The trial over Arkansas' use of midazolam in executions began two years after the state raced to try to put to death eight inmates before its batch of the drug expired. Arkansas executed four of the eight inmates in 2017, but courts halted the other four executions. The trial, which is expected to last two weeks, will revisit two of those executions, which inmates' attorneys say were problematic.
An attorney for the inmates called midazolam an "inept" sedative that doesn't render someone fully unconscious before the other lethal injection drugs are administered.
"For all the midazolam is worth, the state might as well strangle the prisoners and burn them to death," John Williams, an assistant federal public defender, said during opening arguments before U.S. District Judge Kristine Baker.
The inmates' attorneys have argued that there are alternatives to midazolam, including the use of a firing squad or a barbiturate commonly used in physician-assisted suicide. Senior Assistant Attorney General Jennifer Merritt pointed to other court rulings, including a 2015 U.S. Supreme Court decision, that upheld the use of midazolam in executions, and she said the prisoners can't prove the sedative is unconstitutional. She also said the prisoners haven't proven there's an alternative available that's likely to cause less pain.
"Given the actual use of midazolam in much smaller doses in treating medical patients, as well as the state of the science, the prisoners simply cannot sustain their burden of showing that midazolam is sure or very likely to cause needless suffering," Merritt said. "Even if they could jump that hurdle, there is no proof that any of their proposed alternatives are readily implemented and would substantially reduce the risk of severe pain."
Baker heard testimony Tuesday from Kelly Kissel, a former news editor for The Associated Press who witnessed the executions of convicted murderers Marcel Williams and Kenneth Williams. Kissel, who is now the metro editor for The Advocate of Baton Rouge, Louisiana, said that Kenneth Williams lurched and convulsed 20 times before he died.
An attorney hired by the AP petitioned the judge to block the subpoena for Kissel, arguing that a journalist should not be compelled to testify about material obtained while reporting. The judge denied the effort to block his testimony, but limited it to non-confidential matters included in his published reporting.
Arkansas doesn't have any executions scheduled and its supply of the three execution drugs it uses has expired. Officials say they believe they'll be able to get more when a law expanding the secrecy surrounding the source of its execution drugs takes effect in late July.
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