It Seems Competence Isn't Enough

Turns out that it wasn't incompetence.  Which is maybe the bad news.  AP reports.

Intravenous lines were placed correctly during the execution of an Arizona inmate whose death with lethal drugs took more than 90 minutes, a medical examiner said Monday.
Incorrect placement of lines can inject drugs into soft tissue instead of the blood stream, but the drugs used to kill Joseph Wood went into the veins of his arms, said Gregory Hess of the Pima County Medical Examiner's Office.

That's happened before.  Most recently, apparently, in Oklahoma where the folks trying to kill Clayton Lockett missed the veins and pumped the drugs into his body tissue.  It didn't work, and, if the reports are accurate, he died of a heart attack after they gave up for the day the effort to kill him.  It's not all that surprising that they screw up that way.  The killers, after all, aren't medical professionals.  They aren't anesthesiologists.  They're prison guards.

And all too often they demonstrate, as they did in Oklahoma in April, and as they have several times in Ohio, that they're incompetent.

But not in Arizona.  Not this time, anyway.  Not for Joseph Wood last week  Nor for Dennis McGuire in Ohio back in January.

They did what they were supposed to do.  Followed orders to stick needles in the veins and pump them full of drugs that will kill.  And yet.

Hess also told The Associated Press that he found no unexplained injuries or anything else out of the ordinary when he examined the body of Wood, who gasped and snorted Wednesday more than 600 times before he was pronounced dead.
An Ohio inmate gasped in similar fashion for nearly 30 minutes in January.

So what happened?  What is it that led to the cock ups in Ohio and Arizona? 

I mean, this shit is supposed to work.  That's the promise, after all.  No, we're not experimenting with new murder techniques.  We're using top medical advice for clinical executions.  Sure we can't use the drugs we want because nobody'll sell them to us.  (And what's wrong with those drug manufacturers that want their drugs to be used for healing not killing?)  But these are supposed to be just as good. Midazolam followed by hydromorphone.  The combo in Ohio and Arizona.  

And see, there's the answer.  Because if it isn't incompetence, then it's the drugs.   Which are, after all, third string.  Plan C, as it were.

Tennessee's bringing back the chair which states stopped using because it was sure as hell looking like the courts were all going to start finding the chair to violate the 8th Amendment's prohibition against cruel and unusual punishment.  

Other states are talking about the firing squad or maybe hanging.  Maybe it's time to return to drawing and quartering?  Or crucifixion.

Because if the horrors of what happened to Joseph Wood and Dennis McGuire weren't due to incompetence, then there's a bigger problem.  

Even when we know what we're doing, it doesn't work. 

If You Close Your Eyes Really Tight and Wish Really Hard

He did not experience pain, distress or air hunger after the drugs were administered or when the bodily movements and sounds occurred.

Good to know.  We can all sleep better now.  And of course, his family can drop the lawsuit.  Concerns satisfied.

McGuire, of course, is Dennis McGuire, he of the gruesome execution back in January.  You remember.  Alan Johnson described it in the Dispatch.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

But the good folks at the Department of Rehabilitation and Correction (Possible Mottos: Rehabilitating by Execution since 1999; Correcting unto Death) looked into it.  And they've concluded it was all hunky dory.  Everything went as planned.

[There was] no evidence that McGuire experienced any pain, distress or anxiety.

How do they know?  Did they ask him?  

Hey, Den.  You know when we killed you?  Did it hurt?

No answer?  Guess not.

Or maybe they brought in some superstar pathologist and did the latest scientific tests and discovered that . . . .

Nope.

OK, here's what I think they did (and please guys from DRC, if I've got this wrong provide me with some evidence and explain): They checked the IV lines. They talked to the guards who were there. They spoke with Dr. Dershwitz and a couple of others who devised and vetted this scheme and certified it as at least a silver standard if not a gold one. They concluded that (1) it was done exactly the way it was planned, everyone following the script; (2) if it was done perfectly, he wouldn't have experienced any pain or agony because that's what the docs told us; (3) we wouldn't torture him; (4) It's all cool.

Which is how it goes.
In 1997, Florida killed Pedro Medina in the electric chair.   From CNN.

Witnesses and prison officials said a 6-inch flame arose from the right side of Medina's black leather face mask during the execution, flickering for several seconds and filling the room with smoke and the smell of burning flesh.

Other reports say the flames shot a foot in the air.  Either way, Florida investigated, concluded the problem was a bit of corroded copper but the good news was that, they said, Medina died instantly. Felt nothing.

Jesse Tafero had died instantly in that same chair back in 1990 while flames were shooting out of his head and even though they had to give him three jolts because he continued breathing after each of the first two.  But prison officials were sure.  They said he was dead after the first few seconds.

It's all of a piece.  And it's all nonsense.  But if they say it often enough, maybe they can convince themselves.  And then the rest of us.

Of course, there are those (read the comments to the news stories if you want to see) who think that torture is just fine.  Fuck the 8th Amendment.  

Except that we're supposed to be better than that.

Ohio by the way, while assuring us all that Dennis McGuire's execution went perfectly and was a model of wholesomeness even if it looked a little messy, has determined that next time it's upping the doses of both drugs.  AP reports.

The department said it "finds no harm in increasing the dosage levels of its drugs," after consulting with its medical expert and examining other states' practices, spokeswoman JoEllen Smith said.

No harm?  Well, yeah.  I suppose.  On the other hand, why? If it ain't broke . . . . And they swear it ain't.  

Oh, yeah.  Even they don't believe their bullshit.

Close Enough for Government Work

The idea behind hanging is that it's quick and simple.  In practice, it's something of a mess.  If it's not done right, the victim may slowly and grotesquely strangle, suffocating, struggling.  Or the rope actually ripping off the head.  It's not that hanging can't be done right.  It's just that it's tougher than you might think.  Regardless, there's actually something else that can go wrong, that has gone wrong in the movies and at least a few lynchings.

The rope can break.  In which case, the person doesn't die.

Willie Francis didn't die the first time they electrocuted him.

Rommell Broom still isn't dead.

But those are incidental failures.  Matters of chance, of incompetence.  One offs.  Just the basic fuck ups that happen from time to time in this world.

Death after all, can be an iffy sort of thing.  

Consider Donald Miller, Jr., of Hancock County, Ohio.  He disappeared in 1986.  His wife had him declared legally dead in 1994 so she could get at his social security for herself and the kids.  8 or 9 years ago, he came back, tried to get his death overturned, you know.  But the law's a harsh taskmaster. Turns out you can only get undead in Ohio within three years.  

Hancock County Probate Court Judge Allan Davis called it a "strange, strange situation."
"We've got the obvious here. A man sitting in the courtroom, he appears to be in good health," said Davis, who told Miller the three-year limit was clear.
"I don't know where that leaves you, but you're still deceased as far as the law is concerned," the judge said.

Or consider Paul Mutora from Naivasha, about 55 miles northwest of Nairobi in Kenya.  He tried to kill himself by swallowing insecticide.  Taken to the Naivasha District Hospital.  Efforts failed.  He was declared dead, taken to the hospital morgue.  His father and other relatives came to see the body, then left to make funeral arrangements.  Sometime later that day

A witness told the Star newspaper that when noises were heard inside the cold room: "The mortuary attendant and a worker took to their heels screaming."

Mutora probably put it best.

This was a mistake from the start and I apologize to my father.

I could go on.  There are, it turns out, more than a few of these Lazarus stories, each with it's own peculiarities.  What they have in common is that like the broken rope or the failed electrocution or the inability to kill off Rommell Broom, they're oddities, newsworthy (and fictionworthy, of course, but that's a different matter altogether) in the man-bites-dog sort of way.

But now.  Alan Johnson has the story in the Dispatch.

Gregory Lott, the next Ohio killer scheduled for execution, could suffer a “lingering death” for 45 minutes after being officially declared dead — and might even be resuscitated, his attorneys argued in a court motion filed yesterday.

Maybe, maybe not.  They don't say that he surely will.  (Hell, Ohio hasn't even decided yet just how they plan to kill him, so there's little certainty about anything except that the plan is for the murder to occur at 10 in the morning on March 19.) But it's more than just a marginally possible thing.

If you're going to kill someone with a lethal injection - at least with any of the drugs we've used for it (or intended to, I'm making the perhaps rash assumption that the pharmacies always delivered and the compounders actually produced what they're supposed to) - you want to do it quickly. That was the underlying idea behind the original three-drug sequence.  The third drug, potassium chloride, stopped the heart.  Death was quick and, because of the pancuronium bromide, looked peaceful and painless whether it was or not. 

But once we abandoned that mix, well, it turns out that just sedating someone to death (at least with the drugs we were using) can take a while.  Up to maybe 45 minutes says Ohio's favored expert anesthesiologist, Mark Dershwitz.  Nobody wants to have the witnesses sitting around that long getting bored watching a body just lie there.  Even the newfangled combo we used on Dennis McGuire - and you'll recall how smoothly that went - took 26 minutes to kill him (though there was certainly stuff to keep the witnesses' attention from wandering).

As I said, nobody wants to be sitting around watching a body do nothing for 45 minutes.  And really, who's to say when it's dead, anyhow?  The proper way to tell is with an EKG.  Wait for the heart to flatline.  But that's a pain to set up and then there's that whole thing about 45 minutes or so.

Dersh offered an alternative.

So I pointed out to them that they would have to come up with a different way of pronouncing death, assuming that they didn’t want to sit there for many, many minutes waiting for the electrocardiogram to go flat. Because I thought that would be very difficult especially on the witnesses to have to sit there for half hour, 45 minutes or longer.

Ah, a different way.  You know, a way that lets them say he's dead before he's actually dead.  

I also said that if they used a physical examination to assess the absence of breathing and circulation, they could do so many, many minutes before that, because electrical activity in the heart persists for about a half hour after the heart stops beating.

Got it.  A doc with a stethoscope.

So in just a few minutes, maybe, he can say, I don't hear anything.  Call him dead.  That's a wrap. Close curtain.  Everyone go home. Show's over.  Wrap him in the body bag.  Wheel him into the hearse and off to the morgue.

There's just this tiny complication.  He's maybe not yet altogether dead. The thing about being not altogether dead, of course, is that it's just another way of saying "still alive."  Gregory Lott's lawyers explained in their motion,

Because a person whose heart and lung sounds have been chemically suppressed to the point that they are no longer detectable can be resuscitated by “very aggressive methods,” the next question becomes whether Lott can still be resuscitated after Defendant Warden has declared him dead. The history of Ohio executions using 5 grams of pentobarbital, and the expert advice of Dr. Dershwitz, demonstrate that there is a substantial likelihood that Lott can be resuscitated after Defendant Warden has declared him dead. 

Which means, we have this plan where we declare the guy dead and wheel him out and just . . . .

Once, quickly, for those of you who want to tell me that letting the guy slowly die in the hearse or at the morgue after the witnesses have gone home and he's been declared dead even though he's alive and god only knows if he's trying to gasp or scream or sit up or

Yeah, I know, the person he killed.  The crime he committed.  None of this undoes that.  The person's still dead.  That horror hasn't changed.  Anyway, it isn't a cruelty contest.  We're supposed to be better than that.  We also have a Constitution and laws we're supposed to obey.

Sigh.

Judge Frost will be holding a hearing, I expect.

Stay tuned.

  Lott Motion

They Can't Say They Weren't Warned

It's called "air hunger," an extreme form of dsypnea, and it's pretty much what it sounds like.  The person can't breathe, is terrified by the inability, gasps, struggles, suffers acute agony.  

It's what an expert anesthesiologist told Judge Gregory Frost that Dennis McGuire might experience when the good people of the State of Ohio put McGuire to death with intravenous doses of midazolam and hydromorphone, a combination never before used anywhere in an execution.

Frost said, sure, maybe.  It's an experiment.  But he wasn't convinced the risk was severe enough to stop it.

Of course, the 8th Amendment prohibits cruel and unusual punishment. On the other hand, as AP reporter Andrew Welsh-Huggins reported the other day,

that doesn't mean execution procedures must be entirely comfortable, Thomas Madden, an assistant Ohio attorney general, told Frost on Friday.
"You're not entitled to a pain-free execution," Madden said.

Not, at least according to the 8th Amendment as interpreted by the Supreme Court.  The thing is, Ohio (and only Ohio, by the way) says you are entitled to just that.  Here, omitting a bit at the beginning that changes nothing and adding italics for emphasis, is Section 2949.22(A) of the Ohio Revised Code:

[A] death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed.

As an assistant attorney general grudgingly conceded in court when we were litigating that section in another lethal injection case some years ago, "painlessly" means without pain.  Thing is, nobody takes that provision seriously.  And in any event the issues before Judge Frost were what the U.S. Constitution allows.

And so they killed Dennis McGuire this morning.  And it was pretty much what they'd been told.  Alan Johnson, a reporter for the Columbus Dispatch, watched the execution and described what the witnesses saw.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still. 

It was 10:53 when they pronounced McGuire dead.  

Allen Bohnert, one of McGuire's lawyers, said it was a

failed, agonizing experiment by the state of Ohio. . . . The people of the state of Ohio should be appalled by what was done in their name.

What Allen didn't say, but what he well might have, is

Told you so.

Ohio has, of course, an unmatched track record of incompetence at executions.  It took nearly 90 minutes to kill Joe Clark, close to 2 hours to kill Chris Newton, and of course they failed to kill Rommell Broom.

But kill we will.

No state outside the south has executed so many as we have here.  It's not even close.  And we're going strong. As I wrote yesterday, we've got folks lined up for the needle through January 2016.

Enthusiasm and incompetence.  A troubling combination of traits.  But that's us.

While he was being killed this morning, Dennis McGuire's wife and children held hands and sobbed.  Joy Stewart's family said justice was served.

If that's justice, I don't want any part of it.

27 Hours

It's getting to be time for the folks in Columbus to set more execution dates.  Serious ones.

They do it every few months, typically scheduling them roughly every other month.  And they set them some 26 to 28 months in the future.  Right now, we've got people lined through January 2016, two years from now.  So it's about time for another date or two.  Simple math.  Which is, after all, how those who orchestrate the killings like to think about it as they might think about getting stale bread to the inmates - as a bureaucratic process.  So they create protocols that, well, bureaucratize. 

However much the administrators of death, from the Supreme Court of Ohio to the guy who pushes the button that actually sends the drugs into the body so that the thing there strapped to the table can cease breathing, killing people on command isn't the same as arranging food shipments.  The person to be killed isn't a can of lima beans.  He's a person.  However much we might wish to deny.

Shylock, in a less-different-than-you-might-think context made the point.

                                       I am a Jew. Hath
not a Jew eyes? hath not a Jew hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die? and if you wrong us, shall we not
revenge? If we are like you in the rest, we will
resemble you in that.

The other day, Judge Frost said that we could go ahead and kill Dennis McGuire.  Sure, it's a new way of killing, a combination of drugs that nobody's ever used before.  And there's some chance he'll suffer an horrific death.  But they didn't show it was particularly likely that he personally would.  Not likely enough, anyway.  The state's folks said that the Constitution doesn't entitle him to a guarantee of a perfectly painless death, which seems to be true. (Ohio's statute actually does entitle him to that, but hey, them's the breaks.)

And so, in about 27 hours, absent something extraordinary, Dennis McGuire will be killed at the Southern Ohio Correctional Facility in Lucasville, Ohio.  Killed by paid employees of the State of Ohio.  My tax dollars at work.

And then Gregory Lott in March and Arthur Tyler in May and so on through Kareem Jackson in January 2016 and then . . . .  Though probably some of them will be spared, at least for a while.

I've written from time to time about the new dates.  I've quoted Camus.

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

And I've acknowledged that Camus was probably wrong.  There are worse monsters to be encountered, though we're supposed to be better.  Still

I've also written about that 28 month wait from the day the Columbus 7 announce the execution date until the time.  And what it must do to a person.

But there's the other end, too.  Dennis McGuire is to be killed tomorrow morning.  some 27 hours from now.  There's a prison guard watching his every move, taking minute by minute notes, keeping his bureaucratic eyes on things for the log book.  But what he does, when he pees, how many of the soggy Cheerios he eats, those are his actions.  They aren't him.

As he struggles.  Or accepts.  Sweats.  Prays.  Worries.  Wonders.

Once again, I don't know Dennis McGuire.  I never represented him.  Never met him.  Never got a letter from him or one of his friends or relatives asking me for information or help.  (You'd be amazed what I do get from people.)  I don't have any idea what's running through his mind now.  Neither do you.  Is he at peace?  Is he crawling psychological walls.  Does he expect to be going to a better place? To a worse?  To nowhere at all.

No, of course he shouldn't have killed Joy Stewart 24 years ago.  That's a given.  But this person, this Dennis McGuire, this man who's 24 years older (perhaps wiser, perhaps not), he isn't the young man, the 29 year old, who did that.  This one's 53.  Middle aged, though obviously well past the mid point of his life.  A different guy.

With 27 hours to live.

Of course, that's notice she didn't have.  Which, today at least, really isn't the point.

Joy Stewart

Dennis McGuire

Death by Default

Really, if you can't prove it was a mistake, there's no hope.  At least, that's the latest lesson from the Parole Board.  

Last Friday, for a bit of early coal in his stocking, the Board unanimously said that Governor Kasich ought to let the execution team (Go Team Go) get on with the business of killing Dennis McGuire.

• He didn't fess up to single-handedly raping and murdering Joy Stewart right away.  In fact, he claimed someone else did it.  That speaks, the Board said, "poorly of his overall character."  (As if the rape murder didn't.)
• Then, just days before the hearing at the Parole Board, he finally acknowledged killing her but said it wasn't cold and calculated and planned but that he "lost control" when Stewart wanted him to leave his wife and kids for her.  That can't have been true, the Board said, because the story is uncorroborated and shows he isn't genuinely remorseful.  And, anyway, the killing was too brutal not to have been deliberate and purposeful.
• Of course, the crime was "disturbing in character."  And less than a year later he attacked a fifteen-year-old girl, "suggesting a propensity to violently prey on vulnerable victims."
• Finally, there's that McGuire had a horrific background, though maybe not all of what he says now is true.  Naturally, it doesn't matter.   

There is, in the world of appellate law, what's known as "harmless error."  I've written about it before. It's how courts decide that sure, lots of stuff went wrong, but we're not giving the defendant a break because, well, because we don't want to.  Except since they can't give 

We don't wanna

as an explanation, they say instead that the errors were harmless.  You know, the defendant didn't prove that the jury would have said "Not Guilty."  And since he still might have been convicted, well, shit, can't give him a new trial just 'cause the gov'm'nt cheated or his lawyer was an incompetent fuck up or the Constitution got stiffed.  And so the Harmless Error Rule. It 

Juries are vital, but we judges can channel them and announce when they would have reached a different result.  And when we say it wouldn't have changed anything, well there's really no basis for a do over or a fix of any sort.  That would just make us involved in the business of making trials fair to the accused - which gets in the way, after all, of making them about convicting the accused.  And so the Harmless Error Rule.

It is, of course, a sham.  As the Supreme Court of Ohio said reversing a death sentence in State v. Brooks because they were not told that even a single juror who favors life could prevent a death sentence.

We cannot know what was going on in the minds of the jurors when they were given the duty of deciding Brooks's fate, and we thus cannot say for certain whether one of the jurors would have been moved enough by the mitigating factors in Brooks's favor, his youth and harrowing childhood, to have recommended a life sentence.

Still, the Harmless Error Rule.

Of course, the courts are supposed to be in the business of getting it right and protecting rights.  Error correction is they.  Yet the Harmless Error Rule.

The Parole Board?  Executive clemency?  Not so much.

I keep saying the same thing.  The job of the Governor in this process, the job of the Parole Board, ought to be about tempering excess.  No more than absolutely necessary.  Mercy.  Grace.  Because we can be better than our worse instincts.  

Sure, maybe none of what McGuire says now would have mattered to the jury.   So said the Parole Board which surely knows because . . . . Oh, wait, no they don't.  Which doesn't stop them.

However, even taking as true all that was alleged about McGuire’s upbringing, the Board concludes that it neither explains his crime nor mitigates it to such a degree that the evidence would clearly have produced a different sentencing recommendation if presented to the jury. 

Because we should give in to our worse instincts.

Maybe Dennis McGuire deserves to die.  Maybe what he did is beyond the pale and he's beyond redemption.  Maybe he's the worst of the worst who did the worst things.  I don't know.  Neither do you.  And neither, with all respect, did the jury or the judge or the subsequent judges.  And neither does the Parole Board or the Governor.  

Those are judgments beyond human ken.  And yet, even if we knew that McGuire deserved to die, even if the jury properly weighed what Ohio statutes say they were to weigh, even if the law authorizes his death.  Even then the question.

Should we kill him?

Or ought we be better than that?  Not forgive, certainly not forget - but permit.

Mercy.  Grace.

Not for the Parole Board.  For them, he hasn't proved he shouldn't be killed, so he should.

Death by default.

* * * * *

They plan to kill Dennis McGuire on January 16.

Happy New Year!

  Dennis McGuire Clemency Report