Order from Florida Supreme Court on emergency petition

___________________________________________________________________
Supreme Court of Florida
WEDNESDAY, JULY 27, 2011
CASE NO.: SC11-1434 Lower Tribunal No(s).: 78-5281A
MANUEL VALLE vs. STATE OF FLORIDA
Petitioner(s) Respondent(s)
The Emergency Petition for a Writ of Prohibition is hereby denied on the merits.
No motion for rehearing will be entertained by this Court.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
A True Copy Test:
th Served:
PENNY H. BRILL HON. HARVEY RUVIN, CLERK PAUL EDWARD KALIL SUZANNE MYERS KEFFER SANDRA SUE JAGGARD HON. JACQUELINE HOGAN SCOLA, JUDGE

No quick decisions on Jackson's execution appeal

No decisions were immediately issued in two last-minute hearings in two separate courts today on motions intended to halt the Friday execution of convicted ax murderer Robert W. Jackson III.
In the first hearing, which took place in Wilmington before U.S. District Judge Sue L. Robinson, Jackson’s attorneys objected to the use of the new chemical Delaware uses as part of its three-drug lethal-injection formula. In the second hearing, which took place in Dover, attorneys asked the state Supreme Court to delay the execution so the land’s highest court can review the case.
Jackson is scheduled to be executed between midnight and 3 a.m. Friday for the 1992 killing of 47-year-old Elizabeth Girardi during a robbery of her Hockessin home. A cousin of Girardi declined to comment as he and other family left Robinson’s courtroom.
Court records show Girardi was killed with an ax after encountering Jackson and accomplice Anthony Lachette leaving her home with property they had stolen and planned to pawn to buy drugs.
Two different juries voted for Jackson’s death penalty, which was imposed both times by a judge.
Jackson, however, has claimed that Lachette killed Girardi. Lachette has since been released from prison.

Written by

ESTEBAN PARRA
The News Journal 

Contact Esteban Parra at 324-2299 or eparra@delawareonline.com.

Lawyers arguing today for halt to Friday execution of ax murderer

Attorneys trying to halt the execution of convicted ax murderer Robert W. Jackson III will present arguments today in a series of court hearings across the state.
The first began in Wilmington at 9 a.m. before U.S. District Judge Sue Robinson to raise objections to the new drug Delaware uses as part of its three-drug lethal-injection formula.
Robinson listened to arguments in the nearly hour-long hearing without giving an opinion. She did say she would make her decision "promptly."
A second hearing is slated for this afternoon in Dover, where attorneys will ask the state Supreme Court to delay the Friday execution so the land’s highest court can review the case, said Marc Bookman, one of Jackson’s lawyers and executive director for the Atlantic Center for Capital Representation, a Philadelphia-based nonprofit that gives representation in death penalty trials.
Jackson is scheduled to be executed between midnight and 3 a.m. Friday for the 1992 killing of 47-year-old Elizabeth Girardi during a robbery of her Hockessin home. Court records show Girardi was killed with an ax after encountering Jackson and accomplice Anthony Lachette leaving her home with property they had stolen and planned to pawn to buy drugs.
Two different juries voted for Jackson’s death penalty, which was imposed both times by a judge.
Jackson, however, has claimed that Lachette killed Girardi.
“Jackson’s innocence practically jumps off the page,” Bookman said. “You have to consider both sides of the coin: the evidence against him, and the evidence pointing to his innocence. The evidence against him is shockingly thin – essentially a few criminals trying to save their own necks. Then you consider the evidence of his innocence – four different people heard Lachette confess to the murder. It was Lachette’s idea to commit the burglary that led to the killing, and he was the one who knew the victim.
“This is precisely the sort of evidence that needs to be heard in a courtroom. If one of these courts doesn’t grant a stay of execution, an innocent man may be wrongly executed.”
Bookman asked the 3rd U.S. Circuit Court of Appeals in Philadelphia on Tuesday to stop Jackson’s execution to review claims he is innocent. That court has not set a hearing.
If the state goes ahead with the execution, Jackson will become the 15th person to be put to death in Delaware since 1992 -- that year marked Delaware’s first execution since the state reinstated the death penalty in 1961, according to the DOC. It would be the state’s first execution since Brian D. Steckel was put to death Nov. 4, 2005, for the 1994 murder of Sandra Lee Long.
In that execution, Delaware Department of Correction officials appeared to encounter problems. While lethal injections are supposed to cause nearly instantaneous death, Steckel lingered for 12 minutes and at one point looked up at prison officials and said, “I didn’t think it would take this long.”
That set off a series of filings, including by Jackson, who claimed the chemicals used by the state and the apparent lack of training for those carrying out the execution would make his punishment cruel and unusual.
During today’s first hearing, defense attorneys will appear before U.S. District Court Judge Sue L. Robinson to argue their objections about Delaware using a new drug -- pentobarbital -- as part of its three-drug lethal-injection formula. Delaware, like many other states that use lethal injection, turned to pentobarbital after the U.S. manufacturer of sodium thiopental -- the drug previously used as an anesthetic in the process -- stopped making it.
Robinson signed the initial order delaying Jackson’s death, but last week the 3rd U.S. Circuit Court of Appeals vacated the stay, saying Robinson needed to provide more reasoning for her decision for it to be upheld.
In the afternoon, attorneys will ask the state Supreme Court to stop the execution to give the U.S. Supreme Court time to review the case. His attorneys contend Jackson’s rights to a fair trial were violated because of comments his defense attorney made to the trial judge.
Jackson argued that his death sentence should be overturned because his initial attorney, Joe Hurley, was seeking to withdraw from the case and told Judge Vincent Bifferato that Jackson was guilty and should be executed. Hurley was allowed to withdraw, but Bifferato did not recuse himself from the case and went on to sentence Jackson to death.
“This is really a perfect storm for injustice,” Bookman said. “You take a terrible and high-profile crime and give the accused, who is only 18, a lawyer who thinks his client is not only guilty but also should be executed by the state. Then the lawyer actually tells the judge what he thinks. Any judge would be significantly influenced by such an admission. Later, with competent representation, it turns out there is real evidence that Jackson is innocent.”

AFFIDAVIT OF DAVID B. WAISEL, MD

STATE OF MASSACHUSSETTS
COUNTY OF SUFFOLK
AFFIDAVIT OF DAVID B. WAISEL, MD

Comes now the Affiant, David B. Waisel, MD, who, being first duly sworn
by an officer authorized by law to administer oaths, deposes and states as follows:

1. My name is David B. Waisel. I am over the age of eighteen and
competent to testify to the truth of the matters contained herein.

2. I am a practicing anesthesiologist at Children’s Hospital Boston and
an Associate Professor of Anaesthesia, Harvard Medical School. I have been
practicing clinical anesthesiology, primarily pediatric anesthesiology, for
approximately 18 years.
3. I have been asked by the attorneys who represent Roy Blankenship to
provide an expert medical and scientific opinion about observations of his
execution by lethal injection on June 23, 2011.
4. I was not in attendance at the execution. My information about the
execution comes from a comprehensive interview of an eyewitness, Greg
Bluestein, an AP reporter. Mr. Bluestein’s report is the type of information experts
in my field normally and regularly rely on in forming expert opinions. Mr.
Bluestein informed me that neither he nor any other witness was able to hear the
proceedings within the execution chamber as the microphone was off.
2
OBSERVATION REPORT
5. According to Mr. Bluestein, as the lethal injection commenced Mr.
Blankenship jerked his head toward his left arm and made a startled face while
blinking rapidly. He had a “tight” grimacing expression on his face and leaned
backward.
6. Shortly thereafter, Mr. Blankenship grimaced, gasped and lurched
twice toward his right arm.
7. During the next minute, Mr. Blankenship lifted his head, shuddered
and mouthed words.
8. Three (3) minutes after the injection, Mr. Blankenship had his eyes
open and made swallowing motions.
9. Four (4) minutes after injection, Mr. Blankenship became motionless.
10. About six (6) minutes after the injection, the nurse assessed Mr.
Blankenship’s eyes using a stick-like instrument about fingertips-to-mid-forearm
length to do something to the area on or about his eyes. Critically, Mr.
Blankenship’s eyes were still open and never closed during the entirety of the
lethal injection process.
11. About thirteen (13) minutes after the injection, Mr. Blankenship was
declared dead. Again, his eyes were open throughout.
3
OPINION
12. Based on his lurching toward his arms and the lifting of his head and
the mouthing of words, I can say with certainty that Mr. Blankenship was
inadequately anesthetized and was conscious for approximately the first three
minutes of the execution and that he suffered greatly. Mr. Blankenship should not
have been conscious or exhibiting these movements, nor should his eyes have been
open, after the injection of pentobarbital.
13. Given prior executions of Brandon Rhode and Emanuel Hammond in
September 2010 and January 2011, respectively, during which these inmates
reportedly exhibited similar movements and opened their eyes (Rhode’s eyes were
open throughout the execution process), Mr. Blankenship’s execution further
evidences that during judicial lethal injections in Georgia there is a substantial risk
of serious harm such that condemned inmates are significantly likely to face
extreme, torturous and needless pain and suffering.
14. The fact that executions using pentobarbital of inmates in other
jurisdictions (approximately 14 have occurred thus far, to my knowledge) have not
generated reports of problems like those observed in Mr. Blankenship’s case is not
dispositive of the safety, efficacy or reliability of pentobarbital as used to induce
anesthetic coma in human beings. Only when a drug has been tested
4
systematically on thousands of subjects, with their consent, can one begin to
reliably assess how an untested use of a drug will affect human subjects. We do
not have relevant data in similar populations for pentobarbital. Because we do not
have sufficient data, there is no way to know, in any given case, how an overdose
of pentobarbital will affect basically healthy inmates. Mr. Blankenship’s reaction
to the pentobarbital injection may be indicative of other inmates’ reactions.
15. It has been opined in a recent news article1 that “Blankenship's
movements could also have come during an ‘excitement phase.’” Although
subanesthetic doses of pentothal (and likely other barbiturates such as
pentobarbital, although I have been unable to find any documentation of that) may
cause a very brief excitement phase, in my expert opinion that was not what caused
Blankenship’s movements. The excitement phase is abolished with higher doses.
Given the massive amount of the dosing claimed by the State, any excitement
phase could not last three minutes during the administration of pentobarbital.
Further, the localization of the pain and the mouthing of words are actions
inconsistent with the excitement phase.
16. It has also been opined in the same aforementioned article that
“...[Blankenship] could have been faking it.” Faking would require a level of
1 See http://www.macon.com/2011/06/24/1608968/medical-experts-dividedovergeorgia.
html?story_link=email_msg#ixzz1QUf61Gh1
5
consciousness inconsistent with how the State claims pentobarbital should work.
The intentional act of faking could only be explained if the pentobarbital did not
work as the State claims it should work. And one cannot fake eyes-wide-open at
death.
Dated this ___ day of ____________, 2011.
_________________________
David B. Waisel, MD
Sworn to and subscribed before me
this __ day of ___________, 2011.
____________________________
NOTARY PUBLIC

Why Lawyers and Judges Should Watch Executions

By Andrew Cohen Jul 26 2011, 11:30 AM ET

Andrew Cohen - Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation's leading legal analysts and commentators

By Andrew Cohen

Jul 26 2011, 11:30 AM ET 23

Transparency on death row can help hold states accountable for botched lethal injections

See Update Below:
Timothy McVeigh died with his eyes open. The Oklahoma City bomber was strapped to a gurney in the death chamber at the federal penitentiary in Terre Haute, Indiana. It was June 11, 2001, and the mass murderer died from lethal injection at 7:14 a.m. as he stared up at the closed-circuit camera in the ceiling of the room. The jarring image of the last moments of his life, and of his defiant death, were beamed to a room in Oklahoma City, where the victims and survivors of the April 19, 1995, had been granted special federal permission to see the execution via satellite.
Here is some detail of that momentous event, which tracks my own memory of it:

Ten people -- members of the victims' families and survivors of the bombing -- also witnessed the execution from a room beside the death chamber. Paul Howell, whose daughter was killed in the bombing, said McVeigh was expressionless.
"What I was hoping for is that we could see some kind of 'I'm sorry,' but we didn't get anything like that. My emotions were that it was just a big relief. Just a big sigh came over my body and it felt real good," Howell said.
More than 650 miles away in Oklahoma City, 232 survivors and family members watched on closed-circuit television. "He actually lifted his head and looked directly in the camera, and it was as if he was looking directly at us," said Larry Whicher, who lost his brother. "His eyes were unblinking. They appeared to be coal black. I truly believe that his eyes were telling me ... that if he could, he would do it all over again."

He died with his eyes open. Although I was in Terre Haute that day, in a muggy, buggy media tent on the grounds of the prison, and although I had covered every day of his federal murder trial, I did not see McVeigh's execution. A few hours before he died, I had lost a random drawing that was held among a small group of radio reporters for the one viewing seat made available to us. To this day, it remains one of the biggest professional regrets of my career. I don't believe that anyone who covers capital punishment in America can do so completely without having witnessed an execution. And I often wonder how the American people would have reacted, exactly three months before 9/11, had they been able to see what I so desperately wanted to see that day.
The topic of public executions, and what may be gained or lost in their viewing, is timely again because a judge in Georgia last week allowed the execution of a man named Andrew Grant DeYoung to be videotaped for subsequent use by lawyers for a death row inmate named Gregory Walker. Evidently, it was the first time since 1992 that an execution had been taped and the well-reported episode, predictably, has brought out into the open again many of the same arguments we've heard before about the possibility that the American people may one day be subjected to visible proof of the capital punishment which is routinely undertaken in their name.

"Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections."

No one involved in the latest drama, mind you, wants to see taped executions come to the primetime television lineup. Instead, the criminal defense attorneys who convinced Fulton County Superior Court Judge Bensonetta Tipton Lane to authorize the taping of the DeYoung's execution argued that the current legal and political debate over injection protocols and drug mixes would be aided by giving judges access to tapes of the executions. The jurists would benefit from seeing direct evidence of precisely how state executions are unfolding now that Georgia is using pentobarbital instead of thiopental in its lethal injection cocktail.
This, in turn, would better enable the courts to accurately determine whether such injections violate the "cruel and unusual punishment" clause of the Eighth Amendment. The debate on this topic has gained ferocity recently because Georgia, like other states that still perform executions, have had to scramble this year to concoct a new deadly "cocktail' after the Italian maker of one of its ingredients, thiopental, decided that it no longer wanted to be a part of what United States Supreme Court Justice Harry Blackmun once famously called America's "machinery of death."
So why, specifically, did Walker's attorneys want the tape?  "We've had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence," defense attorney Brian Kammer told The New York Times. Walker's attorneys told the court:

Following three consecutive irregular Georgia executions, DEA seizure of Georgia's thiopental supply for its violation of federal drug importation laws, exposure of illegal narcotics activity by the medical personnel overseeing state lethal injections, Georgia's precipitous switch from thiopental to pentobarbital -- an anesthetic whose manufacturer warns is untested and unsafe for use in judicial elections, and the subsequent botched execution of Roy Blankenship, who  lurched and grimaced in obvious pain for several minutes while dying, Mr. Walker, who stands to be executed in the same manner, moved to preserve evidence of Georgia's next intended execution.

Judge Lane, smartly, framed her ruling in practical terms. She wrote:

The briefing on this motion reflects that eye witnesses to an execution may often have varying recollections regarding the details of what happened. In some of the other cases cited by the respondent the State has attacked the conclusions suggested by witnesses on the basis that the witness has not witnessed an execution performed by the State of Georgia and/or is unfamiliar with the protocols used here. These arguments tend to underscore the potential relevance of the evidence the petition seeks to gather.

If prison officials have nothing to hide, in other words, they should at least be willing to gather and hand over such videos for subsequent use by the courts; a simple matter of giving judges the "best evidence" available. Echoing Judge Lane, Richard Dieter of the Death Penalty Information Center told me Monday that the use of videotaped executions within the criminal justice system makes sense for several reasons:

Basically, the country is in a period of experimentation (with involuntary human subjects) as it tries to find a suitable means of execution. Although I believe the problems with the death penalty far exceed this narrower question, it is one over which there has been a veil of secrecy. Prisons and state governments have been reluctant to explain why they are choosing certain new drugs, whether they have explored all alternatives, and whether they have consulted about the side effects of new drugs being used. Having an objective view of what actually happens in the execution chamber could provide some degree of transparency in evaluating the various procedures.

Now, it is quite a stretch to go from allowing limited courtroom (or in-chambers) use of the videotape to enabling the public dissemination of such images. After all, no one I know (and no one you likely know, either) has ever seen the videotape of that 1992 execution (or of any other execution since the modern death penalty regime was established in 1976 by the United States Supreme Court). Every day in this country, judges deal with confidential or classified evidence which is sealed and which never sees the light of day. To think that the handful of judges and lawyers who would have access to the tape would allow it to be published is a insult to them and their staffs.
That didn't stop prosecutors in DeYoung's case, however, from making the familiar "parade of horribles" argument. The videotaping of one execution would lead to the videotaping of all executions, they argued, which would lead one day to such videos being uploaded onto YouTube for the whole world to see. Prosecutors all over the country routinely leak confidential information about criminal suspects. These prosecutors were arguing that it would be terrible indeed if the judge were to jeopardize the secrecy of the execution chamber. A known benefit (judicial access to the tapes) should give way to a theoretical possibility (the leaking of a tape). Even in the cynical world of capital punishment law, this is a bad argument. No wonder Judge Lane rejected it.
Making execution videotapes for lawyers and judges to evaluate is a no-brainer. It should be happening all over the country and with greater frequency. Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections. But after 15 years of covering the death penalty debate I confess I still don't know precisely where I stand on the issue of the public dissemination of such tapes. Executions happen. Sometimes more effectively than others. Sometimes gruesomely. And always at the expense of the American taxpayer. A big part of me thinks the world wouldn't end if an execution videotape were ever made public.
But part of me also thinks the public release of an execution tape would turn yet another dramatic moment into something blasé or, worse, circus-like. If such a release were to start online, as everyone presumes, it's hard to make a reasonable case that the images wouldn't shortly thereafter appear on cable television, to great fanfare. Nor is it worthwhile to pretend that the same dark sensibilities that drew thousands to public executions a century ago aren't still vibrant within people today. The good news, I guess, is that the Georgia case doesn't require us to test this tension, at least not yet.
Update: I received an interesting note Tuesday afternoon from Megan McCracken, an expert in lethal injection law at the University of California/Berkeley School of Law. She wrote:

"The videotaping of Mr. DeYoung's execution is a step in the right direction in terms of shedding light on what happens during an execution. However, videotaping only captures what witnesses see and cannot transmit the information we actually need. When something goes wrong in a lethal injection execution, witnesses, lawyers for condemned prisoners, and the public are prevented from knowing what happened because of the paralytic that is administered to the prisoner and the secrecy surrounding the entire process. A video will not tell us what actually happened in the room where the drugs are administered, and until DOCs reveal what happened behind the scenes, it is likely we will never know what happened to Mr. Blankenship or any of the other men and women who have been executed by an unnecessarily dangerous process."

Image: Ho New/Reuters

Editorial: Fix death penalty in Florida

3:07 AM, Jul. 27, 2011

The latest delay in the execution of Manuel Valle for killing a police officer 33 years ago shows how absurd the administration of the death penalty in Florida has become.
That's not to say the death penalty should be abolished; we think it still has merit. But years of delays in carrying out executions while the death row population mounts make a mockery of justice.
A meaningful limit should be placed on how long execution can be delayed unless significant new issues are raised.
But that has to be accompanied by a review of the whole death penalty process, as recommended by the American Bar Association. Florida, according to the Death Penalty Information Center, has exonerated more death row inmates than any other state since 1973. This year's mistaken abolition of the state Commission on Capital Cases, which was charged with reviewing the system and recommending reforms, didn't help.
If the state can't fix this system, the death penalty should be abolished.
Valle was scheduled to die by lethal injection Aug. 2 for the 1978 murder of Coral Gables police Officer Louis Pena, whose former wife and two children live in Lee County.
Monday, the state Supreme Court in a 4-3 decision stayed the execution until Sept. 1 and ordered a hearing on the new execution procedure. The state is using a new anesthetic as part of the execution protocol, and Valle challenged its effectiveness, worrying that he might suffer discomfort from the process.
The high court is micromanaging the chemistry of lethal injection. Lower courts wisely dismissed the appeal.
In April, Paul Flemming, columnist for The Tallahassee Democrat, a sister paper of The News-Press, found that the 393 inmates on death row had been there an average of 15 years, three months. The 69 who had been executed since 1979 were on death row an average of 12 years, nine months, from sentencing to execution. The most recent died in February 2010 for killing a wildlife officer in 1984.
Those mean justice delayed and denied for victims, their families and the inmate.
Pena's family has now asked six governors to carry out Valle's sentence. Their torture should end.

Ga. Execution Is Fodder for Challenges to New Drug

By GREG BLUESTEIN Associated Press 

ATLANTA June 28, 2011 (AP)

The thrashing, jerking death of Roy Willard Blankenship has lawyers for death row inmates plotting fresh arguments against the drug used to execute him, even though they may never be able to prove that it caused the spasms in his last moments.
Medical experts say it's possible that Georgia prison staff botched the procedure last week using a controversial new sedative, that Blankenship had some sort of jarring reaction to the drug, or even that he faked it. Still, defense attorneys around the nation say they plan to cite Blankenship in requests to stop executions using pentobarbital, a chemical being adopted by a growing number of states as they run out of another commonly-used drug.
Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital on Thursday in Georgia's death chamber. Inmates are usually much more still during a lethal injection, but medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.
"As he's going to sleep, there could be many kinds of reactions. He could have had the same reaction with sodium thiopental," which was once the predominant execution drug, said Dr. Howard Nearman, who chairs the anesthesiology department at Case Western Reserve University's medical school. "And he could have been faking it. Anything's possible."

AP

FILE - In this undated file photo released by... View Full Caption

Georgia's prison department has stopped short of publicly launching an investigation, but said in a statement it will work with the state attorney general's office to ensure "execution procedures are medically appropriate."
Whatever conclusions the state reaches, defense attorneys said they are planning to invoke Blankenship's execution in court filings as evidence that pentobarbital could violate the ban on cruel and unusual punishment.
"It is clear that something went very wrong during the Blankenship execution and lawyers challenging lethal injection in other states will be taking a very close look at what happened," said Ty Alper, a California attorney who represents several death row inmates and works with the death penalty clinic at the University of California-Berkeley.
The execution of Blankenship, condemned for the 1978 murder of an elderly Savannah woman, was the first in Georgia using pentobarbital as part of a three-drug execution combination. The state was forced to switch after it surrendered its supply of sodium thiopental to federal officials amid an investigation into how the drug was obtained.
Georgia is one of several states that have adopted pentobarbital, which is commonly used to destroy dogs and cats, since the sole U.S. manufacturer of sodium thiopental stopped making it in 2009 and dropped plans to resume production earlier this year.
Among the objections to the new drug were multiple challenges by Blankenship's attorneys, who argued in state and federal court that it could cause him needless pain and suffering. Each request was rejected.
As the injection began, Blankenship jerked his head toward his left arm and began rapidly blinking. He then lurched toward his right arm, lunging twice with his mouth wide open as if he were gasping for air. A minute later, he pushed his head forward while mouthing inaudible words. His eyes never closed.
The movements stopped within three minutes, and he was declared dead 12 minutes later.
Medical experts differ on whether the spasms indicate the execution was improperly carried out.
Dr. Mark Dershwitz, a University of Massachusetts anesthesiologist, said pentobarbital can sometimes cause pain and involuntary jerking movements even when it's properly injected. Case Western's Nearman said patients sometimes move during an "excitement phase" that takes hold as a patient slips out of consciousness.
Others said Blankenship's reaction is a sign the pentobarbital didn't work right.
"They clearly botched this execution and Mr. Blankenship clearly suffered," said Dr. David Waisel, a Harvard medical professor who has raised questions about using pentobarbital. He said it's clear "something went wrong."
It's rare to see an inmate struggle after a lethal injection starts. Lewis Williams had to be forcibly strapped to a gurney as he pleaded for mercy during his 2004 execution in Ohio. But observers said he went to sleep the moment sodium thiopental started.

Blankenship's execution, though, is the second example of odd movements in lethal injections involving pentobarbital this year. Eddie Duval Powell raised his head with a confused look on his face and glanced around Alabama's death chamber after he was injected with pentobarbital on June 16. He then dropped his head back down and appeared to be unconscious.
"This will become an issue," said Alabama death penalty attorney Bryan Stevenson, citing the two cases. "With Blankenship's execution, new concerns will be raised about the protocols states are employing with this new drug."
Officials in Georgia, meanwhile, are quietly trying to determine what, if anything went wrong. No new executions have been scheduled since Blankenship was put to death.
His lawyer Brian Kammer wants an independent investigation and a firmer ban on executions until such a probe is complete.
"I can't see how this is not further evidence that Georgia can't competently implement a judicial lethal injection, and that it would form the basis of future challenges," he said.
———
Associated Press reporter Bob Johnson in Montgomery, Ala., contributed to this report.
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Bluestein can be reached at http://www.twitter.com/bluestein