Tennessee plans to execute inmate amid concerns his heart implant will shock him repeatedly

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2 days ago

Tennessee plans to execute Byron Black on Tuesday for the 1988 murders of a woman and her two young daughters, despite concerns from his attorneys that a device implanted to restore his heartbeat could repeatedly shock him as he's put to death.
The device – an implantable cardioverter-defibrillator, or ICD – is at the center of a court battle that has been unfolding for several weeks. Black's attorneys want the device deactivated at or immediately before his lethal injection Tuesday morning.
If it isn't, they say the effects of the lethal injection drugs will cause the ICD to shock Black's heart, perhaps repeatedly, in an attempt to restore it to a normal rhythm. This will cause Black a prolonged and torturous execution, the attorneys argue, violating Eighth Amendment protections against cruel and unusual punishment.
'I don't want him to suffer. I do not want him tortured,' said Kelley Henry, one of Black's attorneys and the chief of the capital habeas unit for the Federal Public Defender based in Nashville. She described her 69-year-old client's case as the 'first of its kind.'
The case illustrates the complex ethical and practical dilemmas that emerge when medicine and capital punishment intersect. The American Medical Association's Code of Medical Ethics says physicians 'must not participate in a legally authorized execution,' because their profession calls on them to preserve life.
Indeed, Tennessee officials have indicated in court filings they do not have a medical professional available to turn off the implant after staff at a Nashville hospital refused to participate. They have also argued Black will not suffer, saying he would be unconscious if the ICD was activated and unable to perceive pain, according to The Associated Press.
On Friday, Black's attorneys said they appealed to the US Supreme Court, asking the justices to halt his execution after the Tennessee Supreme Court ruled Black's execution could proceed without deactivating his ICD.
'The ICD issue was never about a stay of execution,' Henry told CNN, but about securing a plan with state officials to prevent Black from suffering a torturous death if his execution proceeds. 'When you get a client with an actual execution date that could go forward, you have to start looking at his end of life, and what are the issues you need to raise to protect him.'
Reached for comment, the Tennessee Department of Correction referred CNN to the office of Attorney General Jonathan Skrmetti. In a statement, Skrmetti, a Republican, noted testimony from the state's experts 'refutes the suggestion that Black would suffer severe pain if executed.'
'Thirty-seven years have passed since Black brutally murdered six-year-old Lakeisha Clay, nine-year-old Latoya Clay, and their mother Angela Clay,' Skrmetti said, adding courts have repeatedly denied Black's other appeals.
'Our office will continue fighting to seek justice for the Clay family and to hold Black accountable for his horrific crimes,' Skrmetti said.
The murders of Angela, Lakeisha and Latoya Clay
Black was convicted and sentenced to death for the 1988 murders of his then-girlfriend, Angela Clay, and her two daughters, Latoya and Lakeisha.
At the time, Clay was separated from her husband and the girls' father, according to a summary of the crime included in a Tennessee Supreme Court ruling. About 15 months before the killings, court records say, Black and Clay's husband were in an altercation in which Black shot the man, who survived. Black was sentenced to two years in the Davidson County Metropolitan Workhouse, with weekend furloughs.
Prosecutors accused Black of murdering Clay and her girls early on the morning of March 28, 1988, while he was out on furlough. All three victims were found dead in their apartment around 9:30 p.m. that day, each with gunshot wounds.
At trial, a firearms expert for the Tennessee Bureau of Investigation testified bullets recovered from the scene of the murders matched those recovered from Black's earlier shooting of Clay's husband. The .44 caliber bullets found at Clay's apartment and a .44 caliber bullet removed from her husband were all fired from the same weapon, the expert said.
Black was sentenced to two life terms for the murders of Angela Clay and Latoya, court records show. He received a death sentence for the murder of Lakeisha.
Bennie Clay, Angela's husband and the girls' father, declined to comment for this story.
Implant delivers 'powerful' shocks
Black's attorneys say he is very sick, describing him in a statement as a 'frail, wheelchair-bound man' suffering numerous health issues, including dementia and congestive heart failure. They are also seeking a stay of execution for reasons aside from his ICD, arguing he has an intellectual disability that should make him ineligible for execution under the Eighth Amendment.
Black's attorneys have also asked Gov. Bill Lee, a Republican, to grant him clemency, citing his disability, or to issue a reprieve so TDOC can find someone to deactivate his ICD.
Black received his implant in May 2024, court records indicate. The device includes both pacemaker and defibrillator functions: The pacemaker sends electrical impulses to Black's heart if his heart rate drops too low, while the defibrillator delivers more powerful shocks if his heart rate becomes too high.
'This type of shock is powerful, and people describe it as getting punched in the chest or kicked in the chest,' said Dr. Jonathan Groner, a professor emeritus of surgery at the Ohio State University College of Medicine, recalling a patient's description. Groner, who has been critical of the medicalization of capital punishment, emphasized he is not a cardiologist.
The implant can be deactivated in one of two ways, according to a ruling by Davidson County Chancery Court Chancellor Russell Perkins after a two-day hearing on Black's case last month: by placing a medical instrument or a magnet above the device from outside Black's body. Both methods require a trained medical professional, Perkins wrote.
In Black's case, the timing is key, according to his lawyers: If turned off too early, they argue the device will expose their client to the risk of suffering an arrhythmia, or irregular heartbeat, that might kill him while the courts are still considering his appeals and a ruling to delay the execution could be imminent.
According to Perkins' ruling, experts for the state testified the lethal injection drug, pentobarbital, would render Black unconscious, so he would not feel any shocks if they occurred. An expert for Black, however, argued the drug would only make him unresponsive, not unconscious, meaning he would feel the pain but be unable to respond.
'The state wants to say he'll be unconscious, but that's just not where the science is,' Henry said. 'The science tells us that he may not be able to respond, but he'll be experiencing everything.'
Hospital refuses to deactivate implant
After hearing dueling expert testimony, Perkins ruled in Black's favor and ordered state officials to arrange for a medical professional to deactivate the implant at Black's execution.
Perkins later modified the order to allow the deactivation early Tuesday morning, after state officials said in a court filing doctors at Nashville General Hospital would not come to the execution chamber but were willing to do so a day earlier if Black were transported there.
The hospital, however, denies this, and the state acknowledged in court records last week there had been an error.
An assistant TDOC commissioner said she was told a medical vendor for the department had secured an appointment to deactivate Black's implant. The vendor later informed TDOC its legal team did not recommend any further involvement in Black's execution, the assistant commissioner said in a court filing.
When the assistant commissioner contacted Nashville General, her calls and voicemails were not returned, and the TDOC learned the hospital was unwilling to participate, the filing said.
Nashville General Hospital confirmed its refusal to cooperate in Black's execution, telling CNN in a statement that earlier reports suggesting otherwise were 'inaccurate.'
'NGH has no role in State executions,' the statement said. 'The correctional healthcare provider contracted by the Tennessee Department of Correction (TDOC), did not contact appropriate Nashville General Hospital leadership with its request to deactivate the implanted defibrillator. Any assertion the hospital would participate in the procedure was premature.'
'Our contract with the correctional healthcare provider is to support the ongoing medical care of its patients,' the statement added, describing the request to deactivate Black's device as 'well outside of that agreement.'
The Tennessee Supreme Court subsequently overruled Perkins' order, siding with the attorney general's office. The court agreed Perkins' order to deactivate Black's implant was effectively a stay of execution that exceeded the authority of the Davidson County Chancery Court.
The Tennessee Supreme Court added, 'Nothing in our decision today prevents the parties from reaching an agreement regarding deactivation of Mr. Black's ICD should it become feasible for the procedure to be performed at an appropriate time.'