Judge re­fuses to halt ex­e­cu­tion

In­mate chal­leng­ing use of lethal in­jec­tion drugs

The Progress-Index - - FRONT PAGE - By Alanna Durkin Richer

RICHMOND — A fed­eral judge re­fused Tues­day to halt the ex­e­cu­tion of a Vir­ginia in­mate who’s chal­leng­ing the state’s plan to use lethal in­jec­tion drugs from a se­cret com­pound­ing phar­macy.

Ricky Gray’s at­tor­neys had asked U.S. District Judge Henry Hud­son for a de­lay to en­able the man to bring his le­gal chal­lenge, say­ing the state risks “chem­i­cally tor­tur­ing” him if it uses com­pounded mi­da­zo­lam and other drugs to put him to death him on Jan. 18.

But U. S. District Judge Henry E. Hud­son said Gray failed to show that he is likely to win his case against the state. Hud­son noted that Gray was sen­tenced to death in 2006 but waited un­til a month be­fore his sched­uled ex­e­cu­tion to dis­pute the state’s lethal in­jec­tion pro­to­col.

“If Gray had acted with ap­pro­pri­ate dili­gence, he would have had am­ple op­por­tu­nity to ad­dress his con­cerns with­out dis­rupt­ing the ex­e­cu­tion date set by the state court,” Hud­son wrote in his de­ci­sion.

Gray’s at­tor­neys can ap­peal to the 4th U.S. Cir­cuit Court

of Ap­peals.

One of his at­tor­neys, Lisa Fried, said in a state­ment that they will con­tinue to chal­lenge the state’s “risky pro­posed method of ex­e­cu­tion.”

“The string of prob­lem­atic ex­e­cu­tions is the in­evitable re­sult of us­ing the seda­tive mi­da­zo­lam in com­bi­na­tion with drugs that cause ex­cru­ci­at­ing pain,” Fried said. “It is our po­si­tion that it is un­con­sti­tu­tional for the (Vir­ginia De­part­ment of Corrections) to carry out an ex­e­cu­tion that risks chem­i­cally tor­tur­ing a pris­oner to death,” she said.

Gray was con­victed of killing Bryan and Kathryn Har­vey and their 9-year-old and 4-yearold daugh­ters dur­ing a home in­va­sion. Bryan was a mu­si­cian and Kathryn was co-owner of the World of Mirth toy store.

The Har­veys were pre­par­ing to host friends for a hol­i­day chili din­ner when Gray and an­other man spot­ted their open front door.

They tied the fam­ily up in their base­ment, where they were stabbed and beaten to death be­fore their house was set on fire.

Gray claims he doesn’t re­mem­ber the killings be­cause he was high on PCP.

The other man was sen­tenced to life in prison.

Vir­ginia’s lethal in­jec­tion pro­to­col calls for the use of a seda­tive — pen­to­bar­bi­tal or mi­da­zo­lam — fol­lowed by rocuro­nium bro­mide to halt

breath­ing, and potas­sium chlo­ride to stop the heart.

Vir­ginia plans to ex­e­cute Gray us­ing mi­da­zo­lam and potas­sium chlo­ride that it pur­chased from a com­pound­ing phar­macy un­der a new state law, which also al­lows prison of­fi­cials to shield the sup­plier’s iden­tity.

Gray’s at­tor­neys say Vir­ginia would be the first state in their knowl­edge to per­form an ex­e­cu­tion us­ing com­pounded mi­da­zo­lam or com­pounded potas­sium chlo­ride and the first state to per­form an ex­e­cu­tion us­ing more than one com­pounded drug.

Gray’s at­tor­neys ar­gue that mi­da­zo­lam isn’t a proper anes­thetic and there­fore can­not ef­fec­tively ren­der him un­con­scious to en­sure his death is pain­less.

The fact that Vir­ginia ob­tained the drugs from a com­pound­ing phar­macy mag­ni­fies the risk that the state will “chem­i­cally tor­ture” the man to death, they say.

Mi­da­zo­lam has come un­der fire af­ter sev­eral prob­lem­atic ex­e­cu­tions. In Alabama in De­cem­ber, death row in­mate Ron­ald Bert Smith Jr. coughed, and his up­per body heaved re­peat­edly for 13 min­utes as he was be­ing se­dated.

Hud­son said Gray sup­plied “no ev­i­dence that com­pounded drugs would sub­ject him to a ‘sub­stan­tial risk of se­ri­ous harm.’”

He noted that the U.S. Supreme Court and sev­eral ap­pel­late courts have re­jected in­mates’ chal­lenges to the use of mi­da­zo­lam in ex­e­cu­tions.

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