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tv   Glossip v. Gross Oral Argument Audio  CSPAN  July 2, 2015 8:37am-9:42am EDT

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-- demonstrates while midazolam is not a proper drug that the k do what the state intends it to do and put a prisoner in a deep coma like conscious. >> i thought there were issues of the administration of the drugs, the nature of the veins and so forth. weren't those present in the locket case? >> no. >> no that was not then? were there issues about -- i thought there were issues involving the veins and the ability to make an intravenous connection. >> there were problems with the cat therbut mr. locket receive
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enough midazolam such that he was unconscious, he was found to be unconscious and then he regained consciousness. that the key issue before this -- >> not if he didn't receive the proper dosage. you're saying it's okay that he didn't receive the proper dosage so long as he wu unconscious. i don't see how that follows. if in fact the execution was not properly conducted, i don't see how you can blame it on the drug. >> what we know about this drug justice scalia is that it can never maintain the deep coma like unconsciousness that is necessary to prevent a prisoner from feeling the painful effects of the -- >> how do we know that? i thought what we knew was something different. i thought what we knew was just that we can't know. in other words that there's this huge range of uncertainty about what happens when somebody is given this drug.
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your suggesting something more than that, which is we know what happens, we know that the drug can't maintain deep unconsciousness, which is right. >> justice kagan, we know because of the properties of this drug. the way when the drug was being tested and introduced, it is not used for the sole purpose of preventing somebody from feeling pain during a painful procedure. >> i thought it wasn't used for that purpose just because we don't know whether it's capable of being used for that purpose. as opposed to we know it's incapable of being used for that purpose, if you see the difference. >> i do see the difference, but i think what's important here is that this court in baze explain that an important dose on yates the concern that the prisoner will not be --
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>> why is oklahoma not using that drug? >> it didn't using it -- you could ask me friend here. >> you don't know? >> the finding here is that it was unavailable at that time of the hearing. >> let's be honest about what's going on here. executions could be carried out painlessly. there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide and i assume that those are carried out with little if any payne, oklahoma and other states could carry out executions painlessly. now this court has held that the death penalty is constitutional. it's controversial it's a constitutional matter and certainly controversial as a policy matter with those who oppose the death penalty are free to try to persuade legislator to abolish the death penalty. some of them have been successful. they're free to ask the court to overrule the death penalty. but until that occurs swb is it
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appropriate for the judiciary to continue innocence what amounts to war against the death penalty which makes it impossible for the states to obtain drugs that could be used to carry out capital punishment with little if any pain. so the states are reduced to using drugs like this one which give rise to disputes about whether in fact every possibility of pain is eliminated. now, what is your response to that? >> well, justice alito the purpose of the court is to decide whether a method of execution or the way the state is going to carry out an execution is in fact constitutional and whether we're going to tolerate is it objectively intolerable to allow the states to carry out a method in this way. and so -- >> i guess i would be more inclined to find that it was
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intolerable if there was even some doubt about this drug. when there was a perfectly safe other drug available. but the states have gone through two different drugs and those drugs have been rendered unavailable by the abolitionists movement putting pressure on the companies that manufacture them. so that the states cannot obtain those two other drugs. and now you want to come before the court and say, well this third drug is not 100% sure. the reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drugs and you think we should not view that azarel vant to the decision that you're putting before us? >> justice salia i don't think it's relevant to the decision to what's available. what this court needs to look at is whether the drug that the state is intending to use to
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cause what they say put the prisoner in a place where he will not feel pain, that that drug is good enough. >> counselor, if anything, using a lethal injection protocol without this questionable drug. we know that two are not available. is there another combination that has been used by states that doesn't involve this questionable drug? >> yes justice ginsberg. there are be 11 using -- >> that doesn't answer justice scalia's question. what bearing if any should we put on the fact that there is a method but it's not available because of opposition to the death penalty. what relevance does that have?
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none? >> justice kennedy, the fact that a state chooses a certain method should not have bearing on whether -- >> i would like an answer to the question. you've been interrupted several times and you still haven't given it. is it relevant or not. >> no. it's not relevant, the availability of -- >> there are other ways to kill people regrettably. >> there are other ways. >> that are painless. doesn't have to be a drug protocol that we elect that has a substantial risk of burning a person alye who is paralyzed, correct? >> that is correct. >> i know you'll get up and argue that those other ways are not constitutional either potentially. but people do that with ever protocol. but the little bit of research i've done has shown that the reason people don't use the other methods is because it offends them to look at them. like you could use gas that
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renders people not even knowing that they're going to sleep to die. and people probably don't want to use that protocol because of what happened during world war ii. but there are alternatives. oklahoma has found some. it can use the firing squad now. so i don't know what the absence of a drug, what pertinence it has when alternatives exist. >> i would agree, justice sotomayor -- >> doesn't a firing squad cause pain? >> justice ginsberg, we don't know if the state chose to carry out an execution by firing squad whether or not it would cause level to the unconstitutional level of -- >> you don't know. do you have a guess?
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is there a reason that states move progressively to what i understand to be more human executions firing squad gas chamber and you're not suggesting that the other methods are preferable to this method in this case, are you? >> i'm not suggesting that mr. chief justice. but the reasons why states moved to more humane methods is as we learn more about science and develop, then as a society we move forward, we have evolving standards -- >> but you have no suggestion as to what would be an acceptable alternative to what you propose right now for oklahoma. do you have any -- i mean the case comes to us in a posture where it's recognized that your client is guilty of a capital offense. it's recognized that your client is eligible for the death penalty but that has been dually imposed and yet you put it in a position with your argument that he can't be executed each though he satisfies all of those requirements. >> i would --
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>> and you have no suggested alternative that is more humane. >> i would disagree with the characterization that he can't be executed. oklahoma just passed a knew statute and they are continuously looking for methods and ways -- >> what does the new statute provide? >> the new statute provides if the lethal injection protocol is found unconstitutional or drugs are unavailable, then they can go to other methods. >> what other methods? . >> they go to nitrogen gas. >> kr you suggesting that's okay with you? >> i don't know anything about that protocol. they have not -- >> what do you think? do you have an instinct about whether or not the gas chamber is preferable to this lethal injection or not? >> mr. chief justice, it's hard for me in the abstract to say whether it's preferable. the legislature has said that this could be a painless method. i don't know.
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they haven't come out with any information about how it would be carried out. >> your client was already in jail with a life sentence right, for murder. and while in jail on that life sentence he stabbed and killed a prison guard and that's the crime for which oklahoma is seeking to execute him. that's the fact we have have before us, isn't it? >> one of the petitioners before the court. >> perhaps there is that larger question that if in fact, for whatever set of reasons, it's not you, you didn't purposefully hide these other kinds of drugs. if there is no method of executing a person that does not cause unacceptable pain that in addition to other things might show that the death penalty is not consistent with the 8th amendment. is that so or not, in your opinion? >> that perhaps could be true, justice breyer. but that narrow issue -- >> is that your argument.
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>> no. >> you can make one of two arguments and one is that the death penalty is unconstitutional because there is no method that has been used in the past or that can be devised that is capable of carrying that sentence out without inflicting some pain. pain that's unacceptable. that's an argument you can make. but i don't understand you to be making that argument, am i right? >> you are correct. >> so you want us to reverse a finding of fact of the district court on the ground that it is clearly erroneous. when is the last time we did that? >> the court in comcast we cited that opinion, it was a few years ago and explained where there are clearly erroneous findings in this case, this is obviously an exceptionally erroneous, looking at the findings based on no scientific evidence, no studies and all of the evidence shows that this
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drug does not work in the way that the state -- >> the 500 milligrams is a lethal dose isn't it? it's capable of causing death is that right? >> i don't know, justice so lee to. the expert who testified for the state talked about a potential toxic dose. but there's in information of yes, this dose will cause death. >> is it ever administered in that quantity for neither putic therput i believe reason. >> does the fact that it's a lethal dose necessarily mean that it's not incredibly painful. >> no. >> it could be a lethal dose and be incredibly painful. >> the point is fit's a lethal dose, how are you going to do a study to determine whether or not in fact it renders the person incense sate.
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>> you don't need to do a study in this case because we already know from science and the pharmacology of the drug how the drug works. and so that's what the district court got wrong. so there's clear error here -- >> i'm sorry, justice kagan, i believe it's your turn. >> i'm sorry. go ahead. >> since we're on the narrow question, the narrow question you want to present. i want to hear the argument. as far as i know we held in baze in this context that if the person is not rendered unconscious or the other two drugs come in there's a constitutionally unacceptable risk of suffocation and pain. that's the holding. and in this case the court of appeals says that the district court found that this drug that you're talking about midazolam with result in central nervous depression rendering the person
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unconscious and incense sate. a sufficient level of unconscious unconsciousness. that's his finding. you had an expert testify that that is not the case. that expert said that on citing an article. he said that it would not rely reliably put the person in a coma. is that what he said? >> that's what he said. >> then the other side produced the expert which said the contrary. so you have to say that that conclusion, namely, quote, the 500 milligrams will make it a virtual certainty that he will be at a sufficient level of unconsciousness to resist the stilly of the other two drugs. i'm sorry. i've run out of your time.
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maybe i'll ask the other side the same question. i want to know what underlies that sufficient to make you say clearly wrong. but the other side is just as good to ask that question. i want you to reserve your time. >> all right. >> mr. wyrick? >> you can ask me maybe. >> mr. wyrick. >> mr. chief justice and may it please the court. the district court found as a matter of fact that a 500 milligram dose of maidazolam would render them unconscious. all parties agree that petitioners bare the threshold burden of accomplishing that there's a substantial or objectively intolerable risk of pain that they'll feel the pain from the drugs. unless that finding of fact by
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the court of appeals, mirrored by three other trial courts in florida set aside they cannot satisfy that threshold burden. >> mr. wyrick as i understand it there were three subsidiary findings that underlay this conclusion. the first is the one that we talked a little bit about can ms. konrad which has to do with the ceiling effect which as i understand it you don't at all defend. the second is the idea that 500 milligrams of this drug would likely kill a patient in 30 minutes or an hour, which seems to me irrelevant given that a lethal those is completely consistent. and the third is that that dose of midazolam would keep a patient unconscious while a needle is inserted into his thigh, which also seems irrelevant given the what
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everybody understands to be the much, much much greater potential of pain of potassium chloride. those were the three subsidiary findings. one of them nobody thinks is anything other than gobbledy guk. and the other two are irrelevant. is that not the case? >> i think the third is relevant. these petitioners in their amended complaint at paragraph 139 describe the setting of an iv as great pain. >> it does not sound pleasant to have a needle put in your thigh. but when you read the descriptions of what midazolam does that it gives the feeling of being burned alive, it sounds really considerably more than having a needle put in your thigh. >> this is what i want to clarify. midazolam itself there's no evidence and no one argues that it causes any pain upon objection. it is a sedative hypnotic.
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>> i'm sorry, potassium chloride. >> earlier some of the questions you say about whether this is lethal or not is ir relevant would it would cause great pain. a lethal dose of midazolam would not cause pain. >> it's a lethal dose of midazolam, it will take 30 minutes to die. in the meantime the potassium chloride can be wreaking extraordinary pain on the individual. so in that sense, the fact that this is a lethal dose of midazolam has nothing to do with the question that is before us whether before that 30 minutes or hour passes the potassium chloride is wreaking unbarable pain on the individual. >> the question before the court is whether the court's finding that they would unconsciousness is erroneous. they said there were three reasons why midazolam was
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inappropriate. they said paradoxical reaction those disappeared from the case. you won't see those in the reply brief. we pointed out they're enteredly rare and to tex tent they happen, trained medical staff would catch those and never call the person unconscious. secondly they said lack of and these ya. we pointed out those weren't analgesics ever. the question is do the drug render them unconscious. >> pain relief medication. >> what's the third point you had? i was anxious to hear your third point. >> as was i. >> in response to justice kagan's question. >> yes. >> i forget now your second point, the second underpinning -- >> you know, there's the fact that this is a lethal dose. again, completely consistent with the possibility of potassium chloride causing great pain, there's the fact that it keeps a patient unconscious with
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a needing completely consistent with it not keeping a patient unconscious with potassium chloride running through his body. and again this statement that nobody can figure out about the ceiling effect. >> it's the ceiling effect that i want to focus on. what the district court said is whatever the ceiling effect may be what we're concerned about is whether this can keep someone unconscious and unaware of pain. that's a phenomenon that's not anesthesia. what he was referring to was their expert, dr. la bar ski, he said in the medical sense to have true anesthesia you to have unconsciousness, inability to feel pain and immobility. what we care about is will it render them unconscious and unable to feel pain. that may not be anesthesia in the medical sense but it's the constitutionally relevant question.
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>> what do we do with this brief, midazolam cannot induce coma-like unconsciousness. >> they actually go further and say in several respects that it can induce unconsciousness and that's something no one disagrees with it. >> can i ask the same question which is i've had this one question, and that is as i read this record -- you remember what i said was the standard from baze. you remember what i said was the district court's finding. you remember that i believed that what this is about is whether that finding is clearly erroneous. and what i have are two sentences. the first sentence is from their expert and he quote when you could be unconscious he means that this drug midazolam is an anti-anxiety drug like xanax people use to go to sleep every
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night and it can render you unconscious. and not reacting to minor stimuli. that's their expert. but when major stimuli, such as the introduction of the next two drugs that we're talking about come into play, you are jolted into consciousness and you are quite aware and you wake up. if we stop there you'd lose, right? >> if any of that -- >> if we stop there. >> if any of that were supported by -- >> he pointed to two articles. he based that statement. but i'll look at the two articles. it seemed to me he was basing the statement on medical articles. but, okay, we have to look at the support for that. >> and justice -- >> now, let's look at the other side. because your side then says he says right here that -- he says it will put you into a coma. that's his point.
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but his reasoning was that if you take enough of it you'll be dead. and then he says this is essentially an extrapolation from an effect which means if you take a lot you'll be dead. but before you' dead you're in a coma and that's his reasoning. and i didn't find any other reasoning. now, the obvious thing are two. one, a lot of things kill you without putting you into a coma such as the next two drugs. lots of things do. and two, he didn't point to anything in support of this putting into coma. it was just the extrapolation. now that's what i want you to focus on. because if what i've just said is correct, then i think there is no support in this record for his conclusion. if what i've said is incorrect
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there might be support. >> well, a couple of things. first that assumes that a deep coma-like unconsciousness is the question. they argue that the court's cases and the constitution requires that. that's beyond a surgical plane of anesthesia that we would use in an operating room to remove one of your limbs. coma is brain dead. eeg silence. >> but the doctor used the drug, any doctoring conducting a surgical procedure doesn't want the patient to suffer pain, wants to induce this unconscious state would any doctor in the country give this as a drug to induce that coma-like unconsciousness? >> it is routinely used to induce anesthesia. it is not commonly used anymore for the maintenance of anesthesia for hours for surgeries.
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now their source, this is the saari article, their expert cited a enyou can find that at 243 in his report. he cited this article and it explains why midazolam is no longer used for maintenance of general anesthesia. midazolam has been used to induce and maintain general anesthesia. the recovery period of midazolam is approximately three times longer than propofol. is the sole induction and maintenance for general anesthesia. it is uncon mom and been replaced propofol for organizational and economic reasons, fast track recovery has gained popularity. >> i have a real problem with what whatever you're reading. i'm going to have to go back to that article. i am substantially lyly disturbed
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that in your brief you made factual statemented that were not supported by the cites sources. and in fact directly contradicted. i'm going to give you just three small examples among many i found. so nothing you say or read to me am i going to believe frankly until i see it with my own eyes the context. i'll give you the three examples on pages three or four and cite the drug's fda approved label as holding that this drug can get you to mild sedation and to deep levels of sedation. virtually equivalent to the state of general anesthesia where the patient may require external support for vital functions. but this quote was not on general use. this quote came from the section of the fda label writ was saying that this drug's effects when
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taken with other drugs that suppress the central nervous system this can happen. that, to me is really -- there is no other central nervous system drug at play in this protocol. on page six you cite -- >> do you have an answer to that one? >> respectfully justice sotomayor, in the brief we explain -- >> no. >> -- the fda label says that the effect os f the drug depend on three things the rate of infusion, i think it's the maintenance, the rate -- the dosage or the rate of infusion and whether it's used in conjunction with other cns -- >> you didn't quote this for the proposition that it could cause a fatality because of the depression -- or it could produce general anesthesia. >> at ja 217 their expert agrees
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kit can cause a fataleityfatality. >> sure. but he said it's in old people. there have been 80 deaths from therapeutic doses of this drug. it's -- this is almost like you saying because 80 people have died from the use of one aspirin, that means that if i give people 100 aspirins, they're going to die. it's just not logical. obviously people die from anything that you give them. that's why there are hospital fatalities in every procedure. but 80 among the millions that are given this drug don't die. so my point is what the fda is saying, the general anesthesia effect is only going to happen when you have a central nervous drug, central nervous system
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drug. >> the fda has said no such thing. >> they put it in that section. >> they described in that section the potential effects and they said three things matter when you're looking at the effects, how much of the drug you're giving the rate of the drug you giving and and whether it's given with another drug. their expert said the fda tested -- >> let me give you a second example. the melvin study says this is how it happened. it gave this drug in doses of .02 to .06. and what it show was at .06 dose there was less effect than at .02. and he said this suggests that there is a ceiling effect to this drug and that it is left potent as you go in higher
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doses. now you quoted for saying -- and you took out the eclipse. there may be a ceiling -- you quote it by saying that the melvin study for the position that studies on humans have found that the anesthetic effect of midazolam increases linearly. but what melvin actually said after pointing out that the ceiling effect is shown by his study, he says, but presuming there were no ceiling effect extrapolation of our data suggests that such a dose would be sufficient. you took out that -- >> respectfully, justice sotomayor, what they were comparing is .2 per kilo dose to a .6 milligram dose of midazolam. they said we would have expected
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midazolam to have a greater effect than the other drug because it's more potent than the other drug. as it turns out, there's two things going on. there's a doze dependent relationship with the other drug or they said there may be a ceiling effect. they hypothesized. if there's not a ceiling effect and you extrapolate out what we know about the drug -- >> but we're back to is there a ceiling effect. it doesn't matter. >> let's talk about their evidence. first of all, neither of their experts could say at what level a ceiling effect occurs. i's not relevant whether there is or is not a ceiling effect. their expert said all drugs have a ceiling effect at some point. what matter is there a ceiling effect that kicks many before we get to a level before they're unconscious and unaware of the pain. that's the constitutionally relevant inquiry. and on this point, they presented the district court with two pieces of evidence dr. la bar ski, a material data
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sheet for midazolam that we pointed out never mentioned ceiling effect. >> mr. wyrick it would be very different if the court had said, look, we don't think you've produced enough evidence that the ceiling effect kicks in at this point right? but that's not what the court said. the court had this alternative theory which is it didn't have to concern itself with whether the ceiling effect had kicked in. and that's the thing that you don't defend as well. but that is what the court said. >> that's not quite how we read the district court's opinion. we recounted their explanation of what the ceiling effect was and says whatever it may be with respect to anesthesia he said which occurs at the spinal cord level -- >> whatever it may be we don't have to worry about because what we have to worry about is the brain and not the spinal cord.
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and in the brain there is no ceiling effect. and that's wrong. >> it's reseptemberreceptors in the spinal cord. the question is the the brain level are we paralyzing the brain to such an extent that the person is unconscious and unaware of pain. he thought the evidence was sufficient to conclude that it was. >> i just read it -- i think if we go back and read it will show that what he was saying was we just don't have to worry about the ceiling effect because at the brain level the ceiling effect has no relevance. let me ask you another question. maybe this is one we'll agree on. maybe not. i'm sure not sure do you think that if we conclude that there is just a lot of uncertainty about the stroke, in other words, you know you might be
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right or ms. konrad might be right and it's really impossible to tell given that nobody does studies on this drug it would be unethical to do studies on this drug, we simply can't know the answers to these questions. if that's the state of the world, do you think it's violation of the 8th amendment to use it? >> if there's a risk of serious pain that rises to -- >> you're repeating the standard. i'm giving you a set of we just don't know. it might be substantial pain, it might not be substantial pain. i mean we can't, we can't quantify it at all. >> what you're suggesting is shifting the burden to the state to though that there's some medical consensus that a drug can do that at these doses -- >> i'm not talking about burdens. i'm talking about a district court presented with evidence. but yourself in a position of a district judge. and the evidence is who can tell. nobody can tell.
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what is a district court supposed to do at this point? >> this court which was an appeal of the ninth circuit in a similarly postured case, a temporary injunction that was a challenge to the efficacy of the lethal injection drugs vacated a temporary injunction said that the burden is on the petition in addition to show it is sure or very likely that they will suffer from the harm. >> there i have not found a place where i agree with you. that seems quite something to me. i mean that would be like saying -- people say that this potassium chloride, it's be look being burned alive. we've actually talked about being burned at the stake and everybody agrees that that's yule and unusual punishment. suppose we said we're going to burn you at the stake but before we do we're going to use an anesthetic of completely unknown properties and unknown effects.
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maybe you won't feel it. maybe you will. we just can't tell. and you think that would be okay? >> i think that that petitioner in that case would have no trouble satisfying the burden that this court imposed at baze. that threshold would be incredibly easy to make in that case. >> you just don't know about the anesthesia. maybe the anesthesia will cover all of the pain of being burned at the stake or maybe it won't. the court doesn't know. >> that isn't the world that we live in and it's certainly not the world that this district court lived in. we know for a fact these are the conceded facts. their expert said this dosage of midazolam will render them unconscious in more more than 60 or 90 seconds. we know that induction -- >> induction but not maintenance and there's a worl of difference between the two. >> indungs is the creation of
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anesthesia maintenance is keeping it at that state for many hours for a surgery. >> or if the time it take frs the potassium chloride to kill somebody. >> we put on evidence that this drug is commonly used for painful procedures. i think the intubation example is a very good example. we pointed out that this drug midazolam is regularly used for rapid sedation. >> what we have is their expert saying, as i previously said that this drug will not keep you asleep once these two others are introduced you will be jolted into consciousness. that is his testimony. i believe he supported that with medical articles. but i'll look to see. if it turns out it is supported, we have to look to the other side to see what was refuting it. and what on the other side is
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refuting is on 3/29 and i agree with you the ceiling effect is a big red herring here. what actually he said would go against it was that he said there's an extrapolation from his conclusion that 500 milligrams could cause death. and so if that much is likely to cause death, it's certainly likely to cause a coma. and a coma would prevent the person from pain. but his evidence for that was zero. we know that in fact lots of drugs can kill people without first putting them into a coma. and so we look to see what is it he thinks that if this kills you will first put you into a coma. and when i looked asked my clerks and others to look we found zero. that's my question.
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what can you point me to which will show that what i think is the think is the key rep dags of their expert rests on zero. that's what i've asked you. that's what i've tried to ab asked inarctic yatly. >> whether it creates the coma is not the question. but based on how a central nervous depressive works. >> not the word coma. i think what he was driving at, your expert, was that you were in a state such that you would feel no pain. and the reason he thought you were in that state is because 500 mg will probably kill you. and if it's going to kill you, it must of course at least first put you in that state. so i'm asking the same question but i'm using the words that
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state in substitution for the word coma. >> because of how a central nervous system depressant works, it works -- >> i really want to know where in the record does he provide support for that statement that the, quote that state, end quote, precedes the death caused by the drug. >> he describes a couple of things. first, he describes the action by which the drug works as a central nervous system depressant. by causing death it works by paralyzing the brain to such an extent that your respiratory drive is knocked out. >> but that's the clear error here. it starts right there, because the reason evans thought that it paralyzed the brain is because he thought this worked on the spinal cord. and nobody argues that it works on the spinal cord

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