LOUISVILLE, Ky. (USA Today) — An accused killer, battling the possibility of death by lethal injection, believes the jury asked to condemn her should be told exactly how she will die; and that the drugs injected into her veins might cause her to writhe and gasp like two men executed earlier this year.
Ellen Crawley, awaiting trial on accusations that she killed her own grandmother, pointed to the two troubled executions in Ohio and Oklahoma that reignited the national debate over lethal injection.
Her attorneys, Jon Heck and Ryan Vantrease, think a jury would spare her if they understood the uncertainty surrounding Kentucky executions, a system they describe as "unconstitutional and broken."
"I like to think we live in a civilized society, where we would not tolerate our citizens being tortured by the state," Heck said.
Crawley's request is the first of its kind in the state, filed in the wake of the two botched executions that have become a rallying cry for those who see capital punishment as inhumane.
At a hearing Thursday, Heck and Vantrease are expected to ask Jefferson County Circuit Court Judge Charles Cunningham to allow them to hold a subsequent hearing with testimony about what drugs are used in lethal injections, and the specifics of how those drugs shut down the human body.
The drugs used for decades to kill American prisoners are no longer available, as pharmaceutical companies have refused to supply drugs for lethal injections. States, including Kentucky, have turned to unregulated compounding pharmacies or untested drug combinations, sparking an explosion of lawsuits challenging whether experimental executions violate the constitutional protection from cruel and unusual punishment.
The uproar over the Ohio and Oklahoma executions threatens to further stall Kentucky's decade-old legal fight over the state's system of meting out capital punishment.
Since the federal moratorium on the death penalty was lifted in 1976, Kentucky has executed only three inmates, the most recent in 2008. Thirty-two men and one woman remain on death row. Many have been there for decades; the oldest has been awaiting execution for 34 years.
Franklin Circuit Court Judge Phillip Shepherd, overseeing a sweeping class-action lawsuit, halted executions in the state in 2010, as he considers challenges on the constitutionality of a half-dozen aspects of Kentucky's capital punishment protocol.
In 2012, the Department of Corrections abandoned the three-drug cocktail it has used for decades. Instead, state law now calls for a lethal dose of one drug, either sodium thiopental or penobarbital. But both drugs are hard to come by.
If neither are available, the warden can use a combination of two drugs: 10 milligrams of midazolam, a benzodiazepine used to cause drowsiness and decrease anxiety, and 40 mg of hydromorphone, an opioid.
That combination has only been used once before: when the state of Ohio executed Dennis B. McGuire in January.
"That experiment already took place," wrote attorney David M. Barron, an assistant state public advocate representing six death row inmates in the Franklin County suit. "It was an utter disaster."
McGuire, who in 1989 kidnapped a woman eight months pregnant, raped her, stabbed her to death then dumped her body in the woods, took 20 minutes to die. He gasped for air and convulsed.
The state points to rulings from both the Kentucky and United States Supreme Court that have consistently found lethal injection to be constitutional for the most egregious crimes, and that the constitutional protection from cruel and unusual punishment does not mandate an entirely pain-free death.
"Certainly, the victims of the horrendous murders perpetrated by the plaintiffs to this action did not have the luxury of opting for the least painful alternative," Fryman wrote. "It is certain that those victims suffered (indescribable) pain, sorrow and agony."
The Attorney General's Office declined to comment, citing pending litigation.
Three months after McGuire's execution, the state of Oklahoma killed Clayton Lockett, who was convicted in 1999 of shooting a 19-year-old woman, then burying her alive.
Witnesses reported that Lockett groaned and thrashed. Prison guards pulled the drapes to block the witnesses' view. Lockett died of heart failure 43 minutes after the procedure began.
Death chambers across the country went quiet for nearly two months. Executions resumed just last week.
"Mechanism of Death"
The Franklin County class-action lawsuit, filed in 2006 by Barron and Jefferson County Public Defender Daniel Goyette, involves a number of aspects of Kentucky's capital punishment procedures, including whether witnesses should be allowed to view the insertion of the IV, which is now done behind a curtain. It also questions whether insane, incompetent and handicapped people are adequately protected from execution, as the law requires.
The discovery process should linger through the rest of the year.
The inmates are also asking Shepherd to force the state to provide details about the types of drugs the state intends to use, where they will get them, how they chose them and what medical advice was sought when composing the state's procedure for lethal injection.
The Department of Corrections is unable to answer many of those questions.
Lisa Lamb, spokeswoman for the prison system, said Shepherd's injunction forbid the state from "taking any steps to implement" administering the death penalty. So they do not know which of the accepted drugs can be found or where they might get them because they are barred from seeking them.
Ellen Crawley's attorney have seized on the state's inability to detail the drugs they would use to kill Crawley if a jury decides she deserves to die.
"The defense fully intends to call an expert to explain the mechanism of death when someone is executed by the state," Heck and Vantrease wrote. "The jury should know this information to help prohibit the death penalty from being arbitrarily chosen from the range of penalties randomly. Without knowing how the commonwealth intends to execute Ms. Crawley the defense is deprived of said testimony."
They point to the state's long-standing "truth in sentencing" laws, meant to provide jurors with as much information as possible to make informed sentencing recommendations. At sentencing hearings, for example, parole officers testify about when a defendant would be eligible for parole.
If a juror believes a person goes to sleep, like a euthanized dog, they might be more liable to condemn them than they would be if presented with the possibility of someone suffocating to death, Vantrease said.
"If a juror is going to sentence someone to death they need to understand what that really means," Vantrease said.
The Jefferson County Commonwealth Attorney Office is objecting to the request.
"A little too far"
Crawley is accused of breaking into her grandmother's house through a window. She told police, according to court documents, that picked up a skillet and beat her grandmother, 62-year-old Mary McClain, who had changed the locks on her doors to keep her granddaughter away.
"I just went a little too far," Crawley cried to detectives.
McClain fell. Crawley told detectives that she leaned over her and "choked her out."
Then she drove to a gas station, got herself a drink then went back and took a nap. She wrapped her grandmother's body in a blanket and put it in the backseat of a car, then reconsidered and stuffed her into a garbage can. She allegedly took her grandmother's money and a gold necklace, which she sold for $100.