WORLD VIEW: Is Alabama hiding evidence of tortured citizens?

By Stephen Cooper

BEFORE  Ronald Bert Smith’s corpse grew cold – following his patently botched execution by lethal injection on December 8, 2016 – authorities in Alabama launched a campaign of obfuscation and misinformation about what happened to him.

It began when Prison Commissioner Jeff Dunn, himself a witness to Smith’s execution, protested: “Early in the execution, Smith, with eyes closed, did cough but at no time during the execution was there observational evidence that he suffered.”

Dunn not only doth protest too much, Dunn lied.

Because if you credit the macabre and unambiguous accounts of the unbiased media witnesses in attendance – not only is there a great deal of “observational evidence” Smith suffered – the publicly available information suggests he suffered a painfully slow, torturous death.

Kent Faulk, a reporter for Alabama’s largest media outlet (al.com) and a witness to previous state executions, appeared eerily pale and shaken as he questioned Dunn on camera immediately following Smith’s death. The next day, Faulk posted a piece titled “Alabama Death Row inmate Ronald Bert Smith heaved, coughed for 13 minutes during execution”; it includes several chilling hallmarks of an execution gone wrong:

During 13 minutes of the execution, from about 10:34 to 10:47, Smith appeared to be struggling for breath and heaved and coughed and clenched his left fist after apparently being administered the first drug in the three-drug combination. At times his left eye also appeared to be slightly open. A Department of Corrections captain performed two consciousness checks before they proceeded with administering the next two drugs to stop his breathing and heart. The consciousness tests consist of the corrections officer calling out Smith’s name, brushing his eyebrows back, and pinching him under his left arm. Smith continued to heave, gasp, and cough after the first test was performed at 10:37 p.m. and again at 10:47 p.m. After the second one, Smith’s right arm and hand moved.

In “Witnessing death: AP reporters describe problem executions,” Kim Chandler, also a witness to Smith’s execution, described observing the exact same “observational evidence” as Faulk. Indeed, Chandler’s description of Smith’s execution only amplifies the constitutional concern it violated the Eighth Amendment’s prohibition of cruel and unusual punishment; Chandler observed that while Smith’s chest was heaving, “he had regular loud coughing,” strong evidence he was not unconscious (and not insensate) when the excruciatingly painful lethal injection drugs were administered.

In a sharply worded oped for the Washington Post on May 11, David Waisel, an associate professor of anesthesia at Harvard Medical School wrote, “[t]he drugs we use for executions can cause immense pain and suffering.” Specifically, Waisel opined that “[m]ounting evidence suggests that midazolam does not anesthetize inmates during executions, as shown by movement and difficulty breathing (each a sign that someone isn’t anesthetized) long after injection[.]”

While Waisel’s column focused on Arkansas’ assembly line executions in April – in particular, the problematic execution of Kenneth Williams – his opinion is just as trenchant and ultimately damning for the future of constitutionally kosher executions in Alabama.

Waisel concluded: (1) “When midazolam is used, executions predictably go awry;” (2) “[V]iolent and painful executions will continue as long as we attempt to use midazolam as an aesthetic; and (3) perhaps of greatest salience as Alabama charts its next course on capital punishment: “The state’s self-serving statements that [an] execution was flawless and proceeded according to plan do not make it so, especially when numerous eyewitnesses contradict the version of events the state is promoting.”

At the end of October of last year, I wrote that Alabama’s Department of Corrections (ADOC) and Commissioner Dunn had duped me into believing that Alabama’s second-to-last execution – the lethal injection of Christopher Brooks on January 21, 2016 – had also gone “smoothly” and according to plan. (See “Alabama’s last execution may have burned a man alive”). Using court filings by Brooks’ federal defenders that were buttressed by affidavits from expert medical witnesses, I accused Alabama, through the false representations of Commissioner Dunn, of “painting Mr. Brooks’ execution as a peaceful passing – like he just curled up in a comfy hammock and dozed off – never to wake again.”

Outrageously, despite mountainous waves of “observational evidence” indicating Ronald Bert Smith’s execution was botched just as Brooks’ may have been, ADOC and Commissioner Dunn are in denial-and-hide-the-ball-mode again.

As we careen closer to the nation’s and Alabama’s next execution – that of Tommy Arthur scheduled on May 25 – Dunn and ADOC are still pigheadedly denying the objective evidence observed by the seasoned, unbiased reporters that saw Smith die; “observational evidence” Professor Waisel has since given undeniable and absolutely odious meaning to.

Alabama courts are complicit in the cover-up. As reported by the Associated Press on May 16, Montgomery, Alabama Circuit Judge J.R. Gaines has ruled: “Alabama can keep secret its records from recent lethal injections, including documents about [the executions of Ronald Bert Smith and Christopher Brooks].” Arthur’s lawyers had argued for the release of ADOC logs and other records indicating Smith and Brooks may have been tortured noting, “[t]he people of Alabama have a right to know what their government is doing in their name, especially when it involves taking a life.”

Rejecting this commonsense plea for knowledge and for decency, Judge Gaines wrote: “Any release of the execution logs would be detrimental to the best interests of the public.”

Recently I urged “conscientious, justice-loving Alabamians” to demand that Alabama’s newly appointed Attorney General Steven Marshall “investigate and publicly address the circumstances of both [Ronald Bert] Smith and [Christopher] Brooks’ deaths.” I’m making that same plea again. But this time, instead of only Alabamians, I’m inviting all conscientious, justice-loving Americans and citizens of the world to join too.

Demand that authorities in Alabama be honest and transparent about executions. Demand that death row inmates receive effective counsel and that they be treated fairly and humanely. Demand that torture be prohibited. And, until that can be assured, if it can ever be assured, demand that Governor Kay Ivey issue a moratorium on all executions going forward. Demand that Alabama comply with the state and federal constitutions.

Don’t ask for these things. Demand them.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015.. He writes full-time and lives in Woodland Hills, California. Follow him on Twitter @SteveCooperEsq