Tuesday, 16 January 2007

Botched execution offers hope for condemned man

Published on Tuesday, January 16, 2007

Botched execution offers hope for condemned man

With the execution of Marcus Reymond Robinson less than two weeks away, his lawyers hope to use legal issues surrounding the death penalty and questions about his mental development to postpone his death.

Similar efforts by other condemned inmates have failed. But last month, death penalty opponents gained momentum: Florida temporarily banned executions after one went badly and a federal judge in California ruled that California’s lethal injection practices are “broken.”

Although 38 states have capital punishment, the Death Penalty Information Center says 10 of those states have stopped nearly all their executions while they re-examine capital punishment and lethal injection.

Robinson’s is the first of three North Carolina executions scheduled to be conducted from Jan. 26 to Feb. 9.

Robinson, 33, was sentenced to death in 1994 for shooting to death 17-year-old Erik Tornblom and taking his money ($27) and his car (an 11-year-old Honda) in June 1991 in Fayetteville.

Robinson’s co-defendant in the murder and robbery, Roderick Sylvester Williams Jr., is serving a life sentence.

A federal lawsuit in North Carolina, similar to the one that stopped executions in California, claims that lethal injection poses a risk of causing severe pain in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

Three drugs are used in lethal injection: the first to put the inmate to sleep, the second to paralyze him, and the third to stop his heart. The lawsuit claims that the inmate could wake up during the process — by which point the heart-stopping drug has been administered. Even in nonfatal doses, the heart-stopping drug, potassium chloride, is reported to be extremely painful.

The inmate would not show the pain; because he is completely paralyzed by the second drug, he would appear to be asleep even though he is conscious.

In the California lawsuit, the state agreed that the pain from the potassium chloride would be considered cruel and unusual and it would never use the drug on a conscious inmate.

There, U.S. District Judge Jeremy Fogel visited the execution facilities at San Quentin State Prison, talked to the execution team, reviewed their paperwork and studied their training methods. In a ruling issued Dec. 15, he found that lethal injection is theoretically constitutional but California practiced it poorly.

California’s “implementation of lethal injection is broken, but it can be fixed,” Fogel said.

His findings included:

  • The execution staff was poorly trained for basics such as handling the drugs, inserting the intravenous lines and ensuring that the minimum required doses of the drugs were actually administered.
  • The staff lacked training on how to respond when things go wrong.
  • The executioners weren’t properly screened — one executioner had previously been disciplined for smuggling drugs into the prison.
  • The execution facility lacked lighting, space and proper equipment for the staff to adequately monitor the process and respond if there are problems.

A few days before Fogel’s ruling, Florida botched the execution of Angel Diaz.

It was reported that a needle used to administer the drugs was inserted incorrectly. Instead of injecting the drugs into one of Diaz’s veins, it injected them into a muscle. This inhibited the spread of the drugs through his body. It took two doses to kill him.

Associated Press reporter Ron Word, who witnessed the execution, said, “he began grimacing, later licking his lips and blowing. He appeared to move for 24 minutes after the first injection.”

Normally, the inmate falls unconscious within three to five minutes and is dead in 10 to 15 minutes, said Word, who has watched 20 executions. This execution took 34 minutes.

On Dec. 15, outgoing Florida Gov. Jeb Bush stopped executions pending a study of the process.

The North Carolina federal case claims the N.C. Department of Correction does not ensure its execution staff is properly trained and the execution chamber is poorly designed for administering lethal injections. Like California’s, North Carolina’s death chamber originally was a gas chamber, a small metal room.

The state says in court papers that the claims are false and the staff is properly trained.

The California and Florida situations don’t require North Carolina to halt its executions; but Geoffrey W. Hosford, one of Robinson’s lawyers, hopes their situations will help persuade a judge to order a halt here for Robinson.

Hosford plans to file court papers today in Fayetteville to ask a state Superior Court judge to postpone Robinson’s execution while the federal case is pending.

However, when another inmate, Willie Brown Jr., tried in 2006 in federal court to claim the risk of waking up in the middle of the execution, the state Department of Correction responded by purchasing a brain-wave monitor for its executions.

The monitor is supposed to show if the inmate is unconscious; he doesn’t receive the potassium chloride until then.

The manufacturer of the machine, Aspect Medical Systems, protested that the machine was not designed for executions. By itself, the machine isn’t enough to reliably show if someone is unconscious, an Aspect official said.

Nonetheless, the judge ruled against Brown.

Brown was executed on April 21 with the machine’s sensor on his forehead.

Regardless of the constitutionality of the lethal injection practices, Hosford says he has new evidence he hopes will convince a judge that Robinson doesn’t deserve death.

At Robinson’s trial, there was testimony that Robinson’s father beat him in the head when he was young. Throughout his life, his mother said, she tried in vain to discipline him and get him help.

Robinson, who was 18 when he killed Tornblom, might have suffered a brain injury from the abuse that limited his ability to use good judgment, Hosford said.

“He was definitely operating as a normal 14-year-old, but he certainly wasn’t operating like an 18-year-old at the time,” Hosford said.

State prison spokesman Keith Acree said Robinson has spent most of his time in prison being punished for various infractions — weapons possession, drug possession, refusing to take drug tests, disobeying orders, etc. He currently is in disciplinary segregation, confined to a cell for 23 hours a day, for cursing, and isn’t scheduled to come off until Jan. 29, three days after the execution.

Hosford plans to meet with Gov. Mike Easley on Wednesday morning for a clemency hearing.

In December, Hosford asked Easley for a moratorium on executions in light of the Florida and California situations. Governor’s spokeswoman Renee Hoffman said on Friday no decision has been announced.

Staff writer Paul Woolverton can be reached at woolvertonp@fayobserver.com or 486-3512.

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