A federal judge on Tuesday said he will decide within a week whether to delay Ricky Javon Gray's scheduled Jan. 18 execution over concerns about drugs the state intends to use if Gray dies by injection.
Midazolam, a sedative, and potassium chloride, which stops the heart, are the 1st and 3rd drugs used in Virginia's 3-drug procedure. The drugs were made by a compounding pharmacy and not by pharmaceutical manufacturers, which no longer provide drugs to states for executions.
The state strongly disputes that the compounded drugs - tested by a state laboratory and made by a licensed Virginia pharmacy and pharmacist - are anything less than suitable for use in an execution. The alleged problems are "wholly speculative," said Margaret Hoehl O'Shea with the state Attorney General's Office.
Under state law, Gray must choose execution by injection or electrocution by 15 days prior to the execution date. If he refuses to select a method, state law makes lethal injection the default method.
The Virginia Department of Corrections did not immediately respond Tuesday when asked if Gray had made a choice.
Gray's lawyers also contend death in the state's electric chair is cruel and unusual punishment. And they claim the use of compounded drugs have contributed to botched executions elsewhere and unnecessarily increase the risk of "chemical torture."
They are asking U.S. District Judge Henry Hudson - who heard more than 4 hours of testimony and argument Tuesday - to delay the execution so they can better make their case.
An expert testified for Gray on Tuesday that execution by firing squad presents less risk of cruel and unusual punishment than Virginia's proposed injection procedure.
Gray was sentenced to die for the New Year's Day 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39, in their South Richmond home, which was set on fire.
Less than a week later, Gray and accomplice Ray Dandridge, 39, killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys; Baskerville's mother, Mary Tucker, 47; and stepfather, Percyell Tucker, 55, in their Richmond home.
O'Shea, in her closing argument, told the judge that what Gray did was a nightmare for the community, the Harvey family and the 2 little girls.
Lisa Fried, 1 of Gray's lawyers, asked the judge not to call off the execution, but to delay it so Gray's concerns can be fully aired.
In response to a question from Hudson, Fried conceded the Constitution does not require a pain-free execution. But she said that while the public has an interest in seeing that sentences are carried out, everyone in the state has an interest in making sure executions are carried out constitutionally.
An expert, pharmacist Larry Sasich, testified that the testing performed by the state on the compounded drugs - to identify them and ascertain their potency - was inadequate. They should also been tested for sterility, acidity, and to see if there are any particulates in the solutions, which are injected into the inmate via an intravenous line.
Asked by Fried how likely it was that the use of a compounded drug would lead to pain and suffering, Sasich said, "It is more likely compared to the use of an FDA-approved product."
However, a state expert pharmacist, Daniel Buffington, said the compounding of such drugs by pharmacies is common in the industry. "It's done routinely," he said.
Buffington said he was not aware of any botched execution caused by midazolam. He said the problems that he was aware of were caused by the drug's administration.
Dr. Jonathan Groner testified there was less risk of pain in an execution by firing squad, which would be almost instantaneous if done properly, than in one using midazolam. Virginia has not used the firing squad, although Utah has twice since the death penalty was allowed to resume in 1976.
A Department of Corrections official testified that no employees were trained to conduct a firing squad, there was no facility in which to do so, and the General Assembly would have to change the law to permit that form of execution. He conceded under cross-examination that prison employees are trained in the use of firearms.
Source: The Roanoke Times, January 3, 2017
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