Feb. 21 FLORIDA: Death row appeals over injections create legal mess Florida's death row inmates once feared an oak electric chair. Twice, flames shot from inmates' heads. Nowadays, the condemned have reason to fear "The Protocol." A formula of 3 powerful chemicals administered in 8 steps by medically unskilled personnel - and involving one substance banned by veterinarians - can cause agonizing or prolonged deaths. Executions nationwide are stalled by legal challenges from death penalty foes who leverage reports of botched executions and inadequate sedation as evidence lethal injection constitutes cruel and unusual punishment. But even opponents acknowledge there are simpler, more reliable ways of taking lives through chemicals that, if adopted by corrections officials, would eliminate their newfound opening to tie up executions in the courts. Lethal injection was used on 840 of the 1,011 people executed since 1976. "Properly done, there's a humane way to do this. It's so obvious, it's absurd," said Jonathan Sheldon, who represents death row inmates in Virginia and helped write a 2005 medical journal study that provided fresh fodder for challenges. "If you believe in the death penalty, it wouldn't seem hard to do it right - and I wouldn't be in court fighting this." Prisoner appeals over lethal injections have created a legal mess. Lawyers have varying interpretations of a series of U.S. Supreme Court rulings. In the past 3 weeks alone, justices have halted 2 executions in Florida and allowed 3 in Texas and Indiana. Some states are waiting for clearer directions. Gov. Jeb Bush on Feb. 1 said he would wait for a high court ruling in the Florida cases - probably still 4 months away - before signing more death warrants. In California, killer Michael Morales is to be put to death today - but only because a federal judge imposed new safeguards, such as having a doctor nearby, to provide "independent verification" that Morales is unconscious from a 1st injection before he is paralyzed and his heart halted with 2 subsequent injections. "Talk about a Rube Goldberg system for keeping lawyers, law professors and news people employed," said Doug Berman, a law professor at Ohio State University. "Our ability to tie ourselves in knots about this is amazing. Of course they could just fix the protocol." Death By 8 Syringes At California's San Quentin, where Morales has been awaiting death, it is known as "Protocol 770." At the state prison in Starke, it is simply "The Protocol." Yet it is anything but simple. The procedure, common in all but one of 38 states that have the death penalty, begins after the condemned finishes a last meal, using only a spoon. In Florida, he also is offered Valium to calm the nerves. Then he is taken into the execution chamber, where guards strap him into a hospital-like gurney. 2 IVs - intravenous needles - are stuck into his arms to begin a process involving a pharmacist and eight syringes of chemicals. The objective of the many steps is, according to court testimony of Michael Moore, Gov. Jeb Bush's 1st corrections secretary, "to accomplish our mission with humane dignity." Around the country, results have not always seemed so humane. Executioners have had trouble finding veins. Catheters have come loose, spewing chemicals. Tubes have clogged, prolonging the process. People have taken too long to die and have exhibited symptoms suggesting excruciating pain. Autopsies raise the specter that some inmates have been conscious, feeling pain and suffocation. People dying from cancer and even pets often have it easier - and simpler. Painkillers such as morphine, for instance, can be administered to ease the fatally ill into a peaceful twilight. In effect, they sleep into death. The American Veterinary Medical Association advocates simpler forms of injection for animals as "the most rapid and reliable method" of euthanasia, causing neither pain nor distress. Florida's formula includes a drug banned by the association because pets could wake up. "It's not a rare event, the euthanizing of people or animals," observes death row inmate advocate Sheldon. "There are thousands of people who do this every day, and they are not doctors." A Doctor's Secret Doctors, trained to administer substances that anesthetize and kill, have some of the answers for more flawless executions. But they are ethically bound to "do no harm" - the Hippocratic oath - and tend to stay out of the execution chamber. They don't like to help with executions or even tell corrections personnel how to kill more humanely. One of them is David Lubarsky, a University of Miami anesthesiologist and pain management specialist and a North Carolina-educated conservative Republican. Lubarsky co-wrote a study published in the Lancet medical journal last year that has given death penalty opponents something new to argue about. Using postmortem toxicology reports from Arizona, Georgia, North Carolina and South Carolina, Lubarsky, Sheldon and University of Miami clinical surgeon Leonidas Koniaris concluded that anesthesia levels may have been too low in perhaps 43 of 49 executions studied. In other words, the inmates may not have had enough of the 1st anesthetic chemical in their bloodstream to ensure unconsciousness before the 2nd 2 kicked in. "Methods of lethal injection anesthesia are flawed, and some inmates might experience awareness and suffering during execution," the authors wrote. Without the involvement of doctors, Lubarsky argues that "it is impossible to assure a perfect execution using a complex series of drugs." Mixing substances, injecting them, making certain they reach the bloodstream with the intended effects is a daunting task for anyone but a medical professional, he says. At each step, an unskilled person can forget something, make an error, misinterpret a sign. "Given the complexity [of current protocols], the probability of at least one error gets pretty high," Lubarsky said, "and that is why we see reports of botched executions." Yet like many medical professionals, he declines to detail his prescription for a better protocol. "Do I have ideas how one might make the process foolproof or less prone to error? Certainly." But because of the time-honored prohibition against doing harm, he says, "I will remain silent on that matter." Florida Attorney General Charlie Crist, who is running for governor, also has remained silent on the matter. Crist declined requests for his views, including whether the protocol should be changed as a matter of public policy. Instead, Assistant Deputy Attorney General Carolyn Snurkowski, Crist's lead criminal appeals lawyer, addressed the legal issues, saying Florida's way of killing the condemned had withstood all court challenges and was neither cruel nor unusual. "The protocols are valid," she said, while acknowledging that "there's a lot of ways one could design to do lethal injections. But this is a practice that is prevalent in a number of states." Nor is it unsupervised, she said. "We have a pharmacist present and a physician present." Yet the physician does not do the deed. In fact, an executioner in Florida requires no medical training and needs few qualifications other than knowing how to use a syringe. One other requirement: being a Floridian older than 21. A private citizen who is assured anonymity, the executioner is paid $150. Making It Easier It all started in 1977, when William J. Wiseman, an Oklahoma state legislator, sought a more compassionate way to execute the condemned. After a 1976 U.S. Supreme Court decision reopened the door to capital punishment, and the unsightliness of electrocution, Wiseman asked a state medical examiner and University of Oklahoma anesthesiologist to come up with a recipe that would rapidly render a person more pleasantly unconscious and dead. "I felt bad about my vote," Wiseman acknowledges now, speaking by telephone from Tulsa about the overwhelming show of support for returning the death penalty to Oklahoma. "I thought I might feel better by coming up with a humane technique." The technique spread, to Texas and then other states without much investigation or planning, although the original Oklahoma potion involved 2 drugs, not 3. The University of Miami's Koniaris suggests the problem is that old technology stuck. "It appears that people who wouldn't be the best choices for coming up with something came up with something based on 1969 technology, and that hasn't really been refined." A paper trail documenting that states such as Florida have conducted extensive research before copying the protocol is generally lacking, say attorneys for death row inmates who have filed voluminous requests for corrections records. "As far as I know, no state has ever investigated if this is the proper and best way to do it," said Virginia lawyer Sheldon. "As far as we can tell from our requests, there have been virtually no discussions of protocol." Florida Department of Corrections spokesman Robby Cunningham said,: "We just carry it out. We're not the ones who decide how it's done or what's involved. We just carry out the order." Wiseman, now an Episcopal priest, said what really concerns him are not the botched executions. "What I'm worried most about is the fact that this lethal injection, if done properly, starts to seem so humane it may take away the reality of how violent capital punishment is, regardless of how humane the technique seems," he said. "It may make it too easy to hand down a death sentence." Some people see no reason to worry about botched executions. For instance, Clarence E. Hill - strapped into the lethal injection gurney at the Florida prison when the Supreme Court stayed his execution Jan. 25 - shot a police officer in Pensacola. Hill acknowledges the errors of his ways, but wounds have hardly healed among the officer's survivors and comrades. "It strikes me that one of the most plausible answers is that even if prose cutors and corrections personnel believe a death row inmate suffers 5 minutes of pain along the way, so what?" law professor Berman says. "These people on death row are folks who presumably put their victims in an extraordinary amount of pain. Why should they be troubled if he suffers even a few extra minutes of agony?" (source: Media General News Service) ARIZONA: Former death row inmate turned activist tells 'harrowing story' to UA crowd Nearly 4 years after Ray Krone went from prisoner to anti-death-penalty activist, hes seen a change in the public mentality, with more people considering tales of the wrongfully convicted and willing to question capital punishment. The only thing that gives meaning his 10 years as an innocent man behind bars is the fight to keep others from the same fate, Krone told a crowd of about 50 at the University of Arizona James E. Rogers College of Law Tuesday morning. The talk was co-sponsored by Law Students Against the Death Penalty and the Coalition of Arizonans to Abolish the Death Penalty. "Public awareness is whats going to make the difference," he said. "At one point there was slavery. At one point, women couldn't vote." On Monday, Krone received a formal apology from the Arizona Legislature, an act he said wouldnt have happened 5 years ago. Krone has "done more to get people thinking about the death penalty in the last few years than anyone else," said UA law professor Andy Silverman, who introduced Krone. "It's a harrowing story." Silverman said the apology was an historic event, probably the 1st time a person exonerated for a crime received a formal apology from a state legislature. Krone said its an indication that things are changing. The media is involved with it," he said. "Each of the Ray Krones who get free is saying 'See, we told you this all along.'" Krone was arrested Dec. 31, 1991, two days after the murder and rape of Kim Ancona, an employee who was found dead at a Phoenix bar Krone spent some time at because it sponsored his beach volleyball team. Ancona was stabbed to death and naked except for her socks. Krone was initially questioned the morning after her murder by detectives insisting he was her boyfriend, he said. He cooperated through blood tests, dental castings and harassment, thinking the ordeal was over after he was taken back home. With no criminal record - not even detention in high school, he said - Krone was charged with murder, kidnapping and sexual assault. The public defenders office removed itself from the case and his court-appointed attorney was given just $5,000 to defend him in a capital trial that started 6 months after the murder. A bite-mark expert testified marks on Anconas breast matched Krone's teeth perfectly. After a 3-day trial, a jury convicted Krone and a judge ruled 4 months later the bites were an aggravating circumstance that warranted the death penalty. Krone went to death row and started studying in the prison's law library. Three years later, the state Supreme Court overturned his conviction, saying the prosecution violated the rules of discovery by not notifying the defense early enough about a video made by the bite-mark expert. In February of 1996, Krone was given a new trial. After a 6-week trial, a jury convicted him again, a heart-wrenching moment that finally took Krones faith in the system. The judge ruled there was lingering and residual doubt about his conviction and sentenced Krone to 25 years to life, ensuring that while Krone wouldn't be executed, he'd almost certainly die in prison. In 2001, the Arizona Legislature passed a bill easing access to DNA testing and a blood spot found on the victims clothing was tested for the 1st time. The blood was not Krone's or Ancona's. It belonged to Kenneth Phillips, a convicted felon who was on parole at the time of the murder, living right behind the bar. Phillips is still awaiting trial. "That's the scary part, when you arrest 1st and build a case 2nd," said Krone, who said the prosecution charged through his second trial as if it were a sporting event. Exonerated in 2002 at the age of 45, Krone was the 100th innocent person released after having been on death row, garnering national attention. Krone has since won $4.4 million in settlements from the City of Phoenix and Maricopa County. Hes spoken to the United Nations, 5 different parliaments in Europe and numerous state capitals. "It's not what I asked for, but it's the only thing that can give those 10 years any meaning," he said. "I'm one of the few fortunate ones who got out. There are a lot more innocent ones in there." (source: Arizona Daily Star) NORTH CAROLINA: Man may get new murder trial because of botched transcript A man serving a life sentence for a murder conviction may get a new trial because of flaws in his trial transcript, a prosecutor said. Travis Walters was convicted in 2001 in the death of Betty Jane Oxendine during a 1998 robbery in Lumberton. His case remains under appeal but can't advance because his appellate lawyers can't get a usable transcript from independent court reporter Ronald J. Provencio, court records show. The state Court of Appeals also can't review the case without an adequate transcript. Provencio typed incomplete, garbled and inaccurate notes, court reporter Loretta Armstrong said in court documents. The notes were unclear about who was speaking and contained paraphrases, ad libs and guesses about what was said, she said. His tapes were mislabeled and disorganized, included gaps and often failed to record what was spoken. Noises on the audio suggested the tape recorder malfunctioned at times, she said. Provencio was hired when the state did not have enough full-time court reporters, said Dennis Coley, the state's court reporting coordinator. "I think we'll probably end up trying it again," said Stan Todd, who prosecuted Walters. "I don't know of any other cure." Walters, who was 17 at the time of the killing, was originally sentenced to death. The sentence was converted to life without parole last year after the U.S. Supreme Court ruled killers have to be at least 18 when they commit their crimes to qualify for the death penalty. (source: Associated Press) OKLAHOMA: Former lawmaker predicts end of executions The former state representative who wrote the legislation making lethal injections the way Oklahoma carries out the death penalty believes executions will end in the United States. Bill Wiseman junior wrote the lethal injection bill in 1977 even though he opposed the death penalty. He says he thought it was what his constituents in south Tulsa wanted. Wiseman says he thinks the U-S Supreme Court will eventually rule that executions violate contemporary standards, but says he doesn't think such a ruling will come soon. Several lawsuits have been filed nationwide, including 1 in Oklahoma, that challenge the constitutionality of lethal injections. The lawsuits say inmates being executed are not always left unconscious before the deadly drugs are injected into them. (source: Associated Press) PENNSYLVANIA: Supreme Court rejects Pa. death row case, sides with Alito ruling Pennsylvania lost a Supreme Court appeal on Tuesday that sought to put a convicted killer back on death row. The state wanted justices to overturn a ruling by the court's new member, Samuel Alito. Alito had handled Antuan Bronshtein's case at the 3rd U.S. Circuit Court of Appeals, writing a ruling last year that gave the Russian immigrant a chance to spare his life. Alito was elevated from the appeals court to the high court late last month, replacing Justice Sandra Day O'Connor. He did not participate in Monday's decision to reject Pennsylvania's appeal. Bronshtein, who emigrated to the United States from Russia as a child, was convicted in the 1991 deaths of two Philadelphia-area jewelers. He claimed the victims were slain by a member of the Russian mafia known as Mr. X. He received the death sentence for one of the murders, that of store owner Alexander Gutmann, who was shot in the face and robbed of $60,000 worth of jewelry. At issue in the case was a missed deadline. Bruce Castor Jr., the Montgomery County district attorney, said that for the past decade the state has had a one-year deadline for appeals that "has been strictly applied, exactly as written, in both capital and non-capital cases." Alito, writing for a three-judge panel of the 3rd Circuit, said that the deadline was not consistently enforced in death penalty cases. Alito's decision upheld Bronshtein's conviction but said he was entitled to a new sentencing hearing. A pro-death penalty group, the Criminal Justice Legal Foundation, said in a brief that Alito's opinion was disturbing because of "its cavalier treatment of the Pennsylvania statute." "The considered policy decision of the elected representatives of the people of Pennsylvania is entitled to more respect," the group said in the brief that was filed last fall on the same day that Alito was named to the Supreme Court. The case is Horn v. Bronshtein, 05-346. (source: Associated Press) ************** Evidence shows bill serves justice Outrage ensues when a criminal defendant who is widely perceived to be guilty is acquitted instead. See the O.J. Simpson case or that of the Los Angeles police officers who were recorded on videotape beating Rodney King. It is rare, however, for public outrage to accompany an even darker mark on the system - the conviction of innocent people. The rise of DNA testing has revealed, in cases where the appropriate evidence is available, that wrongful convictions are more common than anyone suspected, including in the most high-profile capital punishment cases. In Pennsylvania, at least 8 convicted people have been freed because post-conviction DNA testing revealed that they could not have committed the crimes. State Sen. Stewart Greenleaf, a Montgomery County Republican, has introduced a bill that could help to ensure fewer convictions of innocent people. The Innocence Commission Act would establish a panel from law enforcement, forensic sciences, the defense bar and the courts to study documented wrongful convictions, determine what went wrong and recommend improvements for all relevant aspects of the criminal justice system. Academic researchers - some of whom have employed their findings in order to secure the release of wrongly convicted people - already have identified some issues. They include over-reliance on faulty eyewitness accounts, false confessions, reliance on informants with dubious motives, faulty forensic practices and prosecutorial misconduct. As Mr. Greenleaf noted, Pennsylvania has established some of the toughest mandatory sentences in the country for serious crimes. The objective must be justice, rather than convictions alone. The Legislature should pass his bill. (source: Opinion, The Scranton Times-Tribune)
