dered that Amicus not provide any information that identifies any person-

nel of the Virginia Department of Corrections. See Walker v. Johnson,

No. 05-0934 (E.D. Va. Feb. 8, 2006) (Jones, Mag. J.), at 2. Accordingly,

On execution day, those employees bring the inmate into the

execution chamber, place him on a table, and strap him in."

Prison employees insert intravenous lines into his arms and

connect the inmate to a cardiac monitor.'’ To enable the

lines to reach the injection sites, the protocol provides for

the use of extension sets—multiple lengths of connected tub-

ing.'* Usually, lines are inserted in each arm, and the execu-

tion team leader decides into which arm he will push the

drugs.’ Before the drugs are actually administered, the

executioners retreat behind a curtain.'° The only member of

the lethal injection team who can view the inmate is the

team leader." Even he is limited to viewing through a port-

hole in the curtain—and the protocol does not even require

him to monitor the inmate at all.'"* The current execution’

team leader in Virginia has no educational training beyond a

high school degree and has absolutely no medical training."

It is his sole responsibility to check to see whether the

drugs—including the anesthesia—are actually flowing prop-

erly into the prisoner.”

Separated from the inmate by a curtain, the team leader

injects the drugs into a tube in the intravenous line, begin-

ning with 2 grams of sodium thiopental, followed by 50 milli-

grams of pancuronium bromide, followed by 240 milliequiva-

plaintiff refers to the deponent cited in this footnote as “Named Witness

1.” The other “Secret Witness” depositions cited in subsequent footnotes

involved executioners who, at Virginia’s insistence, Amicus deposed

anonymously.

'? Secret Witness 2 Dep. Tr. 29.

'* Secret Witness 3 Dep. Tr. 38.

* Td. at 63-64.

'? Td. at 47.

'’ Secret Witness 2 Dep. Tr. 33.

* Id.

'’ Secret Witness 2 Dep. Tr. 9.

* Id. at 31-32.

lents of potassium chloride.”' Following the administration

of sodium thiopental, the current team leader has observed

snoring—a poor gauge of anesthetic depth, see infra p. 12—

but otherwise neither he nor anyone on the execution team

checks in any way to make sure that the inmate is properly

anesthetized.” Indeed, even if they did check, they would

not know what to look for—no one on the team has any

training in, or experience at, administering anesthesia.”’

The protocol provides that after the administration of

the potassium chloride, the doctor who attends the execution

pursuant to Virginia statute observes the heart monitor and

pronounces death at the appropriate moment.” This is the

only role played during the execution process by a medical

doctor. The doctor is stationed behind a curtain where he

cannot see the inmate.”

The protocol provides that if death does not occur

within ten minutes after the potassium chloride is adminis-

tered, then a second set of pancuronium bromide and potas-

sium chloride are administered.” The protocol does not pro-

vide for additional administration of the anesthetic, sodium

thiopental.”” Execution records disclosed to Amicus during

discovery reveal that on several occasions, prison employees

administered an additional dose of potassium chloride * Yet

on all such occasions, the executioners violated the protocol

in two ways: by not waiting ten minutes, and by not adminis-

" Id. at 14, 33.

”? Id. at 37; Secret Witness 3 Dep. Tr. 39.

> Defendants’ Second Supplemental Response to Plaintiff's

Amended Second Set of Interrogatories 7-8; Letter from Banci E. Te-

wolde to Lara A. Englund, Feb. 28, 2006, at 2; Secret Witness 2 Dep. Tr.

55.

* Va. Code §§ 53. 1-234, 53.1-235; Secret Witness 2 Dep. Tr. 46.

** Secret Witness 2 Dep. Tr. 46. ,

*® Secret Witness 4 Dep. Tr. 109.

7 Named Witness 1 Dep. Tr. 122-123.

** Secret Witness 4 Dep. Tr. 110.

tering additional pancuronium bromide.” The prison em-

ployees were consistent, however, about not administering

additional anesthesia.”

2. Numerous Aspects of Virginia’s Lethal Injec-

tion Protocol Raise Serious Concerns About

Whether Virginia Is Taking Adequate Steps To

Ensure That Inmates Do Not Suffer Excraciat-

ing Pain

Amicus’s Section 1983 suit does not allege that lethal in-

jection itself is unconstitutional, but he does allege that the

way that Virginia is administering lethal injection violates

the Constitution. The facts that Amicus has learned via dis-

covery only confirm his view.

First, as discussed above, the use of pancuronium bro-

mide prevents inmates from expressing themselves if they

are in fact in great pain because the anesthetic either was

not properly applied or subsequently wore off.

Second, the anesthetic is applied by persons who lack

relevant training. Administering anesthesia is a difficult

task requiring specific training in assessing a person’s state

of consciousness and ability to perceive pain. Yet the per-

sons involved in administering anesthesia in Virginia execu-

tions lack any such training, much less adequate training. In

particular, the only person who can see the inmate during

the administration of the drugs—the team leader—has no

training in assessing anesthetic depth; indeed he has no for-

mal education beyond a high school degree.

Third, even if the team leader did have training in anes-

thesia, he would be unable to accurately gauge whether the

inmate is sufficiently anesthetized. Anesthetic depth is usu-

ally determined by talking to a patient and watching as con-

sciousness is lost and the patient no longer responds to ver-

°° Id. at 110-111.

ee ee , v ,

’ Virginia's execution records, which document for each prisoner

the time that each drug was administered (or readministered), demon-

strate that additional anesthesia was never applied.

bal commands, touching, and the application of what would

otherwise (if the patient were unanesthetized) be painful

stimuli. These steps can be performed only if the tester is

within literal arm’s reach of the patient.’' Because the team

leader and other executioners are distanced from the inmate

and separated from him by a curtain, they cannot conduct

the necessary tests to determine whether he is properly

anesthetized.

Fourth, although the Virginia execution team is not

checking to determine whether the inmate is properly anes-

thetized, they appear to believe that such checking is not

necessary because, at least in some cases, they can hear the

patient snoring. Yet the use of snoring as a proxy for an

adequate depth of anesthesia is medically unacceptable. A

person who is snoring is only lightly anesthetized at best and

may still be able to experience pain. Furthermore, a lightly

anesthetized person can subsequently wake up after the ad-

ministration of pancuronium bromide—yet be unable to ex-

press himself, or move at all, due to the paralysis caused by

that drug.”

Fifth, Virginia’s protocol provides that if the inmate is

not dead within ten minutes of the three drugs, then the

prison employees will readminister pancuronium bromide

and potassium chloride—but that they will not administer

any additional anesthetic.’ This further increases the prob-

ability that the inmate’s original dose of anesthesia, if not

*' See Expert Report of Dr. Stuart M. Lowson in Walker v. Johnson,

at 5-6 (Jan. 23, 2006).

* See Expert Report of Dr. Mark J.%. Heath in Walker v. Johnson,

at 12-13 (Jan. 23, 2006).

The protocol further provides that if, after the re-application of

pancuronium bromide and potassium chloride, the inmate is still alive’ af-

ter another ten minutes have elapsed, then pancuronium bromide and

potassium chloride shall be applied once again—and so forth at ten-minute

intervals until the inmate is finally dead. At no point does the protocol

allow for the readministration of additional anesthetic. Named Witness 1

Dep. Tr. 122-123.

properly administered, may wear off before, or during, the

painful administration of potassium chloride. This is particu-

larly worrisome because a delay of ten minutes following the

administration of potassium chloride would raise serious

questions about whether the executioners had failed to cor-

rectly administer the drugs—thereby increasing the chance

that the inmate is not properly anesthetized and making the

administration of an additional dose of anesthetic all the

more necessary.“ Indeed, the very fact that Virginia’s pro-

tocol contemplates the possibility that the inmate may still

be alive ten minutes after the administration of potassium

chloride indicates that Virginia prison officials are aware

that the administered drugs will not always reach the in-

mate as expected and yet they are unwilling to take steps to

ensure that the inmate remains properly anesthetized.

Sixth, despite the clear guidelines of Virginia’s protocol,

the executioners have repeatedly deviated from it. Rather

than waiting ten minutes after the application of the first set

of the three drugs, and then applying pancuronium bromide

and potassium chloride, prison employees on several occa-

sions have waited one to three minutes and then applied only

potassium chloride. This inexplicable deviation from proto-

col raises questions as to the ability of Virginia’s execution-

ers to follow the directions they are given, and raises further

questions about whether they are able to apply the danger-

ous drugs with which they are entrusted without exposing

inmates to excruciating pain.

Seventh, Virginia’s protocol fails to provide adequate

guidelines for the real possibility that the prison employees

may be unable to obtain peripheral intravenous access, /.e.,

via an arm or a leg, and thus will need to inject chemicals

into a central vein, usually the femoral vein, located in the

groin. Central veins, in contrast to peripheral veins, are lo-

cated deep under skin and tissues and are adjacent to critical

* See Expert Report of Dr. Mark J.S. Heath in Walker v. Johnson,

at 13 (Jan. 23, 2006).

structures. Inserting a catheter into such a vein is a difficult

procedure that must be performed by an individual with

adequate proficiency and training. Conducting such a pro-

cedure in the absence of such training risks severe and pain-

ful complications, such as severe blood loss, collection of air

between the lung and inner chest wall leading to death by

suffocation, perforation of the bladder, and multiple other

painful complications.” Given that in 2004, Virginia did in

fact need to resort to a central vein in order to execute an

inmate,” the lack of discussion in Virginia’s protocol of how

to perform the central line creates unacceptable risks.

Eighth, Virginia does not keep adequate records that

might allow prison officials to determine whether any prob-

lems exist with its protocol. Amicus does not suggest that

Virginia is especially deficient compared to other states in

this regard—he merely notes that in states that do keep

such records, such as California, the records have revealed

the possible existence of serious problems. For example, in

California, logs kept by prison officials suggest that inmates

continue to breathe beyond a point that might be expected if

the sodium thiopental had been correctly applied. See infra

p. 15.

In sum, Virginia uses inadequately trained prison em-

ployees to administer a complex and dangerous procedure.

To perform this procedure correctly, the prison employees

must, among other things, mix the anesthetic solution to the

designated concentration, check tubes, connectors, and

valves to ensure that the drugs are not leaking, monitor the

catheter to ensure that it is securely sited within the vein,

and adequately flush the intravenous lines with saline solu-

tion to avoid the chemicals from mixing, precipitating, and

° See Expert Report of Dr. Mark J.S. Heath in Walker v. Johnson,

at 6-7 (Jan. 23, 2006).

° Secret Witness 4 Dep. Tr. 69-70.

failing to reach the inmate at the proper time and in the

proper dosages.”

For these reasons, a person who is administering anes-

thesia cannot merely take on faith that the command to de-

liver anesthesia has automatically transported the recipient

into a condition where he can feel no pain. This is especially

true in situations where—as here—the procedure calls for

the administration of a paralytic agent such as pancuronium

bromide. If the inmate tries to express that he is still awake

or in pain after the administration of the pancuronium bro-

mide, it will be too late.

If Virginia wishes to use these unnecessarily risky pro-

cedures, then it must take steps to ensure that the inmate is

free from excruciating pain. But as discussed above, Vir-

ginia does not even bother to monitor the anesthetization

process while it is taking place to determine whether or not

any problems are occurring. Yet data from other states that

use protocols very similar to Virginia suggest that—as

might be expected when using untrained personnel to ad-

minister dangerous drugs—problems do indeed occur.

In California, for instance, which uses the same three

drugs as Virginia and Florida (and which uses two-and-a-

half times as much anesthetic as Virginia), a federal district

court recently found that anomalies in past executions were

so severe that it barred California from conducting an up-

coming execution as scheduled unless it either changed its

drugs or employed personnel with adequate training in anes-

thesia. See Morales v. Hickman, Nos. C 06-219 JF & C 06-

926 JF RS, 2006 WL 335427, at *5-8 (N.D. Cal. Feb. 14,

2006). In particular, the court cited evidence from the

state’s execution logs that indicated that breathing did not

stop as expected within one minute of administration of so-

dium thiopental, but rather lasted much longer. See id. at

*5-6; Brief of Amicus Curiae Habeas Corpus Resource Cen-

” See Expert Report of Dr. Mark J.S. Heath in Walker v. Johnson,

at 8-10 (Jan. 23, 2006),

ter 12-16. Other states that use the same three-drug combi-

nation have experienced significant problems—including

leaking intravenous lines, solidifying chemicals that stop

flowing, catheters inserted so that the needle points in the

wrong direction, difficulties locating veins, and injections

that cause veins to collapse.* These problems suggest

strongly that the untrained personnel who perform lethal

injection are not capable of doing so in a way that assures

that an inmate is properly anesthetized.

B. Virginia Can Execute Inmates By Lethal Injection

In A Way That Does Not Raise Constitutional

Concerns

The litany of problems discussed above is not an un-

avoidable consequence of conducting executions by lethal

injection. Rather, these problems are the specific result of

deliberate choices made by Virginia (and other states) that

** See, e.g., Oken v. Sizer, 321 F. Supp. 2d 658, 667 n.7 (D. Md. 2004)

(deseribing an improperly constructed intravenous line leading to fluids

leaking and dripping onto the floor); Tim O’Neil, Too-Tight Strap Ham-

pered Execution, St. Louis Post-Dispatch, May 5, 1995, at B1; Witness to a

Botched Execution, St. Louis Post-Dispatch, May 8, 1995, at 6B (describ-

ing excessively tight leather straps improperly slowing the flow of the

chemicals to the inmate); Michael Overall & Michael Smith, 22- Year-Old

Killer Gets Early Execution, Tulsa World, May 8, 1997, at Al (describing

the execution of Scott Dawn Carpenter, in which the inmate uttered a

“guttural sound” and “gasp{ed] for air”); Michael Grazyk, Convicted Killer

Gets Lethal Injection, Herald (Denison, Tex.), May 8, 1992 (describing

inmate’s reaction to the drugs as “violent,” including “groan{s],” “gasp{s],”

and a “coughing spasm”); /st Try Fails to Execute Texas Death Row In-

mate, Orlando Sent., Apr. 23, 1998, at Al6 (describing an execution de-

layed due to a collapsed vein); Rob Karwath & Susan Kuczka, Gacy Exe-

cution Delay Blamed on Clogged IV Tube, Chicago Trib., May 11, 1994, at

1 (Metro Lake Section) (describing an Illinois execution in which the

chemicals unexpectedly solidified, clogging the intravenous tube that led

into the inmate’s arm, and prohibiting any further passage); Rhonda Cook,

Gang Leader Executed By Injection Death Comes 25 Years After Boy, 11,

Slain, Atlanta J. Const., Nov. 7, 2001, at Bl (explaining that after trying

unsuccessfully for 15 to 20 minutes to locate a vein, technicians had to

abandon their effort to insert needles into High’s arm; instead, they in-

serted one in his hand and one bet ween his shoulder and his neck).

are dictated neither by statute nor by the use of lethal injec-

tion itself. Simply put, Virginia (and other states) could ei-

ther (1) use drugs that do not present the risk that an inmate

will be paralyzed and in great pain, or (2) employ personnel

who are trained in ensuring that a person is properly anes-

thetized and therefore does not experience pain.

Virginia does not contend that it is necessary to para-

lyze an inmate in order to kill him. In his expert report,

Virginia’s only expert witness cited solely cosmetic reasons

for using a paralytic agent—the perceived need, in his view,

to sanitize the execution process so as to prevent the invol-

untary contractions that might accompany death.”

If, for some reason, Virginia insists on maintaining its

use of this unnecessary and dangerous paralytic drug, then it

could avoid problems simply by ensuring that the inmate is

monitored by a person with training and experience in as-

sessing whether a person has reached, and remains at, a

level of anesthesia that prevents him from experiencing

pain.” No such safeguards have been implemented by Vir-

ginia.

es Expert Report of Dr. Mark Dershwitz in Walker v. Johuson, at 4

(Jan. 23, 2006).

“The Morales court held that California could execute Morales as

scheduled, using the same drugs as Virginia, if during the execution

Morales was monitored by a person with formal training and experience in

the field of general anesthesia. See Morales, 2006 WL, 325427, at *s.

CONCLUSION

For the reasons stated above, the judgment of the court

of appeals should be reversed.

Respectfully submitted,