Death Row inmate's fate rests on legal challenge of new lethal injection drug

MIAMI — The fate of a man scheduled to be executed for shooting and killing a Coral Gables police officer 33 years ago rests on the answer to one question: Is the new use of a drug in Florida's lethal injections effective and safe?

On Sept. 1, 61-year-old Manuel Valle is set to become the first Death Row inmate executed in Florida using a three-drug cocktail that includes the barbiturate pentobarbital.

The state quietly changed its lethal injection protocol in June to use pentobarbital after the company that manufactured the original drug, sodium thiopental, discontinued its production.

The pentobarbital is intended to knock inmates unconscious. A second drug paralyzes them, and a third stops their heart.

On Tuesday, a Miami judge heard expert testimony from two doctors arguing whether using pentobarbital causes inmates enough pain to constitute cruel and unusual punishment.

A handful of states, including Alabama, Delaware and Georgia, have already carried out recent executions using the drug — in at least one case after the courts rejected the cruel and unusual punishment claims. But no pentobarbital execution has been done in Florida, which last executed an inmate in February 2010, before the drug switch.

Last week, a divided Florida Supreme Court ruled 5-4 to temporarily stay Valle's execution — originally scheduled for 6 p.m. Tuesday — pending a hearing on the safety and efficacy of the drug, which is sold under the name Nembutal.

That hearing began last week in the courtroom of Circuit Judge Jacqueline Hogan Scola, who on Tuesday weighed the dueling opinions of two anesthesiologists.

Dr. David Waisel, who practices at Children's Hospital in Boston, testified for Valle's defense that the drug could cause inmates severe pain. Pentobarbital is used as a sedative and for certain patients with seizures or undergoing procedures that could affect the brain, he said, but the drug's use to knock someone unconscious has not been extensively studied.

"We're taking a drug that we know everything about, replacing it with a drug that we know almost nothing about," he said. If the drug doesn't work as intended, Waisel testified, inmates could feel the third drug in the lethal injection that causes cardiac arrest.

"They would feel the incredibly burning pain of potassium chloride," he said, describing the possibility as a "probably hellish" experience.

The prosecution's expert, Dr. Mark Dershwitz of the University of Massachusetts Memorial Medical Center, countered that the state's lethal-injection dose of pentobarbital — five grams — is so large that it would cause the inmate's breathing to become erratic, blood pressure to slow dramatically and brain activity to diminish.

"This dose is far in excess of any dose that would be used on a human that I can think of," he said, testifying via video conference.

Would the dose be lethal? asked Ken Nunnelley, a senior assistant attorney general.

"Definitely," Dershwitz said.

Earlier in the case, lawyers for Valle had brought up the June 16 Alabama execution of Eddie Duval Powell. A lawyer for Powell testified last week that he saw Powell jerk up, clench his jaw and look confused for about a minute before passing out and later dying.

On Tuesday, Waisel, the defense's anesthesiologist, mentioned the June 23 Georgia execution of Roy Blankenship.

Waisel was not present at the execution, but concluded from interviewing a witness and reviewing other witnesses' sworn statements — some of whom said Blankenship grimaced, jerked up and mouthed words for up to three minutes after the injection was administered — that the pentobarbital had not worked as intended.

"Mr. Blankenship suffered extremely during the execution," Waisel said.

Previous witnesses for the prosecution had described Blankenship's execution as relatively noneventful.

On Tuesday, the state's attorneys noted that pentobarbital is used in animal euthanasia, in Oregon's legal physician-assistant suicide, and, in a larger dosage, as the single drug in Ohio's lethal injections.

Valle, who was not present at Tuesday's hearing, fatally shot Officer Louis Pena during a routine traffic stop in 1978. Relatives of both men attended the hearing on the lethal-injection drug.

Pena's family applauded Tuesday when Judge Scola interrupted defense attorney Suzanne Keffer to ask how an inmate could feel pain after a potentially lethal dose of pentobarbital.

"How can anybody feel anything if they're dead?" Scola said. She later reprimanded Pena's relatives for clapping.

The judge has until 2 p.m. Friday to issue an order, which will then head to the state's high court.

Death Row inmate's fate rests on legal challenge of new lethal injection drug 08/02/11 [Last modified: Tuesday, August 2, 2011 10:07pm]

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