Sept. 12
TEXAS:
Family and nun fight for retrial as man convicted by all-white jury faces death
---- Supporters of Rodney Reed, scheduled for execution in November, point to
racial bias and questionable evidence
“He never had a chance.” That’s what Sandra Reed said at the start of a rally
in front of the Texas governor’s mansion calling for a retrial for her son,
Rodney Reed.
Reed, 51, has been on death row in Texas since 1998 and is scheduled to be
executed on 20 November for murder.
But an array of supporters even beyond his own family, ranging from some
relatives of the woman he was convicted of killing to a world-famous nun, argue
that Reed is innocent and is a casualty of a criminal justice system beset by
errors and racial bias.
In 1998, Reed, who is African American, was convicted – by an all-white jury –
of the 1996 murder of 19-year-old Stacey Stites.
His family has spent years trying to get his case overturned and he is
represented by the Innocence Project, the not-for-profit group that focuses on
DNA testing to exonerate wrongly convicted people and campaigns to reform the
system.
Reed’s lawyers filed a federal civil rights lawsuit against Texas last month,
after repeatedly being thwarted in their demands for DNA testing of the murder
weapon, a leather belt used to strangle Stites. His lead attorney, Bryce Benjet
of the Innocence Project, said continued refusal to perform the test violates
Reed’s constitutional rights.
And Reed’s case has caught the attention of the Texas state representative
Vikki Goodwin.
“I don’t think anyone can say he is guilty without a shadow of a doubt,”
Goodwin said. “I don’t believe we should carry out the death penalty when
there’s doubt about the truth of the case.”
During the original trial, DNA from the Stites case matched Reed, but he said
he was having a secret affair with her to avoid scandal in a small Texas town,
especially because Reed is black and Stites white.
Reed’s legal team believes new evidence presented at a retrial would prove that
Jimmy Fennell, Stites’s fiancé at the time of her death, was the murderer.
Fennell was a police officer for Georgetown, near Austin, at the time, and was
later sentenced to 10 years in prison for a different crime stemming from
allegations that he kidnapped and raped a woman while on duty.
The lawsuit is the latest in a series of actions to get Reed a retrial.
Three weeks before he was scheduled to die by lethal injection, on 5 March 2015
in the Texas state penitentiary, his lawyers filed an appeal to the criminal
appeals court, citing multiple problems with his conviction and urging a stay
of execution and a retrial. That same month, the US supreme court declined to
review Reed’s case.
In the August 2019 lawsuit, the Innocence Project lawyers claim there are
“multiple additional items of evidence” collected during the murder
investigation in a “condition suitable for DNA testing”. The suit also argues
that that Fennell couldn’t keep his testimony straight and failed his polygraph
tests and that he acted “suspiciously” following Stites’ death, including
closing his bank account and disposing of his truck.
Fennell’s “inconsistent statements” about his whereabouts on the night of 22
April 1996 are significant because the condition in which Stites’s body was
found on 23 April indicates she was “murdered several hours before” her body
was found, the suit claims.
“Prominent forensic pathologists have reached the un-rebutted conclusion that
Fennell’s testimony that Ms. Stites was abducted and murdered while on her way
to work around 3:30AM is medically and scientifically impossible,” the lawsuit
claims.
Several complaints were filed against Fennell alleging “racial bias and use of
excessive force at the Giddings Police Department where he worked”, and he was
overheard several times saying that if Stites cheated on him, “he would kill
her” and “he specifically stated he would strangle her with a belt”, the suit
said.
Fennell was initially a suspect but investigators focused on Reed after his DNA
was discovered inside Stites’s body, and a jury concluded that Reed raped and
strangled Stites after intercepting her on the way to work, a timeline his
lawyers argue has been discredited.
Supporters think there are other issues at play.
“Race was a big factor in this case. A ‘Jim Crow trial’, an all-white jury,
none of his peers,” Sandra Reed told the Guardian.
Benjet said there was data showing racial disparity in “most if not every”
aspect of the US criminal justice system.
Sister Helen Prejean, an anti-death penalty activist and author of the book
Dead Man Walking, visited with Reed’s family in 2015 as his previous execution
date neared.
Her book about the death penalty and the subsequent film changed many people’s
perspectives in the US on capital punishment.
She tweeted about Reed’s case in 2015.
She has followed the case ever since and plans to work with Reed’s family and
his legal team to help spread the word in time to help stop his 20 November
execution. Her spokesperson, Griffin Hardy, said Reed’s case was particularly
compelling to Sister Helen because of Reed’s consistent claim of innocence
throughout the years and because of the case’s racial undertones.
“Racial discrimination infects the death penalty system as a whole and we see
it in this case,” Hardy said. “It’s disturbing to see these kind of biases and
prejudices that can ultimately cost someone their life.”
He says it paints a picture of a legal system that values white victims over
victims of color and punishes criminal convicts of color more harshly.
The Death Penalty Information Center reports that in the modern era, 75% of
executions carried out for murder have involved white victims, even though
blacks and whites “are about” equally as likely to be murder victims.
The bias issue made it to the supreme court in 1987, but the court ruled that
studies didn’t offer sufficient proof of racial discrimination in a particular
defendant’s case. It has found racial discrimination in the selection of the
jury in individual capital cases, however.
Goodwin, the state representative, told the Guardian she was lobbying for a
retrial for Reed or to remove him from death row.
“I believe history has shown that in too many cases what seems to be true and
just has turned out not to be so when new information or new scientific
advances occur,” she said.
Some members of the Stites family have publicly supported a retrial for Reed.
One of Stacey Stites’ cousins also doubts Reed’s conviction.
“Too many things point to the ineptitude of law enforcement when they first
started working the case,” said Heather Campbell Stobbs.
Stobbs said her outspokenness about the case had caused tensions with Stites’
immediate family, who believe Reed is guilty.
Sandra Reed said at the rally of Reed supporters last month that she visited
her son on death row after his execution date was set.
“Rodney and I made a pact the day they came back with that sentencing. I
visited him and we made a pact: ‘If you fall, I fall,’” Sandra Reed said.
“We’ve been sticking with that.”
Rodrick, Rodney’s younger brother, echoed that the campaign goes on.
“It’s not going to stop as long as I have breath in my body,” he said.
(source: The Guardian)
PENNSYLVANIA:
Pennsylvania Court Asked To Toss Death Penalty
The Pennsylvania Supreme Court will consider Wednesday whether the state’s
death penalty statute amounts to cruel, arbitrary punishment that’s too often
reserved for black and poor defendants.
Philadelphia District Attorney Larry Krasner opposes the death penalty and is a
driving force behind the court challenge. He says that 2/3 of the 155 death
sentences handed down in Philadelphia over the past 40 years were later
overturned on appeal.
Critics of capital punishment say that’s often because poor defendants don’t
get adequate legal counsel.
Just under 1/2 of the 137 men on death row in Pennsylvania are black, compared
to 11% of state residents. Krasner says that 82% of the condemned men from
Philadelphia are black. There are no women on Pennsylvania’s death row.
The test case involves 2 men sentenced to death row in the 1990s — Jermont Cox,
of Philadelphia, and Kevin Marinelli, of Northumberland County. Relatives of
Marinelli’s victim, who was killed over a stereo during a 1994 home invasion
robbery, oppose the appeal.
Pennsylvania Attorney General Josh Shapiro and the state District Attorneys
Association also oppose the appeal, saying critics should urge lawmakers to
enact reforms recommended in a study last year, not ask the court to throw out
the statute.
“The questions the report raises are important and should be thoroughly
considered and resolved, by the General Assembly,” Shapiro’s office said in its
brief.
Only three people have been executed in Pennsylvania since capital punishment
was reinstated in 1978, the last of them in 1999. Meanwhile, Democratic Gov.
Tom Wolf put a moratorium on executions when he took office in 2015.
Opponents in court Wednesday say that more than half of the 441 death sentences
handed down since the 1970s have been overturned. They say the Supreme Court
needs to declare the system unconstitutional because lawmakers have failed to
act.
Supporters say the high reversal rate means the appeals process is working.
The issue divides Democratic officials in a state that voted for President
Donald Trump in 2016. Philadelphia District Attorney Larry Krasner supports the
ban while Attorney General Josh Shapiro wants the court to uphold the statute.
The court did not indicate when it would rule. The death penalty remains legal
in 29 U.S. states.
(source: Associated Press)
*****************
7 from Berks on death row as court asked to outlaw penalty
7 convicted killers from Berks County are among 137 prisoners -- all men --
presently occupying a cell on Pennsylvania's death row.
They await their sentence as the Pennsylvania Supreme Court considers a request
to outlaw the state's death penalty because of what critics call the cruel way
it's applied to black and poor defendants.
Opponents in court Wednesday said that more than half of the 441 death
sentences handed down since the 1970s have been overturned. They said the
Supreme Court needs to declare the system unconstitutional because lawmakers
have failed to act.
Supporters said the high reversal rate means the appeals process is working.
The court did not indicate when it would rule.
Berks County's death row inmates are:
•Richard Boxley, sentenced on Oct. 27, 2000, for the murder of Jason Bolton in
Reading in 1997. He is incarcerated at SCI Phoenix in Montgomery County;
•Jose Busanet, sentenced on March 22, 1999, for the murder of Jason Bolton in
Reading in 1997. He is incarcerated at SCI Greene in Greene County;
•Randy Haag, sentenced on Sept. 25, 1987, for the murder of Richard Good in
1982. He is incarcerated at SCI Greene;
•Glenn Lyons, sentenced on July 15, 2011, for the murder of Kathy Leibig in
South Heidelberg Township in 2008. He is incarcerated at SCI Greene;
•Albert Perez, sentenced on May 27, 2009, for the murders of his ex-girlfriend,
Duceliz Diaz, and her 5-year-old daughter, Kayla, in Bernville in 2007. He is
incarcerated at SCI Phoenix;
•Michael Pruitt, sentenced on May 3, 2005, for the murder of Greta Gougler in
Reading in 2002. He is incarcerated at SCI Greene;
•Cletus Rivera, sentenced on Aug. 14, 2008, for the murder of Reading police
Ofc. Scott Wertz in 2006. He is incarcerated at SCI Greene.
(source: WFMZ news)
NORTH CAROLINA:
North Carolina State Supreme Court to Rule on Death Penalty
The North Carolina State Supreme Court is set to weigh in on the future, and
past of the death penalty in the state.
The State Supreme Court heard arguments on Aug. 26 and 27 concerning the fate
of 6 death row inmates. The inmates are asking the Court to spend the rest of
their lives in prison without the possibility of parole instead of facing
execution.
Four of the inmates, previously granted relief from the death penalty after
appealing under the Racial Justice Act (RJA) that their racial bias played a
significant factor in their sentencing, have been returned to the queue after
Republican lawmakers repealed the act. The other two inmates faced pending
cases at the time of the act were also returned to death row.
“Never before has a state done what North Carolina has attempted to do here,”
said Cassandra Stubbs, director of the ACLU Capital Punishment Project and
co-counsel for inmate Marcus Robinson, in a petition written for the court.
“Now that the RJA is repealed, the state’s position is to forget all the
evidence of racial bias.”
Robinson is one of the inmates who proved that racial bias played a significant
role in the prosecution seeking the death penalty in his case.
Robinson, an African-American man, was set to be executed in 2007 when he was
convicted of shooting and killing Erik Tornblom, who was white. Robinson was 18
at the time. Robinson was able to show how the prosecution in his state
discriminated again potential Black jurors, and uncovered a statewide problem.
The prosecutor in Robinson’s case struck Black prospective jurors 3 times more
often than other prospective jurors, while prosecutors across the state used
“peremptory” challenges, challenges where a prosecutor can strike a juror
without having to give a reason, to strike more than 1/2 the Black potential
jurors called in North Carolina capital cases in a 20-year period.
Robinson’s case showed that racial bias was still rampant among North Carolina
prosecutions.
As a result of a larger effort to end racial bias in jury selection, a
Democratic-majority legislature passed the RJA in 2009. About 90 percent of
death row inmates at the time applied for mitigated sentences under the law.
When a Republican-majority legislature repealed the RJA, the pending cases were
voided.
The State Supreme Court must decide if Robinson and the 3 others freed from
death row were properly sentenced to death after the repeal.
Stubbs argues that the, “unchecked systematic racism,” as she was quoted in the
NC Policy Watch, and subsequent resentencing amounted to cruel and unusual
punishment, a standard set forth in the Eighth Amendment of the Constitution.
“The legislature had seen all of the findings,” she said to the high court
regarding the widespread racial bias found in the state. “They were aware of
the record, and they turned their back on the record. The legislature cannot
target and engage in this type of discrimination.”
It is unclear when the Court will issue a ruling on the case.
(source: The Carolinian)
FLORIDA:
Man guilty of killing 2 police officers faces death penalty
A Florida man has been convicted of fatally shooting 2 police officers and
could be sentenced to death.
The Orlando Sentinel reports that 47-year-old Everett Glenn Miller guilty was
convicted of 1st-degree murder Wednesday. The 12-member jury will return in
November to decide whether the Marine veteran should receive life in prison or
a death sentence.
Prosecutors say Kissimmee police Officer Matthew Baxter was conducting a
routine check into 3 suspicious people in August 2017 when Miller drove up and
started asking why the officer was bothering people. Sgt. Richard Howard
responded to the scene, and Miller argued with the 2 officers.
Prosecutors say Miller shot Howard and Baxter in their heads and then
repositioned both bodies before firing again at their faces. Miller was later
arrested at a bar.
(source: Associated Press)
ALABAMA:
A former Death Row inmate takes us through his story.
On a July day in 1985, Anthony Hinton, a 29-year-old African-American man, was
mowing the lawn in his mother’s backyard in Birmingham, Alabama, when two
police officers showed up.
A restaurant had been robbed at gunpoint, and the manager had ID’ed Hinton from
police photos. Hinton told them that he had been at work 15 miles away when the
robbery happened, which was later verified by his supervisor. But the police
searched his mother’s house and found her handgun, which they said matched that
of the robbery, and also that of 2 unsolved robbery-murders.
Hinton was charged. There were no eyewitnesses or fingerprint evidence. He
passed a polygraph test, but the judge ruled it inadmissible. Hinton’s
court-appointed lawyer devoted little time, energy or resources to his case. A
bailiff lied on the stand. Thus, Hinton was found guilty and sentenced to
death.
His cell was 5 feet by 7 feet, and so close to the electric chair he could
smell the burning flesh. He lived in that cell long enough to see 54 other men
walk past to be executed: 28 years.
That’s how long it took for the truth – delivered by Equal Justice Initiative
founder and executive director Bryan Stevenson – to free him from Alabama’s
corrupted justice system.
He was exonerated in April 2015. He wrote a book about his ordeal called The
Sun Does Shine. It’s a memoir, but with passages that describe Kafka-like
horrors.
“In Alabama, justice isn’t blind,” he writes. “She knows the color of your
skin, your education level, and how much money you have in the bank.”
And later: “It didn’t make sense. None of it made sense.”
Kelley McClary, an English instructor at Hartnell College, decided to teach the
book in her class. Her 90 students read it, talked about it, did writing
assignments on it. One student, whose father was in prison, wrote “My belief in
the justice system, prison system and capital punishment has been turned upside
down.”
“My belief in the justice system, prison system and capital punishment has been
turned upside down.”
McClary wrote to the book’s co-author, Lara Love Hardin, who reached out to
Hinton. A year later, Hinton is coming to speak at Hartnell College.
He has heartbreaking stories. While in jail and awaiting sentencing, his mother
keeps asking during visitation, “When are you coming home, baby?”
The injustice is pervasive.
“The obvious racism,” McClary says. “All of that is maddening.”
The ending is bittersweet. And still unfolding. Hinton is speaking out. He’s
done interviews with Oprah Winfrey (who bestowed a 2018 Oprah Book Club
selection), spoken at Google and written for The Guardian. His story has also
been chronicled in Bryan Stevenson’s own book, Just Mercy, which has been
adapted into a film starring Michael B. Jordan, Jamie Foxx and Brie Larson
(Hinton is played by O’Shea Jackson Jr.) that’s due for theatrical release this
December.
(source: montereycountyweekly.com)
OHIO----new death sentence
Columbus man sentenced to death for killing 4-year-old daughter, child's mother
A Franklin County man who stabbed to death his 4-year daughter and her mother
has been sentenced to die.
Wednesday a judge sentenced Kristofer Garrett to die for the vicious killings.
Clifton Duckson's life changed forever on January 5th, 2018, the day he learned
his daughter Nicole Duckson, and granddaughter Kristina Duckson, had been
stabbed to death.
"Nicole was my oldest daughter," he said in court Wednesday. "(She) was also my
nurse, my cook, and I probably shouldn't say this because I've got more kids
back there, but my most loving child. Kristina would walk in the room and light
up a room. I couldn't wait to get off work because I would pick her up from the
daycare and I could not wait to hear those words, 'Hi Paw Paw. Are we going to
McDonald's for a Happy Meal?' Some say she was spoiled. If she was, it was my
fault. Even now, Judge, as I stand here, I can't understand why she had to
die."
Duckson attended every court hearing over the next 20 months and learned in
horrifying detail what happened that day.
Kristofer Garrett, his daughter's ex-boyfriend, waited outside her home before
attacking her.
Then he chased down and stabbed their 4-year-old daughter to death, he told
detectives, because she witnessed him kill her mother.
"Now having sat here and heard the evidence of the 49 stab wounds Nicole
suffered while she hollered 'I'm sorry,' and the 33 stab wounds that Kristina
also endured for just saying, 'Daddy,' no one deserves that much anger and
rage, especially not your 4-year-old daughter. Today I stand before you and I
ask for justice. Not revenge."
Before learning his sentence, Garrett said little: "I just have it on my heart
again to say to the family that I'm sorry," he said.
He showed no reaction as the judge sentenced him to die.
"The court hereby imposes the sentence of death," said Judge Chris Brown.
Clifton Duckson calls it justice and the start of healing.
"I'm never gonna get over the fact that they're gone," he said. "I live in the
same residence they were killed in. So their memory is all around me. I still
have bikes, I still have toys, I still have things of Kristina's. I sleep with
her blanket under my pillow every night. So for me, it doesn't end. It makes it
a little easier, but no, it's never going to end."
The judge set Garrett's execution for October 10, 2019, but any death sentence
carries an automatic appeal.
The court appointed an attorney to represent Garrett in that appeal.
No one from Garrett's family spoke in court Wednesday.
(source: WBNS news)
******************
Ohio appeals court: Feeling of suffocation during execution not
unconstitutional punishment
3-judge panel in Cincinnati overturns ruling by a federal judge in Dayton.
Despite the ruling, it’s an open question whether Gov. Mike DeWine will allow
executions to proceed.
The 6th U.S. Circuit Court of Appeals ruled Wednesday that just because an
inmate feels like he’s being suffocated after a lethal injection, it doesn’t
amount to cruel and unusual punishment.
The three-judge panel, sitting in Cincinnati, said a federal judge in Dayton
was wrong when he ruled in January that Ohio’s execution protocol is likely to
make one feel like one is drowning and then burning when another drug is
administered.
Ohio Gov. Mike DeWine put Ohio executions on hold and ordered corrections
officials to come up with a new intravenous protocol after U.S. Magistrate
Judge Michael Merz decided that the existing protocol almost surely caused
unconstitutional suffering. Merz said he’d block the execution of convicted
killer Warren Keith Henness if not for a 2015 U.S. Supreme Court decision.
One cause of the suffering, Merz wrote, was the drowning sensation produced by
the 1st drug in the protocol, Midazolam. Another cause, according to the judge,
would be the burning sensation caused by the 3rd, heart-stopping drug because
Midazolam doesn’t have the pain-killing properties that drugs such as opioids
do.
Not so, the 3-judge panel wrote. Citing a 2019 U.S. Supreme Court decision,
they wrote, “Consider: Midazolam may cause Henness to suffocate. But the Eighth
Amendment only prohibits forms of punishment that seek to intensify an inmate’s
death by ‘superadd[ing]’ feelings of ‘terror, pain, or disgrace.’”
They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe,
the U.S. Supreme Court’s most recent ruling regarding the death penalty. In
discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment
was adopted, people didn’t see hanging as intentionally cruel, unlike practices
such as disemboweling or burning the condemned while they were still conscious.
Despite the appeals court ruling, it’s still an open question whether DeWine
will now allow executions to proceed. When he initially delayed them, he said,
“Ohio is not going to execute someone under my watch when a federal judge has
found it to be cruel and unusual punishment.”
And then, after The Dispatch reported that Ohio was using drugs in executions
over their manufacturers’ and distributors’ objections, DeWine in July said
Ohio could no longer get the drugs because the suppliers threatened to cut off
all medicine to the state for any purpose. DeWine said the state would look for
a non-intravenous execution protocol.
But at the same time, the state’s lawyers have been in court fighting to use
the existing one. Or at least, the 6th Circuit believes that’s the case.
“Ohio has said that it intends to resume executions with this protocol if we
approve,” the judges wrote in their 6-page ruling.
DeWine press secretary Dan Tierney said further litigation in the case is
likely, so he can’t comment on whether DeWine might allow further use of the
protocol if the supply problems can be solved.
“That concern remains — regardless of the ruling or concerns about cruel and
unusual punishment,” Tierney said.
The Office of the Federal Public Defender, which represents Henness and other
Ohio death row inmates, hasn’t decided whether to ask for the case to be
re-heard by the entire 6th Circuit or whether to appeal to the U.S. Supreme
Court, said David Stebbins, a lawyer in the office. However, he did take issue
with Wednesday’s ruling.
“After an extensive evidentiary hearing on the complex medical and scientific
issues with Ohio’s three-drug lethal injection protocol with the risky sedative
Midazolam, the district court issued a nearly 150-page decision finding the
protocol causes pain and suffering beyond what the U.S. Constitution permits,”
Stebbins said in an email.
“Today’s brief opinion concludes that the district court was incorrect, despite
the court’s reliance on the extensive testimony of some of the nation’s leading
experts that Midazolam cannot prevent pain, and indeed causes severe pain
comparable to ‘a torture tactic.’”
Robert Dunham, executive director of the Death Penalty Information Center, said
Tuesday’s ruling gives Henness’s lawyers grounds for appeal. He said the
court’s job is to determine if the facts described by Merz were supported by
the record. In this case, the record consists of testimony by what Merz
regarded as leading experts in anesthesia and the physiology of pain. The
appellate court’s second job, Dunham said, was to determine if the district
judge’s legal conclusions were sound.
But the 6th Circuit panel’s opinion mixes those jobs together, saying that
Henness didn’t show that he was likely to suffer severe pain and even if he
did, it would still not violate the Eight Amendment, Dunham said.
“It looks like (the 6th Circuit) doesn’t want to admit the reality of what
Ohio’s protocol does,” Dunham said. He added, however, that with the current
conservative majority on the Supreme Court, Henness’s chances of prevailing
there may be slim.
Meanwhile, an anti-death-penalty group said the decision illustrates the
absurdity of the entire process.
“Rather than debating how much pain we are willing to allow people being
executed to endure, we should be debating whether the death penalty truly
serves the justice system and people of our state,” Hannah Kubbins, program
director of Ohioans to Stop Executions, said in an email. “Governor DeWine said
he wouldn’t use the Midazolam execution method and the 6th Circuit’s opinion
shouldn’t change that. The facts and science about the protocol have not
changed.”
(source: indeonline.com)
********************************
Federal Appeals Court Says Suffocation Not ‘Needless Suffering,” Upholds Ohio
Execution Protocol
Saying that “suffocation does not qualify as ‘severe pain and needless
suffering,’” a federal appeals court in Ohio has ruled that the state’s
three-drug execution protocol does not violate the constitutional prohibition
against cruel and unusual punishments.
On September 11, 2019, a panel of the Cincinnati-based United States Court of
Appeals for the Sixth Circuit rejected an appeal by death-row prisoner Warren
Henness (pictured), who had argued that the state’s execution plan was
unnecessarily torturous. In doing so, the panel also reversed a federal
district court’s findings—reached after an extensive evidentiary hearing—that
had likened Ohio’s 3-drug lethal-injection protocol to a combination of
waterboarding and chemical fire.
Ohio’s execution protocol uses the sedative midazolam followed by the paralytic
drug rocuronium bromide and potassium chloride to stop the heart. In a 148-page
opinion issued on January 14, 2019, federal magistrate Judge Michael Merz
assessed the extensive medical evidence before the court and concluded that the
state’s drug combination “will almost certainly subject [Henness] to severe
pain and needless suffering.”
Judge Mertz found that midazolam—which is supposed to render the executed
prisoner insensate to the severe pain he or she would experience from the
second and third drugs—”has no analgesic properties [and] cannot prevent the
pain incident to the 2nd and 3rd drugs from reaching the brain of the condemned
inmate.” The paralytic drug, he found, would produce a sensation “essentially
the same as suffocation” as the prisoner’s lungs shut down and he was unable to
breath. Then the potassium chloride “would feel as though fire was being poured
into [the prisoner’s] veins.” Based on the medical testimony, Judge Mertz also
determined that the high dose of midazolam used in the execution was itself
“certain or very likely to cause pulmonary edema,” a build-up of fluid in the
lungs that would be “painful, both physically and emotionally, inducing a sense
of drowning and the attendant panic and terror, much as would occur with the
torture tactic known as waterboarding.”
Mertz wrote that this evidence, on its face, “should be enough to constitute
cruel and unusual punishment.” However, the U.S. Supreme Court’s controversial
5-4 ruling in the 2015 lethal-injection case Glossip v. Gross also required
Henness to prove that Ohio had an alternative method to execute him that was
“available, feasible and can be readily implemented.” Mertz then ruled that
Henness had not proven that Ohio had an available execution alternative.
The Sixth Circuit affirmed the result, but disavowed Mertz’s factfinding on
torture. It wrote that “neither pulmonary edema nor the symptoms associated
with it qualify as the type of serious pain prohibited by the Eighth
Amendment.” Quoting the Supreme Court’s recent decision in Bucklew v. Precythe
, a Missouri lethal-injection case, the court wrote that although “midazolam
may cause Henness to suffocate[,] … the Eighth Amendment only prohibits forms
of punishment that seek to intensify an inmate’s death by ‘superadd[ing]’
feelings of ‘terror, pain, or disgrace.’” Comparing pulmonary edema to a
prisoner executed by hanging, the court said death by slow suffocation “is not
constitutionally problematic. … [S]uffocation does not qualify as ‘severe pain
and needless suffering.’”
Without discussing the medical evidence on the effects of the second and third
drugs, the appeals court said that “the Eighth Amendment does not guarantee a
prisoner a painless death, so it is immaterial whether the inmate will
experience some pain…. And the fact that midazolam may not prevent an inmate
from experiencing pain is irrelevant to whether the pain the inmate might
experience is unconstitutional.” The circuit court then asserted that Henness
had not met his burden of “showing that a person deeply sedated by … midazolam
is still ‘sure or very likely’ to experience an unconstitutionally high level
of pain.”
Henness’ appeal lawyer, assistant Ohio federal defender David Stebbins,
criticized the ruling in a statement released to the media. He wrote: “After an
extensive evidentiary hearing on the complex medical and scientific issues with
Ohio’s 3-drug lethal injection protocol with the risky sedative Midazolam, the
district court issued a nearly 150-page decision finding the protocol causes
pain and suffering beyond what the U.S. Constitution permits. … Today’s brief
opinion concludes that the district court was incorrect, despite the court’s
reliance on the extensive testimony of some of the nation’s leading experts
that midazolam cannot prevent pain, and indeed causes severe pain comparable to
‘a torture tactic.’ The Sixth Circuit’s decision does not reflect the known
facts about how the 3-drug protocol acts upon the human body.”
Henness’ appeal was part of litigation affecting all of Ohio’s death-row
prisoners. Stebbins said his office has not yet decided whether to seek en banc
review before the entire Sixth Circuit or to ask the U.S. Supreme Court to
review the case.
(source: Death Penalty Information Center)
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