April 19 USA: Lethal injection faces fight from condemned A Kentucky case that begins today is the latest legal challenge to lethal injection, the nation's most used but increasingly controversial form of execution. Lethal injection is under assault from condemned convicts across the USA who claim an anesthetic administered with poison chemicals can leave a person conscious enough to feel excruciating pain. The debate moves into a Frankfort, Ky., courtroom where lawyers for 2 convicted murderers will ask judges to strike down or at least suspend such executions as unconstitutional punishment. The plaintiffs - Ralph Baze murdered 2 police officers with an assault rifle and Thomas Bowling killed 2 robbery victims - plan to present autopsy evidence allegedly showing that a recently executed Kentucky prisoner was still aware when deadly chemicals stopped his heart. "Of all the evidentiary hearings that have been held so far, this is likely to be the fullest and most balanced," says Deborah Denno, a Fordham University law professor who has written on lethal injection and will testify for the prisoners. "We've come a long way in terms of our knowledge of the (lethal) drugs and how they're used, (and) this case takes advantage of that." Lawyers for Kentucky charge in court papers that the case is a veiled attempt to outlaw all forms of execution. They say stopping lethal injection, the chief means of execution for 37 of 38 states that use the death penalty, would amount to suspending capital punishment since "more humane methods" do not exist. Since 1988, at least 17 states and federal courts have considered the issue. But none has struck down lethal injection. Lethal injection opponents have been gathering momentum, however. The Lancet, a British medical publication, reported last Wednesday that autopsies from 49 executed killers found that 43 had anesthesia levels below that required for surgery. In February 2004, a New Jersey appellate court suspended lethal injection until state officials can explain why the chemicals are chosen and how they are administered. And last May, the U.S. Supreme Court unanimously agreed to permit a prisoner on Alabama's death row to challenge lethal injection. The prisoner, a longtime intravenous drug user, claims that cutting a path through his flesh to embed a chemical drip would cause excessive pain. Lethal injection was introduced in 1978 as a gentler alternative to the historic methods of execution: electrocution, gassing, hanging and shooting. Since the death penalty was resumed in 1977, 790 of 958 executions have been by injection. Lethal injections in Kentucky begin with a large dose of sodium thiopental, an anesthetic often used in surgery. It is followed with pancuronium bromide, a muscle blocker that halts breathing, and by potassium chloride, a cardiotoxin that stops the heart. The Kentucky formula is virtually identical to those in 27 of the 28 states that have divulged how executions are carried out, Denno says. David Smith, Jeff Middendorf and Brian Judy, lawyers defending lethal injection in Kentucky, argue in court papers that the "three-chemical cocktail" has been proven "effective and reliable." Not so, says David Barron, a public defender representing the condemned killers. Autopsy results from a prisoner Kentucky executed in 1999, Barron says, show little of the anesthetic had been absorbed before the killing drugs were administered. It's likely, Barron says, that the prisoner was conscious but appeared to be unconscious because his muscles were paralyzed by the follow-up drug. If so, Barron says, the prisoner experienced the "torture" of suffocating to death or having his veins seared by the heart toxin. "That's clearly cruel and unusual (punishment)," Barron says. He also says the Kentucky formula may leave condemned prisoners unconscious but still able to feel pain. It's impossible to know, Barron says, because Kentucky's execution formula, like that of most other states, has never been tested in a laboratory or by computer modeling. The formulas, Denno noted in a law journal article in 2002, appear to be based on notes that a University of Oklahoma anesthesiology professor wrote in 1978 after a state legislator asked him to suggest an alternative to lethal gassing or electrocution. Kentucky's lawyers dismiss those arguments as "speculation." They say the dose of anesthetic is more than enough to ensure a prisoner feels no pain. Even if lethal injection causes some pain, they argue, states are not required to use the "least severe means" of execution. The Kentucky court's decision is likely to be appealed by whichever side loses. If lethal injection in its present form is found unconstitutional, states might increase the amount of anesthesia used, says Michael Rushford, president of the Criminal Justice Legal Foundation of Sacramento and a death penalty supporter. (source: USA Today) *********************** Death Penalty - 34 states permit executions By every measure, the death penalty in the United States has been declining steadily since executions peaked in 1999, and the trend likely will continue in 2005. Plummeting crime rates and recent revelations of innocent men being sentenced to death have eroded public support for capital punishment. Since the 1970s, 119 people in 25 states have been released from death row based on new exculpatory evidence, including 2 dozen in the past 3 years. Death sentences have dropped by 54 % and executions by 40 % since 1999, with significant reductions in all states that allow capital punishment, according to the Death Penalty Information Center, a nonprofit group that has been critical of capital punishment in practice. Several recent court decisions also have narrowed the scope of the death penalty. The U.S. Supreme Court outlawed the execution of juveniles in March, sparing the lives of 72 juvenile offenders waiting on death row nationwide. This was the high court's first decision on the death penalty since 2002, when it banned the execution of the severely retarded. At the state level, death penalty statutes in New York and Kansas were ruled unconstitutional by those states' high courts in 2004, and executions have been suspended in Illinois by a moratorium and in New Jersey by a temporary injunction by the state's high court. That leaves 34 states currently permitting executions. In New York, the Democrat-controlled state Assembly defeated an attempt to reinstate the death penalty on April 12, 2005, making New York the first state to abandon the death penalty since the U.S. Supreme Court reinstated it in 1976. This action, which came just 10 years after the state legalized capital punishment, put New York at the forefront of a list of states where politicians have stepped away from supporting capital punishment. Death Penalty Timeline (Links to U.S. Supreme Court decisions provided by Cornell Law School's Supreme Court Collection) 1972 - Furman v. Georgia: U.S. Supreme Court effectively voids 40 state death penalty statutes and suspends capital punishment, ruling that death sentences are handed down arbitrarily, violating the Eighth Amendment prohibition against "cruel and unusual punishment." 1976 - Gregg v. Georgia: U.S. Supreme Court allows states to rewrite their death penalty statutes. Florida reinstates the death penalty within five months, followed shortly by 34 other states. Kansas and New York reinstate the death penalty in 1994 and 1995, respectively. 1977 - Gary Gilmore is executed by firing squad in Utah on Jan.17 - first person executed since death penalty was reinstated. 1977 - Oklahoma becomes the 1st state to adopt lethal injection as a means of execution. 1977 - Coker v. Georgia: U.S. Supreme Court prohibits executions for rape when the victim is not killed. 1986 - Ford v. Wainwright: U.S. Supreme Court rules that execution of the mentally insane is unconstitutional. 1988 - Thompson v. Oklahoma: U.S. Supreme Court rules that execution of offenders who were 15 or younger at the time of their crime is unconstitutional. 1989 - Stanford v. Kentucky, and Wilkins v. Missouri: U.S. Supreme Court rules that Eighth Amendment does not prohibit the death penalty for crimes committed at age 16 or 17. 1989 - Penry v. Lynaugh: U.S. Supreme Court rules that executing mentally retarded people does not violate the Eighth Amendment. 2000 - Illinois Gov. George Ryan orders moratorium on executions and appoints commission to study flaws in the state's death penalty system. 2002 - Ring v. Arizona: U.S. Supreme Court rules that juries, not judges, should decide sentence of death. 2002 - Atkins v. Virginia: U.S. Supreme Court reverses its 1989 decision in Penry v. Lynaugh and prohibits execution of the severely retarded based on the Eighth Amendment. 2003 - Illinois Gov. George Ryan commutes death sentences of all 167 inmates on the state's death row before leaving office in January. 2004 - New York's death penalty statute declared unconstitutional by state's highest court in June. Kansas Supreme Court voids its death penalty law in December. 2005 - Roper v. Simmons - U.S. Supreme Court, reversing its 1989 decision, rules March 1 that executing juvenile offenders who were under 18 at the time of their crimes is unconstitutional. Legislation aimed at either repealing the death penalty or imposing moratoriums on executions has been introduced in at least two dozen states in 2005. Only proposals in Connecticut and New Mexico have come to a vote, and both were narrowly defeated. North Carolina lawmakers are actively considering a bill that would impose a moratorium on executions and establish a commission to investigate the state's death penalty system. The legislation was introduced in response to the recent exonerations of five death row inmates. In New Jersey, where the court ordered state corrections officials to change the way lethal injections are administered, Acting Gov. Richard Codey (D) has called on the state Legislature to pass a moratorium against executions. Illinois' moratorium, the only one in the country, was imposed by former Gov. George Ryan, a Republican, in 2000. Ryan sparked a national furor when he commuted the death sentences of all 167 Illinois inmates on death row before leaving office in 2003, citing a state investigation that uncovered police corruption and racial bias in the state's capital punishment system. The Illinois Legislature has passed several reform measures intended to persuade current Democratic Gov. Rod Blagojevich to lift the moratorium, but he has said the system is far from fixed. These events follow a trend by lawmakers and the judiciary over the past 30 years to narrow the scope of the death penalty by tightening state sentencing statutes and banning the execution of specific groups of people, including the mentally insane, severely retarded and juvenile defendants. However, a majority of Americans still support executions as the ultimate punishment, and the nation as a whole is far from abolishing the death penalty. Constitutional experts say the current U.S. Supreme Court is unlikely to accept any cases seeking to overturn the death penalty system. Although executions are rare at the federal level, the Clinton and Bush administrations have greatly expanded the potential use of capital punishment for some drug and terrorism crimes. And former U.S. Attorney General John D. Ashcroft directed his prosecutors to seek the death penalty in many cases, sometimes overruling local prosecutors who had decided against it. At the state and local level, many prosecutors, victims' advocates and lawmakers remain staunch supporters of the death penalty, which they view as a necessary and effective deterrent to crime. Kansas officials are appealing the state court decision against their death penalty system in federal courts. Bills to reinstate the death penalty have been introduced this year in many of the 12 states that lack it, including in Hawaii and Iowa, although neither of those bills came up for a vote. Massachusetts Gov. Mitt Romney (R) has pledged to propose legislation this year to reinstate the death penalty there. Romney commissioned a task force of forensic and legal experts last year to craft a statute that would execute only those killers whose guilt is not in doubt. The commission issued 10 recommendations to safeguard against wrongful convictions, including imposing stricter requirements for scientific evidence, such as DNA and fingerprints, and raising the bar for a death penalty sentence from the normal legal standard of guilt "beyond a reasonable doubt" to a finding of "no doubt about the defendant's guilt." This "Backgrounder" is a work in progress and will be updated as warranted. You can find a great deal of information on the death penalty, including statistics, reports, analysis and commentary, on the following Web sites. Stateline.org will list other helpful resources as we find them. The Death Penalty Information Center A nonprofit group funded by grants and private contributions, provides a wealth of facts and statistics, issues reports critical of the death penalty. ProDeathPenalty.com A Web site maintained by Justice For All, an advocacy group lobbying for victims' rights and funded by private and corporate membership, tracks death penalty related issues and legislation. Go to its Death Penalty Links page for comprehensive links to dozens of related Web sites. National Coalition to Abolish the Death Penalty Created in 1976 after the Supreme Court reinstated the death penalty and funded by private donations and grants, NCADP supports grassroots lobbying against capital punishment. Its Web site provides news and statistics, also tracks pending executions. 1000+ Death Penalty Links Large collection of death penalty links compiled on the Web site of Steven D. Stewart, the prosecuting attorney for Clark County, Ind., who supports the death penalty. (source: Stateline.org) PENNSYLVANIA: Convicted killer now on death row will get new sentencing hearing A Philadelphia man convicted of the 1991 murder of an Upper Merion jeweler won't be getting out of prison anytime soon but will get another chance to avoid death row under a federal court decision. Antuan Bronshtein's 1st-degree murder conviction for the shooting death of 61-year-old Alexander Gutman has been upheld by the U.S. Court of Appeals for the Third Circuit. However, the federal court did award Bronshtein, now 33, a new sentencing hearing, finding that the jury that sentenced him to death in April 1994 wasn't adequately instructed that a life prison sentence in Pennsylvania means life without the possibility of parole. "We're pleased he still stands convicted of killing Alexander Gutman. The guilt phase has been upheld," said Montgomery County Assistant District Attorney Patricia E. Coonahan. "There's no chance he's getting out of jail at this point." Coonahan said she will have to discuss the prosecution's next move with District Attorney Bruce L. Castor Jr. Prosecutors can ask for another hearing before the Third Circuit Court of Appeals or challenge the federal court's ruling directly to the U.S. Supreme Court. A third option for prosecutors is to move forward with a new penalty hearing. For a new penalty hearing, prosecutors would have to empanel an entirely new jury to determine whether Bronshtein should be sentenced to life imprisonment or death by lethal injection for killing Gutman. A 4th option for prosecutors would be to simply agree to have Bronshtein re-sentenced to life in prison. Bronshtein, then 22, was convicted of 1st-degree murder and sentenced to death after a trial on April 22, 1994, for killing Gutman in his store, Jewelry by Alex, in the Valley Forge Shopping Center on Jan. 11, 1991. The jury found that Bronshtein shot the kneeling Gutman twice in the head and fled with about $60,000 in jewelry. During the trial before Judge Stanley R. Ott, Bronshtein's lawyer, John I. McMahon Jr., conceded that Bronshtein was at the store at the time of the shooting. However, McMahon argued that it was actually "Mr. X," a high-ranking member of the Russian Mafia who believed Gutman was cheating him, who pulled the trigger and killed Gutman. Former prosecutor Thomas C. Egan III maintained that Bronshtein was a "cold-blooded killer" and that the Russian Mafia, if it even exists in the area, had nothing to do with the slaying. Bronshtein, a former Russian who immigrated to the U.S. in 1978 and settled in Philadelphia, previously completed his appeals, without success, in the county and state courts. Bronshtein's previously scheduled execution in 1999 was postponed to give him the opportunity to pursue his federal round of appeals. Bronshtein also is serving a life prison sentence after being convicted of the 1991 murder of Philadelphia jeweler Jerome Slobotkin. (source: The Times Herald) CALIFORNIA: CORRECTIONS DEPARTMENT SAYS DEATH ROW MUST STAY AT SAN QUENTIN The California Department of Corrections has decided that it is against the state's penal code to move death row from San Quentin prison to another location. The decision is part of a 500-page environmental impact report on a proposed new $220 million death row facility at San Quentin, CDC spokeswoman Terry Thornton said. The report was released Friday. "The law says all condemned male inmates must be housed at San Quentin. The CDC has no authority to change the law. It's not about property values or how people feel about the death penalty. It's about safety. We need a new modern, secure facility," Thornton said. Thornton said there are 628 men on death row at San Quentin, facility designed to house 68 death row inmates. The death row inmates are incarcerated at 3 locations at San Quentin, 450 of them in the East Block building, Thornton said. The proposed new facility can house 1,408 death row inmates. The prison receives 25 death row inmates a year, Thornton said. Construction is slated to start this fall. The final environmental impact report recommends some structures should not be demolished as planned Thornton said. Copies of the report were distributed to agencies in Marin County and to everyone who gave public comment on the issue. Residents near the prison objected to some of the visual impacts of the new facility. Assemblyman Joe Nation and other opponents of the new facility have proposed housing death row inmates at other prison facilities then transferring them back to San Quentin when they have exhausted their appeals and execution has been scheduled. Nation favors using the site of the 153-year-old prison as a port and transit center. Thornton said public agencies have 10 days to review the EIR before Corrections Department Director Jeanne Woodford certifies it. If there are no legal challenges within 30 days of certification the state public works board will decide on final certification, Thornton said. (source: Bay City News) ******************* '78 murder witness may have lied A 13-year-old girl told police in 1978 that she watched Ronald Bell, then 23, as he killed a Richmond jewelry store clerk and left with $30,000. She was 1 of 3 key witnesses whose testimony led Bell to be sentenced to death. The same witness, Dorothy Dorton, now 40, may testify this week that she lied. Bell, who is fighting his conviction, contends he is the victim of a case of mistaken identity. Bell has said that his brother Larry -- who resembles him and who was convicted in a killing the following year and is now in prison -- may have done it, according to his attorney. Contra Costa Superior Court Judge Thomas Maddoc will hear testimony from several witnesses in the case Wednesday. If Dorton testifies that she lied, "that would be significant for the defense," said prosecutor Douglass MacMaster. "Short of multiple eyewitnesses recanting testimony, the Supreme Court won't grant a new trial." Dorton's father, Alcus Dorton, was killed by Bell ten years before the jewelry store robbery in what his attorney Margaret Littlefield called self-defense. At the time of the jewelry store robbery, Dorton told police that she was sitting in a car parked near the store with her aunt, Ernastine Jackson -- Alcus Dorton's sister -- and another family member, Ruby Judge. Dorton said she followed Bell into the jewelry store after Jackson saw him going in and told Dorton that Bell had killed her father. Dorton and Judge were both in the store when Bell shot and killed the jewelry store clerk, Dorton told jurors. The 1st jury deadlocked on the murder charge, but a second jury convicted Bell in 1978. Judge Richard Arnason sentenced Bell to death in early 1979, the county's 1st death sentence since California reinstated the death penalty. The California Supreme Court upheld his punishment in 1989, denying appeals on several grounds, including prosecutorial misconduct. The case has been fought on other grounds ever since, traveling through both state and federal courts. In 2001, Dorton told investigators that she had lied, Littlefield said. Dorton signed a declaration saying that Jackson wanted revenge for her brother's death. According to Littlefield, Dorton said her aunt pressured her to lie to the police. Bell's attorneys used that statement to file a challenge in the California Supreme Court in 2002. In 2004, however, Dorton gave a deposition in which she said she neither met with investigators nor signed any declaration. A forensic document examiner concluded that Dorton had indeed penned the signatures on the deposition, according to court documents. "I assume she'll stick with her latest story," Littlefield said. "I don't know for sure what she's going to do." Other witnesses will testify that Jackson told them that Larry Bell was the robber and killer, and that she lied about Ronald Bell to get revenge, Littlefield said. (source: Contra Costa Times) ************************ Justices Weigh State's Jury Selection Law - A lawyer argues before the U.S. Supreme Court that California allows prosecutors to exclude potential jurors on the basis of race. California prosecutors are likely to face more questions before they can exclude blacks and other racial or ethnic minorities from juries, judging from the arguments Monday before the U.S. Supreme Court. At issue is how to enforce a 19-year-old rule that forbids using race as a reason to keep people off a jury. Whereas most states tell judges that they should question prosecutors whenever there appears to be racial bias in the selection of jurors, California courts say prosecutors should be questioned only when there is a "strong likelihood" of racial bias at work. A lawyer for a convicted child murderer from Contra Costa County told the justices Monday that California's rule allowed racial bias to go unchallenged and undetected. "Here, the prosecutor struck all 3 black jurors and left a black defendant to be tried by a nearly all-white jury," lawyer Stephen B. Bedrick said. Bedrick complained about the prosecutor's move during the 1998 trial, saying that there was "no apparent reason" to exclude one black woman "other than her racial identity." But the trial judge rejected the complaint and did not require the prosecutor to explain his reason for removing the potential juror during peremptory challenges. Bedrick's client, Jay Shawn Johnson, had said that the death of his girlfriend's 18-month-old daughter was accidental, but prosecutors said he had beaten her. Johnson was convicted of 2nd-degree murder. When Johnson appealed, citing the jury's racial makeup, the California Supreme Court upheld the lower court proceedings, saying that Bedrick had not presented "a strong likelihood" of racial bias. In his argument Monday, Bedrick urged the U.S. Supreme Court to rule that whenever there was "a reasonable inference of discrimination" at work, the prosecutor should be required to explain his decision to exclude a black juror. "We ask this court to bring California into the mainstream," he said. Most of the justices said they were inclined to do just that. "What's the big deal here?" Justice Antonin Scalia asked an attorney representing California, noting that a judge could simply ask the prosecutor to come to the bench and explain why he or she chose to strike a particular juror. In 1986, the Supreme Court ruled in Batson vs. Kentucky that judges should challenge prosecutors to explain themselves whenever there was prima facie evidence of racial bias in the selection of a jury. If the prosecutor has a nonracial reason - for example, the prospective juror said he or she had a relative who was charged with a similar offense - the judge could uphold the decision to remove that juror. If not, the judge could order the juror to be seated. "All that is required under Batson," Justice Anthony M. Kennedy said, "is a reason to inquire," not the "strong likelihood" of bias required by the California courts. "The question is what motivated the prosecutor," Kennedy added. Given that all three black potential jurors were removed by the prosecutor in the Johnson case, asked Justice Sandra Day O'Connor, "isn't that enough" to demand an explanation? California Deputy Atty. Gen. Seth Schalit defended the state court's rule. "We should not adopt the divisive assumption that everything turns on race," he said. "The state has an interest in maintaining peremptory challenges." But he ran into skeptical questioning. "The whole point of Batson is to explain a suspicious situation," Justice Stephen G. Breyer said. Those suspicions cannot be put to rest unless the judge asks the prosecutor to explain why he removed the black potential jurors, he said. Only Chief Justice William H. Rehnquist took the state's side during the back-and-forth argument. He dissented in the Batson decision and has continued to argue that both sides should be given the freedom to exclude an equal number of jurors. Batson "set a very low standard" for questioning prosecutors, Rehnquist said. "Why should it be watered down more?" he asked. For decades, it has been unconstitutional to exclude someone from a jury because of his or her race or ethnic heritage. But enforcing that antidiscrimination rule has not been easy. Dozens of people in the jury pool may be questioned and considered before a panel of 12 is seated. Typically, a few potential jurors are dismissed "for cause" - for example, they know the defendant or the victim. Beyond that, the prosecutor and defense lawyer may remove an equal number of potential jurors based on the hunch that they will not be favorable to their side. Often, these hunches are based on the juror's background as described in a standard questionnaire. In California, the prosecutor and defense lawyer may each exclude as many as 10 potential jurors without giving a reason in a routine crime case, and up to 20 potential jurors in a murder case that could lead to the death penalty. In theory, the use of these peremptory challenges is supposed to result in a jury that is fair and impartial because both sides were able to exclude jurors they believed would be biased. The Supreme Court will hand down a decision by late June in Johnson vs. California. Charles Hobson, an attorney for the Criminal Justice Legal Foundation in Sacramento, said a ruling in Johnson's favor would be especially troublesome if it was applied retroactively. "Thousands of criminal defendants convicted in California have claimed that prosecutors intentionally kept minorities off their juries," he said. The rule against bias in selecting jurors also applies to discrimination based on gender or religion, the court has said in the past. It may also apply to defense lawyers as well as prosecutors, but such instances rarely arise, legal experts said. (source: Los Angeles Times) KENTUCKY: Lethal injection 'agonizing'----Inmates' lawyers object to method Calling it "an agonizing way to go," a public defender said yesterday that execution by lethal injection in Kentucky could leave an inmate conscious but paralyzed as a caustic drug is injected to induce heart failure. Ted Shouse, who is helping to represent 2 death-row inmates, opened a trial in Franklin Circuit Court on the fate of lethal injection in Kentucky, saying he intends to prove it is unconstitutional because it is cruel. But lawyers for the state yesterday dismissed challenges to the commonly used method of administering a series of 3 drugs to anesthetize and paralyze an inmate and then stop his heart. One inmate, Eddie Lee Harper, has been executed by lethal injection since Kentucky adopted the method in 1998. Inmates who were sentenced before 1998 could still choose the electric chair, but none have. "Eddie Lee Harper closed his eyes and went to sleep," Jeff Middendorf, general counsel for the Kentucky Corrections Department, told the court. Harper, a Louisville man convicted of killing his parents in 1982, was executed in 1999. Middendorf said there's no evidence Harper suffered or was conscious after he received the 1st drug aimed at rendering him unconscious. "All the issues the plaintiffs will bring up are pure speculation," Middendorf told Judge Roger Crittenden. Shouse is 1 of 3 public defenders representing two death-row inmates: Thomas Clyde Bowling Jr., 52, convicted of the 1990 murders of a Lexington couple; and Ralph Baze, 49, convicted of killing the Powell County sheriff and a deputy in 1992. Victim's wife, sister Rose Bennett, whose husband and brother were killed by Baze when he opened fire on officers attempting to arrest him, said she thinks Baze's case has taken too long. "I do believe he should be executed," said Bennett, who attended yesterday's hearing on behalf of her late husband, Sheriff Steve Bennett, and her brother, Deputy Arthur Briscoe, both slain by Baze. "He took 2 police officers' lives. This has been going on 13 years. I just want to see justice done for the victims." Bennett said she wasn't convinced by testimony yesterday suggesting that death by lethal injection could be excruciating and believes the court case is a tactic by defense lawyers to help their clients avoid execution. Crittenden is hearing the case without a jury and will rule after the state presents its defense of lethal injection next month. 'We think people are awake' Yesterday, Dr. Tracey Corey, Kentucky's chief medical examiner, testified that she performed the autopsy on Harper and found no evidence that he might have been awake when he was executed. But lawyers for the Department of Public Advocacy laid the groundwork they hope will convince the judge that the possibility exists that an inmate could be conscious and suffer excruciating pain. And a researcher who has studied lethal injection but is not involved in the case in Kentucky said in an interview that the public defenders may be right. "The bottom line is that we think people are awake," said Dr. Leonidas Koniaris, a medical professor at the University of Miami. Koniaris is the lead author of a study published Saturday in The Lancet, a British medical journal, called "Inadequate anesthesia in lethal injection for execution." The paper examined toxicology results for 49 people executed in Arizona, Georgia, North Carolina and South Carolina. Researchers found that in 21 cases, the inmates did not appear to have enough anesthesia in their blood to be unconscious when the caustic potassium chloride was administered to stop the heart. The paper concluded that researchers could not prove that all inmates executed by lethal injection were unconscious during the execution and noted that if they were conscious, "any suffering of the inmate would be undetectable because of the paralysis from the second drug." "The process is fundamentally flawed," Koniaris said. Developing procedures Lawyers for Baze and Bowling spent much of yesterday questioning witnesses about how states developed lethal injection procedures. A witness testified that Kentucky's were developed by corrections officials rather than medical experts. The executions also are carried out by corrections workers. American Medical Association guidelines ban doctors from participating or assisting in executions. Philip Parker, former warden at the Kentucky State Penitentiary, where executions are carried out, said he and former deputies researched how other states carried out lethal injection executions and developed Kentucky's 1st policies. Deborah Denno, a Fordham University law professor who has published articles on executions, testified that Oklahoma was the first state to develop lethal injection, where it was done by state officials consulting with a medical school professor. Denno said she was not aware of any medical research that states have used to ensure that inmates don't suffer during the execution. Richard Dieter, executive director of the Death Penalty Information Center in Washington, said in an interview yesterday that lethal injection was initially adopted as more humane than the electric chair or gas chamber. But he said the practice is coming under increasing challenge in state courts. The U.S. Supreme Court has not ruled on whether lethal injection is constitutional, he said, but likely will be asked to take on the issue. Dieter said 790 people have been executed since 1982 by lethal injection. (source: Courier-Journal) ***************************** Bench trial opens on Kentucky's execution method----STATE'S LAWYERS SAY IT'S HUMANE Eddie Lee Harper either suffered little and died peacefully or was still awake and possibly in pain when he was executed in May 1999. Harper's death was the focus of testimony yesterday in the 1st day of a 4-day bench trial on whether the state's method of executing prisoners violates the state and U.S. constitutions. Lawyers for the state say that Harper was unconscious seconds after the 1st of 3 drugs was administered and that he died a peaceful, humane death. But lawyers for two Death Row inmates say the evidence shows that there is a more than 50 percent chance that Harper was conscious at the time the third drug of the state's lethal drug cocktail was administered. But because the state uses a drug called Pavulon, which paralyzes the muscles, Harper could not say whether he was in pain. Death row inmates Thomas Clyde Bowling Jr. and Ralph Baze sued the state in August in Franklin Circuit Court, saying the state's method of executing prisoners violated prisoners' Eighth Amendment rights not to be subjected to cruel and unusual punishment. Bowling, 52, had been scheduled to be executed Nov. 30 for killing a Lexington couple in 1990. But his execution was stayed in part by Franklin Circuit Court Judge Roger Crittenden, who said he needed more time to decide the two inmates' claim. Bowling's execution was also stayed by the state Supreme Court, but the court has since ruled that Bowling is mentally competent and therefore fit to be executed. Yesterday was the 1st day of the expected 4-day bench trial on the lethal injection issue. Ted Shouse, a lawyer for the Department of Public Advocacy, said during opening arguments that the state's lethal injection protocol is not backed by science and has been cobbled together using other states' protocols. "The (state) would be guilty of a misdemeanor if they put my dog down using this protocol," Shouse said. But Jeff Middendorf, a lawyer with the Department of Corrections, said yesterday that expert testimony will show that the department's 3 grams of sodium pentothal, the 1st drug of the three-drug cocktail, is more than enough to render someone unconscious at the time the second and third drugs are administered. Middendorf said Baze and Bowling's lawyers expect the state to be held to a higher standard of care than a hospital. Deborah Denno, a law professor at Fordham School of Law in New York who has done research on lethal injection protocols, testified yesterday that none of the states that provided her information on lethal injection protocols based their choice of chemicals and dosages on scientific research. Denno said she found no research indicating that any of the states consulted with doctors when they developed their execution protocols. Phil Parker, warden at Kentucky State Penitentiary at the time of Harper's execution, said he and other members of the Department of Corrections developed the state's protocol for lethal injection in 1998 and 1999 based on other states' protocols. Parker as well as Bill Henderson, a deputy warden at Kentucky State Penitentiary at the time of Harper's execution, said Harper died within 5 to 20 seconds of the drugs entering his system. Other members of the Department of Corrections staff who were present at Harper's execution or were part of the execution team are expected to testify today. The 2 people who start the IV on the condemned will not testify during the 4-day hearing. Their identities have been kept secret throughout the litigation. During the 6 hours of testimony yesterday, Steven Bennett occasionally fidgeted as he sat next to his mother, Rose Bennett, and listened to the parade of scientists and Corrections staff. Steven Bennett, now 17, was 4 years old when his father, Steve Bennett, the sheriff of Powell County, and his uncle Arthur Briscoe, a deputy, were killed in a shootout in 1992. Baze, the man who was convicted of killing the 2 men, has been on death row for 13 years. The Powell County High School junior said after yesterday's hearing that he thought both sides presented compelling arguments. "I understand what they're saying about a humane death," Bennett said. "But it's hard for me to think about because he killed my father and my uncle." (source: Herald-Leader)
