In a crucial legal fight concerning the execution of death row inmate Byron Black, expert witnesses proved decisive in a Tennessee court’s ruling that could have a big say on laws governing the method of capital punishment in that state. At the heart of the case was Black's implantable cardioverter-defibrillator—an electrical device that is meant to prevent sudden cardiac death by administering life-saving electric shocks when the heart randomly fails. With the state of Tennessee getting ready to execute Black using a single lethal dose of pentobarbital, his legal team argued that the ICD might trigger into action during the execution, possibly subjecting Black to unconstitutionally cruel and unusual punishment.
Ultimately siding with the defense, Judge Kelvin Jones ordered the Tennessee Department of Correction (TDOC) to disable the defibrillator before carrying out the execution of death row inmate Oscar Franklin Black. The decision turned on the conflicting testimony of expert witnesses from both the defense and the state—who presented intensely contrasting medical opinions—on whether the device would, in fact, be capable of delivering a shock to Black just before, during, or just after he was (or wasn't, depending on which side you believed) supposed to be receiving a lethal injection, and whether such an occurrence would be painful to him.
The Medical Device at Issue
Black, 67, has a serious heart condition and was fitted with a defibrillator in 2016. His lawyers insisted that executing him with pentobarbital, an anesthetic used in Tennessee's lethal injection protocol, could cause the defibrillator to deliver one or more high-voltage shocks. They argued that if Black remains conscious at the time of these shocks, the experience would be torturous, amounting to a constitutionally impermissible violation of the Eighth Amendment.
The TDOC, by contrast, argued that the defibrillator was unlikely to be activated during the execution. And even if it did activate, they contended, Black would be unconscious and unable to feel any pain. His condition during the three phases of an execution was further affected by the hypothesis of the sedative's pain-numbing properties.
Defense Expert: Dr. Gail Van Norman, an anesthesiologist and professor at the University of Washington.
The defense sought the opinion of a key expert witness for their case. This witness was not just any expert in the field, but rather someone who could really make a difference in how the jury perceived the defendant's actions. Dr. Gail Van Norman was called to the stand to testify on behalf of physician-assisted suicide. Instructed to do no harm, as all medical students are, she carries that fundamental principle forward into her practice, both in patient care and in legal cases such as this one.
Van Norman testified that using pentobarbital could, paradoxically, cause the defibrillator to be used rather than suppressing the heart into a stopped state. She explained that the drug might first cause the heart to go into an irregular and quickly lethal rhythm and then slow the heart down enough to stop it—potentially using the defibrillator during the process.
She centered her most striking testimony on the anguish a shock could inflict. "It’s the worst pain imaginable," she said in court. "Comparable to getting kicked in the chest by a horse." Van Norman explained that delivering such shocks involuntarily to a person strapped down and dying would be inhumane and torturous. Yet the whole system was set up just this way.
Shocks were first to be delivered in a timeframe that would assure the subject was still alive when the experiment was over.
Her conclusion: unless the device is turned off, Black risks a significant amount of suffering and an amount of pain that could easily be called torturous.
State Expert: Dr. Litsa Lambrakos
The state countered with its own specialist. Dr. Litsa Lambrakos, a cardiac electrophysiologist at the University of Miami Health System, took the opposite side. She asserted that administering pentobarbital would quickly diminish Black's awareness by stopping brain activity almost instantaneously. She said that if the defibrillator were activated, it would happen too late for him to feel any pain. The state was saying, in essence, that if pentobarbital was used, Black's brain would be incapable of processing any kind of sensation, which pretty much made the defibrillator irrelevant. The defibrillator doesn't work, according to the state, if the brain isn't working.
Also, Lambrakos suggested that turning the device off was unnecessary. He said it might create more logistical or ethical problems for prison officials than leaving it on. If prison officials deactivate the system, Lambrakos said, they may have to write up an order granting permission to deactivate it and then, with a new order, grant permission to activate it again.
Unnamed State Experts
Two Western states have found middle ground on the use of three-drug protocols for executions and are now using them with slight variations. Arizona’s current protocol, established in December 2014, is a modified version of what is used in California. Both states, however, have worked from essentially the same playbook since 2006, when the California Department of Corrections and Rehabilitation first opened its Death Chamber in San Quentin. They also contended that contemporary defibrillators are constructed to prevent activation during periods when the system is not functioning, thus lessening the risk that troubling electrical shocks will be delivered in such situations.
The Court’s Balancing Act
In the end, the defense's arguments won out with Judge Kelvin Jones. He accepted that the state had put forward some believable evidence, but he couldn't get past the idea that there was a some risk of pain associated with the death penalty—even if that was not by any means guaranteed.
Jones said in his ruling, "The conflict between expert witnesses is substantial. In a matter where constitutional rights and the potential for severe pain are concerned, caution is the appropriate course."
The TDOC was ordered by Jones to ensure the device is switched off before execution. He ruled, importantly, that the procedure must be carried out by a licensed medical professional with the proper equipment on hand—something the state had previously resisted due to concerns about involving medical personnel in executions.
Broader Implications
This ruling could set a precedent for future capital cases involving inmates with serious medical conditions or implantable devices. The weight of scientific and medical opinion in the present-day legal landscape was underscored by the expert witnesses who testified on both sides of this case.
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