[Deathpenalty] death penalty news----PENN., OHIO, TENN., NEB., USA

[Rick Halperin]

Aug. 6



PENNSYLVANIA:

District Attorney seeks death penalty against DJ in 1992 killing of school 
teacher


The Lancaster County District Attorney plans to seek the death penalty against 
the Pennsylvania man charged in connection with the 1992 sexual assault and 
strangulation of an elementary school teacher, according to reports from 
LancasterOnline.

Raymond Rowe, 49, is facing charges of criminal homicide, 4 counts of rape, 2 
counts of involuntary deviate sexual intercourse and burglary for the death of 
25-year-old Christy Mirack.

The charges come decades after she was killed, but police were unable to 
identify Rowe as a suspect until they uncovered genealogical data.

Now, prosecutors are pursuing the death penalty against Rowe, who is a 
professional DJ known as "DJ Freez."

(source: York Daily Record)




OHIO:

Kirkland sentencing will wrap up today


After 2 weeks of testimony, convicted serial killer Anthony Kirkland's 
sentencing is expected to wrap up Monday with closing arguments.

Jurors will be sequestered while they consider whether to recommend the death 
penalty for Kirkland, 49, for the deaths of Casonya Crawford, 14, in 2006 and 
Esme Kenney, 13, in 2009.

He strangled and burned the victims.

The Ohio Supreme Court overturned a death sentence last year that had been 
imposed for the murders. Hamilton County Prosecutor Joe Deters is seeking it 
again.

On Friday, on Kirkland stood at his sentencing hearing and in a calm and steady 
voice, asked jurors to spare his life.

Though, he said, he'd understand if they recommended the death penalty for 
strangling, burning and dumping the bodies of the 2 teenage girls.

"It has been stated that I am evil; it has been stated I am a monster," he 
said. "I cannot offer any justifiable response. I am not looking for 
absolution. Eventually, I will answer to a higher authority. I do not blame you 
if you kill me. I do not deserve to live. Please spare my life."

Kirkland killed 2 women and 2 teenage girls - Casonya; Mary Jo Newton, 45; 
Kimya Rolison, 25 and Esme - between 2006 and 2009. Those 4 deaths came after 
Kirkland served a 16-year prison sentence for killing Leona Douglas, 28, in 
1989.

In each case, Kirkland strangled or stabbed his victims, burned the bodies and 
fled. He was caught after Esme's death and confessed.

Kirkland is serving a life prison term for the deaths of Newton and Rolison.

Kirkland's defense team presented a case that showed Kirkland suffers from 
post-traumatic stress disorder brought on by a childhood of mental, physical 
and sexual abuse. At times, a clinical psychologist testified, Kirkland didn't 
know what he was doing.

The victims, she said, triggered anger and he couldn't help himself.

(source: cincinnati.com)








TENNESSEE:

"Our Most Cruel Experiment Yet"----Chilling Testimony in a Tennessee Trial 
Exposes Lethal Injection as Court-Sanctioned Torture


Julie Hall smiled on the witness stand as she recalled a memory of her old 
client Joseph Wood. He had spent most of the last 2 decades living in solitary 
confinement, with his recreation confined to a cage, when the Arizona 
Department of Corrections began to loosen some restrictions over people on 
death row. A basketball court was built outside his unit on the sprawling 
desert prison complex in Florence, about an hour south of Phoenix. At 55, Wood 
was relatively healthy - "he loved going out and playing," Hall said. A prison 
sergeant even played a round of basketball with Wood, which meant a lot. "He 
felt like he was being treated like he was human for the 1st time in a long 
time."

Hall's smile disappeared when she described the day Wood died. It was July 23, 
2014. His execution was scheduled for 10 a.m. Hall arrived at the prison that 
morning at 6:45, then waited almost an hour to see him. When the Arizona 
Supreme Court granted a temporary stay of execution, Hall told him the good 
news. Wood was prepared to die, she told the court; ever since he committed the 
murders that sent him to death row, he had felt he did not deserve to live. 
Still, "he wanted someone to listen to us when we said that this was an 
experimental method of execution."

Wood was the 1st to face a new form of lethal injection in Arizona that used a 
combination of the opioid hydromorphone and the sedative midazolam. The latter 
had raised controversy over its use in executions. Florida first tried it in 
2013 to kill a man named William Happ "in what seemed like a labored process," 
according to one media witness. Happ "remained conscious longer and made more 
body movements after losing consciousness" than people executed under the old 
formula, according to another report. The Florida Department of Correction, 
which refused to say how it chose the drug, dismissed the concerns - and soon 
other states were trying out midazolam. In January 2014, Ohio used it to 
execute Dennis McGuire. Witnesses described how he struggled and gasped, 
clenching his fists and striving to breath. A few months later, in April 2014, 
Oklahoma used midazolam to kill Clayton Lockett in one of the most notorious 
botched executions in recent memory.

But Arizona stuck to the plan. By noon that day, Wood's stay of execution had 
been lifted. Prison staff provided Hall with a pencil and paper and led her to 
the witness chamber. No phones were allowed. Once inside, she was told, she 
would be forbidden from leaving the room. Hall watched as a pair of TV monitors 
were turned on above the closed curtains. "That's where we could view the 
insertion of the IV lines," she explained. Hall was surprised at the amount of 
blood she saw - some of it dripped onto the floor. With the IVs eventually 
placed, the monitors went dark. The curtains opened. Wood lay strapped to the 
gurney, thick straps over his arms and a white sheet covering his legs.

After 20 minutes and 134 gasps, she stopped counting.

At 1:52 p.m., a voice came over the loudspeaker. The lethal injection was about 
to start.

After 5 minutes, with the 1st dose of midazolam presumably administered, a man 
entered to conduct a consciousness check on Wood. The voice came back to 
announce he was sedated. But 3 minutes later, Hall said, "I saw a quiver in his 
cheek, which surprised me a little." She didn't know whether it was normal or 
not. It was 2 minutes after that when she saw Wood gasp for air. Then he did it 
again. And again.

"He just kept gasping," Hall said. She began counting the gasps on her notepad. 
After 20 minutes and 134 gasps, she stopped counting. "I just didn't know what 
the point was anymore." Hall struggled to describe what it looked like. It 
reminded her of a fish that was dying after being pulled from the water - "that 
opening of the mouth; trying to get air and just not getting it."

At 2:50 p.m., Dale Baich, supervising attorney of the Arizona Federal Public 
Defender's Capital Habeas Unit, who was seated behind Hall, passed her a note. 
"Go now," it said, instructing her to call their colleagues in Phoenix. Hall 
hurried out of the witness room and asked a guard if she could use his phone. 
He refused, then escorted her outside of the death house, through a maze of 
sally ports and checkpoints, and finally, out to the administration building. 
It took nine minutes. Only then was Hall able to make a call, to tell someone 
that "something was going very, very wrong and it looked like Mr. Wood was 
suffering."

Hall was still on the phone when Wood was finally declared dead at 3:53 p.m. 
The next day, media witness Michael Kiefer published his own account of Wood's 
struggle to breathe. Over the 2-hour execution, he reported, Wood gasped more 
than 640 times.

Hall told her story in fits and starts, answering questions in a courtroom in 
Nashville, Tennessee. It was July 9, 2018, day one of Abu Ali Abdur'Rahman v. 
Tony Parker, a trial over Tennessee's lethal injection protocol. Parker is the 
head of the Tennessee Department of Correction, or TDOC. The named plaintiff is 
1 of 33 men facing execution under a new formula that includes midazolam. 3 
have been scheduled to die by the end of the year. 1 of them, Billy Ray Irick, 
is set for execution on August 9.

Hall was 1 of more than 20 witnesses called by the plaintiffs, including some 
dozen defense attorneys who had witnessed their clients' executions. They 
dramatized what lawyers argued in their trial brief: that Tennessee's new 
protocol violates the Eighth Amendment ban on cruel and unusual punishment. 
First issued in January, it called for the injection of 3 drugs: midazolam, 
followed by a paralytic called vecuronium bromide, and culminating with 
potassium chloride to stop the heart. With midazolam chosen to provide 
anesthesia, the attorneys argued it was not only possible but very likely their 
clients would suffer. What's more, they said, the protocol prevents defense 
attorneys from having access to a phone during the execution, in violation of 
their clients' constitutional rights.

The inescapable conclusion was that states have almost certainly been torturing 
people to death in their execution chambers.

The witnesses described executions in Alabama, Arizona, Arkansas, Ohio, 
Virginia, Florida, and Oklahoma. Many had never spoken publicly. Their accounts 
ranged from subtle but unusual movement on the gurney to gasping, lurching, and 
clenching of fists. They were bolstered by leading medical experts who 
explained the scientific reasons why midazolam was inadequate to provide 
anesthesia.

One pathologist presented evidence that had never been shown in court. He had 
reviewed 27 autopsy reports out of the 32 total executions carried out using 
midazolam. In most of the cases, he found signs of pulmonary edema - fluid in 
the lungs that indicated the men had been in respiratory distress. The 
inescapable conclusion was that states have almost certainly been torturing 
people to death in their execution chambers - and that Tennessee might be ready 
to do the same.

After weeks of testimony, a ruling came quickly, on July 26. It sided with the 
state. In her order upholding Tennessee's lethal injection protocol, Davidson 
County Chancellor Ellen Hobbs Lyle wrote that the plaintiffs had failed to 
prove their case, while acknowledging that the use of midazolam might leave 
them vulnerable to pain during their execution. The U.S. Supreme Court was 
"aware of the risk of midazolam," she wrote, and upheld it anyway in Glossip v. 
Gross. Though "dreadful and grim, it is the law that while surgeries should be 
pain-free, there is no constitutional requirement for that with executions."

For anyone who has followed the legal evolution of lethal injection, Lyle's 
ruling was not a surprise. The decision ultimately turned not on midazolam, but 
on a different provision of Glossip. Under the ruling, the plaintiffs had to 
prove not only that Tennessee's protocol was cruel and unusual, but that there 
was a viable alternative. In her dissent in Glossip, Supreme Court Justice 
Sonia Sotomayor decried this "surreal requirement," one that puts attorneys in 
the perverse position of identifying methods that should be used to kill their 
clients. Though Lyle conceded that this law "seems odd," the requirement was 
clear. "That proof has not been provided in this case."

Decisions in chancery court have limited sway. Under Tennessee's Declaratory 
Judgment Act, Lyle's ruling amounts to a "declaration" - an opinion that can 
only be weaponized by bringing it to a different forum. Most lethal injection 
challenges are brought before federal courts that have the power to stop 
executions. Lyle did not. In bringing the lawsuit in chancery court, Federal 
Public Defender Kelley Henry hoped to win a ruling that could influence the 
state Supreme Court or governor to intervene.

Yet the order belies the significance of the trial itself. As Henry said in her 
closing argument on July 24, it was the 1st time a 3-drug protocol using 
midazolam had been the subject of a "real trial." Until now, most hearings on 
midazolam were on whether to grant a preliminary injunction to stop a looming 
execution. Such hearings are rushed by their nature - witnesses often appear by 
Skype. This was not the case in Nashville. Though the trial moved quickly, the 
testimony was extensive and nuanced, providing a much fuller picture of the 
science behind the drugs used in lethal injection. Lyle was deliberate and 
measured - and cautious not to allow witnesses to testify beyond their 
expertise.

The questionable analysis of expert witnesses has had major consequences where 
lethal injection is concerned. At the preliminary injunction hearing that paved 
the way for Glossip, Alabama-based pharmacist Dr. Roswell Lee Evans peddled 
opinions divorced from scientific reality. Among his claims was that 500 
milligrams of midazolam - the same dose as in the Tennessee protocol - would 
render someone unconscious to the point that they would not feel pain. 
Anesthesiologists adamantly disagreed. In an amicus brief to the Supreme Court, 
16 professors of pharmacology cited the "overwhelming scientific consensus" 
that midazolam was incapable of inducing the "deep comalike unconsciousness" 
called for in lethal injection. On the eve of oral arguments in Glossip, the 
case was embroiled in controversy over the revelation that Evans had relied on 
sources like the website Drugs.com.

"Those states that have experimented with this drug have seen firsthand that it 
is a failure."

There is "no debate around midazolam," anesthesiologist Dr. David Lubarsky told 
the court in Nashville. Among such experts, Evans has no credibility. But among 
prosecutors intent on carrying out executions, Evans remains a useful and 
willing witness, "recognized by numerous state and federal courts," as Deputy 
Attorney General Scott Sutherland told the court. If anyone lacked credibility, 
he suggested, it was the "highly biased" defense attorneys who watched their 
clients' executions, he said, quoting a 6th Circuit ruling over Ohio's lethal 
injection protocol. As a more authoritative source, Sutherland offered the 
official department of correction records from 19 executions carried out using 
midazolam in Arkansas, Florida, and Ohio. Many of them were described as 
problematic, but these records showed everything had gone fine, he said.

Yet states have already begun shifting away from midazolam. After a drawn-out 
legal battle following Wood's death, Arizona agreed in 2016 to "never again use 
midazolam, or any other benzodiazepine" for lethal injection. "Those states 
that have experimented with this drug have seen firsthand that it is a 
failure," Henry said. If Tennessee learns this lesson the hard way on August 9, 
it will not be for lack of warning. The trial in Nashville was a case study in 
Glossip's twisted legacy - and a chilling look at the botched executions that 
continue amid little national controversy. If the death penalty is making a 
mockery of the Eighth Amendment, it is at least because not enough people are 
paying attention. In the words of the Supreme Court, "It is difficult to regard 
a practice as 'objectively intolerable' when it is in fact widely tolerated."

Davidson County Chancery Court is located inside Nashville's Metropolitan 
Courthouse, steps from where the Cumberland River cuts through town. The 
historic art deco building is anchored by Public Square Park, home to 
festivals, concerts, and the occasional protest. A few days a week over the 
course of the lethal injection trial, food trucks lined the southwest corner, 
where the Nashville Downtown Partnership hosted something called "Adult 
Recess": whimsical lawn games like oversized checkers.

In her opening statement on the morning of July 9, Henry acknowledged the 
strange task at hand. "When we talk over and over and over again about ways in 
which to inject our clients with chemicals, it can become numbing," she said. 
But the state has chosen a method of execution that is akin to being burned 
alive, she said. It's easy to dismiss such descriptions - "Oh, those are just 
the words of those anti-death penalty people. That's not real." But, she went 
on, "the medical proof will show those words are not hyperbole."

Henry was accompanied by 8 other lawyers representing men on death row. Several 
of the cases date back decades, to an era when the execution chamber lay 
dormant in Tennessee. Henry arrived in Nashville in 2000, one month before the 
state carried out its 1st execution in 40 years. 6 have been carried out since. 
In the meantime, like many death penalty states, Tennessee has changed its 
protocol repeatedly and haphazardly.

It wasn't always that way. When the U.S. Supreme Court took up the precursor to 
Glossip - Baze v. Rees - many assumed that the questions over lethal injection 
would soon be settled. In its 2008 ruling, the court upheld a prevailing 3-drug 
protocol that had been in use for decades. But the decision was followed by an 
unexpected sea change in lethal injection, which would throw the death penalty 
into chaos. The drug at the center of the ruling, sodium thiopental, became 
suddenly unavailable after its sole U.S. manufacturer stopped making it. As 
states sought new sources, many began altering their protocols, adopting new 
drugs based on what was obtainable and not necessarily what was most likely to 
work. After Glossip came down in 2015, midazolam became the new go-to 
replacement for sodium thiopental.

Speaking before the court, Henry explained why this was such a serious mistake. 
In Baze, the Supreme Court acknowledged that the 3-drug formula relied on an 
efficacious dose of sodium thiopental. Without it, the 2nd and 3rd drugs would 
cause extreme suffering, Chief Justice John Roberts wrote, making an execution 
"constitutionally intolerable." Although the plaintiffs in Baze had argued 
there was too much room for error, the drug itself was at least designed to 
provide anesthesia. Midazolam was not. "Sodium thiopental is a barbiturate," 
Henry explained. "It is a completely different class of drug than midazolam."

Henry pushed back against the state's argument that the true effects of large 
quantities of midazolam are unknown since there have been no "human 
experiments" to collect data. "Unfortunately, we do have human experiments," 
she said. "We have 32 human experiments. Men who were executed using a protocol 
that involves midazolam."

Sutherland began by invoking the gruesome crimes for which the plaintiffs had 
been convicted. "These facts provide context for this court as to why we are 
here," he said.

With a low voice that was sometimes hard to hear, Sutherland wore a look of 
mild irritation - and the slightly casual air of a man who knows the law is on 
his side. He quoted Justice Samuel Alito's reasoning in Glossip: "Capital 
punishment in this country is constitutional, and it follows, necessarily, that 
there must be a constitutional means of carrying it out." The Constitution does 
not require a painless execution, Sutherland went on. It only prohibits the 
deliberate infliction of torture, such as disembowelment or being burned alive. 
What's more, "in the history of its existence," the court "has never 
invalidated a state's chosen method of execution as cruel and unusual 
punishment." As for midazolam, there was nothing new to discuss.

Sutherland seized on the main problem with the plaintiffs' lawsuit. They argued 
in favor of a 1-drug protocol using the barbiturate pentobarbital, a formula 
used by states like Texas. But they showed no proof that pentobarbital was 
available, he said. Instead, they argued that TDOC never made an effort to 
procure it. This was not true, Sutherland said, but regardless, "it's not our 
burden to prove that it's unavailable." The plaintiffs had to prove that it 
was.

Sutherland echoed the late Antonin Scalia's complaint during oral arguments in 
Glossip, blaming anti-death penalty activists for the drug shortage. There was 
truth to his claim - the human rights group Reprieve has waged a successful 
campaign over the past decade to convince drug companies to block the use of 
their products for execution. But the specter of overzealous anti-death penalty 
activists has also proven useful to states - a way to justify heightened 
secrecy around the procurement of execution drugs. Throughout the trial, the 
identities of the state's supplier and drug procurer were kept secret.

For all the blame heaped on activists and capital defense attorneys, the trial 
would reveal the recklessness and repeated mistakes shown by the state in its 
relatively short history with lethal injection. Henry called it a "timeline of 
indifference."

Tennessee first adopted lethal injection in 1998. With the state's execution 
machinery about to restart, lawmakers were concerned that the U.S. Supreme 
Court would strike down the electric chair on Eighth Amendment grounds. They 
proposed new legislation to get with the times, while making clear that they 
weren't trying to make things easier for the condemned. "We should draw and 
quarter those suckers who commit these heinous crimes, but that ain't 
constitutional," then-Rep. Chris Newton, the bill's House sponsor, said at the 
time.

To design a lethal injection protocol, TDOC put together a committee of prison 
officials to look at other states' methods. Ricky Bell, then-warden of 
Riverbend Maximum Security Institution, where executions take place, went to 
Texas to see a lethal injection firsthand. The result was the same formula used 
across the country: a 3-drug cocktail, beginning with a fast-acting 
barbiturate, sodium thiopental, to provide anesthesia. This was followed by 
pancuronium bromide, a paralytic drug that froze the muscles used for 
respiration. Lastly, potassium chloride would stop the heart.

"It gave me the creeps. It is a classic sign of an anesthetized patient being 
awake."

The 3-drug formula was never particularly scientific. Invented by an Oklahoma 
medical examiner in 1977, the method was simply replicated from state to state. 
Decisions on doses were left to prison officials; in Texas, which 1st carried 
out lethal injection, the gurney was chosen to make it look antiseptic, like a 
medical procedure.

The 1st person killed by lethal injection in Tennessee was Robert Glen Coe in 
2000. Media coverage was heavy, yet there was relatively little detail 
describing his death. A witness for the Associated Press reported that he 
briefly "convulsed and coughed," then lay still, but no one seemed concerned 
that anything had gone wrong. Under Tennessee law at the time, Coe's defense 
attorneys were not allowed to attend.

It was not long before questions began to be raised, however. In 2002, Abu Ali 
Abdur'Rahman challenged the state's execution protocol in chancery court. At 
the heart of the lawsuit was the second drug in the protocol, the paralytic 
pancuronium bromide, marketed under the name Pavulon. At an evidentiary hearing 
in 2003, 1 month before Abdur'Rahman's scheduled execution, his lawyers called 
Dr. Mark Heath, a professor of anesthesiology at Columbia University. Heath 
said he had begun studying lethal injection after the execution of Timothy 
McVeigh in 2001. The Oklahoma City bomber died with his eyes open, according to 
witnesses, some of whom described a tear welling up in his eye. "It gave me the 
creeps," Heath would later tell reporter Bruce Shapiro. "It is a classic sign 
of an anesthetized patient being awake."

On the stand in 2003, Heath explained that if the 1st drug in the protocol, 
sodium thiopental, was not adequately administered, the pancuronium bromide 
would cause suffocation while creating a "chemical mask," concealing any 
evidence of the excruciating burning pain that would result from the injection 
of the 3rd drug, potassium chloride. Lawyers called a woman named Carol 
Weihrer, who described her terror during eye surgery in 1998, when she woke up 
while under the effect of pancuronium bromide and was paralyzed, unable to 
alert her doctors.

Presiding over the 2003 hearing was Ellen Hobbs Lyle, the same judge who handed 
down the ruling last month. On June 1, 2003, Hobbs sided with the state, 
concluding that lawyers for the condemned had failed to prove that Tennessee's 
protocol was unconstitutional. But she was critical of the lack of research 
behind the protocol - and particularly pointed in criticizing Pavulon, "a drug 
outlawed in Tennessee for euthanasia of pets." It served no purpose except to 
give "a false impression of serenity to viewers, making punishment by death 
more palatable," she wrote. And if the anesthetic failed to work, she warned, 
the paralytic would hide the "excruciatingly painful ordeal of death by lethal 
injection."

By the time Tennessee carried out its next execution, killing Philip Workman in 
2007, evidence had come to light to confirm what Heath had feared. The Lancet, 
a prestigious medical journal, had published findings from a review of 49 
executions across 4 states, showing evidence that many of the condemned had not 
been adequately anesthetized. Toxicology reports showed that concentrations of 
sodium thiopental in the blood of 43 of the men "were lower than that required 
for surgery," while 21 had "concentrations consistent with awareness." 1 of the 
co-authors of the study, Dr. David Lubarsky, later reviewed the autopsy report 
for Coe; in a front-page story in May 2006, The Tennessean summed up his 
conclusion: Coe was "probably awake and suffering silently."

Later that year, a Florida man named Angel Nieves Diaz died in a harrowing 
execution after IV lines sent drugs into his tissue rather than his veins. The 
following February, then-Tennessee Gov. Phil Bredesen halted 4 scheduled 
executions. A botched execution was "a governor's nightmare," he said. "How do 
you know that's not going to happen here?"

Bredesen announced a 90-day moratorium and the formation of a 5-member 
commission to revise Tennessee's lethal injection protocol. The current 
execution manual was a "cut-and-paste job," he said. An AP report revealed how 
its "minute-by-minute guidelines for lethal injection" included rules clearly 
written to apply to electrocutions, for example, the directive that staffers 
shave the head of the condemned, as well as the need to keep a fire 
extinguisher on hand.

The commission, made up of TDOC employees, proved to be little more than 
political theater, however. In April 2007, TDOC released its new protocol. 
Although it now included instructions on doses, it preserved the 3-drug 
formula, including the paralytic. At 1 a.m. on May 9, Workman died by lethal 
injection at Riverbend. "As a media witness at last night's execution, I can 
say it's true Workman showed no obvious signs of pain," Nashville Scene 
reporter Sarah Kelly wrote. "But even if he was in agony, he wouldn't have been 
able to move." A few months later, Tennessee carried out a 3rd execution - that 
of Daryl Holton. Given the choice between the gurney and the electric chair, he 
chose electrocution.

In September 2007, while the Supreme Court prepared to consider the writ of 
certiorari in Baze v. Rees, a U.S. District Court held a hearing on Tennessee's 
revised protocol. The 4-day proceeding was "filled with absurdities," according 
to the Nashville Scene. Testimony revealed that TDOC Commissioner George Little 
had actually rejected the advice of Bredesen's commission, which had 
recommended a single dose of a barbiturate to replace the 3-drug formula. On 
September 20, 2007, U.S. District Judge Aleta Trauger declared the protocol 
unconstitutional.

Just 5 days later, the U.S. Supreme Court granted certiorari in Baze v. Rees. 
It would be the 1st time the court would consider the 3-drug method used for 
executions across the country. In April 2008, the justices upheld the protocol, 
7 to 2. In light of Baze, Trauger vacated her previous decision.

It was not long afterward that states stopped being able to find sodium 
thiopental. Some sought new dubious sources, while others tinkered with their 
protocols. But there was a silver lining to the chaos. As they considered new 
methods, states began drifting away from the traditional 3-drug formula, 
eliminating the paralytic from many protocols. In 2013, after a supply of 
sodium thiopental was seized by the Drug Enforcement Administration, Tennessee 
did what the commission had suggested years before, adopting a 1-drug protocol 
using pentobarbital. But after Glossip in 2015, states started going back to a 
3-drug protocol, mimicking the old formula with something that was actually far 
more dangerous. Like many states, Tennessee is relying on an anonymous, 
unregulated compounding pharmacy for its supply of midazolam. As far as the 
paralytic, 15 years after Lyle first warned about its dangers, Tennessee has 
gone full circle.

On Friday, July 13, Riverbend Warden Tony Mays took the stand. After nearly a 
week of testimony about botched executions, it was a chance for the state to 
show that the situation would be in good hands. It didn't. Mays, named warden 
in 2017, seemed alarmingly ill-informed, unfamiliar with various details of the 
protocol and unable to answer what, if anything, he would do if problems arose.

Some of this was no fault of his own. With no warning to the plaintiffs, the 
state had issued a revised protocol on July 5, just days before the trial was 
about to start. Henry called it a "cynical ploy to gain litigation advantage." 
But it also created confusion for Mays, who was tasked with training his 
subordinates to carry out executions.

The next witness was the official who ultimately has to answer for such 
concerns: TDOC Commissioner Tony Parker. A lifelong employee of the state's 
prison system, Parker was named commissioner in 2016. The position made him 
responsible for selecting the state's lethal injection protocol. Presumably, 
Henry asked, this meant that he would want to know what other courts and 
officials had said about previous versions of Tennessee's lethal injection, 
correct? "I think I'd consider all the comments if I felt they were relevant," 
Parker said.

Henry walked Parker through some of the state's lethal injection milestones. 
Had he considered Lyle's concerns over Pavulon back in 2003? Parker said he did 
not know what Pavulon was. Henry showed him portions of the ruling, which 
established Pavulon as the paralytic agent. Parker said he had never seen the 
decision before. "I guess it would be more important to me if we were using 
Pavulon," he said. "But we're not." Would it be relevant if Pavulon was 
indistinguishable from the paralytic used in the protocol he chose? Henry asked 
as patiently as possible. "I would have to talk to a medical professional," 
Parker said. "I don't know any of that." Henry asked Parker if he knew the 
difference between sodium thiopental and midazolam. No, he said.

Parker's testimony was galling. But it was not entirely surprising. Parker had 
largely delegated his duties to his general counsel, Deputy Commissioner Debra 
Inglis, a veteran TDOC employee who was intimately acquainted with the state's 
lethal injection history. She was a member of Bredesen's 2007 commission that 
overhauled the execution manual. "Did Miss Inglis share with you that the 
committee's recommendation at the time was to abandon the 3-drug protocol in 
favor of a 1-drug protocol?" Henry asked Parker. "We never had that particular 
conversation," he said.

The email showed that the state had been warned by the source about the dangers 
of midazolam in the fall of 2017.

Inglis was the last state official to take the stand. Over more than 2 hours of 
testimony, she reiterated that Parker was the man in charge of selecting a 
lethal injection protocol. As for the move to adopt midazolam, she said, "it 
was his sole decision."

Questioning Inglis, criminal defense attorney Kathleen Morris asked about an 
email that had raised controversy earlier this year. Written by an anonymous 
entity referred to as Source B, who had been tasked with procuring drugs for 
executions by TDOC, it was revealed by the Nashville Scene through an open 
records request. The email showed that the state had been warned by the source 
about the dangers of midazolam in the fall of 2017. "Here is my concern with 
Midazolam," Source B wrote. "Being a benzodiazepine, it does not elicit strong 
analgesic effects. The subjects may be able to feel pain from the 
administration of the 2nd and 3rd drugs. Potassium chloride, especially." Not 
necessarily a "huge concern," the author added, but it could "open the door to 
some scrutiny on your end."

Morris asked Inglis if she had discussed the email with Parker. He was made 
aware of it, she said. But they did not discuss it.

If such warnings were not enough to convince Tennessee to reconsider its search 
for midazolam in 2017, the drug had attracted plenty of scrutiny that year. In 
Arkansas, Gov. Asa Hutchinson had announced a plan to carry out 8 executions 
over the course of 11 days that April. The reason for the rush: The state's 
supply of midazolam was scheduled to expire at the end of the month.

Like Tennessee, Arkansas had not carried out an execution in years. It had 
never used midazolam. The planned execution spree threw attorneys into 
disarray. Only 4 executions ultimately went forward. Although there were some 
signs of trouble in the first 3, no one reported any dramatic scenes. But in 
the final execution, on April 27, Kenneth Williams died a disturbing death. 
Media witnesses at the prison described how Williams had lurched and gasped. A 
spokesperson for the governor immediately dismissed the movement as 
"involuntary."

He heard moaning, then "choking and coughing and heaving." The sounds were loud 
enough to hear through the wall.

Among the witnesses that night was Eric Patrick Motylinski, a Rhode Island 
attorney appointed to represent Williams. Taking the stand in Nashville, 
Motylinski described what he saw.

At 10:52 p.m., after giving his last statement, Williams began speaking in 
tongues, continuing after an announcement had been made that the lethal 
injection was about to begin. "His words kind of became slow and halting and 
they eventually stopped," Motylinski said. But then "I saw his chest kind of 
pumping and I could see his head kind of moving back and forth." He also 
appeared to be clenching his jaw. At 10:55 p.m., Motylinski heard moaning, then 
"choking and coughing and heaving." The audio to the witness chamber had been 
turned off, but the sounds were loud enough to hear through the wall. Williams 
began to convulse, Motylinski said. "He was rising up from the gurney 
repeatedly, rhythmically, and finally kind of hitting up against the straps." 
At 10:57 p.m., Motylinski decided to leave the witness chamber. The prison had 
agreed to allow him access to a phone. When he re-entered, Williams was lying 
still. He was declared dead at 11:05.

Motylinski's testimony was disturbing. But it was also instructive. Despite 
being unable to stop the apparent suffering of his client, he had been able to 
take action on his behalf relatively quickly. This was precisely what Tennessee 
denied attorneys in its protocol, Henry argued. In a deposition, Parker had 
suggested it might be possible to accommodate lawyers' requests for a phone to 
be available if needed. But Inglis did not support this. An attorney could go 
get their phone from their car.

Even when a state ostensibly allows for such safeguards, they are no guarantee. 
When Ohio defense attorney Carol Wright witnessed the 2017 execution of her 
client Gary Otte, who violently struggled on the gurney, she tried to leave the 
room only to be stopped by prison staff. "They blocked the door," she 
testified. "They said, 'Sit down.'" After she saw tears coming down Otte's 
face, she went to the door again. "And I said, 'Dear Lord.'" Only then was she 
given permission to leave and call a fellow federal defender, who phoned a 
federal court. Wright "is reporting that there were signs that Mr. Otte was 
conscious, crying, clenching of the hands, heaving at the stomach," the 
colleague told a federal judge, according to a transcript. But the judge 
declined to intervene. In a ruling 5 days later, he concluded that the 
description was not enough to show that Otte "was experiencing 
unconstitutionally severe pain."

Like all things involving prison, the witnesses' testimony revealed how 
arbitrary the different rules can be from state to state. In Alabama, lawyers 
were not even allowed to have writing materials during executions. Defense 
attorney Spencer Hahn described how he kept mental track of the duration of 
Ronald Bert Smith Jr.'s heaving and coughing during his 2017 execution by 
recording the start time in his mind and counting the minutes and seconds on 
his hands.

The point, of course, is to control the narrative. When Motylinski was shown an 
internal affairs report from Williams's execution in Arkansas, he said the 
notes "substantially minimize what I saw." There was no mention of the coughing 
or clenching of his jaw. It did not capture the violence of his convulsions, 
the way he hit against the straps. The state's official report was "sanitized 
almost to the point of being unrecognizable."

Cross-examining Motylinski, Sutherland asked only one question: Was that the 
1st execution he had ever witnessed? Yes, Motylinski said. But other defense 
attorneys were asked a range of questions that were meant to show bias. Wasn't 
it true, Sutherland asked Dale Baich, that he once received an award from the 
abolitionist group Death Penalty Focus? Wasn't it true, Assistant Attorney 
General Rob Mitchell asked Julie Hall after her testimony about Wood's 
execution, that she exclusively represented clients in death penalty cases?

Cross-examining Assistant Federal Defender Leslie Smith, Assistant Attorney 
General Charlotte Davis asked how long she had represented her client before 
seeing him struggle on the gurney in Alabama. 14 or 15 years, Smith answered. 
Was she close to him? "Yes," Smith said. "He was my client and I cared about 
him."

On July 16, the plaintiffs called Dr. Mark Edgar, a diagnostic pathologist at 
Emory University. Edgar had reviewed all the available autopsies of people 
executed using midazolam across the country. Conducted by the local medical 
examiners in the counties where the men were executed, the documents ranged in 
their level of detail. Some states, like Ohio, don't conduct autopsies after 
executions at all.

But Edgar found some details that jumped out. "I was struck by the abnormality 
in the lungs," Edgar said. "All of the lungs were heavy with fluid." An average 
lung, he explained, would weigh about 350 to 400 grams. But the autopsies he 
studied showed lungs more than double that weight. What's more, most of the 
lungs showed signs of pulmonary edema - "evidenced by bubbles, froth and foam 
both in the lung tissue and in the larger airways."

Edgar had created a chart to compile his findings. He underlined the parts that 
indicated proof of pulmonary edema. In total, 23 of the 27 autopsy reports. 
Among them were the autopsies of Joseph Wood and Kenneth Williams. Wood's right 
lung weighed 980 grams, his left weighed 945. There were "marked amounts of 
blood and frothy fluid" indicating "acute pulmonary edema," Edgar said.

"As it gets even worse, they may have a sense of terror, panic, drowning, 
asphyxiation."

Assistant Federal Public Defender Amy Harwell asked Edgar to explain the 
symptoms of pulmonary edema. "When it begins, the patients are short of breath. 
They feel like they can't catch their breath and they breathe a little bit 
faster," he said. "As it gets worse, they may have a sense of air hunger and be 
gasping for air. As it gets even worse, they may have a sense of terror, panic, 
drowning, asphyxiation. It's a medical emergency and a stage of extreme 
discomfort." In a hospital setting, he explained, a patient would be given 
diuretics to remove fluid from the lungs. "Because they're in such a state of 
panic," they would also be given morphine, he added.

Edgar's testimony was supported by a renowned pharmacologist, Dr. David 
Greenblatt, the longtime head of the department of pharmacology and 
therapeutics at the Tufts University School of Medicine. Greenblatt was not 
only an expert in midazolam, he was responsible for some of the earliest 
studies of the drug, which were used by the Food and Drug Administration in its 
approval for clinical practice. Greenblatt explained why pulmonary edema might 
result from a large dose of midazolam. To be injected, midazolam has to be 
mixed with hydrochloric acid, which makes it water soluble. Once injected, it 
would go first to the heart and then to the lungs, whose capillary circulation 
is dependent on "a very thin and delicate membrane' that is "very sensitive to 
acid." A dose of 500 milligrams of midazolam would be destructive to the 
membrane, he explained, making it leaky. "So the lungs acquire fluid ... and 
that makes air exchange difficult if not impossible."

The testimony from Edgar and Greenblatt added a disturbing new dimension to the 
more widely known features of midazolam. Dr. David Lubarsky, the respected 
co-author of the 2005 Lancet study, said it was fine for sedating a patient - 
he called it "a martini in a syringe." But midazolam has no analgesic effects 
on its own. When it is used in minor surgical procedures, like colonoscopies, 
it is paired with an opioid. What's more, it is limited by what is often 
described as a ceiling effect, a widely accepted property among 
benzodiazepines. Even at extremely high doses, their effects eventually 
plateau. The 500 milligrams of midazolam called for by Tennessee will not make 
a difference. Dr. Craig Stevens, a neuropharmacologist, compared it to taking a 
bottle of aspirin to treat an amputated leg. Lubarsky said it was "like 
throwing a glass of water into the ocean."

Midazolam is therefore useless in the face of "noxious stimuli," the experts 
explained, especially something as severe as the injection of drugs like 
vecuronium bromide or potassium chloride. The former is "formulated in an 
acidic solution," Greenblatt testified, which made it "painful going in." If 
one is conscious as it takes effect, "basically you're suffocating. You want to 
breathe but you can't, because you can't use your muscles." The potassium 
chloride was also "extremely painful when injected," Greenblatt said. When 
patients receive it as part of a medical procedure, "you have to dilute it 
tremendously and also give it very slowly."

The expert testimony illuminated why the petitioners in Glossip called lethal 
injection using midazolam "the chemical equivalent of being burned alive," as 
Sotomayor wrote in her dissent. As the Supreme Court has rejected further 
challenges to lethal injection, she has continued to speak out. "What cruel 
irony," she wrote last year, "that the method that appears most humane may turn 
out to be our most cruel experiment yet."

Cross-examining the experts, Sutherland asked if they knew of any potential 
sources of pentobarbital for lethal injection. Not surprisingly, they said no. 
Surely they had professional contacts who might, Sutherland said. But the point 
was not to impeach their expertise. It was to show that the plaintiffs had not 
sought alternative sources to midazolam as required by Glossip.

The questioning became tense at times. Sutherland proved particularly 
irritating to Greenblatt. Much of his cross-examination was devoted to a 
tedious review of official records and timelines from executions in Florida, 
Arkansas, and Ohio, portions of which Sutherland asked him to read aloud. In 
Florida, beginning with William Happ, the 1st man executed with midazolam - 
whose death was described by witnesses as "labored" and prolonged - the records 
repeatedly showed "no unusual occurrences or problems," Greenblatt read again 
and again.

On July 18, Roswell Lee Evans, the expert who helped pave the way for Glossip, 
took the stand for the state. With white hair and a white beard, he struck an 
affable tone. "My occupation at the moment is that I'm retired," Evans said. 
"Previously I was a dean and professor at Auburn University School of Pharmacy 
in Auburn, Alabama." Sutherland went through his curriculum vitae. He got his 
pharmacist's license in Georgia in 1971, then a Ph.D. at the University of 
Tennessee College of Pharmacy in Memphis, where he became interested in 
psychiatry. In 1975, he went to the Western Missouri Mental Health Center, 
"probably the 3rd center in the country to develop psychiatric pharmacy as a 
specialty." There, he dabbled in research on benzodiazepines, and helped treat 
patients with schizophrenia and anxiety disorders. In 1994, Evans moved to 
Auburn, where his duties were largely administrative.

Had he ever done clinical research on midazolam? No, he said.

Sutherland asked the court to qualify Evans as an expert, "based upon his 
scientific, technical, specialized knowledge through his career." Henry 
objected. Lyle allowed her to question Evans before continuing. "Dr. Evans, you 
are not a pharmacologist, correct?" Henry asked. Correct, Evans said. He had no 
experience prescribing midazolam in any anesthetic context, did he? No, Evans 
said. "In fact, you're not a medical doctor, are you?" He was not. Had he ever 
done clinical research on midazolam? No, he said. Sutherland pushed back. "Dr. 
Evans has been recognized in state and federal courts in the field of 
pharmacology and I think his experience speaks for itself."

Over Henry's objections, Lyle allowed Evans to testify in pharmacology. But she 
monitored his testimony. "I have no clinical experience with midazolam other 
than personal," Evans conceded as his direct testimony resumed, but said that 
he had studied the drug and lectured on it. "Tell me what you mean by 'studied 
it,'" Lyle interjected. "Reviewed the literature on it," he said. Lyle pressed 
further, but Evans remained vague. "The studying ... was largely in preparation 
for educational materials, lectures and so forth," Evans said. Most recently, 
it was "in relation to hearings such as this."

Henry continued to object over the course of Evans's direct testimony. Other 
times, Lyle intervened. Evans was eventually able to provide some opinions, but 
they were somewhat hard to follow. He drew a distinction between the 
therapeutic use of midazolam and "the toxic use." Although Greenblatt had 
testified extensively about studies showing that overdoses of benzodiazepine 
were not fatal on their own, Evans provided some examples. There was a 
63-year-old man who had "received 10 milligrams of midazolam and he expired as 
a result," he testified. In her dissent in Glossip, Sotomayor had lambasted the 
apparent logic at hand: that "because midazolam caused some deaths, it would 
necessarily cause complete unconsciousness and then death at especially high 
doses. ... One might as well say that because some people occasionally die from 
eating 1 peanut, 100 peanuts would necessarily induce a coma and death in 
anyone."

Nevertheless, Evans was ultimately able to render the opinion most sought after 
by the state. "To a reasonable degree of pharmacological certainty," Sutherland 
asked, "could 500 milligrams to 1,000 milligrams of midazolam render someone 
unconscious and insensate during the lethal injection?" It could, Evans said.

Cross-examining Evans, Henry reviewed his track record. Until he first assessed 
midazolam for the state of Florida in 2014, she asked, "you had not researched 
what would be necessary to achieve a lethal dose of drug?" No, he said. She 
pointed out instances in which he gave erroneous opinions, for example, 
claiming that midazolam was approved by the FDA for use as a general 
anesthesia. In 1 Alabama case, Evans had conceded at a deposition that he had 
previously misinterpreted a study he used to question midazolam's ceiling 
effect - yet he had included that same flawed interpretation in his declaration 
to the state of Tennessee. "I reassessed the article and I stand by my initial 
comments," Evans explained.

Henry went back to his early Florida cases. In 1, Evans had said that midazolam 
had no pain-relieving properties at all, only to testify in a later case that 
it might help with lower back pain. Explaining the contradiction in a 
deposition, Evans said he'd had "a chance to do a little more digging." Now, 
Evans appeared to be changing his mind again. When Henry asked whether 
midazolam had any pain-relieving properties, he said no. But then he 
elaborated. "There is some pretty hypothetical information" to show that "it 
may - may - have analgesic effects," he began to say before Lyle stopped him. 
She wanted to know what further digging he had done in the previous case. "Your 
honor, I don't remember," he said. "But it was in a journal."

On July 30, Henry and her colleagues asked the Tennessee Supreme Court to halt 
the August 9 execution of Billy Ray Irick. The plaintiffs planned to appeal and 
"it would not be appropriate to move forward with an execution while the issue 
of the constitutionality of Tennessee's lethal injection protocol is still 
pending in the courts," Henry said in a statement. Even while ruling against 
them, Lyle had acknowledged the risks posed by midazolam, she added.

Henry reiterated an argument she had tried to make at the end of the trial. If 
the state could not carry out an execution using the alternative they had put 
forward - a single dose of pentobarbital - the plaintiffs moved to amend their 
complaint to consider an "alternative to the alternative": a 2-drug cocktail 
that removed the vecuronium bromide altogether. This option is "clearly 
available and readily implemented," which would satisfy the Glossip 
requirement. And it would remove one of the well-established risks: that their 
clients would be paralyzed, suffocating, and suffering as the lethal drugs took 
hold.

It seemed simple enough. Parker himself has suggested it would be possible. 
Indeed, Lyle had been among the first in the country to criticize the paralytic 
back in 2003. "If the state is sincere in its belief that midazolam will work 
the way that they say it will work," said Bradley MacLean, counsel for Abu Ali 
Abdur'Rahman, "there is no reason why the state should oppose this."

But it did. Sutherland called it a "desperate" move, while Lyle explained that 
the law prevented her from granting the motion. As for her prescient opinion 15 
years ago, she wrote in her ruling, it came before Baze and Glossip. The 
Supreme Court had found a legitimate purpose for the paralytic: hastening 
death, while dignifying the process for witnesses and the condemned alike. Her 
previous decision was "of minimal use."

In his closing statement, Sutherland decried the repeated challenges to 
Tennessee's execution protocol over the years. "Nothing has ever been good 
enough," he said. Whether he meant to or not, he also got to the heart of the 
problem - with the paralytic, with lethal injection, with using the tools of 
medicine in order to kill. The plaintiffs wanted a dignified death, he said, 
but why should their deaths be peaceful? The deaths of murder victims weren't 
peaceful, he said, turning to stare at the audience in the courtroom. "Death is 
not pretty, your honor."

(source: theintercept.com)






NEBRASKA:

About 40 protesters take death penalty issue to Gov. Ricketts' church on Sunday


10 days before the State of Nebraska is set to hold an execution - its 1st in 
21 years - protesters took their message to the Omaha church where Gov. Pete 
Ricketts worships.

About 40 people gathered Sunday morning outside St. Margaret Mary Catholic 
Church. With its 6116 Dodge St. address, the midtown church also offered 
protesters high visibility.

Protesters waved signs that said "No Executions" and "Who Would Jesus Kill?" 
and questioned the governor's Catholic faith. One waved a picture of Pope 
Francis above the words "I SAID NO!" in reference to the Vatican's recent 
announcement that the death penalty is now completely unacceptable.

Nebraska's 3 bishops have called for a halt of the Aug. 14 execution and urged 
people to contact state officials.

Ricketts has been a forceful advocate for the death penalty, putting $300,000 
of his family fortune toward the ballot effort that restored the death penalty 
after lawmakers voted to end it. Ricketts said last week that while he respects 
the pope's perspective, capital punishment reflects the will of the people and 
state law and is "an important tool."

It's not clear whether Ricketts attended either Sunday morning Mass, and his 
office couldn't be reached for comment. Another prominent Republican, Hal Daub, 
went to the 10:30 Mass. Protesters afterward jeered from across Dodge Street at 
Daub, who serves on the University of Nebraska Board of Regents.

Daub declined to comment, saying the death penalty "has nothing to do with what 
I'm doing in my life."

Carla DeVelder, the protester with the Pope Francis sign, said she didn't care 
if the governor was there or not Sunday. She wanted to challenge other St. 
Margaret Mary parishioners.

The Rev. Gregory Baxter of St. Margaret Mary said he was disappointed in some 
of the demonstrators.

"I was saddened by the uncivil taunts and jeers of some of the protesters 
toward parishioners after Sunday Mass," he said.

(source: mdjonline.com)






USA:

Judge urged to keep Tsarnaev juror forms sealed


The federal judge who sentenced Boston Marathon bomber Dzhokhar Tsarnaev to 
death in 2015 is being urged by prosecutors not to unseal 1,355 sealed 
questionnaires completed by prospective jurors not chosen to hear the case, 
arguing the release could lead to "embarrassment or harassment."

Assistant U.S. Attorney Nadine Pellegrini told U.S. District Court Judge George 
O'Toole Jr. in a filing last week that among the 100 questions put to jurors 
were whether the federal government "allows too many Muslims, or too many 
people from Muslim countries, to immigrate legally to the United States," and 
whether the war on terror "is overblown or exaggerated."

Attorney David Patton, in preparing the appeal to overturn Tsarnaev's death 
sentence, is agreeable to redacting jurors' personal identifiers, but told 
O'Toole in his motion to obtain the voluminous documents that he needs to know 
"the percentage of all venirepersons (potential jurors appearing for jury 
selection) who knew about the case, and the percentage who believed, based on 
pretrial publicity, that Mr. Tsarnaev was guilty or should receive the death 
penalty."

Patton plans to take the position that the trial never should have been held in 
Boston, much less 2 miles from Copley Square, where 3 race spectators were 
killed and nearly 300 others injured by 2 pressure-cooker bombs on April 15, 
2013.

"The questionnaire contained 100 questions, many of which revealed information 
that could lead to the jurors' identification, could be considered private, or 
touched on divisive issues that could subject the jurors to embarrassment or 
harassment," Pellegrini said. "Even with full anonymity, many potential jurors 
would likely be surprised to find that their highly personal political and 
religious views - explained in their own handwriting - will be forever in the 
public record."

Tsarnaev turned 25 last month at the Supermax prison in Colorado. His opening 
brief is due no later than Nov. 19 before the U.S. Court of Appeals for the 
First Circuit in South Boston.

(source: Boston Herald)