RICHMOND, Va. (AP) — The drugs from a secret compounding pharmacy that Virginia plans to use in a lethal injection this month were appropriately prepared and tested and any argument that they are subpar is speculative, an attorney for the state said Tuesday.
Assistant Attorney General Margaret O'Shea asked a federal judge to deny a request from attorneys for condemned inmate Ricky Gray to put his execution on hold so they can challenge the state's execution protocol. Gray's attorneys say there is a serious risk that Virginia will "chemically torture" him by using midazolam and potassium chloride made at a compounding pharmacy, facilities that are not as heavily regulated as more conventional pharmacies.
"Compounding is not a dirty word. ... A compounded drug is not automatically subpar because of the way it's made," O'Shea said in her closing arguments after hours of testimony from doctors and state officials.
Gray, 39, who is scheduled to be executed Jan. 18, was convicted of killing a well-known family of four, including two young girls, in Richmond on New Year's Day in 2006. He did not attend the hearing.
Virginia's lethal injection protocol calls for the use of pentobarbital or midazolam followed by rocuronium bromide to halt breathing, and potassium chloride to stop the heart. The state plans to execute Gray using midazolam and potassium chloride that it purchased from a compounding pharmacy under a new state law, which also allows prison officials to shield the supplier's identity.
While O'Shea said that any argument that the state's drugs are subpar is "wholly speculative," Lisa Fried, an attorney for Gray, said that notion underscores exactly what's wrong with the secrecy law. The state doesn't provide adequate information about the drugs for that to be determined, she said.
Gray's attorneys also argue that midazolam isn't a proper anesthetic and therefore cannot effectively render him unconscious to ensure his death is painless. They also say Virginia would be the first state to perform an execution using compounded midazolam or compounded potassium chloride and the first state to perform an execution using more than one compounded drug.
"This is a novel case," Fried said Tuesday.
Midazolam has come under fire after several problematic executions. In Alabama in December, death row inmate Ronald Bert Smith Jr. coughed, and his upper body heaved repeatedly for 13 minutes as he was being sedated.
The U.S. Supreme Court ruled 5-4 last year that Oklahoma inmates hadn't proved midazolam violated the Eighth Amendment's prohibition on cruel and unusual punishment. Inmates have continued to challenge its use.
Gray also plans to ask Gov. Terry McAuliffe to commute his sentence to life in prison, arguing that jurors did not hear enough evidence about his history as a sexual abuse victim and resulting drug use before they chose to sentence him to death, The Virginian-Pilot has reported.
His attorneys wrote in their complaint that Gray was raped repeatedly as a child by his older step-brother and physically abused by his father. They say that Gray suffers from post-traumatic stress disorder and has recurring nightmares about the rapes that leave him paralyzed.
"There's an irony that Gray might be worried about his own nightmares," O'Shea said Tuesday. She said the crime he committed was a nightmare for the community and the Harvey family.
Bryan and Kathryn Harvey and their 9-year-old and 4-year-old daughters were preparing to host friends for a holiday chili dinner when Gray and another man spotted their open front door. They tied the family up in their basement, where they were stabbed and beaten to death before their house was set on fire. Gray claims he doesn't remember the killings because he was high on PCP. The other man was sentenced to life in prison.
U.S. District Judge Henry Hudson said he expected to issue a ruling on the request by Monday or Tuesday of next week.
Associated Press writer Alanna Durkin Richer contributed to this report.