[Deathpenalty] death penalty news----OHIO, IND., OKLA., S.DAK.

[Rick Halperin]

May 17



OHIO:

Doing Harm: Medical Professionals and the Death Penalty


It's a brutal photo. Romell Broom holds his arms in front of him, palms out. 
Dozens of white adhesive squares mark the locations of all 18 attempts to 
insert an IV by members of an Ohio Department of Rehabilitation and Correction 
execution team in 2009. Broom had been sentenced to die for the 1984 rape and 
murder of 14-year-old Tryna Middleton. After two hours, during which 
eyewitnesses claim Broom showed signs of pain and distress, the execution was 
called off.

It was the 1st time a state had attempted an execution but failed to kill the 
condemned person since lethal injection was first used by Texas in 1982. This 
past March, the Ohio Supreme Court ruled that attempting to execute Broom again 
would not constitute cruel and unusual punishment or double jeopardy.

With Pfizer's announcement last Friday that it would impose tighter regulations 
on drugs that can be used for executions, the last open-market source for those 
drugs has been closed. State-sanctioned killing will continue, but states must 
now buy drugs from under-regulated compounding pharmacies.

For years, death penalty states have worked on the margins of medicine. During 
Broom's attempted execution, the fact that medical professionals (including 
nurses and a phlebotomist) failed to insert IVs properly is a case in point. 
When the execution team failed, Ohio corrections officials solicited the last 
minute assistance of physician Dr. Carmelita Bautista, who was working in the 
prison at the time. Bautista later told The Associated Press that she was asked 
to help locate an IV site.

The Ohio Supreme Court's green light to the state to attempt to kill Broom 
again should raise another concern regarding state execution protocols: the 
ongoing participation of medical professionals in state-sanctioned killing.

In spite of the injunction to "first do no harm," some doctors help maintain 
the US death penalty regime.

In 2014, an Oklahoma family physician named Dr. Johnny Zellmer tried to insert 
an IV into the femoral vein of Clayton Lockett during an attempted execution. 
The drugs entered the tissue under his skin and not his bloodstream, causing 
extreme pain. After 43 minutes, Lockett died of a heart attack. His family 
filed a lawsuit against Zellmer, though it was ultimately unsuccessful.

On December 9, 2015, a nurse on Georgia's execution team spent longer than an 
hour inserting IVs into Brian Keith Terrell's arms and also put one in his 
hand. Also in Georgia, on February 3, 2016, the execution team failed to insert 
IVs in 72-year-old Brandon Jones' arms. A physician then inserted an IV near 
his groin.

Doctors have also been involved in executions indirectly. Dr. Mark Dershwitz, a 
professor of anesthesiology at the University of Massachusetts Medical School, 
provided testimony in support of using a controversial drug combination for the 
execution of Dennis McGuire in Ohio. Dershwitz has testified in support of 
lethal injection protocols for 22 states and the federal government. McGuire's 
execution took 26 minutes, and according to witnesses he struggled and gasped 
for air. Months after that execution, Dershwitz announced he would be getting 
out of the testifying business.

In spite of the injunction to "first do no harm," some doctors help maintain 
the contemporary US death penalty regime directly and indirectly, and they have 
the support of a few doctors and lawyers who have argued that doctors should be 
present at executions in order to avoid needless pain and suffering.

Deborah Denno, professor of law at Fordham University and lethal injection 
expert, told Truthout that there should be more attention paid to the role 
medical professionals play in executions. "I think generally people are looking 
more at secrecy and drug acquisition. The Supreme Court hasn't really looked at 
medical professionals. But they've always been involved. They've always been 
there and it's ongoing."

Denno noted that doctors who do participate are not always the best of the best 
-- in part because the pay is low and many of these doctors have had little 
success elsewhere. "And then we often only find out there are doctors present 
when there's a problem," she said.

A Moral Slippery Slope

That photo of Romell Broom's mutilated arms, widely available online, was taken 
by Dr. Jonathan Groner, a pediatric surgeon at Nationwide Children's Hospital 
in Columbus, Ohio. Groner was asked by Broom's attorney to examine him shortly 
after the attempted execution.

Groner's visit to examine Broom was also his 1st visit to a prison.

"It's an otherworldly experience to be there. Everything about the institution 
discourages conversation," he told Truthout. "Broom was basically in a cage, 
and I said to the guards, 'I need to see him; I can't just look at him in this 
cage.' He didn't look particularly threatening to me."

The guards let him out but his wrists and ankles were shackled. They led him to 
a chair. Broom spoke little but would point things out to Groner -- a bruise 
here and there, a wound in a hard-to-reach spot. It had only been a few days 
and the "wounds were still fresh." He seemed shellshocked.

Groner noticed large bruises around puncture sites, suggesting the execution 
team worked hard to find usable veins. He added, "My assumption was that the 
people who did this were not people who do this often -- probably prison guards 
who have EMT training."

"When health care professionals use their skills to execute people, it blurs 
the lines between healing and killing."

After the execution the Ohio Department of Rehabilitation and Correction 
asserted that he had been an IV drug user, but according to Groner, Broom 
lacked the scars of hardcore drug abuse. "His veins looked decent to me. IV 
drug abusers have 'railroad tracks' on their arms from repeated injections up 
and down their veins. Broom had no scars. I couldn't tell why they'd had a hard 
time. He might have been dehydrated. Maybe a little nervous."

Groner emphasized that their inability to access a vein was evidence of their 
lack of skill, experience or training, arguing that an experienced medical 
professional would have been able to find a vein, even on a person experiencing 
tremendous anxiety preceding execution.

Groner wears a tightly trimmed goatee and black-rimmed glasses. His tone is 
fast and persistent -- he speaks in a staccato voice and barely moves his head 
or body. And yet he's warm and thoughtful. He said it was hard for him to work 
in a children's hospital at first, to take care of kids who were sick, while 
his own were young.

But he learned to deal with it -- though he stumbles still. Shortly after his 
father died, he had one such moment. The gasping sound of a mechanical 
ventilator assisting the breathing of a teenager dying after a car crash 
reminded him of his father's before he died. The sound association, the sound 
of the labored breathing, was too much. Groner broke down and sobbed in front 
of his peers. It was a sign of his empathy, the deep regard he has for the 
doctor-patient bond.

"People trust doctors because we don't use our powers to do bad things," he 
said, and that's the problem. "When health care professionals use their skills 
to execute people, it blurs the lines between healing and killing."

Groner opened a folder on his computer with images from various post-execution 
autopsies. One was of a central venous catheterization and the other something 
called a "cutdown." He explained that these are specialized procedures 
requiring skill, training and experience.

"What I remember most about Broom, about the experience, were his hands. They 
were smooth and soft," Groner said. And then he spoke of his father again. "You 
know, they reminded me of my father's at the end of his life."

"When I have to speak to families about end-of-life decisions, about all that I 
can really do is provide comfort. At the end of the day that's the only 
medicine I have. That's a doctor's role -- to provide comfort. Most patients 
would be willing to suffer to survive. But I don't accept that we're supposed 
to provide comfort at an execution. There's supposed to be a trust there and 
when our skills are used for the state's benefit, that's a moral slippery 
slope."

A Brief History of Doctors and the Death Penalty

Doctors have been involved with the death penalty since at least the 18th 
century, when, for example, a French surgeon named Antoine Louis proposed a 
device to make executions swift and, supposedly, humane. That device was 
ultimately named after a death penalty opponent, Dr. Joseph-Ignace Guillotin.

In 1866, an Irish doctor named Samuel Haughton proposed the use of a table of 
drops that accounted for a condemned person's height and weight in order to 
kill them more quickly.

"We do not see the inmate about to be executed as a 'patient' per se."

In an 1887 essay titled "Scientific Methods of Capital Punishment," a dentist 
in New York State named Julius Mount Bleyer proposed "the hypodermic injection 
of morphine." Bleyer suggested that any sheriff would be able to execute a 
condemned person with ease. He wrote, "The advantages of this method are its 
certainty, its painlessness, the freedom from the chance of horrible displays, 
the reduction of the dramatic element to a minimum, and its inexpensiveness."

In 1953, Great Britain's Royal Commission on Capital Punishment considered 
using lethal injection as an alternative method to hanging, but it concluded 
that no medical practitioner should be involved in such a process. As a result, 
the commission stuck with hanging.

Over 2 decades later, 2 medical professionals working in concert with two state 
legislators in Oklahoma concocted the first lethal injection protocol.

Jay Chapman (Oklahoma's chief medical examiner) and Stanley Deutsch (a faculty 
member of the University of Oklahoma College of Medicine), like Haughton and 
Bleyer before them, sought an effective and potentially painless way to kill 
people that could replace the electric chair and the gas chamber.

Their suggestion was to use a lethal cocktail of drugs. For many years, the 
most common drugs used were sodium thiopental or sodium pentothal (to induce 
sleep), pancuronium bromide (to stop breathing) and potassium chloride (to stop 
the heart). In Texas in 1982, Charles Brooks Jr. was the first to be executed 
by lethal injection.

Since 1980, the American Medical Association (AMA) has prohibited medical 
doctors from participating in executions, though doctors can prescribe 
sedatives prior to execution and sign death certificates. The AMA language is 
necessarily broad:

Physician participation in execution is defined generally as actions which 
would fall into one or more of the following categories: (1) an action which 
would directly cause the death of the condemned; (2) an action which would 
assist, supervise, or contribute to the ability of another individual to 
directly cause the death of the condemned; (3) an action which could 
automatically cause an execution to be carried out on a condemned prison.

The AMA was part of a chorus of medical professionals condemning lethal 
injection. Susannah Sirkin of Physicians for Human Rights said in an interview 
that her organization quickly understood what was happening -- that states were 
using physicians to sanitize the process. "We wanted to give the lie to that 
notion," she said.

>From its inception in 1986, Physicians for Human Rights has worked to expose 
and end situations where health professionals violate human rights -- in 
particular, doctor involvement in torture or cruel and unusual punishment. "Of 
course," Sirkin said, "the history of this goes back to Nuremberg and the Nazi 
doctors and the concept of doing no harm."

In 1994, Sirkin helped pen "Breach of Trust," a report that documented the 
roles that medical professionals play in executions. The report concluded, 
"State medical boards, which are responsible for licensure and discipline, 
should define physician participation as unethical conduct, and take 
appropriate action against physicians who violate ethical standards."

Furthermore, the report claimed, "Laws should not be enacted that facilitate 
violations of medical ethical standards (such as anonymity clauses)."

And yet, that's exactly what has happened.

"There's a reason that there's anonymity," Sirkin said. "It underscores the 
fact that states know this is wrong, almost an admission that it's a violation 
of ethics and you can't go after them. And it shows that the only way to 
recruit them is to shield them."

One of the issues facing medical professionals, though, is that the 
declarations of their professional organizations have no teeth. The best they 
can do is censure or revoke membership. This is clear when looking at the 
efforts of physicians to put a stop to other physicians participating in 
executions.

In a June 18, 2014, opinion piece for the Journal of the American Medical 
Association, three doctors from Harvard Medical School argued that protecting 
physicians who participate in executions is essentially an attempt by states to 
de-professionalize medical professionals.

One of the authors, Dr. Robert D. Truog, professor of medical ethics, 
anesthesiology and pediatrics and director of the Center for Bioethics at 
Harvard Medical School, wrote in an email exchange with Truthout that 
legislative attempts to de-professionalize doctors continue. The best-case 
scenario, Truog said, would be for medical boards to revoke the certification 
of doctors who participate in executions. The American Board of Anesthesiology 
has adopted such a policy. "In this case, the physician would not lose his/her 
license, but would be barred from practicing in any hospital that requires its 
physicians to be board certified in their specialty in order to have privileges 
on the hospital staff (which is most hospitals)."

But courts have asserted that licensing boards can't discipline medical 
professionals who participate in lethal injection. When the North Carolina 
Medical Board attempted to do so, the State Supreme Court prohibited it. Some 
states are trying to pre-empt boards from such actions. Ohio's death penalty 
secrecy law, HB 663, says that a licensing authority can't sanction a medical 
professional participating in an execution.

Health Care's Darkest Corner

An overwhelming majority of medical professionals and their attendant 
associations have made it clear that lethal injection executions are not the 
place for physicians and allied health professionals. However, there are 
exceptions, and death penalty states are doing their best to encourage and 
shield these rogues.

Jen Moreno, an attorney with the Berkeley School of Law Death Penalty Clinic, 
told Truthout, "Every state that carries out executions requires the 
participation of medical personnel of some type. Some states specifically 
require a physician to perform some tasks; others list different categories -- 
doctors, nurses, phlebotomist, EMT, paramedics, military corpsman -- that 
corrections officials can choose from."

There are many tasks that blur the lines between the practice of medicine and 
the practice of capital punishment.

Prior to executions, a condemned person typically receives a medical exam to 
assess their veins and a psychiatric evaluation to assess whether or not they 
are competent to be executed. The execution drugs are mixed by a pharmacist. 
And medical professionals set IVs, administer drugs, check consciousness and 
declare death.

"The way they described IV insertion -- they had medicalized the process just 
like the Nazis."

Thus, many organizations that accredit medical professionals have told their 
members not to participate in lethal injection executions. In addition to the 
American Medical Association, the National Association of Emergency Medical 
Technicians, American Nurses Association, American Board of Anesthesiology and 
American Pharmacists Association have all asserted that participating in lethal 
injections contradicts medical ethics.

Because they lack any national representative organization, phlebotomists 
(medical technicians who draw blood) have not taken a similar stance. This is 
significant because state protocols in Florida, Texas and Ohio allow for 
phlebotomists to be members of the execution team.

Moreno said that it's likely that states added phlebotomists to the list of 
those who can participate after the US Supreme Court's 2008 Baze v. Rees 
decision, which upheld the constitutionality of lethal injection. Chief Justice 
John Roberts' opinion notes that Kentucky's execution team includes a 
"certified phlebotomist" with years of experience. In other words, a 
phlebotomist who is trained and has taken an accredited course in phlebotomy.

But not all phlebotomists are certified, nor do they all have significant 
experience. In Oklahoma, according to the Tulsa World, phlebotomists are not 
trained to insert IVs, and yet one was involved in the attempted execution of 
Clayton Lockett. There was also a phlebotomist on the team that attempted to 
insert an IV in order to execute Romell Broom.

Florida's execution protocol permits phlebotomists on its execution teams for 
"achieving and monitoring peripheral venous access" -- which could mean 
inserting an IV. The state says these phlebotomists must be certified by the 
American Society for Clinical Pathology, National Certification Agency for 
Medical Laboratory Personnel, American Society of Phlebotomy Technicians or 
American Medical Technologists.

But it's not clear how phlebotomists actually participate. Alberto C. Moscoso, 
press secretary for the Florida Department of Corrections, told Truthout that 
"we can't elaborate on team member duties as, due to the security concerns and 
sensitivity of assignments surrounding death row, the details of staff 
responsibilities during the execution process are restricted from release."

When contacted by Truthout, an employee at the American Society of Phlebotomy 
Technicians indicated that the society was not aware that it was on Florida's 
list. Nor does the organization have a specific policy on participating in 
lethal injection executions. IV insertion, the employee said, is a separate 
certification and phlebotomists do not typically conduct IV insertions.

A spokesperson for American Medical Technologists told Truthout via email, "The 
detailed exam blueprint for AMT's Registered Phlebotomy Technician exam does 
not include any tasks that would appear to encompass inserting an intravenous 
catheter for purposes of administering fluids, as opposed to drawing blood."

Dennis Ernst, director of the Center for Phlebotomy Education, a nationally 
recognized expert on the profession, said that this is complicated territory. 
"There's nothing in any state that restricts phlebotomist from starting an IV. 
But as far as I know, no state allows them [to] start meds. And no legitimate 
organization would certify for putting in meds."

In 1 scenario, Ernst said he could imagine a phlebotomist inserting an IV, and 
someone else could start the medication.

Ernst said that the extent of phlebotomist participation in lethal injection 
executions is news to him. "Phlebotomy is not very regulated," he said, adding 
that he has been working most of his life to point this out. "Phlebotomists 
need to have regulation or oversight. Only four states require certification: 
California, Louisiana, Nevada and Washington. Phlebotomists have no scope of 
practice, and there is no professional organization representing them. 
Phlebotomy is one of health care's darkest corners; its best-kept secret."

This assertion was underscored when Truthout asked American Medical 
Technologists if phlebotomists are governed by the principle of "do no harm." A 
spokesperson said via email, "There is nothing in AMT's Standards of Practice 
that equates to a 'do no harm' mandate, although the Standards do require that 
'The AMT professional shall place the health and welfare of the patient above 
all else.' We do not, however, read that as prohibiting a member from 
participating in a state-sponsored execution. For instance, we do not see the 
inmate about to be executed as a 'patient' per se."

Now some states are proposing old methods, like the firing squad or the 
electric chair, as backups to lethal injection. And other states are exploring 
new means to execute people -- for example, Oklahoma is considering using 
nitrogen gas. In other words, states are inventing new ways of killing that may 
exclude medical professionals.

But in some ways, they have already moved in that direction.

"Hippocratic Paradox"

Dr. Jonathan Groner said that he was always a death penalty agnostic, until a 
series of encounters turned him into an abolitionist. The first came when, at 
the end of his residency, he testified in the capital trial of Jerry Lee 
Allard. Allard had killed his wife and child and very nearly his other child, 
but Groner, as a young trauma surgeon, was able to help save that child's life.

Testifying at the trial made Groner uneasy. He said Allard was sentenced to 
death and sent to prison, but "he got cancer and died. Never got the ultimate 
punishment, but he did, in a way."

Later Groner read about the 1997 triple execution of Earl Van Denton, Paul Ruiz 
and Kirt Wainwright in Arkansas (the state held another triple execution three 
years earlier). Groner said that as a Jewish kid who had studied the Holocaust 
while growing up, the story about Arkansas resonated.

"The way they described IV insertion -- they had medicalized the process just 
like the Nazis," he said. Groner was incensed by this diffusion of 
responsibility.

"When I read [Robert Jay] Lifton's The Nazi Doctors, I learned that they used 
direct cardiac injections of phenol to kill prisoners in the T-4 euthanasia 
program," he said. "Some states are now using central venous catheters for 
executions, so they are getting pretty close to the same thing."

Groner was clear that he's not comparing the death penalty to the Holocaust; 
he's pointing to doctors who crossed boundaries. For over a decade now, Groner 
has been persistent in his public critique of the medicalization of the death 
penalty and the troubling links to this history.

"There are certain times throughout history where medicalization has been used 
to justify things that are inhumane," he said. "Waterboarding -- they had a 
doctor present. First electrocution -- there were several doctors present. But 
doctors have an esteemed position in society and because of that we can do 
things that others can't. There are times when I perform major surgery -- 
literally cut an infant open -- to deal with a life-threatening issue such as a 
bowel obstruction. Why does a family who has never met me before allow me to do 
that to their child? Because people trust us. In exchange for that, we can 
never use our powers to cause harm."

(source: truth-out.org)






INDIANA:

Pfizer Ban on Execution Drugs Won't Impede Death Penalty in Indiana----State's 
death row inmates still have years of appeals ahead; state has said it has 
stockpile of needed chemicals


The world's largest pharmaceutical company is blocking the use of its drugs for 
executions. But it's unclear how that will affect Indiana.

Pfizer was the last FDA-approved drugmaker which still sold the chemicals used 
for lethal injection. That's the only execution method allowed by Indiana law 
-- it would take legislative action to bring back the electric chair or some 
other method.

But Indiana said 2 years ago it had a stockpile of execution drugs, and the 
state hasn't executed anyone since. The Department of Correction said then it 
had even assisted other states who were having difficulty as the market 
tightened.

Some states have turned to less-regulated compounding pharmacies, or tried to 
import drugs from overseas.

Senate Corrections and Criminal Law Chairman Mike Young (R-Indianapolis) says 
at some point, legislators should probably authorize an alternate method. He 
says no one anticipated supply-chain problems when the state switched to lethal 
injection in 1995. But he says there's no rush. None of the 12 killers on 
Indiana's death row is anywhere close to an execution date -- only 2 have 
progressed as far as a federal appeals court. And Young says any attempt to 
tweak the law would likely trigger a fierce debate over whether Indiana should 
abolish the death penalty entirely.

Indiana hasn't executed anyone since 2009, when Matthew Wrinkles of Evansville 
was put to death for the murders of his wife and 2 of his in-laws.

(source: WIBC news)






OKLAHOMA:

Jury selection continues for trial of 2 men in deaths of 4


Jury selection continues for the trial of 2 men accused of shooting four people 
to death, including a prostitute featured on the HBO reality series "Cathouse."

Prospective jurors were questioned for a 2nd day Tuesday in the trial of Denny 
Edward Phillips and Russell Lee Hogshooter. Both are charged with 1st-degree 
murder in the Nov. 9, 2009, deaths of TV celebrity Brooke Phillips, Milagros 
Barrera, Jennifer Lynn Ermey and Casey Mark Barrientos.

Denny Phillips and Hogshooter are charged with 6 counts of 1st-degree murder 
because Brooke Phillips and Barrera were both pregnant. They have pleaded not 
guilty. Prosecutors are seeking the death penalty.

Brooke Phillips, who wasn't related to Denny Phillips, was featured on the 
cable network's show about the Moonlite BunnyRanch, a legal brothel near Carson 
City, Nevada.

(source: charlotteobserver.com)






SOUTH DAKOTA:

Man charged with murder to be returned to S.D.


A 21-year-old man who led authorities on a 5-day multistate manhunt that ended 
on the Wyoming-Nebraska border will be headed back to South Dakota soon. Jared 
Jerome Stone is accused of killing a man outside of a Sioux Falls casino.

Stone's criminal case in Wyoming has been resolved. He was charged in Laramie 
County with driving while impaired, possession of a controlled substance, 
eluding and 3 other traffic violations.

He pleaded no contest to the DWI and eluding charges. The remaining charges 
were dismissed by prosecutors, according to court documents filed in the case. 
Stone waived his right to an extradition hearing.

Stone was sentenced to 15 days in jail but given a credit for time he'd already 
spent in jail.

Stone was arrested April 27 after a standoff that shut down part of Interstate 
80 near Pine Bluffs, Wyo.

Stone had been on the run since April 22 when police identified him as the man 
who shot and killed Baptise White Eyes in a parking lot on 11th Street on the 
west side of downtown.

He is charged with 1st-degree murder in Minnehaha County. If convicted, he 
could face the death penalty or will be be sentenced to life without parole.

Minnehaha County State's Attorney Aaron McGowan said he doesn't think a court 
date for Stone has been set yet, but he would expect Stone to be returned to 
South Dakota within a week or so.

Meanwhile, the 3 women accused of helping him evade authorities are proceeding 
through the court system in South Dakota.

Lachara Marie Bordeaux, 26, Mercedes Joyce Red Bear, 24, and Desiree Marya 
Sully, 31, have been indicted by a Minnehaha County grand jury on 2 counts of 
felony accessory. They face a maximum sentence of 5 years in prison and a 
$10,000 fine on each count.

(source: Argus Leader)