[Deathpenalty] death penalty news-----MISS., OHIO, MO.

[Rick Halperin]

Aug. 17


MISSISSIPPI:

Mississippi Says It Has Execution Drugs Amid Secrecy Fight----Mississippi 
prison officials say they have obtained new supplies of execution drugs.



Mississippi prison officials have obtained new supplies of execution drugs, 
which could allow the state to carry out lethal injections after some other 
drugs expired, they said in court papers.

The state provided that information Monday in an ongoing lawsuit over its 
execution methods. Mississippi's new execution secrecy law should block lawyers 
for death row inmates from finding out too much about the state's plans to 
administer the death penalty, the state said. Among the things the state wants 
is a federal judge to protect the identity of the drug supplier, as well as any 
clues in other documents about who that supplier might be.

Lawyers for death row inmates, though, are asking U.S. District Judge Henry T. 
Wingate to force the state to provide more information about Department of 
Corrections' drug-buying effort, saying it's necessary to pursue their lawsuit 
challenging Mississippi's current execution method. The court showdown will 
determine whether the state law can trump a federal lawsuit on the subject.

Attorney General Jim Hood told The Associated Press in June that he hopes to 
ask the Mississippi Supreme Court to set execution dates for Richard Jordan and 
Thomas Loden Jr. this year. Mississippi hasn't executed anyone since 2012, in 
part because of the legal challenges and the drug shortages. Both Loden and 
Jordan have filed fresh appeals since they lost state appeals over the use of 
midazolam and Jordan is also still seeking a rehearing, so it's unclear when 
executions can move forward.

Plaintiffs say they need the information about drugs because under federal law, 
if they're going to challenge Mississippi's method of execution, they have to 
propose a "known, available alternative." Lawyer Jim Craig would prefer that 
the state use only pentobarbital, the drug Mississippi formerly used as the 1st 
drug in a 3-drug sequence. Craig notes Texas, Georgia and Missouri are all 
still using pentobarbital in executions.

Mississippi now plans to use the sedative midazolam, followed by a paralyzing 
agent and a drug that stops an inmate's heart. The use of midazolam has been 
repeatedly challenged nationwide because prisoners have coughed, gasped and 
moved for extended periods during executions. Lawyers for Jordan and others 
argue prisoners feel pain as drugs are administered after midazolam, violating 
the U.S. Constitution's ban on cruel and unusual punishment.

In court papers, Mississippi officials said they stopped being able to buy 
pentobarbital in 2015, and couldn't find a pharmacy to make some using raw 
ingredients.

So, after a 2015 U.S. Supreme Court ruling approved Oklahoma's use of 
midazolam, Mississippi officials rewrote their execution procedure to use that 
drug. The state acquired some midazolam that year, but court papers state that 
it expired at the end of May. Employees of Attorney General Jim Hood and the 
Corrections Department then found a Mississippi pharmacy identified only as 
"Supplier 1" in court papers to sell new drugs to the state.

An unnamed person testifying on behalf of the pharmacy said the business agreed 
to supply drugs only under conditions of secrecy, citing fears that death 
penalty opponents would harass the pharmacy "resulting in physical and/or 
financial harm" and that drugmakers whose products the pharmacy is selling to 
Mississippi might cut off business because they don't want their drugs used in 
executions.

Craig wrote that the state has dragged its feet over 22 emails that the state 
is still refusing to give to the plaintiffs, said the state lied in responses 
to public records requests and said lawyers lied to Wingate when they said on 
May 31 that didn't know whether the state had obtained new supplies of 
execution drugs. The drugs had arrived in early May. Craig wants all the people 
involved in obtaining drugs identified by name.

"Defendants have stonewalled Plaintiffs' attempts to determine exactly who, 
what, when, and how MDOC has attempted to secure lethal injection drugs," Craig 
wrote.

(source: Associated Press)

*****************

State's Longest-Sitting Death Row Inmate Challenges Death Penalty Drug



The Mississippi Supreme Court has sentenced Richard Jordan to death 4 times, 
but with the help of his lawyers, he continues to challenge the state's death 
penalty method.

In July, Jordan filed his 2nd petition for post-conviction relief, continuing 
to challenge Mississippi's proposed use of midazolam as a part of its lethal 
injection.

Earlier this summer, the state's high court denied Jordan's 1st petition for 
post-conviction relief, which challenged the Mississippi Department of 
Corrections' use of midazolam as well as the constitutionality of executing an 
inmate who has been on death row for more than 40 years due to legal delays. 
Jordan was first tried and convicted in July 1976 for kidnapping and murdering 
Edwina Marter in Harrison County, leaving her body on a logging trail.

His case continued to face legal hiccups, however, with both court precedent 
and then the U.S. Supreme Court vacating his death sentence in the 1980s 
because Jordan had not been allowed to present evidence of "his adaptability to 
prison." In 2001 the Mississippi Supreme Court affirmed Jordan's fourth death 
sentence, which he has appealed and challenged since.

This year, the Mississippi Supreme Court decided to ignore Jordan's midazolam 
challenge, despite 3 justices agreeing that the case warranted more attention 
because the Legislature amended its death-penalty statute in the 2017 
legislative session.

Avoiding 'Severe Pain'

Previously, state law required the lethal injection's three-drug combination to 
begin with a "continuous intravenous administration of a lethal quantity of an 
ultra short-acting barbiturate or other similar drug."

Now, the law requires "the sequential intravenous administration of a lethal 
quantity of the following combination of substances: a) an appropriate 
anesthetic or sedative; b) a chemical paralytic agent; and c) potassium 
chloride, or other similarly effective substance."

The new law further defines an "appropriate anesthetic or sedative" as one that 
means a substance that "if properly administered in a sufficient quantity is 
likely to render the condemned inmate unconscious, so that the execution 
process should not entail a substantial risk of severe pain."

Jordan's latest petition challenges the new law, arguing that midazolam is not 
"an appropriate anesthetic or sedative." Jordan's lawyer, James Craig, the 
co-director of the MacArthur Justice Center, argues that midazolam is not 
capable of making Jordan unconscious like state law says it should. The 
petition, filed in July, asks the Mississippi Supreme Court to review the facts 
about midazolam in light of the change to Mississippi's death-penalty law.

In an expert affidavit, Dr. Craig Stevens, a professor of pharmacology at 
Oklahoma State University, writes that midazolam is not "an appropriate 
anesthetic or sedative," because it does not produce the loss of 
unconsciousness, as it should. Stevens writes that midazolam is a sedative drug 
but not an anesthetic because "it cannot produce the state of general 
anesthesia."

The Sedative Question

The American Society of Anesthesiologists has a standard continuum of sedation 
that categorizes how responsive a person on different levels of sedatives or 
anesthetics might be. General anesthesia is the only category one that leaves a 
person "unarousable even with painful stimulus."

Midazolam, Stevens writes, "does not produce maximal depression of 
consciousness leading to general anesthesia, is not used as a general 
anesthetic agent, and is classified as a sedative drug." If midazolam is 
considered a sedative, as Jordan's petition alleges, it would not be guaranteed 
to ensure an inmate is "unarousable" before the other drugs in the state's 
three-drug combination are administered, leaving the possibility for an inmate 
to feel pain before death.

Other states use midazolam in their lethal injections, with mixed results. In 
the past year, executions in Alabama and Arkansas that raised questions about 
the inmate's movements included midazolam as 1 of the drugs in both lethal 
injections. In April, an inmate in Arkansas lurched forward several times in a 
row, about 3 minutes into the process, an AP reporter wrote. In Alabama, one 
inmate heaved and coughed for 13 minutes during his execution, AL.com reported. 
The most recent execution in the country, however, used midazolam with no 
visible complications. Ohio state officials used midazolam with rocuronium 
bromide and potassium chloride for their three-drug lethal injection on Ronald 
Phillips, whom Ohio state officials put to death on July 26, The Washington 
Post reported.

Mississippi's 3-drug protocol is similar to Ohio's. In a January 2017 records 
request, Craig obtained drug inventory records from MDOC, which show the drugs 
MDOC has on hand. Mississippi, like Ohio, has midazolam and potassium chloride, 
these documents show. However, the second drug in Mississippi's lethal 
injection is vecuronium bromide, which is similar to rocuronium bromide. A 2015 
study comparing the two drugs found rocuronium to have a faster onset time than 
vecuronium. Jordan's challenge does not address vecuronium; his petition 
focuses on midazolam and the state's new death penalty law.

"At a minimum, Mr. Jordan is entitled to an evidentiary hearing to prove the 
State's choice of lethal injection drugs violates Mississippi law," Jordan's 
2nd petition states. The state has asked for an extension of time to file their 
response and likely won't do so until September.

(source: jacksonfreepress.com)

******************

Controversial medical examiner backs off 'shaken baby' claim in death penalty 
case



This week, the controversial former Mississippi medical examiner Steven Hayne 
testified at a hearing for Jeffrey Havard. Havard was convicted in 2002 of 
sexually assaulting and shaking to death Chloe Britt, the 6-month-old daughter 
of Havard's live-in girlfriend. Havard has always maintained that the infant 
hit her head on the toilet after he dropped her while giving her a bath.

But Havard made some mistakes. He first failed to tell his girlfriend - and 
later doctors and investigators - that he had dropped the girl. By the time he 
did, they understandably no longer believed him. But the evidence against 
Havard has always been thin. It has mostly consisted of testimony from Hayne 
that Chloe Britt died from shaking, not from a blow to the head consistent with 
Havard's story. The symptoms Hayne cited to make that diagnosis have since been 
called into question in the medical and forensics communities. But the shaken 
baby syndrome (SBS) diagnosis alone probably wouldn't have allowed the state to 
seek the death penalty. That's perhaps why prosecutors also alleged the sexual 
assault. By the time of Havard???s trial, doctors, ER nurses, the county 
sheriff and the local county coroner all claimed to have seen significant 
damage to Chloe Britt's rectum, damage they testified was consistent with 
abuse. Hayne, too, seemed to concur with the sexual abuse allegation. He 
claimed at trial to have found a found a 1-inch contusion on the girl's anus. 
When the prosecutor asked Hayne what could have caused the contusion, he 
replied, "penetration of the rectum by an object."

But Hayne's autopsy on the girl showed no such abuse. The one-inch contusion he 
claimed at trial was actually only one centimeter (he claimed he misspoke). 
Since Havard's conviction, multiple medical examiners and other experts have 
submitted affidavits on his behalf to dispute both the SBS diagnosis and the 
state's claim of sexual abuse. The Mississippi Supreme Court hasn't shown much 
interest.

At trial, Havard's attorney requested funds to hire his own medical examiner to 
review Hayne's work. The judge turned him down. After the conviction and death 
sentence, former Alabama state medical examiner Jim Lauridson submitted an 
affidavit on Havard's behalf questioning Hayne's conclusions about the sexual 
abuse. Lauridson pointed out that what the doctors, nurses and law enforcement 
officials likely saw during those frantic moments in the emergency room was a 
dilated anus, which often occurs in young children who are brain-dead, or 
shortly after death. Hayne's own photos of the girl's body, taken after she was 
cleaned up, showed no signs of sexual abuse.

The Mississippi Supreme Court at first refused to even consider Lauridson's 
affidavit. The court ruled that his critique of Hayne's work was evidence that 
should have been introduced at trial. Of course, that was impossible, since the 
court refused to give Havard money to hire his own expert witness. The court 
didn't consider Lauridson's affidavit until Havard had exhausted his appeals 
and was in post-conviction - when such claims are much more difficult to win. 
When the court did finally consider Lauridson's affidavit, in 2008, the court 
rejected it out of hand. Justice George Carlson's majority opinion badly 
misrepresented what Lauridson wrote. To give just 1 example, Carlson wrote that 
Lauridson stated in his affidavit that "there is a possibility that Chloe 
Madison Britt was not sexually assaulted.'" Carlson then added, "Taking this 
statement to its logical conclusion, this leaves open the possibility that she 
was."

That of course is not the logical conclusion. Worse, the phrase "there is a 
possibility" doesn't appear anywhere in Lauridson's affidavit. Here's what 
Lauridson did write:

"The conclusions that Chloe Britt suffered sexual abuse are not supported by 
objective evidence and are wrong."

That seems pretty definitive. The only wiggle room Lauridson left was that he 
couldn't completely rule out abuse until he saw the tissue slides Hayne took 
from the girl. Hayne had yet to turn them over. When he did, Lauridson found 
nothing in them to suggest sexual abuse.

Nevertheless, the court voted 8-1 to uphold Havard's conviction. The court 
found that, "Dr. Lauridson's conclusion was not only contrary to that of Dr. 
Hayne, it was contrary to the sworn testimony from experienced emergency-room 
doctors and nurses." The lone dissent was from a justice named Oliver Diaz. 
Regular readers of The Watch might recognize that name. When Diaz later ran for 
reelection to the court, an outside interest group took out TV ads attacking 
Diaz for his vote in that case, accusing him of voting to free a child rapist 
and murderer.

Havard again petitioned the state Supreme Court in 2012. This time, he had an 
affidavit from Hayne himself. "Based upon the autopsy evidence available 
regarding the death of Chloe Britt," Hayne wrote, "I cannot include or exclude 
to a reasonable degree of medical certainty that she was sexually assaulted."

That still wasn't enough. The justices again voted to deny Havard's petition. 
Justice Carlson again wrote the majority opinion. Incredibly, this time Carlson 
argued that Hayne's affidavit was "duplicative" of his testimony at trial. But 
just 4 years earlier, Carlson wrote that Lauridson's conclusion - which is 
basically the same conclusion Hayne finally came around to in 2012 - was 
"contrary" to Hayne's testimony at trial. Both of these things can't be true. 
And yet in the world of post-conviction litigation, they were.

Part of the problem is that Hayne is incredibly slippery. It's true that at 
trial, he never explicitly said that Chloe Britt had been sexually assaulted. 
He merely failed to object when prosecutors suggested it - and he offered up 
that comment that her contusion was "consistent with" penetration by an object. 
He undoubtedly knew the impact that would have on the jury.

In 2014, Hayne unleashed another bombshell. He told the Clarion-Ledger that he 
never thought Britt had been sexually assaulted. He later told Havard's 
attorneys that he even told prosecutors his opinion before trial, more than 
once.

This is hard to believe. If true, it would mean that the prosecutors moved 
forward with the sexual assault charge despite the fact that the only expert 
witness qualified to offer that conclusion didn't believe it. That and the fact 
that Hayne's alleged statement to prosecutors was never turned over to Havard's 
defense attorneys would amount to some incredibly serious prosecutorial 
misconduct.

It isn't that no prosecutor is capable of such misconduct. We've seen it 
before. But Hayne's statement is hard to swallow because of Hayne's own 
actions. If he never believed Britt was sexually assaulted, why would he let 
the state argue precisely the opposite at Havard's trial? Why would he let it 
make that argument in order to have Havard executed? Why didn't he object when 
prosecutors asked him leading questions that a reasonable person should have 
concluded were designed to get the jury to believe something Hayne didn't 
believe was true?

In his opening statement, the prosecutor told jurors that Hayne would "testify 
for you about his findings and about how he confirmed the nurses' and doctors' 
worst fears this child had been abused and the child had been penetrated." Why 
didn't Hayne speak up then? Why did he let the prosecutor attribute opinions to 
him that he didn't believe? And why did he allow Jeffrey Havard to sit on death 
row for 9 years before finally speaking up?

The more plausible explanation here is that Hayne changed his story. Why would 
he change his story? It's difficult to say. (Hayne has not responded to my 
attempts to interview him over the years.) Perhaps he had an attack of 
conscience. Perhaps, now that he's no longer allowed to do autopsies on behalf 
of prosecutors, he has decided he needs to burnish his reputation with defense 
attorneys, who are still permitted to hire him. Perhaps he has seen the lineup 
of medical examiners who have said he was wrong about this case and is trying 
to salvage his credibility.

In any case, as of 2012, there hasn't been a single medical examiner who has 
looked at this case who thinks Chloe Britt was sexually assaulted, including 
the one who testified for the prosecution. And yet the Mississippi Supreme 
Court still denied Jeffrey Havard on his petition to throw out the sexual 
assault charge.

In 2015, the court finally granted Havard permission to seek an evidentiary 
hearing on the validity of the shaken baby evidence. That's the hearing that 
took place this week and in it, Hayne testified that he no longer believes 
Chloe Britt was shaken to death. But according to the Clarion-Ledger, the judge 
at the hearing noted that he could not allow Havard's attorneys to question the 
validity of the sexual assault evidence - the state Supreme Court wouldn't 
allow it.

It may be hard to comprehend why the court would give Havard relief on the 
shaken baby evidence but deny him on the sexual abuse claim. But I have a 
theory: They couldn't take the risk of what such a hearing might reveal.

I've been reporting on Hayne's reign in Mississippi for more than a decade now. 
For nearly 20 years, he did about 80 % of the autopsies in Mississippi. He 
testified in thousands of cases. For years, state and federal courts have 
rejected challenges to his credibility. (Havard was rejected in federal court, 
too.) Beginning in 2007, the courts began to throw out his testimony in a 
handful of cases. They really had no choice, due to the absurdity of his 
testimony in those cases. But in those cases, the courts were careful to limit 
their decisions to the case at hand. They were careful to note that they 
weren't ruling on Hayne\'s credibility in general.

More recently, a panel for the U.S. Court of Appeals for the 5th Circuit wrote 
in an opinion that Hayne had been "discredited." That was in an opinion in 
which the judges found that a defendant's challenge to Hayne's credibility 
hadn't been filed within the 1-year deadline of when the defendant should have 
known that Hayne was no longer credible. The perverse thing about that 
decision, as I noted here at the time, is that the same court had repeatedly 
upheld Hayne's credibility, including in opinions issued less than a year prior 
to the ruling. For years the courts told defendants that Hayne was a credible 
witness. Then the highest court to date to hear a challenge to his credibility 
suddenly reversed course, but in a way that slammed shut any opportunity for 
any future defendants to get any relief.

This case risked exposing all of that. Here, Hayne claimed to have told 
prosecutors before trial that he didn't believe Chloe Britt had been sexually 
abused. To let Havard pursue that allegation would presumably pit Hayne against 
not only those prosecutors but also the state of Mississippi. It would force 
the office of Mississippi Attorney General Jim Hood - who has staunchly 
defended Hayne - to attack Hayne's credibility. Its only real option here would 
be to argue that Hayne was lying about what he told Havard's prosecutors. Once 
it admits that, what does it do with the thousands of other cases in which 
Hayne's testimony helped prosecutors win a conviction?

The SBS issue isn't nearly as messy. Hayne can merely argue that he was relying 
on the research available at the time, and that the consensus in the forensics 
community was that the symptoms he saw in Chloe Britt were indicative of death 
by shaking. Since then, the consensus has changed. He was wrong, but so were a 
lot of other people. It was an innocent mistake.

Even on the SBS issue, there are lingering questions. Hayne also testified to 
SBS in other cases. (It's impossible to say how many.) Has he contacted the 
defendants in those cases to tell them he no longer believes in the diagnosis? 
In one 2009 case I wrote about here, Hayne claimed that critics of the SBS 
diagnosis were misinformed. To support that statement, he cited a study that 
doesn't appear to exist, and cited a textbook whose author says that Hayne not 
only misquoted him, but also that Hayne gave jurors the precise opposite 
impression of what the textbook actually says, and that he believes Hayne could 
only have done so deliberately. How does Hayne address that?

But the SBS issue is less threatening to the system than the sexual assault 
issue. If Havard gets a new trial on the SBS claim, it's likely that Hood's 
office won't even bother to try him again. If they do, Hayne will likely 
explicitly testify that he does not believe Britt was sexually abused and that 
he no longer believes she was shaken to death. The state's case will be weak, 
Havard will be acquitted, and justice will be served. At least for Havard.

So it's pretty clear why the Mississippi Supreme Court ruled the way it did. 
It's just easier to take these cases one at a time, and to deflect from the 
larger problem. To grant Havard's challenge to the sexual assault claims would 
force Mississippi officials to attack the credibility of the expert witness 
that most of the state's prosecutors relied on for 20 years. It might expose 
the perverse incentives that propelled the state's death investigation system 
from the late 1980s until the late 2000s and raise doubts about the credibility 
of the state's justice system. And it could show the courts' complicity in it 
all - the Mississippi Supreme Court most of all. That's all just too risky.

Jeffrey Havard finally got his hearing, 15 years after he was sentenced to die. 
I suspect that the court will ultimately find that there isn't any credible 
evidence that he shook Chloe Britt to death. Yet in the meantime, the courts 
will stand by the allegation that Havard sexually assaulted the girl, even 
though there isn't a single medical examiner who believes it.

(source: Radley Balko, Washington Post)








OHIO:

Suspect Arraigned In Hatchet Murder



Abel Dale "Gus" Horton was arraigned on 1st-degree murder charges on Tuesday at 
the Osage County Courthouse in Pawhuska.

Horton faces the death penalty in the January hatchet murder of 25-year-old 
Eric Hartung, of Perry.

The Hartung family advocated for the harshest consequence in the state to be a 
choice for the jury during trial.

"They all will get what is due to them one way or another," father Jeff Hartung 
said in an interview with the American on Tuesday. "But I can't wait for the 
man upstairs to judge him because who knows when that will be. I want to see 
the judgment on Earth now, in court."

Horton, 23, is accused of murdering Eric Hartung by beating him with a hatchet 
and then suffocating him with a plastic bag. Investigators say the killing took 
place in Hominy and Horton, along with 2 others, wrapped the body in a rug and 
disposed it along rural Prue Road. The residence where the murder took place 
was occupied by Horton's mother, Helena Christina Jones, and her boyfriend, 
Tillman Caudy Wells. Those 2 also have been charged with 1st-degree murder and 
will be arraigned next week. They all were bound over for trial last month.

The Osage County District Attorney filed a bill of particulars on July 26, the 
day after the preliminary hearting, noting his intent to seek the death penalty 
in Horton's case. That has to be filed before arraignment, so DA Rex Duncan has 
time to do the same for Jones and/or Wells if evidence supports it. For now, 
the couple could face life in prison with or without the possibility of parole.

Crocket Beckham, of Marshall, led authorities to Hartung's body on Prue Road 
days after the murder. Beckham was arrested on murder suspicions, but later 
released and not charged after becoming an informant. The state says Crocket 
was an "unwilling" participant in the killing and was forced by Horton to 
comply with his orders to clean up the murder scene and help dump the body.

(source: the clevelandamerican.com)








MISSOURI----impending execution

Marcellus Williams Faces Execution Despite Doubts about Conviction



The state of Missouri is scheduled to execute Marcellus Williams on August 22 
despite a lack of solid evidence used to secure his conviction and a new report 
from a DNA expert that his lawyers argue supports his claim to innocence.

"The death penalty is abhorrent in any circumstance, and as we have seen time 
and time again, the capital justice system is capable of error," said Zeke 
Johnson, senior director of programs at Amnesty International USA. "The state 
of Missouri must not allow this execution to go forward, and must commute the 
sentences of all of those on death row. There is no acceptable way for the 
state to kill its prisoners."

Williams was convicted of the 1998 murder of former St. Louis reporter Felicia 
Gayle by a jury consisting of 11 white jurors and 1 black juror. Williams is 
black and Gayle was white. There was no forensic evidence or eyewitness 
testimony linking him to the crime. The jury was not presented evidence of 
Williams' background, which included severe abuse and mental disability.

2 experts retained by the appeal lawyers have concluded that DNA testing 
conducted in December 2016 on the murder weapon excludes Williams as the 
contributor of the male DNA found on the knife. The lawyers have just filed the 
latest expert report they have obtained on this with the Missouri Supreme Court 
in a bid to obtain a stay of execution.

(source: Amnesty International USA)