A federal judge denied to stay the upcoming scheduled executions of two Oklahoma death row inmates arguing the state's use of midazolam in its lethal injection protocol is “not appropriate.”
U.S. District Judge Stephen P. Friot ruled that Oklahoma death row inmates Donald Grant and Gilbert Postelle did not show in their motions that “'it is sure or very likely’ that their executions will entail physical pain more severe that that attendant to the insertion of the IV catheters.”
Grant is scheduled to be executed on Jan. 27 with Postelle’s execution scheduled for Feb. 17.
Attorneys for the two inmates filed arguments that midazolam, one part of the three-drug cocktail the state of Oklahoma uses in lethal injections, is not appropriate for use in the procedure.
Oklahoma uses midazolam to first render the inmate unconscious, then vecuronium bromide as a muscle relaxant, and finally potassium chloride to stop the heart.
“Not only is midazolam not appropriate and not approved for use alone to induce and maintain anesthesia, but its effectiveness as a sedative is quite variable depending on the person,” the motion states.
The motion points to the Oct. 28, 2021, execution of John Grant and that “the protocol and its use of midazolam as a sole sedative to induce and maintain anesthesia, coupled with a cursory consciousness check, subjected John Grant to severe pain and suffering over an extended period of time.”
Media witnesses to John Grant’s execution state he convulsed nearly two dozen times and prison officials wiped vomit from his face before he was pronounced dead.
The argument also notes that media witnesses to the Dec. 9, 2021, execution of 79-year-old Bigler Stouffer stated “there were no observed movements reported in the cited media report to suggest stress, pain, and suffering.”
“In addition to the age differences, there may be unknown health, genetic, disease, and drug interference differences that would be understood to explain such observed variability of the effect of a dose of midazolam in these executions,” the motion states.
Friot denied the motion asking for the stay of the executions after hearing “nearly” 10 hours of argument during a Jan. 10 hearing.
The judge’s ruling states previous arguments show that John Grant was drinking soda and chips 45 minutes before his 4 p.m. scheduled execution with Dr. Ervin Yen testifying that vomiting observed would be expected from a person “who has a significant amount of food and fluid in his stomach is strapped down supine on a gurney and injected with a drug which quickly produces unconsciousness.”
Yen, who witnessed the execution of John Grant in person, also testified that the convulsions observed “were indicative of an obstructed airway” and that the movements were not purposeful.
“The explanation for this is that if an individual is conscious, he will breathe normally, but if he is unconscious ‘you can’t do anything about that obstructed airway,’” Friot wrote in his ruling.
Dr. Joseph Cohen, a forensic pathologist, who did not witness the John Grant execution but performed an autopsy on John Grant, concluded that “it was more likely than not” the inmate experienced conscious pain and suffering.”
“The persuasive value of this conclusion by Dr. Cohen is questionable when viewed in the light of the fact that Dr. Cohen did not observe the (John) Grant execution, has no experience with midazolam, and did not review the declaration of Dr. Yen,” Friot wrote in his ruling.
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