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An electrocardiogram monitoring the heart of the Tennessee inmate executed by lethal injection in August showed “continued cardiac activity” about two minutes after Byron Black was declared dead, his attorney told a judge Friday.
Kelly Henry’s comments came during a hearing on whether attorneys for Black and several current death row inmates would be allowed to depose prominent people executed in Tennessee. This is part of a lawsuit in Chancery Court nashville It challenges the state’s latest lethal injection protocol, claiming it violates both federal and state constitutional bans on cruel and unusual punishment.
At the hearing, state Deputy Attorney General Cody Brandon argued that members of the execution team were required to testify to reveal their identities, even if their faces were hidden and their voices muffled.
Instead, he proposed that Tennessee Department of Corrections officers could testify. If prisoners’ attorneys specify appropriate topics, he said, the agency is required to provide witnesses with knowledge of those topics.
Henry, who leads a group of federal public defenders representing indigent death row inmates in Middle Tennessee, said only those who were actually there will be able to answer questions about what went wrong during Black’s execution on Aug. 5.
“At one point, the blanket was pulled down to expose the ivy,” he told Davidson County Chancery Court Judge Russell Perkins. “Why? Did the IV come out? Is that why Mr. Black said, ‘It hurts too much’? Is the EKG correct?”
Black was convicted of shooting and killing his girlfriend, 29-year-old Angela Clay, and her two daughters, 9-year-old LaToya Clay and 6-year-old Lakeisha Clay, in 1988.
Henry also addressed an issue during the execution of Oscar Smith on May 22. Attorneys do not know what Smith’s cardiac activity looked like because no paper was loaded into the EKG machine.
“Since we filed this lawsuit, there have been two executions that did not go as planned,” he said. “They are batting a thousand for not following protocol.”
Brandon interjected, saying that Tennessee’s lethal injection protocol does not specifically say that paper must be loaded into the EKG machine.
Perkins told the lawyers that he would take their arguments under advisement and rule later.
Smith was convicted of fatally stabbing and shooting Judith Smith, 13-year-old Jason Burnett, and 16-year-old Chad Burnett in 1989.
Smith was suddenly relieved within minutes of his execution republican Governor Bill Lee in April 2022. It was later discovered that the lethal drugs for the planned execution had not been properly tested. A yearlong investigation revealed several other problems in Tennessee’s executions, leading to the implementation of a new lethal injection protocol last December.
The lawsuit, filed in March, claims the Department of Corrections failed to make changes to its protocols that were recommended by the governor and an independent investigator. Rather, the lawsuit claims department officials wrote a new protocol with fewer specifications, making it harder to hold them accountable. The hearing of the case is currently scheduled for April.