Capital Cases
January/February 2004, Page 33

Lethal injection and the Georgia Supreme Court's new millennium
By Mike Mears

Lethal injection and the Georgia Supreme Court’s new millennium
The Georgia Supreme Court, on October 5, 2001, declared that executions by electrocution are unconstitutional in Georgia. Justice Hunstein, writing for the majority of the court, stated that the “legislature’s adoption of lethal injection as the exclusive method for executing the death penalty in Georgia reflects societal consensus that the science of the present day has provided a less painful, less barbarous means for taking the life of condemned prisoners.”1 Thus, Georgia moved into the new millennium with a method of execution which purportedly represents a new standard of decency.2 

The Georgia General Assembly, on January 27, 2000, enacted legislation which provided for lethal injection executions in the event the electric chair was ever declared unconstitutional. The legislation defined lethal injection as “the continuous intravenous injection of a substance or substances sufficient to cause death into the body of the person sentenced to death until such person is dead.”3

The members of the General Assembly left the details of Georgia’s lethal injection to the Department of Corrections.4 In developing lethal injection protocols, the department followed the lead of other states which have adopted lethal injection as a means of carrying out executions. The most commonly used drugs for execution by lethal injection are sodium pentothal (as a sedative), pancurium bromide (stops respiration), and potassium chloride (stops the heart). The sedative is usually administered first so that the death spasms caused by the administration of pancurium bromide and potassium chloride will not disrupt the execution process. It also makes it easier for the executioner(s) to locate a vein suitable for the administration of the deadly mixture of drugs.

An analysis of the first six executions carried out in Georgia using these drugs clearly shows that death by lethal injection is fraught with problems, just as death by electrocution had been. This article will present the facts and circumstances surrounding Georgia’s experience with lethal injection executions and will raise the question of whether this method of execution meets the current standards of decency as articulated by the Georgia Supreme Court.5 

The first evidentiary hearing on the constitutionality of lethal injection in Georgia began six months after the Georgia Supreme Court outlawed execution by electrocution. The hearing was held before The Honorable Michael C. Clark, Gwinnett County Superior Court.6 At this hearing, Judge Clark heard testimony from individuals who had participated either directly or indirectly in the first six lethal injection executions in Georgia: the president of the Medical College of Georgia, which employs many of the medical staff who were involved in the first six lethal injection executions; an anesthesiologist who had reviewed the protocols and records of the first six lethal injection executions in Georgia;7 a pathologist who had performed or reviewed autopsies on the first six individuals executed by lethal injection in Georgia;8 and, finally, Georgia Department of Corrections employees who actually carried out these executions. Judge Clark also reviewed the Georgia Department of Corrections records from the first six lethal injection executions.

Georgia’s new death penalty statute does not require a physician to participate in the execution process because Georgia law declares, “No state agency, department, or official may, through regulation or otherwise, require or compel a physician to participate in the execution of a death sentence.”9 Obviously, the framers of the law and this new act were aware that all doctors take an oath to “give no deadly medicine to anyone if asked, nor suggest any such counsel.”10 As a result, doctors would find it difficult to participate in lethal injection executions without violating the Hippocratic Oath.

Some members of this execution team, who have medical training and who provide direction to other members of the execution team, are employed by Georgia Correctional Health Care, an entity of the Medical College of Georgia.11 They included a registered nurse who was the health service administrator responsible for overseeing the medical unit at Georgia Diagnostic Center Prison and who arranged and prepared the medical supplies for use prior to the first six executions and a registered nurse who was the infection control nurse at the prison and who supervised and provided assistance to the deputy warden who actually mixed and prepared the lethal drugs. The infection control nurse is the person who supervised and directed the executioners to push the plungers on the syringes filled with lethal drugs. Some of the execution team members are hired on a contract basis by the Department of Corrections. These are a licensed practical nurse hired on a contract basis who started the intravenous lines in the condemned person’s arms and a physician who was hired on a contract basis who attended the six executions and who was also involved in the decision to inject additional lethal drugs in at least one of the executions.12 

The witnesses who participated in the six executions testified that the executions began when the condemned person was escorted by the escort team from the death watch holding cell to the execution chamber.13 The condemned was then strapped to a gurney by the strap down team.14 The condemned person’s arms and hands were taped to extensions that protrude perpendicularly from the gurney.15 The registered nurse then brought the medical supplies needed for the execution from the infirmary to the execution chamber and helped prepare them for use prior to the execution.16 Two twelve-foot intravenous lines were setup to run from the execution gurney to a hole in the wall, then through the wall and into the control room where the lethal drugs would later be injected into the IV line.17 A heart monitor was in the execution chamber and electrodes from the machine were later strapped to the chest of the condemned person.18 The deputy warden prepared the syringes under the supervision of the registered nurse who also supervised the three staff members who injected the lethal drugs into the IV setup.19

In the execution chamber, the licensed practical nurse was responsible for inserting intravenous catheter needles into the condemned person.20 The physician, hired on a contract basis to oversee the execution and establish venous access if the nurse’s attempts at inserting the catheter needles failed, was also present.21 

Standards of medical care
During one of the executions, the licensed practical nurse was unable insert the IV catheter after thirty-nine minutes of sticking the condemned inmate in his hand, arm, groin, leg, and foot.22 The physician attending the execution and assisting the licensed practical nurse testified that he had not read the execution protocols,23 however, he performed a surgical “cut down” and started an infraclavicular subclavian catheter (central line) during that particular execution,24 a procedure that has a six percent complication rate nationally.25 Testimony was given at the hearing that, except for emergency situations, this procedure (for starting a central line and injecting drugs) would normally be performed in a therapeutic setting where the known risks were mitigated by ready access to: (1) sophisticated medical equipment and devices;26 (2) trained and experienced staff; and (3) drugs to treat these complications.27 This equipment, staff, and drugs were not available in the execution chamber and thus the doctor’s use of the central line catheterization did not meet acceptable standards of medical care.28 

Once intravenous access was established, the nurse watched the condemned person during the remainder of the execution for the purpose of communicating information about the condemned person’s body movements, facial expressions, etc., to another person in the execution chamber who was responsible for communicating the information to the corrections officer in the control room.29 That officer was then responsible for passing the communication on to the registered nurse who supervised and provided directions to the staff members who were pushing the plungers on the syringes filled with lethal drugs.30 

In each of the six executions, after receiving instructions to proceed with the execution, the registered nurse advised the injection team members to push the plunger on the syringes containing the lethal drugs and thus beginning the execution.31 This registered nurse did not touch or receive any tactile feedback from the plunger on the syringe; she was completely dependent upon the correctional officers and staff members (who had volunteered to inject the lethal drugs and who were not medical staff or medically trained) for information regarding the pressure required to push the plunger down and any indications of complications that arose in pushing the drugs into the intravenous setup. Presumably, the intravenous line used to inject the lethal drugs would be placed in the arm of the condemned person and not in the chest, groin, leg, or foot and then covered by a sheet.32 Therefore, if the intravenous fluids containing the lethal drugs entered the subcutaneous tissue around the vein or leaked out of the injection site, such seepage or leaking could be observed by the licensed practical nurse standing at the gurney. However, if the injection site were in the condemned person’s chest, groin, leg or foot and thus covered by a sheet, the nurse would not be able to observe the leakage or subcutaneous seepage. In such an instance she would be unable to identify and communicate any problems to other execution team members, particularly to the registered nurse controlling the team members who were responsible for pushing the syringe plungers.33 Two of the three executioners testified at the hearing that they did not watch the condemned person during the execution process.34

The first drug35 injected into the condemned inmates was sodium pentothal, an ultra-short acting barbiturate that supposedly induced unconsciousness.36 The Georgia Department of Corrections execution protocols37contain detailed instructions for the executioners in injecting the lethal drugs.38 Pursuant to protocol 2.3, “Syringe #1 (sodium pentothal) shall be inserted into the designated receiving port of the three-way control device.”39 Testimony during the hearing emphasized the fact that sensitivity to sodium pentothal varies greatly among individuals.40 The effective use of sodium pentothal depends upon a number of factors, some well-recognized, others that remain unknown. Known factors that affect the efficacy of sodium pentothal include body weight, body fat, prior drug usage, the presence in the body of other sedating agents, and the level of anxiety or stress.41 Given the variable sensitivity and the range of known and unknown factors that influence the effectiveness of sodium pentothal, witnesses testified that there is significant risk that even one (1) gram of sodium pentothal successfully and completely injected may not be effective in causing a deep, lengthy, anesthetized state in a condemned individual (i.e., the condemned person might lose consciousness for only a brief period of time).42

Following administration of sodium pentothal, a syringe of saline solution was then injected into the condemned person before a syringe containing 50 milligrams of pavulon was injected.43 Pavulon is a paralyzing agent that stops the diaphragm and all voluntary muscle movement thereby preventing breathing.44 In contrast to the ultra-short-acting duration of the anesthetizing agent sodium pentothal, the paralysis induced by Pavulon is of a long duration.45 Another syringe of saline solution was injected before a syringe containing potassium chloride (120 milliequivalent) is injected.46 The potassium chloride causes the condemned person’s heart to stop.47

The court heard testimony that the execution protocols were written with the knowledge that the condemned person might not be killed by the injection of the first series of these drugs. If this occurs, the protocols call for a second series of injections using the same three drugs.48 In two of the first six lethal injection executions in Georgia, the execution staff significantly deviated from the established protocols. For these two condemned persons, heart activity was observed after the first series of drugs had been injected. The attending physician, who had not read the protocols,49 ordered the injection team to inject only additional potassium chloride rather than follow the protocols and inject the drugs in the predetermined sequence of sodium pentothal, pavulon, potassium chloride.50 If the sodium pentothal had worn off by that time, the condemned prisoner would have been conscious, yet paralyzed and unable to communicate his sensations of pain.

Conscious
If an unconscious condemned person is paralyzed after being administered pavulon and then regains consciousness, it is almost certain that the execution staff would be completely unaware that the prisoner had become conscious.51 A condemned person could regain consciousness because (1) less than the expected dose of anesthetizing drug sodium pentothal had been successfully injected into the individual’s bloodstream; (2) the sensitivity to sodium pentothal varies greatly among the population52 and some individuals, particularly those who have been building additional resistance by taking Valium53 or other anti-anxiety medication, are significantly more resistant to sodium pentothal than others; or (3) the duration of the effectiveness of the ultra-short acting sodium pentothal had worn off. In such a scenario the execution staff would also be completely unaware that the condemned prisoner was experiencing excruciating pain from suffocation because the diaphragm muscles had been paralyzed, burning in the veins from the injection of the potassium chloride, and finally a massive heart attack induced by the potassium chloride.54

At the hearing, the defense called Dr. Mark Heath as an expert witness. He is a practicing, board certified anesthesiologist, an associate professor at Columbia University Medical School who teaches anesthesiology to medical students and residents, a researcher in the field of anesthesiology sponsored by the National Institute of Health, a published author in the field of anesthesiology, and a member of the American Society of Anesthesiologists.55 Dr. Heath explained how, under Georgia’s protocols for lethal injection, a condemned person could be subjected to torture and painful suffering before succumbing to the lethal drugs. If during the injection of the first drug, sodium pentothal, a problem were discovered with the intravenous line or injection site, the staff would be directed to switch to the second line pursuant to the protocols.56 If the syringe of sodium pentothal that had been injected into the IV setup were empty and the condemned person appeared unconscious, the staff could mistakenly assume that all of the sodium pentothal had been successfully injected, and then begin injecting the paralyzing agent, Pavulon, on the second line. The signs and symptoms that indicate how deeply a patient is anesthetized are subtle.57 The execution staff member responsible for monitoring the first six executions did not have the training, experience, or expertise to assess these signs and symptoms for how deeply anesthetized condemned person was.58 

Assuming that the condemned person had received only enough sodium pentothal to be rendered unconscious for a short time, the condemned person would then become conscious after he or she had been paralyzed by the Pavulon.59 The person would be fully conscious and sensory aware, yet could not have communicated in any manner with the members of the execution team or to the official witnesses. In such an event, the condemned person would be suffocating because his diaphragm would have been paralyzed, he would have felt his veins burn as the alkylic potassium chloride was injected, and he would have experienced a massive heart attack.60 According to the testimony of the experts, the use of Pavulon in the lethal injection protocols creates significant risks in the execution process and should have been justified by a corresponding penological benefit.

Kris Sperry, M.D., the state medical examiner who testified for the state in this hearing, conceded that it would be impossible to determine whether an individual paralyzed by an administration of Pavulon were conscious or not.61 While Dr. Sperry has no postgraduate training or expertise in the area of anesthesiology,62 on this particular issue, Dr. Sperry’s testimony was in complete agreement with the testimony of Dr. Mark Heath. Given the increased risk of inflicting truly horrific pain and suffering upon the condemned prisoner, why is Pavulon used in Georgia’s lethal injection procedures? Dr. Kris Sperry provided the straight, simple answer:

Q. Dr. Sperry, then, if I understand your testimony, the injection of the Pavulon in the dosage that has been described in the. . . . serves no purpose other than to prevent someone from watching the body twitch or enter into seizure; is that correct?
A. Essentially, yes. . . . [I]n the protocol itself the administration of the Pavulon as the second drug is meant specifically, as you said, Mr. Mears, to paralyze all the muscles of the body so that any involuntary twitching or jerking that may occur as part of the dying process, or seizures which are very common in anyone who dies for any sort of reason, well into the dying process; that is, when their brain is shut down, the body may involuntarily undergo muscular seizures. And that’s really what the pavulon is meant for is to paralyze all the muscles such that those outwardly aesthetically unpleasant things are not seen and do not occur.63
Similarly, Dr. Mark Heath opined on the use of pavulon in the lethal injection procedure:
Q. And finally, two questions. Is there any need to give the Pavulon to bring about a death in these protocols as you understand them?
A. No. . . .
Q. [C]ould everything be the same except take away the Pavulon and you’d still have an execution take place?
A. It wouldn’t be the same because it would be better. But it would be otherwise – you’d achieve the goal of death exactly . . . . [I]t almost seems like a sick joke that somebody would design [the protocols] with an ultra-short-acting drug to make the condemned go to sleep and then a long-acting paralyzing drug. It wouldn’t be done in clinical practice and I just can’t imagine any reason why it would be done here.64

Dr. Heath’s testimony was similar to the coda remarks of U.S. Supreme Court Justice Blackmun, who in one of his last dissenting opinions wrote, “[F]rom this day forward, I no longer shall tinker with the machinery of death.”65
Though Georgia may not be constitutionally obliged to make executions absolutely pain-free, significant, conscious pain that lasts for more than a few seconds is constitutionally intolerable.66 Execution in the gas chamber in California was held unconstitutional where evidence indicated “death by this method is not instantaneous. Death is not extremely rapid or within a matter of seconds. Rather . . . inmates are likely to be conscious for anywhere from 15 seconds to one minute from the time that the gas strikes their face” and “during this period of consciousness, the condemned inmate is likely to suffer intense physical pain” from “air hunger”; “symptoms of air hunger include intense chest pains . . . acute anxiety, and struggling to breathe.”67

The Georgia Supreme Court took almost 30 years to decide that state imposed death in the electric chair was barbaric. Hopefully, 30 years will not pass before we come to the realization that death on a gurney is not necessarily less cruel but merely more aesthetically acceptable than electrocution. Such a charade makes lethal injection unfit for this new millennium.

 Notes
1. Dawson v. State, 274 Ga 327 (Ga. 2001) (finding that the legislation provided that all executions for crimes committed after May, 2001 would be by lethal injection only. Death sentences for crimes committed before that date would be carried out by electrocution).
2. See John Blume, Michael N. Burt, Gail R. Weinheimer, Recent Legal Developments Affecting Capital Litigation in California, February 17, 2001 - December 31, 2001 (January 4, 2002) (describing the electric chair as a “barbarism unfit for the new millennia in light of evolving standards of decency”).
3. Official Code of Georgia Annotated § 17-10-38.
4. Official Code of Georgia Annotated §17-10-44. (“The Department of Corrections shall provide a place for execution of the death sentence and all necessary apparatus, machinery, and appliances for inflicting the penalty of death.”)
5. See Dawson, supra note 1, at p. 329 (“whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the ‘evolving standards of decency that mark the progress of a maturing society’”) (quoting Fleming v. Zant, 259 Ga. 687, 690 3, 386 S.E.2d 339 (1989)). As noted by the United States Supreme Court in addressing the scope of the Eighth Amendment’s prohibition against cruel and unusual punishments, “if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts, or to prevent only an exact repetition of history.” (citing Weems v. United States, 217 U.S. 349, 379, 30 S. Ct. 544, 54 L. Ed. 793 (1910)).
6. State v. Michael Wayne Nance, Indictment No. 95-B-2461-4, in the Superior Court of Gwinnett County, Georgia. All references to transcript of hearing relate to hearing conducted before The Honorable Michael Clark, Judge Gwinnett County Superior Court in the Nance case. The hearing(s) took place on April 30th, May 1st, June 1st, and July 30th, 2002.
7. These witnesses, in order of appearance, were: (1) Terry Duffey, Deputy Warden for Security at Georgia Diagnostic and Classifications Prison (GDCP) (where death row is housed and inmates are executed); (2) Sandra Cook, contract licensed practical nurse who is responsible for starting the peripheral IV in the condemned person; (3) Timothy Harden, Department of Corrections staff physician present in his professional capacity during several lethal injection executions; (4) Katherine Carmichael, pharmacist at GDCP who provides lethal drugs to Mr. Duffey; (5) Charles Kelley, member of injection team who pushes a plunger on a syringe containing lethal drugs; (6) Sandy Jackson, an emergency medical technician; (7) Roger Wimberly, emergency medical technician; (8) Tom Stewart, member of injection team who pushes a plunger on a syringe containing lethal drugs; (9) Julie Ann Ridgeway, registered nurse who is the health service administrator at GDCP responsible for overseeing the medical unit at the prison, insures that the medical equipment and devices used in the lethal injection execution are present and ready for use, and oversees Ms. Cook’s insertion of the IV into the condemned person; (10) Wanda Davis, registered nurse who is the infection control nurse at GDCP and supervises and provides direction to the staff members who push the plungers on the syringes filled with lethal drugs; (11) Daniel Rahn, M.D., president of the Medical College of Georgia that owns Georgia Correctional Health Care which itself has an exclusive contract to provide medical care to inmates of the Georgia Department of Corrections and which employs medical staff who had been participating in lethal injection executions; (12) Sanjeeva Rao, M.D., contract physician responsible for overseeing the execution and performing a cut-down or infraclavicular catheterization (central line) when attempts at starting a peripheral IV are unsuccessful; (13) Mark Heath, M.D., anesthesiologist who reviewed the protocols and records of the first six lethal injection executions in Georgia; and (14) Kris Sperry, M.D., chief medical examiner for the state of Georgia who performed or reviewed the autopsies of the first six individuals executed by lethal injection in Georgia.
8. Dr. Mark Heath, an expert called by the defense, is a practicing anesthesiologist who is Board Certified in anesthesiology, an associate professor at Columbia University who teaches anesthesiology to medical students and residents, a researcher in the field of anesthesiology for the National Institute of Health, and he publishes in the field of anesthesiology and is a member of the American Society of Anesthesiologists.
9. See supra note 3, Official Code of Georgia Annotated § 17-10-38.
10. See American Medical Association. The Oath Registry for Georgia’s Medical Schools all provide for the taking of some form of the Hippocratic Oath. The relevant part of that oath is “I will not give poison to anyone though asked to do so, nor will I suggest such a plan.”
11. The Medical College of Georgia has a wholly owned subsidiary, Georgia Correctional Health Care, that provides medical care to the inmates of Georgia Department of Corrections. Testimony of Dr. Rahn, Tr. 236, May 1, 2002.
12. Testimony of Dr. Harden, Tr. 166, April 30, 2002; Ex. 886.
13. Testimony of Deputy Warden Terry Duffey, Tr. 74, April 30, 2002.
14. Hearing Exhibit Number 688 (Protocol 16.3.8-10); testimony of Sandra Cook, Tr. 128, April 30, 2002.
15. Testimony of Sandra Cook, Tr. 128, April 30, 2002.
16. Testimony of Julie Ann Ridgeway, Tr. 203-04, April 30, 2002.
17. Testimony of Sandra Cook, Tr. 132-34, April 30, 2002.
18. Testimony of Sandra Cook, Tr. 136, April 30, 2002.
19. Testimony of Deputy Warden Terry Duffey, Tr. 80, April 30, 2002.
20. Testimony of Sandra Cook, Tr. 126, April 30, 2002; testimony of Julie Ann Ridgeway, Tr. 205, April 30, 2002; testimony of Dr. Rao, Tr. 288, May 1, 2002.
21. Testimony of Sandra Cook, Tr. 144, April 30, 2002; testimony of Dr. Rao, Tr. 288, May 1, 2002.
22. Hearing Exhibit Number 823-24 (handwritten log of execution); Ex. 798 (Commissioner Command Post Activity Log); Ex. 828-29 (photographs of Mr. High’s body after the execution); testimony of Sandra Cook, Tr. 143, April 30, 2002.
23. Testimony of Dr. Rao, Tr. 294, May 1, 2002 (“But I was not entitled to have – at least they didn’t give me the protocol.”)
24. Testimony of Dr. Rao, Tr. 304, May 1, 2002.
25. Testimony of Dr. Rao, Tr. 297, May 1, 2002; Dr. Rao also testified his rate of complications has been lower.
26. When a central line is performed in a hospital, the hospital has sophisticated drugs on hand to treat heart arrhythmia and neumothorax conditions, the two most common complications associated with this procedure, a specialized pump to suck air out of a hole punched into the side of the chest cavity to treat neumothorax, and a defibrillator. (Dr. Rao testified the defibrillator at GDCP is standing by for use on family member witnesses who presumably may suffer cardiac arrest while witnessing an execution. Tr. 287, May 1, 2002.)
27. Testimony of Dr. Heath, Tr. 340-41, 352, 365-66, May 1, 2002 (discussing the safeguards that exist in the hospital setting, and that it is against the law to perform a central line in a hospital without these safeguards).
28. Testimony of Julie Ann Ridgeway, Tr. 204, April 30, 2002.
29. Testimony of Sandra Cook, Tr. 138, April 30, 2002; testimony of Wanda Davis, Tr. 219, April 30, 2002.
30. Testimony of Wanda Davis, Tr. 219, April 30, 2002.
31. Testimony of Wanda Davis, Tr. 218, April 30, 2002.
32. See, e.g., testimony of Sandra Cook, Tr. 142-43, April 30, 2002, regarding the attempts at starting a catheter in Mr. Jose High’s hand, arm, leg, and foot.
33. Testimony of Wanda Davis, Tr. 219, April 30, 2002; see also Testimony of Dr. Heath, Tr. 325, May 1, 2002, discussing the risks inherent in such an arrangement
34. Testimony of Charles Kelley, Tr. 178, April 30, 3003; testimony of Tommy Stewart, Tr. 198, April 30, 2002.
35. Pentothal is synonymous with Sodium Pentothal, Thiopental, and Sodium Thiopental.
36. Testimony of Dr. Heath, Tr. 321, May 1, 2002.
37. Administrative and Execution Procedures, Lethal Injection, Under Death Sentence (May 1, 2000) (protocols), Annex IV, “Injection Team - Detailed Instructions”
38. Hearing Exhibit Number 698.
39. Hearing Exhibit Number 698.
40. Testimony of Dr. Sperry, Tr. 57, July 30,2002.
41. Testimony of Dr. Heath, Tr. 332-33, May 1, 2002.
42. Testimony of Dr. Heath, Tr. 329-32, May 1, 2002.
43. Hearing Exhibit Number 656.
44. Testimony of Dr. Sperry, Tr. 40, July 30, 2002.
45. Testimony of Dr. Heath, Tr. 367, May 1, 2002.
46. Hearing Exhibit Number 656.
47. Testimony of Dr. Heath, Tr. 333, May 1, 2002.
48. Hearing Exhibit Number 689 (protocol 16.3.19).
49. See supra note 14.
50. Testimony of Charles Kelley, Tr. 180, April 30, 2002.
51. While Sandra Cook, the contract LPN who is responsible for starting the peripheral IV in the condemned prisoner and then observes the prisoner during the execution process initially testified that she looked for signs that would indicate that the prisoner was regaining consciousness during the execution procedures (the signs she looked for to determine if the condemned person was regaining consciousness were “the eyes or, you know, even they could have some twitching.” Sandra Cook, Tr. 138, April 30, 2002), she eventually conceded that she would not know if a condemned person paralyzed by Pavulon had regained consciousness. Sandra Cook, Tr. 151, April 30, 2002. (It must also be noted that the signs initially cited by Ms. Cook as indicators of when a paralyzed person is regaining consciousness are not, in fact, accurate indicators of a person in this circumstance gaining consciousness. See Testimony of Dr. Heath, Tr. 324-25, May 1, 2002.) 52. Testimony of Dr. Sperry, Tr. 57, July 30, 2002, that the sensitivity to sodium pentothal varies greatly from individual to individual.
53. Testimony of Dr. Heath, Tr. 332, June 1, 2002, that drugs like Valium can make people very resistant to sodium pentothal.
54. See testimony of Dr. Heath, Tr. 336-37, May 1, 2002, describing effect of Pavulon and potassium chloride upon the body. See also testimony of Dr. Sperry, Tr. at 33, July 30, 2002, describing the effect of potassium chloride upon the body.
55. Testimony of Dr. Heath, Tr. 323-24, May 1, 2002.
56. Testimony Wanda Davis, Tr. 219, April 30, 2002 (“A. Leaking or anything. She will signal to us. There is a man in the room with us who watches and knows everything that’s going on. He will in turn let me know and that IV site will be shut down and we will use the other site. Q. And then you continue on where you were? A. Where we left off, exactly.”)
57. Testimony Dr. Heath, Tr. 323-24, May 1, 2002.
58. See supra note 23.
59. Testimony of Dr. Sperry, Tr. 35, July 30, 2002.
60. Testimony of Dr. Heath, Tr. 337-38, 340-341, May 1, 2002.
61. Testimony of Dr. Sperry, Tr. 57, July 30, 2002.
62. Testimony of Dr. Sperry, Tr. at 11, July 30, 2002.
63. Hearing Transcript pages 39-40, July 30, 2002.
64. Hearing Transcript pages 366-67, May 1, 2002.
65. Callins v. Collins, 510 U.S. 1141 (1994).
66. Likewise, the spasms, flailing, and other bodily indignities that a prisoner may suffer because of inadequacies in the Georgia Department of Corrections’ procedures for lethal injection also offend the constitution. See Adolf, Killing Me Softly: Is the Gas Chamber, Or Any Other Method of Execution, Cruel and Unusual Punishment?” 22 Hastings Const. L.Q. 815, 848 (1995) (constitutional requirement that method of execution not abridge basic human dignity “is violated to the degree that the prisoner, as a person, loses control over her own body . . . . When a state’s execution apparatus takes away control of the body’s functions in the throes of death, the prisoner’s pathetic flailings . . . even if unconscious and painless . . . rob the prisoner of dignity in the most visceral sense. This kind of degradation includes . . . spasms”).
67. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994) aff’d, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).


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