Wednesday, July 27, 2011



Comes now the Affiant, David B. Waisel, MD, who, being first duly sworn
by an officer authorized by law to administer oaths, deposes and states as follows:

1. My name is David B. Waisel. I am over the age of eighteen and
competent to testify to the truth of the matters contained herein.

2. I am a practicing anesthesiologist at Children’s Hospital Boston and
an Associate Professor of Anaesthesia, Harvard Medical School. I have been
practicing clinical anesthesiology, primarily pediatric anesthesiology, for
approximately 18 years.
3. I have been asked by the attorneys who represent Roy Blankenship to
provide an expert medical and scientific opinion about observations of his
execution by lethal injection on June 23, 2011.
4. I was not in attendance at the execution. My information about the
execution comes from a comprehensive interview of an eyewitness, Greg
Bluestein, an AP reporter. Mr. Bluestein’s report is the type of information experts
in my field normally and regularly rely on in forming expert opinions. Mr.
Bluestein informed me that neither he nor any other witness was able to hear the
proceedings within the execution chamber as the microphone was off.
5. According to Mr. Bluestein, as the lethal injection commenced Mr.
Blankenship jerked his head toward his left arm and made a startled face while
blinking rapidly. He had a “tight” grimacing expression on his face and leaned
6. Shortly thereafter, Mr. Blankenship grimaced, gasped and lurched
twice toward his right arm.
7. During the next minute, Mr. Blankenship lifted his head, shuddered
and mouthed words.
8. Three (3) minutes after the injection, Mr. Blankenship had his eyes
open and made swallowing motions.
9. Four (4) minutes after injection, Mr. Blankenship became motionless.
10. About six (6) minutes after the injection, the nurse assessed Mr.
Blankenship’s eyes using a stick-like instrument about fingertips-to-mid-forearm
length to do something to the area on or about his eyes. Critically, Mr.
Blankenship’s eyes were still open and never closed during the entirety of the
lethal injection process.
11. About thirteen (13) minutes after the injection, Mr. Blankenship was
declared dead. Again, his eyes were open throughout.
12. Based on his lurching toward his arms and the lifting of his head and
the mouthing of words, I can say with certainty that Mr. Blankenship was
inadequately anesthetized and was conscious for approximately the first three
minutes of the execution and that he suffered greatly. Mr. Blankenship should not
have been conscious or exhibiting these movements, nor should his eyes have been
open, after the injection of pentobarbital.
13. Given prior executions of Brandon Rhode and Emanuel Hammond in
September 2010 and January 2011, respectively, during which these inmates
reportedly exhibited similar movements and opened their eyes (Rhode’s eyes were
open throughout the execution process), Mr. Blankenship’s execution further
evidences that during judicial lethal injections in Georgia there is a substantial risk
of serious harm such that condemned inmates are significantly likely to face
extreme, torturous and needless pain and suffering.
14. The fact that executions using pentobarbital of inmates in other
jurisdictions (approximately 14 have occurred thus far, to my knowledge) have not
generated reports of problems like those observed in Mr. Blankenship’s case is not
dispositive of the safety, efficacy or reliability of pentobarbital as used to induce
anesthetic coma in human beings. Only when a drug has been tested
systematically on thousands of subjects, with their consent, can one begin to
reliably assess how an untested use of a drug will affect human subjects. We do
not have relevant data in similar populations for pentobarbital. Because we do not
have sufficient data, there is no way to know, in any given case, how an overdose
of pentobarbital will affect basically healthy inmates. Mr. Blankenship’s reaction
to the pentobarbital injection may be indicative of other inmates’ reactions.
15. It has been opined in a recent news article1 that “Blankenship's
movements could also have come during an ‘excitement phase.’” Although
subanesthetic doses of pentothal (and likely other barbiturates such as
pentobarbital, although I have been unable to find any documentation of that) may
cause a very brief excitement phase, in my expert opinion that was not what caused
Blankenship’s movements. The excitement phase is abolished with higher doses.
Given the massive amount of the dosing claimed by the State, any excitement
phase could not last three minutes during the administration of pentobarbital.
Further, the localization of the pain and the mouthing of words are actions
inconsistent with the excitement phase.
16. It has also been opined in the same aforementioned article that
“...[Blankenship] could have been faking it.” Faking would require a level of
1 See
consciousness inconsistent with how the State claims pentobarbital should work.
The intentional act of faking could only be explained if the pentobarbital did not
work as the State claims it should work. And one cannot fake eyes-wide-open at
Dated this ___ day of ____________, 2011.
David B. Waisel, MD
Sworn to and subscribed before me
this __ day of ___________, 2011.

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