ATMORE, Ala. (AP) — An Alabama inmate coughed repeatedly and his upper body heaved for at least 13 minutes during an execution using a drug that has previously been used in problematic lethal injections in at least three other states.
Ronald Bert Smith Jr., 45, also appeared to move slightly during two tests meant to determine consciousness before he was finally pronounced dead at 11:05 p.m. Thursday — about 30 minutes after the procedure began at the state prison in southwest Alabama.
Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination.
Oklahoma’s use of midazolam as the first in a three-drug protocol was challenged after the April 2014 execution of Clayton Lockett, who writhed on a gurney, moaned and clenched his teeth for several minutes before prison officials tried to halt the process. Lockett died after 43 minutes. A state investigation into Lockett’s execution revealed that a failed line caused the drugs to be administered locally instead of into Lockett’s blood.
Ohio and Arizona have used midazolam as the first in a two-drug protocol. Ohio inmate Dennis McGuire repeatedly gasped and snorted over 26 minutes during his January 2014 execution. The state abandoned that method afterward and has yet to resume executions. Arizona halted executions after the July 2014 lethal injection of convicted killer Joseph Rudolph Wood, who took nearly two hours to die.
Smith and other Alabama inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court ruled in a challenge by Oklahoma death row inmates that they had failed to prove that the use of midazolam was unconstitutional.
Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of life imprisonment, but a judge overrode that recommendation and sentenced Smith to death.
At the beginning of his execution, Smith heaved and coughed repeatedly, clenching his fists and raising his head.
A prison guard performed two consciousness checks before the final two lethal drugs were administered. In a consciousness test, a prison officer says the inmate’s name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right hand after the second consciousness test.
The meaning of those movements will likely be debated. One of Smith’s attorneys whispered to another attorney, “He’s reacting,” and pointed out the inmate’s repeated movements.
The state prison commissioner said he did not see any reaction to the consciousness tests.
“We do know we followed our protocol. We are absolutely convinced of that,” Alabama Corrections Commissioner Jeff Dunn said Thursday evening.
When asked if the movements indicated there was a problem with the execution, Dunn said: “There will be an autopsy that will be done on Mr. Smith and if there were any irregularities those will hopefully be shown or borne out in the autopsy. I think the question is probably better left to the medical experts.”
Dunn declined to say whether Smith was given an additional dose of midazolam after the first consciousness test.
Just before Thursday night’s execution began, Smith replied, “No ma’am” when asked by the prison warden if he had any final words. A member of Wilson’s family, who was not identified, witnessed the execution. The victim’s family did not make a statement.
Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record.
In overriding the jury’s recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death.
“The trial court described Smith’s acts as ‘an execution style slaying.’ Tonight, justice was finally served,” Alabama Attorney General Luther Strange said in a statement after the execution.
U.S. Supreme Court justices twice paused the execution as Smith’s attorneys argued for a delay, saying a judge shouldn’t have been able to impose the death penalty when a jury recommended he receive life imprisonment.
Four liberal justices said they would have halted the execution, but five were needed to do so.
Smith’s attorneys had urged the nation’s highest court to block the planned execution to review the judge’s override.
Smith’s lawyers argued a January decision that struck down Florida’s death penalty structure because it gave too much power to judges raises legal questions about Alabama’s process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued.
“Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury’s verdict,” attorneys for Smith wrote Wednesday.
Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision.
Smith, the son of a NASA contract employee, became an Eagle Scout at 15, but his life spiraled downward because of alcoholism, according to a clemency request to Alabama’s governor. He had a final meal of fried chicken and french fries and was visited during the day by his parents and son.
Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used.
The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state’s first execution since 2013. Judges stayed two other executions that had been scheduled this year.