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DOC director says state will use same execution drugs

Lethal combo used in April only one available, DOC chief says.

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OKLAHOMA CITY — Department of Corrections Director Robert Patton testified Friday the state will use the same lethal drug combination used during an April execution but would not say whether the same doctor and paramedic will carry out four upcoming executions.

Patton said the state has chosen to use the three-drug combo used in an April 29 execution of inmate Clayton Lockett because it could not obtain alternate drugs.

“Those are the drugs that we procured,” Patton said.

U.S. District Judge Stephen Friot said he will rule Monday afternoon on whether the state of Oklahoma will have to delay its scheduled executions, based on a lawsuit by several death-row inmates. The inmates’ suit claims that Lockett’s execution was unconstitutional and that any future executions using midazolam present an unconstitutionally acceptable risk of pain and suffering.

Lockett died 43 minutes after his execution had begun and was technically halted, with the governor preparing to issue a stay because the IV that was supposed to deliver the lethal drugs was failing. Witnesses reported seeing him move, speak and lift his head after he was supposed to be unconscious from midazolam.

But his botched execution was more than an IV failure, argued Randy Bauman, one of the plaintiffs’ attorneys: “It was a demonstration of the profound limits and unsuitability of midazolam.”

Attorneys for the death-row inmates argued that the drug is not a reliable anesthetic for executions because it has no pain-relieving properties and can have adverse effects in certain people.

Attorneys for the state argued that midazolam is the best option because they cannot obtain the drugs previously used to sedate inmates in executions, and that Florida has carried out 11 executions using midazolam without problems.

The Department of Corrections is “confident” that steps have been taken to address the failures in Lockett’s death and is ready to move forward with future executions, argued Assistant Attorney General John Hadden.

If Friot grants the plaintiffs’ request, upcoming executions would be stayed during a full trial on the inmates’ claims. He could also rule that while Lockett’s execution may have violated the Eighth Amendment’s prohibition on cruel and unusual punishment, the state has improved its policies and practices enough to carry out future executions.

Patton’s testimony came Friday, on the final day of a three-day hearing. Dale Baich, an attorney for the plaintiffs, asked Patton if the same doctor and paramedic who carried out Lockett’s execution would be involved in future Oklahoma executions.

Attorneys for the state objected to the question because a state law forbids the release of identities of doctors, paramedics, pharmacists and others who take part in Oklahoma’s executions. Friot sustained their objection, and Patton did not answer the question.

A medical expert testified Friday for the plaintiffs that the doctor in Lockett’s execution made “a pretty horrendous error in judgment” when he used a small needle to insert an IV line in the inmate’s femoral vein.

A state investigation concluded that IV errors were the largest factor in problems that occurred during the execution.

The expert, emergency room physician Eric Katz, said he reviewed records and investigative reports in the case and concluded: “It was extremely predictable this equipment was going to fail.”

After multiple attempts to insert an IV in other locations, the doctor inserted an IV in Lockett’s femoral vein, in his groin area. Katz said the catheter used for the IV “would never, ever be used in this way” in a medical setting.

He said records showed the doctor had access to a “central line kit” that contained properly sized equipment to start the IV.

The doctor “chose not to pause and wait for the right equipment,” Katz said.

Portions of state investigators’ interviews with the paramedic and doctor were shown in court Friday. Both the paramedic and doctor made statements that “may sound good to the lay person but make no medical sense at all,” Katz testified.

In one excerpt, the paramedic was apparently trying to explain why some executions may take longer than expected.

“Most of the men on the execution table have a very strong heart,” he states in the transcript.

“They are in very good shape. They’re very muscular. They have nothing to do besides exercise and eat well … It takes awhile for that heart to realize that it doesn’t have to beat anymore.”

The paramedic, who has participated in most of Oklahoma’s executions, also told investigators that “black people have smaller veins than white people,” Katz said.

He said the paramedics statements about inmates’ hearts and veins had no medical basis.

The transcripts of the state’s investigative interviews are among 3,000 pages of records that the state has designated confidential and refused to release.

The Tulsa World has requested the transcripts under the Oklahoma Open Records Act. The Department of Public Safety has not complied with the request or cited a law allowing the state to withhold the documents.

After closing arguments Friday, Friot urged the state’s attorneys to respond quickly to requests for records related to the court case.

“I think there is a presumption of public access to records in proceedings like this,” he said.

As a result of problems with Lockett’s execution and recommendations from the state’s official investigation, Oklahoma revised its execution protocol several months ago.

The new drug protocol is based on the state of Florida’s protocol, which calls for five times the amount of midazolam used in Lockett’s execution. It also contains numerous requirements intended to improve the process, including upgrades to medical equipment and training.

Patton testified that he has been told by the state Attorney General’s Office that midazolam can be used to carry out executions in a constitutional manner.

Two experts have testified for the plaintiffs that the drug is a sedative not approved for use as an anesthetic. It has also been used in problematic executions in Ohio and Arizona.

Katz testified Friday that if a person was given midazolam and the drug didn’t render him unconscious, the second drug given in Oklahoma’s lethal injection would paralyze him and make it difficult to know if he was in pain. The person could be conscious, in pain, unable to move or speak while slowly suffocating, he said.

Administration of the final lethal drug, potassium chloride, to someone who was conscious, would cause pain, agreed several medical experts who testified Friday.

Patton testified that he did not directly consult with the state’s medical expert, Dr. Lee Evans, regarding effectiveness of midazolam to render the inmates unconscious.

He said Attorney General Scott Pruitt’s office consulted with Evans about the drug. Evans testified in a Florida legal challenge that resulted in a ruling upholding that state’s lethal injection protocol.

“So the Attorney General’s Office is between you and the expert?” Baich asked Patton.

“That is a fair statement yes,” he replied. ”I have not had conversations with Mr. Evans.”

Testimony throughout the three-day hearing has indicated that attorneys have made many key decisions in development of the state’s protocol and reaction to Lockett’s botched execution.

Evans testified Friday that midazolam could be used to render someone unconscious. He said an inmate would remain unconscious with a dose of 500 milligrams, which is what the state intends to use now.

When questioned by Robin Konrad, an attorney for the plaintiffs, he admitted his report for the state contained some errors regarding toxic dosage amounts of midazolam, and that he used Drugs.com as a reference site. Evans is the dean of the school of pharmacy at Auburn University.

He testified that he believed Lockett had been rendered unconscious at some point during the execution, maybe about 40 minutes after midazolam was given.

Whether Lockett was conscious as the painful second and third drugs were given is a key question in the inmates’ legal challenge.

Joni McClain, the former Texas medical examiner who conducted Lockett’s autopsy for the official investigation, testified that she had no opinion on whether he had experienced any pain and suffering.

“You can’t tell that from an autopsy,” she said.

Konrad asked if there were certain cases where she might be able to infer that a dead person had suffered.

“If you’re raped and buried alive, that would be pain and suffering,” McClain retorted.

Lockett was sentenced to die for his role in the 1999 murder of 19-year-old Stephanie Neiman. She was shot and left to die in a ditch by Lockett and two accomplices who also raped and assaulted two of her friends.

Ziva Branstetter 918-581-8306

ziva.branstetter@tulsaworld.com

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