MONTANA (USA): JUDGE PROHIBITS STATE FROM USING PENTOBARBITAL

A state judge ruled today that the state's attempt to use pentobarbital as a lethal injection drug is prohibited by the state law, written with another drug in mind (sodium thiopental), that requires it to use an "ultra-fast acting barbiturate."
"This case is only about whether the drug selected by the Department of Corrections meets the legislatively required classification of being an 'ultra-fast acting barbiturate,' Judge Jeffrey Sherlock wrote, adding that if Montana wishes to use pentobarbital, it will need to change state law.
Sherlock heard expert testimony from 2 doctors on pentobarbital to determine whether pentobarbital is "ultra-fast acting." The judge said the testimony of the state's expert, Dr. Lee Evans, "did not comport" with his prior testimony, which was "crucial" in deciding how to rule. "Until the trial of this action, Dr. Evans had not testified that pentobarbital was an ultra-fast-acting barbiturate," the judge wrote. "He did so testify at trial. However, the Court struck that conclusion because it did not comport with his prior discovery responses or declarations filed with the Court."
Evans indicated in this trial that the onset of pentobarbital was less than a minute in this trial.
But in a trial in 2012, Evans said it was "3 to 4 minutes." Evans is one of the few medical experts willing to testify on behalf of death penalty states, including in Oklahoma's recent case before the U.S. Supreme Court. In that case, he was criticized for, among other things, using the website Drugs.com for research. The website includes the disclaimer that it is "not intended for medical advice, diagnosis or treatment." The judge added that his findings are "not in any way insinuate that Dr. Evans is not a credible witness," but that his change in testimony is "a factor when weighing the evidence." Sherlock indicated that Montana could use the drug if the legislature changed the statute to not require an "ultra-fast acting" drug.
The last execution in Montana was in 2006.