History > 2006 > USA > Death penalty (II)

This undated photo shows Elijah Page as a teenager.
Page, 24, of Athens, Texas, is scheduled to die by lethal injection this week
for the brutal slaying of 19-year-old Chester Allan Poage,
near Spearfish, S.D., six years ago.

Family photo via Rapid City Journal/AP

 S.D. governor halts execution of killer        UT        29.8.2006
http://www.usatoday.com/news/nation/2006-08-29-sd-execution_x.htm

 

S.D. governor halts execution of killer

Posted 8/29/2006 7:20 PM ET
AP
USA Today

SIOUX FALLS, S.D. (AP) — Gov. Mike Rounds on Tuesday halted the execution of the state's first prison inmate in 59 years just hours before it was scheduled.

Elijah Page, 24, had waived his appeals and asked to be executed for the torture slaying of a Spearfish man six years ago.

A spokesman for the governor had said earlier that Rounds had no plans to intercede. But Tuesday afternoon Rounds delayed the execution and said he would talk about his decision at a news conference later in the day.

Page rejected pleas from friends and death penalty opponents that he reconsider as his execution drew near.

The last execution in South Dakota was in 1947, when George Sitts died in the electric chair for killing two law enforcement officers.

Earlier this year, Page persuaded a judge to let him fire his lawyer and face the executioner for his role in the 2000 slaying of Chester Allan Poage, 19.

Page and two other young men killed Poage in Higgins Gulch in the Black Hills so that there would be no witness to the theft of a Chevy Blazer, stereo, television, coin collection, video game and other items from the victim's home.

As Poage begged for his life, the three men made him take off most of his clothes and forced him into an icy creek. His killers stabbed him repeatedly, kicked him in the head 30 to 40 times, tearing his ears off, then bashed him with large rocks. He was also forced to drink hydrochloric acid. The torture lasted at least two hours.

Page and Briley Piper, 25, pleaded guilty and a judge sentenced them to die. Darrell Hoadley, 26, was convicted, and a divided jury sentenced him to life in prison with no parole.

Page's case was considered unusual because a judge, not a jury, imposed the death sentence, because he asked to die, and because of his age. Death penalty groups said only seven people younger than 25 had been executed in the United States since the U.S. Supreme Court allowed capital punishment to resume in 1976.

Amnesty International USA urged Gov. Mike Rounds to grant Page clemency.

"Elijah Page's case clearly demonstrates that our capital punishment system is a lottery of death," said the group's executive director, Larry Cox, noting that one of Page's co-defendants was sentenced to life in prison.

    S.D. governor halts execution of killer, UT, 29.8.2006, http://www.usatoday.com/news/nation/2006-08-29-sd-execution_x.htm

Missouri execution doctor has troubled past: paper

Sun Jul 30, 2006 1:35 PM ET
Reuters

KANSAS CITY, Missouri (Reuters) - A doctor who oversaw dozens of Missouri executions until his questionable practices led a judge to suspend executions in the state, has been sued for malpractice more than 20 times and has a history of making medical mistakes, the St. Louis Post-Dispatch reported on Sunday.

Alan R. Doerhoff, 62, also has been banned from at least two Missouri hospitals and was publicly reprimanded by the state's Board of Healing Arts in 2003 because Doerhoff was trying to conceal malpractice claims from hospitals where he was working, the newspaper reported.

The state Attorney General's Office was aware of the reprimand, but the state Department of Corrections continued to employ Doerhoff to handle lethal injections, the Post-Dispatch reported.

Indeed, the state tried to keep his identity a secret in an appeal earlier this year by inmate Michael A. Taylor, who claimed the heart-stopping drug given in lethal injections can cause excruciating pain if the inmate is not given proper levels of anesthesia first.

Lawyers reviewing execution logs found that the anesthesia Doerhoff had prepared for Taylor's execution before it was stayed in February was only half the amount it should have been, and records of previous executions indicated similar improperly prepared doses.

The doctor then admitted he was dyslexic, sometimes transposing numbers, and last month U.S. District Judge Fernando Gaitan suspended executions until the state hires a board-certified anesthesiologist to ensure that the drugs used in lethal injections were properly prepared.

    Missouri execution doctor has troubled past: paper, R, 30.7.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-07-30T173524Z_01_N30151759_RTRUKOC_0_US-CRIME-EXECUTIONS.xml&WTmodLoc=Home-C5-domesticNews-3

Behind the mask of the Mo. execution doctor

07/29/2006
© 2006, ST. LOUIS POST-DISPATCH
By Jeremy Kohler

Missouri officials fought to keep the moment from happening.

From behind a screen in a Kansas City court June 5, the doctor who devised and supervised the state’s lethal injection procedure described it in terms so troubling to a federal judge that he ordered it halted.

The doctor testified anonymously that he is dyslexic. That he sometimes confused names of drugs. That he sometimes gave inconsistent testimony. That the injection protocol was not written down, and that he made changes on his “independent authority.”

And that turns out not to be all.

The Post-Dispatch has confirmed the man behind the screen was Dr. Alan R. Doerhoff, 62, of Jefferson City. Two Missouri hospitals won’t allow him to practice within their walls. He has been sued for malpractice more than 20 times, by his own estimate, and was publicly reprimanded in 2003 by the state Board of Healing Arts for failing to disclose malpractice suits to a hospital where he was treating patients.

It is unclear how much U.S. District Judge Fernando Gaitan Jr. was told before he strongly questioned the doctor’s qualifications — and whether Missouri was delivering unconstitutionally cruel punishment in its death chamber.

Doerhoff’s reprimand was no secret to Attorney General Jay Nixon’s office. Nixon’s office, which fought to keep Doerhoff’s identity a secret in death penalty appeals, signed off on the discipline.

From 2000 to 2004, the board doled out the same or worse discipline to only 2 percent of the state’s practicing physicians.

A public reprimand can have bad consequences, veteran physicians say. It may be a red flag that causes a hospital to investigate further before conveying privileges.

Typically, if a doctor is cited for concealing malpractice complaints, it could signal to an insurer that “maybe his skills are not what they’re looking for,” said Dr. Robert Gibbons, president of the Metropolitan Medical Society of Greater Kansas City.

“Doctors don’t take it lightly,” he said.

But the rebuke from one arm of Missouri government did not affect Doerhoff’s status with another arm, the Department of Corrections.

Even after the reprimand, Doerhoff, who had supervised 48 executions, continued to supervise six more. And he had prepared injections for a seventh — Michael A. Taylor, who raped and murdered a teenager in Kansas City in 1989. It was Taylor’s appeal that led to Gaitan’s landmark order.

A deeper dive into court records shows that Doerhoff made false statements in at least two different court cases about his history of mistakes.

In one case, he was to be the expert witness for a woman suing a Tennessee surgeon in Nashville for allegedly botching a bladder repair. But lawyers dropped the suit just before the trial when the judge ruled that he would allow evidence that Doerhoff had misrepresented a disciplinary action taken against him.

No problem for ex-director

Gary B. Kempker, who served as director of the Missouri Department of Corrections under Gov. Bob Holden from 2001 to 2005, said he spoke with Doerhoff before each of the 16 executions over that time.

He said he never knew Doerhoff had a disability or had been reprimanded by the Board of Healing Arts.

Doerhoff had been involved with executions long before Kempker took over as director, he said, and Kempker said he saw no reason to question or replace the doctor.

Doerhoff’s role was to supervise the injections, but he did not push the plunger.

Kempker, a former police chief in Jefferson City, said he had known Doerhoff from living in the same small city. He also knew other members of Doerhoff’s family, prominent professionals who included Doerhoff’s wife, Adelia, an anesthesiologist, brother Carl, a general surgeon, and brother Dale, former president of the Missouri State Bar Association.

Alan Doerhoff was the only one of them involved in executions, Kempker said.

“He had been trusted by the Department of Corrections for a long time,” Kempker said.

“I would say it was very humane and it was a process that I . . . know all the staff took extremely seriously about our legal mandate,” he said.

‘I don’t do them’

When a reporter approached Doerhoff at his home Thursday and asked about his role in executions, he said, “Read my lips: I don’t do them.” Then he shut the door.

The Post-Dispatch asked Friday to speak with Attorney General Jay Nixon about his office’s defense of Missouri’s lethal-injection process, its efforts to conceal Doerhoff’s identity in court and whether he knew about the reprimand.

The department said Nixon was unavailable, but issued this statement:

“The doctor who administers this procedure was hired and retained by the Department of Corrections. We will continue to defend this method of execution against constitutional challenges. All questions about the qualifications of this doctor would be better addressed by those who hired and retained him.”

Larry Crawford, the director of the Department of Corrections appointed by Gov. Matt Blunt in January 2005, did not respond last week to a request to be interviewed.

The Post-Dispatch asked the department July 17 for records of the state’s payments to the physician who supervises the lethal injections. The Missouri Sunshine Law requires public bodies to respond to requests for records within three days; the cause of any delay beyond that must be explained in detail.

The department, through its spokesman Brian Hauswirth, responded three days later that it was gathering records and needed seven working days to review them. It has not responded to the newspaper’s requests to explain the delay.

In a previous interview, Crawford said that he was concerned that revealing the execution doctor’s identity would expose him to harassment, even put him in physical danger.

Crawford said he was grateful to have a doctor participate in something that most physicians avoid as a matter of medical ethics.

Kent Gipson, of the Public Interest Litigation Clinic in Kansas City, questioned exactly what the state sought to protect with its secrecy. He suggested, “It was to hide the embarrassment of hiring somebody with that many problems.”

Said Gipson, who has represented Missouri inmates appealing death sentences, “It sounds to me that if that’s the best they can do, that’s sort of a sad commentary on how the department does business.”

Lawsuits and settlements

According to statements Doerhoff made in regard to Taylor’s appeal, corrections officials first consulted with him in 1989, when George Mercer became the first Missouri inmate to be executed in 24 years. The state had purchased a lethal injection machine. Doerhoff said he suggested changes to the injections planned for Mercer.

In his deposition, Doerhoff said he overhauled Missouri’s lethal-injection protocol at the request of corrections officials after a debacle on May 3, 1995, when it took more than 30 minutes for the state to execute Emmitt Foster.

Foster “was a drug addict and they could not get an IV line in,” Doerhoff explained in the deposition. “They finally put the needle in his thumb . . . so it was a prolonged execution which caused a lot of embarrassment and it should not have happened.”

He then stayed on as a long-term contractor. In court filings, he described his role as preparing the injections, inserting the intravenous line, ensuring proper functioning of medical equipment and providing medical support for the offender and witnesses. Other staffers actually injected the drugs, he wrote.

Doerhoff spoke in a malpractice suit filed against him about what else was happening in his life during 1995: He had a heart attack, he was $4 million in debt and was depressed.

On top of that, a woman sued Doerhoff in St. Louis Circuit Court that May, alleging that he was having sex with her while she was under his care, that he performed an operation to restore her virginity and other sex-related procedures, and that he gave her an abortion in a Jefferson City hotel room.

The case was settled with the woman being paid $100,000 in an agreement in which Doerhoff admitted no wrong, according to court records. She suggested in a recent interview that her lawyer fabricated some of the claims.

In a 1998 deposition, Doerhoff said he had been sued about 20 times after as many as 35,000 surgeries. He mentioned a settlement paid in one, and other records show at least four more settlements plus a judgment for $262,000 that he appealed and lost.

Operated on inmates

Doerhoff’s work for the Department of Corrections goes back to at least the mid-1970s. He and his brother, Carl Doerhoff, had a contract to perform surgeries on Missouri prisoners. Each also has served as medical examiner in Cole County, a title Carl Doerhoff now holds.

Contacted by phone, Carl Doerhoff said he had no knowledge about who may have been involved with executions, and otherwise declined to comment.

Alan Doerhoff participated in more than half of Missouri’s executions — 54 out of 105 — since the Department of Corrections took over the responsibility from counties in 1938.

Records indicate the Department of Corrections paid him $33,020 since mid-2001, typically in checks of $2,000 that were issued a few weeks to a few months after each of the past 17 executions. Earlier pay records were not available.

Doerhoff has testified that he brought special knowledge to the death chamber. “I was the only physician available anywhere to ask about how and what,” he said in a deposition in Taylor’s appeal. “No one has any experience (with the execution drugs) so I have to be the authority, I guess.”

It was that deposition in June that led to a moratorium on Missouri executions. A U.S. Supreme Court decision made it easier for death-row inmates to file suits challenging lethal injection as unconstitutionally cruel and unusual punishment.

Lawyers for Missouri’s condemned inmates have seized upon that issue in the past year, claiming that Missouri inmates were not being sufficiently numbed before the final two injections in the three-drug cycle. The reasoning is that if the condemned is not properly numbed by the first drug, paralysis from the second could make it impossible to communicate pain from the third.

The argument gained traction with Gaitan after the state acknowledged during Taylor’s appeal that its own logs of the chemicals given to prisoners were incorrect. Over Nixon’s objection, Gaitan allowed Taylor’s legal team to depose Doerhoff.

To comply with an earlier protective order that sealed Doerhoff’s identity, Gaitan allowed Doerhoff to testify from behind a screen and arranged for identifying references to be blacked out of public records.

Though court records have cloaked his name, they left enough clues to identify Doerhoff. Interviews with three men who had official roles at executions, including Kempker, confirmed Doerhoff’s name.

Misrepresentations

Some of Doerhoff’s problems are a matter of public record.

In August 1997, a letter from Lake of the Ozarks General Hospital informed Doerhoff that his request for active staff status was denied and that his privileges were revoked. The letter accused Doerhoff of failing to disclose malpractice claims against him, misrepresenting how many cases were brought against him, and of having an “extensive” history of cases he did disclose.

The letter, signed by Michael E. Henze, the hospital’s chief executive, said the hospital had found a history of poor record keeping by Doerhoff at another hospital and that there were “continuity of care concerns” at more than one hospital.

Henze sent a second letter, to the Board of Healing Arts, saying the hospital’s decision was based on “Dr. Doerhoff’s material misrepresentations, misstatements, and omissions from his applications for medical staff membership and corresponding clinical privileges.”

A year later, Doerhoff was contacted by Stephen Doughty, a lawyer in Nashville representing a woman in a malpractice claim against a surgeon and a hospital. Doerhoff agreed to be paid in exchange for his testimony as an expert that the surgeon had not used the standard of care required in a bladder repair. The plaintiff, Katrinka Stalsworth, claimed that she was in constant pain from severed nerve endings.

In a deposition on Nov. 23, 1998, the defense lawyer, Phillip North, asked Doerhoff where he practiced.

“Well, I’ve always had staff privileges at (Hermann) Hospital and Lake Ozark Hospital,” he said. “They are hospitals I helped organize.”

Later, North revisited the issue. “These . . . are full privileges, no qualifications, no restrictions or anything like that?”

Doerhoff: “Lake Ozark, I no longer have staff privileges there. There’s too much to do. . . . I helped build the Lake hospital, but I had not admitted a patient there for about 10 years and after a heart attack, my wife and I decided that we were going to retire and move to the lake, so I informed the Lake hospital I would be moving there, and they took away my staff privileges.”

Doerhoff said the hospital gave no reason for taking away his privileges. “The surgeon that was on the credentials committee saw me as a threat, and he wanted the hospital to hire him as a partner, so he terminated my privileges.”

The defendant secured a copy of the letter revoking Doerhoff’s privileges. Just before the trial was to begin, the judge ruled that he would admit it as evidence, which Doughty said he saw as a crucial blow to Doerhoff’s credibility.

“He was our expert witness and . . . now there was some question about the truthfulness of his answers,” said Doughty. “It was not the kind of thing you want to find out about on the eve of the trial.”

Doughty withdrew the case.

Accused of malpractice

A year later, Doerhoff was the defendant in a malpractice case. John Kerr, a minister in Jefferson City, accused Doerhoff of damaging his stomach during an appendectomy.

Kerr’s lawyer, John Beger of Rolla, issued written questions to Doerhoff to clarify matters of evidence. He asked Doerhoff, “Have you now or at any time in your career had your license or staff privileges revoked, terminated, suspended, or limited in any way?”

Doerhoff’s reply: “No.”

Beger said he obtained the Lake of the Ozarks letter — as well as a transcript from Doerhoff’s deposition in the Tennessee case — and knew that the answer was false.

Beger filed a motion to compel Doerhoff to turn over records pertaining to his hospital privileges, writing that he believed Doerhoff’s written answer was “incorrect.” Within days, the suit was settled for an undisclosed sum.

In May 2000, Doerhoff’s request for privileges was denied at St. Mary’s Health Center in Jefferson City. The hospital alleged that he had failed to fully disclose malpractice cases filed against him. Doerhoff then withdrew his application from St. Mary’s and did not appeal.

The matter was reported to the Board of Healing Arts, which opened a discipline case against Doerhoff. The two sides settled in 2003 with Doerhoff agreeing to his penalty — a public reprimand.

Doerhoff is now on staff at a hair-removal business in Jefferson City and has made trips with groups of physicians to treat the Third World poor.

In a deposition in Kerr’s suit in 1999, Doerhoff said he was looking forward to the new challenge of working overseas.

“It’s really difficult to find surgeons that can operate under difficult circumstances,” he said. The mission group “needs people that are able to go into a very primitive area and function without a lot of support. So I’m the type of person they’re looking for.”

“So it’s a lot more interesting than sitting around in Jeff City waiting to die.”

______
 

Dr. Alan R. Doerhoff timeline

1969: Doerhoff graduates from medical school at University of Missouri with a specialty in general surgery Mid-1970s to mid-’90s: He works as surgeon on contract for Department of Corrections

1989: Michael A. Taylor and second man admit kidnapping 15-year-old Ann Harrison from school bus stop in Kansas City, raping her and slitting her throat. Taylor is sentenced to death.

1989: Doerhoff advises corrections officials on lethal injections as state resumes executions after 24 years.

1995: He revises execution procedure after problem with condemned’s veins leads to 30-minute execution. Becomes permanent contractor for corrections department.

1997: Lake of the Ozarks General Hospital denies Doerhoff staff privileges

1998: Doerhoff claims in a deposition that he’s "always had staff privileges" at the Lake hospital, then, under questioning, says they were revoked by a surgeon who saw him as a threat. He is discredited as plaintiff’s expert witness in Tennessee malpractice case, which then collapses.

1999: In written questions from a plaintiff alleging malpractice, Doerhoff is asked if he’s ever had hospital privileges revoked. He answers "no." After the plaintiff moves to compel him to turn over records, the case is settled.

2000: St. Mary’s Health Center in Jefferson City denies Doerhoff privileges, saying he failed to disclose malpractice cases from 1994-99.

2003: Doerhoff is reprimanded by Missouri Board of Healing Arts over claim that he failed to disclose past malpractice suits to St. Mary’s.

Jan. 31, 2006: U.S. District Judge Fernano Gaitan Jr. rejects Taylor’s appeal that lethal injection is cruel and unusual punishment.

April 26, 2006: U.S. Supreme Court agrees to hear lethal injection concerns in another case, opening door to further appeals by Taylor that end up back in Gaitan’s court in Kansas City.

June 26, 2006: Gaitan orders Taylor’s execution halted, citing concerns about problems with dyslexia and dealing with numbers that are admitted to in deposition by execution doctor "John Doe I," who in fact is Doerhoff. Gaitan demands execution procedure overhaul and use of board-certified anesthesiologist.

July 14, 2006: Corrections officials tell Gaitan they have made changes but cannot find an anesthesiologist to participate. Eleven days later, they appeal his order to the 8th Circuit Court of Appeals in St. Louis.

July 26, 2006: Gaitan says the state’s proposal is an improvement, but that "there continue to be inadequacies with the personnel required to monitor and oversee" the death penalty.

    Behind the mask of the Mo. execution doctor, St. Louis Post-Dispatch, 29.7.2006, http://www.stltoday.com/stltoday/news/stories.nsf/stlouiscitycounty/story/A0A388E409609321862571BA005D525D?OpenDocument

Virginia brings back electric chair for execution

Fri Jul 21, 2006 12:48 AM ET
Reuters

WASHINGTON (Reuters) - A convicted murderer was executed in the electric chair in Virginia on Thursday night becoming the first person in the United States to be put to death by electrocution in more than two years.

Brandon Wayne Hedrick, 27, was sentenced to death for the rape and murder of Lisa Crider, 23, near Lynchburg, Virginia, in May 1998.

"Death was pronounced at 9:12 (EST/00:12 GMT). There were no complications," said Virginia Department of Corrections spokesman Larry Traylor.

Hedrick elected to die by electrocution rather than lethal injection, Traylor said.

Under Virginia law, death row inmates may choose either the electric chair or lethal injection. If they refuse to make a choice, the method of execution would automatically be lethal injection, which became an option in Virginia in January 1995.

Since then, only four condemned inmates have chosen electrocution, including Hedrick, Traylor said.

Before Hedrick, the last person to be put to death in the electric chair in the United States was James Neil Tucker in 2004 in South Carolina, according to the Washington Post.

Traylor said Hedrick made a final statement as witnesses, including several members of his victim's family looked on. "I'm ready to go and be free," the statement said, in part.

The death penalty is authorized in 38 of the 50 U.S. states, as well as by federal government. Texas, Virginia and Oklahoma account for more than half of the executions.

The number of people executed in the United States since 1977, when the Supreme Court ended a 10-year moratorium on capital punishment, passed 1,000 in December.

    Virginia brings back electric chair for execution, R, 21.7.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-07-21T044828Z_01_N2086064_RTRUKOC_0_US-CRIME-EXECUTION-VIRGINIA.xml&WTmodLoc=Home-C5-domesticNews-2

Missouri Says It Can’t Hire Doctor for Executions

July 15, 2006
The New York Times
By MONICA DAVEY

The State of Missouri, facing a deadline today for changing the way it executes condemned prisoners by lethal injection, told a federal judge last night that it was simply unable to meet his demand that the state hire a board-certified anesthesiologist to oversee executions.

The judge, Fernando J. Gaitan Jr. of the United States District Court for the Western District of Missouri, had demanded an overhaul of the system after the doctor who now mixes the drugs for the state described an improvised process that Judge Gaitan found so chilling that he temporarily barred executions in Missouri.

A United States Supreme Court ruling last month made it easier for death row inmates to challenge procedures used in lethal injection, and legal cases across the country are questioning whether the methods cause unconstitutional pain and suffering.

With state officials’ response last night outlining changes to their procedures, Missouri has moved to the center of the charged debate over the technique, which is used in executions in 37 states.

In a sworn deposition, the Missouri doctor, whose name is being withheld by the state, acknowledged that he had sometimes given the condemned a smaller dose of anesthesia — used to reduce the pain of the lethal drugs to come — than the state had said was its policy.

The doctor said he was solely responsible for counting out dosage amounts of the three drugs administered in sequence, knew of no written protocol by the state for carrying out executions and was at times “improvising.”

He also said he is dyslexic, sometimes mixing up phone numbers or cable bill account numbers. “So it’s not unusual for me to make mistakes,” the doctor, identified in court records as John Doe I, said.

He indicated in his testimony, however, that he had made no mistakes in his death chamber work and that the mistakes elsewhere were “not medically crucial.”

Judge Gaitan said he was “gravely concerned” about the doctor’s dyslexia and criticized the lack of “checks and balances,” ruling on June 26 that the state was subjecting the condemned to “an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered.”

The judge ordered Missouri to hire a board-certified anesthesiologist (John Doe I is a surgeon), and gave the state until today to submit a formal, written set of procedures, including increased monitoring of inmates and an assurance of sufficient anesthetic drugs.

But in the state’s filing last night, officials said they had sent letters to 298 certified anesthesiologists who reside anywhere near the state’s death chamber in Bonne Terre, and were turned down by all of them.

“A requirement of using a board-certified anesthesiologist is a requirement that cannot presently be met,” Attorney General Jeremiah W. Nixon wrote. “To enforce it may effectively bar implementation of the death penalty in Missouri. Surely that is not what the court intended.”

It was uncertain whether the judge, who could not be reached late last night, would accept the state’s alternative: Missouri officials said they would instead use “medical personnel in roles appropriate,” like a physician, nurse or pharmacist preparing the drugs.

It was unclear from the filing whether the state intended to retain John Doe I. The American Society of Anesthesiologists and the American Medical Association say physicians should not take part in executions, and Orin F. Guidry, the president of the A.S.A., recently issued a letter to members reiterating that position in light of the Missouri ruling.

Missouri has executed 66 people by lethal injection since 1989. The doctor said in the deposition that he had assisted for about a decade.

Around the nation, lawyers and advocates on all sides of the debate said they were closely watching developments in Missouri. Judge Gaitan’s ruling was the most specific and sweeping regarding procedures in any state, they said.

In April, a federal judge permitted an execution in North Carolina without an anesthesiologist, saying the state could use a brain wave monitor to ensure that the prisoner would be unconscious and unable to feel pain.

“This issue is being challenged in all states, but it’s reaching a boiling point in some states and Missouri may be on the cutting edge,” said Richard C. Dieter, the executive director of the Death Penalty Information Center, a research group that opposes capital punishment.

In Arkansas, a federal judge delayed an execution that had been set for July 5 to allow time to review that state’s lethal injection procedures and chemical combinations.

In Ohio, corrections officials presented Gov. Bob Taft with changes to the state’s procedures, after Joseph L. Clark’s execution this year, when workers struggled for 90 minutes to find a suitable vein for the lethal drugs, and in preparation for another execution, the first in the country since the Supreme Court ruling. The new procedures were used Wednesday for the first time on another man, Rocky Barton, and corrections officials there said the execution took place “without complications.”

In January, on the eve of the scheduled execution of Michael A. Taylor, a Missouri man who pleaded guilty to the first-degree murder and rape of a 15-year-old girl in 1989, Judge Gaitan had ruled that the state’s method of execution did not constitute cruel or unusual punishment. That execution was later halted by an appeals court, which remanded it to Judge Gaitan for further hearings.

Like most states that use lethal injection, Missouri requires three drugs in a row: Sodium pentothal, the anesthetic, is administered, followed by pancuronium bromide, which, as a paralytic, prevents movements of the body, and then potassium chloride, which stops the heart.

If a person has not received sufficient amounts of the anesthetic, the final drug is likely to be deeply painful, medical experts say, but the paralytic agent may prevent the person from revealing that pain.

Initially, Missouri Department of Corrections officials testified that the condemned consistently receive five grams of the anesthetic. But state logs of the most recent six executions revealed that only 2.5 grams had been prepared and used in at least one recent execution.

In his deposition, the doctor, John Doe I, defended the use of less than five grams, emphasizing that nearly all people would be fully anesthetized at a far smaller dose and that most other states use only two grams. In addition, the doctor said, he was able to determine whether the anesthesia had taken effect by looking at the inmate’s facial expression.

But Judge Gaitan, who viewed a videotape of the execution chamber, questioned whether the doctor could see the inmate’s face at all. On the gurney, the inmate faces away from the darkened room where the doctor is observing through a partly closed window, the judge wrote.

In its new policy, submitted last night, Missouri officials said that it would always, in the future, use at least five grams of anesthetic, and have on hand an additional five grams. They also said that a medical worker — a physician, a nurse or a pharmacist, for example — would be positioned to see (either directly or with a mirror) the inmate to be sure he or she was unconscious. And they said that all those involved in an execution would sign an official chemical log to track exactly what happened in each death.

In recent weeks, Department of Corrections officials defended the state’s record of executions and said that John Doe I, whose name they would not reveal citing concerns for his security, had received high marks for his work.

“The process worked, we think, very professionally and humanely,” said Brian Hauswirth, a spokesman for the department.

In his deposition, John Doe I also defended his actions, suggesting he was able to perform his job properly.

“But I am dyslexic, and that is the reason why there are inconsistencies in my testimony,” he said. “That’s why there are inconsistencies in what I call drugs. I can make these mistakes, but it’s not medically crucial in the type of work I do as a surgeon.”

Still, Mr. Hauswirth said that corrections officials had been unaware that John Doe I was dyslexic or that he had changed dosage amounts for the condemned.

Though Mr. Taylor’s scheduled execution was delayed because of legal challenges, the drugs had already been mixed for him. State logs showed they included only 2.5 grams of the anesthetic drug — half of what Missouri officials had said was their policy and now say they will always use.

Linda Taylor, the inmate’s mother, who sat at the execution facility all of that day, said she was sickened when she learned that.

“We don’t want to lose our son, period,” Ms. Taylor said. “But the fact that the drugs may not be mixed right or that he might be in a lot of pain is too much. I keep wondering about all the guys who have been executed who might have been laying there in pain and couldn’t tell anybody.”

Robert Blecker, a professor at New York Law School who supports the death penalty in certain instances, said the constitutional questions being raised about lethal injection were an effort by those opposed to capital punishment to “prevent it, delay it, diminish it.”

For those whose cases warrant the death penalty, he said, the notion that no pain should be involved in an execution makes no sense.

“We’re giving them a death that we could only wish for,” Professor Blecker said. “I don’t get it.”

    Missouri Says It Can’t Hire Doctor for Executions, NYT, 15.7.2006, http://www.nytimes.com/2006/07/15/us/15lethal.html

Texas executes man for rape, murder of two teens

Tue Jul 11, 2006 8:13 PM ET
Reuters

HUNTSVILLE, Texas (Reuters) - A Texas man was put to death by lethal injection on Tuesday for his part in the 1993 gang-rape and murder of two Houston teenagers.

Derrick O'Brien, 31, was condemned for raping and killing Jennifer Ertman, 14, and Elizabeth Pena, 16, in a Houston park on June 24, 1993.

Prosecutors said O'Brien was one of six gang members who raped Ertman and Pena for over an hour in a Houston park before strangling them. The girls were taking a shortcut home through the park when they were attacked.

O'Brien told police he helped strangle Ertman with his belt, which snapped from the strain put on it during the murder.

O'Brien's execution was delayed in May after his lawyers claimed lethal injection violates the U.S. Constitution's ban on cruel or unusual punishment. The claim was rejected by a Texas appeals court.

While strapped to a gurney in the death chamber on Tuesday, O'Brien apologized to Ertman's and Pena's families.

"I am sorry," he said. "I have always been sorry. It is the worst mistake that I ever made in my whole life. Not because I am here, but because of what I did, and I hurt a lot of people -- you and my family. I am sorry. I have always been sorry."

O'Brien was the 14th person executed in Texas this year and the 369th put to death since the state resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban. Both totals lead the nation.

O'Brien did not request a final meal.

    Texas executes man for rape, murder of two teens, R, 11.7.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-07-12T001309Z_01_N11193183_RTRUKOC_0_US-CRIME-EXECUTION-TEXAS.xml

Cruel and unusual

07/01/2006
ST. LOUIS POST-DISPATCH
By Jeremy Kohler

For those opposed to the death penalty, a humane execution might be a contradiction of terms.

For those who don't care if a condemned man suffers in his last moments, it might be a pointless concern.

The nation has walked a fine line between those views for more than a century in seeking ways the founding fathers intended to permit to snuff capital criminals.

States used hangmen's nooses, gases, electricity and, finally, injections. But new challenges have raised questions about the legality of lethal injections, and about the future of capital punishment in the 38 states where it's legal.

In May, the U.S. Supreme Court ruled that inmates could challenge lethal injections as being unconstitutional. Now a wave of suits has halted the death penalty in some states, including Missouri.

At the crux of the issue, critics say some inmates have been insufficiently numbed and may have suffered excruciating pain that was not evident to witnesses.

In Missouri, those claims were helped by the disclosure last week that the state's executions for the past decade have been largely in the hands of a dyslexic surgeon who confessed he sometimes makes mistakes with figures.

U.S. District Judge Fernando Gaitan Jr. halted Missouri executions, saying he had grave concerns that the inmates were being subjected to "unacceptable risk" of unconstitutional suffering.

Gaitan amended his earlier ruling in the case of inmate Michael Taylor, of Kansas City. He gave corrections officials until July 15 to come up with a new protocol.

Also last week, a federal judge in Little Rock, Ark., postponed an execution, saying if the inmate became conscious during the execution he would suffer pain "that will never be rectified."

The two rulings had Missouri's corrections director, Larry Crawford, wondering whether the state could ever perform another execution in compliance with Gaitan's order.

In Illinois, a moratorium on executions remains in place. Former Gov. George Ryan halted all executions in 2000 after 13 people condemned to death were found to have been wrongfully convicted. Illinois uses lethal injections for its executions.

Moreover, days before leaving office in January 2003, Ryan granted clemency to all of the 167 death row inmates in Illinois because of the flawed process that led to these sentences.

Most of the states that have capital punishment rely on lethal injection, using a series of three injections that has lately come under intense scrutiny.

First a general anesthetic is administered to knock out the inmate. Then comes a drug that paralyzes. Finally the inmate is injected with a drug that triggers a heart attack.

The final drug would be excruciatingly painful if the inmate was not given enough anesthetic, but the inmate could be unable to show that he or she was in pain, because of the other drugs' effects, according to testimony in Taylor's case.

Other options

Experts note that states could use injections that are less likely to cause pain.

Dr. Mark Heath, an anesthesiologist from Columbia University in New York, testified in Taylor's case - and in several other similar cases nationwide - that it would be more humane to execute humans the same way animals are euthanized: with an overdose of a barbiturate.

The condemned inmate would simply go to sleep and not wake up.

Heath testified that Missouri was the only state using lethal injection that did not have written protocols that could prevent "ad hoc changes or vagaries or misunderstandings or absent-mindedness or other problems that can occur when a complex endeavor is undertaken by a group of people."

Crawford pointed out that simply giving an overdose of barbiturate could prolong executions and make deaths linger over an hour.

That might cause less pain, he said, but might not pass any more constitutional muster. Crawford said he believed Missouri's system of three injections was better.

A painless death "would be a wonderful goal but we come into this world in pain and we all suffer some discomfort, and in this case it's as painless as we can make it," he said.

"Not gruesome"

States have tried to make executions quick, painless and "not gruesome," said Deborah Denno, a Fordham University law professor and expert in executions.

"But those goals don't mesh very well," she said.

Chief among Gaitan's concerns was that Missouri's lethal-injection program was largely controlled by a dyslexic doctor, called John Doe I in court records.

Missouri had no apparent protocol for executing prisoners other than Doe's whim, he wrote in a 16-page decision. Among Gaitan's requirements was that a certified anesthesiologist prepare the lethal-injection drugs. John Doe I is not an anesthesiologist.

The American Medical Association has urged its members to steer clear of involvement in executions. Crawford said he did not know if state officials would be able to find an anesthesiologist, although he said he was trying.

Crawford declined to provide Doe's real name, saying he was concerned that identifying the doctor would pose a threat to Doe's safety.

Crawford said he never had any reason to question Doe. "This is being portrayed as being a performance issue," he said. "There is no indication there has been any performance deficiency."

Other states have executed prisoners without a doctor, he noted. He said he did not know about Doe's dyslexia until the surgeon's recent testimony.

Crawford said he was aware at all times that Doe was risking his reputation and his medical career by working on executions and that he felt "very, very fortunate to have a medical professional willing to assist in what he believes is an ethical level of involvement."

He said it was possible that the state would not be able to find an anesthesiologist who would be willing to participate in an execution.

"That would effectively stop executions," he said.

Denno said she thought it was more likely that states would find ways to change their procedures to skirt constitutional questions.

Corrections officials "know people who would be willing to conduct these executions," she said. "It might be a little difficult but they'll get one."

The question, she said, is "What are the quality of these people?"

    Cruel and unusual, St. Louis Post-Dispatch, 1.7.2006, http://www.stltoday.com/stltoday/news/special/srlinks.nsf/story/75F59F513DAC775F862571B9007892E0?OpenDocument

Tennessee bid to execute second murderer halted

Thu Jun 29, 2006 12:59 AM ET
Reuters

NASHVILLE, Tennessee (Reuters) - Tennessee on Wednesday night called off the execution of a convicted murderer who had been set to die by lethal injection along with another killer hours earlier.

An official at Riverbend Maximum Security Institution said the execution of Paul Reid, 48, was halted because the U.S. Supreme Court denied the state's bid to vacate a lower court's stay of execution.

Sue Allison, an official with the Tennessee Supreme Court, said Reid's case would now go back to a federal district court in Nashville where he was set to receive a competency hearing.

Reid would have been only the third person executed in the state since the U.S. Supreme Court reinstated the death penalty in 1976.

The second, Sedley Alley, 50, was pronounced dead shortly after 3 a.m. EDT on Wednesday morning following a lethal injection. Reid had originally been scheduled to be executed at the same time as Alley.

Reid, a drifter, was convicted of killing seven people in Tennessee from February to April in 1997. He was found guilty of abducting two ice cream cafe workers and stabbing them to death in a cave. Five other victims were shot to death in Nashville restaurants.

Reid had dropped his appeals but U.S. District Judge Todd Campbell ruled on Tuesday there should be a hearing to determine if Reid was competent to make that decision.

Reid's sister led the efforts to prevent his execution on grounds of mental incompetence.

The state appealed Campbell's order to the 6th U.S. Circuit Court of Appeals in Cincinnati and then to the U.S. Supreme Court, which declined to act on Wednesday.

Alley had been convicted of the murder of Marine Lance Cpl. Suzanne Collins, 19, who was abducted, raped and killed while jogging near a naval air station close to Memphis, Tennessee.

Twenty-six people have been executed in the United States this year, and 1,030 since capital punishment was reinstated.

    Tennessee bid to execute second murderer halted, R, 29.6.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-06-29T045909Z_01_N28417425_RTRUKOC_0_US-EXECUTION-TENNESSEE.xml

Execution doctor stays secret

06/28/2006
ST. LOUIS POST-DISPATCH
By Jeremy Kohler

Officials said Tuesday that they would not disclose the name of the dyslexic surgeon in charge of Missouri's lethal injections, whose testimony that he sometimes confuses figures helped persuade a federal judge to halt the state's executions.

Officials want to protect the surgeon, called John Doe I in court documents, from "harassment of various sorts," said Brian Hauswirth, a spokesman for the Department of Corrections. He said he would not elaborate.

In October, a U.S. magistrate judge ordered the surgeon's identity concealed to protect the state's security interests and the doctor's privacy.

Death penalty critics said the state had little justification to keep a lid on the surgeon's identity.

"It's shameful that you would put someone who suffers from dyslexia in charge of administering chemicals that kill someone," said Gino F. Battisti, a lawyer from St. Louis who has represented death row inmates. "People have a right to know how the system works."

In a ruling on Monday, U.S. District Judge Fernando Gaitan Jr. wrote that he had concerns about John Doe I's qualifications and the program's lack of protocols and accountability.

Too much of it relied on a surgeon who freely admitted confusing facts and amounts, Gaitan found. That produced an "unacceptable risk" of subjecting an inmate to unconstitutional suffering.

The order amended Gaitan's previous ruling in the case of Michael A. Taylor, who faces execution for murdering a 15-year-old girl in Kansas City in 1989. Taylor has appealed his sentence, arguing that Missouri's method of execution could force him to suffer cruel pain and suffering.

On Tuesday, Hauswirth said the department would comply with Gaitan's order to come up with a new lethal injection procedure by July 15. Among the requirements is that a certified anesthesiologist mix the lethal-injection drugs.

John Doe I is not an anesthesiologist, Gaitan said.

In a deposition this month, the doctor testified that he would decide when an inmate had had a proper dose of anesthetic medicine by reading his face.

But Gaitan noted that a videotape proved that an inmate's face was, in fact, obscured from the surgeon's view in the death chamber.

Will the state be able to find an anesthesiologist?

"We're going to try to find one," Hauswirth said.

That could prove difficult. In February, the American Medical Association urged its members to observe their oaths to protect lives and to stay clear of involvement with executions.

"The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine - first, do no harm," said Dr. Priscilla Ray, who heads the AMA's council on ethical and judicial affairs, in a statement in February.

At the time, Ray was commenting on another federal judge's order, similar to Gaitan's, for physician participation in California's executions.

Kent Gipson, whose law firm Public Interest Law Center, based in Kansas City, has represented Missouri death row inmates, said he thought that the "state is worried that if this guy gets found out and gets his medical license jerked, they'll never find another doctor to help them execute people.

"That's going to be the problematic aspect of Gaitan's order," Gipson said. "I wouldn't think that any anesthesiologist in the state would" participate in an execution.

John Doe I said in his deposition that he established Missouri's execution system a decade ago, at the request of embarrassed corrections officials, after an episode in which a condemned man, Emmitt Foster, took more than 30 minutes to die.

"My obligation to the director is he is able to go out and does not have to explain to the press why did this happen, why didn't this happen," the doctor said.

"I was the only physician available anywhere to ask about" lethal injections, he added.

    Execution doctor stays secret, St. Louis Post-Dispatch, 28.6.2006, http://www.stltoday.com/stltoday/news/special/srlinks.nsf/story/40A21404C94745B3862571B900786D00?OpenDocument

Judges Order Halt to Tenn. Executions

June 28, 2006
By THE ASSOCIATED PRESS
Filed at 1:11 a.m. ET
The New York Times

NASHVILLE, Tenn. (AP) -- Federal judges stayed the executions of two convicted murderers Tuesday, only hours before the state was to administer back-to-back lethal injections on the same day.

Judge Gilbert S. Merritt on the 6th Circuit Court of Appeals issued a stay for inmate Sedley Alley after a last-minute appeal was delivered to his home in Nashville.

Gov. Phil Bredesen and the U.S. Supreme Court had rejected all requests for a stay. Alley confessed to killing 19-year-old Marine Suzanne Collins in 1985 while she jogged north of Memphis.

Alley claimed to have multiple personalities at trial, but since 2004 he has recanted his confession, argued he was innocent and said DNA testing could prove it.

The stay came only hours after federal Judge Todd Campbell halted the execution of the other condemned man, Paul Dennis Reid, to determine whether he was competent to drop his appeals of seven death sentences tied to a string of 1997 murders.

The state will appeal both stays of execution, said state attorney general spokeswoman Sharon Curtis-Flair.

Family members of some of the victims were not pleased. ''There's no way for me to describe what I'm feeling right now,'' said Kim Campbell, mother of Angela Holmes, one of Reid's victims.

Alley was scheduled to die May 17, but got a reprieve to seek court permission for the DNA testing. His defense team, led by Barry Scheck of the nonprofit legal clinic Innocence Project, failed to persuade the state courts to release crime-scene evidence for testing.

Reid, 48, a former Texas drifter with music ambitions, was convicted of murdering seven people at three Tennessee restaurants in 1997 after he was fired from his job as a dishwasher. He came within hours of execution in 2003 before he was talked into resuming his appeals and got a stay.

At Riverbend Maximum Security Prison, where Reid and Alley have been on death watch since the weekend, anti-death penalty advocates were relieved that both inmates were spared for the time being.

''We will stay here until this execution date passes,'' said Alex Wiesendanger, associate director of the Tennessee Coalition to Abolish State Killing, which held a vigil outside the Nashville prison. ''The people here are delighted there will be a chance for justice.''

The last Tennessee inmate executed was a convicted child rapist and murderer put to death in 2000. Before that, the last execution was by electric chair in 1960.

Tennessee has 103 inmates on death row.

Only four states -- Arkansas, Illinois, South Carolina and Texas -- have conducted double executions since the death penalty was reinstated in 1976, according to the Death Penalty Information Center in Washington.

    Judges Order Halt to Tenn. Executions, NYT, 28.6.2006, http://www.nytimes.com/aponline/us/AP-Tennessee-Executions.html

'Railroad Killer' Put to Death in Texas

June 28, 2006
By THE ASSOCIATED PRESS
Filed at 12:50 a.m. ET
The New York Times

HUNTSVILLE, Texas (AP) -- A train-hopping serial killer linked to at least 15 murders near railroad tracks around the country said ''I deserve what I am getting'' before he was executed Tuesday night.

Angel Maturino Resendiz mumbled a prayer, saying ''Lord, forgive me. Lord, forgive me,'' and acknowledged the presence of relatives watching through a nearby window.

''I want to ask if it is in your heart to forgive me,'' he said as he looked toward the relatives of victims in another room. ''You don't have to. I know I allowed the devil to rule my life.''

''I thank God for having patience for me. I don't deserve to cause you pain. You did not deserve this. I deserve what I am getting,'' he said.

Resendiz, 46, was pronounced dead at 8:05 p.m. CDT.

The Mexican drifter known as the ''Railroad Killer'' was executed for the slaying of physician Claudia Benton 7 1/2 years ago. She was killed during a deadly spree in 1998 and 1999 that earned Resendiz a spot on the FBI's Most Wanted list as authorities searched for a murderer who slipped across the U.S. border and roamed the country by freight train.

Benton was stabbed with a kitchen knife, bludgeoned with a 2-foot bronze statue and raped in 1998 in her Houston home, just down the street from a railroad track.

Authorities realized they were pursuing a serial killer when DNA evidence tied Resendiz to Benton's murder and the killings of a church pastor and his wife who were beaten with a sledgehammer as they slept in their house near tracks outside Houston.

A month later, the Mexican drifter walked across the international bridge at El Paso from Mexico and surrendered to police as part of a deal arranged by his sister.

Benton's husband, George, witnessed Resendiz's execution ''to make the statement that people have to understand what evil really is.''

''What was executed today may have looked like a man, walked and talked like a man but what was contained inside that skin was not a human being,'' he said. ''This is not human behavior but something I can only say is evil contained in human form, a creature without a soul, no conscience, no sense of remorse, no regard for the sanctity of human life.''

The execution was the 13th of the year in the nation's most active death penalty state.

The execution was delayed almost two hours before the U.S. Supreme Court rejected several last-day appeals. Resendiz's lead appeals lawyer, Jack Zimmermann, had argued that his client, who described himself as half-man and half-angel, told psychiatrists he couldn't be executed because he didn't believe he could die.

The court also rejected an appeal by the Houston-based consul general of Mexico questioning the Mexican national's competency and challenging the constitutionality of the lethal injection process as cruel and unusual punishment. Capital punishment is not allowed in Mexico.

''We do look after the rights of Mexican nationals,'' Consul General Carlos Gonzalez said. ''We watch to make sure the law is applied fairly to a Mexican national.''

Mexico's Foreign Relations Department protested the execution.

''The execution was carried out despite the existence of medical evidence of severe mental problems that, in principle, should have excluded the application of this penalty,'' according to a statement from the agency.

In an interview shortly after arriving on death row in 2000, Resendiz said he recalled the attacks as if were watching something through a tunnel. ''Everything you see is in a distance,'' he said. ''Everything is slow and silent.''

    'Railroad Killer' Put to Death in Texas, NYT, 28.6.2006,http://www.nytimes.com/aponline/us/AP-Railroad-Killer-Execution.html

Lamont Reese in an undated booking photo.
The 28-year-old Texas man was put to death by lethal injection on Tuesday
for killing three men in 1999 outside a Fort Worth convenience store.

REUTERS/Texas Department of Criminal Justice/Handout

Texas man executed for 1999 triple murder        R        21.6.2006
http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=
2006-06-21T043624Z_01_N20179300_RTRUKOC_0_US-EXECUTION-TEXAS.xml

Texas man executed for 1999 triple murder

Wed Jun 21, 2006 12:36 AM ET
Reuters

HUNTSVILLE, Texas (Reuters) - A 28-year-old Texas man was put to death by lethal injection on Tuesday for killing three men in 1999 outside a Fort Worth convenience store.

Lamont Reese was condemned for shooting the three men on March 1, 1999, with an assault rifle after they talked to his girlfriend, Kareema Kimbrough, who was sentenced to life in prison for her part in the shootings.

Two other people were wounded in the attack.

Reese claimed he had no part in the murders and again protested his innocence in a final statement while strapped to a gurney in the death chamber.

"Whether you believe it or not, I did not kill them," he said. "The people that did this -- they know. I am ready, warden. Love you all."

Reese was the 12th person executed in Texas this year and the 367th put to death since the state resumed capital punishment in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban, a total that leads the nation.

For his final meal, Reese requested fajitas, enchiladas, a bacon cheeseburger, pizza, chicken salad, tacos and fried chicken.

Texas has 13 more executions scheduled through October 2006.

    Texas man executed for 1999 triple murder, R, 21.6.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-06-21T043624Z_01_N20179300_RTRUKOC_0_US-EXECUTION-TEXAS.xml

Prisoners Gain in Suit Attacking Lethal Injection

June 13, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 12 — The Supreme Court opened the door Monday for death-row inmates to challenge the way most states carry out executions by lethal injection.

In its unanimous opinion, the court expressed no view on the constitutionality either of lethal injection in general or of the specific procedures and combination of chemicals that a Florida inmate, Clarence E. Hill, and numerous others around the country have recently challenged in federal court.

The justices addressed themselves solely to the procedural route that such lawsuits must take, and chose the route that is by far the more inmate-friendly from the two options that the case presented.

Nonetheless, it was the tight focus of the case, an appeal by Mr. Hill of a ruling by the federal appeals court in Atlanta, that probably enabled the justices to maintain their unanimity. It remains to be seen how they would rule on the underlying constitutional question of whether the disputed lethal injection method violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Just three weeks ago the court turned down, without comment, a case from Tennessee, Abdur'Rahman v. Bredesen, that presented that issue directly. The justices have also permitted several executions to be carried out by lethal injection, without intervening, while the Florida case was pending.

Federal courts around the country have begun wrestling with the issue, which opponents of the death penalty have brought to the fore in recent months on the basis of a report last year in a British medical journal, The Lancet.

The focus of concern is two of the three chemicals that make up the lethal cocktail used by most states. One is sodium pentothal, an anesthetic, which Mr. Hill argues in his lawsuit is insufficient to make the procedure painless.

The second is pancuronium bromide, which causes muscle paralysis but does not block pain or interfere with consciousness. Studies indicate that while inmates who receive this drug look calm and peaceful as the third chemical, potassium chloride, is administered to stop the heart, they can actually feel intense pain without being able to express themselves.

Mr. Hill's suit maintains that Florida's procedure for administering these three drugs presents a "foreseeable risk of gratuitous and unnecessary pain."

Having been convicted in 1983 of killing a police officer, Mr. Hill had long since run through the ordinary appeals process by the time he filed his suit in state court last December, with his execution set for Jan. 24. After the Florida courts threw the case out, and with the clock running, he turned to federal court with an equally poor result. He was strapped to a gurney, intravenous lines to administer the chemicals already inserted, when Justice Anthony M. Kennedy issued a stay nearly five months ago.

The case was filed under the Civil Rights Act of 1871, a Reconstruction-era law usually referred to as Section 1983, for its placement in the compilation of federal statutes. Section 1983 permits suits against government officials for violation of rights guaranteed by the Constitution or federal laws.

The lower federal courts dismissed the suit, however, on the ground that the only way for an inmate to challenge the method by which he is to be executed is through a petition for a writ of habeas corpus.

While such a petition, like a Section 1983 case, can raise constitutional issues, there is a major problem: both Congress and the Supreme Court have placed high hurdles in the path of inmates seeking habeas corpus. For example, it is almost impossible for an inmate who has filed an initial habeas corpus petition to receive permission to file another one, and Mr. Hill had filed one years earlier. Declaring that his Section 1983 suit was the equivalent of a new habeas corpus petition, the lower courts declared that it was barred.

In his opinion for the Supreme Court on Monday, Justice Kennedy said this analysis was mistaken. He said that while a habeas corpus petition was the only way to challenge the constitutionality of a sentence, Mr. Hill was challenging not his "lethal injection sentence as a general matter," but only the way in which the sentence was to be carried out.

Justice Kennedy noted that if Mr. Hill eventually won his case, Florida would not be barred from executing him by lethal injection but would simply have to use a different protocol.

Mr. Hill is now entitled to pursue his Section 1983 suit in the Federal District Court in Tallahassee, where he filed it in January.

When the case, Hill v. McDonough, No. 05-8794, was argued in April, there was considerable debate over whether Mr. Hill should be required to demonstrate his sincerity by specifying a method acceptable to him. Chief Justice John G. Roberts Jr. was among the justices who appeared to endorse such a requirement. But the justices evidently decided to set that argument aside for now, for the sake of unanimity.

The precedent for the ruling on Monday was a 2004 decision in which the court permitted an inmate to use Section 1983 to challenge a surgical procedure that Alabama proposed to use to gain access to his collapsed veins for the purpose of administering a lethal injection.

    Prisoners Gain in Suit Attacking Lethal Injection, NYT, 13.6.2006, http://www.nytimes.com/2006/06/13/us/13lethal.html?hp&ex=1150257600&en=ecd44db6396c444b&ei=5094&partner=homepage

    Related > http://www.nytimes.com/2006/06/13/us/13lethal.html?hp&ex=1150257600&en=ecd44db6396c444b&ei=5094&partner=homepage

Justices Grant Death Row Inmate a New Hearing in 1985 Tennessee Murder

June 13, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, June 12 — The Supreme Court ruled on Monday that new evidence about a long-ago murder in rural Tennessee, including DNA evidence, raised sufficient doubt about who committed the crime to merit a new hearing in federal court for a man who has spent 21 years on the state's death row.

Justice Anthony M. Kennedy, writing for the 5-to-3 majority, called it "the rare case," and it was: the first time the Supreme Court has factored the result of modern DNA testing into the equation in re-examining a death sentence.

Justice Kennedy emphasized that the court's decision did not exonerate the inmate, Paul G. House, and that the state still had enough evidence against him to "support an inference of guilt." But he said the state's case, when examined in light of the new evidence, was now sufficiently undermined so that "it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt."

That awkward phrase, with its multiple negatives and oblique structure, is the test the court set in a 1995 decision on how a state prisoner who claimed innocence could receive a federal court hearing that would otherwise be barred by procedural obstacles.

In applying that test to Mr. House's case, the court did not make new law. Rather, the majority's goal appeared to be to show the lower federal courts about how to handle such cases in the future, especially when scientific evidence is available that can undermine the prosecution's case while not completely destroying it.

"All the evidence, old and new, incriminating and exculpatory," must be taken into account, Justice Kennedy said. When an inmate comes to federal court with evidence of innocence, he continued, "the court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors."

Peter J. Neufeld, a co-director of the Innocence Project, a legal clinic at the Cardozo School of Law in Manhattan, said on Monday that the broader significance of the case was to demonstrate the court's increased sensitivity to the power of scientific evidence to reveal wrongful convictions. In an interview, Mr. Neufeld said the decision showed how an entire prosecution could be called into question if one aspect was undermined.

The decision was also a reminder that the Rehnquist Court's fault lines have not been erased in the Roberts era, with Justice Kennedy continuing to play a crucial, central role.

The three justices who dissented, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, did not dispute the majority's legal conclusions so much as its interpretation of the facts. Justice Samuel A. Alito Jr., who was not yet on the court when the case was argued in January, did not vote.

In a dissenting opinion, Chief Justice Roberts reviewed in considerable detail much of the evidence that Justice Kennedy canvassed in the majority opinion.

Chief Justice Roberts said the court should have given more deference to the conclusions of the Federal District Court in Chattanooga, which held a hearing in 1996 and rejected Mr. House's claim of innocence after considering his new evidence.

"By casting aside the district court's factual determinations made after a comprehensive evidentiary hearing, the majority has done little more than reiterate the factual disputes presented below," Chief Justice Roberts said, adding: "Witnesses do not testify in our courtroom, and it is not our role to make credibility findings and construct theories."

The specific question for the Supreme Court in this case, House v. Bell, No. 04-8990, was whether the inmate was entitled to an exception to the general rule that legal issues not properly presented to the state courts are forfeited and may not be brought to federal court through a petition for a writ of habeas corpus.

In a 1995 case, Schlup v. Delo, the Supreme Court opened what it called a "gateway" through this barrier to enable an inmate with a plausible claim of innocence, based on newly discovered evidence, to get before a federal judge and thus prevent a "manifest injustice." The gateway, the court said then, was reserved for the "truly extraordinary" case in which the inmate could present evidence that undermined confidence in the jury's verdict.

In his opinion on Monday, Justice Kennedy identified three aspects of Mr. House's case that, taken as a whole, qualified him to pass through the gateway to a habeas corpus hearing in federal district court.

One was the DNA evidence, which excluded Mr. House as the source of semen found on the murder victim, Carolyn Muncey. The case against Mr. House was circumstantial. The prosecution's theory was that he killed Mrs. Muncey, a neighbor, in the course of raping her. An earlier, much cruder test had identified him as a possible source of the semen. The DNA test showed the semen to be from Mrs. Muncey's husband.

"When the only direct evidence of sexual assault drops out of the case," Justice Kennedy said, "so, too, does a central theme in the state's narrative linking House to the crime."

Justice Kennedy said that new evidence linking the husband, William Hubert Muncey Jr., to the crime was another important part of the picture. Mr. House presented two witnesses who testified that they heard Mr. Muncey make a drunken confession around the time of Mr. House's trial, along with another witness who said she saw Mr. Muncey hit his wife on the night of the murder.

At the trial, the prosecution told the jury that Mrs. Muncey's blood had been found on Mr. House's blue jeans. Mr. House's new evidence raised the prospect that the blood had been spattered from a mishandled vial of Mrs. Muncey's blood. Justice Kennedy said that the "evidentiary disarray" on this question would have prevented "reasonable jurors," had they known of it, "from placing significant reliance on the blood evidence."

    Justices Grant Death Row Inmate a New Hearing in 1985 Tennessee Murder, NYT, 13.6.2006, http://www.nytimes.com/2006/06/13/washington/13scotus.html?_r=1&oref=slogin

Court Orders a New Trial for an Inmate on Death Row

June 9, 2006
The New York Times
By ADAM LIPTAK

The Virginia Supreme Court yesterday threw out a jury verdict finding that a man on death row is not mentally retarded and is therefore eligible for execution. The court ordered a new trial on the question of whether the inmate, Daryl R. Atkins, is retarded.

In 2002, in a case brought by Mr. Atkins, the United States Supreme Court barred the execution of the retarded. But the court did not decide whether Mr. Atkins himself fell within accepted definitions of retardation, and Virginia prosecutors have since been trying to prove that he should not receive the benefit of the decision with his name on it.

Virginia requires capital defendants who say they are retarded to prove three things: that their I.Q. is below about 70, that they lack fundamental social and practical skills, and that both conditions existed before they turned 18.

Mr. Atkins's I.Q. has been measured variously as 59, 74 and 76.

In an interview yesterday, Joseph A. Migliozzi Jr., a lawyer for Mr. Atkins, gave an example of his client's struggles with everyday life. "When Daryl was in ninth grade," Mr. Migliozzi said, "he was copying a friend's work at school. Daryl copied the entire assignment, including the other guy's name, and turned it in."

In 1996, Mr. Atkins, then 18, and another man abducted Eric Nesbitt, 21, an airman from Langley Air Force Base, forced him to withdraw money from an A.T.M. and then shot him eight times, killing him. Prosecutors have contended that the crime itself is evidence that Mr. Atkins is not retarded.

In yesterday's decision, the Virginia Supreme Court said the trial judge, N. Prentis Smiley Jr., of the York County-Poquoson Circuit Court in Yorktown, had made two mistakes in the trial, which was held last year and was limited to the question of whether Mr. Atkins is retarded.

Judge Smiley should not have told the jury that Mr. Atkins had been sentenced to death by another jury, the State Supreme Court ruled. "In other words," Justice Cynthia D. Kinser wrote for the unanimous court, "the jury knew that, if it found Atkins mentally retarded, it would in effect be nullifying another jury's verdict."

Judge Smiley's second error, Justice Kinser wrote, was to allow testimony from an expert witness who was unqualified.

Eileen M. Addison, the prosecutor, did not immediately respond to a message seeking comment.

Mr. Migliozzi, Mr. Atkins's lawyer, said he was gratified by yesterday's decision but not looking forward to what will be his client's fourth trial.

Governor Delays Execution

RICHMOND, Va., June 8 (AP) — Gov. Timothy M. Kaine on Thursday delayed the execution of a triple killer just over an hour before he was scheduled to be put to death.

The man, Percy Walton, 27, had been scheduled to die by injection at 9 p.m. at the Greensville Correctional Center for the 1996 murders of three neighbors in Danville.

Mr. Kaine, a Democrat, delayed the execution for six months to allow an independent evaluation of Mr. Walton's mental condition and competence.

The decision came moments after the Supreme Court rejected a request for a stay of execution.

    Court Orders a New Trial for an Inmate on Death Row, NYT, 9.6.2006, http://www.nytimes.com/2006/06/09/us/09execute.html

Judging Whether a Killer Is Sane Enough to Die

June 2, 2006
The New York Times
By RALPH BLUMENTHAL and ADAM LIPTAK

HOUSTON, June 1 — Scott Panetti, a death row inmate in Texas, understands that the state says it intends to execute him for the murder of his wife's parents.

But Mr. Panetti, 48, who represented himself in court despite a long and colorful history of mental illness, says he believes that the state's real reason is a different one. He says the state, in league with Satan, wants to kill him to keep him from preaching the Gospel.

That delusion has been documented by doctors and acknowledged by judges and prosecutors. It poses what experts call the next big question in death penalty law now that the Supreme Court has barred the execution of juvenile offenders and the mentally retarded: what makes someone too mentally ill to be executed?

A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, recently said Mr. Panetti was sane enough to die. The full court will soon decide whether to hear the case.

Mr. Panetti, in prison now almost 14 years for the killings in 1992 in the quaint Hill Country city of Fredericksburg, has long seemed to exemplify madness, addressing himself to the jury in his trial in 1995 as "the born-again April Fool," a schizophrenic healed by God.

In and out of mental institutions 14 times and addicted to drugs and alcohol since he almost drowned as a child and was nearly electrocuted by a power line, Mr. Panetti wore cowboy costumes to court, delivered rambling monologues, put himself on the witness stand and sought to subpoena the pope, Jesus and John F. Kennedy.

Jurors were clearly alienated and took little more than an hour to reject his insanity defense.

They found that Mr. Panetti knew right from wrong and so deserved the death penalty. That is a separate question from whether his mental illness should bar his execution.

Two decades ago, the United States Supreme Court in Ford v. Wainwright ruled that the Eighth Amendment prohibited the execution of the insane. Since then, lower courts have struggled to find a way to apply that principle in practice.

The state and federal courts that have heard Mr. Panetti's case have said that a bare awareness of the fact of impending execution and the stated reason for it is enough.

"In Texas," said Greg Wiercioch, a lawyer with the Texas Defender Service who has consulted with Mr. Panetti's defense, "if you cast a shadow on a sunny day, you're competent to be executed."

Other courts require more. Relying on a concurring opinion in the Supreme Court decision, they say the inmate actually has to perceive the connection between the crime and the punishment.

The three-judge panel in Mr. Panetti's case acknowledged that he was mentally ill with what has been diagnosed as schizoaffective disorder and that he thus might lack a rational understanding of his fate. But the panel nonetheless ruled that he was competent to be executed because he was able to understand the stated basis for his execution.

His new lawyers dispute that.

"He completely scoffs at the notion that it's the State of Texas trying to execute him," said Keith Hampton, a lawyer from Austin who filed the latest appeal with a co-counsel, Michael C. Gross of San Antonio. "He thinks it's the demons and evil ones."

Legal and medical experts estimate that hundreds of people with schizophrenia and other severe mental illnesses are on death rows around the nation.

Courts have spared the lives of seven inmates based on the 1986 decision, the Texas Defender Service said.

David R. Dow, a law professor at the University of Houston who has met more than 75 death row inmates, visited Mr. Panetti at his lawyers' request. "Of all the people I have met on death row, he's the gold-medal-crazy winner," Professor Dow said.

On Sept. 8, 1992, Mr. Panetti broke into the home of his in-laws, Joe and Amanda Alvarado, and shot them to death in front of his estranged second wife, Sonja, and his 3-year-old daughter, Amanda, known as Birdie.

Taking on his defense, and calling himself as a witness, he argued that he had been taken over by an alter ego he called Sarge Ironhorse.

"Sarge boom boom," Mr. Panetti testified. "Sarge is gone. No more Sarge. Sonja and Birdie. Joe, Amanda lying kitchen, here, there blood. No, leave. Scott, remember exactly what Sarge did. Shot the lock. Walked in the kitchen. Sonja, where's Birdie? Sonja here."

Prosecutors, their medical experts and the courts agreed that Mr. Panetti suffers from mental illness. Judge Sam Sparks of Federal District Court in Austin found in 2004 that Mr. Panetti's illness was characterized by "grandiosity and a delusional belief system in which he believes himself to be persecuted for his religious activities and beliefs."

Judge Sparks said that was not enough to spare Mr. Panetti.

Others agree.

Robert Blecker, a law professor at the New York Law School and a cautious supporter of the death penalty, said Mr. Panetti's execution could serve the goal of retribution.

"He knows what he did," Professor Blecker said. "He knows what the state is about to do to him, and why. For the retributivist, the past counts. It counts for us, and for us to be retributively satisfied, it must also count for him."

Prosecutors made the same point in a brief to the Fifth Circuit last year.

"All that is required to avoid the Eighth Amendment prohibition against cruel and unusual punishment is that the petitioner factually understand the reason for this punishment," the prosecutors wrote.

Executions of inmates who exhibited signs of madness are not unusual. In 1992, Arkansas executed Ricky Ray Rector not long after he put aside the dessert of his last meal to eat later.

In March, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., split, 7 to 6, over whether Percy L. Walton could be executed, notwithstanding his delusional belief that after his death he would "come back as a better person" and "get a Burger King." A majority said this was proof that Mr. Walton understood he would be executed.

"That a person believes that he will have an 'afterlife,' however strange his views of that 'afterlife' may be," Judge Dennis W. Shedd wrote, "necessarily suggests he believes his existing life will end."

The laws of most states, based on English common law, have long banned the execution of the insane.

"The reasons for the rule are less sure and less uniform than the rule itself," Justice Thurgood Marshall wrote in the 1986 case.

Some judges say the "miserable spectacle" of such executions simply offends humanity. Others say retribution is not served by executing someone who cannot understand why he is being put to death. Still others point to the inability of the insane to assist their lawyers in last-minute litigation. In the Middle Ages, it was thought that madness was its own punishment.

Mr. Hampton, who filed the latest appeals brief, said that from the trial on he was revolted by the Panetti case.

"I thought there was no way, no way, no matter how bad things in the state of Texas got, that it would allow someone in the full flower of schizophrenia to represent himself," he said.

But in repeatedly calling himself insane — "I went nuts," Mr. Panetti told the police officers after the killings, "well, I am nuts" — Mr. Panetti seemed to have run into his own Catch-22, leaving jurors skeptical of anyone so eager to establish his insanity.

Now the courts, taking one last look at Mr. Panetti, must decide whether he is sane enough to die.

Ralph Blumenthal reported from Houston for this article, and Adam Liptak from New York

    Judging Whether a Killer Is Sane Enough to Die, NYT, 2.6.2006, http://www.nytimes.com/2006/06/02/us/02execute.html