Nashville Judge Stops Execution

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Nashville Judge Stops Execution

by Jeff Woods

A federal judge has just blocked next week's execution of Jerome Harbison. District Judge Aleta Trauger ruled that Tennessee's lethal injection procedures violate the Eighth Amendment's prohibition against cruel and unusual punishment by presenting "a substantial risk of unnecessary pain."

A federal judge has just blocked next week's execution of Jerome Harbison. District Judge Aleta Trauger ruled that Tennessee's lethal injection procedures violate the Eighth Amendment's prohibition against cruel and unusual punishment by presenting "a substantial risk of unnecessary pain."

At the same time, Trauger denounced state Correction Commissioner George Little for rejecting the recommendations of a committee that studied execution procedures this year. The committee, conducting a review that Gov. Phil Bredesen ordered, offered recommendations to safeguard against botched executions. But Trauger said Little "was deliberately indifferent to [Harbison's] excessive risk of pain."

This article in this week's Scene details testimony in this month's hearing before Trauger on lethal injection.

The state Attorney General will almost certainly appeal Trauger's decision to the 6th U.S. Circuit Court of Appeals.



www.nashvill escene.com/ Stories/News/ 2007/09/20/ Executing_ Justice/index. shmtl

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Thursday, September 19, 2007

Executing Justice- State officials show 'a certain hubris' toward execution protocols, medical expert testifies

Nashville Scene by Jeff Woods

During four days of testimony this month, lawyers successfully painted Gov. Phil Bredesen's much-vaunted review of lethal injection procedures this year as a sham whose basic purpose was, not to ensure that executions are humane, but to help the state survive court challenges. To avoid any possible legal
hiccups in the execution schedule, higher-ups vetoed the review committee's main proposal, according to the court testimony.

The federal court hearing was filled with absurdities that would be laughable were the consequences not so serious.

The state's own expert witness, Dr. Mark Dershwitz of the University of Massachusetts Medical School, agreed there's "something amiss" if an execution takes more than nine minutes. But on May 9, only nine days after what were supposed to be new and improved lethal injection procedures were put into
place, it took 17 minutes for the state to execute Philip Workman.

"It was remarkable to me when I read about it," Dershwitz told the court, going on to suggest that perhaps the time of Workman's death was inaccurately recorded.

Incredibly, the state has yet to test fluid samples from Workman's body to show whether he was properly sedated before a searing, heart-stopping drug went into his veins. Dr. Bruce Levy, the Davidson County medical examiner, testified that he sent the samples to one laboratory, which decided it wasn't
capable of testing them and so sent them to another lab.

But a federal public defender said he contacted that lab and there was no record of any such samples. "I would have no explanation for that," Levy testified. Levy now tells the Scene that he has confirmed the location of the fluid but still doesn't have the test results.

The testimony comes at a crucial time. Even with Bredesen commuting a death sentence last week for the first time since taking office, Tennessee is on a pace of executions almost like Texas. There have been three in the last 15 months, including one last week, and two more are possible before the end of
the year--that is, unless federal Judge Aleta Trauger intervenes by ruling that the state's lethal injection methods are unconstitutional.

The case before Trauger, whose decision could come at any time, was brought by lawyers for Jerome Harbison, who is scheduled to die on Sept. 26 for the 1982 bludgeoning death of 62-year-old Edith Russell in Chattanooga. Citing botched executions, Harbison's lawyers argue that lethal injection procedures are so slipshod and fraught with opportunities for error that prisoners are at significant risk of suffering excruciating pain before death.

The fact that medical authorities are ethically barred from participating only compounds the potential for bungling.

Executioners testified that they are basically untrained and sometimes guess at how to mix drug dosages correctly. A paramedic who's paid $250 to insert a catheter into the prisoner admitted having been under treatment in the past for drug abuse and depression and had been twice convicted of drug offenses.

No one checked his background before he was hired. "And you are not concerned that this person might show up impaired in any way or on some kind of prescription medication that could affect their alertness during an execution?" Trauger asked prison warden Ricky Bell.

"I've observed him," Bell answered nonchalantly. "And I've not seen anything that appeared to be out of the ordinary."

In his testimony, Dr. David Lubarsky, chairman of the Department of Anesthesiology at the University of Miami School of Medicine, gave a blistering critique of the state's new lethal injection procedures, saying they are unlikely to result in humane deaths. He also castigated state officials for showing "a certain hubris" by ignoring the lessons from executions that went awry in other states.

"...I'm just shocked that this continues," Lubarsky said, noting that veterinarians euthanize animals in a more humane manner.

Once viewed as a benign procedure in which the inmate lies on a gurney and drifts away to sleep, lethal injection is confronting legal challenges in virtually every state with the death penalty because of horror stories from U.S. execution chambers.

In Tennessee and 26 other states, a series of three chemicals is used--a barbiturate to make the inmate unconscious, a paralyzing
agent to prevent seizures and involuntary gasps of pain, and finally a poison used in road salt to stop the prisoner's heart. It's all pumped from syringes into the prisoner's veins through a maze of tubes, assuming there are no unforeseen kinks or blockages.

In his 2000 Tennessee execution, Robert Glen Coe probably didn't receive enough barbiturate and felt the intense pain of the poison, according to Lubarsky's review of his autopsy records. But because the second drug in the process had paralyzed Coe, he was suffocating silently as the poison took effect--and no one could tell he was suffering.

That's the sole purpose of the paralyzing agent, in fact: to stop the inmate from upsetting witnesses by showing his pain. It has no effect on the inmate's awareness, cognition or sensation.

In California, at least six prisoners are believed to have been still
conscious as they died. In Florida, Angel Diaz suffered foot-long burns because lethal chemicals mistakenly flowed not into his veins but into the soft tissue in his arms. It took 14 syringes of chemicals and 34 minutes for Diaz to die, during which he tried to mouth words, struggled for breath and grimaced. In Ohio, Joseph Lewis Clark raised his hand during his own execution to say, "It don't work."

At one time, at least a dozen states declared execution moratoriums because of these problems, but Tennessee has resisted making changes. In response to Harbison's lawsuit, Bredesen did temporarily stop executions in February for a 90-day review of procedures. But, as it turned out, about all the Tennessee Department of Correction apparently intended to do was fix typos and other such errors in the execution manual.

The review committee favored giving the condemned prisoner only one drug--an overdose of the barbiturate. But according to testimony during Trauger's hearing, Correction Commissioner George Little decided that such a significant, if entirely sensible, change might result in new court reviews and delay pending executions.

It "opened up a fair number of unknowns," he testified. He insisted that was not his only reason, but he admitted that he reversed the committee. He never gave another plausible explanation for it.

Another perfectly reasonable idea--to have someone on the execution team check whether the inmate is adequately sedated before his death--also was rejected as unnecessary.

At the time, Little discussed his decision with the governor's legal counsel, Steve Elkins, whose handwritten notes of their phone conversation were presented as evidence. In his notes, Elkins scrawled "political considerations." Asked by Trauger to explain, Elkins at first was evasive. "I would be speculating as to what I meant," he said.

"Well, speculate. They're your notes," the judge instructed Elkins.

Elkins then testified that Little was worried that political problems might arise because the state was basically accomplishing nothing with its review of execution procedures. There apparently was no mention of any concern that Tennessee might botch executions.

"They just don't care," one lawyer representing death row inmates says of the governor and state officials. "They want to get these executions done. The drugs they are using are just as bad as if you were injecting the inmate with Clorox. Why not just inject the inmate with some Drano?"

Last week Bredesen may have blunted the impression that he's uncaring by commuting to life without parole the sentence of Michael Joe Boyd, who was scheduled to be executed on Oct. 24. The governor concluded that Boyd, now known as Mika'eel Abdullah Abdus-Samad, received "grossly inadequate" legal representation. He was convicted of killing a man in Memphis during a 1986 robbery.

But Bredesen is a strong supporter of the death penalty. Last week, he allowed Tennessee's first execution by electric chair since 1960. State law allows anyone sentenced to death before 1999 to choose between electrocution and lethal injection. If the governor thinks electrocution is acceptable, that may explain why he's been unmoved by arguments against lethal injection. It's up
to Judge Trauger, ironically a political ally and close friend of Bredesen's, to force changes.