Lawsuit claims state's rules a 'hodgepodge'
By SEAN O'SULLIVAN, The News Journal
Posted Sunday, June 3, 2007
WILMINGTON -- No one knows the exact procedure for executing inmates in Delaware -- not even the people who carry them out, according to attorneys representing all of Delaware's death row inmates in a federal civil lawsuit.
In a motion filed this week, the attorneys told a judge that after speaking to the previous and current head of the Department of Correction, the warden at Smyrna and the people who have actually carried out executions, there appears to be no oversight, consistency or "quality control."
Department of Correction spokesman John R. Painter said the department does not comment on ongoing litigation.
The lawsuit, which has held up all executions in Delaware for more than a year, charges that Delaware's use of the death penalty violates the Constitution's ban on cruel and unusual punishment.
Former state and federal prosecutor Ferris Wharton, who supports the death penalty, said it is difficult to know how much weight to give the court filing without having read the depositions.
"They are obviously advocates for a cause," he said.
The latest revelations came in a motion by the plaintiffs to push back the bench trial on the case set for Sept. 4.
State officials have responded to the motion, opposing any additional delay and largely ignoring the plaintiff's charges about execution procedures.
"A motion to amend a scheduling order is not an appropriate place to engage in characterization of the evidence thus far produced in discovery," state attorneys wrote.
"Delaware's system for carrying out executions is a hodgepodge of practices," wrote attorney Michael Wiseman of the Federal Community Defender's office in Philadelphia, in the plaintiff's motion. "No one person thus far deposed seems to know ... who is ultimately responsible for conducting them; the role of the physician or even matters as seemingly mundane as the order for mixing of the lethal drugs. ... Without rhyme or reason, the amounts of lethal drugs injected differ from execution to execution, and there is an over-arching lack of awareness of this troubling fact. There is no 'quality assurance' or post-execution debriefings of those involved to identify the cause of problems, even when such problems have been identified."
Delaware's last execution -- Brian Steckel on Nov. 4, 2005 -- took nearly 12 minutes, apparently because the injection system or the mix of lethal drugs did not work correctly. Typically, an inmate dies almost immediately.
At one point Steckel looked to one of his executioners to say, "I didn't think it would take this long." And when the lethal drugs finally took hold, Steckel did not quietly fall asleep, but convulsed and he let out a loud snort. DOC officials denied that anything had gone wrong.
All executions in Delaware have been on hold since the case was filed more than a year ago to stop the execution of Robert W. Jackson, who was convicted of murdering 47-year-old Elizabeth Girardi with an ax in 1992 during a robbery.
Earlier this year, District Judge Sue L. Robinson changed the case to a class action lawsuit, including the 15 other people on Delaware's death row.
The suit is similar to a number of other lawsuits around the nation that have raised constitutional questions about lethal injections.
In last week's court filing, attorneys also highlighted problems with how Delaware administers the lethal drugs during executions. Records state that, according to depositions, lights in the area where the drugs are mixed and administered "are turned off for all or most of the execution" and that the way Delaware administers the drugs does not comply with state standards for administering anesthesia.
Execution foe talks of 'paradox'
Dr. Jonathan I. Groner, an Ohio pediatric surgeon and death penalty opponent who lectures on the topic, said he was not surprised by what attorneys have discovered.
Groner said the questions about procedure and responsibility are common in many states. He compared it to the practice used by firing squads where one of the shooters is given a blank cartridge so no one knows who actually fired the lethal shot.
Groner said killing is "fundamentally immoral and it is easier to commit an immoral act with this diffusion of responsibility." Many share a tiny chunk, he said, but no one person carries blame.
As for the darkened room where drugs are mixed and administered, Groner said the same thing was going on in California. In that case, Groner said the lights were dimmed so that the people observing the execution could not see the faces of those carrying it out.
"It makes no sense," he said. "It is a medical charade. Who, in a real health care setting, would inject a drug in the dark? Who, in a real health care setting, would inject a drug where they are in one room and the patient is in another?"
In his talks against the death penalty, Groner calls the situation the "Hippocratic paradox": Prisons need the expertise of medical personnel to carry out executions in a humane and professional manner. But medical professionals are morally and ethically prohibited from being involved in a procedure that is designed to kill.
Wharton, the former prosecutor, sees it another way.
"I think there needs to be some appreciation that what we are talking about is executing someone and that necessarily will not be a completely pain-free process," he said. "In all the years I was there [in the Delaware Attorney General's Office] I never heard there was any chaos associated with carrying out lethal injections."
Contact Sean O'Sullivan at 324-2777 or firstname.lastname@example.org.