Evidence of ​‘Torturous’ Fluid in the Lungs, Drug Mislabeling Highlight Federal Trial on Constitutionality of Oklahoma Lethal-Injection Protocol

A six-day fed­er­al tri­al on the con­sti­tu­tion­al­i­ty of Oklahoma​’s lethal-injec­tion pro­to­col has con­clud­ed, with med­ical experts for the state’s death-row pris­on­ers cit­ing autop­sy and eye­wit­ness evi­dence to call the process ​“tor­tur­ous” and doc­tors for the state deny­ing that pris­on­ers suf­fered as they were being put to death. 

The evi­den­tiary por­tion of the tri­al began with med­ical tes­ti­mo­ny for the pris­on­ers on February 28, 2022 and con­clud­ed with clos­ing argu­ments from the two sides on March 7. The pris­on­ers pre­sent­ed graph­ic pho­to­graph­ic evi­dence from the botched exe­cu­tion of John Grant, autop­sy results show­ing that Grant and fel­low death-row pris­on­er Bigler Stouffer suf­fered flu­id build-ups in their lungs as they were put to death, and autop­sy evi­dence that Grant aspi­rat­ed vom­it dur­ing his execution. 

The tri­al also fea­tured block­buster doc­u­men­tary evi­dence that mem­bers of Oklahoma’s exe­cu­tion team filled out paper­work indi­cat­ing the state had used an unau­tho­rized chem­i­cal in place of the par­a­lyt­ic drug required in the state’s exe­cu­tion pro­to­col. The state’s chief cor­rec­tions offi­cial denied that there had been a drug mix-up, describ­ing the appear­ance of the wrong chem­i­cal in state exe­cu­tion records as ​“a tran­scrip­tion error.” And the tri­al court per­mit­ted pros­e­cu­tors to present anony­mous tes­ti­mo­ny, sub­mit­ted in writ­ing, from a state doc­tor who was not sub­ject to cross-exam­i­na­tion by the pris­on­ers’ lawyers. 

U.S. District Court Judge Stephen Friot (pic­tured) now must weigh the med­ical evi­dence and the con­flict­ing tes­ti­mo­ny of experts pre­sent­ed by the state and the pris­on­ers, and rule on whether the state’s three-drug exe­cu­tion pro­to­col con­sti­tutes cru­el and unusu­al pun­ish­ment. His deci­sion is expect­ed to take several months.

The Prisoners’ Evidence at the Trial

The death-row pris­on­ers’ case opened with tes­ti­mo­ny from Dr. Craig Stevens, a pro­fes­sor of phar­ma­col­o­gy at Oklahoma State University. Dr. Stevens pro­vid­ed tes­ti­mo­ny that mida­zo­lam, the first drug in Oklahoma’s exe­cu­tion pro­to­col, lacks the phar­ma­co­log­i­cal prop­er­ties nec­es­sary to ade­quate­ly ren­der pris­on­ers uncon­scious and insen­sate before they are par­a­lyzed by the sec­ond drug, vecuro­ni­um bro­mide, and sub­ject­ed to what he called the ​“burn­ing fire” sen­sa­tion of the third drug, potassium chloride. 

Dr. Mark Edgar, a pathol­o­gist and autop­sy direc­tor at the Mayo Clinic in Florida, who reviewed more than 30 autop­sies of pris­on­ers exe­cut­ed by death penal­ty pro­to­cols that employed mida­zo­lam, tes­ti­fied that 27 of those pris­on­ers expe­ri­enced ​“severe pul­monary ede­ma,” or flu­id fill­ing the lungs. He described the sen­sa­tions of pul­monary ede­ma as ​“doom, pan­ic, drown­ing, and asphyx­i­a­tion.” Edgar attrib­uted the ede­ma to the use of mida­zo­lam. Reviewing the two avail­able autop­sy reports from the Oklahoma exe­cu­tions con­duct­ed while the tri­al was pend­ing, Dr. Edgar tes­ti­fied that both Grant and Stouffer had expe­ri­enced pul­monary ede­ma. The aver­age weight of an adult male’s lungs is 1,000 grams. Stouffer’s autop­sy report not­ed that his lungs, heavy with flu­id, weighed 1510 grams. Grant’s autop­sy placed the weight of his lungs at 1390 grams.

Another phe­nom­e­non not­ed in the mida­zo­lam autop­sies Dr. Edgar stud­ied was froth in the exe­cut­ed pris­on­ers’ lungs. Images of Grant’s lungs shown to the court con­tained what appeared as bub­bles — evi­dence of froth­ing — which, Edgar tes­ti­fied, could only occur if ​“the pris­on­er is alive and breath­ing” when the edema occurred.

The pris­on­ers also pre­sent­ed tes­ti­mo­ny from an anes­the­si­ol­o­gist, Dr. Gail Van Norman, who tes­ti­fied to a ​“vir­tu­al med­ical cer­tain­ty” that the four pris­on­ers exe­cut­ed in 2021 and 2022 under Oklahoma’s cur­rent pro­to­col ​“expe­ri­enced extreme pain and suf­fer­ing.” An Oklahoma Department of Corrections (ODOC) doc­u­ment from Gilbert Postelle​’s February 17, 2022 exe­cu­tion that was intro­duced into evi­dence dur­ing her tes­ti­mo­ny indi­cat­ed that the state used an unau­tho­rized drug, ​“rocuro­ni­um,” as the par­a­lyt­ic drug in the exe­cu­tion, rather than vecuro­ni­um bro­mide, the drug required in the state’s pro­to­col. Records ulti­mate­ly intro­duced at the tri­al indi­cat­ed that rocuro­ni­um bro­mide was list­ed on doc­u­ments relat­ing to three of the four executions. 

ODOC Director Scott Crow lat­er tes­ti­fied that this was a tran­scrip­tion error and assured the court that the cor­rect drug had been used. The inci­dent was rem­i­nis­cent of the state’s pre­vi­ous vio­la­tions of its exe­cu­tion pro­to­col, which includ­ed pur­chas­ing and using the wrong drug in the exe­cu­tion of Charles Warner. Oklahoma halt­ed exe­cu­tions in 2015 after call­ing off Richard Glossip’s exe­cu­tion at the last moment after cor­rec­tions per­son­nel dis­cov­ered that they had obtained the same wrong drug. ​“I was not at all hap­py about that,” Crow said about the mislabeling.

In 2015, the U.S. Supreme Court ruled in Glossip v. Gross that a pris­on­er must prove that a less painful alter­na­tive method of exe­cu­tion is avail­able to the state before a court may declare the state’s cho­sen method uncon­sti­tu­tion­al. To meet that require­ment, the pris­on­ers also pre­sent­ed evi­dence relat­ed to alter­na­tive exe­cu­tion meth­ods. Dr. David Sherman, a pro­fes­sor of med­ical chem­istry at the University of Michigan, tes­ti­fied that anes­thet­ics like pen­to­bar­bi­tal and sodi­um thiopen­tal could be pro­duced eas­i­ly and cheap­ly with­in the state of Oklahoma. ​“It’s easy to con­struct and can be done on a large scale,” Sherman said. ​“This could be done by under­grad­u­ate stu­dents with expe­ri­ence in organic chemistry.” 

Dr. James Williams, a firearms expert and emer­gency med­i­cine doc­tor, tes­ti­fied regard­ing the use of fir­ing squad as an alter­na­tive method. ​“Execution by fir­ing squad is fea­si­ble, prac­ti­cal and effi­ca­cious,” Williams said. He said that, if a prisoner’s heart were tar­get­ed by exe­cu­tion­ers using a 30-cal­iber ser­vice rifle, the pris­on­er would be ​“almost imme­di­ate­ly uncon­scious” after being shot. Eighteen of the pris­on­ers involved in the law­suit select­ed fir­ing squad as an alter­na­tive method of execution.

Oklahoma’s Evidence

Witnesses for the state includ­ed Dr. Ervin Yen, an anes­the­si­ol­o­gist and for­mer Republican state sen­a­tor who is run­ning for gov­er­nor; an anony­mous doc­tor who is being paid $15,000 per exe­cu­tion for his par­tic­i­pa­tion in putting Oklahoma pris­on­ers to death; and Oklahoma corrections officials. 

Dr. Yen called the pro­to­col ​“ade­quate to car­ry out an exe­cu­tion in as humane a way as pos­si­ble.” Oklahoma Department of Corrections Director Scott Crow and Chief of Operations Justin Farris also tes­ti­fied in sup­port of the pro­to­col. Farris told the court that he had attend­ed each of the state’s four recent exe­cu­tions and the pris­on­er appeared to him to be uncon­scious imme­di­ate­ly after mida­zo­lam was admin­is­tered. He con­test­ed Dr. Sherman’s tes­ti­mo­ny that pen­to­bar­bi­tal and sodi­um thiopen­tal are read­i­ly avail­able, say­ing that the state had tried to obtain those drugs but could not find a com­pa­ny will­ing to pro­vide either of them. Labs in the state were also unwill­ing to pro­duce them, Farris said.

Over objec­tions by the pris­on­ers’ coun­sel, Oklahoma pros­e­cu­tors were per­mit­ted to present writ­ten tes­ti­mo­ny by the doc­tor who has par­tic­i­pat­ed in the last four exe­cu­tions. The pris­on­ers argued that the arrange­ment denied them the right to ques­tion the doc­tor, and that his iden­ti­ty could remain hid­den and their right to cross exam­ine could be pre­served if the doc­tor tes­ti­fied remote­ly by tele­phone or Zoom with a voice mod­u­la­tor and the video turned off. Prosecutors respond­ed, with­out evi­dence, that the doc­tor faced poten­tial pro­fes­sion­al or phys­i­cal harm if ​“anti-death penal­ty activists” dis­cov­ered his identity. 

Using the pseu­do­nym ​“Dr. John Doe” to con­ceal his iden­ti­ty, the doc­tor explained the process by which he con­duct­ed con­scious­ness checks. First, Dr. Doe wrote, he rubs the prisoner’s ster­num, then speaks loud­ly to them, and then squeezes and pinch­es their arm. Dr. Van Norman dis­put­ed the ade­qua­cy of Doe’s efforts, tes­ti­fy­ing that she had timed the ster­num rub dur­ing Postelle’s exe­cu­tion as tak­ing a mere three sec­onds and say­ing that the restraints that held Postelle to the gur­ney pre­vent­ed Doe from rub­bing Postelle’s ster­num in the right place. 

Doe’s descrip­tion of John Grant’s exe­cu­tion appeared to con­flict with con­tem­po­ra­ne­ous accounts from media eye­wit­ness­es, who report­ed that Grant expe­ri­enced more than two dozen full-body con­vul­sions over a 15-minute peri­od and vom­it­ed sev­er­al times before Doe declared him uncon­scious. His autop­sy indi­cat­ed that Grant had aspi­rat­ed vom­it. Referring to Grant’s vom­it­ing as ​“regur­gi­ta­tion,” Doe said, ​“We turned his head and wiped him off around the mouth. He was uncon­scious then, in my opin­ion, based on his lack of reac­tion or resis­tance to these phys­i­cal actions on him.” Doe wrote, ​“He did not open his eyes, he didn’t do any­thing to show he was con­scious, he didn’t resist any­thing we did.”

Dr. Doe received $60,000 for his par­tic­i­pa­tion in the four exe­cu­tions, plus $1,000 per day for week­ly train­ing ses­sions and exe­cu­tion-week prepa­ra­tion ses­sions. Oklahoma has said it intends to sched­ule as many as 28 exe­cu­tions if the lethal-injec­tion pro­to­col is upheld, mean­ing Doe stands to make $420,000 for his involve­ment in the exe­cu­tions and at least anoth­er $56,000 in pay­ments for train­ing and preparation sessions. 

In clos­ing argu­ments, Jim Stronski, rep­re­sent­ing the pris­on­ers, told the court, ​“This is a 21^st-cen­tu­ry burn­ing at the stake,” refer­ring to the burn­ing sen­sa­tion caused by the third drug in Oklahoma’s pro­to­col, potas­si­um chlo­ride. Solicitor General Mithun Mansinghani, rep­re­sent­ing the state, coun­tered, ​“Midazolam is approved to induce gen­er­al anes­the­sia, and gen­er­al anes­the­sia means no pain.”