Wednesday 31 January 2007

Britain blocks Italy's bid to ban death penalty


Britain blocks Italy's bid to ban death penalty

By Peter Popham in Rome

Published: 31 January 2007

The Italian Prime Minister, Romano Prodi, was in the Ethiopian capital, Addis Ababa, yesterday, trying to persuade African heads of state to sign up to a global moratorium on capital punishment after Britain sank an effort to have the EU back the initiative as a bloc.

At the summit of the African Union, Mr Prodi called on the continent's leaders to endorse "the defence of life, the supreme and undeniable right even though it is often trampled underfoot". He went on, "We cannot remain indifferent in the face of this moral imperative. We must be for life and against death, as we are against injustice and suffering."

Italy's latest attempt to galvanise the world into rejecting the death penalty began when Marco Panella, an MEP and civil rights campaigner, went on hunger strike after hearing that Saddam Hussein was to be executed. Abolishing capital punishment is one of the few issues on which all parties in Italy's ruling centre-left coalition agree, and Mr Pannella's campaign prompted Mr Prodi to take up the challenge of putting the proposal before the UN's General Assembly. But when his Foreign Minister and Deputy Prime Minister, Massimo D'Alema, tried to obtain backing for the proposal at the EU foreign ministers' meeting in Brussels last week, Britain shot it down.

British diplomats said privately that they did not wish to create difficulties for the United States at a delicate time and they did not believe it was possible to do it now. Holland, Denmark and Hungary subsequently took the same view.

It is the second time that Tony Blair's government has torpedoed Italian efforts to spread Europe's confirmed aversion to capital punishment across the world. The first was in 1999, when a last-minute British "no" killed the initiative.

While in Ethiopia, Mr Prodi revealed he had met the Libyan leader, Muammar Gaddafi, to appeal to him to spare the lives of five Bulgarian nurses and a Palestinian doctor sentenced to death for infecting hundreds of children with HIV. He said Col Gaddafi had told him there were still "problems of reparations and compensation" but he would "reflect" on the issue.

Tuesday 30 January 2007

Death penalty - MEPs set to back International moratorium


Death penalty - MEPs set to back International moratorium

Death row - an ominous wait

Death by beheading, electrocution, hanging and a firing squad: all deeply repulsive and legal ways to die in many countries around the world. Amnesty International reports that in 2005 over 2,100 people were executed in 22 countries. This week MEPs are set to add their support for a UN sponsored international moratorium on executions. A debate and resolution on Wednesday and Thursday are likely to demand an immediate and unconditional halt to executions.

2007 Congress against the death penalty

Later in the week a cross-party delegation of MEPs will attend the "World Congress Against the Death Penalty" in Paris. This is the 3rd such meeting - the first being held in the Parliament in Strasbourg in 2001.

The aim is to discuss ways of persuading countries to end executions and put pressure on them to halt executions. The organisers have organised a petition to the Chinese government asking them to show an "Olympic spirit" and halt executions prior to the 2008 Olympics Games in Beijing.

Ahead of the visit one member of Parliament's delegation - Roberta Anastase of the European People's Party said the Parliament is "acting today to promote human rights, to impose a ban on the death penalty...to envisage the value of every human being".

International pressure

The foundation stone of the anti-death penalty case is the UN's 1948 Universal Declaration on Human Rights guaranteeing the "right to life, liberty and security of person..." On the 50th anniversary of this declaration in 1998 the EU reaffirmed its commitment to these principles. None of the current 27 states of the Union currently has the death penalty.

Just last week MEPs unanimously voted to support a resolution that called for the overturning of death sentences against 5 Bulgarian nurses and 1 Palestinian doctor in Libya. They were convicted in 2004 for allegedly infecting 400 children with the AIDS virus in a Benghazi hospital. The medics have always said they are being made scapegoats for failures in the Libyan health system.

A world divided over death

The international community is roughly divided into four groups towards the death penalty.

The first group are the 88 states that have abolished the penalty. The second are the 11 countries that retain it for "special" crimes such as those committed under military law for example.

The third group - 29 countries - such as Morocco and Algeria - that retain the penalty but have not executed anyone for 10 years.

Finally, the last group of 69 states and territories that maintain and carry out the death penalty. This includes the US, China, Saudi Arabia and Afghanistan.

REF.: 20070130STO02572

Further information :The EU and death penalty
3rd World Congress Against Death Penalty Paris
The question of the death penalty: UN Commission on Human Rights resolution 2000/65
International Covenant on Civil and Political Rights
Amnesty International website on death penalty

Urgent Action : Contact NC Council of State

Urgent Action:

Contact NC Council of State

Background

Last week Wake County Superior Court Judge Donald Stephens halted all three
scheduled executions because of statutes requiring NC Gov. Mike Easley and
the NC Council of State to approve any changes in the state's execution
protocol. The nine-member Council of State usually deals with finalizing the
sale of state properties.

The Council of State meets next on Tuesday, Feb 6.

The NC Attorney General's Office is not appealing Judge Stephens'
decision.

This stay will likely also halt other executions that would have been
scheduled in the near future -- and possibly for some time to come.
(Vigils related to the scheduled executions are cancelled. PFADP's Catawba
Valley chapter will hold special meetings instead.)

Take Action

Please write the members of the Council of State and urge them to not
approve of the change in execution protocol and to leave this complicated
legal and medical matter to the legislature for a through review, something
which has never been done.

Even if the Council of State approves of the Department of Corrections
procedures for executions it is likely that executions would be stayed again
because courts and the statutes require physicians to participate.
The NC Medical Board recently barred doctors and nurses from actively
participating in executions other than being present.

A sample message to the NC Council of State is below, along with its
members' email addresses.

This is a chance for you let these top political leaders know how you feel
about executions carried out in your name. The more personal your letter,
the more effective it will be.

Please ask people in your congregation and your community to write the
Council of State as well.

Recent statements by NC Council of State members can be found at PFADP's web
site home page, www.pfadp.org.

Sample Letter to Members of the NC Council of State:

Dear [Members of the NC Council of State] or [Commissioner/

Secretary/Etc.],

As a member of the NC Council of State you are faced with approving the
protocol for North Carolinas execution procedures.

The legal and medical complexities of our states execution procedures are
beyond what the Council of State can be reasonably expected to fully study
and address.

I urge you to not approve of the states execution protocol and to ask the NC
General Assembly to begin a thorough studywhich it has never doneof lethal
injection and of the multitude of problems in the administration of the
death penalty.

North Carolina death penalty system is enormously expensive, prone to errors
and racial and class bias, and irrevocable. The hundreds of millions of
taxpayer dollars that go into North Carolina's death penalty could be better
used for new programs that really help victims families in our state.

There are good reasons the NC Medical Board has barred doctors and nurses
from participating in executions.

Executions have been halted in 10 other states because of concerns over
lethal injection procedures. (For more information see
http://www.deathpenaltyinfo.org/article.php?did=1686&scid=64)

The death penalty is immoral, and the death penalty is bad public policy.

I join with the more than 50,000 North Carolina citizens who have called for
a halt to executions and for a thorough study of the death penalty by the
legisature. In addition, more than 1,000 churches, businesses, and community
groups in North Carolina have passed resolutions calling for a suspension of
executions, including 39 local governments.

Our nation is the only Western industrialized country to still practice
capital punishment.

I hope and I pray that you will take this opportunity to provide principled
leadership for the citizens of North Carolina and to call for a thorough
examination of death penalty by the legislature.

Thank you.

Sincerely,

[name, full mailing address]

NC Council of State Email Addresses:

bev.perdue@ncmail.net (NC Lt. Gov. Beverly Purdue);

richard.moore@nctreasurer.com (NC Treasurer Richard Moore);

leslie_merritt@ncauditor.net (NC State Auditor Les Merritt);

joyce.bulluck@nclabor.com (Assistant to NC Labor Secretary Berry);

ncago@ncdoj.gov (NC Attorney General Richard Moore);

emarshal@sosnc.com (NC Secretary of State Elaine Marshall);

jlong@ncdoi.net (NC Insurance Commissioner Jim Long);

jatkinson@dpi.state.nc.us (NC Superintendent of Public Instruction June
Atkinson);

mwertis@dpi.state.nc.us (Assistant to NC Superintendent of Public
Instruction June Atkinson);

steve.troxler@ncmail.net (NC Secretary of Agriculture Steve Troxler)


Join PFADP for HK on J

Saturday, February 10, 2007
Memorial Auditorium, Downtown Raleigh
Arrival at 11 a.m., Program at 12 p.m.

People of Faith Against the Death Penalty joins the North Carolina NAACP's
call for abolition of the death penalty at Historic K (Thousands) on Jones
Street. With executions stopped in North Carolina, now is the time to speak
out and be heard. Please join in this essential event - a People's General
Assembly calling for abolition!

HK on J aims to get thousands of people from all 100 counties in North
Carolina to come to Raleigh for an assembly at Memorial Auditorium and a
march to the Legislative Building on Jones Street.

Help us mobilize like it's 1955!

No matter where you are - Asheville, Fayetteville, Charlotte, Hickory,
Greensboro or elsewhere - we need you to come to Raleigh to be a part of
this statewide action.

Talk to the leaders of your congregation and ask them to help bring 55
people from your faith community to the rally, and use your congregation's
vans.

If you can attend this event, please let PFADP know that you can represent
us! Contact PFADP at (919) 933-7567 or info@pfadp.org.

MEDICAL DEATH TEAM - the profession can be PROUD


MEDICAL TEAM

Panelists asked to hear from the executioners and medical team, whose identities are closely guarded by the Florida Department of Corrections. American Medical Association guidelines bar doctors from taking part, directly or indirectly, in executions.

In what kuckuckfairyland is this Mr Bryant living in?

In what kuckuckfairyland is this Mr Bryant living in? It is demeaning to ignore reality and pretend. It reminds of of a trip to Charleston SC several years ago, and a visit to the "Slave Market". I was told by a friend that slaves weren't sold there, but sold their handicrafts and art work there. Be real!

As administered, lethal injection has a strong potential for causing severe pain. Accept that. As practiced, lethal injection masks the pain by a general paralysis-- or at least is supposed to. In the case of Mr Diaz, the pancuronium didn't work completely. We know that Kalium Chloride (KCl) can cause severe pain in contact with tissues; that is also a given. With Mr Diaz, he had severe burns in both arms. The burns cause pain. I rest my case.

Forget about the overwhelming evidence, and take the word of someone with a vested interest in keeping lethal injection as a way of state sanctioned murder...And cigarette smoke does not cause cancer. We know that because the cigarette executives-- who do not smoke themselves-- said so. And the Earth is flat...

G M Larkin MD

Warden: Execution caused no pain




TAMPA - An inmate whose execution was botched last month wasn't writhing in pain, but merely stretching to see a clock in the death chamber, the warden who oversaw the execution testified Monday.

On the first day of hearings on the lethal injection procedure, a state commission heard dramatically different versions of Angel Nieves Diaz's Dec. 13 execution in Florida State Prison near Starke.

The warden and two other members of the execution team said Diaz didn't exhibit signs of distress, while a witness with a front-row seat said the inmate looked like he was grimacing in pain.

But the testimony did clear up one lingering question about the execution: Medical staff made key decisions on the insertion of IV lines and dispensing of lethal chemicals, defying ethical guidelines that restrict their involvement in executions.

Diaz's execution took 34 minutes, about 20 minutes longer than the typical execution. Florida State Prison Warden Randall Bryant said Diaz appeared to look at a clock during the procedure but gave no indication of problems.

"He looked around the room but made no sounds of someone in distress," he said.

But Neal Dupree, Diaz's attorney and an execution witness, said his client grimaced and appeared to be agitated. Dupree, providing a version of events similar to news media witnesses, said he thought Diaz was gasping for air at one point.

"He almost appeared to be a fish out of water," he said.

Following the execution, the Alachua County Medical Examiner reported that an improperly inserted IV caused lethal chemicals to seep into Diaz's tissue. The problem prolonged the execution and caused Diaz to suffer nearly foot-long chemical burns on his arms.

Then-Gov. Jeb Bush subsequently halted all executions and created a commission to investigate. The 11-member panel consists of lawmakers, doctors and members of the criminal justice system, including Gainesville Circuit Judge Stan Morris.

Diaz's niece, Sol Otero, said she was dissatisfied with the group's first day of work. She said she feels prison officials aren't being forthright about what happened.

"I feel like everyone is trying to cover this up - especially Florida State Prison," she said.

The first day of testimony touched on the medical soundness of the procedure and involvement of medical personnel. The testimony painted a picture of a procedure where doctors make key decisions, but are kept at arm's length from actually serving as executioners.

A task force commissioned by Department of Corrections Secretary James McDonough found that execution team members didn't report problems inserting an IV and violated procedure in changing the way the lethal drugs were dispensed. But the report didn't identify who made those decisions.

Bryant said medical staff on the execution team advise the individuals dispensing the lethal drugs. He said he relied on the medical staff to determine if there were problems.

"My discipline would not allow me to override someone in the medical field about a medical procedure," he said.

One member of the medical staff, prison physician assistant William F. Mathews, testified he observed the execution but didn't actively participate.

He said the medical staff who inserted IV lines and instructed executioners on dispensing drugs have the experience needed to make such decisions.

"The people involved are highly qualified in the particular areas that they serve in," he said.

The issue of medical involvement in executions presents a potential problem for both members of the execution team and the commission.

American Medical Association guidelines restrict doctors from having any involvement in executions, from pronouncing death to advising on the process.

While public records show the names of three doctors who pronounce death in executions, the Florida Department of Corrections refuses to confirm their involvement. Department officials said they would allow doctors to testify before the commission only if their identities were protected.

The commission decided these doctors would provide testimony by phone at a future meeting, as a way to conceal their identities. Members also decided to hear testimony from other doctors on alternatives to inserting an IV line into an inmate's arm.

But Tampa anesthesiologist Dr. David Varlotta said he was concerned about getting those doctors to testify about improving the procedure.

"I think we have to be careful that we don't make lethal injection a procedure of medicine," he said.

The commission is scheduled to hear more testimony Feb. 5 and 9. It plans to submit a preliminary report Feb. 15 and final report March 1.

The next two meetings could be critical to clearing up conflicting versions of the Diaz execution.

Diaz appeared to be speaking during the procedure, but execution team members differed on what he was saying. Bryant said Diaz mumbled something incoherent, while other team members reported Diaz said, ''What's happening?'' twice during the process.

The question of whether Diaz was expressing pain appears to be the biggest difference in opinion.

State Sen. Victor Crist, R-Tampa, said he believed that the observers' different beliefs about the death penalty could have led to different perceptions.

Crist, the chairman of the Senate criminal justice appropriations committee, is a strong supporter of the death penalty. He said he trusted the version of events from members of the execution team inside the death chamber, as opposed to witnesses separated by a glass window.

"It's two different environments on either side of that glass," he said.

Mark Elliot of Floridians for Alternatives to the Death Penalty withheld judgment about the process until further meetings. But he said he hoped the panel would ask harder questions to get to the truth. "It's the secrecy that has caused the problems," he said.

Nathan Crabbe can be reached at 352-338-3176 or crabben@gvillesun.com.

MAKING SURE IT WAS TIME TO DIE?



MAKING SURE IT WAS TIME TO DIE?

TAMPA, Fla. - A convicted killer whose execution was botched last year was never in any pain, and appeared to be straining to see a clock, not grimacing as some witnesses claimed, the warden told a panel reviewing Florida's lethal injection procedures yesterday.

But the condemned man's lawyer said his client was clearly suffering from the incorrectly injected chemicals, and he mocked notion that the inmate was looking at a clock.

"What, was he late for an appointment? Come on, that's ridiculous," said Angel Nieves Diaz's attorney, Neal Dupree, who also witnessed the execution and testified before the commission. "I certainly thought he knew something was wrong and he was looking to the closest [Department of Corrections] guy."

Diaz's execution Dec. 13 took 34 minutes - twice as long as usual - and required a rare second dose of lethal chemicals because the needles were incorrectly inserted clear through his veins and into the flesh in his arms, a medical examiner reported.

After the botched execution, then-Gov. Jeb Bush created the commission to examine whether improvements can be made in how lethal injections are administered.

Executions have been halted pending the commission's report, due to be sent to new Gov. Charlie Crist by March 1.

Monday 29 January 2007

Pro DP persons do not see pain ......

Florida Politican :


"It's personal observation," he said. "I would think someone opposed to capital punishment would have seen pain and those who support it may have not."

Execution put under microscope

Execution put under microscope

By CHRIS TISCH, Times Staff Writer

Published January 30, 2007



TAMPA - Sitting six feet away, death row defense lawyer Neal Dupree said he saw Angel Diaz grimace and gasp in apparent pain during his execution.

Florida State Prison Warden Randall Bryant stood about three feet away that evening and said Diaz was merely straining to look at a clock in the execution chamber.

The conflicting testimony came Monday before a commission assembled to review the state's lethal injection procedures, spurred by irregularities in Diaz's Dec. 13 execution.

Diaz took twice as long as usual to die and an autopsy found that plastic catheters tore through his veins, splashing chemicals into his flesh that caused foot-long burns. Because state and federal law prohibits cruel and unusual punishment, whether Diaz felt pain is crucial to the commission's study.

If Monday's meeting is any indication, it may not be an easy question to answer.

In addition to Dupree, several news reporters, including some who have viewed multiple executions, reported in articles that Diaz appeared to grimace, wince or squint during the execution.

Dupree, who was behind soundproof glass in the witness room during the execution, said he saw Diaz breathing furiously, his Adam's apple bobbing up and down.

"It looked like he was in pain to me. He almost appeared to be a fish out of water," said Dupree, supervisor of the Capital Collateral Regional Counsel office for South Florida, which represented Diaz in his appeals. "He was gasping. And that went on for a period of about 10 to 12 minutes."

Bryant, who was inside the chamber, said Diaz only looked strained when he craned his neck to look at the clock on the wall.

Bryant said he turned his back on Diaz several times to answer phone calls placed to the death chamber from the governor's office, so he probably did not see all of Diaz's expressions.

"The only thing that seemed different was the length of time," said Bryant, who has overseen four executions at the prison.

An assistant warden, Randall Polk, who said he could not see Diaz's face during the execution, said staff found the execution so routine that they had an unremarkable debriefing about it that night. They met again the following day because of "media scrutiny and attention," Polk told the panel.

The 11-person commission, which includes lawyers, doctors and lawmakers, is supposed to make an initial recommendation to Gov. Charlie Crist later this week and a final report by March 1. The commission will meet again Monday.

A summary from another task force asked to study just the Diaz execution found that corrections officials didn't strictly follow the state's protocols during the execution.

For one, medical staff decided to flush a second dose of chemicals into Diaz without first checking the catheter going into his arm.

Before adjourning Monday, members of the commission said they would like to interview the medical team. Those people likely will testify anonymously over the telephone so their identities can be shielded, which officials say is required by law.

The meeting Monday was attended by two members of Diaz's family and their lawyer, D. Todd Doss.

Doss said he thought the commission asked softball questions.

"I wish there were a lot more pointed questions and candid answers," Doss said.

As for the conflicting testimony about whether Diaz felt pain, State Sen. Victor Crist, R-Tampa, a member of the commission, said he believes personal opinions about capital punishment may color what people saw that evening.

"It's personal observation," he said. "I would think someone opposed to capital punishment would have seen pain and those who support it may have not."

[Last modified January 30, 2007, 01:05:04]

Denial is progressive


Denial is automatic; it is not usually a matter of deliberate lying or willful deception. Most dependent people do not know what is true or false concerning their drinking or drug use and its consequences. They are blinded to the fact that their view of the situation does not conform to reality. The denial system distorts their perception and impairs their judgment so they become self-deluded and incapable of accurate self-awareness.

Denial is progressive. The denial system becomes increasingly more pervasive and entrenched as the illness of chemical dependency progresses. In the very early stages it is minimal, and with encouragement, such people can usually view their problem fairly realistically.


However, by the time a person's illness is sufficiently advanced that the problem appears serious in the eyes of others, an elaborate system of defenses shields him/her from seeing what is really happening.


One common thread runs through the many different stories of denial: people, organizations, governments or whole societies are presented with information that is too disturbing, threatening or anomalous to be fully absorbed or openly acknowledged.

Denial - Florida education ...

Denial

From Buddy T,
Your Guide to Alcoholism & Substance Abuse.
FREE Newsletter. Sign Up Now!


A Symptom of Alcoholism

One of the most frustrating factors in dealing with alcoholism, as a relative, friend or professional, is it is almost always accompanied by a phenomenon known as "denial."

In the long path the alcoholic takes toward mental, physical and moral decline, usually the first thing to go is honesty. He simply lies about his drinking. Little lies at first.

I only had two... I haven't had a drink in a week... I don't drink as much as he does...

As the alcoholic begins to drink more, and more often, he begins to hide this fact from those around him. Depending upon his circumstances he may drink openly, but usually he will conceal the amount he drinks, by not drinking around those who are closest to him.

If someone tries to discuss his drinking with him, he simply refuses to talk about it, or dismisses it as not a real problem. After all, he's a big boy now and he can drink if he wants to, it's nobody else's business.

Clues To a Problem

But these simple acts of denial, lying about his drinking or refusing to discuss it, are clues that the alcoholic himself deep down inside knows that he has a problem. If it's not a problem, why lie about it to anyone? To protect them?

But the true alcoholic, the person that has the disease, covers up and denies his drinking out of his own feelings that there is something different or "wrong" about it. Somewhere inside he realizes that his drinking means more to him that he is willing to admit.

As the disease progresses and his drinking begins to cause real problems in his life, remarkably the denial likewise increases. Even though his sprees have gotten him into some real trouble, he denies it has anything to do with his drinking. Some say this is purely a defense mechanism.

How is this possible? Usually by the time the disease has gotten to the crisis point, he has developed a support system of family and friends who unwittingly enable him to continue in his denial.

Because they love the affable, clever and witty alcoholic, they act to protect him by covering for him, doing the work that he doesn't get done, paying the bills that he doesn't pay, rescuing him from his scrapes with the law, and generally taking up the responsibilities he has abandoned.

Protecting the Alcoholic

He can't come in to work today, he's got a, er, virus... We've got to get him out of jail, he'll lose his job! Then what will we do... It was my fault, officer, I said some things I should not have said...

By doing these things, they are protecting the alcoholic from the consequences of his own actions. He never has to feel the real pain caused by his drinking. They rush in to put "pillows" under him so he doesn't hurt himself in the fall. Consequently, the alcoholic never finds out how it feels to fall.

Although drinking has placed him in a helpless and dependent position, the alcoholic can continue to believe he is still independent because he has been rescued from his troubles by his well-meaning family, friends, co-workers, employers and sometimes clergymen and counselors.

The roles these enablers play to "help" the alcoholic can be just as obsessive and harmful as the alcoholic's drinking, but that is a story for another day.

With these enabling devices in place, the alcoholic is free to continue in the progression of his disease, with his denial intact, until he perhaps reaches the point of hitting bottom, at which point even the most dedicated drinker must finally admit there is a problem. But there is no way for him to ever hit bottom when it's always covered with pillows.

Holocaust denial


Holocaust denial

From Wikipedia, the free encyclopedia


This article is about the history, development, and methods of Holocaust denial. For an examination of the arguments of Holocaust denial, see Criticism of Holocaust denial.


Holocaust denial
(commonly called Holocaust revisionism by its supporters[1]) is the belief that the genocide of Jews and other minority groups during World War IIthe Holocaust — either did not occur, or did not occur to the extent described by current scholarship.

Key elements of this belief are the explicit or implicit rejection that the Nazi government had a policy of deliberately targeting Jews, people of Jewish ancestry, and the Roma (also known as Gypsies) for extermination as a people; that between five and seven million Jews[2] were systematically killed by the Nazis and their allies; and that tools of mass extermination such as gas chambers were used in extermination camps to kill Jews.[3]

Most Holocaust denial claims imply, or openly state, that the Holocaust is a hoax arising out of a deliberate Jewish conspiracy to advance the interest of Jews at the expense of other peoples. For this reason, Holocaust denial is generally considered an antisemitic conspiracy theory. Holocaust denial has been illegal in many European countries since shortly after World War II, because it is seen as motivated by an antisemitic or neo-Nazi agenda. In January 2007, the German government moved to criminalize Holocaust denial and the parading of Nazi symbols across the European Union [4] and the United Nations General Assembly officially "condemns any denial of the Holocaust."[5]

Many Holocaust deniers do not accept "denier" as an appropriate term to describe their point of view, using the term "Holocaust revisionist" instead. They are nevertheless commonly labeled "Holocaust deniers" to differentiate them from historical revisionists who consider their goal to be historical inquiry using evidence and established methodology. Holocaust deniers, on the other hand, argue that the Holocaust did not occur regardless of historical evidence.[6]

Warden: Inmate showed no signs of pain in botched execution

Warden: Inmate showed no signs of pain in botched execution

TAMPA, Florida: A convicted killer whose execution was botched last year was never in any pain, the death row prison's supervising warden told a panel reviewing Florida's lethal injection procedures Monday.

But the man's lawyer said his client was clearly hurting from the incorrectly injected chemicals.

Questions about whether lethal injection is inhumane have put executions on hold in nine states — Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, Ohio and South Dakota.

The death of Angel Nieves Diaz took 34 minutes — twice as long as usual — and required a rare second dose of lethal chemicals because the needles were incorrectly inserted, a medical examiner reported. An autopsy found chemical burns in both his arms.

Death penalty opponents point to Diaz's execution to support their claims that Florida's lethal injection procedure violates the U.S. Constitution's prohibition on cruel and unusual punishment. Condemned inmates have also pursued that issue in court, but to no avail.

Diaz's lawyer, Neal Dupree, told the commission his client was clearly in pain.

"He almost appeared to be a fish out of water," Dupree said. "He was gasping. And that went on for a period of about 10 to 12 minutes. You could see body movement. You could see clutching and unclutching."

Several people on the prison's execution team have said Diaz said "What's happening?" twice during the process.

But Diaz appeared to be straining to see a clock, not grimacing in pain, Florida State Prison Warden Randall Bryant told the commission.

"He had the opportunity to be able to scream, cry, yell and that sort of thing and that did not happen," said Bryant, who stood about 2 feet (0.6 meters) away during the Dec. 13 execution.

Officials testified Monday the prison medical team was satisfied with the insertion of the needles.

Commission members asked to hear from the executioners and medical team, whose identities are closely guarded by the Florida Department of Corrections. American Medical Association guidelines bar doctors from taking part, directly or indirectly, in executions.

___

Associated Press writer Ron Word in Jacksonville contributed to this report.

Warden: Diaz Showed No Signs Of Pain In Botched Execution


Warden: Diaz Showed No Signs Of Pain In Botched Execution

POSTED: 2:43 pm EST January 29, 2007
UPDATED: 2:46 pm EST January 29, 2007

TAMPA, Fla. -- A convicted killer whose execution was botched last year was never in any pain, the death row prison's supervising warden told a panel reviewing Florida's lethal injection procedures Monday.

But the man's lawyer said his client was clearly hurting from the incorrectly injected deadly chemicals.Angel Nieves Diaz appeared to be straining to see a clock, not grimacing in pain as other witnesses have said, Florida State Prison Warden Randall Bryant told the 11-member commission.

"He had the opportunity to be able to scream, cry, yell and that sort of thing and that did not happen," said Bryant, who stood about 2 feet from Diaz during the Dec. 13 execution.

But it would have been difficult for Diaz to see the clock because it was behind his strapped-down head and a guard would have blocked his view.

The procedure took 34 minutes -- twice as long as usual -- and required a rare second dose of lethal chemicals because the needles were incorrectly inserted through his veins and into the flesh in his arms, a medical examiner reported.

An autopsy found chemical burns in both his arms.

Then-Gov. Jeb Bush created the commission to examine whether improvements can be made to the way lethal injections are administered -- not whether the system should be scrapped.

Executions in Florida have been halted until the commission releases its report, due to new Gov. Charlie Crist by March 1."The only thing that seemed different was the length of time," Bryant said of the Diaz execution.

It was the fourth lethal injection execution he has supervised on Florida's death row.

Diaz's lawyer, Neal Dupree, told the commission his client was clearly in pain.

"He appeared to be grimacing. It looked like he was in pain to me," Dupree said. "He almost appeared to be a fish out of water. He was gasping. And that went on for period of about 10 to 12 minutes. You could see body movement. You could see clutching and unclutching."

Dupree also said Diaz also appeared to be saying something.

Bryant said he heard only unintelligible muttering from Diaz, which was not out of the ordinary. Several people on the prison's execution team have said Diaz said "What's happening?" twice during the process.

Death penalty opponents point to the Diaz execution to bolster their claims Florida's lethal injection procedure violates the U.S. Constitution's prohibition on cruel and unusual punishment.

Condemned inmates have also pushed that issue in court, so far to no avail.

State Sen. Victor Crist, R-Tampa, said he found testimony from officials who were actually in the death chamber compelling when compared to the limited view from the witness chamber.

"I went from thinking, 'What went wrong?' to, 'How can we do this better?"' said Crist, who pushed to switch Florida's execution method from electrocution to lethal injection.

Panelists asked to hear from the executioners and medical team, whose identities are closely guarded by the Florida Department of Corrections.

American Medical Association guidelines bar doctors from taking part, directly or indirectly, in executions.

No date was set to take their testimony for the commission, which reconvenes on Feb. 5.

Officials testified Monday that the prison medical team was satisfied with the insertion of the needles before they continued with the execution.

Diaz, 55, a career criminal, was sentenced to death for killing a Miami topless bar manager 27 years ago. He had proclaimed his innocence until his execution.


Warden: Inmate showed no signs of pain in botched execution


Warden: Inmate showed no signs of pain in botched execution

TAMPA, Florida (AP) — A warden says a convicted killer whose execution was botched last year appeared to be straining to see a clock, not grimacing in pain following a lethal injection.

The supervising warden told a panel reviewing Florida's lethal injection procedures today that he doesn't think Angel Nieves Diaz was in pain.

Warden Randall Bryant says he was standing about two feet from the convicted killer. He said the convict had the ability to scream, cry or yell, but didn't.

The procedure took 34 minutes — twice as long as usual — and required a rare second dose of lethal chemicals because the needles were inserted clear through his veins and into the flesh in his arms. The chemicals are supposed to go into the veins.

The commission is charged with looking at whether improvements can be made to the way lethal injections are administered.

Filing to end lethal injection in Florida - the case of Johnny Robinson

IN THE CIRCUIT COURT OF THE

SEVENTH JUDICIAL CIRCUIT, IN AND

FOR ST. JOHNS COUNTY,

FLORIDA

CASE NO. CF-851299___________

Johnny Robinson

Petitioner,

vs.

State of Florida

Respondent.

MOTION FOR A STAY OF EXECUTION AND ORAL ARGUMENT

CAPITAL CASE: EXECUTION SCHEDULED FOR

February 4, 2004, At 6:00 P.M.

Francis A. Boyle, Professor of International Law

Law Building, 504 East Pennsylvania Avenue

Champaign, Illinois 61820

United States of America

Telephone: 217-333-7954

Fax: 1-217-244-1478

Lethal Injection Constitutes Cruel, Inhuman, or Degrading Treatment Which is Prohibited by International Law

JURISDICTION

A writ of habeas corpus is an original proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const. The Constitution of the State of Florida guarantees that "[t]he writ of habeas corpus shall be grantable of right, freely and without cost." Art. I, § 13, Fla. Const. Alternatively, Article V, Section 3(b)(1) and (7) of the Florida Constitution gives this Court exclusive appellate jurisdiction over all capital cases and the ability to issue "all writs necessary to the complete exercise of its jurisdiction." This Court’s "all writs" jurisdiction may be invoked in capital cases when warranted by circumstances. Jones v. Buttwerworth, 691 So.2d 481 (Fla. 1997); Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994); Bedford v. State, 633 So.2d 13 (Fla. 1994). The circumstances presented herein warrant invocation of the "all writs" jurisdiction.

REQUEST FOR A STAY OF EXECUTION AND ORAL ARGUMENT

The resolution of the issues involved in this action will determine whether Mr. Robinson lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument is appropriate in this case, given the seriousness of the claims involved and the stakes at issue, and Mr. Robinson, through Francis Boyle, Esq. respectfully requests that the Court order a stay of execution and permit oral argument


Table of Contents

Table of Authorities............. iv

Questions Presented................... 1

Summary of the Argument 2

Argument.. 3

I. The Federal Government of the United States and the governments of the several states are prohibited from using torture or subjecting persons to cruel, inhuman or degrading treatment or punishment. 3

A. The United States Federal Government is bound by the terms of the International Covenant on Civil and Political Rights. 3

B. The Governments of the Several States are also bound by the terms of the International Covenant on Civil and Political Rights. 7

C. International Treaties forbid torture or cruel, inhuman or degrading treatment or punishment. 8

II. Execution by means of lethal injection is substantially likely to result in torture and / or cruel, inhuman or degrading treatment. 10

A. Current lethal injection procedures constitute cruel, inhuman or degrading treatment and punishment. 10

B. Lethal injection procedures have a substantial chance of not proceeding as planned and becoming torture. 17

Conclusion................. 27


Table of Authorities

Cases

Beazley v. Johnson, 242 F.3d 248, 264..... 6

Chaney v. Heckler, 718 F.2d 1174, 1191, 1983. 24

Domingues v. Nevada, 961 P.2d 1279, 786 (1998). 5

Ex parte Roy Burgess, Jr. 2000 Ala. LEXIS 317.. 8

Filartiga v. Pena-Irala, 577 F. Supp. 860, 861.. 8

Gregg v. Georgia, 428 U.S. 153 (1976)..... 17

Maria v. McElroy, 68 F. Supp. 2d 206.. 6

U.N. GAOR, Hum. Rts. Comm., 53d Sess., 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), 6

United States v. Decker, 600 F.2d 733, 737 (1979). 4

Treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc A/39/51 (1985), 23 ILM 1027 (1994), (adopted by United States November 20, 1994) 2, 9, 10, 24

International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992) 2, 4, 9, 15

Universal Declaration of Human Rights, art. 16(3), G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., Supp. No. 71, U.N. Doc. A/810 (adopted Dec. 10, 1948). 3

Legislative History

136 Cong Rec S 17486 (1990)..... 10

138 Cong Rec S 4781, 4783 (1992). 4

Burns Ind. Code Ann. § 35-38-6-1... 11

Constitutional Provisions

U.S. Const. amend. VIII. 9

U.S. Const. art. VI, § 2, cl 2.... 7

US Const. art. VI, § 2, cl 2.... 3

Other United Nations Documents

(http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+20.En?OpenDocument).. 16

Concluding Observations of the Human Rights Committee: United States of America, U.N. GAOR Hum. Rts. Comm., 53d Sess., 1413th mtg. at para. 276, U.N. Doc. CCPR/C/79/Add.50 (1995). 7

Miscellaneous Authority

(http://crystal.biol.csufresno.edu:8080/projects98/605.html). 13

(http://www.amnesty-usa.org/abolish/cruelanddegrading.html)..... 16

(http://www.amnesty-usa.org/abolish/methus.html). 11

(http://www.cidnet.demon.co.uk/lethalin.htm). 13, 14

(http://www.clarkprosecutor.org/html/death/methods.htm). passim

(http://www.howstuffworks.com/lethal-injection.htm?printable=1).. 13

(http://www2.amnesty.se/amnesty.nsf/3and4)... 16

(www.amnesty-usa.org/abolish/execsince76.html)... 18

ACLU, The Death Penalty Briefing Paper (2000)..... 27

Another U.S. Execution Amid Criticsim Abroad, New York Times, April 24, 1992. 17

Brief Of The American Society Of Law And Medicine, The American Society Of Allied Health Professions, Dr. David J. Rothman and Dr. Edmund D. Pellegrino As Amici Curiae Supporting Respondents, Heckler v. Cheney, 724 F.2d 1030 (D.C. Circuit, 1984) (No. 83-1878). 12

Carol Benfell, Fatal Errors; Santa Rosa Hospitals Learn Lessons the Hard Way as Potassium Chloride Kills Two Patients, Santa Rosa Press Democrat, March 23, 1997. 14

Carol Benfell, Potassium Cholride: Routine, But Deadly, Santa Rosa Press Democrat, March 23, 1997. 13

David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties 24 Yale J. Int'l L. 129, 219.. 7

Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997). 11, 26

Gacy Execution Blamed on Clogged IV Tube, Chicago Tribune, May 11, 1994. 23

Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, Chicago Sun-Times, May 11, 1994. 22

Kathy Sawyer, Protracted Execution In Texas Draws Criticism; Lethal Injection Delayed by Search or Vein, Washington Post, March 14, 1985. 20

Killer Lends a Hand to Find Vein for Execution, LA Times, August 20, 1986. 20

Killer’s Drug Abuse Complicates Execution, Chicago Tribune, April 24, 1992. 20

Lou Ortiz and Scott Fornek, Witnesses Describe Killer’s ‘Macabre’ Final Few Moments, Chicago Sun-Times, May 11, 1994. 22

Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998. passim

Merriam Webster’s New Collegiate Dictionary (2000)..... 25

Moans Pierced Silence During Wait, Arkansas Democrat Gazette, January 26, 1992. 21

Murderer Executed After a Leaky Lethal Injection, New York Times, December 14, 1988. 21

Murderer of Three Women is Executed in Texas, NY Times, March 14, 1985. 19

Rector, 40, Executed for Officer’s Slaying, Arkansas Democrat Gazette, January 25, 1992. 21

Rector’s Time Came, Painfully Late, Arkansas Democrat Gazette, January 26, 1992. 21

Royal Commission on Capital Punishment Report 1949-1953 (1953), J.A. at 37-40. 19

Too-Tight Strap Hampered Execution, Tim O’Neill, St. Louis Post Dispatch, May 5, 1995. 23


Questions Presented

1. Whether the United States is bound by law to forsake the use of cruel, inhuman or degrading treatment or punishment by itself and the several states by virtue of its role in the community of nations as evidenced by its status as a signatory of the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.

2. If so, whether the lethal injection method of execution constitutes cruel, inhuman or degrading treatment or punishment as defined by law because of the substantial probability of causing extreme pain for the prisoner being executed.

3. Alternatively, whether the great chance of a lethal injection procedure being botched, and therefore constituting torture, should preclude the use of lethal injection as a legal method of execution.


Summary of the Argument

Cruel, inhuman or degrading treatment or punishment is prohibited by the International Covenant on Civil and Political Rights (ICCPR). International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992) [hereinafter Rights Covenant]. Torture is prohibited by the Convention Against Torture (CAT). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc A/39/51 (1985), 23 ILM 1027 (1994), (adopted by United States November 20, 1994) [hereinafter Torture Convention]. The United States is a party to both of these agreements, despite its reservations that they are not self-executing. This court is bound to abide by the restrictions made in these conventions, despite the Senate’s illegal reservations.

Lethal injection is a cruel, inhuman or degrading punishment and is therefore prohibited by the Covenant on Civil and Political Rights. If this finding is made, the court is therefore obligated to prevent lethal injections from taking place.

Even if lethal injection is not found to violate the Covenant on Civil and Political Rights, a botched procedure can amount to torture in violation of the Covenant Against Torture. This court is therefore asked to prevent lethal injections from taking place in order to eliminate this form of state-sponsored torture.

Argument

I. The Federal Government of the United States and the governments of the several states are prohibited from using torture or subjecting persons to cruel, inhuman or degrading treatment or punishment.

A. The United States Federal Government is bound by the terms of the International Covenant on Civil and Political Rights.

According to Article VI, Section 2, Clause 2 of the United States Constitution, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." US Const. art. VI, § 2, cl 2.

The government of the United States signed the International Covenant on Civil and Political Rights (ICCPR), an international treaty aimed at fulfilling the commitment of the Universal Declaration of Human Rights, signed by the United States in 1948. Universal Declaration of Human Rights, art. 16(3), G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., Supp. No. 71, U.N. Doc. A/810 (adopted Dec. 10, 1948). This treaty, signed by the President and entered into force of law with the advice and consent of the Senate, is therefore part of the Supreme Law of the Land, and is consequently binding upon all levels of government.

It has been accepted by the Ninth Circuit that it is the role of the judiciary "to interpret international treaties and to enforce domestic rights arising from them." United States v. Decker, 600 F.2d 733, 737 (1979).

This treaty was approved by the Senate subject to certain Reservations, Understandings, and Declarations. Among these was the statement, "That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing." 138 Cong Rec S 4781, 4783 (1992).

A treaty must be self-executing in order for a private person to have a cause of action under that treaty, and the Senate’s reservation would seem to remove such a cause of action if it were presumed that the declaration is valid as it was written.

"No derogation from article … 7 … may be made," the treaty states in Article 4(2). Covenant, art 4(2). Therefore the Senate’s declaration that removes the self-executing nature of the treaty is in violation of the treaty text itself.

When the Supreme Court of Nevada decided, in violation of the ICCPR, that a state rule allowing the execution of minors could stand, it was over the dissent of Justice Rose. Quoting William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?, 21 Brook. J. Int'l. L. 277, 318-19 (1995), he wrote, "if the United States has shown an intent to accept the treaty as a whole, the result could be that the United States is bound by all of the provisions of the treaty, notwithstanding the reservation." Domingues v. Nevada, 961 P.2d 1279, 786 (1998).

That an illegal reservation to a treaty would not void the treaty is a concept advanced by the United Nations Human Rights Committee. This organization, created by this treaty, had the United States as a seated member at the time it issued the following General Comment criticizing the United States’ reservations to the treaty. In the General Comment of April, 1994, the Committee declared that, "a State may make a reservation provided it is not incompatible with the object and purpose of the treaty… Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant… The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation." General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, U.N. GAOR, Hum. Rts. Comm., 53d Sess., 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), in Beazley v. Johnson, 242 F.3d 248, 264. Although lacking the force of law, this comment indicates a preference for continued operation of a treaty in spite of illegal Reservations, Understandings, or Declarations.

In a case where the court found that a Federal Statute was in violation of the ICCPR, Senior District Judge Weinstein of the Federal District Court for the Eastern District of New York wrote, "although the ICCPR is not self-executing, see 138 Cong. Rec. S 4784 (daily ed. Apr. 2, 1992), it is an international obligation of the United States and constitutes a law of the land. See generally, Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 867 n.65 (1987)." Maria v. McElroy, 68 F. Supp. 2d 206.

In his article in the Yale Law Review, David Sloss wrote that, "certain discrepancies remain [between domestic law and the texts of treaties], and that the NSE [(non-self-executing)] declarations are inconsistent with U.S. treaty obligations, insofar as those declarations preclude judges from reaching the merits of non-frivolous, nonredundant, treaty-based human rights claims." David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties 24 Yale J. Int'l L. 129, 219.

If a private cause exists, then it must be able to be pursued by someone whose rights have been or are about to be violated by the United States Government or the government of one of the states.

In fact, the United States’ own report to the Human Rights Commission after the covenant was approved states that, "American courts are not prevented from seeking guidance from the Covenant in interpreting American law." Concluding Observations of the Human Rights Committee: United States of America, U.N. GAOR Hum. Rts. Comm., 53d Sess., 1413th mtg. at para. 276, U.N. Doc. CCPR/C/79/Add.50 (1995).

B. The Governments of the Several States are also bound by the terms of the International Covenant on Civil and Political Rights.

As the "supreme law of the land," a treaty would apply equally to state as well as federal governments. U.S. Const. art. VI, § 2, cl 2.

"Federalism is alive and well," wrote Justice Houston of the Supreme Court of Alabama in his dissent to the case Ex parte Roy Burgess, Jr. "The United States Constitution binds me as a Supreme Court Justice of the State of Alabama to abide by the ICCPR, Article 6(5), and not to impose the sentence of death on Burgess for the crimes committed when he was 16 years of age. I am not persuaded that the Senate's reservation, if not invalid for other reasons, frees me as a state justice, as opposed to a federal justice or judge, from the treaty's restriction against the imposition of a sentence of death for a crime committed by a person below the age of 18 years." Ex parte Roy Burgess, Jr. 2000 Ala. LEXIS 317.

C. International Treaties forbid torture or cruel, inhuman or degrading treatment or punishment.

The United States District Court for the Eastern District of New York upheld the Court of Appeals’ ruling that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights" in the landmark human rights case of Filartiga v. Pena-Irala, 577 F. Supp. 860, 861.

In addition to customary internal law, the United States is a signatory of several major human rights treaties that explicitly speak to the issues of torture and cruel, inhuman or degrading treatment or punishment.

1) The International Convention on Civil and Political Rights prohibits cruel, inhuman or degrading treatment or punishment.

Article 7 of the ICCPR reads, in part: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Covenant, art 7.

This prohibition expands upon the Eighth Amendment of our constitution, which prevents "cruel and unusual punishment." U.S. Const. amend. VIII.

2) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits torture and cruel, inhuman or degrading treatment or punishment.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides, in part, the affirmative requirement that, "each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Torture Convention, art 2(2).

The CAT defines torture to include any act "by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as … punishing him for an act he or a third person has committed." Torture Convention, art 1(1).

Not limited to torture, the CAT requires states to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." Torture Convention, art 16(1).

Like the ICCPR, the CAT was approved subject to the reservation that it is not self-executing. 136 Cong Rec S 17486 (1990). This reservation should be similarly invalid.

If the non self-executing nature of the international human rights treaties to which the United States is a party is construed so widely that this court will permit a suspect to be subjected to cruel, inhuman, and degrading punishment, and possibly even torture, then it seems that there is no benefit at all from the mere fact of their ratification.

II. Execution by means of lethal injection is substantially likely to result in torture and / or cruel, inhuman or degrading treatment.

Lethal injections have been described by their proponents as quick painless methods of execution. Available scientific research denies this.

A. Current lethal injection procedures constitute cruel, inhuman or degrading treatment and punishment.

1) The laws that provide for lethal injection do not ensure that the executions are humane.

The majority of states, 33 in all, that have not yet abolished the death penalty, as well as the federal government and the United States military, have chosen lethal injection as their preferred method of execution. (http://www.amnesty-usa.org/abolish/methus.html).

Twenty-one states provide no statutory alternative method of execution. Denno’s study divides these states into two categories, eight that are general, and eleven that are specific. Two additional states use a variation on these laws. Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997).

The general laws are typified by the law in Indiana, which provides that the "punishment of death shall be inflicted by intravenous injection of a lethal substance or substances into the convicted person." Burns Ind. Code Ann. § 35-38-6-1.

The prosecutor’s office in Clark County, Indiana also gives a description of the law in the specific states: "death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice." (http://www.clarkprosecutor.org/html/death/methods.htm) [hereinafter clarkprosecutor.org].

2) The medical procedure used in lethal injections that was designed to be humane merely hides the victim’s pain from the audience.

Although different jurisdictions vary in the structure of their laws, a consensus has emerged. Most American jurisdictions that use lethal injection follow a three-step process. This method was developed through "a process of educated guess, rather than by an assessment of [scientific evidence]." Brief Of The American Society Of Law And Medicine, The American Society Of Allied Health Professions, Dr. David J. Rothman and Dr. Edmund D. Pellegrino As Amici Curiae Supporting Respondents, Heckler v. Cheney, 724 F.2d 1030 (D.C. Circuit, 1984) (No. 83-1878).

First, a sedative or anesthetic is given. This is usually Sodium Pentothal, which is the manufacturer’s trade name for the chemical sodium thiopental. Given in a lethal dose of 5,000 mg, this barbiturate is intended to "render the prisoner unconscious," according to the prosecutor’s office. (clarkprosecutor.org).

This drug is a hypnotic that "depress[es] your central nervous system, slow[s] your heart rate and lower[s] your blood pressure," according to the Biology Department web page at the University of California at Fresno. When used as an anesthetic in hospitals for minor surgery, Sodium Pentothal causes unconsciousness in less than a minute, and "it only causes a few minutes of sedation." (http://crystal.biol.csufresno.edu:8080/projects98/605.html).

Second, a muscle relaxant is introduced. The chemical used is pancuronium bromide, which "paralyzes the diaphragm and lungs." (clarkprosecutor.org). According to the online encyclopedia, How Stuff Works, this drug takes between one to three minutes to take effect, and is used in lethal injections at a dosage hundreds of times greater than in surgery. (http://www.howstuffworks.com/lethal-injection.htm?printable=1).

Derived from the poison curare, also known by the trade name Pavulon, pancuronium bromide causes the prisoner to be unable to speak, scream, or even breathe. (http://www.cidnet.demon.co.uk/lethalin.htm).

The third and final drug administered is potassium chloride which causes cardiac arrest. (clarkprosecutor.org). Like the first two drugs, this is administered in sufficient quantity and concentration to be lethal on its own. Id.

An electrolyte that is essential in small quantities for the operation of the nervous system, potassium chloride is frequently given to people suffering from dehydration. Carol Benfell, Potassium Chloride: Routine, But Deadly, Santa Rosa Press Democrat, March 23, 1997.

These three chemicals are used together in the belief that the prisoner will be unconscious and therefore feel no pain during the process. In fact, evidence indicates that the prisoner does feel pain and is simply prevented from displaying it.

Injecting potassium chloride into someone has been shown to be terribly painful. It is a salt, and an acid with a pH value higher than 6. When not diluted, it causes muscle tissue to enter maximum contraction and this produces a burning sensation. (http://www.cidnet.demon.co.uk/lethalin.htm). A hospitalized patient screamed, "this hurts," and then she "sat up in bed, seizured and died within a few seconds," when accidentally injected with potassium chloride. A witness described the death as "awful." Carol Benfell, Fatal Errors; Santa Rosa Hospitals Learn Lessons the Hard Way as Potassium Chloride Kills Two Patients, Santa Rosa Press Democrat, March 23, 1997.

With the three drugs administered one minute apart, it is unlikely the Sodium Pentothal, a short-acting barbiturate, is still in effect even by the time the potassium chloride is administered. (clarkprosecutor.org). This is why almost all prisoners executed by lethal injection are reported to have, "a period of time spent gasping for air," when the final drug is injected. Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998. Because they are physically restrained and the Pavulon has paralyzed their lungs they cannot move or make any other noise.

Lethal injection, proposed as a humane execution alternative as early as 1888 in New York, and finally adopted by Oklahoma in 1977, is not the pain-free method that many people envision. Instead, it subjects the prisoner to severe pain while their body is held so that they are unable to display any reaction beyond a gasp.

3) Lethal injection as it is currently used meets the definition of cruel, inhuman or degrading punishment.

Article VII of the International Covenant on Civil and Political Rights states clearly that, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Covenant, art. 7.

Lethal injection involves the use of chemicals shown to produce intense pain and suffering. That the combination in which they are used prevents the prisoner from reacting in no way proves that he or she is not suffering and in pain. When someone is injected with potassium chloride, the pain is so great as to fall clearly within the definition of cruel, inhuman or degrading punishment.

Lethal injection provides more than just the physical cruelty produced by respiratory paralysis and asphyxiation.

The United Nations Committee on Human Rights interpreted Article VII of the ICCPR so that it "relates not only to acts that cause physical pain but also to acts that cause mental suffering." (http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+20.En?OpenDocument).

Amnesty International’s report of a criminological study focuses on "the psychological suffering caused by foreknowledge of death." Keeping someone imprisoned, waiting to be killed, leads to a phenomenon called the "‘death of the personality.’"(http://www.amnestyusa.org/abolish/cruelanddegrading.html).

During the time a convict is held on death row, the legal process allows multiple courts to reverse each other. Alternately faced with hope and despair, many prisoners eventually become so broken in spirit that they eventually chose not to allow their lawyers to pursue further appeals or even ask to be executed. This turns executions into so-called "state assisted suicides," according to reports by the Associated Press and Rick Halperin of Amnesty International. (http://www2.amnesty.se/amnesty.nsf/3and4).

Robert Alton Harris, who was executed in April, 1992, followed just such a tortured legal path to executioner. "After a tense, all-night standoff between the Supreme Court, who wanted to hasten the execution, and several lower-ranking Federal judges, who continued to grant delays," Mr. Harris was executed in the gas chamber, a method since found unconstitutionally cruel and unusual by the Ninth Circuit. Another U.S. Execution Amid Criticism Abroad, New York Times, April 24, 1992.

The Times of London featured an editorial about Mr. Harris’s case, suggesting that, "in any other country such an on-off-on ‘mock execution’, a form of psychological torture, would be universally condemned as a cruel violation of human rights." Id.

B. Lethal injection procedures have a substantial chance of not proceeding as planned and becoming torture.

1) A lethal injection stands a substantial chance of being botched.

The death penalty in the modern era began in 1976 when the Supreme Court ruled that "statutory system under which [the petitioner] was sentenced to death does not violate the Constitution." Gregg v. Georgia, 428 U.S. 153 (1976).

Since then, there have been 706 prisoners put to death in the United States, as of April 13, 2001, according to Amnesty International.

www.amnestyusa.org/abolish/execsince76.html).

Lethal injection is the most commonly used form of execution in the United States, accounting for more than 62% of prisoners killed between the reinstatement of the death penalty in 1976 and the conclusion of a survey by Marian J. Borg and Michael L. Radelet on August 31, 1997. Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.

"Lethal injections are also the most frequently botched means of executions," where botched entails "unanticipated problems or delays that caused, or could have caused, unnecessary agony for the prisoner and/or witnesses." Id. According to the Radelet study, six percent of lethal injections since 1982 have developed "major problems." Id.

More than 20 years before the State of New York led the United States into the use of lethal injection, the British Royal Commission on Capital Punishment reported in 1953 that lethal injection was neither humane nor practical. Denno. They cited four factors: (1) In certain individuals it is difficult to find a vein; (2) the need for the subject’s cooperation, which is borne out in several of the examples of botched executions that follow; (3) required medical skill on behalf of non-medical personnel who will administer the punishment; and (4) the likelihood of pain cause by injections into muscle instead of a vein. Denno, footnote #313. Royal Commission on Capital Punishment Report 1949-1953 (1953), J.A. at 37-40.

2) Many botched lethal injections result in severe mental and physical trauma for the prisoner.

With over 700 executions performed since the Gregg Court reinstated the death penalty, many unpredicted difficulties have arisen. Many of these difficulties have lead to prolonged pain and suffering for the prisoner.

(i) Some people do not have veins suitable for easy insertion of an IV needle.

Living up to the first prediction of the Royal Commission 33 years earlier, executioners in Texas were forced to repeatedly stab Stephen Morin in the arm in an attempt to find a vein suitable to administer the poison. Texas officials poked needles into the prisoner’s arms and one leg for nearly an hour before they were able to insert a needle into a vein. Murderer of Three Women is Executed in Texas, NY Times, March 14, 1985. According to the ACLU legal director for Texas, this execution demonstrated that lethal injection is "no more humane than any other method," noting that it took more than 45 minutes before the flow of the chemicals began. Kathy Sawyer, Protracted Execution In Texas Draws Criticism; Lethal Injection Delayed by Search or Vein, Washington Post, March 14, 1985.

Again, in 1986, prison officials were faced with difficulty securing the intravenous line. They were unable to insert a needle into Randy Lynn Woolls because he had veins so damaged from drug use. "Frightened and nervous," he had to find a vein for them to use to kill him. Killer Lends a Hand to Find Vein for Execution, LA Times, August 20, 1986. Billy Wayne White, also a drug user, was subjected to attempted injections for 47 minutes before his execution in Texas in April, 1992. Killer’s Drug Abuse Complicates Execution, Chicago Tribune, April 24, 1992.

(ii) Difficulties in finding a vein are not limited only to drug users; other bodily characteristics can also interfere with lethal injections.

Raymond Landry, described by the Texas Attorney General’s office as being "very muscular" and having "‘Popeye-type’ arms," was finally executed at 12:45 am on December 14, 1988. This was more than twenty minutes after they began injecting him with poisons. After inserting a needle into his vein, the chemicals began to leak out because there was "more pressure in the hose than the veins could absorb." The warden had to cover the viewing window for more than 14 minutes after he began to quiver from the reduced flow of chemicals. Murderer Executed After a Leaky Lethal Injection, New York Times, December 14, 1988.

Physical bulk was also given as an explanation for the almost hour-long effort by Arkansas technicians to insert a needle into the vein of Rickey Ray Rector on January 24, 1992. Rector, 40, Executed for Officer’s Slaying, Arkansas Democrat Gazette, January 25, 1992. While the staff kept the curtain closed to prevent witnesses from watching, they stabbed him with needles repeatedly for over 50 minutes. Rector’s Time Came, Painfully Late, Arkansas Democrat Gazette, January 26, 1992. Witnesses reported hearing eight loud moans from the chamber and were later told that Rector had to help the personnel find a vein to use to kill him. Moans Pierced Silence During Wait, Arkansas Democrat Gazette, January 26, 1992.

(iii) Lethal injections are far from routine, and there exists great possibility for error, both mechanical and human.

The pain of a lethal injection was particularly evident in the case of Charles Walker. Executed by the State of Illinois on September 12, 1990, he suffered because of equipment failure and machine error. The technician administering the poison inserted the needle the wrong way, facing down his arm and away from his heart. This prolonged the pain before the poisons reached his heart. Further prolonging the agony was a "kink" that developed in the tubing. This restricted the flow of chemicals, preventing the barbiturate from building up in a large enough concentration to ensure he was unconscious for the administration of the potassium chloride. Witnesses reported him in "excruciating pain." Niles Group Questions Execution Procedure, UPI, Nov. 8, 1992, cited by Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.

The execution of John Wayne Gacy in Illinois in May, 1994, also suffered from equipment failure. Chemicals became clogged in the intravenous line and the flow was blocked. The total amount of time it took to kill Gacy was far longer than the five minute estimate made by the district attorney. (clarkprosecutor.org); Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, Chicago Sun-Times, May 11, 1994. In a "macabre" scenario where there was "definitely something wrong," it took more than eighteen minutes from when the chemicals started to flow until the prisoner’s face turned purple and he was declared dead. Lou Ortiz and Scott Fornek, Witnesses Describe Killer’s ‘Macabre’ Final Few Moments, Chicago Sun-Times, May 11, 1994. In a newspaper interview, an anesthesiologist said, "proper procedures taught in ‘IV 101’ would have prevented the error." Gacy Execution Blamed on Clogged IV Tube, Chicago Tribune, May 11, 1994.

An arm restraint made too tight prevented the chemicals flowing into Emmitt Foster from killing him for more than half an hour in May, 1995. The county coroner that it was "a little error," and, "it’s not like the guy suffered." He claimed that since the entire dose of Sodium Pentothal was administered, the prisoner would not have suffered. Too-Tight Strap Hampered Execution, Tim O’Neill, St. Louis Post Dispatch, May 5, 1995. This statement was made despite the fact that the coroner was not present at the beginning of the execution, and witness reports that Foster was "choking and gasping" when the curtain was closed to obstruct their view. Witnesses to a Botched Execution, Editorial, St. Louis Post-Dispatch, May 8, 1995, cited by Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.

(iv) The lethal injection drugs are not suited to use for every prisoner to be executed.

When Robin Lee Parks was executed on March 10, 1992 in Oklahoma, he "had a violent reaction" to the poisons used in his lethal injection. His jaw, neck and abdomen "react[ed] spasmodically" for 45 seconds and he "continued to gasp and gag" for 11 minutes until he was declared dead. Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.

3) A botched lethal injection can rise to the level of torture according to the ICCPR.

The D.C. Court of Appeals found that petitioners had, "presented substantial and uncontroverted evidence to support their claim that execution by lethal injection poses a serious risk of cruel, protracted death," even though their decision to allow the FDA to regulate chemicals used in lethal injections was overruled by the Supreme Court. Chaney v. Heckler, 718 F.2d 1174, 1191, 1983. They warned that, "Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own slow, lingering asphyxiation." Id.

Torture is, "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person," if it is done, among other reasons, for "punishing him for an act he or a third person has committed or is suspected of having committed." It "does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Torture Convention.

Lethal injections are performed in all cases in order to punish someone for an act he / she has committed.

Botched lethal injections, as shown previously, certainly produce "severe pain or suffering." They have done so both physically and mentally. Some botched executions have inflicted severe pain and suffering "intentionally" because the officials on hand continued the process after it became evident that severe pain and suffering were resulting from the lethal injection.

While it can be argued that lethal injection is a "lawful sanction," the botched injections that have occurred are certainly not inherent to the process of lethal injection. Nor, since they can arise from a combination of human and mechanical errors, do they arise "only from" the act of lethal injection as it is intended to transpire.

Therefore, in order for a botched execution to fail to qualify as torture as defined by the CAT, it must be incidental to the lethal injection process. Webster’s dictionary defines incidental as "being likely to ensue as a chance or minor consequence," or, "occurring merely by chance or without intention or calculation." Merriam Webster’s New Collegiate Dictionary (2000).

It is central to this phase of the argument that botched executions are likely to occur as a consequence of lethal injections. They are more than mere chance occurrences, which imply a slight possibility, and a botched execution is far from a "minor consequence."

So, botched executions cannot be said to occur "merely by chance." But do they occur "without intention or calculation?" They must be unintended if we are to believe that prison officials and prosecutors intend lethal injection to be the more humane method as it is claimed. (clarkprosecutor.org). Being unintended does not mean that they are without "intention or calculation." The chance of a botched lethal injection, higher than for any other form of execution, seems certainly to approach the Supreme Court’s definition of deliberate indifference. In Farmer v. Brennan, the Court ruled that where likelihood of an inmate attack was "longstanding, pervasive, well-documented," the prison officials "'must have known about it.’" Farmer v. Brennan, 511 U.S. 825, 842, quoted in Deborah Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997).

Knowing the probability that exists for a lethal injection to go wrong and cause extreme pain or suffering, prison officials cannot, in good faith, maintain that botched executions are without "calculation." The occurrence of a botched lethal injection extends beyond the limits of incidental and unintentional possibilities. Therefore, a botched execution constitutes torture under the terms of the CAT to which the United States is a party.

This court has an obligation to the Convention Against Torture to prevent torture from occurring. Given the chance of a botched execution, which is historically greater than 6%, allowing lethal injections to occur is equivalent to allowing torture to take place.

Conclusion

Executions are the "ultimate denial of civil liberties," committed by the government. ACLU, The Death Penalty Briefing Paper (2000). This reality is exacerbated by the use of lethal injection, which is painful to the extent of being cruel, inhuman, and degrading. Given that the United States Supreme Court in Nelson v Alabama 124 S.Ct 383 agrees that substantial probability exists of a lethal injection becoming botched, and have scheduled oral argument, Mr. Robinson should be granted a stay of execution on the acceptance of Nelson onto the Court’s docket.

I HEREBY CERTIFY that a true copy of the foregoing Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on January 14, 2004.

Respectfully Submitted,

Professor Francis Boyle, Esp.

Law Building

504 Pennsylvania Ave.

Champaign, Illinois 61820

Copies furnished to:

St. Johns County Courthous

Assistant State Attorney

4010 Lewis Speedway

St. Augustine, Florida 32095

Judy Taylor Rush

444 Seabreeze Boulevard

Fifth Floor

Daytona Beach, Florida 32118

Peter Cannon, Esq.

CCRC-Middle

3801 Corporex Park Drive

Suite 210f

Tampa, Florida 33619

Johnny Robinson #102767

Florida State Prison

7819 NW 228th Street

Raiford, Florida 32026