A few weeks before Taberon Honie’s scheduled execution, his lawyers have filed a new lawsuit raising concerns about the never-before-used combination of drugs Utah state authorities plan to use to kill the death row inmate.
They also questioned the prison’s execution protocols, which have not been updated since 2010 and do not explicitly mention the drug combination of ketamine, fentanyl and potassium chloride planned by state authorities.
And the protocols do not include a plan for what should happen if ketamine or fentanyl causes Honie to hallucinate or suffer instead of achieving the desired result of rendering him unconscious. They asked 3rd District Court Judge Laura Jones on Thursday to stop state authorities from executing Honie until those protocols are updated.
Honie’s attorney, Eric Zuckerman, argues in the lawsuit that prison officials may be reluctant to update the 2010 records because they know doing so could potentially open the door for Honie to appeal the new version.
While prison officials acknowledged that some minor changes are necessary – especially given that the old prison, built in 2010, no longer exists and the executions will take place at the new prison in Salt Lake City – they said they do not believe the protocol for the actual execution needs to be updated.
According to a press release, the department chose ketamine, fentanyl and potassium chloride “on the recommendation of medical professionals.” Utah state law requires lethal injections to be performed with “sodium thiopental or another substance equally or more potent in causing death.”
Importing sodium thiopental, a fast-acting barbiturate, is illegal and the only US-based supplier stopped production in 2011.
Zuckerman argued that prison officials had tried to create written plans for the execution outside of official protocol. But the proposals, he argued, were “piecemeal, incomplete and sometimes incoherent.”
“Since the new drugs do not have the same properties as those they replace, simply replacing the old protocol with the new drugs is insufficient and dangerous,” he wrote.
In July 1998, Honie called his ex-girlfriend and demanded that she visit him. He threatened to kill her family if she refused. Later that evening, just before midnight, Honie took a taxi to the home of Claudia Benn, his ex-girlfriend’s mother. He broke down the door with a rock and hit, bit, stabbed and abused Benn while killing her, court documents say.
The new lawsuit alleges that prison officials obtained the drugs they plan to use to execute Honie, but it appears they were caught flat-footed when the Utah Attorney General’s Office sought an execution warrant.
In a May text message thread included as evidence in the lawsuit, Utah Department of Corrections administration was told that its own attorney — who also works in the attorney general’s office — was not told that attorney general prosecutors had filed a motion to seek an execution warrant for Honie. He learned it from Honie’s defense attorney in federal court.
“They submitted it last night. Great to be notified!!!” wrote Glen Mills, DOC communications director, in the text thread, followed by another message: “Unbelievable!”
“Oh wow,” wrote Brian Redd, the prison system’s director. “Unbelievable.”
Zuckerman also claimed in the lawsuit that prison officials did not have a written contingency plan in place in case the execution went wrong. They ruled that Honie’s lawyer could not bring a phone or laptop into the prison during the execution. Zuckerman said he would use that opportunity to alert a judge and request that the execution be stopped if something went wrong and Honie appeared to be suffering.
Honie’s attorney pointed out that lethal injections are one of the nation’s most unsuccessful executions and expressed concern about the untested combination the state plans to use, saying the state chose it on the recommendation of a pharmacist, not a trained physician.
First, he argued that ketamine is a dissociative anesthetic – not a barbiturate, which is more commonly used to anesthetize prisoners – that could cause Honie to feel extreme anxiety or delirium, especially in the “hostile, death-laden environment” of a death chamber. It could also cause Honie to vomit and possibly suffocate, he said, since he will be strapped to a gurney.
Zuckerman then argued that the high dose of fentanyl that prison officials plan to use could cause a chest wall stiffness known as “wooden chest” syndrome, which could leave Honie feeling like his chest has turned to stone and he can no longer breathe. Although fentanyl can relieve pain, Zuckerman argued, it does not relieve the feeling of suffocation.
He also argued that both drugs have a “ceiling effect on pain relief,” meaning that at a certain dosage they do not provide further pain relief. He said that for both drugs, the ceiling effect occurs at half the dose that Utah authorities plan to use in Honie’s execution.
And if those drugs don’t calm Honie down, the potassium chloride that stops his heartbeat will cause him extreme pain, Zuckerman argued – “an agonizing death, comparable to the feeling of being set on fire.”
Zuckerman argued that if the state went ahead with the execution as planned, it would violate the Utah Constitution because Honie would be subjected to cruel and unusual punishment. He suggested instead that Utah could execute Honie with a single dose of pentobarbital, which serves as both an anesthetic and a lethal drug.
He wrote in the complaint that this has become the preferred method in other states that have only been able to obtain the drug since last year. However, he said the pharmacist who advised Utah to use the triple combination believed that “pentobarbital was not available.”
A court date for this latest trial has not yet been set, but he also has a commutation hearing scheduled for later this month, where he will ask the Utah Parole Board to spare his life.
