Ricky Gray becomes 112th person executed in Virginia

by Kristen Whitney Daniels

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The execution of Rick Javon Gray Jan. 18 seems to add to the list "botched" lethal injections involving the drug midazolam.

Gray, the 112th person executed in the state of Virginia since 1976, was pronounced dead at 9:42 p.m., some 48 minutes after officials tried starting his IV line for the three drugs, including a compounded formula of midazolam, used to execute him.

Frank Green, a reporter from the Richmond-Times Dispatch, stated that the injection appeared to take an "inordinately long time" to complete the execution. Gray spent 33 minutes behind a curtain reportedly due to difficulties with the IV line. Gray's lawyers said that he experienced "labored breathing, gasping, snoring, and other audible and visible activity" during the execution.

The U.S. Supreme Court refused to grant Gray an emergency stay of execution, an action his lawyers had sought, pending the outcome of a case they had filed in December that challenges Virginia's usage of a compounded formula of midazolam as part of a three-drug protocol for lethal injection. Gray's legal team claimed that the drug would violate his Eighth Amendment right to avoid cruel and unusual punishment.

Recent executions carried out in Alabama, Arizona, Ohio and Oklahoma using midazolam have also had inmates who were observed to be coughing, gagging and moving, signs, advocates say, that they suffered during the execution.

The drug was also central in a Supreme Court case in June 2015, in which inmates on death row in Oklahoma filed a similar case to Gray's. The judges ruled 5-4 that use of the drug was constitutional.

Along with the court case, Gray filed for an injunction to stay his execution. The injunction was initially denied by Judge Henry E. Hudson of the United States District Court for the Eastern District of Virginia. It was then appealed to the U.S. Court of Appeals for the Fourth Circuit, where it was again denied, five days prior to Gray's execution. The case was officially dismissed the day after Gray's execution.

Rob Lee, one of Gray's attorneys, felt that the court never got to the merits of Gray's case. "It never got to the discovery stage. That's where you develop facts to support your claim. Very few complaints are successful without discovery," he told NCR.

Lee, Jonathan Sheldon and Elizabeth Peiffer — the lawyers who worked on Gray's denied clemency case — released a statement following the execution:

"After witnessing Ricky Gray's execution and carefully reviewing the facts, there is grave concern that the execution of Mr. Gray caused pain and suffering inconsistent with his constitutional rights. Several factors raise questions about the appropriateness of the Virginia Department of Corrections (VDOC) protocol and the circumstances surrounding Mr. Gray's death, and belie VDOC's statement that Mr. Gray's execution was normal and proceeded without issue," his lawyers wrote in their statement.

Immediately following Gray's execution, the Virginia Department of Corrections said they "could not explain the delay" when asked why the execution took so long, according to the Virginia-Times Dispatch. However, the next morning the department said the increase in time was due to complications stemming from finding a vein for the IV line that would administer the lethal injection drugs. The VDOC said that midazolam was not responsible for any issues.

Gray's legal team was suspicious of the statement, saying that Gray, and his veins, had been examined many times prior to his scheduled execution.

"He was a healthy, 39-year-old man, and did not have any medical condition or history (such as intravenous drug use) that would indicate potential problems," his lawyers stated.

They also cited concern over a physician appearing from behind a curtain, something that they had not seen in the "numerous" other lethal injections they've witnessed. Protocol typically dictates that the physician stays behind the curtain and bases the inmate's time of death from the attached heart monitor.

The statement ended with, "The circumstances surrounding Mr. Gray's lethal injection last night raise significant questions about the VDOC's protocol and demonstrate the need for careful scrutiny and open government, and for the VDOC to be held accountable for its decisions surrounding lethal injection and execution protocols."

Although Gray's case has been dismissed, Lee told NCR that he is concerned that "the issue is still out there but it hasn't been resolved." Lee stated that, at this time, no Virginian death row inmates are pursuing a court case against midazolam.

Gray was given the death penalty for the deaths of Ruby, 4, and Stella Harvey, 9, in 2006. He was given life in prison for the death of their parents Bryan, 49, and Kathryn Harvey, 39. Although never convicted, Gray also confessed to the death of Ashley Baskerville, 21; Baskerville's mother, Mary Tucker, 47; and stepfather, Percyell Tucker, 55.

The execution makes Virginia equal to Oklahoma in being second in total executions. The states trail only Texas, which has had 539 to date.

[Kristen Whitney Daniels is an NCR Bertelsen intern. Her email address is kdaniels@ncronline.org.]

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