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Another Groundless Method-of-Execution Claim

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In 1992, J.W. Ledford murdered Dr. Harry Johnston in Murray County in northwest Georgia.  As long-overdue justice for this crime approached, Ledford's lawyers argued that execution with pentobarbital (the preferred drug, which Georgia still has as other states run out) would be excruciatingly painful in his case because his long use of a painkilling medication had raised his tolerance level.  Kate Brumback has this story for AP.  It was a far-fetched claim, given that lethal injection involves a massive overdose.  So how painful was it?

Records from past executions show that the lethal drug generally starts flowing within a couple of minutes of the warden exiting the execution chamber. Ledford raised his head to look at his right arm right after the warden left and about a minute later appeared to speak to a guard to his right.

He then rested his head, closed his eyes and appeared to take several deep breaths before falling still within two or three minutes of the warden leaving the room.
In other words, the pentobarbital worked exactly as it should have.

Let's not forget what Ledford did to deserve his punishment.
Ledford told police he had gone to Johnston's home on Jan. 31, 1992, to ask for a ride to the grocery store. After the older man accused him of stealing and smacked him, Ledford pulled out a knife and stabbed Johnston to death, according to court filings. The pathologist who did the autopsy said Johnston suffered "one continuous or two slices to the neck" and bled to death.

After dragging Johnston's body to another part of Johnston's property and covering it up, Ledford went to Johnston's house with a knife and demanded money from Johnston's wife, according to court filings. He took money and four guns from the home, tied up Johnston's wife and left in Johnston's truck. He was arrested later that day.

Ledford's attorneys filed his federal civil rights action challenging the method of execution a mere five days before the execution.  The district court denied relief and a three-judge panel of the Eleventh Circuit also denied a stay.  The claim was both late, given that Ledford had been taking the gabapentin for many years, and unlikely to succeed on the merits.  On the latter point, Judge Hull wrote for the panel:

To distinguish his case from the fourteen Georgia executions that occurred without incident, Ledford claims that five grams of pentobarbital will not render him insensate quickly enough because of his history of taking gabapentin. The State's expert directly refutes that claim. For example, Dr. Jacqueline Martin testified that "the amount administered in the Georgia Department of Corrections' Execution Protocol, 5000 mg, is more than sufficient to carry out the execution without causing Plaintiff pain despite the prior administration of 1800 mg of gabapentin per day." And even Ledford's experts do not opine how quickly five grams of pentobarbital will or will not render Ledford insensate. The expert can say only that the use of gabapentin "will diminish the effect of pentobarbital," but the district court stressed, "how much, [Dr.] Berges never says." And the district court pointed out Dr. Martin's observation that the research does "not show that gabapentin's inhibitory effect would survive the large, lethal dose of pentobarbital [used] . . . in judicial execution." The district court found that Ledford's experts did not demonstrate the substantial risk of severe pain that Ledford must demonstrate.
The claim that Georgia should use the firing squad instead got a lot of press, but it is also meritless.

We also agree with the district court that Ledford has not alleged sufficient facts to render it plausible that a firing squad is a feasible and readily implemented method of execution in Georgia that would significantly reduce a substantial risk of severe pain. The Georgia legislature is free, within the parameters established by the United States Constitution, to choose the method of execution it deems appropriate. Execution by lethal injection has been ruled constitutional. Boyd v. Warden, Holman Corr. Facility, F.3d , No. 15-14971, 2017 WL 1856071, at *8 (11th Cir. May 9, 2017); Arthur v. Comm'r, Ala. Dep't of Corr., 840 F.3d 1268, 1316 (11th Cir. 2016). Having authorized a constitutional method of execution, Georgia "is under no constitutional obligation to experiment with execution by . . . firing squad." Boyd, 2017 WL 1856071, at *1; Arthur, 840 F.3d at 1315-18.2. 

In fact, Ledford's own expert, Dr. James Williams, a trauma doctor with expertise in firearms, avers: "At the present time, lethal injection of pharmacologic agents dominates the field, and, in my opinion, for good reason: when available and performed appropriately, lethal injection provides us with arguably the quickest and most humane method of deliberately ending life." While Dr. Williams opines that "gunshot wounding is--if properly carried out--also an effective means of accomplishing" death, Dr. Williams never describes gunshot wounding as a humane method, much less a more humane or the most humane method.
You know a claim is groundless when even the plaintiff's own expert won't squarely endorse it.

The Eleventh Circuit denied rehearing en banc, and the opinions concurring and dissenting from that order are available here.  The panel opinion is appended to Judge Hull's concurrence. The U.S. Supreme Court orders denying a stay and denying review to this decision and the Georgia state court's opinion are here and here.  No dissent is noted in either.

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