- Associated Press - Tuesday, January 10, 2017

RICHMOND, Va. (AP) - A federal judge refused Tuesday to halt the execution of a Virginia inmate who’s challenging the state’s plan to use lethal injection drugs from a secret compounding pharmacy.

Ricky Gray’s attorneys had asked U.S. District Judge Henry Hudson for a delay to enable the man to bring his legal challenge, saying the state risks “chemically torturing” him if it uses compounded midazolam and other drugs to put him to death him on Jan. 18.

But U.S. District Judge Henry E. Hudson said Gray failed to show that he is likely to win his case against the state. Hudson noted that Gray was sentenced to death in 2006 but waited until a month before his scheduled execution to dispute the state’s lethal injection protocol.

“If Gray had acted with appropriate diligence, he would have had ample opportunity to address his concerns without disrupting the execution date set by the state court,” Hudson wrote in his decision.

Gray’s attorneys can appeal to the 4th U.S. Circuit Court of Appeals.

One of his attorneys, Lisa Fried, said in a statement that they will continue to challenge the state’s “risky proposed method of execution.”

“The string of problematic executions is the inevitable result of using the sedative midazolam in combination with drugs that cause excruciating pain,” Fried said. “It is our position that it is unconstitutional for the (Virginia Department of Corrections) to carry out an execution that risks chemically torturing a prisoner to death,” she said.

Gray was convicted of killing Bryan and Kathryn Harvey and their 9-year-old and 4-year-old daughters during a home invasion. Bryan was a musician and Kathryn was co-owner of the World of Mirth toy store.

The Harveys were preparing to host friends for a holiday chili dinner when Gray and another man spotted their open front door. They tied the family up in their basement, where they were stabbed and beaten to death before their house was set on fire. Gray claims he doesn’t remember the killings because he was high on PCP. The other man was sentenced to life in prison.

Virginia’s lethal injection protocol calls for the use of a sedative - pentobarbital or midazolam - followed by rocuronium bromide to halt breathing, and potassium chloride to stop the heart.

Virginia plans to execute Gray using midazolam and potassium chloride that it purchased from a compounding pharmacy under a new state law, which also allows prison officials to shield the supplier’s identity.

Gray’s attorneys say Virginia would be the first state in their knowledge to perform an execution using compounded midazolam or compounded potassium chloride and the first state to perform an execution using more than one compounded drug.

Gray’s attorneys argue that midazolam isn’t a proper anesthetic and therefore cannot effectively render him unconscious to ensure his death is painless. The fact that Virginia obtained the drugs from a compounding pharmacy magnifies the risk that the state will “chemically torture” the man to death, they say.

Midazolam has come under fire after several problematic executions. In Alabama in December, death row inmate Ronald Bert Smith Jr. coughed, and his upper body heaved repeatedly for 13 minutes as he was being sedated.

Hudson said Gray supplied “no evidence that compounded drugs would subject him to a ‘substantial risk of serious harm.’” He noted that the U.S. Supreme Court and several appellate courts have rejected inmates’ challenges to the use of midazolam in executions.


Follow Alanna Durkin Richer on Twitter at twitter.com/aedurkinricher. Her work can be found at https://bigstory.ap.org/journalist/alanna-durkin-richer.

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