Reid v. Johnson
| Decision Date | 03 September 2004 |
| Docket Number | No. CIV.A. 3:03CV1039.,CIV.A. 3:03CV1039. |
| Citation | 333 F.Supp.2d 543 |
| Parties | James Edward REID, Plaintiff, v. Gene M. JOHNSON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Clifford Lee Harrison, James Clinton Turk, Jr., Stone Harrison & Turk, Radford, VA, Robert Edward Lee, Jr., Jennifer Leigh Givens, Charlottesville, VA, Marie Frances Donnelly, Evanston, IL, for Plaintiff.
Katherine Pharis Baldwin, Office of the Attorney General, Richmond, VA, for Defendants.
Plaintiff, James Edward Reid, a Virginia state inmate sentenced to death, brings this civil rights action under 42 U.S.C. § 1983 (" § 1983"). Reid is scheduled to be executed on September 9, 2004. The matter is before the Court on Reid's amended motion for preliminary injunctive relief "in the form of a stay of his execution scheduled for September 9, 2004." Pl.'s Mem. In Supp. of Am. Mot. for Prelim. Inj. Relief at 35.
On the morning of October 12, 1996, Reid went to the home of Annie Lester, an elderly woman. Reid stabbed Lester 22 times and inflicted multiple other injuries to Lester's head, face and arms. At some point during the murder, Reid removed some of Lester's clothes and ransacked her bedroom. Reid entered an Alford1 plea and was convicted, inter alia, of the capital murder of Lester during the commission of attempted robbery and/or attempted rape. On February 20, 1998, the Circuit Court for Montgomery County sentenced Reid to death.
In Virginia, inmates sentenced to death are executed by electrocution or lethal injection.2 Since 1995, Virginia has permitted the condemned inmate to elect his method of execution. Va.Code § 53.1-234. Fifteen days prior to the date of execution, the inmate must make his selection. Id. If the inmate fails to make a selection in a timely manner, he will be executed by lethal injection. Id.
After Reid's direct and collateral challenges to his conviction and sentence were exhausted, Virginia set an execution date for Reid of December 18, 2003.3 Reid chose to allow the statutory default provision to apply and he was scheduled to be executed by lethal injection. On December 15, 2003, three days prior to his scheduled execution, Reid filed a civil rights complaint under 42 U.S.C. § 1983 with this Court challenging the manner in which Virginia intended to carry out his execution.
This Court sua sponte dismissed the action as an unauthorized 28 U.S.C. § 2254 action (" § 2254"). The United States Court of Appeals for the Fourth Circuit granted a stay of execution. On August 2, 2004, following the decision of the Supreme Court in Nelson v. Campbell, ___ U.S. ___, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), the Fourth Circuit issued an opinion remanding the matter to this Court wherein it stated that:
In light of Nelson, we conclude that Reid has stated a cognizable claim under § 1983. Like Nelson, Reid does not assert that lethal injection generally is an unconstitutional method of execution. Rather, he asserts only that the particular protocol the State plans to use is impermissible; he acknowledges that other protocols would pass constitutional muster. See Pl.Appellant's Reply to Def.'s Mot. to Vacate as Moot the Order of Dec. 17, 2003 at 10-11.
Reid v. Johnson, 105 Fed.Appx. 500, 503 (4th Cir.2004)(emphasis in original). The Fourth Circuit further directed that the stay of execution would remain in effect for ten days following the issuance of its mandate. However, prior to the issuance of the mandate, the Supreme Court of the United States vacated the stay of execution issued by the Fourth Circuit. The Commonwealth set a new execution date for Reid of September 9, 2004.4
On Friday, August 20, 2004, the Fourth Circuit granted Reid's request for an expedited issuance of the mandate. That same day, Reid filed an amended complaint with this Court. In his amended complaint, Reid claimed his rights under the Eighth and Fourteenth Amendments would be violated because: (1) the defendants were going to administer chemicals to him that would cause unnecessary pain in the execution of his sentence of death; (2) the defendants were going to use a cut down procedure to gain venous access; and (3) the defendants failed to provide sufficient notice of how they intend to gain venous access. Thereafter, the parties conducted expedited discovery and Reid moved for a preliminary injunction. On September 3, 2004, the Court completed the evidentiary hearing on Reid's motion for a preliminary injunction.
Virginia's execution protocol provides that, on the day of his execution, a physician or other qualified person shall assess the condemned and record his weight. The lethal substances will be injected into the inmate through an intravenous ("IV") line placed percutaneously into veins on sites of the body deemed appropriate. The individuals who will be responsible for gaining venous access and administering the lethal substances are required to have been trained in all aspects of intravenous line placement.6 Virginia's execution protocol prohibits the use of a surgical cut down to gain venous access. Gene Johnson, the Director of Virginia Department of Corrections, during his testimony, assured the Court that such procedures will not be used for Reid.
Prior to the execution, electrodes, which serve as a heart monitor, will be attached to Reid. The heart monitor is watched by a physician who also is present during the administration of the lethal chemicals. Administration of the lethal substances entails the injection of three substances in a prescribed three step process. Step one involves the injection of 2 grams of sodium thiopental. Step two requires the injection of 50 milligrams of pancuronium bromide. Step three requires the injection of at least 120 milliequivalents of potassium chloride. Between each step, the IV line is flushed with a syringe. The flushing procedure ensures that each of the chemicals reaches the body in the dosage and order in which they are administered. The total duration of the execution, from the introduction of the first drug to death is five to ten minutes.
The first drug, sodium thiopental is a barbiturate sedative. Two grams of sodium thiopental is approximately five to eight times the dosage that would be used to render a 176 pound individual unconscious for general surgery.7 Within moments after the injection of the sodium thiopental, the inmate will be rendered unconscious.8 The condemned inmate will slip into unconsciousness in the same manner as that experienced by a general surgery patient. The probability of the inmate regaining consciousness within the ensuing ten minutes is 3/1000 of one percent. The probability of the inmate regaining consciousness by minute fifteen is 6/1000 of one percent. The probability of the inmate regaining consciousness within twenty minutes never rises above 1/100 of one percent. In light of the inordinately high dosage, the weight or other physical attributes peculiar to a particular inmate will have a negligible impact on these probabilities. Flushing of the IV line prevents the sodium thiopental and the second and third drugs from interacting outside of the body of the inmate.9
The second chemical administered, pancuronium bromide, is a skeletal muscle relaxant that causes paralysis. Pancuronium suppresses involuntary seizures or motor manifestations that may occur during the execution process. These motor manifestations could give witnesses the false perception that the condemned inmate was experiencing pain. In light of the large dose of sodium thiopental, the inmate does not experience any pain associated with any potential involuntary motor reactions. Fifty milligrams of pancuronium bromide is a lethal dosage and will cause death by the cessation of respiration within two minutes. In this protocol, the probability that the inmate would be conscious of the physical effects of pancuronium is less than 1/100 of one percent.10
The third injection, at least 120 milliequivalents of potassium chloride, causes the condemned inmate's heart to stop. One hundred milliequivalents of potassium chloride is a lethal dose. Within moments after the potassium chloride has been injected, the heart of the inmate will stop beating. Shortly thereafter, brain activity will cease. Within three minutes after the injection of the potassium chloride, the inmate will be brain dead. A physician monitors the inmate's heartbeat and pronounces death.
Reid suggested that sodium pentobarbital is a more humane sedative to use in conducting lethal injections because it lasts longer. The Court is unpersuaded by this argument since the dose of sodium thiopental administered by Virginia assures the inmate's unconsciousness. Moreover, because of its infrequent use, pentobarbital lacks the state of the art analysis regarding its effects and dependability that is available for sodium thiopental. It is not this Court's function to suggest more humane or medically acceptable execution protocol, but to determine whether the method adopted by the Commonwealth of Virginia is constitutionally sound.
Reid presented the post-mortem blood toxicology reports of condemned inmates from other states. Through his expert, Dr. Mark Heath, Reid asserted that the toxicology reports demonstrated that inadequate amounts of sodium thiopental had reached the inmate's body and thus, there was a possibility that the inmate may have been conscious during his execution. The lack of pertinent information regarding when and how the blood was gathered renders these reports of little value as a basis for rendering an opinion based on reasonable medical certainty as to the amount of sodium thiopental that had actually reached the inmate's system. Any probative value of the toxicology reports was further diminished by the lack of information regarding the specific...
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