Byron Black, the man who had taken the lives of his girlfriend and her two little daughters in the 1980s was finally put to death last week, yet a tiny box inside his chest kept ticking like a stubborn clock. His public defender, Kelley Henry, says the numbers coming out of that implantable cardioverter defibrillator (ICD) might clear one mystery, but it surely opens a whole lot more.
The state first told the court the ICD could be triggered to send Black a painful jolt if the lethal drug made his heart beat oddly. That claim bounced back and forth from the district court up to the Tennessee Supreme Court. One lower court judge ordered the device turned off. The higher court shrugged and said the judge didn’t have the power to give that order. So on paper the ICD stayed on.
Anesthesiologist and Professor of Anesthesiology and Pain Medicine at the University of Washington, Dr. Van Norman warned that when pentobarbital (used in lethal injections) is administered, it may induce an irregular and lethal heart rhythm, which in turn could trigger the defibrillator. She emphasized that such shocks—particularly if Byron Black remained conscious or merely unresponsive—would cause excruciating pain, saying it’s “the worst pain imaginable”
After the execution, Henry’s team got a look at the ICD read out. “The numbers don’t show a shock,” she told reporters. That seems to knock down the state’s story that Black felt a jolt. But does it also knock down the claim that he felt the drug’s pain? Henry was quick to answer “no.” She said the lack of a shock “does not mean the state’s story is finished.” In other words, the pain argument is still alive, hanging in the air like smoke.
The state’s own medical expert witness, Dr. Lambrakos, testified that pentobarbital should knock Black out in twenty to thirty seconds. Even if the ICD fired, the theory went, Black would already be unconscious and could not feel anything. He admitted the drug can cause an irregular heart rhythm, which “may” trigger the device. If the device fires while the brain is still working, the person could feel a shock. The state called that a mere theory. The defense called it a very real possibility.
All this brings up a big due process question. Did the courts give Black a fair chance to argue that his ICD made the execution “cruel and unusual” under the Eighth Amendment? Some observers think the answer is no. The defense asked for a stay, saying the device could cause “the worst pain imaginable.” The state dismissed that as “theatrics.”
Black was seventy nine, stuck in a wheelchair, and his doctors listed dementia, brain damage, kidney failure and congestive heart failure among his ailments. His lawyers said he was “intellectually disabled,” a status that the Supreme Court’s 2002 decision in Atkins v. Virginia says should bar execution. The state replied that the claim had already been denied under older standards. That raises a subtle point about how “new” evidence is treated on habeas petitions. Courts often say once a claim is rejected it’s dead, unless the law changes. Here the law about disability has not changed, but the medical facts may have.
A curious detail that slipped into the media report is the trouble officials had finding a vein for the IV. Henry said they tried the left side, failed, then used a medical device to get a line in the right arm. That sounds like the execution team was scrambling, not smoothly following a protocol. Does that matter? Possibly, because the protocol is supposed to guarantee a painless death. If the IV is hard to find, the drug may be given slowly, which could extend any consciousness. The state’s own testimony said the drug works fast, but the reality of the IV placement suggests a different picture.
Attorney General Jonathan Skrmetti called the lack of a shock “just as the state’s medical expert predicted.” He said the execution was “entirely legal.” He added that “every American has the right to their own opinion about the death penalty, but courts rely on actual facts and actual law, not on theatrics and passion.” That line sounds like a legal slogan, but it also hides a subtle assumption: that the facts the state presented are the only facts that matter. Is that a fair assumption? Maybe not, because the defense’s data from the ICD is also a fact, even if it doesn’t prove pain.
An autopsy report is expected in six to eight weeks. Henry said her team will file public records requests to get the electro cardiograph readings from the execution. If those readings show a heart rhythm that would have triggered the device, the state’s claim that there was no shock could be challenged. If they show nothing, the pain claim still hangs on whether the pentobarbital worked as advertised.
The case also raises a bigger legal question: how do courts treat technology that didn’t exist when the death penalty statutes were written? The ICD was invented after many of those statutes went into effect. Does that mean the statutes are silent, leaving judges to interpret them on the fly? Some scholars argue that “silence” in a statute can be read as “no prohibition,” while others say it signals the need for a new rule. The Tennessee Supreme Court’s decision to let the device stay on could be read as an implicit “no problem” ruling, but it also leaves the door open for future challenges.
Byron Black’s case may close in the record books, but the questions it raised about execution methods, implanted devices and due process rights will probably stay open for a while. Whether future courts will stick with the “no shock” conclusion, or will demand a new standard for cases involving implanted devices, remains to be seen.
https://www.heart.org/en/health-topics/arrhythmia/prevention--treatment-of-arrhythmia/implantable-cardioverter-defibrillator-icd
https://witnessdirectory.com/signup.php
