Aug. 17
MISSISSIPPI:
Mississippi Says It Has Execution Drugs Amid Secrecy Fight----Mississippi
prison officials say they have obtained new supplies of execution drugs.
Mississippi prison officials have obtained new supplies of execution drugs,
which could allow the state to carry out lethal injections after some other
drugs expired, they said in court papers.
The state provided that information Monday in an ongoing lawsuit over its
execution methods. Mississippi's new execution secrecy law should block lawyers
for death row inmates from finding out too much about the state's plans to
administer the death penalty, the state said. Among the things the state wants
is a federal judge to protect the identity of the drug supplier, as well as any
clues in other documents about who that supplier might be.
Lawyers for death row inmates, though, are asking U.S. District Judge Henry T.
Wingate to force the state to provide more information about Department of
Corrections' drug-buying effort, saying it's necessary to pursue their lawsuit
challenging Mississippi's current execution method. The court showdown will
determine whether the state law can trump a federal lawsuit on the subject.
Attorney General Jim Hood told The Associated Press in June that he hopes to
ask the Mississippi Supreme Court to set execution dates for Richard Jordan and
Thomas Loden Jr. this year. Mississippi hasn't executed anyone since 2012, in
part because of the legal challenges and the drug shortages. Both Loden and
Jordan have filed fresh appeals since they lost state appeals over the use of
midazolam and Jordan is also still seeking a rehearing, so it's unclear when
executions can move forward.
Plaintiffs say they need the information about drugs because under federal law,
if they're going to challenge Mississippi's method of execution, they have to
propose a "known, available alternative." Lawyer Jim Craig would prefer that
the state use only pentobarbital, the drug Mississippi formerly used as the 1st
drug in a 3-drug sequence. Craig notes Texas, Georgia and Missouri are all
still using pentobarbital in executions.
Mississippi now plans to use the sedative midazolam, followed by a paralyzing
agent and a drug that stops an inmate's heart. The use of midazolam has been
repeatedly challenged nationwide because prisoners have coughed, gasped and
moved for extended periods during executions. Lawyers for Jordan and others
argue prisoners feel pain as drugs are administered after midazolam, violating
the U.S. Constitution's ban on cruel and unusual punishment.
In court papers, Mississippi officials said they stopped being able to buy
pentobarbital in 2015, and couldn't find a pharmacy to make some using raw
ingredients.
So, after a 2015 U.S. Supreme Court ruling approved Oklahoma's use of
midazolam, Mississippi officials rewrote their execution procedure to use that
drug. The state acquired some midazolam that year, but court papers state that
it expired at the end of May. Employees of Attorney General Jim Hood and the
Corrections Department then found a Mississippi pharmacy identified only as
"Supplier 1" in court papers to sell new drugs to the state.
An unnamed person testifying on behalf of the pharmacy said the business agreed
to supply drugs only under conditions of secrecy, citing fears that death
penalty opponents would harass the pharmacy "resulting in physical and/or
financial harm" and that drugmakers whose products the pharmacy is selling to
Mississippi might cut off business because they don't want their drugs used in
executions.
Craig wrote that the state has dragged its feet over 22 emails that the state
is still refusing to give to the plaintiffs, said the state lied in responses
to public records requests and said lawyers lied to Wingate when they said on
May 31 that didn't know whether the state had obtained new supplies of
execution drugs. The drugs had arrived in early May. Craig wants all the people
involved in obtaining drugs identified by name.
"Defendants have stonewalled Plaintiffs' attempts to determine exactly who,
what, when, and how MDOC has attempted to secure lethal injection drugs," Craig
wrote.
(source: Associated Press)
*****************
State's Longest-Sitting Death Row Inmate Challenges Death Penalty Drug
The Mississippi Supreme Court has sentenced Richard Jordan to death 4 times,
but with the help of his lawyers, he continues to challenge the state's death
penalty method.
In July, Jordan filed his 2nd petition for post-conviction relief, continuing
to challenge Mississippi's proposed use of midazolam as a part of its lethal
injection.
Earlier this summer, the state's high court denied Jordan's 1st petition for
post-conviction relief, which challenged the Mississippi Department of
Corrections' use of midazolam as well as the constitutionality of executing an
inmate who has been on death row for more than 40 years due to legal delays.
Jordan was first tried and convicted in July 1976 for kidnapping and murdering
Edwina Marter in Harrison County, leaving her body on a logging trail.
His case continued to face legal hiccups, however, with both court precedent
and then the U.S. Supreme Court vacating his death sentence in the 1980s
because Jordan had not been allowed to present evidence of "his adaptability to
prison." In 2001 the Mississippi Supreme Court affirmed Jordan's fourth death
sentence, which he has appealed and challenged since.
This year, the Mississippi Supreme Court decided to ignore Jordan's midazolam
challenge, despite 3 justices agreeing that the case warranted more attention
because the Legislature amended its death-penalty statute in the 2017
legislative session.
Avoiding 'Severe Pain'
Previously, state law required the lethal injection's three-drug combination to
begin with a "continuous intravenous administration of a lethal quantity of an
ultra short-acting barbiturate or other similar drug."
Now, the law requires "the sequential intravenous administration of a lethal
quantity of the following combination of substances: a) an appropriate
anesthetic or sedative; b) a chemical paralytic agent; and c) potassium
chloride, or other similarly effective substance."
The new law further defines an "appropriate anesthetic or sedative" as one that
means a substance that "if properly administered in a sufficient quantity is
likely to render the condemned inmate unconscious, so that the execution
process should not entail a substantial risk of severe pain."
Jordan's latest petition challenges the new law, arguing that midazolam is not
"an appropriate anesthetic or sedative." Jordan's lawyer, James Craig, the
co-director of the MacArthur Justice Center, argues that midazolam is not
capable of making Jordan unconscious like state law says it should. The
petition, filed in July, asks the Mississippi Supreme Court to review the facts
about midazolam in light of the change to Mississippi's death-penalty law.
In an expert affidavit, Dr. Craig Stevens, a professor of pharmacology at
Oklahoma State University, writes that midazolam is not "an appropriate
anesthetic or sedative," because it does not produce the loss of
unconsciousness, as it should. Stevens writes that midazolam is a sedative drug
but not an anesthetic because "it cannot produce the state of general
anesthesia."
The Sedative Question
The American Society of Anesthesiologists has a standard continuum of sedation
that categorizes how responsive a person on different levels of sedatives or
anesthetics might be. General anesthesia is the only category one that leaves a
person "unarousable even with painful stimulus."
Midazolam, Stevens writes, "does not produce maximal depression of
consciousness leading to general anesthesia, is not used as a general
anesthetic agent, and is classified as a sedative drug." If midazolam is
considered a sedative, as Jordan's petition alleges, it would not be guaranteed
to ensure an inmate is "unarousable" before the other drugs in the state's
three-drug combination are administered, leaving the possibility for an inmate
to feel pain before death.
Other states use midazolam in their lethal injections, with mixed results. In
the past year, executions in Alabama and Arkansas that raised questions about
the inmate's movements included midazolam as 1 of the drugs in both lethal
injections. In April, an inmate in Arkansas lurched forward several times in a
row, about 3 minutes into the process, an AP reporter wrote. In Alabama, one
inmate heaved and coughed for 13 minutes during his execution, AL.com reported.
The most recent execution in the country, however, used midazolam with no
visible complications. Ohio state officials used midazolam with rocuronium
bromide and potassium chloride for their three-drug lethal injection on Ronald
Phillips, whom Ohio state officials put to death on July 26, The Washington
Post reported.
Mississippi's 3-drug protocol is similar to Ohio's. In a January 2017 records
request, Craig obtained drug inventory records from MDOC, which show the drugs
MDOC has on hand. Mississippi, like Ohio, has midazolam and potassium chloride,
these documents show. However, the second drug in Mississippi's lethal
injection is vecuronium bromide, which is similar to rocuronium bromide. A 2015
study comparing the two drugs found rocuronium to have a faster onset time than
vecuronium. Jordan's challenge does not address vecuronium; his petition
focuses on midazolam and the state's new death penalty law.
"At a minimum, Mr. Jordan is entitled to an evidentiary hearing to prove the
State's choice of lethal injection drugs violates Mississippi law," Jordan's
2nd petition states. The state has asked for an extension of time to file their
response and likely won't do so until September.
(source: jacksonfreepress.com)
******************
Controversial medical examiner backs off 'shaken baby' claim in death penalty
case
This week, the controversial former Mississippi medical examiner Steven Hayne
testified at a hearing for Jeffrey Havard. Havard was convicted in 2002 of
sexually assaulting and shaking to death Chloe Britt, the 6-month-old daughter
of Havard's live-in girlfriend. Havard has always maintained that the infant
hit her head on the toilet after he dropped her while giving her a bath.
But Havard made some mistakes. He first failed to tell his girlfriend - and
later doctors and investigators - that he had dropped the girl. By the time he
did, they understandably no longer believed him. But the evidence against
Havard has always been thin. It has mostly consisted of testimony from Hayne
that Chloe Britt died from shaking, not from a blow to the head consistent with
Havard's story. The symptoms Hayne cited to make that diagnosis have since been
called into question in the medical and forensics communities. But the shaken
baby syndrome (SBS) diagnosis alone probably wouldn't have allowed the state to
seek the death penalty. That's perhaps why prosecutors also alleged the sexual
assault. By the time of Havard???s trial, doctors, ER nurses, the county
sheriff and the local county coroner all claimed to have seen significant
damage to Chloe Britt's rectum, damage they testified was consistent with
abuse. Hayne, too, seemed to concur with the sexual abuse allegation. He
claimed at trial to have found a found a 1-inch contusion on the girl's anus.
When the prosecutor asked Hayne what could have caused the contusion, he
replied, "penetration of the rectum by an object."
But Hayne's autopsy on the girl showed no such abuse. The one-inch contusion he
claimed at trial was actually only one centimeter (he claimed he misspoke).
Since Havard's conviction, multiple medical examiners and other experts have
submitted affidavits on his behalf to dispute both the SBS diagnosis and the
state's claim of sexual abuse. The Mississippi Supreme Court hasn't shown much
interest.
At trial, Havard's attorney requested funds to hire his own medical examiner to
review Hayne's work. The judge turned him down. After the conviction and death
sentence, former Alabama state medical examiner Jim Lauridson submitted an
affidavit on Havard's behalf questioning Hayne's conclusions about the sexual
abuse. Lauridson pointed out that what the doctors, nurses and law enforcement
officials likely saw during those frantic moments in the emergency room was a
dilated anus, which often occurs in young children who are brain-dead, or
shortly after death. Hayne's own photos of the girl's body, taken after she was
cleaned up, showed no signs of sexual abuse.
The Mississippi Supreme Court at first refused to even consider Lauridson's
affidavit. The court ruled that his critique of Hayne's work was evidence that
should have been introduced at trial. Of course, that was impossible, since the
court refused to give Havard money to hire his own expert witness. The court
didn't consider Lauridson's affidavit until Havard had exhausted his appeals
and was in post-conviction - when such claims are much more difficult to win.
When the court did finally consider Lauridson's affidavit, in 2008, the court
rejected it out of hand. Justice George Carlson's majority opinion badly
misrepresented what Lauridson wrote. To give just 1 example, Carlson wrote that
Lauridson stated in his affidavit that "there is a possibility that Chloe
Madison Britt was not sexually assaulted.'" Carlson then added, "Taking this
statement to its logical conclusion, this leaves open the possibility that she
was."
That of course is not the logical conclusion. Worse, the phrase "there is a
possibility" doesn't appear anywhere in Lauridson's affidavit. Here's what
Lauridson did write:
"The conclusions that Chloe Britt suffered sexual abuse are not supported by
objective evidence and are wrong."
That seems pretty definitive. The only wiggle room Lauridson left was that he
couldn't completely rule out abuse until he saw the tissue slides Hayne took
from the girl. Hayne had yet to turn them over. When he did, Lauridson found
nothing in them to suggest sexual abuse.
Nevertheless, the court voted 8-1 to uphold Havard's conviction. The court
found that, "Dr. Lauridson's conclusion was not only contrary to that of Dr.
Hayne, it was contrary to the sworn testimony from experienced emergency-room
doctors and nurses." The lone dissent was from a justice named Oliver Diaz.
Regular readers of The Watch might recognize that name. When Diaz later ran for
reelection to the court, an outside interest group took out TV ads attacking
Diaz for his vote in that case, accusing him of voting to free a child rapist
and murderer.
Havard again petitioned the state Supreme Court in 2012. This time, he had an
affidavit from Hayne himself. "Based upon the autopsy evidence available
regarding the death of Chloe Britt," Hayne wrote, "I cannot include or exclude
to a reasonable degree of medical certainty that she was sexually assaulted."
That still wasn't enough. The justices again voted to deny Havard's petition.
Justice Carlson again wrote the majority opinion. Incredibly, this time Carlson
argued that Hayne's affidavit was "duplicative" of his testimony at trial. But
just 4 years earlier, Carlson wrote that Lauridson's conclusion - which is
basically the same conclusion Hayne finally came around to in 2012 - was
"contrary" to Hayne's testimony at trial. Both of these things can't be true.
And yet in the world of post-conviction litigation, they were.
Part of the problem is that Hayne is incredibly slippery. It's true that at
trial, he never explicitly said that Chloe Britt had been sexually assaulted.
He merely failed to object when prosecutors suggested it - and he offered up
that comment that her contusion was "consistent with" penetration by an object.
He undoubtedly knew the impact that would have on the jury.
In 2014, Hayne unleashed another bombshell. He told the Clarion-Ledger that he
never thought Britt had been sexually assaulted. He later told Havard's
attorneys that he even told prosecutors his opinion before trial, more than
once.
This is hard to believe. If true, it would mean that the prosecutors moved
forward with the sexual assault charge despite the fact that the only expert
witness qualified to offer that conclusion didn't believe it. That and the fact
that Hayne's alleged statement to prosecutors was never turned over to Havard's
defense attorneys would amount to some incredibly serious prosecutorial
misconduct.
It isn't that no prosecutor is capable of such misconduct. We've seen it
before. But Hayne's statement is hard to swallow because of Hayne's own
actions. If he never believed Britt was sexually assaulted, why would he let
the state argue precisely the opposite at Havard's trial? Why would he let it
make that argument in order to have Havard executed? Why didn't he object when
prosecutors asked him leading questions that a reasonable person should have
concluded were designed to get the jury to believe something Hayne didn't
believe was true?
In his opening statement, the prosecutor told jurors that Hayne would "testify
for you about his findings and about how he confirmed the nurses' and doctors'
worst fears this child had been abused and the child had been penetrated." Why
didn't Hayne speak up then? Why did he let the prosecutor attribute opinions to
him that he didn't believe? And why did he allow Jeffrey Havard to sit on death
row for 9 years before finally speaking up?
The more plausible explanation here is that Hayne changed his story. Why would
he change his story? It's difficult to say. (Hayne has not responded to my
attempts to interview him over the years.) Perhaps he had an attack of
conscience. Perhaps, now that he's no longer allowed to do autopsies on behalf
of prosecutors, he has decided he needs to burnish his reputation with defense
attorneys, who are still permitted to hire him. Perhaps he has seen the lineup
of medical examiners who have said he was wrong about this case and is trying
to salvage his credibility.
In any case, as of 2012, there hasn't been a single medical examiner who has
looked at this case who thinks Chloe Britt was sexually assaulted, including
the one who testified for the prosecution. And yet the Mississippi Supreme
Court still denied Jeffrey Havard on his petition to throw out the sexual
assault charge.
In 2015, the court finally granted Havard permission to seek an evidentiary
hearing on the validity of the shaken baby evidence. That's the hearing that
took place this week and in it, Hayne testified that he no longer believes
Chloe Britt was shaken to death. But according to the Clarion-Ledger, the judge
at the hearing noted that he could not allow Havard's attorneys to question the
validity of the sexual assault evidence - the state Supreme Court wouldn't
allow it.
It may be hard to comprehend why the court would give Havard relief on the
shaken baby evidence but deny him on the sexual abuse claim. But I have a
theory: They couldn't take the risk of what such a hearing might reveal.
I've been reporting on Hayne's reign in Mississippi for more than a decade now.
For nearly 20 years, he did about 80 % of the autopsies in Mississippi. He
testified in thousands of cases. For years, state and federal courts have
rejected challenges to his credibility. (Havard was rejected in federal court,
too.) Beginning in 2007, the courts began to throw out his testimony in a
handful of cases. They really had no choice, due to the absurdity of his
testimony in those cases. But in those cases, the courts were careful to limit
their decisions to the case at hand. They were careful to note that they
weren't ruling on Hayne\'s credibility in general.
More recently, a panel for the U.S. Court of Appeals for the 5th Circuit wrote
in an opinion that Hayne had been "discredited." That was in an opinion in
which the judges found that a defendant's challenge to Hayne's credibility
hadn't been filed within the 1-year deadline of when the defendant should have
known that Hayne was no longer credible. The perverse thing about that
decision, as I noted here at the time, is that the same court had repeatedly
upheld Hayne's credibility, including in opinions issued less than a year prior
to the ruling. For years the courts told defendants that Hayne was a credible
witness. Then the highest court to date to hear a challenge to his credibility
suddenly reversed course, but in a way that slammed shut any opportunity for
any future defendants to get any relief.
This case risked exposing all of that. Here, Hayne claimed to have told
prosecutors before trial that he didn't believe Chloe Britt had been sexually
abused. To let Havard pursue that allegation would presumably pit Hayne against
not only those prosecutors but also the state of Mississippi. It would force
the office of Mississippi Attorney General Jim Hood - who has staunchly
defended Hayne - to attack Hayne's credibility. Its only real option here would
be to argue that Hayne was lying about what he told Havard's prosecutors. Once
it admits that, what does it do with the thousands of other cases in which
Hayne's testimony helped prosecutors win a conviction?
The SBS issue isn't nearly as messy. Hayne can merely argue that he was relying
on the research available at the time, and that the consensus in the forensics
community was that the symptoms he saw in Chloe Britt were indicative of death
by shaking. Since then, the consensus has changed. He was wrong, but so were a
lot of other people. It was an innocent mistake.
Even on the SBS issue, there are lingering questions. Hayne also testified to
SBS in other cases. (It's impossible to say how many.) Has he contacted the
defendants in those cases to tell them he no longer believes in the diagnosis?
In one 2009 case I wrote about here, Hayne claimed that critics of the SBS
diagnosis were misinformed. To support that statement, he cited a study that
doesn't appear to exist, and cited a textbook whose author says that Hayne not
only misquoted him, but also that Hayne gave jurors the precise opposite
impression of what the textbook actually says, and that he believes Hayne could
only have done so deliberately. How does Hayne address that?
But the SBS issue is less threatening to the system than the sexual assault
issue. If Havard gets a new trial on the SBS claim, it's likely that Hood's
office won't even bother to try him again. If they do, Hayne will likely
explicitly testify that he does not believe Britt was sexually abused and that
he no longer believes she was shaken to death. The state's case will be weak,
Havard will be acquitted, and justice will be served. At least for Havard.
So it's pretty clear why the Mississippi Supreme Court ruled the way it did.
It's just easier to take these cases one at a time, and to deflect from the
larger problem. To grant Havard's challenge to the sexual assault claims would
force Mississippi officials to attack the credibility of the expert witness
that most of the state's prosecutors relied on for 20 years. It might expose
the perverse incentives that propelled the state's death investigation system
from the late 1980s until the late 2000s and raise doubts about the credibility
of the state's justice system. And it could show the courts' complicity in it
all - the Mississippi Supreme Court most of all. That's all just too risky.
Jeffrey Havard finally got his hearing, 15 years after he was sentenced to die.
I suspect that the court will ultimately find that there isn't any credible
evidence that he shook Chloe Britt to death. Yet in the meantime, the courts
will stand by the allegation that Havard sexually assaulted the girl, even
though there isn't a single medical examiner who believes it.
(source: Radley Balko, Washington Post)
OHIO:
Suspect Arraigned In Hatchet Murder
Abel Dale "Gus" Horton was arraigned on 1st-degree murder charges on Tuesday at
the Osage County Courthouse in Pawhuska.
Horton faces the death penalty in the January hatchet murder of 25-year-old
Eric Hartung, of Perry.
The Hartung family advocated for the harshest consequence in the state to be a
choice for the jury during trial.
"They all will get what is due to them one way or another," father Jeff Hartung
said in an interview with the American on Tuesday. "But I can't wait for the
man upstairs to judge him because who knows when that will be. I want to see
the judgment on Earth now, in court."
Horton, 23, is accused of murdering Eric Hartung by beating him with a hatchet
and then suffocating him with a plastic bag. Investigators say the killing took
place in Hominy and Horton, along with 2 others, wrapped the body in a rug and
disposed it along rural Prue Road. The residence where the murder took place
was occupied by Horton's mother, Helena Christina Jones, and her boyfriend,
Tillman Caudy Wells. Those 2 also have been charged with 1st-degree murder and
will be arraigned next week. They all were bound over for trial last month.
The Osage County District Attorney filed a bill of particulars on July 26, the
day after the preliminary hearting, noting his intent to seek the death penalty
in Horton's case. That has to be filed before arraignment, so DA Rex Duncan has
time to do the same for Jones and/or Wells if evidence supports it. For now,
the couple could face life in prison with or without the possibility of parole.
Crocket Beckham, of Marshall, led authorities to Hartung's body on Prue Road
days after the murder. Beckham was arrested on murder suspicions, but later
released and not charged after becoming an informant. The state says Crocket
was an "unwilling" participant in the killing and was forced by Horton to
comply with his orders to clean up the murder scene and help dump the body.
(source: the clevelandamerican.com)
MISSOURI----impending execution
Marcellus Williams Faces Execution Despite Doubts about Conviction
The state of Missouri is scheduled to execute Marcellus Williams on August 22
despite a lack of solid evidence used to secure his conviction and a new report
from a DNA expert that his lawyers argue supports his claim to innocence.
"The death penalty is abhorrent in any circumstance, and as we have seen time
and time again, the capital justice system is capable of error," said Zeke
Johnson, senior director of programs at Amnesty International USA. "The state
of Missouri must not allow this execution to go forward, and must commute the
sentences of all of those on death row. There is no acceptable way for the
state to kill its prisoners."
Williams was convicted of the 1998 murder of former St. Louis reporter Felicia
Gayle by a jury consisting of 11 white jurors and 1 black juror. Williams is
black and Gayle was white. There was no forensic evidence or eyewitness
testimony linking him to the crime. The jury was not presented evidence of
Williams' background, which included severe abuse and mental disability.
2 experts retained by the appeal lawyers have concluded that DNA testing
conducted in December 2016 on the murder weapon excludes Williams as the
contributor of the male DNA found on the knife. The lawyers have just filed the
latest expert report they have obtained on this with the Missouri Supreme Court
in a bid to obtain a stay of execution.
(source: Amnesty International USA)
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