Lawyers: Georgia hasn't resolved problem with execution drug

AP News
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Posted: Dec 04, 2015 4:30 PM

ATLANTA (AP) — Georgia needs to ensure that its execution drug won't be defective and potentially cause excruciating pain before sending another inmate to the death chamber, attorneys for a death row inmate argued in a court filing.

Brian Keith Terrell, 47, is scheduled for execution on Tuesday at 7 p.m. at the state prison in Jackson. He was convicted of stealing checks and killing John Watson, a good friend of his mother, in 1992.

Terrell was previously set for execution on March 10. But after Department of Corrections officials discovered a problem with the drug that was to be used in the execution of Kelly Gissendaner on March 2, they temporarily suspended all executions to allow time for an analysis of the compounded pentobarbital.

When Gissendaner's execution was halted, a state lawyer told her lawyers "this batch" of the drug didn't come out the way it was supposed to. But a Department of Corrections drug inventory log seems to indicate the agency actually had two batches of pentobarbital — one received Feb. 17 and one received Feb. 24 — and that both had become unusable, Terrell's lawyers wrote in a court filing Thursday.

Two batches going bad suggests "a more comprehensive problem" with the way the state's drug is made, that it wasn't a fluke that affected one batch, the filing says.

In mid-April, corrections officials released lab reports, a sworn statement from a pharmacological expert hired by the state and a short video showing a syringe of clear liquid with chunks of a white solid floating in the solution.

The expert concluded the most likely cause of the formation of chunks was that the solution was shipped and stored at a temperature that was too low. But he also said another possible cause was that the solvent used to make the injectable drug had absorbed some water or evaporated during the process.

Court filings show the department did its own test on a new batch of pentobarbital made by the same compounding pharmacist. The department stored one sample in a refrigerator at 34 degrees and one in a room where the temperature fluctuated between 67 degrees and 72 degrees for 11 days, and no changes were recorded in either sample. Both started and ended as clear liquid with no solids.

State lawyers have maintained that cold storage caused the problem and that the state has done everything it can to ensure that the problem won't recur. They've said the state wouldn't proceed if a problem was detected.

But there's a possibility precipitate could form in the drugs without being noticeable to the naked eye and would be like being injected with "very small pieces of glass," Dr. Michael Jay, a professor at the University of North Carolina's Eshelman School of Pharmacy wrote in a sworn statement submitted by Terrell's lawyers.

Gissendaner was executed Sept. 30 and another death row inmate, Marcus Ray Johnson, was executed Nov. 19.

Records from their executions show Johnson took considerably longer to die than Gissendaner, Terrell's lawyers wrote. Dr. Joel Zivot, an anesthesiologist, told Terrell's lawyers that is opposite of what one might expect "given Ms. Gissendaner's larger size and greater weight," the filing says.

Jay said that could indicate a lower concentration of pentobarbital in the solution given to Johnson, which suggests "the manufacture of these drugs is faulty."