Friday, 16 November 2007

BRIEF FOR AMICI CURIAE FILED IN BAZE



No. 07-5439
IN THE
Supreme Court of the United States
RALPH BAZE, ET AL.,
Petitioners,
v.
JOHN D. REES, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF KENTUCKY
BRIEF FOR AMICI CURIAE
MICHAEL MORALES, MICHAEL TAYLOR,
VERNON EVANS, JR., AND JOHN GARY
HARDWICK, JR., IN SUPPORT OF
PETITIONERS
November 13, 2007
ELISABETH SEMEL
TY ALPER*
JENNIFER MORENO
DEATH PENALTY CLINIC
UNIVERSITY OF CALIFORNIA,
BERKELEY SCHOOL OF LAW
Berkeley, California 94720
(510) 643-7849
* Counsel of Record


TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES......................................iii
INTEREST OF AMICI CURIAE............................... 1
SUMMARY OF ARGUMENT.....................................2
ARGUMENT...............................................................4
I. JURISDICTIONS THAT EMPLOY LETHAL
INJECTION HAVE CHOSEN A METHOD WITH
VERY LITTLE TOLERANCE FOR ERROR................... 4
II. A REVIEW OF PUBLIC, UNDISPUTED FACTS
FROM MULTIPLE JURISDICTIONS REVEALS A
“PERVASIVE LACK OF PROFESSIONALISM” IN
THE DEVELOPMENT OF PROTOCOLS AND THE
SELECTION, TRAINING, AND OVERSIGHT OF
EXECUTION TEAM MEMBERS................................. 8
A. Untrained and Unqualified
Executioners...................................................9
1. Lack of training.......................................10
2. Lack of screening.....................................13
B. Deficient and Incomprehensible
Execution Procedures..................................17
1. Nonsensical protocols..............................18
2. Dangerously inappropriate priorities.....20
3. Remote administration and
inadequate assessment of
anesthetic depth......................................22
4. Inadequate facilities................................27
III. THE INCOMPETENT ADMINISTRATION OF
LETHAL INJECTION PROCEDURES HAS
RESULTED IN FORESEEABLE AND
PREVENTABLE PROBLEMS IN NUMEROUS
EXECUTIONS.......................................................29
CONCLUSION..........................................................36
TABLE OF AUTHORITIES
CASES
Page(s)
Brown v. Beck, No. 5:06-CT-3018-H, 2006 WL
3914717 (E.D.N.C. Apr. 17, 2006).........................25
Conner v. N.C. Council of State, No. 07-GOV-
0238, 07-GOV-0264 (N.C. O.A.H.
Aug. 9, 2007)...........................................................24
Harbison v. Little, No. 3:06-1206, 2007 WL
2821230 (M.D. Tenn. Sept. 19, 2007)............passim
Hill v. McDonough, 126 S. Ct. 2096 (2006)................2
Lightbourne v. McCollum, No. SC06-2391,
2007 WL 3196533 (Fla. Nov. 1, 2007).............32, 33
Morales v. Hickman, 415 F. Supp. 2d 1037
(N.D. Cal. 2006)..........................................16, 30, 35
Morales v. Tilton, 465 F. Supp. 2d 972
(N.D. Cal. 2006)..............................................passim
Nelson v. Campbell, 541 U.S. 637 (2004)...................2
Oken v. Sizer, 321 F. Supp. 2d 658
(D. Md. 2004)..........................................................31
Taylor v. Crawford, No. 05-4173-CV-C-FJG,
2006 WL 1779035, (W.D. Mo.
June 26, 2006)..................................................25, 28
COURT DOCUMENTS
Aff. of Catherine Burton, Patton v. Jones, No.
06-591 (W.D. Okla. Feb. 19, 2004).........................34
Aff. of Marvin L. Polk, Page v. Beck, No. 5:04-
CT-04-BO (E.D.N.C. Jan. 6, 2004)........................19
Am. Joint Pre-Hr’g Conf. Statement, Morales
v. Tilton, No. C06-0219, C06-926 (N.D. Cal.
Nov. 27, 2006).................................................passim
Decl. of Dr. Mark J.S. Heath, Morales v.
Hickman, No. C06-0219, C06-926 (N.D. Cal.
Jan. 12, 2006).........................................................31
Decl. of Dr. Mark J.S. Heath, Patton v. Jones,
No. 06-591 (W.D. Okla. July 27, 2006)..................19
Decl. of Dr. Mark J.S. Heath, Roane v.
Gonzales, No. 05-2337 (D.D.C.
Sept. 7, 2007) (redacted version,
publicly filed)....................................................19, 20
Decl. of Dr. Mark J.S. Heath, Taylor v.
Crawford, No. 05-4173
(W.D. Mo. July 24, 2006).......................................26
Decl. of Patrick J. Ehlers, Patton v. Jones, No.
06-591 (W.D. Okla. Mar. 1, 2004)..........................34
Def.’s Answer to Compl., Evans v. Saar, No.
06-149 (D. Md. Mar. 13, 2006)...............................31
Dep. Tr. of Protected Person 5, Roane v.
Gonzales, No. 05-2337 (D.D.C.
July 25, 2007)...........................................................9
Dep. Tr. of Protected Person 6, Roane v.
Gonzales, No. 05-2337 (D.D.C.
July 24, 2007)...........................................................9
Dep. Tr. of Protected Person 8, Roane v.
Gonzales, No. 05-2337 (D.D.C.
July 25, 2007)...........................................................9
Dep. Tr. vol. I, Jackson v. Danberg, No. 06-
CV-300 (D. Del. Sept. 10, 2007) (testimony
of Dr. Mark Dershwitz)..........................................21

Ex. 4R, Addendum to Bureau of Prisons Exe-
cution Protocol Federal Death Sentence Im-
plementation Procedures (effective July 1,
2007), Decl. of Dr. Mark J.S. Heath, Roane
v. Gonzales, No. 05-2337 (D.D.C. Sept 7,
2007) (redacted version, publicly filed) ................19
Ex. 4S, Protocol Lead Script, Decl. of Dr.
Mark J.S. Heath, Roane v. Gonzales, No.05-
2337 (D.D.C. Sept. 7, 2007)
(redacted version, publicly filed)...........................24
Hr’g Tr., Conner v. N.C. Council of State, No.
07-GOV-0238, 07-GOV-0264 (N.C. O.A.H.
May 21, 2007) (testimony of Dr. Obi Umesi)............25
Pet’r’s Brief, Baze v. Rees, No. 07-5439 (U.S.
Nov. 5, 2007).............................................................7
Pls.’ and Intervenor Pls.’ Opp’n to Def.’s Mot.
and Corrected Mot. for J. on the Pleadings
and Mot. to Lift the Stay of the Pls.’
Executions, Roane v. Gonzales, No. 05-2337
(D.D.C. Oct. 10, 2007) (redacted version,
publicly filed)..........................................................16
Post-Trial Decl. of Dr. Mark J.S. Heath,
Morales v. Tilton, No. C06-0219, C06-926
(N.D. Cal. Nov. 9, 2006).........................................23
Prelim. Inj. Tr., Patton v. Jones, No. 06-591
(W.D. Okla. Aug. 8, 2006)......................................34
Taylor v. Crawford, No. 2:05-CV-04173-FJG
(W.D. Mo. Sept. 12, 2006) (Order).........................15
Tr. of Test. of John Doe No.1, Taylor v.
Crawford, No. 05-4173 (W.D. Mo.
June 5, 2006)........................................13, 14, 15, 21
Trial Tr., Evans v. Saar, No. 06-149 (D. Md.
Sept. 20, 2006) (testimony of Contractual
Team A)............................................................10, 12
Trial Tr., Evans v. Saar, No. 06-149 (D. Md.
Oct. 10, 2006) (testimony of Contractual
Team B) .................................................................10
Trial Tr., Evans v. Saar, No. 06-149 (D. Md.
Oct. 11, 2006) (testimony of Dr. Mark
Dershwitz)..........................................................6, 22
Trial Tr., Taylor v. Crawford, No. 05-4173
(W.D. Mo. June 13, 2006) (testimony of
Larry Crawford, Director,
Mo. Dept. of Corrections).......................................15
Trial Tr., Timberlake v. Buss, No. 06-1859
(S.D. Ind. Apr. 26, 2007) (testimony of
Warden Ed Buss)...................................................26
OTHER AUTHORITIES
Autopsy Report for Joseph Clark, Dr. L.J.
Dragovic, Office of the Medical Examiner,
Oakland County, Michigan (Aug. 15, 2006)..........34
Autopsy Report for Lloyd LaFevers, Dr. Larry
Balding, Office of the Chief Medical
Examiner, Oklahoma City, Oklahoma
(Jan. 31, 2001)........................................................34
Burke, Sheila, Tennessee Will Lift Ban on
Executions, Tennessean, May 1, 2007...................18
Clinesmith, Sonja, Moans Pierced Silence
During Wait, Arkansas Democrat Gazette,
Jan. 26, 1992..........................................................29
Diel, Stan, State's New Execution Procedure
Detailed, Birmingham News,
Oct. 26, 2007...........................................................26
Farber, Neil, et al., Physicians’ Willingness to
Participate in the Process of Lethal Injection
for Capital Punishment, 135 Annals of
Internal Med. 884 (2001).........................................7
Gawande, Atul, When Law and Ethics Collide
– Why Physicians Participate in Executions,
354 New Eng. J. of Med. 1221 (2006)......................7
Governor’s Commission on Administration of
Lethal Injection, Final Report with
Findings and Recommendations
(Mar. 1, 2007).............................................11, 12, 33
Hr’g Tr. vol. IV, Governor’s Commission on
Administration of Lethal Injection
(Feb. 9, 2007)..........................................................11
Hr’g Tr. vol. IV, Governor’s Commission on
Administration of Lethal Injection
(Feb. 12, 2007) (testimony of Dr. William
Frank Hamilton)..............................................32, 33
Hr’g Tr. vol IV, Governor’s Commission on
Administration of Lethal Injection
(Feb. 19, 2007) (testimony of
George B. Sapp)................................................12, 32
Kohler, Jeremy, Behind the Mask of the
Execution Doctor, St. Louis Post-Dispatch,
July 30, 2006..............................................13, 14, 15
Letter from Michael Pritchett, Assistant
Attorney General of Missouri, to Michael
Gans, Clerk, U.S. Court of Appeals, 8th Cir.
(Apr. 17, 2007)........................................................15
Liptak, Adam, After Problem Execution,
Governor Bush Suspends the Death Penalty
in Florida, N.Y. Times, Dec. 16, 2006...................29
Liptak, Adam, Trouble Finding Inmate’s Vein
Slows Lethal Injection in Ohio, N.Y. Times,
May 3, 2006......................................................33, 34
Mangels, John, Condemned Killer Complains
Lethal Injection “Isn’t Working,” Cleveland
Plain Dealer, May 3, 2006.....................................29
Martin, Mark, Lawmakers Rip Governor Over
Death Chamber, S. F. Chron., May 9, 2007..........27
State of Tennessee, Manual of Execution:
Lethal Injection,
(Oct. 1, 2006)....................................................18, 19
Tisch, Chris, Governor Bush Halts
Executions, St. Petersburg Times,
Dec. 16, 2006..........................................................32
Waisel, David, Physician Participation in
Capital Punishment, 82 Mayo Clinic
Proceedings 1073 (2007) .........................................7
Weil, Elizabeth, The Needle and the Damage
Done, N.Y. Times Magazine, Feb. 11, 2007............5

INTEREST OF AMICI CURIAE1

Amici Michael Morales, Michael Taylor, Vernon
Evans, Jr., and John Gary Hardwick, Jr., are in-
mates sentenced to death by the States of California,
Missouri, Maryland, and Florida, respectively.
Amicus Taylor has a petition for certiorari pending
before this Court that raises the question of the
proper Eighth Amendment legal standard for lethal
injection challenges.
Together, amici comprise a representative group
of death row inmates who have filed civil rights ac-
tions challenging the means and manner by which
they are likely to be executed. Through discovery,
amici have uncovered evidence of serious flaws in the
lethal injection procedures in their respective juris-
dictions. Because prison officials have traditionally
shrouded the details of the administration of their
execution procedures in secrecy, much of this infor-
mation has not previously been available to the pub-
lic. In addition, because many jurisdictions employ
similar lethal injection protocols, amici have looked
to jurisdictions around the country for information
relevant to their respective challenges, and are
aware of the evidence discovered in those jurisdic-
1 No counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than counsel for amici made a monetary contribu-
tion to its preparation or submission. This brief was written
with the assistance of Joy Haviland and Vanessa Ho, students
in the Death Penalty Clinic at the University of California,
Berkeley School of Law. The parties have consented to the fil-
ing of this brief.

tions. By virtue of their litigation, amici and their
counsel can provide a needed perspective, one that
would not otherwise be known to the Court, regard-
ing lethal injection protocols and the various means
by which departments of correction implement those
protocols.
SUMMARY OF ARGUMENT
Execution by lethal injection can be performed
constitutionally. The three-drug formula employed
in almost all jurisdictions can result in humane exe-
cutions, but only if administered properly, with the
precision and care the use of such drugs requires.
Because the drugs used are so volatile, and will in-
flict excruciating pain and suffering on inadequately
anesthetized inmates, the question is whether juris-
dictions that employ lethal injection have put in
place reasonable procedures to effectuate a humane
execution and to deal with the foreseeable problems
with this method of execution. This brief argues that
many of them have not done so. Instead, they have
turned a blind eye to these foreseeable problems, al-
lowing ignorance and neglect – rather than science
and deliberation – to guide the formation and im-
plementation of lethal injection protocols. The result
has been botched executions that are entirely pre-
dictable and preventable.
To fully appreciate the reality of how lethal injec-
tion has been administered, one must look at the en-
tire landscape of lethal injection challenges and, in
particular, the information revealed in discovery fol-
lowing the Court’s rulings in Nelson v. Campbell, 541
U.S. 637 (2004) and Hill v. McDonough, 126 S. Ct.

2096 (2006). Unfortunately, compelling examples of
incompetent administration are currently under pro-
tective order. Nevertheless, information that is pub-
lic reveals a “pervasive lack of professionalism,”
Morales v. Tilton, 465 F. Supp. 2d 972, 980 (N.D.
Cal. 2006), in the development and administration of
lethal injection protocols in this country. This lack of
professionalism makes it inevitable that some in-
mates will suffer torturous deaths.
As this Court contemplates the appropriate
Eighth Amendment standard to adjudicate lethal in-
jection challenges, it should be aware of the flawed
practices documented in the records of litigation
across the country. The legal standard this Court
sets should take account of the multitude of problems
these records reveal, and it should allow lower courts
to continue what they have already been doing: ad-
judicating the facts of each case to determine
whether the risks that the inmate will experience
pain or conscious suffering are sufficient to violate
the Eighth Amendment. The vast majority of these
courts have applied the “unnecessary risk” standard
the Petitioners urge in this case. That framework
has enabled courts to evaluate the often appalling
evidence revealed in discovery and to differentiate
between risks that are the foreseeable result of defi-
cient procedures, and risks that are unavoidable
even in carefully constructed procedures, or too re-
mote to be constitutionally significant.
The secrecy surrounding executions, the failure
to record relevant data, and the protective orders in
place in many jurisdictions make it impossible to ex-
haustively or reliably catalogue the problems that

2 All documents cited in this brief are available from coun-
sel for amici upon request from this Court. Virtually all of
these documents are also available on the website
www.lethalinjection.org, where an annotated, linked version of
this brief is posted.
3 Thiopental is also known as Sodium Pentothal, Sodium
Thiopental, or Thiopentone. It will be referred to throughout
this brief as thiopental.
have occurred during lethal injections. Additionally,
because each jurisdiction has chosen to paralyze in-
mates before injecting them with potassium chloride,
the risk – and reality – of conscious pain or suffering
is often not readily apparent. Yet publicly available
evidence does demonstrate that executions are often
conducted in a haphazard manner by unfit person-
nel, and that numerous failures have led to substan-
tial uncertainty regarding whether the drugs in
many executions were properly administered. Each
step of the procedure can go awry, with disastrous
(but often unseen) consequences, when prison offi-
cials disregard or ignore the inherent risks of the
three-drug formula. In short, this brief describes
what is known to have gone awry, and why. 2
ARGUMENT
I. JURISDICTIONS THAT EMPLOY LETHAL
INJECTION HAVE CHOSEN A METHOD WITH
VERY LITTLE TOLERANCE FOR ERROR.

As the Court is aware, people are executed in
this country by the intravenous injection of a three-
drug formula involving the serial administration of
thiopental,3 pancuronium bromide, and potassium

4 See generally Morales v. Tilton, 465 F. Supp. 2d 972 (N.D.
Cal. Nov. 27, 2006); Elizabeth Weil, The Needle and the Dam-
age Done, N.Y. Times Magazine, Feb. 11, 2007, at 46.
chloride. Death in an execution by lethal injection is,
in almost all cases, caused by the administration of
the potassium chloride. In other words, the inmate
is alive throughout the process of execution until the
last drug is administered.
“It is undisputed that, without proper anesthe-
sia, the administration of pancuronium bromide and
potassium chloride, either separately or in combina-
tion, would result in a terrifying, excruciating
death.” Harbison v. Little, No. 3:06-1206, 2007 WL
2821230, at *11 (M.D. Tenn. Sept. 19, 2007). Thus, it
is incumbent upon jurisdictions that have chosen to
use this method of execution to ensure that sufficient
anesthetic depth is achieved and maintained
throughout the execution.
Achieving sufficient anesthetic depth – so that
the inmate does not experience the pain of a tortur-
ous death – is no simple matter.4 To begin with,
thiopental is packaged in kits, not as a pre-mixed so-
lution. The execution team must mix the powdered
drug with water immediately prior to injection. Addi-
tionally, correctional staff usually must combine sev-
eral thiopental kits into syringes, in amounts and
concentrations with which few if any execution team
members have training or expertise. Indeed, prepa-
ration of controlled substances, particularly for in-
travenous use, is a technical task requiring signifi-
cant training. In order to successfully administer the
anesthetic, execution team members must correctly

5 Trial Tr. at 139, Evans v. Saar, No. 06-149 (D. Md. Oct.
11, 2006) (testimony of Dr. Mark Dershwitz).
insert an intravenous catheter into the inmate’s
veins and then connect and disconnect numerous sy-
ringes to the IV port in the correct sequence. If a
catheter is improperly placed in an inmate’s periph-
eral vein, or the vein is compromised by repeated
punctures from inexperienced or sloppy IV place-
ment, the drugs will enter the surrounding tissue,
but will not be delivered to the central nervous sys-
tem. If team members are unable to maintain access
in the peripheral veins, a delicate and complicated
procedure may be needed by which an intravenous
catheter is placed into a central vein. This procedure
“typically requires a greater level of expertise . . .
than somebody from the IV team would generally
have,” and usually must be performed by a physi-
cian.5 These tasks are complicated by the fact that
they are divided among multiple people and are not
part of the execution team members’ day-to-day job
responsibilities, so execution personnel can bring lit-
tle training or expertise to bear.
These complex procedures, employing the dan-
gerous three-drug formula, require the participation
of adequately trained and qualified personnel for ef-
fective administration. It would not impede execu-
tions to recognize the need for qualified personnel to
administer the three-drug formula, and to require
states to use them where appropriate. It is impor-
tant to note that there is no shortage of doctors, in-
cluding anesthesiologists, and other medical profes-
sionals who express a willingness to participate in

6 See, e.g., David Waisel, Physician Participation in Capi-
tal Punishment, 82 Mayo Clinic Proceedings 1073, 1078 (2007)
(discussing risks inherent in the three-drug formula and argu-
ing, from the perspective of a physician, that doctors should
participate in executions); Atul Gawande, When Law and Eth-
ics Collide – Why Physicians Participate in Executions, 354 New
Eng. J. of Med. 1221, 1229 (2006) (reporting reasons why doc-
tors participate in executions and describing interviews with
four doctors and one nurse who have participated in at least 45
executions); Neil Farber et al., Physicians’ Willingness to Par-
ticipate in the Process of Lethal Injection for Capital Punish-
ment, 135 Annals of Internal Med. 884, 884-890 (2001) (report-
ing that 41% of doctors surveyed would participate in execu-
tions and concluding that “[d]espite medical society policies,
many physicians would be willing to be involved in the execu-
tion of adults”).
7 Pet’r’s Brief at 20-24, Baze v. Rees, No. 07-5439 (U.S. Nov.
5, 2007).
lethal injection executions.6 Nevertheless, as dis-
cussed below, lethal injection jurisdictions have con-
tinued to rely upon prison employees who are neither
trained nor capable of performing the complicated
tasks the three-drug formula requires.
The risk here is not of an accident or chance oc-
currence. Unforeseeable accidents will occur with
any execution protocol, and that fact does not render
all execution methods unconstitutional. The botched
lethal injections that have occurred in this country,
and which Petitioner’s brief discusses,7 can be traced
directly to poorly-drafted protocols, insistence on re-
mote administration with a highly complex sedative,
deficient (or nonexistent) training of execution team
members, incompetent oversight, and inadequate fa-
cilities. Unless states and the Federal Government
are compelled to establish reasonable protections

against the foreseeable dangers posed by the three-
drug formula, executions that result in the conscious
pain or suffering of the inmate will continue to occur.
II. A REVIEW OF PUBLIC, UNDISPUTED FACTS
FROM MULTIPLE JURISDICTIONS REVEALS A
“PERVASIVE LACK OF PROFESSIONALISM” IN
THE DEVELOPMENT OF PROTOCOLS AND THE
SELECTION, TRAINING, AND OVERSIGHT OF
EXECUTION TEAM MEMBERS.

Despite the complexity and high risk nature of
the three-drug formula that jurisdictions have cho-
sen, it is possible to administer the formula in a
manner that all but guarantees the adequate anes-
thetization of the inmate. Unfortunately, the selec-
tion, training and oversight of execution team mem-
bers in many jurisdictions has fallen woefully short
of the standard necessary to ensure that the inherent
risks in the three-drug protocol remain theoretical.
The federal judge presiding over amicus Morales’
challenge to the administration of California’s proto-
col referred to the development and oversight of the
lethal injection process in that state as the product of
a “pervasive lack of professionalism.” Morales, 465
F. Supp. 2d at 980. The extensive lack of profession-
alism is evident in many jurisdictions, and raises se-
rious doubts as to whether the three-drug formula is
working as it should.

8 See, e.g., Dep. Tr. of Protected Person 5 at 52, Roane v.
Gonzales, No. 05-2337 (D.D.C. July 25, 2007); Dep. Tr. of Pro-
tected Person 6 at 127-28, Roane v. Gonzales, No. 05-2337
(D.D.C. July 24, 2007); Dep. Tr. of Protected Person 8 at 27,
Roane v. Gonzales, No. 05-2337 (D.D.C. July 25, 2007).
9 Am. Joint Pre-Hr’g Conf. Statement at 55, Morales v.
Tilton, No. C06-0219, C06-926 (N.D. Cal. Nov. 27, 2006) [here-
inafter “Morales Undisputed Facts”]. A Licensed Vocational
Nurse who has set catheters in seven of the last nine California
executions testified that he had never read the protocol. Id. at
19. Witness # 9, a team leader, also never read the protocol.
Id. at 44.
A. Untrained and Unqualified
Executioners

Even the most detailed, professional protocol for
administering the three-drug formula is worthless if
it is not read by the prison officials who conduct the
executions. Yet records from several jurisdictions
reveal that execution team members are routinely
ignorant of the procedures that purport to govern the
execution process. For example, in Tennessee, prison
officials do not require team members to read the
newly developed protocol unless they joined the team
after the new protocol had been created. Harbison,
2007 WL 2821230, at *15. Several members of the
federal execution team have not read any versions of
the Bureau of Prison’s execution protocol.8 In Cali-
fornia, testimony in the Morales litigation revealed
that most execution team members had never read
the protocol. When one was asked in a deposition
whether she had done so, she responded, “I don’t
know what you’re talking about.”9 In Maryland, nei-
ther the execution team leader, nor the team mem-

10 Trial Tr. at 113-14, Evans v. Saar, No. 06-149 (D. Md.
Oct. 10, 2006) (testimony of Contractual Team B); Trial Tr. at
119, Evans v. Saar, No. 06-149 (D. Md. Sept. 20, 2006) (testi-
mony of Contractual Team A).
11 Morales Undisputed Facts at 13.
12 Id. at 12-14.
13 Id. at 67.
ber responsible for establishing IV access, had ever
seen a copy of the execution operations manual.10
1. Lack of training

In theory, rigorous training could compensate for
ignorance of the written protocols. Perhaps not sur-
prisingly, however, many of the jurisdictions in
which team members are unfamiliar with the proto-
cols also have little to no record of training with re-
spect to implementation of the three-drug formula.
Two states with recent histories of problematic, or
botched executions – California and Florida – are il-
lustrative of the consequences of inadequate train-
ing.
In California, a member of the execution team,
who had participated in eight executions and was re-
sponsible for mixing and preparing the thiopental for
executions, testified that “[w]e don’t have training,
really.”11 The team did not practice mixing the anes-
thetic, nor did they practice responses to foreseeable
contingencies that could easily arise during execu-
tions.12 There are no procedures in place to address
the likely event that an IV will malfunction, because,
as one witness testified, “those are the what-ifs that
can go a thousand long.”13 One witness testified that

14 Id. at 53.
15 Id. at 41.
16 Governor’s Commission on Administration of Lethal In-
jection, Final Report with Findings and Recommendations, at 8
(Mar. 1, 2007).
17 Hr’g Tr. vol. IV at 78, Governor’s Commission on Ad-
ministration of Lethal Injection (Feb. 9, 2007) (testimony of Pri-
mary Executioner).
18 Id. at 80.
they draw the syringes with “[j]ust whatever volume
we pretend to play with.”14 Another witness testified
that “[t]here isn’t really much training” regarding
the administration of lethal drugs and it is “more a
self-taught event.”15
Following the botched execution of Angel Diaz in
Florida last year, then-Governor Jeb Bush declared a
moratorium on executions and appointed an execu-
tive commission to review Florida’s lethal injection
protocols. The Governor’s Commission on Lethal In-
jection found a “failure of the training of the execu-
tion team members.”16 For example, the primary
executioner during the Diaz execution, who had also
served as the primary executioner for previous exe-
cutions and had no medical training or qualifica-
tions,17 testified that he does not participate in prac-
tice sessions or trainings prior to executions.18 It is
unsurprising, therefore, that team members were
slow to realize that they had improperly inserted
both of Diaz’s IV catheters, and they did not know
how to respond properly once they recognized the

19 Governor’s Commission on Administration of Lethal In-
jection, Final Report with Findings and Recommendations, at 8
(Mar. 1, 2007).
20 See, e.g., Hr’g Tr. vol. IV at 46-47, Governor’s Commis-
sion on Administration of Lethal Injection (Feb. 19, 2007) (tes-
timony of George B. Sapp).
21 During federal court testimony in Maryland, the execu-
tion team member responsible for injecting the drugs could not
identify any of the three drugs used in the protocol. Trial Tr. at
120-121, Evans v. Saar, No. 06-149 (D. Md. Sept. 20, 2006) (tes-
timony of Contractual Team A). He also had no understanding
of the purpose of each drug. Id. at 121. He was not aware that
the second drug paralyzes the inmate; instead, he testified that
it was his understanding that the second drug functions to
“numb the body.” Id.
problem.19 In fact, they reacted in the worst possible
manner, injecting more pancuronium and potassium
even though it was evident that Diaz may not have
received a sufficient dose of thiopental to adequately
anesthetize him.20
Without any training or qualifications of their
own, and without comprehensive protocols to guide
them, execution team members are left to fend for
themselves, improvising as they go, and exponen-
tially increasing the likelihood that the inmate will
experience excruciating pain or suffering. This is
particularly troubling since the execution team
members “almost uniformly have no knowledge of
the nature or properties of the drugs that are used or
the risks or potential problems associated with the
procedure.” Morales, 465 F. Supp. 2d at 979. The
executioners are “largely ignorant” and “completely
unprepared” for the “known risks” of the three-drug
formula. Harbison, 2007 WL 2821230, at *17-18. 21

22 Tr. of Test. of John Doe No.1 at 19-20, 22, Taylor v.
Crawford, No. 05-4173 (W.D. Mo. June 5, 2006); Jeremy Kohler,
Behind the Mask of the Execution Doctor, St. Louis Post-
Dispatch, July 30, 2006, at A1.
23 Tr. of Test. of John Doe No.1 at 19-20, 22, Taylor v.
Crawford, No. 05-4173 (W.D. Mo. June 5, 2006).
24 During his deposition, Dr. Doe was asked the following:
“Q: [T]here's no guide that you follow as you're doing it? A: Ab-
2. Lack of screening

The pervasive lack of training is compounded by
the fact that many jurisdictions place individuals on
the execution team without screening them for any
necessary qualifications, such as whether they have
the requisite skills and expertise, are reliable, and
can be trusted to handle dangerous, and addictive,
controlled substances. As a result, many current and
former execution team members are particularly ill-
suited to carry out the complicated three-drug proce-
dure.
The most well-known example of a jurisdiction
entrusting its execution administration to an incom-
petent individual is the infamous “Dr. Doe” in Mis-
souri. Dr. Doe is a surgeon to whom the Missouri
Department of Corrections delegated the overhaul of
their entire lethal injection procedures.22 Dr. Doe
was responsible not only for designing Missouri’s
execution procedures, but also for mixing the drugs
and overseeing the executions themselves.23 Litiga-
tion in amicus Taylor’s case, however, revealed that
Dr. Doe never created a written protocol for execu-
tions.24 In fact, he varied the amount of thiopental

solutely not. Q. So you just rely on your memory? A. Yes.” Id.
at 70.
25 Id. at 13-19.
26 Id. at 9-12, 24.
27 Id. at 14-18.
28 Id. at 25.
29 Jeremy Kohler, Behind the Mask of the Execution Doctor,
St. Louis Post-Dispatch, July 30, 2006, at A1.
30 Id.
31 Tr. of Test. of John Doe No.1 at 10, Taylor v. Crawford,
No. 05-4173 (W.D. Mo. June 5, 2006).
Dr. Doe also suffers from dys-
lexia, and admitted that “[i]t is not unusual for me to
make mistakes,” such as transposing numbers. By
his own estimate, he had been sued for malpractice
more than 20 times, and reprimanded by the State
Board of Healing Arts for concealing the malpractice
suits from the hospitals where he was a treating
physician.
he gave inmates on a whim, without informing any-
one.25 He testified that he had recently begun giving
inmates, at most, half the amount of thiopental than
he had previously given, because a change in the
drug packaging forced him to “improvise.”26 He
could not say how much thiopental he had adminis-
tered in any particular execution, and his poor re-
cordkeeping renders it impossible to reconstruct the
dose after the fact.272829
Dr. Doe supervised 54 executions in Missouri.30
However, during amicus Taylor’s litigation challeng-
ing Missouri’s lethal injection procedures, Dr. Doe
testified that he was “still improvising” the execution
procedures.31 Despite the fact that the paralytic ef-

32 Id. at 23.
33 Jeremy Kohler, Behind the Mask of the Execution Doctor,
St. Louis Post-Dispatch, July 30, 2006, at A1.
34 Trial Tr. at 387-392, Taylor v. Crawford, No. 05-4173
(W.D. Mo. June 13, 2006) (testimony of Larry Crawford, Direc-
tor, Mo. Dept. of Corrections).
35 Taylor v. Crawford, No. 2:05-CV-04173-FJG, at 2, (W.D.
Mo. Sept. 12, 2006) (Order). The State appealed that order.
Several months after appellate argument, the Attorney General
represented to the court that Dr. Doe would no longer partici-
pate in executions in Missouri. See Letter from Michael Pritch-
ett, Assistant Attorney General of Missouri, to Michael Gans,
Clerk, U.S. Court of Appeals, 8th Cir. (Apr. 17, 2007).
fect of the pancuronium ensures that executions will
look the same regardless of whether adequate anes-
thesia is given, Dr. Doe believed that he could vary
the way he carried out executions as long as his
changes did not make any “visible difference” in the
appearance or length of the execution.32
The State of Missouri was well aware of Dr.
Doe’s professional disrepute. The Office of the At-
torney General both defended the Taylor litigation
and signed off on the discipline of Dr. Doe.33 Yet the
state fought to keep Dr. Doe’s identity a secret and
said that it would not hesitate to allow him to con-
tinue to carry out executions.34 The U.S. District
Court for the Western District of Missouri, however,
ordered that Dr. Doe “shall not participate in any
manner, at any level, in the State of Missouri’s lethal
injection process.”35
Dr. Doe’s manifest incompetence is not an aber-
ration. In fact, public filings in the federal lethal in-
jection litigation reveal that the Federal Government

36 Pls.’ and Intervenor Pls.’ Opp’n to Def.’s Mot. and Cor-
rected Mot. for J. on the Pleadings and Mot. to Lift the Stay of
the Pls.’ Executions at 38-40, Roane v. Gonzales, No. 05-2337
(D.D.C. Oct. 10, 2007) (redacted version, publicly filed).
37 Williams was executed on December 13, 2005 and Allen
was executed on January 17, 2006. Morales v. Hickman, 415 F.
Supp. 2d 1037, 1045 (N.D. Cal. 2006).
38 Morales Undisputed Facts at 3.
39 Id. at 3-4.
uses the very same Dr. Doe to develop execution pro-
cedures, place and monitor intravenous lines, and
monitor levels of consciousness.36 In other words,
the Federal Government chose to rely upon the only
person in the country who has been explicitly barred
by a federal court from participating in lethal injec-
tion executions.
Other jurisdictions fare no better when it comes
to the selection and screening of the individuals who
are responsible for developing and carrying out the
execution procedures. In California, former San
Quentin Prison Warden Steven Ornoski – who pre-
sided over the executions of Stanley Williams, Cla-
rence Ray Allen, and the scheduled execution of
amicus Morales37 – testified that there are no rules
or regulations that require him to evaluate the “bona
fides” of the team members.38 No warden or supervi-
sor ever reviewed any of the team members’ qualifi-
cations, experience, training, or personnel files.39
The Morales litigation record reveals that the execu-
tion team leader was disciplined for smuggling ille-
gal drugs into San Quentin Prison, yet was subse-

40 Id. at 3. The federal judge in the Harbison litigation la-
mented the fact that the Tennessee Department of Corrections
did not screen potential execution team members for substance
abuse or psychological disorders or test team members for drug
use prior to the execution. “This is a particular issue because
one of the paramedics – IV Team Member B – has a history of
drug and alcohol addiction and psychological disorders.” Harbi-
son v. Little, No. 3:06-1206, 2007 WL 2821230, at *15 (M.D.
Tenn. Sept. 19, 2007).
41 Morales v. Tilton, 465 F. Supp. 2d 972, 979 n.9 (N.D. Cal.
2006).
quently appointed to the execution team.40 The
Morales litigation also uncovered the fact that “sub-
stantial” quantities of thiopental purportedly
checked out for execution purposes had gone missing,
and the federal judge suggested that a criminal in-
vestigation may be necessary to investigate the pos-
sible theft of thiopental by members of the execution
team.41
B. Deficient and Incomprehensible
Execution Procedures

Even if jurisdictions employed competent, quali-
fied, and well-trained personnel to execute inmates,
they would not be able to successfully implement le-
thal injection protocols that are incomprehensible,
internally inconsistent, or fail to provide for foresee-
able contingencies. Yet prison officials in many ju-
risdictions have put little stock in the development of
professional, comprehensive procedures. They have
routinely entrusted this complex responsibility to
personnel with no medical training or prior experi-
ence with lethal injection. Often, they have merely

42 Tennessee Governor Phil Bredesen called the written di-
rectives a “cut and paste job.” Sheila Burke, Tennessee Will Lift
Ban on Executions, Tennessean, May 1, 2007, at 1A.
43 State of Tennessee, Manual of Execution: Lethal Injec-
tion, at 34 (Oct. 1, 2006) (rescinded by Executive Order Feb. 1,
2007).
44 Id. at 6.
copied the deficient procedures from other jurisdic-
tions.
1. Nonsensical protocols

In some cases, the protocols reflect a complete
lack of attention to what should be a rigorous and
scientifically-vetted process. In Tennessee, the care-
lessness with which the protocol was drafted bor-
dered on the absurd. In that state, the written lethal
injection protocol included substantial elements of
the old protocol for execution by electrocution.42
Purportedly used by Tennessee officials in two execu-
tions (including one in June of 2006), the protocol in-
structed prison officials to shave the inmate’s head
and legs43 and to have a fire extinguisher nearby
prior to the lethal injection.44 If the prison officials
were to follow the protocol’s further instructions to
the letter, they would first “check the electrodes to
insure that they are properly attached,” then “pro-
ceed to electrical control panel and activate for exe-
cution,” and the executioner would then “engage the
automatic rheostat,” which turns on the electric volt-
age. After the “cycle runs its course” the facility
manager would “disconnect electrical cables in rear
of chair.” Finally, “following the completion of the

45 Id. at 35-36.
46 Aff. of Marvin L. Polk at 2, Page v. Beck, No. 5:04-CT-04-
BO (E.D.N.C. Jan. 6, 2004); Decl. of Dr. Mark J.S. Heath at 17,
Patton v. Jones, No. 06-591 (W.D. Okla. July 27, 2006).
47 Ex. 4R, Addendum to Bureau of Prisons Execution Proto-
col Federal Death Sentence Implementation Procedures (effec-
tive July 1, 2007) at 3, Decl. of Dr. Mark J.S. Heath, Roane v.
Gonzales, No. 05-2337 (D.D.C. Sept. 7, 2007) (redacted version,
publicly filed).
48 Decl. of Dr. Mark J.S. Heath at 24, Roane v. Gonzales,
No. 05-2337 (D.D.C. Sept. 7, 2007) (redacted version, publicly
filed).
lethal injection process,” the physician will enter and
conduct an examination.45
Tennessee is not alone. Protocols in other states
also have inexplicable provisions that reflect at best,
a misunderstanding of the drugs and equipment
used in the three-drug formula, and at worst, a cal-
lous disregard for the danger inherent in that proce-
dure. For example, at least two jurisdictions, includ-
ing North Carolina and Oklahoma, have called for
administration of the anesthetic drug after the in-
mate has already been executed. 46 The revised fed-
eral protocol, in a procedure that needlessly exalts
anonymity over safety, calls for the use of a “blank”
IV line that is not connected to the inmate, but
rather connects to an empty container.47 This proce-
dure ostensibly protects the execution team members
from knowing which member is administering the
chemicals to the inmate and which is simply inject-
ing chemicals into an empty container.48 However,
not only does this procedure add unnecessary com-
plications to the execution process by requiring the

49 Id.
50 Id.
51 Dr. Mark Dershwitz, an expert for the state in many ju-
risdictions, including Kentucky, recently testified in a deposi-
tion that the principal benefit of using pancuronium is its effect
preparation of as many as 20 extra drug syringes,49
it would only accomplish its apparent purpose if the
executioners had been so poorly trained that they
could not tell the difference between injecting a sy-
ringe into an empty container and injecting a syringe
intravenously into a human being.50
2. Dangerously inappropriate priorities

There is ample reason to question whether offi-
cials in some jurisdictions grasp the seriousness of
their constitutional responsibilities. In California,
for example, former Warden Ornoski testified that
“he believes that a ‘successful execution’ is simply
one where ‘the inmate ends up dead at the end of the
process.’ When asked whether he considered a suc-
cessful execution to mean anything else, he re-
sponded, ‘I'm thinking not.’” Morales, 465 F. Supp.
2d at 983 n.14.
To the extent that states do carefully consider
aspects of their lethal injection protocols, inappropri-
ate concerns are often paramount. Certainly one ex-
ample is the use of pancuronium bromide, which pro-
tects the witnesses from watching an unpleasant
death but also masks the ability of anyone except
well-trained and experienced professionals to know
whether the inmate is experiencing searing pain or
conscious suffocation.51 But there are other exam-

on execution witnesses: “Q. Is there anything beneficial that
pancuronium does for the inmate? A. Not the inmate directly.
Q. And indirectly? A. It may decrease the misperception of
these involuntary movements as consistent with suffering on
the part of the witnesses, including the inmate’s family. Q. But
for the inmate himself? A. I said no.” Dep. Tr. vol. I at 119-120,
Jackson v. Danberg, No. 06-CV-300 (D. Del. Sept. 10, 2007)
(testimony of Dr. Mark Dershwitz).
52 Tr. of Test. of John Doe No.1 at 62, Taylor v. Crawford,
No. 05-4173 (W.D. Mo. June 5, 2006).
ples of inappropriate priorities. In Missouri, Dr. Doe
testified that the Director of the Department of Cor-
rections relies on him to “keep [the Director] looking
good . . . so [the Director] does not have to go out and
explain why we made a mistake or we may have a
problem or why it didn’t go smoothly.”52 In Tennes-
see an executive commission recommended that the
state use a one-drug method similar to that used in
animal euthanasia, in order to reduce the risk of con-
scious suffering during lethal injections. Harbison,
2007 WL 2821230, at *3-5. They made this advise-
ment after consulting with medical experts, includ-
ing the State of Kentucky’s expert, Dr. Dershwitz,
who recommended a one-drug protocol to the com-
mission. Id. at *3. Nonetheless, the Commissioner of
the Department of Corrections, who had no medical
training, rejected all of the committee’s suggestions.
He eventually admitted that he had done so because
he did not want “Tennessee to be at the forefront of
making the change from the three-drug protocol to
the one-drug protocol” and that he thought adoption
of a one-drug protocol could lead to “political ramifi-
cations.” Id. at *7.

53 Trial Tr. at 113-14, Evans v. Saar, No. 06-149 (D. Md.
Oct. 11, 2006) (testimony of Dr. Mark Dershwitz).
3. Remote administration and
inadequate assessment of anesthetic
depth

In many lethal injection jurisdictions, the execu-
tion team members administer the lethal drugs and
monitor the inmate from a remote location. Remote
administration prevents the execution team mem-
bers from properly assessing whether the inmate is
receiving the anesthesia and whether the anesthesia
achieves the desired effect. Remote administration
increases the risk of error, from improper pushing of
the drugs, to unnecessarily lengthy lines of tubing
that can malfunction. Dr. Dershwitz has acknowl-
edged that, during the induction of even routine an-
esthesia in a medical setting, the anesthesiologist
stands in the same room as the patient, immediately
adjacent to the inmate’s IV site. He or she injects
anesthetic drugs, carefully attuned to the needs of
the patient, from this bedside location. Dr.
Dershwitz has further acknowledged that “Standard
I” in the American Society of Anesthesiologists’
Minimal Monitoring Standards requires continuous
bedside monitoring.53
Despite the undisputed importance of closely
monitoring the IV line, many states provide only for
remote monitoring. Because states insist on execu-
tioner anonymity, they have used separate rooms for
infusion of the chemicals. This requires remote ad-
ministration, often through lengthy tubing. For ex-
ample, in California, the federal judge found that

54 Post-Trial Decl. of Dr. Mark J.S. Heath at 15, Morales v.
Tilton, No. C06-0219, C06-926 (N.D. Cal. Nov. 9, 2006).
“[t]he lighting is too dim, and the execution team
members are too far away, to permit effective obser-
vation of any unusual or unexpected movements by
the condemned inmate, much less to determine
whether the inmate is conscious.” Morales, 465 F.
Supp. 2d at 980. Similarly, a federal judge found
that the Tennessee lethal injection system, where
the executioners administer the lethal chemicals and
monitor the IV lines from a tiny, poorly lit room out-
side of the execution chamber, was inadequate and
increased the inmate’s risk of experiencing unneces-
sary pain. Harbison, 2007 WL 2821230, at *9, *19.
Remote administration creates a foreseeable risk
of inadequate administration of anesthesia. So too
do protocols that call for token checks for conscious-
ness but no real assessment of anesthetic depth.
Potassium chloride is excruciatingly painful,
similar to a “surgical stimulus.” J.A. 604. Inmates
therefore must be placed in a surgical plane of anes-
thesia to ensure that they do not wake up upon injec-
tion of the potassium – after they are already para-
lyzed. Verifying a surgical plane of anesthesia, par-
ticularly in paralyzed individuals, is a complex task
that requires synthesizing many subtle indicia of re-
sponsiveness. It can only be performed reliably by
persons with advanced training in anesthesia.54
A number of jurisdictions have begun to tweak
their lethal injection protocols in a way that purports

55 In contrast, the lethal injection protocol in some jurisdic-
tions, including Kentucky, provides for no assessment of either
consciousness or anesthetic depth. The federal judge in Ten-
nessee referred to this failure as “the most glaring omission in
the new protocol.” Harbison, 2007 WL 2821230, at *12.
56 Ex. 4S, Protocol Lead Script, Decl. of Dr. Mark J.S.
Heath, Roane v. Gonzales, No. 05-2337 (D.D.C. Sept. 7, 2007)
(redacted version, publicly filed).
57 Id.
58 Conner v. N.C. Council of State, No. 07-GOV-0238, 07-
GOV-0264, at 12 (N.C. O.A.H. Aug. 9, 2007).
to measure anesthetic depth. The impetus to assess
anesthetic depth comes, presumably, from a realiza-
tion on the part of prison officials that there is in-
deed a risk of excruciating pain if the first drug is not
properly administered.55 Despite this implicit ac-
knowledgement, many jurisdictions do not ade-
quately monitor the delivery of anesthesia to the in-
mate, nor do they properly assess anesthetic depth
prior to administering the second and third drugs.
For example, the Federal Bureau of Prisons provides
that the execution team should wait to administer
the paralytic until the inmate looks “sleepy.”56
There is no explanation of how to make this deter-
mination, to what level of anesthetic depth “sleepy”
is supposed to correspond, or what steps to take if
the inmate does not seem
In North Carolina, an earlier incarnation of the
state’s protocol called for the Warden to determine
whether “an inmate was unconscious upon hearing
the inmate’s ‘snoring.’”58 After several legal chal-
lenges, prison officials persuaded a federal court to
permit an execution to proceed, in part, by represent-

59 Hr’g Tr. at 245-50, Conner v. N.C. Council of State, No.
07-GOV-0238, 07-GOV-0264 (N.C. O.A.H. May 21, 2007) (testi-
mony of Dr. Obi Umesi).
60 Dr. Doe, Missouri’s former executioner and one of the
Federal Government’s lethal injection consultants, demon-
strated this fundamental misunderstanding when he testified
that “the only thing that can be monitored [during the execu-
tion] is facial expression and you can judge when the effect of
the drug is accomplished, and that can be seen from across a
room through a window.” Taylor v. Crawford, No. 05-4173-CV-
C-FJG, 2006 WL 1779035, at *6 (W.D. Mo. June 26, 2006).
ing to the court that a physician would monitor the
inmate's consciousness throughout the execution.
Brown v. Beck, No. 5:06-CT-3018-H, 2006 WL
3914717, at 4-5, (E.D.N.C. Apr. 17, 2006) (final order
denying preliminary injunction). However, the phy-
sician present at the execution was never told of this
requirement, and in fact later testified that he had
not monitored the inmate’s consciousness during the
execution process.59
Several other jurisdictions have added steps to
their protocols that call for shaking the inmate, pok-
ing him, or calling his name. These steps, however,
do not permit an assessment of anesthetic depth and
betray a fundamental misunderstanding of the na-
ture of the inherent risks in the three-drug for-
0

The “consciousness check” some jurisdictions are
now instituting does not come close to verifying suffi-
cient anesthetic depth. These jurisdictions propose
to have personnel with little or no medical training

61 See Decl. of Dr. Mark J.S. Heath at 4, Taylor v. Craw-
ford, No. 05-4173 (W.D. Mo. July 24, 2006).
62 Trial Tr. at 199, Timberlake v. Buss, No. 06-1859 (S.D.
Ind. Apr. 26, 2007) (testimony of Warden Ed Buss)
63 Id.
64 Stan Diel, State's New Execution Procedure Detailed,
Birmingham News, Oct. 26, 2007, at 1A.
sponse. 61 For example, in Indiana, after the thio-
pental has been injected into the IV, the Warden ex-
amines the IV site and looks for “signs of conscious-
ness.”62 Warden Ed Buss testified, “I walk around
the offender. I look for any signs of consciousness. I
say his name. I touch him. . . . Maybe a gentle
shake to see if we can detect any consciousness.”63
In Alabama, a recent addition to the state’s lethal
injection protocol calls for a prison guard to check
that the inmate is unconscious by calling the inmate
by name, brushing his eyelashes with a finger, and
pinching his arm. A spokesman for the Alabama
Department of Corrections stated that the new pro-
cedure is “simply a consciousness check.”64
These procedures may indicate that an individ-
ual is lightly unconscious, or sleeping, but cannot in-
dicate any more than that, and may be unreliable
even on that point. One could poke, or speak to, a
sleeping person without eliciting a response, but one
would never assume from that reaction that the
sleeping person could therefore be injected with a
drug that causes searing pain upon administration.
Moreover, given that many jurisdictions offer in-
mates strong sedatives prior to their executions, in-
mates may be aware, but unable to provide a dis-
cernible response to the “consciousness check.” And,

65 California has recently spent approximately $800,000
rebuilding its execution chamber in an effort to correct some of
the deficiencies in the facilities, Mark Martin, Lawmakers Rip
Governor Over Death Chamber, S. F. Chron., May 9, 2007, at
B1, but not before the state executed eleven people in a con-
verted gas chamber that the court found increased the risk of
improperly placed IVs and undetected problems. Morales v.
Tilton, 465 F. Supp. 2d 972, 980 (N.D. Cal. 2006).
66 Morales Undisputed Facts at 21.
of course, once the inmate is paralyzed, this check
will be completely ineffectual, because no amount of
poking, prodding, or shouting is capable of eliciting a
response. Those gestures serve only to provide wit-
nesses, and perhaps the execution team members
themselves, with the false assurance that the appro-
priate level of anesthetic depth has been achieved.
4. Inadequate facilities

Finally, the lack of concern for anything other
than a quick execution that “looks” painless is evi-
dent in the physical conditions under which lethal
injections are conducted. The execution chambers in
many jurisdictions were not designed for lethal injec-
tion executions and suffer from a number of critical
deficiencies.65 In most jurisdictions, prison officials
administer lethal drugs from a small anteroom sepa-
rated from the execution chamber. Often this ante-
room is poorly lit, purposefully, so that witnesses
cannot see into the chamber. For example, in Cali-
fornia, after the team members set the IVs and leave
the execution chamber, the lights are turned down.66
During the execution of Clarence Ray Allen, the doc-
tor filling out the execution record needed the aid of

67 Id.
68 Morales Undisputed Facts at 16.
69 Id.
70 Id. at 48.
a small flashlight to see what he was doing.67 In
Missouri, the personnel who administer the injec-
tions are in the dark and also use a small flashlight
to identify the syringes. Taylor v. Crawford, No. 05-
4173-CV-C-FJG, 2006 WL 1779035, at *5 (W.D. Mo.
June 26, 2006). It is difficult enough for non-medical
personnel to inject numerous syringes in a high-
stress situation, without forcing them to manipulate
the IV-syringe connections in a small, dark space,
while juggling a flashlight, and attempting to inject
the syringes in the correct order.
In California, the anteroom is not only poorly lit,
but is often crowded with state officials on hand to
witness the execution. Morales, 465 F. Supp. 2d at
980. As a result, execution team members have tes-
tified that “simple movement has been difficult.” Id.
Former warden Ornoski testified that during execu-
tions it was so crowded that he could do little more
than “shuffle from side to side a foot or two.”68 He
also testified that, during Clarence Ray Allen’s exe-
cution, it was so crowded that he couldn’t “move from
my spot much, if any.”69 One execution team mem-
ber, who was in charge of passing the drug syringes
to the executioner, testified that the anteroom was so
crowded that she would “have to kind of reach
around people” when handing syringes to the execu-
tioner.70

71 See, e.g., John Mangels, Condemned Killer Complains
Lethal Injection “Isn’t Working,” Cleveland Plain Dealer, May 3,
2006, at A1; Sonja Clinesmith, Moans Pierced Silence During
Wait, Arkansas Democrat Gazette, Jan. 26, 1992, at 1B; Adam
Liptak, After Problem Execution, Governor Bush Suspends the
Death Penalty in Florida, N.Y. Times, Dec. 16, 2006, at A11.
72 “[I]mplementation of lethal injection is broken, but it can
be fixed.” Morales v. Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal.
Nov. 27, 2006).
III. THE INCOMPETENT ADMINISTRATION OF
LETHAL INJECTION PROCEDURES HAS
RESULTED IN FORESEEABLE AND PREVENT-
ABLE PROBLEMS IN NUMEROUS EXECUTIONS.

When unqualified personnel working in inade-
quate facilities perform a complicated and dangerous
procedure with little margin for error, it should not
be surprising when things go wrong. In the lethal
injection context, when things go wrong, inmates suf-
fer excruciating deaths. The so-called botched execu-
tions that have garnered widespread attention in the
popular media are stark examples.71 Because of the
use of pancuronium and the paucity of execution
data, it is unknown how many other botched execu-
tions have gone unnoticed. What is significant about
the executions that have gone awry is that they can
be traced back directly to the “pervasive lack of pro-
fessionalism” in the development and oversight of
the lethal injection process in many jurisdictions.
What gives the botched executions constitutional
significance is that they were foreseeable and pre-
ventable.72

73 The only reason Dr. Singler could not be more definitive
was “principally because of the poor quality of the log itself.”
Id.
Perhaps the best example of the subtlety with
which insufficient anesthesia can manifest itself is
provided by California execution records. In at least
six out of the past eleven executions by lethal injec-
tion in California, execution logs indicated that in-
mates continued to breathe for far longer than the
state’s expert asserted would be expected in inmates
who had received the full dose of thiopental.
Morales, 465 F. Supp. 2d at 975 n.3. These inmates
were likely not deeply anesthetized, and therefore
may have been conscious when the execution team
injected them with pancuronium bromide and potas-
sium chloride. Morales, 465 F. Supp. 2d at 975 (cit-
ing Morales v. Hickman, 415 F. Supp. 2d 1037, 1045
(N.D. Cal. 2006)). Indeed, the state’s own expert, Dr.
Robert Singler, later acknowledged that based on the
continued breathing and “the heart rates reflected in
the execution log, [Robert Lee Massie, executed in
March of 2001] well may have been awake when he
was injected with potassium chloride.” Id. at 980.73
What is particularly disturbing about the Cali-
fornia evidence is that execution personnel recorded
the vital signs, but were insufficiently trained in an-
esthesia to recognize the significance of their obser-
vations, and never thought to investigate further.
See generally Morales, 415 F. Supp. 2d at 1044-1045.
As a result, several inmates were executed while ex-
hibiting signs of inadequate anesthesia. Of course,
the use of pancuronium renders it impossible to de-

74 Decl. of Dr. Mark J.S. Heath at 11-12, Morales v. Hick-
man, No. C06-0219, C06-926 (N.D. Cal. Jan. 12, 2006).
75 Id.
76 Id.
77 Id. In Maryland, state officials admitted that, during
the execution of Tyrone Gilliam on November 16, 1998, the IV
was administered incorrectly and that the “IV line leaked and a
small puddle of liquid formed on the floor.” Def.’s Answer to
Compl. at 6-7, Evans v. Saar, No. 06-149 (D. Md. Mar. 13,
2006). See also Oken v. Sizer, 321 F. Supp. 2d 658, 667 n.7 (D.
termine with certainty whether these executions
were humane.
Sometimes lethal injection executions go wrong
in obvious and gruesome ways. Usually that is the
case when prison officials – untrained, unqualified,
and poorly supervised – have difficulties establishing
and maintaining venous access. These difficulties
introduce the very real risk that the inmate will not
properly receive the anesthetic and will be injected
with pancuronium bromide and potassium chloride
while conscious but paralyzed. Infiltration, for ex-
ample, occurs when a catheter is placed improperly
and the thiopental enters the tissue surrounding the
vein instead of the vein itself.74 It prevents the full
dose of thiopental from reaching the central nervous
system and thus may result in inadequate anesthe-
sia.75 Similarly, sometimes veins perforate, leak, or
rupture while an execution team member is inserting
the catheter or injecting the thiopental, which causes
some or all of the drug to leave the vein and enter
the surrounding tissue.76 In other cases, the IV
tubes themselves leak, preventing some or all of the
drugs from reaching the inmate’s veins.77

Md. 2004) (noting that the State conceded that the IV “was
maladministered and dripped” during Gilliam’s execution in
1998).
78 Hr’g Tr. vol. IV at 171-74, Governor’s Commission on
Administration of Lethal Injection (Feb. 12, 2007) (testimony of
Dr. William Frank Hamilton).
79 See Chris Tisch, Governor Bush Halts Executions, St. Pe-
tersburg Times, Dec. 16, 2006, at 1A.
80 See, e.g., Hr’g Tr. vol IV at 46-47, Governor’s Commission
on Administration of Lethal Injection (Feb. 19, 2007) (testimony
of George B. Sapp).
Recent executions in several states demonstrate
the foreseeable problem of infiltration and its conse-
quences to the entire execution process. When the
State of Florida executed Angel Diaz on December
13, 2006, “it is undisputed that . . . the intravenous
lines were not functioning properly because the
catheters passed through [Diaz’s] veins in both arms
and this delivered the lethal chemical into soft tis-
sue, rather than into his veins.” Lightbourne v.
McCollum, No. SC06-2391, 2007 WL 3196533, at * 15
(Fla. Nov. 1, 2007). Eyewitness reports and an au-
topsy investigation by the Medical Examiner for the
Eighth District of Florida lead to the conclusion that
Diaz was likely not properly anesthetized during the
execution.78 For over twenty minutes, Diaz was
blinking, moving around, gasping for air, grimacing,
struggling to breathe, trying to speak, and clenching
his jaw.79 Despite signs that the anesthetic was not
working, the execution team injected the second and
third drugs, and then administered the entire three
drug sequence a second time.80 An autopsy revealed
that Diaz had fluid-filled, one-foot long blisters on

81 Hr’g Tr. vol. IV at 164-66, Governor’s Commission on
Administration of Lethal Injection (Feb. 12, 2007) (testimony of
Dr. William Frank Hamilton).
82 Governor’s Commission on Administration of Lethal In-
jection, Final Report with Findings and Recommendations, at 8
(Mar. 1, 2007).
83 See, e.g., Adam Liptak, Trouble Finding Inmate’s Vein
Slows Lethal Injection in Ohio, N.Y. Times, May 3, 2006, at
A16.
84 Id.
85 Id.
both of his arms, indicating that the IV sites had
malfunctioned and did not properly deliver the drugs
into his veins.81 The Florida Supreme Court recently
acknowledged that “the execution of Diaz raised le-
gitimate concerns about the adequacy of Florida’s le-
thal injection procedures and the ability of the DOC
to implement them.” Lightbourne, 2007 WL
3196533, at * 16. As noted above, then-Governor Jeb
Bush’s commission on lethal injections concluded
that the prison employees assigned to the Diaz exe-
cution, the ones who had so much trouble injecting
the drugs into Diaz’ veins, were not properly trained
to do their jobs.82
The Ohio execution of Joseph Clark on May 2,
2006 was initially delayed for approximately twenty-
two minutes while a group of technicians searched
for a vein in which to insert an intravenous line.83
Four minutes after the execution team began admin-
istering the lethal chemicals, Clark lifted his head up
and said, “[i]t’s not working.”84 Prison officials then
determined that Clark’s vein collapsed.85 The para-
medics spent more than half an hour attempting to

86 Id.
87 Id.
88 Autopsy Report for Joseph Clark, Dr. L.J. Dragovic, Of-
fice of the Medical Examiner, Oakland County, Michigan (Aug.
15, 2006), at 2.
89 See, e.g., Aff. of Catherine Burton at 1, Patton v. Jones,
No. 06-591 (W.D. Okla. Feb. 19, 2004); Decl. of Patrick J. Ehlers
at 2, Patton v. Jones, No. 06-591 (W.D. Okla. Mar. 1, 2004).
90 Autopsy Report for Lloyd LaFevers, Dr. Larry Balding,
Office of the Chief Medical Examiner, Oklahoma City, Okla-
homa (Jan. 31, 2001).
91 Prelim. Inj. Tr. at 235, Patton v. Jones, No. 06-591 (W.D.
Okla. Aug. 8, 2006).
insert another IV.86 The execution continued and of-
ficials pronounced Clark dead nearly ninety minutes
after the execution commenced.87 An independent
autopsy examination later indicated a total of nine-
teen needle puncture wounds.88
After the thiopental injections began in the
Oklahoma execution of Lloyd LaFevers on January
30, 2001, several witnesses observed him raise his
head off the bed, breathe deeply, as if he were gasp-
ing for air.89 An autopsy performed the next day by
the State Medical Examiner found it likely that one
of LaFevers’ IVs had infiltrated during the execu-
tion.90 A federal judge in Oklahoma heard testimony
regarding LaFevers’ and noted that “something did
go awry and most regrettably so.”91
The State of California executed Stanley Wil-
liams on December 13, 2005. Morales, 415 F. Supp.
2d at 1045. A Registered Nurse on the execution
team, who was responsible for setting one of the
catheters in Williams’ arms, made two unsuccessful

92 Morales Undisputed Facts at 18.
93 Id.
94 Id.
95 Morales, 415 F. Supp. 2d at 1045 n.13.
96 Morales Undisputed Facts at 54.
attempts to set the catheter in the left arm, the
backup line.92 On the third attempt, it is likely that
Williams’ vein ruptured. The two medical personnel
thought the line was working when they left the
chamber, only to be told later that the IV line was
still not flowing, and had failed.93 Despite this fail-
ure, the Warden told the team to “proceed” and the
team did so, “without the IV line in the left arm
properly set or operating.”94 The difficulty setting
the IV created a risk that both IVs would be com-
promised and the drugs would not be successfully de-
livered. It also demonstrates that the individuals
selected for establishing IV access could not discern
whether the IV was properly placed. Indeed, logs of
Williams’ execution indicated physical signs incon-
sistent with deep anesthesia.95 The execution team
apparently failed to fully appreciate this risk: the
nurse who was unable to properly set the catheter in
Williams’ arm later testified that other execution
team members’ only response to the problem was
“sh-t does happen.”96
These are but a few examples of the ways in
which the “pervasive lack of professionalism” has led
to botched executions that are the direct, foreseeable
result of the inadequate attention paid to the inher-
ent risks of the three-drug protocol. The states, and
the Federal Government, have chosen a three-drug

lethal injection formula that is fraught with risk. If
they do nothing to ameliorate the risk, executions
will go awry. If they ignore the foreseeable – and
preventable – problems with the formula they have
chosen, they do so at their constitutional peril.
CONCLUSION
For the foregoing reasons, the judgment of the
Kentucky Supreme Court should be reversed.
Respectfully submitted,
NOVEMBER 13, 2007
ELISABETH SEMEL
TY ALPER*
JENNIFER MORENO
DEATH PENALTY CLINIC
UNIVERSITY OF CALIFORNIA,
BERKELEY SCHOOL OF LAW
Berkeley, California 94720
(510) 643-7849
* Counsel of Record

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The application for stay to USSC in Mark Schwab

The application for stay can be read here :



http://www.oranous.com/florida/MarkSchwab/App_for_Stay_1983.source.prod_affiliate.56.pdf
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Seven Fallacies Of Capital Punishment



As a society, the time has come to take a major stand against revenge and hatred. It is time to look at the other side of the card, the side filled with peace and respect. It 's time to rethink capital punishment, to recognize that our futures hinge on change and on recognition that life is more precious than death.

To reach such a destination, we might first ask what motivates us to allow America to stand as the only Western democracy to utilize death as a form of punishment. Bringing about another person 's violent end does nothing to solve our own problems. It does not resolve the issue of losing a loved one. It does nothing to heal the fabric of divine connectivity that is a part of each one of us. To learn to respect life as being more important than death, we might first want to reconsider seven fallacies that are used to support the death penalty.

1) There are no reasonable alternatives to death.

This is what prisons are built for. Not for non-violent drug offenders, but for convicted killers who can be sentenced to life imprisonment. This is what most states that have already abolished the death penalty do with their convicted killers. They maintain laws that allow life sentences for murder that either limit or eliminate the possibility of parole. Studies have shown that Americans support alternatives to capital punishment. When presented with the facts about crimes for which death is a possible sentence, most people choose life imprisonment without parole as a reasonable alternative to the death penalty. Prosecutors and juries have even gotten into the act by rejecting lethal injection in favor of life without parole. Since 2000, juries have decided against death in two out of every three sentencing trials.

2) Capital punishment deters crime.

There exists no credible proof that the death penalty is a more effective deterrent to potential criminals than other forms of punishment. There is no causal link between use of the death penalty and the murder rate. In fact, studies indicate just the opposite. During the last decade, states without the death penalty fared much better than states with the death penalty in reducing their murder rates. This resulted while the chasm between the murder rate in death penalty states and non-death penalty states grew larger. Since 1976, for example, when the death penalty was reinstated, the state of Texas has executed over 300 individuals, yet Texas appears no safer with regards to crime than any other state, including the thirteen states that do not have capital punishment.

The underlying statistics indicate that most who kill actually give little thought to the possible consequences of their actions. Most homicides result from heat of passion, alcohol or drug use, or were committed by mentally ill people, many of whom had sought treatment before the commission of their crimes but were denied long-term care. On the other hand, those who planned their killings generally intended to avoid punishment altogether. And in so doing, they gave no consideration whatsoever to ending up on death row as a result of their acts.

3) Death is necessary as just retribution for a victim 's family.

Bud Welch 's daughter, Julie Marie Welch, died in the Oklahoma City bombing. He grieved, as any parent losing a child would grieve, but he took no solace in seeking revenge against her killer. "The death penalty is about revenge and hate, and revenge and hate is why my daughter and those 167 other people are dead today."

Reconciliation means accepting that a family cannot undo the murder; but they can decide how they want to live their lives afterwards. A victim 's family 's definitions of justice and healing do not necessarily match those of the mass media or the court systems. To think that yet another person would die and another family would suffer is haunting to them. Another death would not equal justice, bring about closure, or promote healing. Many consider capital punishment a disservice to the victims and their families; that it victimizes and re-victimizes everyone involved in the process.

4) Murderers deserve death.

No one deserves to be a victim of state-sanctioned murder. A government that metes out vengeance veiled as justice becomes a complicit partner in killing and devaluing human dignity. We should reject the principle of doing to criminals what they're accused of doing to their victims. If the penalty for rape is not rape, and we don’t burn down an arsonist 's house, murder should not be punished by murdering the accused.

5) There is no arbitrariness or discrimination in death sentencing.

It is actually just the opposite. Poor people and people of color are far more likely to receive the death sentence than those who can afford the high costs of expert criminal lawyers, psychiatrists, and private investigators. Capital punishment is a privilege of the poor. Studies have proven racial disparities in the charging, sentencing, and imposition of the death penalty. Blacks, Hispanics, and other minorities' death sentences are wildly disproportionate to their percentages in the general population. According to Justice Department figures, nearly 80 percent of inmates on federal death row are minorities.

People who kill whites are far more likely to receive death than those whose victims were of color. Blacks convicted of killing whites have by far the greatest chance of receiving death. Despite accounting for twelve percent of the population, blacks make up 35% of those who have been executed for their crimes and 42% of all death row inmates.

6) Only the guilty are executed.

Hundreds of people in dozens of states have been released from death row due to their proven innocence. Others have been executed even though they were innocent. A major Stanford Law Review article documents hundreds of cases this century where it was later proven that the alleged killer had not committed the underlying offense. Dozens of those convicts were executed while others spent decades in prison. In nearly every case, the only reason the errors in prosecution and criminal investigation were unveiled was due to the work of third-party individuals and groups investigating the cases, not by the appeals process. A criminal justice system run by human beings cannot be made infallible. Executions of innocent persons will continue so long as the death penalty remains.

7) Executions do not violate human rights.

This simply misstates the truth. Capital punishment is cruel and inhumane and executions violate the convict 's right to be free from cruel and unusual punishment. Executions are not painless. The history of capital punishment is filled with examples of painfully botched executions that are terribly degrading.

Petty-thieves are no longer hanged from local street corners for public display for very good reasons. Capital punishment is immoral in principle, barbaric in nature, and uncivilized in practice. The death penalty assures that innocent people will die. It has no purpose and no constructive social impact, and it must be abolished as a way of bringing humanity and compassion back into the forefront of our society.


Michael Mehas is a writer and an attorney.
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Forgiveness

Forgiveness is having the courage to take down the walls that we think are there to protect us.

-Suztes40
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Thursday, 15 November 2007

The USSC order in Mark Schwab

http://www.oranous.com/florida/MarkSchwab/schwab-order-11-15-07.htm

http://www.oranous.com/florida/MarkSchwab/schwab-order-11-15-07.doc

(ORDER LIST: 552 U.S.)

THURSDAY, NOVEMBER 15, 2007

ORDER IN PENDING CASE

07A383 SCHWAB, MARK D. V. FLORIDA

The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is granted pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

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UPDATE: Florida execution put on hold


From the SCOTUS BLOG :


UPDATE: Florida execution put on hold

Thursday, November 15th, 2007 2:15 pm | Lyle Denniston | Comments (0) | Print This Post

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http://www.scotusblog.com/wp/uncategorized/florida-execution-uncertain/

UPDATE 2:15 P.M. The Supreme Court Thursday ordered a delay in the planned execution Thursday evening of Florida death row inmate Mark Dean Schwab. The order (found here) is keyed to the coming petition for review in Schwab’s case: if the Court agrees to hear it, the stay will remain in effect; if not, the stay will dissolve immediately, according to the order. Thus, the Court continued its pattern in cases involving challenges to the lethal injection method of execution of acting on each case separately, without any hint of a general plan to delay all executions by that procedure.

Schwab’s counsel had asked the Court to stay the execution pending action on the coming petition, or, as an alternative, pending a ruling by the Supreme Court on the lethal injection protocol (in Baze v. Rees, 07-5439). The Court chose the former option, thus not linking the case to its consideration of the constitutional issues in Baze.

Schwab’s attorneys have not yet filed their petition for certiorari in the case that came up from Florida state courts — the case in which the Justices granted a stay Thursday. In fact, if his lawyers took the time allotted to pursue an appeal, it would not even be due at the Court until the end of January, and thus the Court would not be likely to act on it until March or April, at the earliest. The Court may well be deep into its deliberations on the Baze case by then, perhaps raising the practical prospect that it would not even consider Schwab’s case until after Baze is decided.

* * * * * * * * * *

The fate of Florida death row inmate Mark Dean Schwab, scheduled to die by lethal injection at 6 p.m. Thursday, remained uncertain Thursday morning after the Eleventh Circuit Court lifted a federal judge’s order that would have delayed the procedure. In an 11-page opinion (download here), the Circuit Court said the judge’s stay order was “contrary to the unequivocal law of this circuit.”

The Circuit Court went on to say that, even though the Supreme Court is pondering constitutional questions about the lethal injection protocol that would be used to execute Schwab, he would not be likely to benefit from that ruling. That rationale was in addition to its conclusion that circuit precedent does not allow a stay of an execution just because the Supreme Court has agreed to rule on related issues in another case. (The Supreme Court will be ruling on lethal injection challenges in the case of Baze v. Rees, docket 07-5439), likely to be argued in January.)

The fact that the Circuit Court voted to allow the execution to proceed, however, may not be the last word. Schwab’s attorneys still have pending before the Supreme Court an application to stay the execution; that application (07A383) grows out of a case that came up through Florida state courts. Moreover, Schwab’s counsel still has the option of filing a new application to reimpose a stay in the federal case that the Eleventh Circuit ruled upon Thursday morning.

Further developments are expected later Thursday.

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Stay in USSC in Mark Schwab




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Florida Bishops Urge Stay of Execution


Say Better Option Exists for Punishing Offender

TALLAHASSEE, Florida, NOV. 14, 2007 (Zenit.org).- Bishops of the Florida Catholic Conference are urging the state's governor to stay the execution scheduled for Thursday of a man convicted of killing an 11-year-old boy.

In a statement published today, the bishops urged Governor Charlie Cist to halt the execution of Mark Dean Schwab, noting that more than a dozen stays of execution have been granted since the beginning of October.

"At this time, while the U.S. Supreme Court is considering the case of Baze v. Rees to determine whether the drug combination used in lethal injection executions is cruel and unusual punishment in violation of the Eighth Amendment, it seems both prudent and judicious for you to follow the example of another governor and many state and federal courts," the bishops wrote.

The prelates said they oppose the use of the death penalty, given "the option of life in prison without possibility of parole, that will punish the offender and keep society safe."

"Incarceration for life is a severe punishment, allows the possibility of conversion for the wrong doer, and gives us the opportunity to forgive their wrong doings," the bishops said. "Killing those who have harmed others only perpetuates the use of violence in society.

"We express our sincere sympathy to the family and loved ones of the victim […] Carrying out the death penalty for Mark Dean Schwab will not compensate for their loss and encourages vengeance rather than forgiveness."

Schwab, 38, was sentenced to death in 1992.

The bishops concluded by affirming "state-sanctioned killing coarsens us all."

"It is only when society cannot be protected in any other way that the death penalty is justified," they explained. "We urge you to lead Florida toward a standard of decency that calls us to turn away from killing as a solution for crime."
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Doctor Barred by Missouri Helps in Federal Executions


Thursday, November 15, 2007

Doctor Barred by Missouri Helps in Federal Executions

http://standdown.typepad.com/weblog/2007/11/doctor-barred-b.html

That's the title of a report by Henry Weinstein in today's Los Angeles Times. LINK

A doctor who was barred from taking part in executions in Missouri because of concerns his dyslexia would interfere with his ability to administer lethal injections is helping the federal government carry out death sentences in Indiana, according to court documents.

The physician has been the target of more than 20 malpractice suits, was barred from practicing at two hospitals and was publicly reprimanded by a state agency for failing to disclose those suits to a hospital where he treated patients, according to the St. Louis Post-Dispatch. The newspaper identified the doctor as Alan R. Doerhoff of Jefferson City, Mo.

Last year, U.S. District Judge Fernando J. Gaitan Jr. of Kansas City, Mo., banned Doerhoff from participating "in any manner, at any level" in lethal injections in Missouri.

The judge said earlier he was "gravely concerned" that the doctor responsible for "mixing the drugs which will be responsible for humanely ending the life of condemned inmates, has a condition [dyslexia] which causes him confusion with regard to numbers."

Federal officials, however, have made Doerhoff part of the execution team at the federal prison in Terre Haute, Ind., according to court papers filed on behalf of several inmates there. All condemned federal prisoners are executed at that prison.

Among those executed there was Oklahoma City bomber Timothy J. McVeigh.

Doerhoff's role is to place intravenous lines in condemned inmates, monitor their levels of consciousness and sign death certificates, according to the papers.

Doerhoff did not respond to requests for comment, and Justice Department spokesman Erik Ablin declined to comment.

And:

"The federal government chose to rely upon the only person in the country who has been explicitly barred by a federal court from participating in lethal injection executions," said the brief, written under the supervision of Tyler L. Alper, associate director of the death penalty clinic.

Fordham University law professor Deborah Denno, an expert on capital punishment methods who is closely following the challenges to lethal injection, said that Gaitan, an appointee of President Reagan, issued his order after "a thorough and detailed examination of Dr. Doerhoff's shocking lack of knowledge of the basic tenets of the drugs and procedures involved in a lethal injection execution, Dr. Doerhoff's admitted challenges with dyslexia that affected his ability to mix and measure the drugs, as well as his record of more than 20 malpractice suits and revoked privileges at two hospitals."

Denno said the revelations about Doerhoff illustrated "the need for transparency in the identity of executioners" so that their records could be scrutinized.

Earlier coverage of Lethal Injection issues in Missouri, including information about Dr. Doerhoff, is linked here.

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11 circuit order in Schwab - stay vacated


http://www.oranous.com/florida/MarkSchwab/11circuitstayvacate.htm

http://www.oranous.com/florida/MarkSchwab/200715329.pdf

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 15, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 07-15329

D.C. Docket No. 07-01798-CV-ACC-KRS

MARK DEAN SCHWAB,

Plaintiff-Appellee,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

OTHER UNKNOWN EMPLOYEES AND AGENTS,

Florida Department of Corrections,

Defendants-Appellants.

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

Appeal from the United States District Court

for the Middle District of Florida

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

(November 15, 2007)

Before DUBINA, CARNES, and HULL, Circuit Judges.

PER CURIAM:

We have before us a motion filed by the State of Florida, through the

Secretary of its Department of Corrections, asking that we vacate a stay of

1 On July 18, 2007, the Governor of Florida signed an execution warrant setting

November 15, 2007 as the execution date. Schwab did not file his § 1983 lawsuit until 4:58 p.m.

on November 13, 2007.

2

execution the district court entered early yesterday afternoon on behalf of Mark

Dean Schwab. That court entered the stay in response to Schwab’s emergency

motion for one in connection with his last-minute filing of a 42 U.S.C. § 1983

lawsuit challenging the manner in which the state’s lethal injection procedures are

designed and carried out.1 The district court made it clear that the Supreme

Court’s grant of certiorari in Baze v. Rees, 128 S. Ct. 34, amended, 128 S. Ct. 372

(2007), was the only reason it entered the stay. Schwab v. McDonough, No.

6:07cv1798, at 5 (M.D. Fla. Nov. 14, 2007) (“Simply put, the Court would not

issue this stay absent the Supreme Court’s grant of certiorari in Baze.”).

The district court’s action in granting the stay is contrary to the unequivocal

law of this circuit that because grants of certiorari do not themselves change the

law, they must not be used by courts of this circuit as a basis for granting a stay of

execution that would otherwise be denied. Rutherford v. Crosby, 438 F.3d 1087,

1093 (11th Cir.) (“At least four times over the years we have been asked to issue a

stay of execution based on a grant of certiorari in another case raising an issue

identical to one that the movant was raising in the case before us, an issue

foreclosed by existing circuit precedent that might be overruled by the Supreme

3

Court. All four times we have declined to do so because the grant of certiorari

does not change circuit precedent, and it makes more sense to let the Court that is

going to be deciding the issue determine whether there should be a stay in another

case raising it.”), stay granted, 546 U.S. 1159, 126 S. Ct. 1191, opinion vacated

sub nom., Rutherford v. McDonough, 126 S. Ct. 2915, reinstated in part, 466 F.3d

970 (11th Cir.), cert. denied, 127 S. Ct. 465 (2006); Robinson v. Crosby, 358 F.3d

1281, 1284 (11th Cir.) (declining to grant a stay pending the Supreme Court’s

decision in another case because “the grant of certiorari alone is not enough to

change the law of this circuit or to justify this Court in granting a stay of execution

on the possibility that the Supreme Court may overturn circuit law”), abrogated on

other grounds by Hill v. McDonough, 126 S. Ct. 2096 (2006); Thomas v.

Wainwright, 788 F.2d 684, 689 (11th Cir. 1986) (denying a stay even though

certiorari had been granted in another case on the same issue, because “[t]o date,

the law in this Circuit, which has not been modified by Supreme Court decision,

mandates a denial of relief to petitioner on this issue,” and “any implications to be

drawn [from the grant of certiorari in the other case] may be discerned by

application to the Supreme Court” (internal marks and citations omitted) (quoting

Jones v. Smith, 786 F.2d 1011, 1012 (11th Cir. 1986)); see also Ritter v. Thigpen,

828 F.2d 662, 665–66 (11th Cir. 1985) (“A grant of certiorari does not constitute

2 The recent decision in Siebert v. Allen, ___ F.3d ___, 2007 WL 3244633 (11th Cir.

Nov. 5, 2007), does not suggest to the contrary. In that case we reversed the denial of a

preliminary injunction on that inmate’s as applied challenge to Alabama’s lethal injection

procedures based on facts that were unique to him, but not because certiorari had been granted in

the Baze case. Id. at *2–3. Indeed, we affirmed on grounds of laches the denial of a preliminary

injunction insofar as Seibert’s general challenge to Alabama’s three-drug protocol was

concerned. Id. at *2 n.3.

4

new law.”); Bowden v. Kemp, 774 F.2d 1494, 1495 (11th Cir. 1985) (holding that

a grant of certiorari is not authority to the contrary of binding circuit precedent).2

The district court’s belief that “the fact that the Supreme Court has elected

to grant review in [the Baze] case suggests that [Schwab] faces the prospect of a

significant possibility of success on the merits of his claims,” Schwab, No.

6:07cv1798, at 6, is simply wrong. The grant of certiorari on an issue does not

suggest a view on the merits. We don’t know how the Supreme Court is going to

decide the issues on which it has granted review in the Baze case, and the Supreme

Court itself probably does not know given the fact that briefing has not even been

completed in that case.

Even if we were permitted to sweep aside binding circuit law based on our

speculation about what the Supreme Court may decide in another case and our

conjecture about how that decision might affect the case in front of us, we have no

reason to believe that the Baze decision will enhance Schwab’s prospects for relief

in this case. In his state court proceeding raising the same issues as he raises here,

5

Schwab relied entirely on the evidence introduced in the related Lightbourne v.

McCollum, ___ So. 2d ___, 2007 WL 3196533 (Fla. Nov. 1, 2007), case. Schwab

v. State, ___ So. 2d ___, 2007 WL 3196523, at *2 (Fla. Nov. 1, 2007) (noting that

the parties stipulated that the Lightbourne hearing testimony may be judicially

noticed in the case, and “this Court considered all of the evidence presented in

Lightbourne when reviewing the Eighth Amendment challenge presented here”);

id. at *4 (noting that “Schwab does not assert that he would have presented any

additional testimony or other evidence regarding pancuronium bromide than that

presented in Lightbourne,” that “Schwab does not allege that he has additional

experts who would give different views as to the three-drug protocol,” and that

“Schwab relies on no new evidence as to the chemicals employed since this

Court’s previous rulings rejected this very challenge”). Schwab has not suggested

in this § 1983 proceeding that he has any additional evidence, and he has not

requested an evidentiary hearing. The merits of his Eighth Amendment claim rises

or falls on the basis of the evidence submitted in the Lightbourne case.

The first issue the Supreme Court granted certiorari to decide in the Baze

case is whether the proper standard for judging this type of Eighth Amendment

claim was substantial risk of wanton infliction of pain, as the Kentucky Supreme

Court held, or unnecessary risk of pain, which is the standard Baze is urging.

6

Baze, 128 S. Ct. at 372; Petition for Writ of Certiorari at ii, Baze v. Rees, No.

07-5439 (U.S. Jul. 11, 2007). After carefully considering the evidence on which

Schwab bases his claim—the Lightbourne evidence—the Florida Supreme Court

held that regardless of which standard the Supreme Court chooses in the Baze

case, the result will be the same insofar as the Florida procedures, protocols, and

drugs are concerned. Lightbourne, 2007 WL 3196533, at *23. The evidence that

Lightbourne and Schwab rely on does not show that those procedures, protocols,

and drugs pose an unnecessary risk of pain. Id.

The second issue the Supreme Court granted certiorari to decide in the Baze

case is whether a means for carrying out an execution violates the Eighth

Amendment if there are readily available alternatives that pose less risk of pain

and suffering. Baze, 128 S. Ct. at 372; Petition for Writ of Certiorari at ii, Baze,

No. 07-5439. The third issue is whether the continued use of the three

drugs—sodium thiopental, pancuronium bromide, and potassium

chloride—individually or together, violate the Eighth Amendment. Baze, 128 S.

Ct. at 372; Petition for Writ of Certiorari at iii, Baze, No. 07-5439. It appears that

the decision of those issues also will not affect the merits of Schwab’s claim in

view of the evidence that he relies on. See Schwab, 2007 WL 3196523, at *4

(“[T]he toxicology and anesthesiology experts who testified in Lightbourne agreed

7

that if the sodium pentothal is successfully administered as specified in the

protocol, the inmate will not be aware of any of the effects of the pancuronium

bromide and thus will not suffer any pain. Moreover, the protocol has been

amended since Diaz’s execution so that the warden will ensure that the inmate is

unconscious before the pancuronium bromide and the potassium chloride are

injected. Schwab does not allege that he has additional experts who would give

different views as to the three-drug protocol.”); accord Lightbourne, 2007 WL

3196533, at *23 (“As stressed repeatedly above, it is undisputed that there is no

risk of pain if the inmate is unconscious before the second and third drugs are

administered. After Diaz’s execution, the DOC added additional safeguards into

the protocol to ensure the inmate will be unconscious before the execution

proceeds. In light of these additional safeguards and the amount of sodium

pentothal used, which is a lethal dose in itself, we conclude that Lightbourne has

not shown a substantial, foreseeable or unnecessary risk of pain . . . .”) (footnote

omitted).

There is another reason that the decision in Baze is unlikely to increase

Schwab’s likelihood for success. Florida’s statute providing lethal injection as an

alternative to electrocution was enacted more than seven and a half years ago.

Schwab’s petition for a federal writ of habeas corpus was denied two years ago,

8

and we affirmed that denial seventeen months ago. Four months ago the Governor

signed a warrant setting Schwab’s execution date for November 15, 2007. Yet

Schwab did not file his § 1983 petition challenging Florida’s lethal injection

procedures until 4:58 p.m. on November 13, 2007, just two days before his

scheduled execution.

As the district court noted: “Turning to the subject of Plaintiff’s diligence,

certainly an argument can be made that he delayed too long in bringing this suit.

Ordinarily, that consideration alone might warrant denial of a stay.” Schwab, No.

6:07cv1798, at 6. That observation understates the law of this circuit concerning

the extent to which laches-like considerations may bar relief in this type of case.

See Williams v. Allen, 496 F.3d 1210, 1215 (11th Cir.), cert. dismissed, 128 S. Ct.

370 (2007); Grayson v. Allen, 491 F.3d 1318, 1322 (11th Cir.), cert. denied, 128

S. Ct. 6 (2007); Jones v. Allen, 485 F.3d 635, 639–40 (11th Cir.), cert. denied, 127

S. Ct. 2160 (2007); Rutherford, 466 F.3d at 973–74; see also Hill, 126 S. Ct. at

2104 (“A court considering a stay must also apply ‘a strong equitable presumption

against the grant of a stay where a claim could have been brought at such a time as

to allow consideration of the merits without requiring a stay.’” (citation omitted));

Nelson v. Campbell, 541 U.S. 637, 649–50, 124 S. Ct. 2117, 2126 (2004)

(“[B]efore granting a stay, a district court must consider not only the likelihood of

9

success on the merits and the relative harms to the parties, but also the extent to

which the inmate has delayed unnecessarily in bringing his claim.”). Under our

precedent, Schwab’s delay in bringing his § 1983 lawsuit mandates denial of a

stay on laches grounds. Laches is not an issue in the Baze case.

The district court pointed out two cases involving lethal injection challenges

in which the Supreme Court has granted stays of execution since its grant of

certiorari in the Baze case. Berry v. Epps, No. 07-7348, 2007 WL 3156229, at *1

(U.S. Oct. 30, 2007); Emmett v. Johnson, No. 07A304, 2007 WL 3018923, at *1

(U.S. Oct. 17, 2007). Orders granting stays are not precedential decisions. Like

most other judicial orders of one or two sentences, they do not extend beyond the

case in which they are entered. They don’t have to. The Supreme Court knows

why it granted stays in the Berry and Emmett cases, and it is fully capable of

granting one in this case if it chooses to do so. While we labor to follow high

court decisions faithfully, it is not our role to preempt Supreme Court action on

motions requesting stays pending decisions that Court will make in the future. As

we explained in the Rutherford case, “the Supreme Court is in a better position to

decide whether it wants a stay of execution issued in this case than we are, and it

has time to make a decision about a stay,” because all of the papers we have before

us have been lodged contemporaneously with that Court. Rutherford, 438 F.3d at

10

1093.

The Supreme Court instructed us in Nelson that even in a capital case a stay

is an equitable remedy which must take into account the State’s strong interest in

proceeding with its judgment, that consideration must be given not only to the

likelihood of success on the merits but also to the extent to which the inmate has

delayed unnecessarily in bringing his claim. 541 U.S. at 649–50, 124 S. Ct. at

2126. And “there is a strong equitable presumption against the grant of a stay

where a claim could have been brought at such a time as to allow consideration of

the merits without requiring entry of a stay.” Id. at 650, 124 S. Ct. at 2126. The

Supreme Court reiterated that instruction in Hill, reminding us that a stay of

execution “is not available as a matter of right, and equity must be sensitive to the

State’s strong interest in enforcing its criminal judgments without undue

interference from the federal courts.” 126 S. Ct. at 2104; accord Thompson v.

Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983) (“Each delay, for its span, is a

commutation of a death sentence to one of imprisonment.”).

In this case, for the reasons the Florida Supreme Court explained in the

Lightbourne case, Schwab does not have a substantial likelihood of success on the

merits of his claim. The interest of the State of Florida and the victim’s family in

seeing that Schwab’s sentence is carried out without further delay is substantial,

11

and he did delay unnecessarily in bringing his claim, which is why this order is

being issued on the morning of the day of the scheduled execution.

The district court’s order staying the execution is VACATED.

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Response to stay application filed in USSC in Schwab

No. 07A383
Title:
Mark Dean Schwab, Applicant
v.
Florida
Docketed:
Lower Ct: Supreme Court of Florida
Case Nos.: (07-1603)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 9 2007 Application (07A383) for stay of execution of sentence of death, submitted to Justice Thomas.
Nov 14 2007 Response to application from respondent Florida filed.


~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:

Mark S. Gruber 3801 Corporex Park Drive (813) 740-3544

 Suite 210

Tampa, FL 33619-1136
Party name: Mark Dean Schwab
Attorneys for Respondent:

Kenneth S. Nunnelley Senior Assistant Attorney General (386) 238-4990

 444 Seabreeze Blvd.

Suite 500

Daytona Beach, FL 32118
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