USA NEWS

Florida’s gruesome execution theater

march 19, 2014

In the decades he spent filing stories from Jacksonville after visits to Florida’s execution chamber, former AP reporter Ron Word saw a lot that still lingers in the back of his mind. There are the images from the old days of the electric chair: The executioner’s black hood, only visible through a slit in the wall; or the electrician’s thick rubber gloves, worn in the event of mechanical problems. And there are the dramatic episodes: the execution of Ted Bundy; electrocutions in which “there were flames coming off the inmates’ heads”; the botched, bloody death of Allen Lee “Tiny” Davis in 1999, in a special electric chair built for his 344-pound body, then never used again.

There were the times the Florida Department of Corrections (DOC) tried to alter the narrative. Once, Word remembers, in the early days of lethal injection, he got a call from prison officials telling him, “You’re gonna’ have to change the times in your story. They don’t agree with our times.” Word refused. Another time, after the agonizing 34-minute death of Angel Diaz — executioners pushed the IV needles into his flesh instead of his veins — Word says the DOC “pretty much lied to us that night.” Prison officials claimed Diaz had some sort of liver problem, “but as it turned out there was nothing wrong with his liver. It was because of the procedure they used.”

That happened around Christmas of 2006. Afterward, Florida temporarily halted executions and revised its protocol. And that’s when they brought in the moon suits.

“At all Florida lethal injections, a man in a purple moon suit leans over the dying inmate to listen for a heartbeat and feel for a pulse,” Word reported in the summer of 2007. “After a few seconds, he nods, and the witnesses are informed that the death sentence has been duly carried out. The man is a doctor, and the gear shields his identity — not just from the prisoner’s family and friends, but from the American Medical Association, whose code of ethics bars members from participating in executions.”

The moon suits still stick out in Word’s memories. “It kind of surprised me when they first showed up. It was kind of bizarre.” Regardless, he says, “after two or three executions they quit using them.” The moon suits appeared to attract rather than deflect attention. Other states had developed less theatrical ways of hiding the identities of doctors who helped them kill prisoners.

Word was laid off in 2009, after witnessing some 60 executions. Speaking over the phone from Jacksonville, he says that most of them blend together in his mind. Whether they used the electric chair or lethal injection, state officials aimed to make the procedure bear as little resemblance as possible to what was actually happening — the taking of a human life. “The result was the same,” he says, and both involved practiced rituals and procedures that “made it as sanitized as possible.” But Word adds, “I think it used to be more open than it is now. More transparent.” From what he could tell, “lethal injection was kind of a learning exercise.”

A learning curve for killing

“Learning exercise” is a pretty good way to describe Florida’s approach to lethal injection these days. On Thursday, the state plans to execute 55-year-old Robert Henry for a gruesome double murder committed in 1987. To kill him, prison officials will use a new protocol implemented last fall, which introduced the sedative midazolam into the state’s lethal drug mix. Commonly used for a variety of medical purposes, including patients undergoing surgery, midazolam had never before been used in executions until Florida adopted it. It’s also unclear how the state, which is now killing prisoners at a brisk pace, came up with the idea to use the drug in the first place.

Nevertheless, in a letter to Governor Rick Scott last September, Florida Department of Corrections Secretary Michael Crews provided lofty assurances that the new procedure “is compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology, and technology.”

“The foremost objective of the lethal injection process,” Crews wrote, “is a humane and dignified death.”

But the first Florida prisoner executed with the new method, William Happ, died last October “in what seemed like a labored process,” according to a reporter for the Sun Sentinel. “At times his eyes fluttered, he swallowed hard, his head twitched, his chest heaved.” An AP report said “it appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed . . . under the old formula.”

But a circuit court judge later concluded there was “no credible evidence” that Happ had suffered. So Florida stuck with the new process. Barring a last-minute stay of execution, tomorrow Robert Henry will be the fifth prisoner killed in this manner.

In the 2008 case Baze v. Rees, the U.S. Supreme Court upheld the three-drug lethal injection protocol that had been used for years by most death penalty states. Ironically, a couple years after, many states began moving away from it. Shortages of the drugs used in that protocol have since forced states find new ways to kill prisoners. Those shortages are in part due to a campaign by the U.K.-based human rights group Reprieve. The group has enormous success convincing overseas companies to bar their drugs from export to the U.S. for use in executions. “Pharmaceutical companies make medicine to cure people,” Reprieve founder Clive Stafford Smith recently wrote, “so they object to their drugs being used to kill.”

What has followed is chaos, controversy and improvisation, all played out on the bodies of prisoners. States are now choosing new drugs based more on their availability than on medical science. State prison officials have been inventing protocols as they go along and conducting what amount to experimental executions.

The trend began in 2010, when diminishing supplies of sodium thiopental—the first drug in the three-drug “cocktail” upheld by the Court in Rees—prompted death penalty states to get creative in their search for execution drugs. In 2011, I wrote an article for The Nation describing the consequences in Georgia, where two inmates had recently died with their eyes open—a grim indication that the sodium thiopental had not worked as intended, and that the men had likely suffered agonizing deaths. There was also evidence that the drugs had been used past their expiration dates. Lawyers for death row inmates traced source of the drugs overseas to a sketchy pharmaceutical wholesaler named Dream Pharma, which advertised that it could discreetly sell “discontinued” and “hard to find” drugs.

Death penalty states have since given up on getting sodium thiopental — its U.S. manufacturer no longer makes the drug, and European makers are now banned from exporting it for executions — but the scattered, secretive searches have continued. Today, unregulated compounding pharmacies are increasingly the go-to source (despite few guarantees about the effectiveness of the drugs they sell) and pentobarbital — a barbituate like sodium thiopental — has become the go-to drug (despite no guarantees about how it functions in an execution). These changes have come quickly, quietly, and secretively. After Ohio became the first to use a single lethal dose of pentobarbital to kill a prisoner in March 2011, Texas swiftly announced that it would do the same. Lawyers for Cleve Foster, the next in line to die, protested the complete lack of transparency with which the drug had been adopted (which also happened to violate state law). As Foster’s attorney, Maurie Levin, told me the day before his scheduled execution in April 2011, pentobarbital “has not been vetted. It certainly hasn’t been vetted in Texas.” (After several stays from the Supreme Court, Foster was executed in September 2012.) Nevertheless, according to the Death Penalty Information Center (DPIC), fourteen states now plan to use pentobarbital to kill prisoners—and five more plan to use it going forward.

No state has been more eager to experiment than Ohio, which boasts a number of lethal injection “firsts,” according to the DPIC. On January 16, the state killed Dennis McGuire using the unprecedented combination of midazolam and the pain medication hydromorphone. The execution was so dramatically botched that it made international headlines. Horrified witnesses watched as the 253-lb McGuire “repeated cycles of snorting, gurgling and arching his back” and appeared to “writhe in pain,” according to a subsequent lawsuit filed by his family. Making matters worse, state officials had been warned in advance that the use of the untested drugs put McGuire at risk of a horrific, suffocating death. They went ahead with the execution anyway.

As Florida’s execution of Robert Henry approaches, his attorneys warn that he, too, is likely to suffer. At an evidentiary hearing on March 10, Emory University anesthesiologist Dr. Joel Zivot — a vocal critic of this form of lethal injection—said that “science is being misused and misunderstood” in his case. Zivot testified that Henry’s combined health problems—including hypertension, high cholesterol, and coronary artery disease—provide a “high degree of certainty” he will suffer a heart attack on the gurney. The Florida Supreme Court rejected that argument. In response, Henry’s supporters denounced the ruling, pointing out that the court had relied on the testimony of “the Government’s go-to doctor for death,” Dr. Mark Dershwitz. Dershwitz has lent his medical expertise to reassure states of the soundness of their killing protocols in dozens of cases, including the experiments that led to Ohio’s disastrous execution of Dennis McGuire.

 

State secrets

Earlier this year, the Florida Supreme Court ordered a hearing in which Florida DOC officials explained what precautions they take to ensure that inmates experience “a humane and dignified death.” But instead of discussing why and how the state chose what drugs it uses, the hearing was a farcical discussion of minutia. As A.P. journalist Tamara Lush reported, DOC Assistant Secretary Timothy Cannon testified that DOC officials had come up with a new way of performing a “consciousness check” on a prisoner. In his capacity as the execution “team leader,” Cannon testified that whereas he previously used what he called a “shake and shout”—grabbing an inmate’s shoulders and yelling his name—he now relies on the more subtle “trapezoid pinch,” or squeezing the flesh between a prisoner’s neck and shoulder.

Cannon also explained that as part of their training, members of the execution team would take turns playing the role of the condemned. That practice, he said, generated some helpful feedback. “We’ve changed several aspects of just the comfort level for the inmate while lying on the gurney,” he testified. “Maybe we put sponges under the hand or padding under the hands to make it more comfortable, changed the pillow, the angle of things, just to try to make it a little more comfortable, more humane and more dignified as we move along.”

So while Florida DOC officials proved they have pondered the ways in which gurneys can be turned into a cozier death beds, they provided no answers regarding the efficacy, origin or humaneness of the methods they are using to kill people. In fact, a spokesperson told the National Journal last fall that the official DOC policy is to refuse “to go into any detail about how or why the protocol was designed. Those decisions are exempt from public record because they could impact the safety and security of inmates and officers who are involved in that process.”

But Florida isn’t alone in its secrecy. The Atlantic’s Andrew Cohen has written at length about how “state officials all over the nation have sought to protect this information from public disclosure.” In Missouri, the only state that still carries out executions at midnight, state officials are embroiled in an ugly, ongoing battle to deny inmates any information about the drugs that will be used to kill them. In Georgia, where the federal Drug Enforcement Administration ultimately raided the Department of Correction in 2011 to seize the supply of sodium thiopental the state got from Dream Pharma, lawmakers have responded by pushing legislation that would make the origins and procurement of lethal injection drugs a “confidential state secret.” Other states whose supplies were also raided by the DEA have responded similarly. In Tennessee, which intends to execute ten prisoners beginning later this year, officials waited for such a secrecy law to pass the state legislature before announcing the parade of executions. The DPIC estimates that seven states have passed similar laws.

If today’s executions truly represented the heights of moral advancement suggested by Secretary Crews in his letter to Rick Scott last fall, it may seem odd that state governments would go to such lengths to keep the public from knowing anything about them. Of course, part of that is likely due to the success of groups like Reprieve. If states don’t reveal what drugs they’re using, Reprieve can’t pressure the drugs’ makers to refuse to sell the drugs for executions.

But today’s fight over transparency and lack of concern over botched executions are good reminders of the fundamental lie at the heart of lethal injection: It is a punishment that, by its very design, has always been rooted in secrecy rather than medical science. Never mind the rhetoric about “humane and dignified death.” However brutish the electric chair or gas chamber might appear by comparison, the only thing that truly sets lethal injection apart is that it was devised to mask what it was doing to its victims. As states have been forced to abandon that original design, lethal injection has been exposed for what it actually is: an experimental, unscientific form of premeditated killing.

 

“To hell with them. Let’s do this.”

Perhaps the best illustration of just how little consideration went into the design of lethal injection is the story behind the development of the protocol later used by most death penalty states and eventually approved by the Supreme Court in Rees. In a 2007 article for the Fordham Law Review, law professor Deborah Denno explained how Oklahoma first came up with the idea in 1977.

Like much criminal justice policy, it was based more on hunches and gut reactions than science and empirical data. “At each step in the political process,” Denno wrote, “concerns about cost, speed, aesthetics, and legislative marketability trumped any medical interest that the procedure would ensure a humane execution.” Although government-appointed commissions in both the U.S. and U.K. had by then studied and rejected lethal injection — with the latter finding “a lack of ‘reasonable certainty’ that lethal injections could be performed ‘quickly, painlessly and decently’”— Oklahoma legislators resurrected the idea after the U.S. Supreme Court reinstated the death penalty with Gregg v. Georgia in 1976. “Seemingly oblivious to prior concerns, American lawmakers emphasized that lethal injection appeared more humane and visually palatable relative to other methods,” Denno wrote.

That the method be “visually palatable” was of particular importance. In Oklahoma, two politicians led the push for lethal injection: State Rep. Bill Wiseman and state Sen. Bill Dawson. Wiseman was disturbed by the ugliness of electrocutions, later telling the Tulsa World they were “kind of a combination of Barnum & Bailey and reform.” Describing himself as a reluctant supporter of executions, he wrote a bill in 1977 to replace the electric chair with lethal injection, which he was convinced would be more humane. According to the World, he then ‘placed on every legislator’s desk an envelope containing two pictures of a man who had been electrocuted. ‘It looked like seared meat,’ he said. ‘Some people just didn’t like it.’”

As Denno explains, Wiseman was eventually told by his own physician, who was also the head of the Oklahoma Medical Association, that the organization wanted no involvement in his lethal injection project. Anxious to give the process even the thinnest medical veneer, Wiseman and Dawson settled on the help of the state’s chief medical examiner, Jay Chapman, who candidly admitted that he was more of “an expert in dead bodies” than “an expert in getting them that way.” Still, he was eager to help. When the lawmakers expressed concerns over what it could mean for his reputation within the medical community, Chapman was cavalier. “To hell with them,” he said. “Let’s do this.”

Despite his lacking credentials, Chapman devised the famed “three-drug cocktail” that would become the established protocol for the rest of the country for years. The first drug (generally sodium thiopental) anesthetized the prisoner. The second (pancuronium bromide) caused paralysis, including of the muscles used for respiration. And the third (potassium chloride) stopped the heart.

In combination, the drugs created the impression of a peaceful and humane process — the pancuronium bromide masked any ugly outward signs of what may have been happening in the prisoners’ bodies. But the states would later discover that if the anesthetic failed to work properly, the inmates would suffocate, and fall into cardiac arrest. They would experience an excruciating death, but the paralytic would prevent inmates from crying out or exhibiting obvious signs of distress. The risk of such suffering was particularly senseless given the lack of evidence that the paralyzing drug played anything other than a cosmetic role in the process. As a Tennessee judge wrote in 2003, pancuronium bromide serves “no legitimate purpose” aside from providing the “false impression of serenity to viewers, making punishment by death more palatable and acceptable to society.” Indeed, as Adam Liptak wrote in the New York Times that year, the “American Veterinary Medical Association condemns pancuronium bromide” for euthanizing animals, “because, an association report in 2000 said, ‘the animal may perceive pain and distress after it is immobilized.’”

In its ruling in Baze v. Rees years later, the Supreme Court dismissed the AVMA’s position, along with the risks inherent in the use of pancuronium bromide, concluding that the drug played a legitimate role in providing a “quick, certain death.” But by then, even Chapman himself — who has expressed disgust at the way his lethal injection protocol has been bungled by “complete idiots” — had acknowledged that the paralyzing agent may have been a mistake. Asked by CNN in 2007 why he included it in the first place, he said, “It’s a good question. If I were doing it now, I would probably eliminate it.”

Given that many states are now doing just that as they move onto other lethal injection protocols, the use of pancuronium bromide has become a mostly moot point. Still, its removal from the process could have one important, if unintended effect: It could make killing look like killing. As Mike Brickner of the ACLU of Ohio told me after Dennis McGuire’s harrowing death, “Now that we’re using drug combinations where there’s no paralytic, maybe we’re seeing inmates die in ways that were always ‘botched’ — except that their body could not physically show it.”

Such bad optics were precisely what Chapman always wished to avoid. (He has called it “ludicrous,” for instance, to allow witnesses to watch as execution teams, “feeling nervous and fiddling around,” look for an inmate’s vein.) As the ongoing controversy over lethal injection continues, Chapman’s legacy as patriarch of the killing cocktail exposes our quest for “humane executions” for what it really is. It’s less about finding a dignified way for prisoners to die, and more about finding a way to kill them that preserves the humanity of the prison staff, the medical professionals, and a public largely indifferent to the Constitutional requirement that prisoners be spared from “torture or lingering death.”

Chapman himself once reflected that indifference in an exasperated email to Denno, “Perhaps hemlock is the answer for all the bleeding hearts who forget about the victims—and their suffering—Socrates style . . . the things that I have seen that have been done to victims [are] beyond belief . . . And we should worry that these horses’ patoots should have a bit of pain, awareness of anything — give me a break.”

One could perhaps understand Chapman’s perspective, given the time he spent up close with the corpses of murder victims. But the law does demand a humane death. The initial decision to turn to a man who doesn’t believe in that principle to devise a method of execution was exceptionally cynical. That Chapman’s lethal injection experiment was then replicated across the country for decades, despite it’s fundamental flaws, is a shameful history.

Worse, we seem to have learned very little from it. As the anesthesiologist Joel Zivot wrote last December, these states are “usurping the tools and arts of the medical trade and propagating a fiction.” The state of Florida plans to kill Robert Henry tomorrow by using a drug designed, tested, and sold for healing. We don’t know its effects when it’s used for killing. To borrow from Zivot, when it comes to the death penalty, “What appears as humane is theater alone.”

(washingtonpost)

 

Mississippi death row inmate drops lawsuit after info provided on execution drug

march 20, 2014

JACKSON, Mississippi — The Mississippi Department of Corrections and attorneys for a death row inmate have agreed to dismiss a lawsuit over release of information on execution drugs and suppliers.

The decision to dismiss was made after the attorney general’s office and the agency provided information sought about the drugs, attorneys for Michelle Byrom said in a statement.

Special Assistant Attorney General Paul Barnes said in court documents filed this week that the Corrections Department erred in not providing the information sought by Byrom and has now done so.

Byrom and her attorneys had asked Hinds County Chancery Judge William Singletary to hold the agency in violation of Mississippi’s public records law for failing to provide information on whether the drugs are safe and reliable or whether they may have been tainted, expired, counterfeited or compromised in some way.

Barnes said the Corrections Department has now provided essentially everything requested except for the drugmaker’s identity. Corrections officials had no immediate comment.

Byrom was sentenced to death in 2000 in Tishomingo County in the shooting death of her husband, Edward “Eddie” Byrom Sr., at their home in Iuka.

Attorney General Jim Hood has asked the state Supreme Court to set a March 27 execution date for Byrom. Byrom’s lawyers have asked the Supreme Court to allow her to continue her appeals. The court has not yet ruled on either motion.

Vanessa Carroll, an attorney with the New Orleans office of the MacArthur Justice Center, said the center has determined the Corrections Department is buying the lethal injection drugs from a compounding pharmacy in the state and that the center has determined the identity of the pharmacy.

The Corrections Department has said it uses pentobarbital, vecuronium bromide and potassium chloride in executions.

Carroll said in Thursday’s news release that the Corrections Department’s use of a compounding pharmacy raises concerns.

“We have no assurance that this compounded pentobarbital is sufficiently potent and effective. This is an enormous concern because pentobarbital is the first drug administered during a lethal injection, and if it fails to work properly, the prisoner will be suffocated to death by the paralytic agent that is given next, and may be conscious during the excruciating pain caused by the third drug, which causes death by cardiac arrest,” said Carroll.

Compounding pharmacies make customized drugs not scrutinized by the Federal Drug Administration. It’s hard to tell exactly how many states have used or are planning to use compounding pharmacies for execution drugs because states frequently resist disclosing the source of the drugs.

According to the Death Penalty Information Center, six states have either used or announced an intention to use compounding pharmacies to obtain the drugs for lethal injection.

South Dakota carried out 2 executions in 2012 using drugs from compounders. Georgia obtained drugs from an unnamed compounding pharmacy for the planned execution of Warren Hill in 2013, but the execution was stayed. Pennsylvania obtained drugs from a compounder, but has not used them. Colorado sent out inquiries to compounding pharmacies for lethal injection drugs, but all executions are on hold. Missouri used pentobarbital from a compounding pharmacy in the 2013 execution of Joseph Franklin.

Texas and Ohio announced plans to obtain drugs from compounding pharmacies in October 2013. Documents released in January show that Louisiana had contacted a compounding pharmacy regarding execution drugs, but it is unclear whether the drugs were obtained there.

Washington D.C.-based DPIC is a nonprofit organization that tracks information on issues concerning capital punishment.

Idaho death penalty cost report finds limited data

mars 20, 2014

BOISE, Idaho (AP) — A new report from Idaho’s state auditors shows that sentencing a defendant to life in prison without parole is less expensive than imposing the death penalty.

But the Office of Performance Evaluations also found that the state’s criminal justice agencies don’t collect enough data to determine the total cost of the death penalty. The report was presented to the Joint Legislative Oversight Committee on Wednesday by Hannah Crumrine and Tony Grange.

Idaho is one of 32 states with the death penalty, but two of those states — Oregon and Washington — have moratoriums on executions. Idaho has executed 29 people since 1864, but only three since 1977. Keith Eugene Wells was executed in 1944, Paul Ezra Rhoades was executed in 2011 and Richard Leavitt was executed in 2012.

It’s difficult to determine just how much imposing the death penalty costs, Crumrine told the committee, in part because most of the needed data is unavailable. Law enforcement agencies typically don’t differentiate between the costs of investigating death penalty murder cases and non-death penalty murder cases, and jail and prison staffers don’t track the transport costs to bring a condemned prisoner to court cases versus a regular prisoner.

The researchers were able to determine some costs, however: Eleven counties have been reimbursed more than $4.1 million for capital defense costs since 1998, and the state appellate public defender’s office has spent nearly half a million dollars on death penalty cases between 2004 and 2013.

The Idaho Department of Correction spent more than $102,000 on executing Leavitt and Rhoades.

In any case, it’s clear that death penalty cases cost more than sentencing an offender to life without parole, according to the report, in part because it takes longer for the appeal process to come to an end in death penalty cases.d

And the ultimate penalty is seldom imposed: The report found that of the 251 first-degree murder cases filed from 1998 to 2013, prosecutors sought the death penalty in 42 and it was imposed in just seven cases.

Of the 40 people sentenced to death in Idaho since the death penalty was reinstated by the U.S. Supreme Court in 1977, 21 have had their sentences overturned on appeal or are no longer sentenced to death for other reasons, 12 are still appealing their cases and four died in prison. Just three were executed during that time span.

Idaho Gov. C.L. “Butch” Otter wrote a letter responding to the report, stating that he believes state agencies have been diligent in accounting for and containing costs. Otter wrote that though the report raises the question of whether tax dollars are spent wisely on capital punishment, he continues to support the death penalty laws.

“The Idaho Department of Correction in particular has been exemplary in its duty to responsibly carry out death sentences,” Otter wrote. “… And while your report raises and then leaves open the policy questions of whether tax dollars are wisely spent on death penalty cases, let me leave no doubt about my own continuing support for our existing laws and procedures.”

 

Texas obtains new supply of execution drugs from source kept secret

march 19, 2014

Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.

But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with the Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.

The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general’s office, which has said the state’s open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.

“We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” said Texas Department of Criminal Justice spokesman Jason Clark.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to US corrections agencies because they oppose the death penalty.

Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. The announcement comes a day after Oklahoma postponed two executions for a month because it had run out of its own supply of drugs.

Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the US Food and Drug Administration as more conventional pharmacies.

Texas prison records examined by the AP show the state also has a supply of the painkiller hydromorphone and sedative midazolam, the drugs chosen earlier this year by Ohio to conduct its executions when they lost access to pentobarbital.

But in their first use in January, Ohio inmate Dennis McGuire made gasp-like snoring sounds for several minutes during his 26-minute execution. His family later sued, alleging their use was cruel and inhuman.

Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled 3 April execution would make him the first to be put to death with Texas’ new drug supply, said the issue could become fodder for legal attempts to delay his client’s sentence. “This might be good stuff,” he said. “And the roads are getting very short here.”

But Richard Dieter, executive director of the Washington DC-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment. “There are a lot of drugs, and Texas can be creative in finding some,” he said.

Texas’ current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire 1 April. The state has scheduled executions for six inmates, including one set for Wednesday evening and another next week.

Those two will be put to death with the previous stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said. The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.

Sixteen convicted killers were executed in Texas last year, more than in any other state. Two inmates already have been executed this year, bringing the total to 510 since capital punishment in Texas resumed in 1982. The total accounts for nearly one-third of all the executions in the US since a 1976 supreme court ruling allowed capital punishment to resume.

The AP filed an open records request in February seeking details about the drugs Texas planned to use to carry out executions. The AP received the documents on Tuesday, but in following up with Clark about their contents, he said they were moot as the state had secured the new batch of pentobarbital.

Clark then refused to provide more details about the drugs, including how much the state has purchased and from where, and when the new drugs expire. He also refused to say whether the drugs would need to be returned if the attorney general’s office rules the provider must be disclosed. “I’m unable to discuss any of the specifics. Other states have kept that information confidential,” he said.

Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.

Clark, in refusing AP’s request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents. It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.

Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas attorney general Greg Abbott’s office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.

In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state’s suppliers, dismissing the same kind of security concerns raised this week.

“Upon review, while we acknowledge the department’s concerns, we find you have not established disclosure of the responsive information would create a substantial threat of physical harm to any individual,” assistant attorney general Sean Opperman wrote.

Clark said the prison agency planned to ask Abbott to reconsider the issue. “We’re not in conflict with the law,” Clark said. “We plan to seek an AG’s opinion, which is appropriate in a situation like this, and the AG’s office will determine whether it’s releasable.”

When contacted by the AP and made aware of prisons department’s refusal to name the drug supplier, Abbott spokeswoman Lauren Bean said the attorney general would consider the request once it’s received.

(theguardian)

SOUTH CAROLINA – Ricky Blackwell sentenced to death

march 17, 2014

SPARTANBURG, S.C. —After hours of deliberation a Spartanburg County jury issued the death sentence for Ricky Blackwell.

A short time later the judge confirmed the death sentence for the murder of 8-year-old Brooke Center.

The judge said the sentence is to be carried out on June 14, 2014.

Blackwell was also found guilty of kidnapping Brooke Center, he was sentenced to 30 years in jail on that charge.

Prosecutors called the fatal shooting revenge because Blackwell’s now ex-wife was dating the girl’s father.

The jury’s options were life in prison without the possibility of parole or the death penalty.

The seven men and five women seated on the jury found him guilty as charged in just 20 minutes of deliberations earlier in the week.

At 3 p.m. Sunday, the jurors began deliberating Blackwell’s punishment, they returned the sentence just after 8:30 p.m. Sunday.

Before they were released to discuss a possible sentence, a judge told them they must decide whether Blackwell suffers from an intellectual disability, or as stated in court, a mental retardation.

If jurors had found him not to be mentally competent at the time of the crime, they would not have been able to proceed with the death penalty, according to South Carolina law.

The judge told the jurors to come to a death sentence, they had find aggravated circumstances were present when Blackwell committed the crime.  The judge said the two things they could consider aggravators in this case were the age of the victim and the fact it happened during a kidnapping.

The death sentence recommendation had to be a unanimous vote.

Closing arguments began in this sentencing phase began Sunday at 11 a.m., when Blackwell asserted his right to remain silent when the judge asked him if he’d like to make remarks.

Blackwell did not address the jury at any point during the case.

“What a wonderful individual Brooke was,” said solicitor Barry Barnette in his closing arguments.

He told jurors to look at the case closely.

Barnett expressed his disgust with the defense’s assertion that Blackwell suffers from an intellectual disability.

“I got mad,” said Barnette.  “You look at the evidence and no other doctor has ever diagnosed him as such until they paid a doctor from North Carolina to come down and testify that he was. He is not mentally retarded. It’s an insult to people who have this disability. They only did it to spare his life.”

Furthermore, Barnette said Blackwell was a certified employee of several companies where his mental competence would have been questioned.

Barnette got on his knees to illustrate how tall Brooke was and said Blackwell “meant to kill Brooke Center.”

The solicitor said Brooke was shot four times – once in the leg, neck, head and a final shot in her back after she fell to the ground.

“It was no accident,” Barnette shouted in the courtroom.

The solicitor put a Nelson Mandela quote on a projector for the jury to see – which read, “There can be no keener revelation of a society’s soul than the way it treats its children.”

Barnette then showed a picture of a memorial already set up in Brooke’s honor in her community.

“This will affect people for the rest of their lives,” said Barnette.

Barnett began to tear up as he showed the final images to the jury.  It was a side by side comparison of Brooke playing baseball and her lying dead by a swing set after the shooting.

Several jurors were observed wiping tears from their eyes.

The defense presented its closing arguments after a short recess.

Blackwell’s attorney, Bill McGuire, opened up saying he wished photos like they’d just seen not be shown in court.

“He is 55 years old, in poor health and will not last long, but I’m asking you to send him to prison,” McGuire told the jury.  “If the death penalty can do some good, if it could bring Brooke Center back, I’d be the first to say do it, but it won’t.”

McGuire said the jury should let Brooke’s legacy be celebrated by the memorials and ceremonies in her honor instead of sentencing Blackwell to death.

“Imagine if a sign said, “In honor of Brooke we killed a man,” said McGuire.

The public defender portrayed Blackwell as a distraught individual whose marriage was ending.   McGuire said Blackwell was suicidal and tried to kill himself by overdosing on prescription pills before the deadly shooting.

“(If) he’s not a danger to us, then don’t use lethal force,” said McGuire.  “Ricky is mentally retarded. He scored in the bottom 2 percent on IQ tests. Those were reliable tests,” said McGuire.

McGuire stated a person with an intellectual disability like Blackwell could learn skills to perform the jobs he held in the past, referring to the prosecution’s attack on why he was not diagnosed with a disability before this point.

“He has a relationship with God,” said McGuire.  “Everybody he has touched in his life says he is caring, gentle, a good man. See him through the eyes of the people who knew him.”

“He is sorry for what he has done,” said McGuire. “Do you, as a human being, have to kill him? The answer is no. You don’t have to kill Ricky Blackwell.’”

Swearingen requests hearing on DNA testing; DA’s office focused on execution date

march 15,2014

Attorneys for convicted killer Larry Ray Swearingen filed opposition to the state’s motion to set an execution date, arguing the Court of Criminal Appeals remanded the case for further proceedings.

A motion was filed in early March with the state of Texas for a tentative execution date of April 24. However, Swearingen “respectfully” requested a hearing in the 9th state District Court of Judge Kelly Case the week of May 12.

That hearing, if approved, would consider the effect of the appeals court’s remand on DNA testing, as well as the state’s request for an execution date, said James Rytting, Swearingen’s attorney.

“If they (the CCA) wanted to issue an execution date they could have established one by themselves,” Rytting said.

Swearingen was convicted for the murder of 19-year-old Melissa Trotter. She was last seen leaving the Montgomery College campus with Swearingen on Dec. 8, 1998. Her body was found by hunters in the Sam Houston National Forest Jan. 2, 1999, north of Lake Conroe.

Trotter’s death was determined to be a homicide, and that she was sexually assaulted then strangled by piece of pantyhose.

Bill Delmore, appellate attorney with the Montgomery County District Attorney’s Office, said Swearingen’s attorneys have started “grasping at straws.”

In their opposition to the state’s request for an execution date, Swearingen’s attorneys contend where the Court of Criminal Appeals has remanded the case for additional proceedings, it “would be an abuse of discretion” to ignore the “plain language” of the opinion issued by the appellate court in this case and instead set an execution date.

However, Delmore said Swearingen’s case was remanded back to the district court in Montgomery County to deny future requests for DNA testing, and to set an execution date.

A briefing schedule for both parties regarding the effect of the appeals court’s remand was suggested by Rytting on or before May 2.

(yourhoustonnews)

CONNECTICUT – Killer sought sympathy Death row inmate complained of ‘psychological torture’ – Steven Hayes

March 14, 2014
NEW HAVEN — One of two convicts sentenced to death in a Connecticut home invasion sent suicidal letters before he was found unresponsive in his cell Monday, his attorney said Thursday.Steven Hayes remained in stable condition Thursday at a hospital, a correction department spokesman said. Hayes implied in the letters he would be dead by the time they were received, said his attorney, Tom Ullmann.”I don’t think there’s any question that it was an attempted suicide,” Ullmann said.Asked why Hayes tried to kill himself, Ullmann said, “The conditions of confinement are oppressive.” He accused rogue correctional officers of harassing Hayes, declining to discuss details except to cite the removal of items from Hayes’ cell such as an extra blanket.

Hayes, who has a history of suicide attempts, also sent a suicide note to The Hartford Courant in which he called Northern a “psychological torture chamber,” the newspaper reported.

The Courant, citing a state official familiar with the incident, reported Hayes had saved up prescribed medication, including antidepressants, and took it all at once.

Hayes, 50, is on death row for the 2007 killings of a woman and her two daughters after a night of torment inside their home in Cheshire. Another man, Joshua Komisarjevsky, also was convicted and sentenced to death for the home invasion killings.

A federal judge in November denied Hayes’ lawsuit seeking to change his conditions at Northern Correctional Institution, ruling that he did not provide any evidence that his mental health treatment was inadequate or to back up his request for changes to his diet.

Hayes also said his legal papers were confiscated as a form of harassment or retaliation. The judge said the failure of prison staff to provide a full response to that claim “gives the court pause,” but he said Hayes had not shown irreparable harm.

Hayes more recently filed an emergency motion seeking relief, saying his prison cell was too cold and that he was misdiagnosed by staff who claimed his suicidal tendencies, depression and other issues stemmed from his crime rather than his conditions.

“I would rather die than endure these conditions any longer,” Hayes wrote last month.

Hayes did acknowledge that he should be in prison.

“I do not deserve to be psychologically tormented or refused proper treatment,” Hayes wrote. “To date I still suffer from deep emotional periods when I reflect on the pain I caused due to my crime and past actions.”

In court papers, prison staff members deny harassing Hayes or violating his rights. Hayes was subject to discipline after he violated rules by sitting on the floor in protest of a search of his cell and refusing to return his handcuffs upon returning to his cell, officials said.

A Department of Correction spokesman declined to comment.

The attorney general’s office, representing prison staff, said Hayes’ cell is kept at 74 degrees, not 55 degrees as he claimed, and that mental health treatment was available to Hayes but he refused it.

The Courant reported in 2012 that Hayes, who is deathly allergic to oysters, had concocted an elaborate suicide plan while on death row. He had promised to give information about unsolved killings that he lied about committing in exchange for being served oysters, hoping to die from an allergic reaction.

Court to rehear appeal for Ariz. death row inmate – James Erin McKinney

March 14, 2014
PHOENIX (AP) — A federal appeals court is reconsidering an appeal filed on behalf of an Arizona Death Row inmate convicted of two killings during burglaries.

A three-judge panel of the 9th U.S. Circuit Court of Appeals last September upheld a trial judge’s denial of James Erin McKinney’s challenges to his murder convictions and death sentences.

However, the San Francisco-based appellate court now says a larger panel of its judges will consider McKinney’s appeal.

The three-judge panel’s ruling said it didn’t matter much that McKinney was seated so he faced the jury while on trial with a co-defendant before separate juries. And it rejected his other challenges in the appeal.

McKinney was convicted in the 1991 killings of Christene Mertens and Jim McClain during separate burglaries in Maricopa County.

Fresno’s most notorious mass murder remembered

march 12, 2014

FRESNO, Calif. (KFSN) — On this day ten years ago Fresno was rocked by an unthinkable crime. Nine people were shot and killed inside their home. Marcus Wesson would be convicted of murdering his own kids and grandkids.

The Marcus Wesson case serves as Fresno’s most notorious mass murder. The crime scene was so disturbing it brought veteran officers to tears and drew worldwide attention.

People drive by a barely noticeable vacant lot near Roeding Park every day. Many of them unaware what took place here ten years ago. Cameron Caskey lived across the street. He said, “We actually ended up hearing two gun shots.”

Neighbors had no idea what police officers would discover inside 761 Hammond Avenue. Nine of Wesson’s children and grandchildren were shot dead and stacked in a back bedroom of the home.

Fresno police chief Jerry Dyer recalled, “The officers and the crime scene investigators that had to process that, as well as the investigators, it took a toll on them. It was one of the most horrific things this city has seen.”

Today Marcus Wesson sits on death row at San Quentin. He was convicted of nine counts of first degree murder and several counts of rape and molestation. Wesson fathered children with his underage daughters.

Fresno County Assistant DA Lisa Gamoan was chief prosecutor in the case. Gamoian said, “When you see the manipulation, the psychological methods he was using to control all the these girls, he even financially exploited them. It made sense he would be directing the ultimate act.”

Fresno County District Attorney Elizabeth Egan said, “It was astounding how deprived this defendant was.”

Gamoian set out to bring the victims to life for the jury. “How much of life we take for granted that they never got to experience.”

After the murders crowds disrupted the quiet neighborhood. Caskey said, “Even for years after that people would drive by Marcus Wesson’s property and slowly pass by. That got a little tiring.”

That is, until a local real estate group bought the home and tore it down. The property was later sold to the city of Fresno.

Marcus Wesson’s surviving children have talked about how it felt like living in a prison. Lisa Gamoian refers to family survivors as the walking wounded.

abclocal.go

2 Oklahoma death row inmates seek stay for appeal

march 11, 2014

OKLAHOMA CITY (AP) — Lawyers for two Oklahoma death row inmates on Tuesday asked the Oklahoma Supreme Court for a stay of execution while their lawsuit makes its way through state court.

Attorneys for Clayton Lockett and Charles Warner simultaneously filed an appeal and an emergency application for a stay of execution to the state’s highest court, writing the inmates “will suffer irreparable harm” if a stay is not granted. Oklahoma County District Judge Patricia Parrish on Monday denied their request to halt the executions that are scheduled for later this month.

Parrish denied the request on grounds that the case was not under her jurisdiction. Lockett and Warner sued the Oklahoma Department of Corrections last month, challenging a law that bars disclosure of the state’s execution procedures.

“At Monday’s hearing, the State all but admitted it is now using compounded pentobarbital to carry out executions, but it continues to refuse to provide any information about the source of that drug,” Madeline Cohen, an assistant federal public defender said in an email.

Lockett is scheduled to die March 20 and Warner on March 27. They are not challenging their convictions but are asking for a temporary restraining order to prevent their executions until they know more about the lethal injection drugs to be used.

The Oklahoma Attorney General’s Office will respond to the appeal to the Oklahoma Supreme Court by noon on Wednesday, a spokeswoman said.