death penalty news April 19, 2005
KENTUCKY: Bench trial opens on Kentucky's execution method 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 first day of a four-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 first of three 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 first day of the expected four-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 first 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 two people who start the IV on the condemned will not testify during the four-day hearing. Their identities have been kept secret throughout the litigation. During the six 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 two 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:Lexington Herald-Leader)
