- Associated Press - Thursday, August 27, 2015

HELENA, Mont. (AP) - A judge ruled Thursday that a constitutional challenge to Montana’s execution methods will go to trial.

The Sept. 2 trial will focus on whether a sedative called for under Montana’s lethal injection protocols could lead to an excruciating and terrifying death.

Attorneys for Ronald Allen Smith and William Gollehon - Montana’s two death row inmates - argue that the drug, pentobarbital, does not adhere to a state law requiring an “ultra fast-acting” barbiturate be used in capital punishment.

The Legislature has mandated but never precisely defined what constitutes an ultra fast-acting drug. In his order, District Judge Jeffrey Sherlock provided a judicial interpretation.

“The Legislature intended that the barbiturate used have an almost immediate onset of action in that unconsciousness occurs quickly,” Sherlock wrote.

Both sides are planning to present testimony from medical experts who could shed light on the effects of pentobarbital.

Doctors previously said in depositions and declarations that ultra fast-acting is not a common medical term and they could not form a definitive opinion on its application to lethal chemicals.

Assistant Attorney General Pam Collins said she expects the trial will require two full days in the Helena court.

Sherlock also ruled that the state can continue to conceal the identity of any sources that supply Montana’s execution drugs. The inmates’ attorneys had inquired about how the department of corrections would obtain pentobarbital, which is not approved by the FDA and not available from domestic manufacturers.

A Tennessee judge on Wednesday upheld that state’s use of pentobarbital in its one-drug method of execution.

On Tuesday, a federal judge in Mississippi indicated the opposite opinion. U.S. District Judge Henry T. Wingate put Mississippi’s use of pentobarbital and midazolam on hold and said it seems likely the state has failed to use an “ultra short-acting barbiturate or other similar drug.”

After an order from Sherlock, the Montana Department of Corrections updated its execution protocol in January 2013 to a two-drug instead of three-drug injection. The method calls for a barbiturate such as pentobarbital to be followed by a paralytic agent called pancuronium bromide.

State attorneys have said the new method adequately addresses Sherlock’s concerns. But it has yet to be used in Montana.

Smith was sentenced to death in 1983 in the double homicide of two men. Gollehon was sentenced to death in 1992 for beating to death an inmate at Montana State Prison.

The ACLU filed the inmates’ case in 2008, two years after Montana’s last execution.

Ronald Waterman said the case won’t undo the death sentences of Smith or Gollehon, but he’s arguing for them free of charge because he believes capital punishment should be abolished.

Waterman represented civil liberty and church organizations that sought clemency for triple-murderer David Dawson after Dawson ended his own attempts to postpone his August 2006 execution.

“I was in the chamber at the time he was killed,” Waterman said. “I will continue working to abolish the death penalty for the remainder of my career.”

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