Federal Judge Halts Missouri Executions

[SoulTrainOz]

By CHERYL WITTENAUER
The Associated Press
Tuesday, June 27, 2006; 12:08 AM


ST. LOUIS -- A federal judge on Monday halted executions in Missouri until the state makes sweeping changes to ensure that inmates do not suffer excruciating pain when they are put to death.

U.S. District Judge Fernando Gaitan Jr. cited "numerous problems" with the state's lethal injections, including a lack of a written protocol setting drug levels and a dyslexic doctor who is in charge of mixing the three drugs used.

Gaitan said the state's practices subject condemned inmates to an unnecessary risk of unconstitutional pain and suffering. Ruling in the case of condemned inmate Michael Taylor, he gave the Department of Corrections until July 15 to come up with a new protocol, and said no executions can occur until he approves it.

Gaitan's ruling is not binding anywhere but in Missouri, but the U.S. Supreme Court ruled this month that condemned inmates can make special federal court claims that the chemicals used in executions are too painful.

Missouri Corrections Director Larry Crawford said in a hearing before Gaitan two weeks ago that he would clarify the execution protocol. He testified after learning that the surgeon who is the sole person in charge of mixing the drugs had prepared a lower-than-expected dose of anesthesia for the last several inmates who were put to death.

The surgeon testified he had been administering 2.5 grams of thiopental, which is supposed to render the inmate unconscious and is the first of the three drugs Missouri uses in executions. Gaitan ordered the state to use at least double that amount.

Gaitan, who sits on the federal bench in Kansas City, also said he was concerned about the dyslexia of the surgeon, whose identity is a closely held secret. Someone else administers the drugs.

"The court is gravely concerned that a physician who is solely responsible for correctly mixing the drugs ... has a condition which causes him confusion with regard to numbers," Gaitan wrote.

Gaitan said a board-certified anesthesiologist must be responsible for mixing the drugs, and must either administer the drugs intravenously or directly observe those who do. The anesthesiologist must ensure the inmate has achieved "sufficient anesthetic depth" before receiving the final two drugs, which paralyze the inmate and stop the inmate's heart. The heart-stopping drug, potassium chloride, causes excruciating pain.

It wasn't clear whether the state would appeal the decision.

Crawford did not immediately return a phone call seeking comment. A spokesman for the attorney general said his office would have no comment before it discussed the matter with corrections officials.

A lawyer for Taylor, who won a stay in February hours before his execution had been scheduled, said his legal team was encouraged.

"We believe it's a significant step toward remedying some of the very serious defects in Missouri's lethal injection procedure," Eric Berger said.

© 2006 The Associated Press


www.washingtonpost.com/wp-dyn/content/article/2006/06/26/AR2006062601023.html?nav=rss_nation/special

[SoulTrainOz]

A federal judge halted all executions in Missouri on Monday after finding that the state's execution procedure - largely in the hands of a dyslexic doctor - could cause "unconstitutional pain and suffering."

U.S. Judge Fernando Gaitan Jr. gave the Missouri Department of Corrections until July 15 to come up with a new lethal injection procedure. A department spokesman initially declined to comment, saying officials had not yet had time to study the ruling.

A spokesman for state Attorney General Jay Nixon said the office would have to review the ruling and discuss it with the Department of Corrections before deciding whether to appeal.

No executions are scheduled in Missouri, and the ruling does not affect other states.

The order to halt executions came as Gaitan amended his ruling in the case of a condemned Kansas City man who faces execution for murdering a 15-year-old girl in 1989. The inmate, Michael A. Taylor, appealed his sentence, arguing that Missouri's method of execution could force him to suffer unconstitutionally cruel pain and suffering.

"We believe this is a significant step toward remedying some of the very serious defects in Missouri's lethal injection procedure," said Eric Berger, part of the Washington-based team that is representing Taylor in his appeal.

"Obviously, this is the beginning of a process of change, but we believe this is a big victory for Michael A. Taylor."

The ruling describes Missouri's 3-stage execution procedure - a procedure used across the country - and the court's concerns about the process.

First a general anesthetic is administered to knock out the inmate. Then comes a drug that paralyzes the inmate. Finally the inmate is injected with a drug that triggers a heart attack. The final drug would be excruciatingly painful if the inmate is not given enough anesthetic, but the inmate could be unable to show that he or she was in pain, because of the other drugs' effects, according to testimony in Taylor's case.

Taylor was scheduled for execution on Feb. 1. The execution didn't go forward because of his appeal, but the drugs were prepared, with the doctor who mixes the drugs preparing only half the usual dose of anesthetic.

According to testimony, the doctor had prepared half the usual dose for the last inmate executed before Taylor's execution date as well.

The doctor, identified only as John Doe I, said he believed it was within his authority to decide the amount of anesthetic to use and where to inject the drugs. He testified that he was not aware of a written protocol that describes which drugs should be administered and in what amounts. The judge wasn't happy with that arrangement.

"It is obvious that the protocol as it currently exists is not carried out consistently and is subject to change at a moment's notice," Gaitan wrote in his ruling. "The court is also concerned that John Doe I possesses total discretion for the execution protocol. Currently, there are no checks and balances or oversight, either before, during or after the lethal injection occurs."

The doctor testified that he is not an anesthesiologist. He explained some inconsistencies in his testimony by saying he's not good with numbers because he's dyslexic, saying, "It's not unusual for me to make mistakes."

That also didn't sit well with Gaitan.

"The court . . . is gravely concerned that a physician who is solely
responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers," the judge wrote.

John Doe I said he determines when the anesthetic has taken effect by watching the inmate's face, but Gaitan said that doesn't seem reliable because the setup of the execution chamber interferes with the doctor's view.

"All of these concerns lead the court to conclude that Missouri's lethal injection procedure subjects condemned patients to an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered," Gaitan wrote.

The Corrections Department is already revising its execution procedures, but Gaitan said the department isn't addressing all of his concerns. He said he wants the department to require:

- A board-certified anesthesiologist to mix the drugs.

- A lighted operations room so corrections personnel can easily see that the correct drugs and amounts are administered.

- Better monitoring of whether enough anesthetic has been given to the inmate.

- A contingency plan in case anything goes wrong during an execution.

Gaitan said he wants to review the protocol. The court will oversee at least the next 6 executions to ensure that the protocol is followed.

A U.S. Supreme Court ruling this month set the stage for further review of the lethal injection method used by Missouri and 36 other states. In that case, a Florida inmate was strapped to a gurney with needles in his arm when the Supreme Court took his case.

The court ruled June 12 that lower courts must consider the argument that the 3-drug process can be unconstitutionally cruel and painful. Several other death row inmates in Missouri have similar appeals pending.

(source : St. Louis Post-Dispatch)

[SoulTrainOz]

judge to halt Missouri executions

Officials said Tuesday that they would not disclose the name of the dyslexic surgeon in charge of Missouri's lethal injections, whose testimony that he sometimes confuses figures helped persuade a federal judge to halt the state's executions.

Officials want to protect the surgeon, called John Doe I in court
documents, from "harassment of various sorts," said Brian Hauswirth, a spokesman for the Department of Corrections. He said he would not elaborate.

In October, a U.S. magistrate judge ordered the surgeon's identity concealed to protect the state's security interests and the doctor's privacy.

Death penalty critics said the state had little justification to keep a lid on the surgeon's identity.

"It's shameful that you would put someone who suffers from dyslexia in charge of administering chemicals that kill someone," said Gino F. Battisti, a lawyer from St. Louis who has represented death row inmates. "People have a right to know how the system works."

In a ruling on Monday, U.S. District Judge Fernando Gaitan Jr. wrote that he had concerns about John Doe I's qualifications and the program's lack of protocols and accountability.

Too much of it relied on a surgeon who freely admitted confusing facts and amounts, Gaitan found. That produced an "unacceptable risk" of subjecting an inmate to unconstitutional suffering.

The order amended Gaitan's previous ruling in the case of Michael A. Taylor, who faces execution for murdering a 15-year-old girl in Kansas City in 1989.

Taylor has appealed his sentence, arguing that Missouri's method of execution could force him to suffer cruel pain and suffering.

On Tuesday, Hauswirth said the department would comply with Gaitan's order to come up with a new lethal injection procedure by July 15. Among the requirements is that a certified anesthesiologist mix the lethal-injection drugs.

John Doe I is not an anesthesiologist, Gaitan said.

In a deposition this month, the doctor testified that he would decide when an inmate had had a proper dose of anesthetic medicine by reading his face.

But Gaitan noted that a videotape proved that an inmate's face was, in fact, obscured from the surgeon's view in the death chamber.

Will the state be able to find an anesthesiologist?

"We're going to try to find one," Hauswirth said.

That could prove difficult. In February, the American Medical Association urged its members to observe their oaths to protect lives and to stay clear of involvement with executions.

"The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine - first, do no harm," said Dr. Priscilla Ray, who heads the AMA's council on ethical and judicial affairs, in a statement in February.

At the time, Ray was commenting on another federal judge's order, similar to Gaitan's, for physician participation in California's executions.

Kent Gipson, whose law firm Public Interest Law Center, based in Kansas City, has represented Missouri death row inmates, said he thought that the "state is worried that if this guy gets found out and gets his medical license jerked, they'll never find another doctor to help them execute people.

"That's going to be the problematic aspect of Gaitan's order," Gipson said. "I wouldn't think that any anesthesiologist in the state would" participate in an execution.

John Doe I said in his deposition that he established Missouri's execution system a decade ago, at the request of embarrassed corrections officials, after an episode in which a condemned man, Emmitt Foster, took more than 30 minutes to die.

"My obligation to the director is he is able to go out and does not have to explain to the press why did this happen, why didn't this happen," the doctor said.

"I was the only physician available anywhere to ask about" lethal
injections, he added.

Source St. Louis Post-Dispatch

[SoulTrainOz]

The state must set new lethal-injection procedures to cut needless risk of pain.


A federal judge in Missouri has ordered a halt to all executions carried out by that state until it changes its lethal-injection procedures.

The current system, U.S. District Judge Fernando J. Gaitan Jr. said in a Monday ruling, creates an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal-injection drugs are administered." He gave corrections officials until July 15 to come up with new procedures.

In a related development, a federal judge in Little Rock, Ark., on Monday stayed an execution on grounds that if the condemned inmate "remains or becomes conscious during the execution, he will suffer intense pain that will never be rectified." Judge Susan Webber Wright postponed the execution until there could be a full hearing on the issue, which could be months away.

The U.S. Supreme Court in May ruled that inmates could challenge
lethal-injection procedures. The two rulings this week, said Fordham University law professor Deborah W. Denno, show that "courts are taking this seriously, and there will be more challenges."

In recent years, lethal injection has become the dominant mode of execution in the U.S. The 38 states that have capital punishment laws, including California, use a three-stage procedure that masks pain during an execution, rather than preventing it.

The 1st drug administered, the sedative sodium thiopental, is meant to deaden pain; the 2nd, pancuronium bromide, is a paralytic that immobilizes the prisoner; the 3rd agent, potassium chloride, stops the heart.

Sedative dosages at times have been inadequate to anesthetize inmates, according to testimony in cases asserting that lethal-injection procedures violate the 8th Amendment prohibition against cruel and unusual punishment.

U.S. District Judge Jeremy Fogel in San Jose has scheduled a two-day hearing in September to review California's procedure. Earlier this year, Fogel raised questions about the lethal-injection protocol, which prompted the state in February to call off the execution of Michael A. Morales.

In Missouri, the challenge was raised by Michael Taylor, who was sentenced to death for the 1989 murder of a 15-year-old girl. Missouri has executed 66 people by lethal injection, the fourth highest total in the nation.

Gaitan said he was particularly troubled that the doctor - identified only as John Doe 1 - who mixes the 3-drug thingytail used in Missouri executions is dyslexic and admitted during a hearing that he has difficulty reading numbers.

"The court . is gravely concerned that a physician who is solely
responsible for directly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers," Gaitan wrote in his 15-page ruling.

In addition, Gaitan said, Missouri does not have a formal written protocol for how lethal injections are to be administered. John Doe 1, in a recent deposition, said that he had administered only 2.5 grams of the sodium thiopental, rather than the normal 5 grams, in several executions.

Dr. Mark Heath, an assistant professor of clinical anesthesiology at Columbia University in New York who has testified in numerous
lethal-injection challenges, testified that he believed Missouri was the only state without a written protocol.

Gaitan said he wanted the Missouri Department of Corrections to require that a board-certified anesthesiologist mix the drugs; institute better monitoring so that adequate anesthetic is given to the inmate; and formulate a contingency plan in the event a problem develops during the execution.

John Fougere, a spokesman for Missouri Atty. Gen. Jay Nixon, said his office would work with corrections officials to comply with Gaitan's order.

"We want to make sure execution in Missouri is predictable, humane and efficient," Fougere said.

(source : Los Angeles Times)