The Nooses Tighten -- UPDATE

As I type this, it is a little after 1 in the morning in Ohio.  In just under 9 hours, Ron Phillips will be killed at the Southern Ohio Correctional Facility in Lucasville.

The killers will be a group of prison guards.  It's duty they've volunteered for.  They've chosen, for whatever reason, to kill a man for whom they hold no personal animus, a man who's done them no personal wrong.

Those guards won't be acting alone.  Killing Ron Phillips wasn't their idea, after all.  It was the prosecutor who decided he should be killed and the jurors who agreed.  The trial judge signed off on it.  So did appellate judges, justices of the Ohio Supreme Court, judges and justices in federal court. 

The Parole Board was cool with it.  So, it seems, is Governor Kasich who's skipping opening day at the state fair to oversee the murder.

It doesn't need to happen.  We've managed this long without killing him or anyone else.  No need to start up the pumps again.  Thing is, it's not about need.  It's desire.  They want to kill him.  Nothing personal of course.  Not for most of them.  It's calculated.  A dispassionate decision.

Oh, the courts could still call a halt.  So could the Governor who's received petitions with somewhere close to 100,000 signatures asking him to stop it.

I've been happily surprised before, but I don't think I will today.  

8 1/2 hours.

And then there's TaiChin Preyor.  He's got until Thursday.  A whole day left to contemplate his . . . .

The Texas Court of Criminal Appeals turned him down.  Not because they had to.  Because they could.  Here's the explanation.  

  Preyor Concurring Opinion by jmgamso on Scribd

Which is a long way of saying, 

We don't gotta.

Of course, that's just a fancy way of saying 

We don't wanna.

Which puts 'em in the same camp as all those folks up in Ohio.  Sure, we don't have to kill him.  But we actually want to.  Even though (here it comes again), he didn't do anything personally to us.  It just feels good.

You know, like the old Nike commercials.  

Just do it!

'Cause we can.

Judge Alcala dissented in a 33 page opinion (that Scribd doesn't seem to want to let me embed, so here's a link.

He doesn't disagree with the majority's cold-hearted legal calculus.  It's not that we have to grant him relief, he says.  

It's just that what they have to do isn't the whole thing.  It matters, too, what they ought to do.  It matters that they can grant relief.  And in this case . . . .

The extreme circumstances presented in this application include the essential abandonment by applicant’s initial habeas counsel, and the interloping by a foreign attorney without credentials to practice before this Court and in the absence of applicant’s informed consent to pursue habeas litigation for him as a non-attorney. This Court should stay this impending execution of applicant and file and set this case to consider overruling Graves. Assuming Graves is overruled, I would remand this case to the habeas court so as to permit this applicant, who has made a prima facie case that trial counsel performed ineffectively as to their investigation and presentation of mitigation evidence, a live hearing in the habeas court. Because this Court denies the motion to stay execution and permits this execution of applicant several days from now despite the egregious post-conviction errors in this case, I respectfully dissent.

It is, of course, a dissent.


  
-----------------------

UPDATE -- In case you couldn't tell, I'm an idiot.  It's now a bit past noon, and I just realized that today is Tuesday, not Wednesday.

Ron Phillips is scheduled to be killed tomorrow, not today.  TaiChin Preyor on Thursday, not tomorrow.

So there's more time yet for something to happen.  I'm still not holding my breath.

After three and a half years

January 16, 2014.  Just days over three and a half years ago.  

That's when a crew of select prison guards strapped Dennis McGuire to a table (we don't really use a gurney) at the Southern Ohio Correctional Facility in Lucasville, stuck needles into his arms, and . . .
Alan Johnson, a reporter for the Columbus Dispatch, watched 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.

The Buckeyes haven't managed to kill anyone (legally, that is) since then.  What with being unable to get the drugs and the litigation and the ever changing protocols, they just haven't been able to.

Meanwhile, we've had people freed from decades in prison - the early parts on death row - for crimes they didn't commit.  We've had more getting relief, albeit not release, because of serious constitutional problems with their trials.  We've had death on the row.  And we've had more people sent to the row.

What we haven't had is any more executions.  

And yet the state survives.  

They're maybe gonna finally pass a law that exempts the truly really absolutely fucking crazy as a motherfucking bedbug guy from execution.  (Or, of course, maybe not.)

But despite execution dates well into 2020 (27 guys have serious dates, though for one or another reason it's a virtual certainty that we won't actually kill all 27 - certainly not as scheduled), we haven't actually executed anyone since McGuire.  

Three and a half years ago.

Still, the state endures.

We've had a judge declare that Ohio's death penalty law was unconstitutional because after a jury recommends death a judge has to make additional findings in order to impose a death sentence..  (That case is now pending in the Ohio Supreme Court.)  We've had another judge overrule a jury's recommendation of death because she could not, on the record before her, make those findings.

We had it announced that death row would be moving from Chillicothe to Toledo.  And we've learned that they've maybe changed their mind about the move, so now it looks like it won't happen - for sure not anytime soon.

And we haven't executed anyone here for three and a half years.

While Ohio keeps going on its way.

Our State Attorney General's son sits on the Ohio Supreme Court.  The Hamilton County Prosecutor has announced that there's no point in a third murder trial for former University of Cincinnati campus cop Ray Tensing who shot and killed Samuel DuBose.  That's unarmed Sam DuBose.  Sam Dubose who wasn't doing anything wrong.  Killed.  Shot to death by a cop.  Twice juries hung.  Tensing won't hang.  Won't go to prison.

Three and a half years.

And still Ohio thrives.  (There's that opiate overdose thing, but hey . . . .)

So three and a half years.  Which pretty much establishes that we can just let it go.  No actual need to kill anyone.  Just give it up.  We'll keep doing just fine.

Except, you know - Are We Having Fun Yet?

Time to get the gears running.  Tune the engines.  Spin the rotors.  Tote that barge. Lift that bail. Get a little drunk and you land in . . . .

Sorry, I got distracted there. 

January 16, 2014.  Just days over three and a half years ago.

And now, it looks like for real, next week.  July 26, 2017.  Ron Phillips.

Same drugs that left McGuire gasping and snorting and choking and struggling.  

Gary Otte in September.  Ray Tibbetts in October.  Alva Campbell, Jr. in November.

And on.

And on.

And on.

After three and a half years.  In which the state's done just fine.  

But you know how the tension builds.  Until we just have to kill again.  

Or maybe not.

There are petitions and motions in the Supreme Court.  But really, the ball's in Governor Kasich's court.  There's still a week.

Contract Killings - with Correction

Ohio 2014 - One

Ohio 2015 - Nobody

Ohio 2016 - Eleven

That's executions, actual for 2014 and now 2015, scheduled for 2016.

You know the backstory. Ohio has an unmatched record of demonstrated incompetence in performing lethal injections.* Our last killing, Dennis McGuire in January last year, was particularly ugly. And precisely what they'd been warned would happen with their new experimental murder method. Alan Johnson covered it for the Columbus Dispatch and described what he 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.

So, and given the years of ongoing litigation here, the state backed off, called a brief halt, and saod ot would rewrite its protocol for the umpteenth time.  Which they did.  And given the litigation, well, the judge called halts and then everyone kind of agreed to court-ordered halts for a while.  And they decided not to use midazolam and hydromorphone any more.  But that meant finding some other drug and then the secrecy litigation because if you know where we get the drugs we'll have to kill you.

And finally, on Friday, the Governor who probably wants to be President decided to stop it all for a bit.  This year's planned killings, which included some from years past, all got punted into next year. When there are now 11 scheduled.  One a month from January through November.  

Will they all happen?  Probably not.  Some court will likely stop at least one or two.  The Governor may commute one of the sentences.  And of course the whole thing could implode again if we can't get the drugs or fuck another killing up - as we have so many.

And then there's the Supreme Court which is apparently going to decide by June whether killing with midazolam is unconstitutional and, more important really, whether the states can keep all the details of who's doing what a secret. whether a person complaining that the state intends to kill him unconstitutionally must suggest a constitutional method by which he can be killed.** Whatever they decide, expect more litigation.

In the meantime, though, and in 2016:

January 21 - Ronald Phillips
February 19 - Ray Tibbetts
March 23 - Alva Campbell, Jr.
April 20 - Gregory Lott
May 18 - Angelo Fears
June 22 - Warren Henness
July 20 - Cleveland Jackson
August 15 - William Montgomery
September 21 - Kareem Jackson
October 19 - Robert Van Hook
November 16 - Jeffrey Wogenstahl

To what end, exactly?

Each of them was found guilty of aggravated murder.  In each case, it was determined that the aggravating circumstance of the crime outweighed whatever mitigating factors were presented at trial.

Pretend that they got it right.  Every time.  Pretend these men all did terrible things and they had almost nothing to weigh against the crime but themselves.  Hell, maybe it's even true.  Maybe they are, or some of them are, the worst of the worst who did the worst things.  It could be.  (And the beauty of it is that there's no way actually to know, so we can pretend all we like.)

What then?

Van Hook will have been on death row for just over 31 years at his scheduled murder.  Montgomery nearly 30.  For Cleveland Jackson, the fastest of these 11, it will still be nearly 14 years.  And he'll be 38 when they kill him next year.  If they do.  At the other end, Alva Campbell will be 67. 

Whoever these people are that we're planning to kill, they're not who they were back then.  But by god, we're committed to doing it.  They must die.

Just not until next year.

When we kill Ron Phillips next January, if we do, it will have been just over two years since we botched Dennis McGuire's execution.  For just over two years, Ohio will have managed to kill not a single person on death row.  Somehow, the state will have survived unscathed.  Because, really, there's no need.

But if no need?  Then we're killing because we want to.  It's a conscious choice we make.

You, Ron Phillips.  You, Ray Tibbets.  You Alva Campbell, Gregory Lott, Angelo Fears. You, all of you.  We don't need to kill you. But we want to.
It's not that you need to die.  That's not something we can control.  No, we want to kill you.  More precisely, we want some prison guards we don't know to kill you.
We'll arrange it.  Pay for it.  Read about it in the newspaper afterwards.  Our arranged contract killings.  Because we want you murdered.  By those guys over there.

Next year.

 

---------------

*We are, after all, the state that tried for two hours but ultimately failed to kill Romell Broom.  He remains the only survivor of an execution attempt by lethal injection.  (Oral argument in the Ohio Supreme Court on the question of whether the state gets to try again to kill him will be the morning of June 9.)

**Sorry. I knew the right question when I wrote this last night.  I just didn't type the right question.

Kill Him Before He Saves Another One

A quick review.

Chapter 1: January, 1993. Ron Phillips brutally (and really, there was no way to do it that wasn't brutal) raped and murdered 3-year-old Sheila Marie Evans.

Chapter 2: Ron Phillips is sentenced to die. His case works its way through the courts, state and federal. Lose. Lose. Lose. He gets an execution date: November 14, 2013.

Chapter 3: It's getting close. The Parole Board said to kill Ron Phillips. The governor agreed.

Chapter 4: Ron Phillips offers to donate his organs. His mother is on dialysis from kidney disease. His sister has serious heart problems. The Department of Rehabilitation and Correction, which is what we call it here in Ohio, says nope. No can do. No way to do that. Julie Carr Smyth reported.

Prison officials scrambled to review Phillips’ last-minute request, which they called unprecedented, but ultimately could not figure out a way to get the 40-year-old to and from an offsite hospital while following security procedures leading up to an execution.

Chapter 5: Reprieved! The gov steps in and puts off the killing until July 2, 2014, so they can try to figure out how to take the organs and then murder Phillips.  The press release says

Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize thisis a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donatehis organs and tissues then we should allow for that to happen.

Chapter 6:  Outrage.  Art Caplan, the founding head of the Division of Bioethics at NYU's Langone Medical Center, told Julie Carr Smyth and Amanda Lee Myers of AP.

"It's unethical because this guy who's being executed raped and killed a 3-year-old. When you donate your organs, there's a kind of redemption," Caplan said. "Punishment and organ donation don't go well together. I don't think the kinds of people we're executing we want to make in any way heroic."

Ethics, you see, requires that the people we kill must be purely evil.  So they can't be allowed to do anything decent.  

CHAPTER 7:

World Enough, and Time

Here's the thing.  Maybe Ron Phillips, evil sombitch that he is, with the aid of the Department of Rehabilitation and Correction, could end up saving a life or two.  And still we'd get to kill him.  Really, a win win you might think.

Oh, Phillips giving up his kidneys or some bone marrow or whatever wouldn't make up for the pain he's caused, won't bring Sheila Marie Evans back, won't change the past.   And DRC isn't really in the business of saving lives.  But still.

Except there's a problem. After serious surgery, people don't just bounce back.  There's ICU and then recovery in the hospital and then rehab and really, there's got to be time to acknowledge all the get well soon cards.  DRC figures that's 100 days.  Minimum.  And Phillips is going to be killed in 102 days. And the extractions haven't even been scheduled.

So there's just not time enough to cut him open, and then get him back on his feet and ready to be laid on the table and murdered.  

What to do? What to do? What to do?

Ask Kasich for another reprieve?  DRC could do that.  But like I say, they're not in the business of saving lives.  They are, though, in the business of taking lives.  In our names.  The people's business, is perhaps how they think of it.  Alan Johnson in the Dispatch.

The Ohio Department of Rehabilitation and Correction told Phillips today that because he would not be able to complete the transplant by Sunday, he would not be allowed to proceed with the surgery. 

And then, and without any apparent awareness of the irony - or the absurdity.

Prison officials said they wanted Phillips’ surgery done at least 100 days in advance so he would have time to recuperate before being executed. 

Because deadlines.  Because killing Ron Phillips is more important than saving a few lives.  (Call it anti-deterrence if you like.)  

Because Fuck You.

----------------

I took the title of Chapter 7 from Andrew Marvell's poem, "To His Coy Mistress."  Here it is.

Had we but world enough, and time,
This coyness, lady, were no crime.
We would sit down, and think which way
To walk, and pass our long love's day.
Thou by the Indian Ganges' side
Shouldst rubies find; I by the tide
Of Humber would complain. I would
Love you ten years before the flood,
And you should, if you please, refuse
Till the conversion of the Jews.
My vegetable love would grow
Vaster than empires, and more slow;
An hundred years should go to praise
Thine eyes, and on thy forehead gaze;
Two hundred to adore each breast,
But thirty thousand to the rest;
An age at least to every part,
And the last age should show your heart.
For, lady, you deserve this state,
Nor would I love at lower rate.

But at my back I always hear
Time's winged chariot hurrying near:
And yonder all before us lie
Deserts of vast eternity.
Thy beauty shall no more be found;
Nor, in thy marble vaults, shall sound
My echoing song; then worms shall try
That long-preserved virginity,
And your quaint honour turn to dust,
And into ashes all my lust:
The grave's a fine and private place,
But none, I think, do there embrace.

Now therefore, while the youthful hue
Sits on thy skin like morning dew,
And while thy willing soul transpires
At every pore with instant fires,
Now let us sport us while we may,
And now, like amorous birds of prey,
Rather at once our time devour
Than languish in his slow-chapped power.
Let us roll all our strength, and all
Our sweetness, up into one ball,
And tear our pleasure with rough strife
Through the iron gates of life:
Thus, though we cannot make our sun
Stand still, yet we will make him run.

Quagmire upon Quagmire - And Finally the Real Reason

I thought I was done with this piece of news for a while, but then along came Wesley J. Smith and Art Caplan.

The news at hand is about Ron Phillips wanting to donate his organs, DRC saying 

Fie!

and Governor Kasich saying

Hey, maybe we can save some lives here.

As I said, I thought I was done - at least until they did or did not harvest and did or did not kill.  Thing is, I'd forgotten about the internet.

So a few bits of background before we get to Messers Smith and Caplan and the point of this post.

• I don't know Ron Phillips.  I've never represented him.  I've never met him, never spoken to him on the phone or received a letter from him.  I hear, from time to time, from friends and relatives of those on the row.  Never a word about Phillips.  I do know his lawyers, but I've never spoken to them about his crimes.  Nor have I spoken with them about his desire to give away parts of his body.
• Phillips brutally raped and murdered Sheila Marie Evans, a three-year-old child.  (I take it that he's factually guilty.) To describe what he did as reprehensible is to sugar-coat it.  
• I don't think he should be executed.  I don't think anyone should be executed.  There are moral, philosophical, practical, and political reasons.  We shouldn't do it to him, and we shouldn't do it for us.  That's not because I offer any excuse.  There is none.

OK.  Here's the deal.  Phillips was scheduled to be killed yesterday.  The Governor and the courts both declined to intervene in his execution.  Maybe there were more legal avenues to pursue, but the reality was that they would almost surely fail. Nothing's certain in this world except that sooner or later we will all leave it, but that Phillips' execution was imminent was pretty clear.

Boswell quoted Dr. Johnson.

Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.

And so it is that Ron Phillips said that he wanted to donate his kidney to his mother (who had kidney disease) and his heart to his sister (who had a heart condition).  And while they were at it, he said, take the rest of me for whoever.

He wasn't asking for a reprieve.  He figured they'd take the parts after they killed him.
Was it a cynical ploy for some last minute sympathy?  Did he hope it would change the landscape and get him a stay, or even a life sentence (life sans heart would undoubtedly be measured in microseconds, but still)?  Did he actually think, like dying Edmund in King Lear,

                       some good I mean to do,
Despite of mine own nature.

Did he hope that would somehow atone?  That the family of Sheila Marie Evans would now believe him a good man?  That the gates of heaven would open and he'd be welcomed with open arms and invited to sit on the right hand?

Damned if I know.

What I do know is that there are concerns, legitimate moral concerns, with taking organs from the condemned.  Might jurors be more inclined to sentence folks to die if they thought they were also including organ donation in the sentence? Can the offer of donation ever be fully voluntary when there's at least some chance, however small, that it might influence a clemency decision - or even lead to a reprieve?  Are doctors somehow complicit in the execution if they take organs - either before or after?

And there are practical concerns involving logistics, the quality of the prospectively donated organs, possibly changing execution methodology, the willingness of some who might need organs to accept them, and, again, medical ethics. 

I said the other day that all of those can be overcome or resolved with sufficient will.  Vicki Werneke, a lawyer who does late-stage capital work in Ohio, commented on my last post.

I predict that ODRC will now have to develop procedures by which the guys on the row can make such requests, etc.

Could be.

Anyway, that's where we were when the ethicists weighed in. They said all the things I'd mentioned.

• Jurors might see it as a "perverse incentive" to kill, said Dr. Brooke Edwards of the Mayo Clinic Transplant Center.
• It's almost impossible to see a donation as free from "coercion or consideration of personal gain," said Anne Paschke of the United Network for Organ Sharing.

Wesley J. Smith, purportedly a "bioethics attorney" in Columbus, Ohio (though not listed as an attorney by the Ohio Supreme Court) and a "special consultant" to the Center for Bioethics and Culture (whatever and wherever that might be), and who does indeed write the Human Exceptionalism blog for the National Review on line, wrote

Here’s the problem: The requested donation must be judged in the context in which it was made. This is not a truly freely chosen action. But for being condemned to die, there is no indication that he would have been willing to donate.

If we are to have a death penalty–and I don’t want to get into that question here–we should not allow execution to be tied to a utilitarian benefit for society. And that is precisely what is happening here.

And then there was Art Caplan.  He's the founding head of the Division of Bioethics at NYU's Langone Medical Center.  He's a serious guy.  At the Bill of Health Blog published by the Petrie-Flom Center of Harvard Law School (can't get much more serious than that), he said,

Are we ever capable of laying a stupid idea to rest in America? Apparently not. The latest tempest in the ever-resurrecting world of solutions to the shortage of organs is donation by executed prisoners. The Governor of Ohio held up a plan to execute a man on death row when he requested that his organs be donated to his mother and sister each of whom have serious health problems.

According to the AP,

“Ohio Governor John Kasich on Wednesday stayed the execution of convicted killer Ronald Phillips to assess whether Phillips’s non-vital organs or tissues can be donated to his mother or possibly others. Phillips, 40, was scheduled to be executed Thursday for the 1993 murder of 3-year-old Sheila Marie Evans.

“I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Kasich said in a statement.”

The Governor need not have bothered. What child rapist and murderer Ron Phillips had in mind was donating his heart and kidneys to his family. He has shown no interest in helping anyone else nor did he ever mention tissue donation.

That last part is, apparently, not entirely true.  His letter to the Governor does, according to press reports, also invite the taking of other organs.  (I doubt that he mentioned tissue, but I don't actually know.)

Notice that the focus, despite the language Smith and Caplan use, has shifted from whether the donation offer is truly voluntary to underlying issues that have nothing to do with that moral/ethical issue. Mustn't let executions offer a "utilitarian benefit" says Smith who is regularly concerned in his blog with avoiding things that might actually encourage organ donation.  And Caplan would reject the offer because Phillips only wants to help his mother and sister rather than the larger society.  

Yet even that's a sham.  Here's what Caplan told Julie Carr Smyth and Amanda Lee Myers of AP.

"It's unethical because this guy who's being executed raped and killed a 3-year-old. When you donate your organs, there's a kind of redemption," Caplan said. "Punishment and organ donation don't go well together. I don't think the kinds of people we're executing we want to make in any way heroic."

Which is, of course, the essence of the matter, the real reason.  People who do what Phillips did, we can't allow them to be redeemed.  We must keep them monsters or we can't kill them.

Prisons, they were called penitentiaries for a reason.  They were to be places of penitence.  We wanted redemption.  We hoped that last words would be acknowledgements of guilt, exhortations to the gathered throng (including large numbers of pickpockets and purse snatchers, who apparently weren't deterred) to be better people.  We hoped to rehabilitate.

Raymond Chandler, who wrote the Phillip Marlowe detective novels, famously said,

In everything that can be called art there is a quality of redemption.

As in art, so in life.  Or so we might hope. But redemption isn't compatible with dehumanization, with monstrosity.  The Golem must be destroyed - which is a hell of a lot harder if the Golem turns out to be just another, deeply flawed guy.

Should Ron Phillips be allowed to donate his organs?  If he's serious.  If he wants to do it.  Sure.

And if it leads us to think twice about why we want to kill someone who'd do that - even as he faces his last days? 

Fuck.  That's all the more reason to let him.

Organ Harvesting in Ohio

When I say, as I do, that you never know what will happen until it does, well, I could be talking about Ronald Phillips.

Yesterday's news was that Ronald Phillips wanted to donate his organs - kidney to his mother, heart to his sister, the rest of them to whoever - and that DRC said he couldn't.  It was too tough to figure out how to harvest his organs and then kill him.  I wrote about that yesterday, noting that they could do it if they wanted, but also discussing the fact that no state has yet allowed a person on the cusp of execution to become an organ donor.

That was then.  This is now.

   PRESS RELEASE_ Kasich Stays Execution of Ronald Phillips to Assess Medical Feasibility of Organ Donation -...

OK, sis won't get the heart.  But mom just might get a working kidney.  Someone else might pick up a lung or a cornea or -- hell, I don't know. 

Ohio was the first state to use a single drug to kill.  It was set to be the first state to kill with a mix of midazolam and hydromorphone.  It's the state, as I said the other day, that does the most extreme long-range planning of executions as we have prospectively dead bodies lined up through January 2016.

And now we're set to be the first state to actually defer an execution so that the guy's organs can be harvested.  Not, of course, any harvesting that would kill him.  He mustn't die doing good.  The killing, the murder, must be clean, direct, performed by prison guards, in our name.

I'm not being an apologist.  What Ron Phillips did, his brutal rape and murder of Sheila Marie Evans, was surpassingly horrific.  But this isn't about excusing him.  Noone seriously suggests that.  But here in Ohio, "The Heart of It All" as one of our tourist slogans says, enormity begets enormity, blood will have blood.  Though it cannot undo.

Still, Ron Phillips may be able to give his mother a working kidney.  Some kid might get to see because of him, someone else to breathe.  And then . . . .

Come July 2, we'll once again be attending vigils and watching, and waiting.  While they pump the drugs.

From King Lear, Act III, Scene ii.

Blow, winds, and crack your cheeks! rage! blow!
You cataracts and hurricanoes, spout
Till you have drench'd our steeples, drown'd the cocks!
You sulphurous and thought-executing fires,
Vaunt-couriers to oak-cleaving thunderbolts,
Singe my white head! And thou, all-shaking thunder,
Smite flat the thick rotundity o' the world!
Crack nature's moulds, an germens spill at once,
That make ingrateful man!

Take Another Little Piece of My Heart

They tried.  They really tried.  They just couldn't figure out a way to make it work.

Julie Carr Smyth lays it out for the AP.

Prison officials scrambled to review Phillips’ last-minute request, which they called unprecedented, but ultimately could not figure out a way to get the 40-year-old to and from an offsite hospital while following security procedures leading up to an execution.

Here's the deal.  Ronald Phillips has a family.  His mother is on dialysis with kidney disease.  His sister has some serious heart condition.  So Phillips figured that since he's going to be murdered on Tuesday,* he might as well give Mom his kidney and Sis his heart.  And he said, as long as he's at it, he'll give away the rest of his organs, too.

But no, they can't handle the logistics.  Get him to the hospital, let the doctors harvest his organs, then get him back to Lucasville so the prison guards can kill him.  Can't be done.  

Oh, they're probably right.  Forget the security issues.  Once they extract his heart, they'll struggle to keep him alive long enough to kill.  And the sentence, after all, is execution not death.  Everyone on the row who dies before the state can kill him beats the system, cheats the hangman, denies the state its pound of flesh.  (Though I suppose Phillips is actually offering more than a pound all told.)

The standard methods of getting organs from the dead won't exactly work here, either.  AP's Andrew Welsh-Huggins spoke with trauma surgeon Jonathan Groner.

Dr. Jonathan Groner, an Ohio State University surgeon who has closely studied lethal injection, said donated organs typically come from people who are brain-dead but still have heartbeats and breathe with the help of a respirator. Phillips would not fit this category, Groner said.

Donors’ bodies are kept on life support for an average of 24 hours until the organs can be removed for transplant.

Phillips isn't the first person on death row to offer his organs.  Julie Carr Smyth:

In 1995, Delaware death row inmate Steven Shelton was allowed to donate a kidney to his mother while in prison, though he was not facing imminent execution. Following successful appeals, his death sentence was reversed and he was resentenced to prison time in 2011.

But of course Shelton's case was different - the donation and the execution (which didn't ultimately occur) were altogether distinct.  They wouldn't be for Phillips who's saying

Take the organs after you kill me.

He's not the first to offer.  Christian Longo, on death row in Oregon, explained in an Op Ed in the Times that he would drop all his appeals if he could donate his organs after the execution. Oregon said no. (I wrote about it here.)

But the subject keeps coming up.  Eighteen months after Longo's Op Ed, the Times provided a follow up via Brandi Grissom of the Texas Tribune. (I wrote about it here.)  The bottom line:

Criminal justice and medical experts say that the idea of recovering organs from willing convicted murderers is fraught with moral, ethical and medical challenges that make it unlikely to ever be an option. 

Back in April, Utah became the first state with a statute explicitly allowing inmates who die in state custody to donate their organs. (Other states apparently allow it, at least in some circumstances, but apparently don't have authorizing statutes.)  On its face, the statute seems to apply to those on death row, though it's not clear that it actually will.

And now there's Oklahoma.  Last week, NewsOne6.com, reported that a bell to let the folks on death row donate is being introduced.

Democratic state Rep. Rep. Joe Dorman of Rush Springs says he's developing legislation that would give a person who's been convicted of taking a life an opportunity to give someone else a chance to live a longer life.

I do understand the moral and ethical problems.  And god knows I get the practical ones.   They're messy, but they're all within the realm of what can be controlled.  What's really at issue is a combination of ick factor and fear.

The ick factor is, I suppose, real enough, but it's hardly a serious issue.  Sure, there may be donees who'd feel uncomfortable.  Which is pretty much their problem and not a problem with the idea.  I mean, if someone needs a kidney to survive but balks at getting one from a killer?  Hey, Fuck you.  Next!

Fear is different.  If you'll excuse the expression, it cuts to the heart of the matter.  In order to kill, we dehumanize.  A couple of weeks ago, I mentioned a judge who explained his life vote in a capital case:

I just couldn't look at him and say, "Fuck you."

Right.  If we can't say, aren't comfortable saying, "Fuck you," then we aren't going to be comfortable killing.  And it's hard to say "Fuck you" to someone who's trying to save lives.  

Which brings me back to Ron Phillips.  Who's trying to do a decent thing.  Which DRC won't let him do.  Because they can't work out the logistics of both letting him do something decent and getting on with the business of his murder.  And since they can't do both . . . .

They plan to kill Ron Phillips Thursday morning.

--------------------
*Note to Mark Draughn: I understate.  In Ohio it's actually the offense of Aggravated Murder (as if murder isn't sufficiently aggravating all by itself).  Section 2903.01 of the Ohio Revised Code defines that offense of Aggravated Murder.  Subsection A sets out the first form (there are several forms) of the offense:

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

Strapping someone down to a table, sticking needles in his arms, and pumping him full of drugs in order to cause his death is pretty clearly "purposely, and with prior calculation and design, caus[ing] the death of another." Ohio statutes authorize executions.  They do not exempt from Aggravated Murder those who carry out the killing.

Heading for the Charnel House

OK, so maybe they did find veins.  Turns out it's contested.  Regardless, they'll check again before they try to kill him.  At least for the moment, the idea is to go with Plan B rather than Plan C.

And go they're intending to do.  Ronald Phillips is to die next Thursday, November 14, at the hands of the state of Ohio.  I can't say it's a surprise, but it's a disappointment.  Alan Bohnert, an Assistant Federal Public Defender, nailed it.

Close enough for government work is not acceptable in applying this death penalty protocol

Unless, of course, it is.  

Judge Frost signed off on it.  Not because he thinks Ohio's got it right, but because Phillips couldn't show, finally, that Ohio can't be trusted.  

This is not to say that the question of the new protocol’s constitutional propriety is conclusively resolved. The Court is not without potential concerns regarding some of the choices that Ohio has apparently made or is contemplating making in its execution plans. But these concerns relate to issues that either do not involve Phillips or that he has elected not to pursue. Those issues will likely become the focus of another proceeding involving another inmate.

Based on the specific arguments that Phillips has made, however, he has failed to persuade this Court that Ohio cannot be trusted, which means that he has failed to persuade the Court that he is substantially likely to prevail on the merits of his claims.

It's a technical point about burdens of proof.  And Phillips, the judge said, didn't meet his.  Frost isn't cavalier about it.  He recites in some detail and case by case Ohio's failures to follow its own rules, its gulling him about whether it would, and then its apparently beginning to follow them.  He acknowledges, considers, deems.  

And then says it's not enough.

Which maybe it is and maybe it isn't.  I wasn't at the lengthy hearings.  I don't know who said what or how the witnesses presented.  I wasn't the one poring through evidence and argument and trying to make sense of it.  I am, after all, neither a judge nor a reporter despite the fact that I judge and I report.  But Frost is a judge and was there and whether or not he's right, he has the robe and the role and it's his perception and decisions that count.

And it was a mess.

“Are you lying now or were you lying then?”

Defendants’ counsel began his November 4, 2013 closing argument with this question, which he stated was inapplicable to the inquiry this Court must undertake in regard to Phillips’ motion for a stay. Phillips disagrees, targeting recent testimony and other evidence with often conflicting prior testimony and other evidence. The entire premise underlying Phillips’ stay request is that Defendants cannot be trusted to implement Ohio’s protocol in a constitutional way; in fact, Phillips argues, the new protocol is inherently unconstitutional. But although both sides agree that the stay request essentially comes down to an issue of trust, the cases they presented at the hearing often could not have been more unrelated. At times it seemed as if Defendants were defending against an entirely different case than the one Phillips was pursuing, which too often resulted in unnecessary argument and testimony on wholly irrelevant issues. . . .

First, review of Phillips’ motion alone would almost invariably mislead anyone conducting such an inquiry into thinking that Phillips’ stay request involves claims and arguments that either the circumstances of the plan for executing Phillips have mooted or that Phillips has elected not to pursue. Phillips filed his motion approximately thirty minutes after Defendants had filed a notice indicating that they would be utilizing intravenous administration of midazolam and hydromorphone to execute Phillips. (ECF No. 338.) Counsel for Phillips had therefore devoted considerable time and pages to arguing points that the notice rendered irrelevant. Rather than delay proceedings by taking time to re-draft the motion, counsel understandably proceeded to file the document with the last-minute addition of a footnote recognizing the timing issue and suggesting that not all of the motion was relevant. During the course of the hearing, Phillips then narrowed the scope of his arguments for a stay based on the clarified circumstances provided by the notice and in light of the evidence presented.

Second, anyone who watched the entirety of the Phillips’ stay hearing or who reviews the hearing transcript would perhaps be confused by the lack of focus that pervaded much of the proceedings. As suggested above, the parties–particularly Defendants–presented hours of testimony on issues that had become moot or that Phillips’ motion never raised in the first place. Some of this might have been the result of Defendants thinking that they had to build a fuller record on ICS in case Phillips’ execution makes its way to the court of appeals, despite the fact that this Court’s prior decisions fully addressed ICS and the fact that Phillips’ arguments only reached a portion of that system. Much of Defendants’ litigation strategy escapes this Court.

And yet.  Good enough.  Phillips had to prove that they couldn't be trusted.  He didn't.

Nor did he sway the Governor.  Kasich declined, once again, to overrule the Parole Board's unanimous declaration that Phillips ought to be killed.  Childhood abuse? Incompetent lawyers? Acceptance of responsibility and genuine remorse? If the Parole Board didn't care, why would he.

There's more to do, of course.  There's the 6th Circuit and then the Supreme Court.  The Gov could 
reconsider.  The Ohio Supremes could stop it.  They could try and get back before Frost with something else.  But the likelihood of success diminishes by the hour.  The options shrink.

I've been wrong about this stuff before.  Nobody ever really knows what will happen until it's done, and late stage capital litigation can take surprising twists.

But it's probably not too soon to start singing mournful songs, if not for Ronald Phillips, who maybe doesn't deserve our sympathy, then for ourselves in whose name he's to be killed.

   Frost OP 11.07.2013

Make That Plan C

It was just the other day I wrote that Ohio was going into untried territory.

They couldn't find a compounding pharmacy that was willing to whip up a quick batch of

Ronald Phillips

pentobarbital so they were going to kill Ronald Phillips with a combination of midazolam and hydromorphone. That was the backup system, Plan B.

No one had ever been executed by those two drugs, so who really knew?  Just a little human experiment.  Shoot that mess into his veins and see what happens.

That was so last week.

It turns out that the prison doctor, who as part of Ohio's execution protocol looks for veins that the guards who kill can use to pump the drugs, couldn't find any in his arms.  (NOTE TO AMA and the licensing authorities: The doctor doing that is not part of the process of killing, which would be wrong; he's just part of the process of preparing for killing which is something completely different - just ask the nurse who also participated in the search and also wouldn't have done it if it had anything to do with killing Phillips.)  As the AP reports Phillips said during video testimony in court on Friday, 

I guess the Lord hid my veins from them.

Which if it were true might raise some interesting questions about just how the Lord felt about such things as lethal injection, but I'm a atheist and won't go there.  

In any event, no vein.  What to do? What to do?

Ah, yes, the fallback, Plan C, if you will.  Intramuscular injection!  That'll be the required quick and painless.  Which we know because it's been done so many times before.  Oh, wait, it's never been done.  If nobody's ever executed with these drugs, they're now going to be used via an injection system into muscles - which no executioner has ever tried.

But then, Ohio's demonstrated itself highly skilled in executions.  Take Rommel Broom who, you might recall, is still among the living because they failed to kill him.  And it's versatile, ready to change gears at a moment's notice, making it up as it goes along.  As Judge Frost noted a couple of years ago, in declaring our, er, system unconstitutional,

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not.

And they told him Friday that they'll do again.  Plan D, as it were - we'll figure it out as we go along.

The hearing Friday began by focusing on the state's decision to allow the prisons director or death house warden to delegate responsibility for changes in the execution process. That could include any deviation from the policy, down to paperwork documenting a particular step.

Friday's hearing ran until after 8 at night.  Round two begins Monday morning.  The murder of Ronald Phillips is scheduled for November 14.   

Stay tuned.