[Deathpenalty] death penalty news----MO., NEB., COLO., NEV., USA

[Rick Halperin]

August 22



MISSOURI:

Death penalty reporter sues Missouri in bid to witness executions


In 2014, Chris McDaniel was investigating whether Missouri was injecting 
inmates with a particular sedative, midazolam, before executing them. While 
under oath, the state had previously said it would not use the drug in its 
executions. McDaniel, a death-penalty reporter, needed to find out crucial 
details for his story, so he applied to be a witness of executions in the 
state. On his application, he wrote that he wanted to "ensure that this solemn 
task is carried out constitutionally." More than 4 years and 17 executions 
later, he has published multiple high-impact investigations uncovering 
Missouri's lethal-injection secrets. He has never been allowed to witness an 
execution, however, and has yet to hear back about his application.

In the same year in which McDaniel submitted his application, the American 
Civil Liberties Union (ACLU) sued the Missouri Department of Corrections to 
obtain copies of witness applications. After a judge ordered the department to 
release the documents in 2016, the ACLU found that the agency had not approved 
dozens of applications from people wanting to witness executions to make sure 
they were carried out constitutionally. McDaniel was one of them, and the ACLU, 
which had worked with him on a previous case, asked if he would join a federal 
lawsuit.

ICYMI: 'Conveyor belt of killing': Covering Arkansas' rush of executions

McDaniel - a BuzzFeed investigative reporter who formerly worked for St. Louis 
Public Radio - and the ACLU filed a lawsuit against the Missouri Department of 
Corrections in 2016 alleging that the state is barring him from being an 
execution witness because of his critical coverage of the state's 
lethal-injection protocol. This is a violation of his constitutional rights, 
his attorney argues, because the witness-selection policy allows for 
discrimination based on reporting protected by the First Amendment. The suit 
demanded that Missouri come up with a policy for how witnesses are selected. 
The Department of Corrections moved to dismiss the case, but on July 28 of this 
year, a federal appellate court ruled that McDaniel may proceed with the suit.

"I think it's a very important press-access issue," McDaniel tells CJR. 
"Prisons are notoriously difficult to report on because we don't get access.... 
the biggest power a government can have is taking the life of someone, and it's 
also the thing that's carried out with the most secrecy at the state level."

In active death-penalty states, secrecy around executions is the norm - and 
botched executions are far from rare. As pharmaceutical companies increasingly 
refuse to sell their drugs for the purposes of killing people, states have 
begun exploring new, sometimes dangerous avenues to procure drugs, some of 
which have never been used in executions before. These untested methods, and 
other issues, can result in botched executions that may violate the Eighth 
Amendment's prohibition of cruel and unusual punishment. By witnessing and 
reporting on executions, reporters act as an important link between the 
execution chamber and the public, relaying information that few have access to.

The biggest power a government can have is taking the life of someone, and it's 
also the thing that's carried out with the most secrecy at the state level.

In 1982, there were no journalists present to witness Virginia's execution of 
Frank J. Coppola by electric chair. According to an attorney who was there, 
Coppola was jolted for nearly 2 minutes with electricity, which eventually set 
his head and leg on fire. And in March 2018, journalists looked on in horror as 
executioners tried for hours to locate a vein of Doyle Lee Hamm's to pump 
lethal injection drugs into, stabbing him a dozen times. By the time they gave 
up, Hamm was soaked with blood, and he urinated blood the next day, his 
attorney said. And even when journalists are present, that doesn't mean they 
are able to see the entire execution.. States have been known to close the 
curtains when something has gone wrong.

Hamm's case is just one of many that have shown the importance of journalists 
being present for executions. Their presence holds states accountable, an 
important task as death row inmates continue to fight their cases and cite 
botched executions as proof of cruel and unusual punishment to do so. After 
Hamm's execution attempt made headlines across the country, Alabama agreed that 
it would not try to kill him again.

But stories often do not go deep enough to provide the public with a clear 
picture of what's happening when someone is executed, McDaniel says, 
attributing the issue to several factors, including secrecy and the complexity 
of the death penalty. A June Washington Post article on the Texas execution of 
Danny Bible, who was likely to experience a botched execution due to several 
medical issues, his attorneys argued, reported that it had "occurred without 
complications" despite revealing that "after the drugs were administered, he 
muttered that it was 'burning' and that it 'hurt.'"

"I sort of view my reporting on this as a government-accountability reporting 
position and this is like the biggest responsibility that the government has," 
McDaniel says. "And it's kind of of a weird thing where this is the biggest 
power that the government has, but it's also a thing that they receive 
shockingly little press oversight for."

In Missouri, the power to select at least "8 reputable citizens" to be 
witnesses, a requirement for every execution, lies with just one person: the 
director of the Missouri Department of Corrections. At least 1 media witness is 
chosen from in-state, according to a corrections department spokeswoman. 
Missouri's legislature grants this discretion, but doesn't provide any criteria 
for how they will be chosen, according to Anthony Rothert, who is McDaniel's 
attorney and the legal director of the ACLU of Missouri. This is highly 
unusual, he says; every other death-penalty state has a procedure for choosing 
witnesses.

It's important for members of the press to be there to honestly and accurately 
tell the public what is going on at this very secret thing.

The director of Missouri's corrections department, George Lombardi, was 
choosing people who would be favorable to his agency, such as detectives, 
students, or former corrections department employees, to be witnesses, Rothert 
says. The media witnesses were from outlets who were generally on the state's 
good side, according to Rothert.

"People who do more in-depth reporting on the various aspects of the death 
penalty and how it's carried out and have made the Department of Corrections 
look bad are not selected," Rothert says.

Rothert argues that regardless of McDaniel's coverage, denying him the 
opportunity to witness executions because of his stories violates the due 
process clause of the Fourteenth Amendment.

"This case is about whether or not the policy, the complete discretion given to 
choose witnesses, is allowing the government to engage in viewpoint 
discrimination and punish those who might report critically on how the death 
penalty is carried out," Rothert says.

Prior to applying to become a press witness, McDaniel revealed in a 2013 
investigation for St. Louis Public Radio that Missouri's execution-drug 
supplier was not licensed to sell in Missouri. As a result, the pharmacy 
supplying the drugs agreed to no longer sell them in the state, a huge blow to 
the corrections department, which then had to find a new supplier, no easy 
task. But the hurdles McDaniel created through his reporting should not be a 
reason for the corrections department to shut him, and the public, out, he 
argues. "I don't think their dislike of me making their job more difficult 
should impact my ability to report - the public's ability to know about what is 
taking place," he says.

As McDaniel continued to report on the use of a controversial sedative, 
midazolam, in executions without being able to actually witness the executions 
themselves, he relied on accounts from people who were there. By speaking to 
press witnesses, he was able to find out that inmates being executed were 
likely sedated, but these witnesses didn't have the detailed notes McDaniel 
needed to create a timeline of specifics such as when a person's eyes were 
open. He depended heavily on chemical logs of drugs in the state's possession 
he had obtained via public records requests to find out which drugs were being 
used.

After his story was published in September 2014, McDaniel wrote two more pieces 
critical of lethal injection in Missouri. A 2016 BuzzFeed investigation 
revealed that an Oklahoma pharmacy supplying lethal injection drugs to Missouri 
had committed nearly 1,900 pharmacy regulation violations. And in March 2018, 
another BuzzFeed investigation found the compounding pharmacy the Missouri had 
been using for its lethal injection drugs was deemed "high risk" by the Food 
and Drug Administration. In light of these facts, the US Court of Appeals for 
the Eighth Circuit ruled in his favor in July, finding it probable enough that 
McDaniel had been harmed by the lack of protocol for selecting witnesses that 
the case could move forward.

"McDaniel's allegations that the Director's policies provide an opportunity to 
exclude McDaniel based on his viewpoint and that the Director has excluded 
McDaniel and all applicants sharing his particular viewpoint are sufficient to 
give him standing to press the claim," the court wrote.

Now that the appeals court has ruled, the case will likely return to the trial 
court, Rothert says. He expects it to be decided in about a year.

Ideally, the corrections department wouldn't be able to decide who gets to be a 
witness, and reporters would choose among themselves, McDaniel says, noting 
that the reporting on an execution can have an impact that extends far beyond 
the time in the witness gallery.

"It's important for members of the press to be there to honestly and accurately 
tell the public what is going on at this very secret thing," he says. "It's 
important for that specific execution, and it's important for things that could 
be difficult to understand at the time but could be relevant in a longer 
investigation."

A spokeswoman for the Missouri Department of Corrections declined to comment, 
citing the litigation.

(source: Columbia Journalism Review)






NEBRASKA:

A New Debate on the Death Penalty


The use of fentanyl in a Nebraska execution and the Catholic Church's recent 
stand on capital punishment has stirred the debate over the way states execute 
the condemned.

Nebraska authorities used fentanyl to help execute a convicted murderer on 
August 14.

Carey Dean Moore, a 60-year-old inmate who was sentenced to death for killing 2 
Omaha cab drivers in 1979, was pronounced dead at 10:47 a.m. at the Nebraska 
State Penitentiary in what was the nation's 1st execution carried out with the 
powerful opioid that is at the center of the U.S. overdose epidemic. What 
impact will the use of the drug in Moore's execution have on lethal-injection 
drug protocols in other death penalty states, and what are some of the 
challenges facing judges now that pharmaceutical companies are bringing legal 
action to prevent their products from being used to carry out executions?

Scott SundbyScott Sundby, professor and Dean's Distinguished Scholar at the 
University of Miami's School of Law who teaches criminal law and procedure and 
is author of A Life and Death Decision: A Jury Weighs the Death Penalty, offers 
insights on the issue in 5 questions with UM News.

Nebraska became the 1st state to use fentanyl in an execution. Does Nebraska's 
use of this powerful opioid point to the state's desperation to find drugs now 
that pharmaceutical companies are blocking the use of their products to carry 
out executions?

Sundby: Nebraska's use of fentanyl is only the latest in the rather startling 
spectacle of states scrambling to find drugs that they can use for lethal 
injection. Pharmaceutical companies understandably do not want their drugs 
associated with executions (probably very few patients come in and say, "hey, 
Doc, can I have a prescription for that drug that states are using to put 
people to death") and, therefore, have refused to sell or allow their drugs to 
be used in executions. As a result, some states have essentially turned their 
employees into 'drug mules,' sending them across the state's border with cash 
to buy execution drugs from compound pharmacies that do not want to be 
identified.. The fact that no one wants to be identified with supplying the 
means for executing people and that states are retreating into secrecy as to 
how they obtain and administer execution drugs is one of a number of signs that 
American society is becoming less and less supportive of capital punishment.

Will the drug's use by Nebraska open up a new avenue for states that are 
struggling to find execution drugs?

Sundby: One strongly suspects that Nebraska's experience will simply go down as 
the latest episode in what will be a continuing saga of states' efforts to 
answer the question: Is there a humane way to put a person to death against 
their will? The states are in this quandary because prior methods of execution 
- hanging, firing squad, gas chamber, electric chair - were on the verge of 
being found to violate the 8th Amendment ban on cruel and unusual punishment, 
so they turned to lethal injection as the alternative. Consequently, there is 
no viable 'Plan B' if states cannot find lethal injection drugs, which means 
that, like Nebraska, they will continue to scramble to find drugs that they can 
obtain and administer. Indeed, Nebraska may not be able to obtain fentanyl in 
the future since the makers of fentanyl are now trying to block the drug's use 
in future executions, which would put Nebraska back in the mad melee to find 
execution drugs.

Drug companies are in a legal battle to prevent their products from being used 
in executions, effectively putting a stop to executions in some cases. This 
seems to be new ground for judges who have to rule in these cases. Could this 
spawn new legislation in some states?

Sundby: The drug companies have been resolute in their efforts to stop the use 
of their products for lethal injection by building into contracts prohibitions 
on the use of their drugs for executions. And we are talking about corporate 
giants like Pfizer and Johnson & Johnson that have plenty of resources and 
lawyers to pursue those who violate the contracts. The drug companies' actions 
when considered in tandem with challenges by death row inmates produces a 
double pincer effect: drug companies bring civil suits to keep states from 
using their drugs, this forces states to seek out new drugs with unknown 
effects, which in turn makes the new protocols vulnerable to constitutional 
challenge on the grounds that states are essentially experimenting with these 
drugs on the condemned inmates and causing unnecessary suffering.

The net effect of this parallel line of legal challenges is an ever-shrinking 
availability of execution drugs, which is why some states are passing laws that 
try to shroud in secrecy how they are obtaining drugs, who is administering 
them, and the effects once administered. These secrecy laws are 
constitutionally vulnerable since they are not-so-subtle attempts to hide 
botched executions and to deprive defendants of information that they could use 
to challenge the execution protocol as being "cruel and unusual."

Pope Francis recently declared the death penalty wrong in all cases. How will 
this new teaching potentially affect U.S. judges who are practicing Catholics? 
For example, should Catholic judges recuse themselves in death penalty cases 
that conflict with their religious beliefs?

Sundby: Judges occasionally must rule in a way with which they personally 
disagree and that is accepted as part of their duty as judges to follow the 
law. A judge's religious or moral beliefs, therefore, are not grounds for 
recusal unless the beliefs would prevent them from following the law or would 
give rise to "a serious risk of actual bias" (usually based on a personal 
involvement in the case, such as having received $3 million as a campaign 
contribution from one of the litigants or having been involved in the case 
earlier as a lawyer for one of the litigants; both of these examples are cases 
where the Supreme Court said recusal was constitutionally necessary).

Whether judges are in reality able to fully put aside their views and follow 
the law is, not surprisingly, a hot topic of empirical debate, but the law's 
general presumption is that they are able to do so and will disqualify 
themselves if they realize that they cannot. Consequently, just because a judge 
is a practicing Catholic (or the member of any other church or group that 
opposes the death penalty) would not be grounds for recusal. The situation is 
somewhat analogous to when then-Governor Tim Kaine carried out 11 executions in 
Virginia even though he personally was vehemently opposed to the death penalty.

With Pope Francis changing the Catholic Church's stance on the death penalty, 
what's the likelihood that such developments can potentially impact a jury's 
decision to impose a death penalty sentence?

Sundby: The short answer is that the Pope's position in theory should not 
affect a capital jury's decision because a citizen who would never impose 
capital punishment due to their religious or moral beliefs could not serve on a 
capital jury in the first place. The rationale is that a juror (just like a 
judge) must be able to 'follow the law,' and if an individual would never 
impose the death penalty, they cannot follow the law of a state that says it is 
an appropriate penalty (in the same way that someone who says that he or she 
believes the Second Amendment makes any law banning firearm possession invalid 
could not serve on a jury in a case where the defendant is accused of violating 
firearm laws). So if a potential juror were to say, "I am a Catholic and given 
Pope Francis's teaching I could never impose the death penalty," he or she 
could not be on the jury.

The longer answer, though, is that the Catholic Church's opposition becomes one 
more influential voice against the death penalty and will likely add to the 
trend we are already seeing that even individuals who are not always opposed to 
the death penalty (and thus could be capital jurors) are more and more hesitant 
to impose a death sentence in the jury room and more inclined to show mercy; 
nationwide, juries imposed only 39 death sentences all of last year.

(source: miami.edu)






COLORADO:

Coronado case: Death-penalty bid poised to add years of delays, defense says


Prosecutors' decision to seek the death penalty for suspects in the 
execution-style killings of 2 Coronado High School students could add 2 to 3 
years of delays to their cases, their attorneys said Tuesday.

The question of when Diego Chacon and Marco Garcia-Bravo will get their day in 
court was left open as a judge agreed to postpone back-to-back trials in 
October.

Among issues that must be addressed before new dates are set is whether they 
will be tried separately or together, as prosecutors have requested, said 4th 
Judicial District Judge David A. Shakes, who set a hearing on the issue for 
Nov. 18.

The judge said he also wanted to rule, by January at the earliest, on defense 
motions challenging the constitutionality of potential death penalties for 
defendants who both were under age 21 at the time of the March 2017 crimes.

"Don't think that anything I've said means that I agree with a 2-year 
continuance," Shakes told prosecutors after they objected to the defense teams' 
estimates.

Chacon, 20, and Garcia-Bravo, 21, are accused of carrying out an abduction plot 
that led to the deaths of 16-year-old Natalie Cano-Partida and 15-year-old 
Derek Greer. Cano-Partida was the target over suspicions she was an informant 
for the men's gang rivals, authorities have said. Derek allegedly was killed 
for being with her.

The postponements came at the request of both defendants, who surrendered their 
speedy trial rights.

The defense teams insisted on sticking with October trials until it became 
clear they couldn't be ready.

More time is needed to pore through more than 100,000 pages of reports and 
dozens of media files while preparing for what promise to be exhaustive 
pretrial battles, the court-appointed defense attorneys said.

Lawyers for Garcia-Bravo, a Mexican national, say their investigators must 
travel to Mexico to begin probing his past in preparing to argue he shouldn't 
be put to death in the event of convictions. Both defense teams say they must 
complete more legal training on the death penalty.

Shakes was appointed to the case this month after Judge Larry E. Schwartz 
recused himself, citing his retirement plans. Schwartz didn't give a date for 
his retirement, saying he planned to provide notice "within the next several 
months."

Within days of Shakes' appointment, attorneys for Chacon sought to get him 
kicked off the case, citing his ties to 2 interns on their team.

Both are students at the University of Colorado at Colorado Springs, and they 
said in affidavits they saw Shakes, a part-time instructor, as a personal 
mentor.

Shakes denied the motion, saying he could set aside his prior relationships 
with the students. He announced Tuesday that the Colorado Supreme Court had 
declined to take up an appeal by Chacon's team, letting his ruling stand.

Prosecutors previously asked for separate trials but later said Chacon and 
Garcia-Bravo should be tried together.

"I'm willing to consider that, but it's going to take time," Shakes said.

The judge also ordered extra security measures in court. For the 1st time since 
the cases began, spectators were forced to go through a metal detector outside 
the courtroom. They also were barred from bringing in laptops or cell phones.

Attorneys for Garcia-Bravo objected, saying the measures create a fearful 
environment, potentially introducing bias. Shakes batted down the argument, 
saying jurors wouldn't be subjected to the measures.

The judge didn't mention threats, saying only that the measures were deemed 
necessary because the cases involve murders "with gang overtones."

The defendants, who are jailed without bond pending trial, are expected to 
return to court Oct. 3.

(source: Colorado Spring Gazette)






NEVADA:

Judge lets another drug firm enter Nevada execution case


Another pharmaceutical company was allowed Tuesday to join 2 other firms in 
Nevada state court hearings about the use of their drugs in a twice-postponed 
execution of a convicted killer who says he wants to die.

Sandoz Inc. is the latest addition to the case before Clark County District 
Court Judge Elizabeth Gonzalez in which drugmakers Alvogen and Hikma 
Pharmaceuticals USA accuse Nevada of improperly obtaining their products for a 
lethal injunction - a use the companies say they don't allow.

The judge in Las Vegas also set a Sept. 10 court date to decide when additional 
hearings could be held, while acknowledging the Nevada Supreme Court is already 
planning Sept. 12 hearings about the stalled execution of Scott Raymond Dozier.

The high court plan to hear oral appeals next month could lead to a decision 
there by mid-October. Prison officials want to reschedule Dozier's execution 
for mid-November.

State Deputy Solicitor General Jordan Smith maintains that Nevada prison 
officials lawfully obtained the drugs in question from a third-party supplier 
and the companies are now stricken by "sellers' remorse" amid concerns about 
their corporate reputations.

Sandoz makes the muscle paralytic cisatracurium. Alvogen makes the sedative 
midazolam. Hikma is a producer of the powerful opioid fentanyl, which has been 
blamed for illegal-use, drug overdose deaths nationwide.

Nevada wants to use those 3 drugs for its 1st execution since 2006 in a 
sedative-opioid-paralytic combination similar to one Nebraska used last week in 
the lethal injection of Carey Dean Moore.

Nebraska also used a 4th medication, the heart-stopping drug potassium 
chloride, that isn't part of Nevada's plan.

Nevada executions must by law be by lethal injection. Dozier's dates with death 
were previously postponed in November and July.

The 47-year-old is not challenging his convictions or the sentence he received 
in 2007 for killings in Phoenix and Las Vegas. He insists he wants to die and 
doesn't care if it's painful.

(source: thenewstribune.com)






USA:

AMA to Supreme Court: Doctor participation in executions unethical


Anesthesiologist Joel Zivot, MD, says he won't give Missouri officials an 
opinion on which execution method might result in the lowest risk of severe 
pain for a prisoner on death row because he feels ethically unable to compare 
the consequences of alternative forms of execution allowed under state law.

Missouri officials say that because prisoner Russell Bucklew didn't offer 
testimony to directly compare each method of execution and show that one 
"significantly reduces the risk of severe pain," the man hasn't met his burden 
to be put to death by something other than the state's standard lethal 
injection protocol.

Bucklew says he will suffer unnecessarily if he is put to death by the standard 
lethal-injection protocol. Instead, Bucklew is asking he be put to death by 
lethal gas because he believes it will cause him less suffering due to his rare 
medical condition, cavernous hemangioma. The condition causes blood-filled 
tumors to grow on his body. He claims once the drugs are administered, he will 
choke on his own blood for 4 minutes.

Now the U.S. Supreme Court is considering the case, Bucklew v. Precythe, 
including the question of whether the Eighth Amendment requires that an inmate 
prove an adequate alternative method of execution when challenging the state's 
method based on a rare and severe medical condition.

The AMA has filed an amicus brief in the case before the high court.

The brief doesn't support either party. Instead, it offers justices background 
on the "applicable ethical principles" that guide physicians on capital 
punishment. It also confirms that "testimony used to determine which method of 
execution would reduce physical suffering would constitute physician 
participation in capital punishment and would be unethical."

"Society wants to delude itself into a belief that capital punishment no longer 
represents a weighted moral choice, but is now somehow scientific - nearly 
antiseptic. This delusion, however, cheapens life and makes its extinction 
easier," the brief advises the court. "The medical profession, whose 'essential 
quality' is an interest in humanity and which reveres human life should have no 
part in this charade."

Ethical stance as old as time

The AMA notes that as early as the 5th century BCE, those who practiced 
medicine took an oath to the gods of the day "to ground their practice in 
service to the best interest of their patients." The Hippocratic Oath included 
its vow: "I will not give a lethal drug to anyone if I am asked, nor will I 
advise such a plan," the brief says.

Today, the AMA Code of Medical Ethics speaks directly to a physician's ethical 
responsibility when it comes to capital punishment stating, in part, that "as a 
member of a profession dedicated to preserving life when there is hope of doing 
so, a physician must not participate in a legally authorized execution."

The American College of Correctional Physicians, American College of 
Physicians, Americans Public Health Association, American Society of 
Anesthesiologists and the World Medical Association also have said it is 
unethical for physicians to participate in capital punishment.

Patient-physician relationship at stake

The brief tells the court that any physician assistance in an execution or the 
design of an execution would undermine the patient-physician relationship that 
relies on trust.

Physicians risk confusing their responsibility to the patient with a 
responsibility to the state if they participate in executions, the brief 
states. In turn, if patients don't have trust in their physician's independent 
judgment, they may avoid needed medical care or withhold sensitive information.

"By refusing to participate in capital punishment, even when sanctioned by a 
free society, physicians are making a statement - even if symbolically - that 
their role is not to serve the state as experts in killing, but to minister to 
their patients as healers," the AMA brief tells the court. "Ethical physicians 
avoid any potential blurring of these fundamentally incompatible functions."

(source: ama-assn.org)