Sept. 6 KENTUCKY: Ky. Execution Plans Lacking, Critics Say The anonymous team set to conduct Kentucky's 1st execution in 8 years practices every month in a never-used chamber, doing everything from strapping someone to the table to pushing the lethal three-drug cocktail through IVs dripping into a pitcher. What the monthly practices don't include, however, is a protocol for what to do if something goes awry, according to interviews and court documents. State officials say the process includes necessary safeguards, but death-penalty opponents say the potential exists for a long, excruciating execution. They cite examples in other states, such as Ohio, where it took more than an hour to put IV lines in an inmate, and Florida, where an inmate took more than 30 minutes to die. They note that in Kentucky's last execution, in 1999, the execution team needed two tries to find a vein in Eddie Lee Harper's arms. The state's next execution is set for Sept. 25, when Ralph Baze is to die for the 1992 slayings of Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe. The lawmen were serving warrants on Baze when he ambushed them. Baze is involved in state and federal lawsuits challenging Kentucky's method of execution. Kentucky's execution protocol is kept secret by the Department of Corrections, which cited security concerns in denying open-records requests from The Associated Press. Some death-penalty states, including Tennessee, Florida and California, make their protocols public, including details about what and how much of each chemical is given. Some details of Kentucky's protocol were revealed in interviews and court records in a case challenging the constitutionality of lethal injection. Former Warden Glen Haeberlin said in a 2004 deposition that the prison attorney would call the Kentucky attorney general's office if a suitable vein couldn't be found or if something went wrong, but that he was unsure what would happen next. "That's a good question, I, I, I, don't know the answer to that," Haeberlin said. "I mean, at that point in time it would be, uh, a decision that would be made by an entity above me." Haeberlin's comments are a startling admission, said Deborah Denno, a Fordham University law professor who has studied executions and execution procedures. "It's a troubling answer, but it's the most honest," Denno said. David Barron, a public defender who represents Baze and several other death row inmates, said there appears to be no plan about what to do if a medical problem arises and the governor refuses to reschedule the execution. "I guess they could try for hours upon hours," Barron said. "It could get very repetitive." Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, said the Kentucky Supreme Court upheld the state's lethal injection methods in 2005 after Baze and another inmate sued the state. That ruling addressed all of Baze's concerns, Lamb said. "All safeguards are in place to ensure the Kentucky Department of Corrections' staff can carry out the death sentence as mandated by the laws of the commonwealth," Lamb said. The execution team has an hour to find a vein and start the execution, said Jeff Middendorf, the department's general counsel. At that point, the governor is called and asked whether to keep going or reschedule the execution, Middendorf said. During the regular execution rehearsals at the Kentucky State Penitentiary in Eddyville, a member of the execution team plays the role of the condemned inmate. The same drugs used during an actual execution flow from IVs behind a wall into a pitcher on the floor of the execution chamber, according to depositions of Haeberlin and Deputy Warden Richard Pershing. A phlebotomist and an emergency medical technician are part of the execution team, according to depositions, but American Medical Association guidelines bar doctors from taking part. (source: Associated Press) MISSOURI: Attorneys seek U.S. Supreme Court ruling on states lethal injection protocol Taylor Attorneys for a Missouri death-row inmate asked the U.S. Supreme Court on Wednesday to decide a case that could have nationwide ramifications on lethal injection procedures. The court should rule Missouri's procedure is unconstitutionally cruel and unusual, say attorneys for convicted Kansas City killer Michael A. Taylor. It's an issue that courts across the country have grappled with for several years, but it represents the 1st case to reach the high court after being fully litigated and reviewed on appeal, according to Taylor's attorneys. "It therefore offers this court a uniquely well-timed and appropriate occasion to provide urgently needed guidance to the states and lower courts," according to Wednesday's petition. Taylor was 1 of 2 men sentenced to death for the 1989 kidnapping, rape and murder of 15-year-old Ann Harrison, who was snatched from in front of her Kansas City house while waiting for the school bus. He was scheduled to be executed early last year, but his legal challenges to the state's lethal injection procedures put all Missouri executions on hold. A federal judge in Kansas City initially ruled against the state, but earlier this summer the 8th U.S. Circuit Court of Appeals reversed the judge and found that Missouri's plan for carrying out executions does not violate constitutional protections against cruel and unusual punishment. In Wednesday's filing, Taylor's lawyers asked the Supreme Court to rule on whether the appeals court erred in its decision. They said that the case could help clarify "2 exceptionally important questions" concerning the Eighth Amendment and what minimal standards and safeguards states should be required to adopt in carrying out executions. Missouri Attorney General Jay Nixon's office declined to comment Wednesday. Matthew Hellman, one of the attorneys for Taylor, said the state would have 30 days to file a response with the Supreme Court. Hellman anticipates that the Supreme Court could decide sometime in October whether it will take the case. The issues raised in Taylor's case have been mirrored in other courts across the country and hinge on the sequence of 3 drugs used to put inmates to death in 37 of the 38 states that have capital punishment. The argument is that if the 1st drug, a sedative that renders the inmate unconscious, is not administered properly or in sufficient dosage, it will leave the person awake and susceptible to excruciating pain from the subsequent drugs. Because the 2nd drug in the sequence acts to paralyze the inmate's muscles, observers would not be able to tell that the inmates were suffering, critics have argued. In its ruling, the 8th Circuit court said that Missouri's written protocol "renders any risk of pain far too remote to be constitutionally significant." Taylor, 40, is 1 of 44 death row inmates in the state, according to the Missouri Department of Corrections. (source: Kansas City Star) WASHINGTON: Appeals court ruling spares murderer's life A former West Virginia man will not be put to death for the 1979 murders of a Canonsburg dry cleaner and his 15-year-old clerk. The U.S. 3rd Circuit Court of Appeals recently dismissed the first-degree murder conviction for William "Tippy" Wallace, 52, in the death of Tina Spalla. The court, however, let stand Wallace's 2nd-degree conviction for the death of 63-year-old Carl Luisi. Thus, while Wallace will no longer be housed on death row, he will remain behind bars for the rest of his life. At his trial in 1985, a jury from Somerset County convicted him of the murders and decided that he should receive the death penalty. The trial was the third to be held for Wallace in connection with the murders. His 1st trial in 1980 ended in a hung jury. Wallace was convicted in 1981 by jurors from Erie County, but the ruling was overturned by the state Supreme Court in 1983, and a new trial was ordered. In 1989, the state Supreme Court upheld the death penalty following an appeal by Wallace who contended he was prejudiced because the court did not allow hearsay evidence of a statement made by his accomplice, Henry Brown, admitting that it was he who shot Spalla and not Wallace. Brown testified against Wallace at trial, but after he renegotiated a plea bargain in which his life sentence was reduced to 10 to 20 years in prison. A key condition of the new plea bargain was that Brown testify against Wallace. However, Wallace then appealed to the U.S. District Court, which overruled the state Supreme Court and ordered that the death penalty against Wallace be vacated. The prosecution then cross-appealed to the higher court claiming that the district court erred in its decision. In the recent court decision, the court of appeals reaffirmed the district court's ruling. Former Washington County District Attorney Herman Bigi led the prosecution against Wallace during the 1st 2 trials. Current District Attorney John C. Pettit prosecuted Wallace in his 3rd trial. Pettit could not be reached Wednesday for comment. (source: Observer-Reporter) KANSAS: State's death penalty could hinge on one word Kansas' death penalty law could come down to a single word in the state's constitution. An attorney for convicted murderer Wichitan Gavin Scott argued before the Kansas Supreme Court on Tuesday that the word--"or" -- allows the high court to strike down the state's death penalty law again. The state Supreme Court invalidated the death penalty law in December 2004, but the U.S. Supreme Court upheld it as constitutional in June 2006. The Kansas court is now considering the appeal of Scott, sentenced to die by injection for the shootings of Doug and Beth Brittain as they lay in bed in their rural Goddard farmhouse in September 1996. An accomplice was sentenced to 80 years to life in prison. Scott's attorney, Rebecca Woodman, told the justices that they could invalidate the death penalty law over the same issue that was before the U.S. Supreme Court when it ruled in June 2006. She said that's because the state constitution bans "cruel OR unusual" punishment and the federal constitution prohibits "cruel AND unusual punishment." The small difference in wording means the state constitution offers more protection to defendants than the federal constitution, Woodman said. "This court, in interpreting its own state constitutional provisions, is not bound by the U.S. Supreme Court decision," said Woodman, a state capital appellate defender. "If it were, the state's highest court, this court, would simply forfeit its power to interpret its own constitution to the federal judiciary." But Stephen McAllister, the state's solicitor general, said the Kansas court has said repeatedly in past rulings that the differences in the state and federal constitutions' bans on cruel and unusual punishment aren't significant. "There's no indication that the people at the time the constitution was adopted would have thought that 'or' made any legal difference," McAllister said. "The problem in this case... is a reluctance to accept what the Supreme Court of the United States resolved." The Kansas Court is scheduled to release its next opinions Oct. 26, but it's unlikely a decision in Scott's appeal will be ready, given the complexity of the case. The issue Woodman raised is what happens when jurors conclude the circumstances in favor of imposing a death sentence are equal to the circumstances for imposing a life sentence instead. Kansas law says a jury must recommend death. "If it's a tie, you die," Woodman said. Kansas last executed convicted murderers by hanging in 1965. The state was without a death penalty law from 1973 to 1994. In its December 2004 ruling, the Kansas court said the law represented cruel and unusual punishment and that the "tie" must go to the defendant. But the U.S. Supreme Court's majority rejected the idea that the law favors a "general presumption" for death sentences. Both rulings interpreted the Eighth Amendment against cruel and unusual punishment. Neither dealt with the Kansas Constitution's Bill of Rights, banning cruel or unusual punishment. (source: Associated Press) TENNESSEE: Resisting Reform----Some critics blame the attorney general for status quo in lethal injection protocols When Gov. Phil Bredesen halted executions in Tennessee for 90 days, he insisted there were no serious flaws with the states death penalty. But just to ensure "no cloud hangs over" future executions, the governor appointed a committee to review existing protocols. Rather than simply review the status quo, though, the committee explored alternatives to the states execution methods, and after weeks of deliberation the group was leaning toward recommending a complete overhaul of lethal injection procedures. Then suddenly, and without explanation, the review committee abandoned all talk of discontinuing the existing 3-chemical method in favor of using a single drug. And when the moratorium expired on April 30, 2007, and the group issued its report, the state was left with virtually the same controversial protocol as before. Hundreds of pages of notes and other documents that were turned over to the Scene as part of a public records case the state unsuccessfully fought fail to explain exactly why the committee changed course. But observers are quick to point the finger at State Attorney General Bob Cooper. "From a legal strategy, it makes total sense that the attorney general is behind this," says one Tennessee lawyer who represents death row inmates. That's because the attorney general's office has steadfastly defended the controversial 3-chemical injection as humane in both past and ongoing litigation. In fact, a hearing began Tuesday in U.S. District Court in Nashville in the case of death row inmate Edward Harbison, who argues that the state's 3-drug lethal injection practice is torturous and unconstitutional. Harbisonwho is scheduled to die by lethal injection Sept. 26was sentenced to death for the 1983 fatal beating of a Chattanooga woman who surprised him and an accomplice as they burglarized her home. "The attorney general's office has demonstrated a deliberate indifference to the problems and risks of using this multi-chemical cocktail in order to preserve their litigation posture," says the lawyer, who asked that he not be named because of his involvement in ongoing appeals in capital cases. The attorney adds that he believes the moratorium was nothing more than a farce intended to clean up the state's execution manual without making any real changes. "Whether the governor intended it that way, only someone reading the governor's mind could know," he says, "but it certainly turned out that way." An April 23 email sent from the governor's communications director, Bob Corney, to press secretary Lydia Lenker suggests that was indeed the plan along. The message recommends several statements that should be used in response to potential criticism at the expiration of the moratorium, one of which is: "The Governor issued [the] current moratorium for the very narrow purpose of cleaning up the written procedures surrounding the states death penalty protocol." The state's lethal injection procedure includes a series of three chemicals: a barbiturate used to make the inmate unconscious, a paralyzing agent and a poison found in road salt. If the first chemical is not properly administered, the inmate might very well experience excruciating pain, but because of the paralytic, he would be unable to show any signs of suffering. Critics of the 3-drug method say administering the 1st chemical alone is enough to kill a prisoner without the risk of suffering, although the process might take a little longer. When asked whether anyone in the attorney generals office did in fact dissuade the committee from recommending the 1-drug option, spokeswoman Sharon Curtis-Flair responded by email: "Our office provided legal advice to the Department of Correction. That advice is privileged. We are not at liberty to disclose that." Minutes from an April 12 meeting indicate that after speaking with an expert anesthesiologist from Massachusetts, the review committee was leaning toward recommending a 1-drug protocol. Some of the pros cited during the meeting: less risk of error; similar to animal anesthesia; eliminates the use of the 2 controversial drugs challenged in court; and all physicians consulted agree with the method. As for the cons, they cited only two: no other state does it, and it changes the current procedure. About halfway through the meeting, Associate Deputy Attorney General Jennifer Smith stopped by for an update and one of the members informed her the committee was leaning toward the one-drug protocol. It appears there was no further discussion on the matter that day, at least according to the minutes. A week later, plans to recommend the single-drug protocol were forgotten altogether. In court documents filed recently in an unrelated matter, Smith explains to the judge that she needs more time to file briefs in the case because she "has been engaged in the process of guiding and advising the Tennessee Department of Correction in its task of reviewing and revising Tennessee's protocols for lethal injection. The entire process has required exhaustive research and consultation." And while handwritten notes taken by one of the committee members shed little light on why the committee shifted gears, they do reveal that the group understood the last-minute change of course might appear suspicious. Here are a few notations from the April 20 document: "It's going to be evident that team was sold on one-drug protocol. Not a big dealteam was training on 3-drug protocol anyway. Reluctant to say TN should be out there in the forefront. Damned if we do and damned if we don't. "It's clear the committee wanted to move to a one-drug protocol," says Rev. Joe Ingle, a United Church of Christ minister who counsels death row inmates. "However, they did not do so in their final recommendation. The reason for that is political, not because of any concern about whether this protocol is actually functioning properly or minimizing suffering to prisoners. Weve ended up with virtually the same protocol, which is as terribly flawed now as it was when the committee first began its work." In recent years, three inmatesSedley Alley, Robert Glen Coe and Philip Workmanwere executed by the 3-chemical injection despite last-minute appeals claiming the procedure was cruel. Following Coe's execution in 2000, an expert anesthesiologist concluded the inmate did not receive enough sedative and was possibly awake, suffocating in agony yet unable to move. No autopsy was performed on Alley at the request of his family. As for Workman, it's been 4 months since his execution, and the results of his autopsy still have not been released. Because Workman is the only inmate to be executed since the moratorium expired, lawyers for Harbison have requested those results from the state, arguing they are vital to this case. Specifically, the toxicology report will reveal whether Workman received enough barbiturate to remain unconscious during the execution. Last Friday, U.S. District Judge Aleta Trauger ordered the state to do everything in their power to secure the results for this weeks hearing, which is expected to last through the week. If the information is not made available, Trauger indicated that Dr. Bruce Levy, the state medical examiner, should be prepared to testify as to why the autopsy report has not been completed. Death penalty opponents are hopeful that Trauger will carefully review all of the evidence and ultimately stay Harbisons execution. Regardless of how she rules, the matter will almost certainly be appealed. "I think the hearing will allow for a full presentation of the facts of this 3-drug protocol, which is all we've ever asked for," Ingle says. "When you put out the facts about how this protocol works and doesn't work, you see a system that is deeply flawed and probably inflicts great suffering on prisoners as they are killed." (source: Nashville Scene)
[Deathpenalty] death penalty news-----KY., MO., WASH., KAN., TENN.
Rick Halperin Thu, 6 Sep 2007 18:19:26 -0500 (Central Daylight Time)
