Aug. 6
PENNSYLVANIA:
District Attorney seeks death penalty against DJ in 1992 killing of school
teacher
The Lancaster County District Attorney plans to seek the death penalty against
the Pennsylvania man charged in connection with the 1992 sexual assault and
strangulation of an elementary school teacher, according to reports from
LancasterOnline.
Raymond Rowe, 49, is facing charges of criminal homicide, 4 counts of rape, 2
counts of involuntary deviate sexual intercourse and burglary for the death of
25-year-old Christy Mirack.
The charges come decades after she was killed, but police were unable to
identify Rowe as a suspect until they uncovered genealogical data.
Now, prosecutors are pursuing the death penalty against Rowe, who is a
professional DJ known as "DJ Freez."
(source: York Daily Record)
OHIO:
Kirkland sentencing will wrap up today
After 2 weeks of testimony, convicted serial killer Anthony Kirkland's
sentencing is expected to wrap up Monday with closing arguments.
Jurors will be sequestered while they consider whether to recommend the death
penalty for Kirkland, 49, for the deaths of Casonya Crawford, 14, in 2006 and
Esme Kenney, 13, in 2009.
He strangled and burned the victims.
The Ohio Supreme Court overturned a death sentence last year that had been
imposed for the murders. Hamilton County Prosecutor Joe Deters is seeking it
again.
On Friday, on Kirkland stood at his sentencing hearing and in a calm and steady
voice, asked jurors to spare his life.
Though, he said, he'd understand if they recommended the death penalty for
strangling, burning and dumping the bodies of the 2 teenage girls.
"It has been stated that I am evil; it has been stated I am a monster," he
said. "I cannot offer any justifiable response. I am not looking for
absolution. Eventually, I will answer to a higher authority. I do not blame you
if you kill me. I do not deserve to live. Please spare my life."
Kirkland killed 2 women and 2 teenage girls - Casonya; Mary Jo Newton, 45;
Kimya Rolison, 25 and Esme - between 2006 and 2009. Those 4 deaths came after
Kirkland served a 16-year prison sentence for killing Leona Douglas, 28, in
1989.
In each case, Kirkland strangled or stabbed his victims, burned the bodies and
fled. He was caught after Esme's death and confessed.
Kirkland is serving a life prison term for the deaths of Newton and Rolison.
Kirkland's defense team presented a case that showed Kirkland suffers from
post-traumatic stress disorder brought on by a childhood of mental, physical
and sexual abuse. At times, a clinical psychologist testified, Kirkland didn't
know what he was doing.
The victims, she said, triggered anger and he couldn't help himself.
(source: cincinnati.com)
TENNESSEE:
"Our Most Cruel Experiment Yet"----Chilling Testimony in a Tennessee Trial
Exposes Lethal Injection as Court-Sanctioned Torture
Julie Hall smiled on the witness stand as she recalled a memory of her old
client Joseph Wood. He had spent most of the last 2 decades living in solitary
confinement, with his recreation confined to a cage, when the Arizona
Department of Corrections began to loosen some restrictions over people on
death row. A basketball court was built outside his unit on the sprawling
desert prison complex in Florence, about an hour south of Phoenix. At 55, Wood
was relatively healthy - "he loved going out and playing," Hall said. A prison
sergeant even played a round of basketball with Wood, which meant a lot. "He
felt like he was being treated like he was human for the 1st time in a long
time."
Hall's smile disappeared when she described the day Wood died. It was July 23,
2014. His execution was scheduled for 10 a.m. Hall arrived at the prison that
morning at 6:45, then waited almost an hour to see him. When the Arizona
Supreme Court granted a temporary stay of execution, Hall told him the good
news. Wood was prepared to die, she told the court; ever since he committed the
murders that sent him to death row, he had felt he did not deserve to live.
Still, "he wanted someone to listen to us when we said that this was an
experimental method of execution."
Wood was the 1st to face a new form of lethal injection in Arizona that used a
combination of the opioid hydromorphone and the sedative midazolam. The latter
had raised controversy over its use in executions. Florida first tried it in
2013 to kill a man named William Happ "in what seemed like a labored process,"
according to one media witness. Happ "remained conscious longer and made more
body movements after losing consciousness" than people executed under the old
formula, according to another report. The Florida Department of Correction,
which refused to say how it chose the drug, dismissed the concerns - and soon
other states were trying out midazolam. In January 2014, Ohio used it to
execute Dennis McGuire. Witnesses described how he struggled and gasped,
clenching his fists and striving to breath. A few months later, in April 2014,
Oklahoma used midazolam to kill Clayton Lockett in one of the most notorious
botched executions in recent memory.
But Arizona stuck to the plan. By noon that day, Wood's stay of execution had
been lifted. Prison staff provided Hall with a pencil and paper and led her to
the witness chamber. No phones were allowed. Once inside, she was told, she
would be forbidden from leaving the room. Hall watched as a pair of TV monitors
were turned on above the closed curtains. "That's where we could view the
insertion of the IV lines," she explained. Hall was surprised at the amount of
blood she saw - some of it dripped onto the floor. With the IVs eventually
placed, the monitors went dark. The curtains opened. Wood lay strapped to the
gurney, thick straps over his arms and a white sheet covering his legs.
After 20 minutes and 134 gasps, she stopped counting.
At 1:52 p.m., a voice came over the loudspeaker. The lethal injection was about
to start.
After 5 minutes, with the 1st dose of midazolam presumably administered, a man
entered to conduct a consciousness check on Wood. The voice came back to
announce he was sedated. But 3 minutes later, Hall said, "I saw a quiver in his
cheek, which surprised me a little." She didn't know whether it was normal or
not. It was 2 minutes after that when she saw Wood gasp for air. Then he did it
again. And again.
"He just kept gasping," Hall said. She began counting the gasps on her notepad.
After 20 minutes and 134 gasps, she stopped counting. "I just didn't know what
the point was anymore." Hall struggled to describe what it looked like. It
reminded her of a fish that was dying after being pulled from the water - "that
opening of the mouth; trying to get air and just not getting it."
At 2:50 p.m., Dale Baich, supervising attorney of the Arizona Federal Public
Defender's Capital Habeas Unit, who was seated behind Hall, passed her a note.
"Go now," it said, instructing her to call their colleagues in Phoenix. Hall
hurried out of the witness room and asked a guard if she could use his phone.
He refused, then escorted her outside of the death house, through a maze of
sally ports and checkpoints, and finally, out to the administration building.
It took nine minutes. Only then was Hall able to make a call, to tell someone
that "something was going very, very wrong and it looked like Mr. Wood was
suffering."
Hall was still on the phone when Wood was finally declared dead at 3:53 p.m.
The next day, media witness Michael Kiefer published his own account of Wood's
struggle to breathe. Over the 2-hour execution, he reported, Wood gasped more
than 640 times.
Hall told her story in fits and starts, answering questions in a courtroom in
Nashville, Tennessee. It was July 9, 2018, day one of Abu Ali Abdur'Rahman v.
Tony Parker, a trial over Tennessee's lethal injection protocol. Parker is the
head of the Tennessee Department of Correction, or TDOC. The named plaintiff is
1 of 33 men facing execution under a new formula that includes midazolam. 3
have been scheduled to die by the end of the year. 1 of them, Billy Ray Irick,
is set for execution on August 9.
Hall was 1 of more than 20 witnesses called by the plaintiffs, including some
dozen defense attorneys who had witnessed their clients' executions. They
dramatized what lawyers argued in their trial brief: that Tennessee's new
protocol violates the Eighth Amendment ban on cruel and unusual punishment.
First issued in January, it called for the injection of 3 drugs: midazolam,
followed by a paralytic called vecuronium bromide, and culminating with
potassium chloride to stop the heart. With midazolam chosen to provide
anesthesia, the attorneys argued it was not only possible but very likely their
clients would suffer. What's more, they said, the protocol prevents defense
attorneys from having access to a phone during the execution, in violation of
their clients' constitutional rights.
The inescapable conclusion was that states have almost certainly been torturing
people to death in their execution chambers.
The witnesses described executions in Alabama, Arizona, Arkansas, Ohio,
Virginia, Florida, and Oklahoma. Many had never spoken publicly. Their accounts
ranged from subtle but unusual movement on the gurney to gasping, lurching, and
clenching of fists. They were bolstered by leading medical experts who
explained the scientific reasons why midazolam was inadequate to provide
anesthesia.
One pathologist presented evidence that had never been shown in court. He had
reviewed 27 autopsy reports out of the 32 total executions carried out using
midazolam. In most of the cases, he found signs of pulmonary edema - fluid in
the lungs that indicated the men had been in respiratory distress. The
inescapable conclusion was that states have almost certainly been torturing
people to death in their execution chambers - and that Tennessee might be ready
to do the same.
After weeks of testimony, a ruling came quickly, on July 26. It sided with the
state. In her order upholding Tennessee's lethal injection protocol, Davidson
County Chancellor Ellen Hobbs Lyle wrote that the plaintiffs had failed to
prove their case, while acknowledging that the use of midazolam might leave
them vulnerable to pain during their execution. The U.S. Supreme Court was
"aware of the risk of midazolam," she wrote, and upheld it anyway in Glossip v.
Gross. Though "dreadful and grim, it is the law that while surgeries should be
pain-free, there is no constitutional requirement for that with executions."
For anyone who has followed the legal evolution of lethal injection, Lyle's
ruling was not a surprise. The decision ultimately turned not on midazolam, but
on a different provision of Glossip. Under the ruling, the plaintiffs had to
prove not only that Tennessee's protocol was cruel and unusual, but that there
was a viable alternative. In her dissent in Glossip, Supreme Court Justice
Sonia Sotomayor decried this "surreal requirement," one that puts attorneys in
the perverse position of identifying methods that should be used to kill their
clients. Though Lyle conceded that this law "seems odd," the requirement was
clear. "That proof has not been provided in this case."
Decisions in chancery court have limited sway. Under Tennessee's Declaratory
Judgment Act, Lyle's ruling amounts to a "declaration" - an opinion that can
only be weaponized by bringing it to a different forum. Most lethal injection
challenges are brought before federal courts that have the power to stop
executions. Lyle did not. In bringing the lawsuit in chancery court, Federal
Public Defender Kelley Henry hoped to win a ruling that could influence the
state Supreme Court or governor to intervene.
Yet the order belies the significance of the trial itself. As Henry said in her
closing argument on July 24, it was the 1st time a 3-drug protocol using
midazolam had been the subject of a "real trial." Until now, most hearings on
midazolam were on whether to grant a preliminary injunction to stop a looming
execution. Such hearings are rushed by their nature - witnesses often appear by
Skype. This was not the case in Nashville. Though the trial moved quickly, the
testimony was extensive and nuanced, providing a much fuller picture of the
science behind the drugs used in lethal injection. Lyle was deliberate and
measured - and cautious not to allow witnesses to testify beyond their
expertise.
The questionable analysis of expert witnesses has had major consequences where
lethal injection is concerned. At the preliminary injunction hearing that paved
the way for Glossip, Alabama-based pharmacist Dr. Roswell Lee Evans peddled
opinions divorced from scientific reality. Among his claims was that 500
milligrams of midazolam - the same dose as in the Tennessee protocol - would
render someone unconscious to the point that they would not feel pain.
Anesthesiologists adamantly disagreed. In an amicus brief to the Supreme Court,
16 professors of pharmacology cited the "overwhelming scientific consensus"
that midazolam was incapable of inducing the "deep comalike unconsciousness"
called for in lethal injection. On the eve of oral arguments in Glossip, the
case was embroiled in controversy over the revelation that Evans had relied on
sources like the website Drugs.com.
"Those states that have experimented with this drug have seen firsthand that it
is a failure."
There is "no debate around midazolam," anesthesiologist Dr. David Lubarsky told
the court in Nashville. Among such experts, Evans has no credibility. But among
prosecutors intent on carrying out executions, Evans remains a useful and
willing witness, "recognized by numerous state and federal courts," as Deputy
Attorney General Scott Sutherland told the court. If anyone lacked credibility,
he suggested, it was the "highly biased" defense attorneys who watched their
clients' executions, he said, quoting a 6th Circuit ruling over Ohio's lethal
injection protocol. As a more authoritative source, Sutherland offered the
official department of correction records from 19 executions carried out using
midazolam in Arkansas, Florida, and Ohio. Many of them were described as
problematic, but these records showed everything had gone fine, he said.
Yet states have already begun shifting away from midazolam. After a drawn-out
legal battle following Wood's death, Arizona agreed in 2016 to "never again use
midazolam, or any other benzodiazepine" for lethal injection. "Those states
that have experimented with this drug have seen firsthand that it is a
failure," Henry said. If Tennessee learns this lesson the hard way on August 9,
it will not be for lack of warning. The trial in Nashville was a case study in
Glossip's twisted legacy - and a chilling look at the botched executions that
continue amid little national controversy. If the death penalty is making a
mockery of the Eighth Amendment, it is at least because not enough people are
paying attention. In the words of the Supreme Court, "It is difficult to regard
a practice as 'objectively intolerable' when it is in fact widely tolerated."
Davidson County Chancery Court is located inside Nashville's Metropolitan
Courthouse, steps from where the Cumberland River cuts through town. The
historic art deco building is anchored by Public Square Park, home to
festivals, concerts, and the occasional protest. A few days a week over the
course of the lethal injection trial, food trucks lined the southwest corner,
where the Nashville Downtown Partnership hosted something called "Adult
Recess": whimsical lawn games like oversized checkers.
In her opening statement on the morning of July 9, Henry acknowledged the
strange task at hand. "When we talk over and over and over again about ways in
which to inject our clients with chemicals, it can become numbing," she said.
But the state has chosen a method of execution that is akin to being burned
alive, she said. It's easy to dismiss such descriptions - "Oh, those are just
the words of those anti-death penalty people. That's not real." But, she went
on, "the medical proof will show those words are not hyperbole."
Henry was accompanied by 8 other lawyers representing men on death row. Several
of the cases date back decades, to an era when the execution chamber lay
dormant in Tennessee. Henry arrived in Nashville in 2000, one month before the
state carried out its 1st execution in 40 years. 6 have been carried out since.
In the meantime, like many death penalty states, Tennessee has changed its
protocol repeatedly and haphazardly.
It wasn't always that way. When the U.S. Supreme Court took up the precursor to
Glossip - Baze v. Rees - many assumed that the questions over lethal injection
would soon be settled. In its 2008 ruling, the court upheld a prevailing 3-drug
protocol that had been in use for decades. But the decision was followed by an
unexpected sea change in lethal injection, which would throw the death penalty
into chaos. The drug at the center of the ruling, sodium thiopental, became
suddenly unavailable after its sole U.S. manufacturer stopped making it. As
states sought new sources, many began altering their protocols, adopting new
drugs based on what was obtainable and not necessarily what was most likely to
work. After Glossip came down in 2015, midazolam became the new go-to
replacement for sodium thiopental.
Speaking before the court, Henry explained why this was such a serious mistake.
In Baze, the Supreme Court acknowledged that the 3-drug formula relied on an
efficacious dose of sodium thiopental. Without it, the 2nd and 3rd drugs would
cause extreme suffering, Chief Justice John Roberts wrote, making an execution
"constitutionally intolerable." Although the plaintiffs in Baze had argued
there was too much room for error, the drug itself was at least designed to
provide anesthesia. Midazolam was not. "Sodium thiopental is a barbiturate,"
Henry explained. "It is a completely different class of drug than midazolam."
Henry pushed back against the state's argument that the true effects of large
quantities of midazolam are unknown since there have been no "human
experiments" to collect data. "Unfortunately, we do have human experiments,"
she said. "We have 32 human experiments. Men who were executed using a protocol
that involves midazolam."
Sutherland began by invoking the gruesome crimes for which the plaintiffs had
been convicted. "These facts provide context for this court as to why we are
here," he said.
With a low voice that was sometimes hard to hear, Sutherland wore a look of
mild irritation - and the slightly casual air of a man who knows the law is on
his side. He quoted Justice Samuel Alito's reasoning in Glossip: "Capital
punishment in this country is constitutional, and it follows, necessarily, that
there must be a constitutional means of carrying it out." The Constitution does
not require a painless execution, Sutherland went on. It only prohibits the
deliberate infliction of torture, such as disembowelment or being burned alive.
What's more, "in the history of its existence," the court "has never
invalidated a state's chosen method of execution as cruel and unusual
punishment." As for midazolam, there was nothing new to discuss.
Sutherland seized on the main problem with the plaintiffs' lawsuit. They argued
in favor of a 1-drug protocol using the barbiturate pentobarbital, a formula
used by states like Texas. But they showed no proof that pentobarbital was
available, he said. Instead, they argued that TDOC never made an effort to
procure it. This was not true, Sutherland said, but regardless, "it's not our
burden to prove that it's unavailable." The plaintiffs had to prove that it
was.
Sutherland echoed the late Antonin Scalia's complaint during oral arguments in
Glossip, blaming anti-death penalty activists for the drug shortage. There was
truth to his claim - the human rights group Reprieve has waged a successful
campaign over the past decade to convince drug companies to block the use of
their products for execution. But the specter of overzealous anti-death penalty
activists has also proven useful to states - a way to justify heightened
secrecy around the procurement of execution drugs. Throughout the trial, the
identities of the state's supplier and drug procurer were kept secret.
For all the blame heaped on activists and capital defense attorneys, the trial
would reveal the recklessness and repeated mistakes shown by the state in its
relatively short history with lethal injection. Henry called it a "timeline of
indifference."
Tennessee first adopted lethal injection in 1998. With the state's execution
machinery about to restart, lawmakers were concerned that the U.S. Supreme
Court would strike down the electric chair on Eighth Amendment grounds. They
proposed new legislation to get with the times, while making clear that they
weren't trying to make things easier for the condemned. "We should draw and
quarter those suckers who commit these heinous crimes, but that ain't
constitutional," then-Rep. Chris Newton, the bill's House sponsor, said at the
time.
To design a lethal injection protocol, TDOC put together a committee of prison
officials to look at other states' methods. Ricky Bell, then-warden of
Riverbend Maximum Security Institution, where executions take place, went to
Texas to see a lethal injection firsthand. The result was the same formula used
across the country: a 3-drug cocktail, beginning with a fast-acting
barbiturate, sodium thiopental, to provide anesthesia. This was followed by
pancuronium bromide, a paralytic drug that froze the muscles used for
respiration. Lastly, potassium chloride would stop the heart.
"It gave me the creeps. It is a classic sign of an anesthetized patient being
awake."
The 3-drug formula was never particularly scientific. Invented by an Oklahoma
medical examiner in 1977, the method was simply replicated from state to state.
Decisions on doses were left to prison officials; in Texas, which 1st carried
out lethal injection, the gurney was chosen to make it look antiseptic, like a
medical procedure.
The 1st person killed by lethal injection in Tennessee was Robert Glen Coe in
2000. Media coverage was heavy, yet there was relatively little detail
describing his death. A witness for the Associated Press reported that he
briefly "convulsed and coughed," then lay still, but no one seemed concerned
that anything had gone wrong. Under Tennessee law at the time, Coe's defense
attorneys were not allowed to attend.
It was not long before questions began to be raised, however. In 2002, Abu Ali
Abdur'Rahman challenged the state's execution protocol in chancery court. At
the heart of the lawsuit was the second drug in the protocol, the paralytic
pancuronium bromide, marketed under the name Pavulon. At an evidentiary hearing
in 2003, 1 month before Abdur'Rahman's scheduled execution, his lawyers called
Dr. Mark Heath, a professor of anesthesiology at Columbia University. Heath
said he had begun studying lethal injection after the execution of Timothy
McVeigh in 2001. The Oklahoma City bomber died with his eyes open, according to
witnesses, some of whom described a tear welling up in his eye. "It gave me the
creeps," Heath would later tell reporter Bruce Shapiro. "It is a classic sign
of an anesthetized patient being awake."
On the stand in 2003, Heath explained that if the 1st drug in the protocol,
sodium thiopental, was not adequately administered, the pancuronium bromide
would cause suffocation while creating a "chemical mask," concealing any
evidence of the excruciating burning pain that would result from the injection
of the 3rd drug, potassium chloride. Lawyers called a woman named Carol
Weihrer, who described her terror during eye surgery in 1998, when she woke up
while under the effect of pancuronium bromide and was paralyzed, unable to
alert her doctors.
Presiding over the 2003 hearing was Ellen Hobbs Lyle, the same judge who handed
down the ruling last month. On June 1, 2003, Hobbs sided with the state,
concluding that lawyers for the condemned had failed to prove that Tennessee's
protocol was unconstitutional. But she was critical of the lack of research
behind the protocol - and particularly pointed in criticizing Pavulon, "a drug
outlawed in Tennessee for euthanasia of pets." It served no purpose except to
give "a false impression of serenity to viewers, making punishment by death
more palatable," she wrote. And if the anesthetic failed to work, she warned,
the paralytic would hide the "excruciatingly painful ordeal of death by lethal
injection."
By the time Tennessee carried out its next execution, killing Philip Workman in
2007, evidence had come to light to confirm what Heath had feared. The Lancet,
a prestigious medical journal, had published findings from a review of 49
executions across 4 states, showing evidence that many of the condemned had not
been adequately anesthetized. Toxicology reports showed that concentrations of
sodium thiopental in the blood of 43 of the men "were lower than that required
for surgery," while 21 had "concentrations consistent with awareness." 1 of the
co-authors of the study, Dr. David Lubarsky, later reviewed the autopsy report
for Coe; in a front-page story in May 2006, The Tennessean summed up his
conclusion: Coe was "probably awake and suffering silently."
Later that year, a Florida man named Angel Nieves Diaz died in a harrowing
execution after IV lines sent drugs into his tissue rather than his veins. The
following February, then-Tennessee Gov. Phil Bredesen halted 4 scheduled
executions. A botched execution was "a governor's nightmare," he said. "How do
you know that's not going to happen here?"
Bredesen announced a 90-day moratorium and the formation of a 5-member
commission to revise Tennessee's lethal injection protocol. The current
execution manual was a "cut-and-paste job," he said. An AP report revealed how
its "minute-by-minute guidelines for lethal injection" included rules clearly
written to apply to electrocutions, for example, the directive that staffers
shave the head of the condemned, as well as the need to keep a fire
extinguisher on hand.
The commission, made up of TDOC employees, proved to be little more than
political theater, however. In April 2007, TDOC released its new protocol.
Although it now included instructions on doses, it preserved the 3-drug
formula, including the paralytic. At 1 a.m. on May 9, Workman died by lethal
injection at Riverbend. "As a media witness at last night's execution, I can
say it's true Workman showed no obvious signs of pain," Nashville Scene
reporter Sarah Kelly wrote. "But even if he was in agony, he wouldn't have been
able to move." A few months later, Tennessee carried out a 3rd execution - that
of Daryl Holton. Given the choice between the gurney and the electric chair, he
chose electrocution.
In September 2007, while the Supreme Court prepared to consider the writ of
certiorari in Baze v. Rees, a U.S. District Court held a hearing on Tennessee's
revised protocol. The 4-day proceeding was "filled with absurdities," according
to the Nashville Scene. Testimony revealed that TDOC Commissioner George Little
had actually rejected the advice of Bredesen's commission, which had
recommended a single dose of a barbiturate to replace the 3-drug formula. On
September 20, 2007, U.S. District Judge Aleta Trauger declared the protocol
unconstitutional.
Just 5 days later, the U.S. Supreme Court granted certiorari in Baze v. Rees.
It would be the 1st time the court would consider the 3-drug method used for
executions across the country. In April 2008, the justices upheld the protocol,
7 to 2. In light of Baze, Trauger vacated her previous decision.
It was not long afterward that states stopped being able to find sodium
thiopental. Some sought new dubious sources, while others tinkered with their
protocols. But there was a silver lining to the chaos. As they considered new
methods, states began drifting away from the traditional 3-drug formula,
eliminating the paralytic from many protocols. In 2013, after a supply of
sodium thiopental was seized by the Drug Enforcement Administration, Tennessee
did what the commission had suggested years before, adopting a 1-drug protocol
using pentobarbital. But after Glossip in 2015, states started going back to a
3-drug protocol, mimicking the old formula with something that was actually far
more dangerous. Like many states, Tennessee is relying on an anonymous,
unregulated compounding pharmacy for its supply of midazolam. As far as the
paralytic, 15 years after Lyle first warned about its dangers, Tennessee has
gone full circle.
On Friday, July 13, Riverbend Warden Tony Mays took the stand. After nearly a
week of testimony about botched executions, it was a chance for the state to
show that the situation would be in good hands. It didn't. Mays, named warden
in 2017, seemed alarmingly ill-informed, unfamiliar with various details of the
protocol and unable to answer what, if anything, he would do if problems arose.
Some of this was no fault of his own. With no warning to the plaintiffs, the
state had issued a revised protocol on July 5, just days before the trial was
about to start. Henry called it a "cynical ploy to gain litigation advantage."
But it also created confusion for Mays, who was tasked with training his
subordinates to carry out executions.
The next witness was the official who ultimately has to answer for such
concerns: TDOC Commissioner Tony Parker. A lifelong employee of the state's
prison system, Parker was named commissioner in 2016. The position made him
responsible for selecting the state's lethal injection protocol. Presumably,
Henry asked, this meant that he would want to know what other courts and
officials had said about previous versions of Tennessee's lethal injection,
correct? "I think I'd consider all the comments if I felt they were relevant,"
Parker said.
Henry walked Parker through some of the state's lethal injection milestones.
Had he considered Lyle's concerns over Pavulon back in 2003? Parker said he did
not know what Pavulon was. Henry showed him portions of the ruling, which
established Pavulon as the paralytic agent. Parker said he had never seen the
decision before. "I guess it would be more important to me if we were using
Pavulon," he said. "But we're not." Would it be relevant if Pavulon was
indistinguishable from the paralytic used in the protocol he chose? Henry asked
as patiently as possible. "I would have to talk to a medical professional,"
Parker said. "I don't know any of that." Henry asked Parker if he knew the
difference between sodium thiopental and midazolam. No, he said.
Parker's testimony was galling. But it was not entirely surprising. Parker had
largely delegated his duties to his general counsel, Deputy Commissioner Debra
Inglis, a veteran TDOC employee who was intimately acquainted with the state's
lethal injection history. She was a member of Bredesen's 2007 commission that
overhauled the execution manual. "Did Miss Inglis share with you that the
committee's recommendation at the time was to abandon the 3-drug protocol in
favor of a 1-drug protocol?" Henry asked Parker. "We never had that particular
conversation," he said.
The email showed that the state had been warned by the source about the dangers
of midazolam in the fall of 2017.
Inglis was the last state official to take the stand. Over more than 2 hours of
testimony, she reiterated that Parker was the man in charge of selecting a
lethal injection protocol. As for the move to adopt midazolam, she said, "it
was his sole decision."
Questioning Inglis, criminal defense attorney Kathleen Morris asked about an
email that had raised controversy earlier this year. Written by an anonymous
entity referred to as Source B, who had been tasked with procuring drugs for
executions by TDOC, it was revealed by the Nashville Scene through an open
records request. The email showed that the state had been warned by the source
about the dangers of midazolam in the fall of 2017. "Here is my concern with
Midazolam," Source B wrote. "Being a benzodiazepine, it does not elicit strong
analgesic effects. The subjects may be able to feel pain from the
administration of the 2nd and 3rd drugs. Potassium chloride, especially." Not
necessarily a "huge concern," the author added, but it could "open the door to
some scrutiny on your end."
Morris asked Inglis if she had discussed the email with Parker. He was made
aware of it, she said. But they did not discuss it.
If such warnings were not enough to convince Tennessee to reconsider its search
for midazolam in 2017, the drug had attracted plenty of scrutiny that year. In
Arkansas, Gov. Asa Hutchinson had announced a plan to carry out 8 executions
over the course of 11 days that April. The reason for the rush: The state's
supply of midazolam was scheduled to expire at the end of the month.
Like Tennessee, Arkansas had not carried out an execution in years. It had
never used midazolam. The planned execution spree threw attorneys into
disarray. Only 4 executions ultimately went forward. Although there were some
signs of trouble in the first 3, no one reported any dramatic scenes. But in
the final execution, on April 27, Kenneth Williams died a disturbing death.
Media witnesses at the prison described how Williams had lurched and gasped. A
spokesperson for the governor immediately dismissed the movement as
"involuntary."
He heard moaning, then "choking and coughing and heaving." The sounds were loud
enough to hear through the wall.
Among the witnesses that night was Eric Patrick Motylinski, a Rhode Island
attorney appointed to represent Williams. Taking the stand in Nashville,
Motylinski described what he saw.
At 10:52 p.m., after giving his last statement, Williams began speaking in
tongues, continuing after an announcement had been made that the lethal
injection was about to begin. "His words kind of became slow and halting and
they eventually stopped," Motylinski said. But then "I saw his chest kind of
pumping and I could see his head kind of moving back and forth." He also
appeared to be clenching his jaw. At 10:55 p.m., Motylinski heard moaning, then
"choking and coughing and heaving." The audio to the witness chamber had been
turned off, but the sounds were loud enough to hear through the wall. Williams
began to convulse, Motylinski said. "He was rising up from the gurney
repeatedly, rhythmically, and finally kind of hitting up against the straps."
At 10:57 p.m., Motylinski decided to leave the witness chamber. The prison had
agreed to allow him access to a phone. When he re-entered, Williams was lying
still. He was declared dead at 11:05.
Motylinski's testimony was disturbing. But it was also instructive. Despite
being unable to stop the apparent suffering of his client, he had been able to
take action on his behalf relatively quickly. This was precisely what Tennessee
denied attorneys in its protocol, Henry argued. In a deposition, Parker had
suggested it might be possible to accommodate lawyers' requests for a phone to
be available if needed. But Inglis did not support this. An attorney could go
get their phone from their car.
Even when a state ostensibly allows for such safeguards, they are no guarantee.
When Ohio defense attorney Carol Wright witnessed the 2017 execution of her
client Gary Otte, who violently struggled on the gurney, she tried to leave the
room only to be stopped by prison staff. "They blocked the door," she
testified. "They said, 'Sit down.'" After she saw tears coming down Otte's
face, she went to the door again. "And I said, 'Dear Lord.'" Only then was she
given permission to leave and call a fellow federal defender, who phoned a
federal court. Wright "is reporting that there were signs that Mr. Otte was
conscious, crying, clenching of the hands, heaving at the stomach," the
colleague told a federal judge, according to a transcript. But the judge
declined to intervene. In a ruling 5 days later, he concluded that the
description was not enough to show that Otte "was experiencing
unconstitutionally severe pain."
Like all things involving prison, the witnesses' testimony revealed how
arbitrary the different rules can be from state to state. In Alabama, lawyers
were not even allowed to have writing materials during executions. Defense
attorney Spencer Hahn described how he kept mental track of the duration of
Ronald Bert Smith Jr.'s heaving and coughing during his 2017 execution by
recording the start time in his mind and counting the minutes and seconds on
his hands.
The point, of course, is to control the narrative. When Motylinski was shown an
internal affairs report from Williams's execution in Arkansas, he said the
notes "substantially minimize what I saw." There was no mention of the coughing
or clenching of his jaw. It did not capture the violence of his convulsions,
the way he hit against the straps. The state's official report was "sanitized
almost to the point of being unrecognizable."
Cross-examining Motylinski, Sutherland asked only one question: Was that the
1st execution he had ever witnessed? Yes, Motylinski said. But other defense
attorneys were asked a range of questions that were meant to show bias. Wasn't
it true, Sutherland asked Dale Baich, that he once received an award from the
abolitionist group Death Penalty Focus? Wasn't it true, Assistant Attorney
General Rob Mitchell asked Julie Hall after her testimony about Wood's
execution, that she exclusively represented clients in death penalty cases?
Cross-examining Assistant Federal Defender Leslie Smith, Assistant Attorney
General Charlotte Davis asked how long she had represented her client before
seeing him struggle on the gurney in Alabama. 14 or 15 years, Smith answered.
Was she close to him? "Yes," Smith said. "He was my client and I cared about
him."
On July 16, the plaintiffs called Dr. Mark Edgar, a diagnostic pathologist at
Emory University. Edgar had reviewed all the available autopsies of people
executed using midazolam across the country. Conducted by the local medical
examiners in the counties where the men were executed, the documents ranged in
their level of detail. Some states, like Ohio, don't conduct autopsies after
executions at all.
But Edgar found some details that jumped out. "I was struck by the abnormality
in the lungs," Edgar said. "All of the lungs were heavy with fluid." An average
lung, he explained, would weigh about 350 to 400 grams. But the autopsies he
studied showed lungs more than double that weight. What's more, most of the
lungs showed signs of pulmonary edema - "evidenced by bubbles, froth and foam
both in the lung tissue and in the larger airways."
Edgar had created a chart to compile his findings. He underlined the parts that
indicated proof of pulmonary edema. In total, 23 of the 27 autopsy reports.
Among them were the autopsies of Joseph Wood and Kenneth Williams. Wood's right
lung weighed 980 grams, his left weighed 945. There were "marked amounts of
blood and frothy fluid" indicating "acute pulmonary edema," Edgar said.
"As it gets even worse, they may have a sense of terror, panic, drowning,
asphyxiation."
Assistant Federal Public Defender Amy Harwell asked Edgar to explain the
symptoms of pulmonary edema. "When it begins, the patients are short of breath.
They feel like they can't catch their breath and they breathe a little bit
faster," he said. "As it gets worse, they may have a sense of air hunger and be
gasping for air. As it gets even worse, they may have a sense of terror, panic,
drowning, asphyxiation. It's a medical emergency and a stage of extreme
discomfort." In a hospital setting, he explained, a patient would be given
diuretics to remove fluid from the lungs. "Because they're in such a state of
panic," they would also be given morphine, he added.
Edgar's testimony was supported by a renowned pharmacologist, Dr. David
Greenblatt, the longtime head of the department of pharmacology and
therapeutics at the Tufts University School of Medicine. Greenblatt was not
only an expert in midazolam, he was responsible for some of the earliest
studies of the drug, which were used by the Food and Drug Administration in its
approval for clinical practice. Greenblatt explained why pulmonary edema might
result from a large dose of midazolam. To be injected, midazolam has to be
mixed with hydrochloric acid, which makes it water soluble. Once injected, it
would go first to the heart and then to the lungs, whose capillary circulation
is dependent on "a very thin and delicate membrane' that is "very sensitive to
acid." A dose of 500 milligrams of midazolam would be destructive to the
membrane, he explained, making it leaky. "So the lungs acquire fluid ... and
that makes air exchange difficult if not impossible."
The testimony from Edgar and Greenblatt added a disturbing new dimension to the
more widely known features of midazolam. Dr. David Lubarsky, the respected
co-author of the 2005 Lancet study, said it was fine for sedating a patient -
he called it "a martini in a syringe." But midazolam has no analgesic effects
on its own. When it is used in minor surgical procedures, like colonoscopies,
it is paired with an opioid. What's more, it is limited by what is often
described as a ceiling effect, a widely accepted property among
benzodiazepines. Even at extremely high doses, their effects eventually
plateau. The 500 milligrams of midazolam called for by Tennessee will not make
a difference. Dr. Craig Stevens, a neuropharmacologist, compared it to taking a
bottle of aspirin to treat an amputated leg. Lubarsky said it was "like
throwing a glass of water into the ocean."
Midazolam is therefore useless in the face of "noxious stimuli," the experts
explained, especially something as severe as the injection of drugs like
vecuronium bromide or potassium chloride. The former is "formulated in an
acidic solution," Greenblatt testified, which made it "painful going in." If
one is conscious as it takes effect, "basically you're suffocating. You want to
breathe but you can't, because you can't use your muscles." The potassium
chloride was also "extremely painful when injected," Greenblatt said. When
patients receive it as part of a medical procedure, "you have to dilute it
tremendously and also give it very slowly."
The expert testimony illuminated why the petitioners in Glossip called lethal
injection using midazolam "the chemical equivalent of being burned alive," as
Sotomayor wrote in her dissent. As the Supreme Court has rejected further
challenges to lethal injection, she has continued to speak out. "What cruel
irony," she wrote last year, "that the method that appears most humane may turn
out to be our most cruel experiment yet."
Cross-examining the experts, Sutherland asked if they knew of any potential
sources of pentobarbital for lethal injection. Not surprisingly, they said no.
Surely they had professional contacts who might, Sutherland said. But the point
was not to impeach their expertise. It was to show that the plaintiffs had not
sought alternative sources to midazolam as required by Glossip.
The questioning became tense at times. Sutherland proved particularly
irritating to Greenblatt. Much of his cross-examination was devoted to a
tedious review of official records and timelines from executions in Florida,
Arkansas, and Ohio, portions of which Sutherland asked him to read aloud. In
Florida, beginning with William Happ, the 1st man executed with midazolam -
whose death was described by witnesses as "labored" and prolonged - the records
repeatedly showed "no unusual occurrences or problems," Greenblatt read again
and again.
On July 18, Roswell Lee Evans, the expert who helped pave the way for Glossip,
took the stand for the state. With white hair and a white beard, he struck an
affable tone. "My occupation at the moment is that I'm retired," Evans said.
"Previously I was a dean and professor at Auburn University School of Pharmacy
in Auburn, Alabama." Sutherland went through his curriculum vitae. He got his
pharmacist's license in Georgia in 1971, then a Ph.D. at the University of
Tennessee College of Pharmacy in Memphis, where he became interested in
psychiatry. In 1975, he went to the Western Missouri Mental Health Center,
"probably the 3rd center in the country to develop psychiatric pharmacy as a
specialty." There, he dabbled in research on benzodiazepines, and helped treat
patients with schizophrenia and anxiety disorders. In 1994, Evans moved to
Auburn, where his duties were largely administrative.
Had he ever done clinical research on midazolam? No, he said.
Sutherland asked the court to qualify Evans as an expert, "based upon his
scientific, technical, specialized knowledge through his career." Henry
objected. Lyle allowed her to question Evans before continuing. "Dr. Evans, you
are not a pharmacologist, correct?" Henry asked. Correct, Evans said. He had no
experience prescribing midazolam in any anesthetic context, did he? No, Evans
said. "In fact, you're not a medical doctor, are you?" He was not. Had he ever
done clinical research on midazolam? No, he said. Sutherland pushed back. "Dr.
Evans has been recognized in state and federal courts in the field of
pharmacology and I think his experience speaks for itself."
Over Henry's objections, Lyle allowed Evans to testify in pharmacology. But she
monitored his testimony. "I have no clinical experience with midazolam other
than personal," Evans conceded as his direct testimony resumed, but said that
he had studied the drug and lectured on it. "Tell me what you mean by 'studied
it,'" Lyle interjected. "Reviewed the literature on it," he said. Lyle pressed
further, but Evans remained vague. "The studying ... was largely in preparation
for educational materials, lectures and so forth," Evans said. Most recently,
it was "in relation to hearings such as this."
Henry continued to object over the course of Evans's direct testimony. Other
times, Lyle intervened. Evans was eventually able to provide some opinions, but
they were somewhat hard to follow. He drew a distinction between the
therapeutic use of midazolam and "the toxic use." Although Greenblatt had
testified extensively about studies showing that overdoses of benzodiazepine
were not fatal on their own, Evans provided some examples. There was a
63-year-old man who had "received 10 milligrams of midazolam and he expired as
a result," he testified. In her dissent in Glossip, Sotomayor had lambasted the
apparent logic at hand: that "because midazolam caused some deaths, it would
necessarily cause complete unconsciousness and then death at especially high
doses. ... One might as well say that because some people occasionally die from
eating 1 peanut, 100 peanuts would necessarily induce a coma and death in
anyone."
Nevertheless, Evans was ultimately able to render the opinion most sought after
by the state. "To a reasonable degree of pharmacological certainty," Sutherland
asked, "could 500 milligrams to 1,000 milligrams of midazolam render someone
unconscious and insensate during the lethal injection?" It could, Evans said.
Cross-examining Evans, Henry reviewed his track record. Until he first assessed
midazolam for the state of Florida in 2014, she asked, "you had not researched
what would be necessary to achieve a lethal dose of drug?" No, he said. She
pointed out instances in which he gave erroneous opinions, for example,
claiming that midazolam was approved by the FDA for use as a general
anesthesia. In 1 Alabama case, Evans had conceded at a deposition that he had
previously misinterpreted a study he used to question midazolam's ceiling
effect - yet he had included that same flawed interpretation in his declaration
to the state of Tennessee. "I reassessed the article and I stand by my initial
comments," Evans explained.
Henry went back to his early Florida cases. In 1, Evans had said that midazolam
had no pain-relieving properties at all, only to testify in a later case that
it might help with lower back pain. Explaining the contradiction in a
deposition, Evans said he'd had "a chance to do a little more digging." Now,
Evans appeared to be changing his mind again. When Henry asked whether
midazolam had any pain-relieving properties, he said no. But then he
elaborated. "There is some pretty hypothetical information" to show that "it
may - may - have analgesic effects," he began to say before Lyle stopped him.
She wanted to know what further digging he had done in the previous case. "Your
honor, I don't remember," he said. "But it was in a journal."
On July 30, Henry and her colleagues asked the Tennessee Supreme Court to halt
the August 9 execution of Billy Ray Irick. The plaintiffs planned to appeal and
"it would not be appropriate to move forward with an execution while the issue
of the constitutionality of Tennessee's lethal injection protocol is still
pending in the courts," Henry said in a statement. Even while ruling against
them, Lyle had acknowledged the risks posed by midazolam, she added.
Henry reiterated an argument she had tried to make at the end of the trial. If
the state could not carry out an execution using the alternative they had put
forward - a single dose of pentobarbital - the plaintiffs moved to amend their
complaint to consider an "alternative to the alternative": a 2-drug cocktail
that removed the vecuronium bromide altogether. This option is "clearly
available and readily implemented," which would satisfy the Glossip
requirement. And it would remove one of the well-established risks: that their
clients would be paralyzed, suffocating, and suffering as the lethal drugs took
hold.
It seemed simple enough. Parker himself has suggested it would be possible.
Indeed, Lyle had been among the first in the country to criticize the paralytic
back in 2003. "If the state is sincere in its belief that midazolam will work
the way that they say it will work," said Bradley MacLean, counsel for Abu Ali
Abdur'Rahman, "there is no reason why the state should oppose this."
But it did. Sutherland called it a "desperate" move, while Lyle explained that
the law prevented her from granting the motion. As for her prescient opinion 15
years ago, she wrote in her ruling, it came before Baze and Glossip. The
Supreme Court had found a legitimate purpose for the paralytic: hastening
death, while dignifying the process for witnesses and the condemned alike. Her
previous decision was "of minimal use."
In his closing statement, Sutherland decried the repeated challenges to
Tennessee's execution protocol over the years. "Nothing has ever been good
enough," he said. Whether he meant to or not, he also got to the heart of the
problem - with the paralytic, with lethal injection, with using the tools of
medicine in order to kill. The plaintiffs wanted a dignified death, he said,
but why should their deaths be peaceful? The deaths of murder victims weren't
peaceful, he said, turning to stare at the audience in the courtroom. "Death is
not pretty, your honor."
(source: theintercept.com)
NEBRASKA:
About 40 protesters take death penalty issue to Gov. Ricketts' church on Sunday
10 days before the State of Nebraska is set to hold an execution - its 1st in
21 years - protesters took their message to the Omaha church where Gov. Pete
Ricketts worships.
About 40 people gathered Sunday morning outside St. Margaret Mary Catholic
Church. With its 6116 Dodge St. address, the midtown church also offered
protesters high visibility.
Protesters waved signs that said "No Executions" and "Who Would Jesus Kill?"
and questioned the governor's Catholic faith. One waved a picture of Pope
Francis above the words "I SAID NO!" in reference to the Vatican's recent
announcement that the death penalty is now completely unacceptable.
Nebraska's 3 bishops have called for a halt of the Aug. 14 execution and urged
people to contact state officials.
Ricketts has been a forceful advocate for the death penalty, putting $300,000
of his family fortune toward the ballot effort that restored the death penalty
after lawmakers voted to end it. Ricketts said last week that while he respects
the pope's perspective, capital punishment reflects the will of the people and
state law and is "an important tool."
It's not clear whether Ricketts attended either Sunday morning Mass, and his
office couldn't be reached for comment. Another prominent Republican, Hal Daub,
went to the 10:30 Mass. Protesters afterward jeered from across Dodge Street at
Daub, who serves on the University of Nebraska Board of Regents.
Daub declined to comment, saying the death penalty "has nothing to do with what
I'm doing in my life."
Carla DeVelder, the protester with the Pope Francis sign, said she didn't care
if the governor was there or not Sunday. She wanted to challenge other St.
Margaret Mary parishioners.
The Rev. Gregory Baxter of St. Margaret Mary said he was disappointed in some
of the demonstrators.
"I was saddened by the uncivil taunts and jeers of some of the protesters
toward parishioners after Sunday Mass," he said.
(source: mdjonline.com)
USA:
Judge urged to keep Tsarnaev juror forms sealed
The federal judge who sentenced Boston Marathon bomber Dzhokhar Tsarnaev to
death in 2015 is being urged by prosecutors not to unseal 1,355 sealed
questionnaires completed by prospective jurors not chosen to hear the case,
arguing the release could lead to "embarrassment or harassment."
Assistant U.S. Attorney Nadine Pellegrini told U.S. District Court Judge George
O'Toole Jr. in a filing last week that among the 100 questions put to jurors
were whether the federal government "allows too many Muslims, or too many
people from Muslim countries, to immigrate legally to the United States," and
whether the war on terror "is overblown or exaggerated."
Attorney David Patton, in preparing the appeal to overturn Tsarnaev's death
sentence, is agreeable to redacting jurors' personal identifiers, but told
O'Toole in his motion to obtain the voluminous documents that he needs to know
"the percentage of all venirepersons (potential jurors appearing for jury
selection) who knew about the case, and the percentage who believed, based on
pretrial publicity, that Mr. Tsarnaev was guilty or should receive the death
penalty."
Patton plans to take the position that the trial never should have been held in
Boston, much less 2 miles from Copley Square, where 3 race spectators were
killed and nearly 300 others injured by 2 pressure-cooker bombs on April 15,
2013.
"The questionnaire contained 100 questions, many of which revealed information
that could lead to the jurors' identification, could be considered private, or
touched on divisive issues that could subject the jurors to embarrassment or
harassment," Pellegrini said. "Even with full anonymity, many potential jurors
would likely be surprised to find that their highly personal political and
religious views - explained in their own handwriting - will be forever in the
public record."
Tsarnaev turned 25 last month at the Supermax prison in Colorado. His opening
brief is due no later than Nov. 19 before the U.S. Court of Appeals for the
First Circuit in South Boston.
(source: Boston Herald)
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