Corrections bosses ignore new monitor in executions

The device reports on a prisoner's level of consciousness.

By MEG LAUGHLIN, Times Staff Writer
Published September 14, 2007

http://www.sptimes.com:80/2007/09/14/State/Corrections_bosses_ig.shtml

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The Department of Corrections rejected advice by its own legal staff to use a machine that would determine if an inmate was fully unconscious during his execution.

On Aug. 15, 2006, assistant general counsel Sara Dyehouse wrote her boss about legal challenges that were delaying executions around the country. Death row inmates were alleging that the administration of the fatal chemicals "may cause 'unnecessary and wanton infliction of pain' if the sodium pentothal anesthesia has failed to produce a sufficient level of unconsciousness."

Dyehouse said some courts were requiring an anesthesiologist at the execution to monitor the level of consciousness. However, because anesthesiologists have refused on ethical grounds to participate, the executions could not proceed.

To avoid a "similar situation," Dyehouse suggested that executioners use a "bispectral index monitor," which monitors brain waves to detect consciousness.

The next day, the department approved a protocol for lethal injection that did not incorporate Dyehouse's advice.

Four months later, then-Gov. Jeb Bush stopped executions in Florida after questions arose about whether inmate Angel Diaz was conscious during minutes it took to kill him.

"Had the bispectral monitor been used, the state could have avoided all the problems with the Diaz execution," said South Florida lawyer Martin McClain, who handles capital cases.

The Dyehouse memo first came to the attention of attorneys handling capital cases when it appeared in the case of death row inmate Ian Deco Lightbourne, who challenged the constitutionality of lethal injection after the Diaz execution.

Attorneys for the state called the memo's appearance in the Lightbourne case "an accident" on their part, and asked that all copies be returned to them and the memo be sealed.

Ocala Judge Carven Angel granted the state's wish and refused to consider the memo in the Lightbourne case, but said at a hearing that it "certainly appeared to be relevant."

Before Angel recalled the memo, McClain had seen it and submitted it in two other death row appeals in Polk County and Pinellas County.

Monday, Polk County Circuit Court Judge Harvey Kornstein refused to seal the memo, but he also refused to grant a new evidentiary hearing.

"The fact that the Department of Corrections did not incorporate the use of the BIS monitor does not render the lethal injection procedures used by the Department of Corrections constitutionally infirm," he wrote.

Pinellas Circuit Court Judge Mark Shames will consider the protocol next in the appeal of death row inmate Derrick Smith, convicted of shooting a St. Petersburg cabdriver in 1983.

Corrections Department spokeswoman Gretl Plessinger said the "department did exhaustive research" and believes the lethal injection protocol it put into effect July 31 is a more acceptable method than the monitor.

This new protocol requires a warden from another prison to attend the execution and check the consciousness of the inmate. "The warden will call out the name of the inmate, shake him and touch his eyelids, looking for reflexes," she said.

Meg Laughlin can be reached at mlaughlin@sptimes.com or (727)893-8068.

[Last modified September 13, 2007, 23:37:14]