New issue in executions: Should the death chamber be silent?

VARNER, Ark. -- The nation's first double execution in 16 years raised a new issue involving transparency and the death penalty: Should witnesses be allowed to hear what goes on in the death chamber?

A lawyer who watched Monday's executions in Arkansas said he saw an inmate open his mouth several times when it should have been still, prompting another lawyer to claim in a court filing Jack Jones was gulping for air after being given a sedative, the first component of a lethal injection.

Other witnesses did not see it the same way. An open microphone could have settled the question.

When the two convicted murderers were put to death, the 20 or so witnesses heard only what Department of Correction Director Wendy Kelley wanted them to hear.

A spokesman for the Arkansas prison system, Solomon Graves, said he inherited a policy that limits what can be heard from the death chamber. The standard procedure has been to turn off a microphone in the 18-by-12-foot chamber after an inmate's last statement and turn it on again for the official pronouncement of death. Several other states have similar policies.

"There is no legitimate reason to turn off the sound," said Robert Dunham, executive director of the Death Penalty Information Center, which opposes capital punishment. "If you're going to have public oversight and the witnesses are going to be able to do their jobs to determine whether the execution was carried out in a competent manner, if there's something unanticipated that happens, the way you tell is by what people say."

Because the microphone was off during Monday's first execution, witnesses disagreed on whether Jack Jones was struggling for air after being given 500 milligrams of midazolam. A lawyer who believed he saw Jones moving his mouth testified in a late-night court hearing Monday on whether a stay should be given to Marcel Williams, the second inmate killed Monday night, to avoid inflicting a "tortuous" death.

A judge rejected his plea.

Williams, who weighed 400 pounds, probably needed a second 500 milligram dose of midazolam. An attendant could be seen mouthing the words "I'm not sure" after checking Williams' consciousness five minutes into the night's second execution. Arkansas' protocol requires that the inmate receive a second dose of midazolam if the first does not render him sufficiently unconscious.

Texas, which has executed the most prisoners since the U.S. Supreme Court reauthorized the death penalty in 1976, does not shut off the audio in the death chamber.

At Huntsville, Texas, in the 1980s, there was no glass wall separating the witnesses from the condemned, though at times it was difficult to hear if the prisoner mumbled or spoke softly. Plexiglass was put up after an intravenous line popped out and began to spurt toward witnesses during a December 1988 execution, but it's been a given that the witnesses should see and hear what is happening.

Witnesses in the other states are often close enough to the chamber that they can hear through the glass wall without any help from a microphone.

Kelly Gissendaner sang "Amazing Grace" from the gurney in Georgia in a voice loud enough for witnesses to listen. Other prisoners have moved their lips as if they were speaking or praying. In Florida's death chamber, an air conditioner runs so loudly that it's difficult to hear noises with the microphone off. An inmate in Alabama could be heard coughing for 13 minutes in his December execution, even without a microphone.

Associated Press witnesses in Arizona and Ohio said they could hear inmates breathe heavily, snore or snort during lengthy executions, and a lawyer at Joseph Wood's execution in Arizona in 2014 said the inmate could be heard particularly when a microphone was on during periodic updates.

"The gasping and gulping sounded like a freight train," said Dale Baich, an assistant federal public defender who witnessed the execution.

Oklahoma left its microphone open until the execution of Clayton Lockett, who struggled against his restraints before dying. The state now turns off the mic after an inmate's final statement.

Secrecy runs throughout Arkansas' capital punishment system, with strict rules to protect the identity of prison staff members, drug suppliers and others.

Legislators adopted those rules out of fear that those who take part in lethal injections could be subject to personal or financial risks. They also wanted to safeguard the identity of drug suppliers to ease the state's ability to obtain components of the lethal injection.

The Associated Press in 2015 was able to use packaging materials to identify drug manufacturers whose products would be used, prompting them to complain. One drug supplier stepped forward this month to say a Department of Correction deputy had duped the company into supplying vecuronium bromide for executions last year. This year, a company intervened in a federal lawsuit after learning Arkansas intended to use potassium chloride it had produced.

The first drug shuts down a prisoner's lungs, the second stops the heart.

The state has put three inmates to death since April 20 in its first executions since 2005. Another man is scheduled to be executed Thursday. The accelerated execution schedule was prompted by the fact that Arkansas' current stock of midazolam expires at the end of the month. The prison system has said it has no new source.