Witnesses — Alabama Prisoner Still Moving 20 Minutes Into Execution With Controversial Drug

Alabama exe­cut­ed Torrey McNabb (pic­tured) on October 19, amid ques­tions of state inter­fer­ence in the judi­cial process, result­ing in anoth­er appar­ent fail­ure by the drug mida­zo­lam to ren­der a pris­on­er insen­sate dur­ing an exe­cu­tion. Alabama prison offi­cials defend­ed the exe­cu­tion — which took 35 min­utes — as con­form­ing with state pro­to­col, most of which has been with­held from the pub­lic. Montgomery Advertiser exe­cu­tion wit­ness Brian Lyman report­ed that at 9:17 p.m., twen­ty min­utes into the exe­cu­tion and after two con­scious­ness checks, ​“McNabb raised his right arm and rolled his head in a gri­mace” and then fell ​“back on the gur­ney.” Associated Press report­ed that his ​“fam­i­ly mem­bers and attor­neys who wit­nessed the exe­cu­tion expressed repeat­ed con­cerns to each oth­er that he was still con­scious dur­ing the lethal injection.” 

Alabama Department of Corrections Commissioner Jeff Dunn dis­missed McNabb’s respons­es as “[i]nvoluntary move­ment,” which he said were not unusu­al. ​“I’m con­fi­dent he was more than uncon­scious at that point,” he said. 

McNabb had been chal­leng­ing the state’s exe­cu­tion pro­to­col in court for more than a year at the time Alabama issued a war­rant for his exe­cu­tion. He had won an appeal per­mit­ting his case against the state’s use of mida­zo­lam to move for­ward to tri­al, and the Alabama fed­er­al courts had issued an injunc­tion stop­ping the exe­cu­tion so that judi­cial review of the state’s exe­cu­tion process could take place. However, on October 19, the U.S. Supreme Court, over the dis­sents of Justices Breyer and Sotomayor, lift­ed the injunc­tion, vacat­ing the stay and per­mit­ting the exe­cu­tion to pro­ceed. Two-and-a-half hours after the exe­cu­tion was sched­uled to begin, the Supreme Court denied anoth­er last-minute stay appli­ca­tion, with­out dis­sent, and the execution proceeded. 

The exe­cu­tion capped a dra­mat­ic 48 hours dur­ing which Texas courts halt­ed two oth­er exe­cu­tions that had been sched­uled for October. On October 18, the Texas Court of Criminal Appeals had stayed Clinton Young​’s October 26 exe­cu­tion to per­mit an evi­den­tiary hear­ing on his chal­lenge that new­ly dis­cov­ered gun­shot residue evi­dence showed that the state’s lead wit­ness was the actu­al killer in his case, and a Texas tri­al court had stayed the exe­cu­tion of Anthony Shore to inves­ti­gate alle­ga­tions that he may have col­lud­ed with anoth­er death-row pris­on­er to false­ly con­fess to the mur­der for which that pris­on­er had been con­demned. McNabb’s exe­cu­tion was Alabama’s third and the 21^st in the United States in 2017.