This morning in Franklin Circuit Court, Judge Phillip Shepherd said that he is “concerned” about the botched executions this year in Ohio and Oklahoma, and he thinks the court might need to “revisit” Kentucky’s lethal injection protocol.
Shepherd’s statements were during a hearing on motions filed in the case of six death row inmates against the state of Kentucky, who are arguing that Kentucky’s lethal injection protocol violates the Constitution. As LEO wrote about last month, public defender David Barron believes that the recent botched executions in Ohio and Oklahoma are relevant to the case and should be included. In Ohio, an inmate put to death with the same drugs as Kentucky’s protocol choked, gasped and struggled for nearly 10 minutes before dying. In Oklahoma, an execution was badly botched and called off before the inmate died of a heart attack, all due to the inability of corrections officials to properly insert his IV over a period of 51 minutes — a process that is closed to public viewing, as it is in Kentucky.
After the state’s attorney argued that the drug issues are settled, Shepherd expressed the court’s concern about the experiences in other states and did not rule out that Kentucky’s drug protocol would be revisited.
“That is another issue that the court needs to take a close look at,” said Shepherd. “Because I’ll say that the court is concerned about the issues that are emerging as we see the experience from other states and the potential for changed circumstances here as to how that may affect the implementation of the protocols in Kentucky. And I know the court has indicated previously, ruled that the drug issues in the ’04 case are no longer… had basically been resolved in the ’04 case. And I think I need to revisit that and to look at the briefing on this now to decide whether there are changed circumstances that would justify looking at that issue.”
The case is still in the discovery phase, and will likely proceed through the end of the year. Shepherd hasn’t given a final ruling on whether the plaintiffs’ case can be amended with the additional evidence from Oklahoma and Ohio, but his statements today hint that he may allow this to happen.