Attorneys for Virginia inmate Ricky Gray are asking why his execution Wednesday took more than half an hour and was not fully visible to observers.
“The time needed to find a vein for IV insertion varies from person to person, and the Department of Corrections proceeds with the utmost care in placing these lines to ensure proper administration of the chemicals,” VDOC spokeswoman Lisa Kinney said. “It is not a process to be rushed.”
Gray’s attorneys are challenging that explanation. Gray had told them that VDOC staff had examined his veins multiple times in the days leading to the execution.
“He was a healthy, 39-year-old man, and did not have any medical condition or history (such as intravenous drug use) that would indicate potential problems,” attorneys Rob Lee, Jonathan Sheldon and Elizabeth Peiffer said in a statement.
Peiffer, who was a witness to the execution, said she tried and failed to learn from prison officials what was going on behind a curtain while the IV was being inserted.
Peiffer said that after a curtain opened and the sedative midazolam was administered, she saw Gray breathing laboriously, gasping, snoring and making movements.
Peiffer said after Gray then was given a “pinch test” for pain and consciousness, he turned his head from side to side.
Kinney disputed the attorney’s account, saying Gray did not respond to the pinch test.
Gray’s attorneys say he may have been suffocating from the midazolam, or may have been reacting to the “excruciating pain” of the second and third drugs used on the execution, which paralyze the body and stop the heart.
Mark Heath, an anesthesiologist at Columbia University who has testified in several death penalty cases, said the description of Gray’s movements by his lawyers seems consistent with a reaction to a high dose of midazolam that depresses but does not fully eliminate respiratory function. The body will attempt to inhale, he said, but the brain is not aware of the struggle. “For some witnesses, it is troubling, and it creates confusion and uncertainty,” Heath said.
The speed with which Gray fell asleep, he said, suggests officials succeeded in finding a vein. And while the second and third drug “can be excruciatingly painful,” he said Gray’s reactions do not suggest he felt them.
“I’d be very, very surprised if he experienced anything,” Heath said. That said, he called Virginia’s system “a very flawed process and a very flawed protocol,” in part because the paralytic second drug prevents the witnesses from determining and reporting whether the execution was accomplished in a humane and constitutionally compliant manner.
Midazolam, has been implicated in several prolonged and apparently painful executions. Arizona has agreed to stop using it. Despite testimony from pharmacologists that midazolam is not a proper anesthetic for executions, the Supreme Court narrowly upheld the constitutionality of its use last year.
Gray was the first prisoner to be executed in Virginia using midazolam, and his execution also was the first since a 2016 state law was passed to shield drugmakers’ identities from the public. The secrecy law was passed in the face of a nationwide struggle to obtain the drugs for executions.
European pharmaceutical companies are banned from exporting drugs to the United States for use in executions. Most pharmacies here have also stopped supplying them, facing political pressure from opponents of capital punishment.
The midazolam for Gray's execution came from an unnamed compounding pharmacy, as did the third drug in the state's three-drug execution protocol: potassium chloride to stop the heart.
Gray and his nephew Ray Dandridge together confessed to killing eight people in late 2005 and early 2006. Gray was convicted of killing Bryan and Kathryn Harvey and their two children, 9-year-old Stella and 4-year-old Ruby.
Gray’s lawyers also asked why a doctor with a stethoscope checked Gray’s heart before the prisoner was pronounced dead, when in the past doctors have relied on a heart monitor. “The redundancy check by the physician is not something we have seen before in the numerous lethal injections we have observed,” they wrote.
Deborah Denno, a lawyer at Fordham University who has monitored lethal injection executions since 1982, said it was hard to compare Gray’s death to others because no outside witnesses could see what was happening.
“Nobody could see it,” Denno said. “So it’s hard to know whether it was a botched execution. It was certainly a problematic execution, because it took so long.”
Prisoners in Virginia can choose to be executed by electric chair. But an effort to make electrocution mandatory in the event that drugs are unattainable was blocked two years ago by Gov. Terry McAuliffe (D).
