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Lawyers of Alabama inmate: Execution sedative was ineffective

ATMORE, Ala. -- Lawyers for an Alabama inmate who was put to death Thursday night say movements he made demonstrate that he wasn’t anesthetized during the execution. 

Alabama inmate Robert Bert Smith Jr. was executed using an injection of the drug midazolam. Execution witnesses reported that the 45-year-old prisoner heaved, coughed and appeared to move during tests meant to determine consciousness. 

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 arm again after the second consciousness test.

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. “There will be an autopsy that will be done on Mr. Smith and if there were any irregularities those will hopefully be shown or born out in the autopsy. I think the question is probably better left to the medical experts,” Dunn said when asked if the movement’s indicated the state’s process should be changed. 

Smith 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. Smith and other 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 has upheld the use of the drug.

Smith’s lawyers said in an email Friday that they believe two doses of midazolam were administered to sedate him. The Department of Corrections won’t say whether a second dose was given.

Critics of the lethal injection drug, which has been used in problematic executions in several states, say Thursday’s execution in Alabama provides more evidence that it shouldn’t be used to put inmates to death. Robert Dunham, executive director of the Death Penalty Information Center, said medical experts have repeatedly said midazolam is not designed to render a person unconscious and insensate, and witness accounts of Smith’s execution indicate that it did not.

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.

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.

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.