Society has no place for death penalty

THE death penalty has no place in modern society. It is the most abhorrent act available to man - the deliberate taking of a human life in the name of justice.

The absolute truth of these statements came to me on February 3, 1967, the day that Ronald Ryan was executed at Pentridge Prison - the last man to be hanged in Australia.

I was a witness to the execution.

Together with 11 other journalists, I watched as Ryan was led to the gallows in the centre of a catwalk spanning the first level of the D Division cell block.

I watched as the hangman looped the noose around his neck. I watched as the hood was pulled down over his face.

As the hangman leapt for the lever and the gallows crashed open, sending Ryan to his death at the end of the rope, I closed my eyes - it was too much to bear.

It was the most deliberate, callous and barbaric act I have ever witnessed.

The memory haunts me to this day - that I saw a man deliberately killed in the name of the law.

I walked into Pentridge that day with no clear views on capital punishment. The execution was the biggest story of the year and I had a job to do in reporting it.

I walked out of Pentridge determined to work in whatever way I could to try to have capital punishment abolished, and that work continues today.

The case of Leigh Robinson this week brings back so many memories from that dreadful day in 1967.

Robinson was found guilty this week of the execution-style murder of Melbourne mum Tracey Greenbury last year.

In the immediate post-Ryan era, Robinson was one of the recipients of the virtual mandatory commutation of death sentences by the Government until the death penalty was wiped from the Victorian statute books in the 1970s.

I feel deeply for Pam and Max Greenbury with the news that the killer of their daughter Tracey last year was convicted of murder 41 years ago.

Leigh Robinson should never have been released from prison after his conviction in 1968 for the murder of Valerie Ethel Dunn.

He was sentenced to death, later commuted to 30 years' jail. He was released after 15 years.

Surely this is not good enough in the 21st century.

The alternative to the death penalty must be severe, in my view.

That alternative should be life imprisonment. No parole. No dispensations. Deprivation of a convicted killer's freedom - for life.

It is wonderful to read reports that Pam and Max Greenbury are opposed to the death penalty despite the enormous trauma they have experienced.

They share the view that Robinson should be locked up in jail forever.

One hopes that if that happens, it will bring some comfort to them in their terrible loss.

The death penalty must never be allowed to return in Australia.

It is heartening to know that many countries around the world are abolishing it or moving towards abolition. Our Federal Government has a continuing role to help ensure that this movement continues.

The execution of Ronald Ryan was the most callous and brutal act I have ever witnessed. The details are etched indelibly in my memory. I still cannot talk about it without the horror and emotion almost overwhelming me.

I came away from Pentridge Prison in 1967 firmly opposed to capital punishment - simply because when I continue to ask myself time and again what that act achieved, I find only one answer: it achieved nothing.

By Brian Morley, Herald Sun, October 01, 2009

Dead Man Talking

Survivor of Ohio's latest botched execution reveals breathtaking incompetence

Romell Broom achieved a macabre notoriety this past month when he became the first man to survive his date with the needle. Not just in Ohio, but anywhere.

The convicted rapist and murderer endured more than two hours of poking and stabbing before his date with death was called off indefinitely. His executioners could not find a vein to plant intravenous shunts, and they prodded him with needles at least 18 times to no avail, says Tim Sweeney, his lawyer.

The eyes of the world are on Ohio now, and many are questioning our death-penalty apparatus.

It was the first time an execution was called off while in progress, but it wasn't the first time our executioners unintentionally prolonged their work. In 2006, inmate Joseph Clark uttered "It don't work" as his handlers bungled an IV attachment and delayed his doom for more than an hour. In 2007, techs took close to two hours to find a vein and put down obese inmate Christopher Newton; at one point, they granted Newton a restroom break.

Broom lived to tell his tale in an affidavit filed in Columbus federal court days after surviving the death chamber. He described his time on a prep table as two technicians (he called them "nurses") struggled to find veins in his arms. Blood gushed as they pricked him. At one point, "The female nurse left the room," writes Broom. "The correction officer asked her if she was OK. She responded 'no' and walked out.

"I tried to assist them by helping to tie my own arm," recounts Broom. Witnesses said Broom turned on his side and flexed his arms to further assist. A third tech came into the room, and the workers repeatedly stabbed Broom in the arms, right ankle, lower right leg and right hand. Broom said he bled, bruised and felt a needle hit his ankle bone. The executioners' futile attempts left scores of puncture marks.

When Ohio prison director Terry Collins came into the room to tell Broom that the execution would be postponed, "Collins indicated that he appreciated my cooperation and noted my attempts to help the team."

Complications have confounded the Ohio execution team in one out of every 11 lethal injections. Prison officials have defended their employees, a group of at least a dozen men and women whose anonymity remains protected by court order.

In the face of international scrutiny, prison officials continue to defend Ohio's death team. "We believe they do a job most people couldn't do," says Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction. "We believe they do it professionally and appropriately."

Walburn says the state is not preparing a formal report in response to the Broom episode.

All states that practice capital punishment maintain strict privacy policies, with California ranking as the most open, says Richard Dieter, executive director of the Death Penalty Information Center. This shroud poses a fundamental problem for states looking to defend their actions when questions arise. "With the fact that these mistakes happen, the explanation of 'Trust me, we're doing this right,' loses credibility," says Dieter. "There needs to be access, observation, to see what's claimed is what really happens.

"This is about keeping control of public perception, that lethal injection is antiseptic, a pain-free method," he continues. "It could be said that a firing squad or the guillotine are quicker and painless, but people don't want to go there."

Critics of the death penalty say a lack of public review fosters secrecy and denies accountability. The American Civil Liberties Union of Ohio filed a public-records request in an attempt to learn more about execution preparations, says Carrie Davis, the organization's staff counsel. There's no way to judge execution teams' credentials or work history, and because the state does not request autopsies of the dead inmates, there's no way to determine if the drugs were administered correctly.

"These people are carrying out a state-sanctioned killing in our name," says Davis. "These are our tax dollars at work. This is not a private enterprise. They are state employees."

What little we know about execution team members emerged in March in a federal lawsuit by Ohio death-row inmates challenging lethal injection. Ohio's former executioner (he retired in July, according to the Associated Press) testified while hidden behind a shield. He rattled off a job history that included hospital aide, paramedic and a manager for inmate vocational programs. Neither he nor his understudy — also an EMT —received training on the use or exact effects of the drugs in relation to certain dosages, according to court records. Instead, through his mirrored window, the 53-year-old career prison worker watched dying inmates "for vital-sign changes, watching for movement changes, just watching the person as I would if it was a person in my care."

Dr. Jonathan Groner takes issue with what he deems unqualified personnel using the instruments of his vocation — IVs, syringes and drugs — to kill. Groner, a professor of clinical surgery at the Ohio State College of Medicine and a staunch death-penalty abolitionist, says Ohio is caught in a "Hippocratic paradox." Those most qualified to help the state in executions — doctors, nurses, practicing EMTs — are forbidden from taking part in executions by codes of ethics and state boards. (Recently, the Ohio board that governs EMTs ruled that the state's executioners, despite their EMT certification, were outside the board's jurisdiction and thus free from sanction because they are not representing themselves as EMTs during the executions. At least two emergency medical technicians are part of a squad largely comprising prison guards, according to the Associated Press.)

Trained medical professionals are more likely to handle unexpected situations with success than the people the state uses in executions, says Groner. "People who put in IVs everyday — such as city paramedics, nurses in a hospital — they don't have these [technical] problems. For a person who does it for a living, it's like driving a car." In the pressure cooker that is the state death chamber, he adds, "you match the most difficult cases with the least experienced" personnel.

Problems with lethal injection forced Florida governor Jeb Bush to temporarily delay capital punishment in 2006 after an autopsy showed that the chemicals had infiltrated Angel Diaz' muscle tissue instead of his bloodstream. New Jersey temporarily halted the death penalty as it revised its execution procedures, but abolished the practice in 2007 after a greater debate on the capital punishment. Maryland, California and North Carolina have frozen their systems as they debate policy.

Ohio is the only state that has a law that requires a quick and painless execution, and Broom's lawyer, Tim Sweeney, argues that the state has not fulfilled that requirement.

"I think there are serious questions of whether the state is using the right people to carry out a relatively complex procedure," says Sweeney. "If the drug isn't administered properly, the inmate will assuredly be tortured to death."

U.S. District Court Judge Gregory Frost plans to hear Broom's arguments in Columbus on November 30 — well after the state's next execution, scheduled for October 8. Newspaper editorials have called for a halt. Ohio secretary of state and U.S. Senate candidate Jennifer Brunner recently became the highest-ranking state official to call for a moratorium.

Governor Ted Strickland's office has received more than 1,100 messages about the death penalty," says his spokesperson Amanda Wurst. She said Strickland cannot legally issue a blanket moratorium, and he has yet to issue a clemency ruling for Lawrence Reynolds, the next inmate in line for execution.

Broom's victim was a 14-year-old East Cleveland girl named Tryna Middleton. As she walked home from a football game, Broom kidnapped her at knifepoint, raped her and fatally stabbed her seven times. I visited her parents on Friday with the hopes of getting their take on this swirling debate.

Bessye Middleton answered the door, but deferred to her husband, a tall, burly man who came out onto his porch to speak with me. David Middleton accepted my handshake and listened coolly, but he did not want to be interviewed. He said that he's tired of exploitative reporters on his front yard and tired of the whirlwind events that have swept his family into the national spotlight.

When I told him that I had witnessed an execution in 2004, he perked with curiosity, and we chatted a bit more. I shared with him my haunting recollection of Lewis Williams' death. I asked him if the execution room was as dark as I remembered it. "Like a horror movie," he said.

Then he noted that his daughter was never coming back. It was difficult to look him in the eye when he said this. He wants to be left alone, he said. This isn't a horror movie for him; this is a tragedy he never asked for. I wished him the best and left. "I'm through with this," he said as I walked away. "Whatever happens, happens."

Source: ClevelandScene, Sept. 30, 2009

Texas Fugitive caught by HPD gets reprieve

A Texas death row inmate won a reprieve Tuesday from a federal appeals court a day before he was scheduled for execution for a triple slaying in Amarillo almost 12 years ago.

The 5th U.S. Circuit Court of Appeals issued a brief one-paragraph order stopping the lethal injection of John Balentine, set for Wednesday evening, "pending further order of this court." Balentine's appeal to the New Orleans-based 5th Circuit said lower courts had not properly resolved his earlier appeals.

The Texas Attorney General's Office was appealing to get the order lifted, spokeswoman Lauri Saathoff said.

Balentine, 40, would have been the 19th prisoner executed this year in the nations most active death penalty state.

Balentine was condemned for the January 1998 shooting deaths of Mark Caylor Jr., 17; Kai Brooke Geyer, 15; and Steven Watson, also 15. Caylor was the brother of Balentine's former girlfriend, and prosecutors said the shootings capped a feud between Caylor and Balentine.

Evidence showed all 3 victims were shot once in the head as they slept in a tiny house where Balentine also once lived.

When he was pulled over in Houston in July 1998 and gave a traffic cop a false name, the alias was detected as one used by a man wanted in the shooting deaths of the 3 teenage boys earlier that year in Amarillo, 600 miles to the northwest.

Balentine, who had a lengthy criminal record in his native Arkansas, was arrested and confessed. He was tried in Amarillo for capital murder, was convicted and sentenced to die.

In appeals, Balentine's attorneys argued his trial lawyers were deficient for failing to develop mitigating evidence to show his childhood of poverty, domestic violence and abuse. They also contended a pool of state-appointed appeals lawyers to represent death row inmates like Balentine in initial appeals included unqualified or deficient attorneys.

"The ability of a prisoner to obtain relief is wholly dependent upon the luck of the draw," Lydia Brandt, a Dallas-area lawyer representing Balentine, told the U.S. Supreme Court in a petition seeking a review of the case. "Mr. Balentine was one of the unlucky death-sentenced prisoners."

She said the claims never were raised earlier, and were blocked now in the lower state courts, because of a broken system.

"The state corrective process as a whole was ineffective, Brandt insisted.

Texas law provides for appointment of a lawyer in death penalty cases but "the provision does not create a right to complain" about the outcome of that legal representation, the Texas Attorney General's Office responded. The Texas Court of Criminal Appeals has refused to hold that an inmate's lawyer must be "constitutionally effective" and has declined to turn a "legislative act of grace" into a constitutional right, state attorneys added.

In a tape recorded statement to police played at his trial, Balentine said he moved out of the Amarillo house because of drug use there, then said he learned later that Caylor was looking to kill him because he had "jumped on his sister." He slipped into the house and "shot Mark in the head and shot the other 2 in the head," he said.

"Mark had threatened my life, threatened my brother, girlfriend and the kids, waving a gun and talking about what he was going to do to me and whoever else come over there looking for me and stuff," he said.

He also said he didn't know the other 2 victims.

A neighbor heard a gunshot and called police. An officer responding spotted Balentine walking down a street. Balentine identified himself as John Lezell Smith, had no identification but a records check showed outstanding traffic warrants for Smith.

The officer handcuffed him and in a search found an unspent .32 caliber bullet in his pocket. A police supervisor told the officer since it was not illegal to be carrying a bullet, Balentine could be released.

Later that day, police were called to scene of the 3 homicides, 50 yards from where Balentine was questioned.

It would be 6 months before he was picked up in Houston.

Balentine, from Jackson County, Ark., northeast of Little Rock, had previous prison terms in his home state for burglary, kidnapping, assault and robbery.

"It was a strong circumstantial case," Randy Sherrod, one of Balentine's trial lawyers, recalled. "They found evidence that matched the bullet that was on him a very short time after the 3 kids were shot. The main thing I remember about that case is we raised enough questions with the prosecutors that they offered life sentence."

Balentine refused it, went to trial and got death. He declined to speak with reporters in the weeks preceding his scheduled punishment.

Source: Associated Press,Sept. 30, 2009

Nebraska: 3-drug combo is execution cocktail

Nebraska corrections officials propose to execute condemned prisoners with a 3-drug combination.

The drugs would be the same used in all other states that carry out the death penalty by lethal injection an anesthetic, a paralyzing agent and a drug to stop the prisoner's heart.

Death penalty critics attack the drugs, saying they can cause prisoners to suffer and that veterinarians have rejected using them to euthanize animals.

But the three-drug protocol is outlined in draft rules and regulations for Nebraska executions officials released Monday.

The proposed rules would carry out the state's new lethal injection law. A public hearing is set for Nov. 16 at the State Office Building in Lincoln.

Robert Houston, director of corrections, said staffers who developed the draft protocol did not consider other drugs.

"Those are the most accepted," he said. "We believe that that protocol follows state law and reflects the best procedures from around the country."

But Mike Nelsen, an Omaha attorney who has defended people on death row, predicted that the protocol would become an immediate target for legal action:

"This will prompt a substantial legal challenge, and the state will spend money needlessly that they could spend on other things."

Nelsen said a botched execution in Ohio this month illustrates some of the problems with lethal injection.

Ohio Gov. Ted Strickland ordered a halt to the execution of Romell Broom, 53, on Sept. 15 after technicians tried for 2 hours to get an intravenous line started. Appeals are pending on whether the state can try again.

Houston said Nebraska officials would study the Ohio case in hopes of avoiding similar problems.

The state's draft protocol calls for a team of at least 12 people to carry out an execution.

None would have to be licensed health care professionals, although two team members would have to get training as emergency medical technicians and in drawing blood and starting IV lines.

The execution team would include the department director, the Nebraska State Penitentiary warden, the penitentiary staff communicator, at least seven people to escort the prisoner and a 2-person IV team. The IV team is to start an intravenous line and administer the drugs when the director orders.

The draft rules spell out the order and dosage of the drugs.

The warden is to do consciousness checks after the 1st drug is administered. The checks are to determine whether the prisoner is anesthetized before giving the 2nd drug, a paralyzing agent.

Houston said he expects to draw the team members from among corrections staff.

Nebraska was the last death penalty state to adopt lethal injection as its method of execution. State lawmakers approved the change earlier this year.

The Nebraska Supreme Court had declared the previous method of execution the electric chair to be cruel and unusual punishment in March 2008.

Nebraskans Against the Death Penalty is studying the draft protocol and won't have specific comments until later, said Jill Francke, the group's statewide coordinator.

But, she said, the state's proposal doesn't address major flaws in the death penalty process.

"We certainly don't see this as any sort of improvement to fix a system that is clearly broken," Francke said.

Nebraska Attorney General Jon Bruning said the state learned from others in crafting its lethal injection protocol.

It also has the benefit of a U.S. Supreme Court ruling last year that upheld Kentucky's lethal injection law. The 2 dissenting judges in the case recommended the consciousness checks.

Bruning said he expects the rule-making process to be completed "within the next few months." By law, the attorney general and governor have to review and approve the rules.

Source: Omaha World-Herald, Sept. 29, 2009

Ohio: Condemned inmate Lawrence Reynolds wants execution delayed

A death row inmate has asked the Ohio Supreme Court to delay his upcoming execution in light of problems with the state's last scheduled lethal injection.

Attorneys for Lawrence Reynolds filed a motion with the state's highest court today, days after a similar filing with a federal appeals court.

Reynolds execution scheduled for Oct. 8 would be the 1st since the state's unsuccessful attempt at putting Romell Broom to death on Sept. 15. The lethal injection procedure was halted by Gov. Ted Strickland after executioners struggled for 2 hours to find a usable vein.

Broom's execution has been delayed until at least Nov. 30.

Reynolds' lawyers argue that Ohios lethal injection system should be investigated before he goes to the death chamber.

Source: Cleveland.com, Sept. 30, 2009

Five people were hanged in north-eastern Iran

Five people were hanged in the prison of Taybad, north-east of Iran reported the official news site of the Iranian police.

Those executed were convicted of drug trafficking and none of them were identified by name. No further details were given in the report.

The executions took place at about 9 pm, September 28, according to the report.

Source: Iran Human Rights, Sept. 30, 2009

Ohio: Freeze on lethal injections sought

The ghosts of problem executions past combined with an aborted attempt two weeks ago are haunting state prison officials as death-penalty foes argue that Ohio's lethal injections should be halted, at least temporarily.

The Ohio public defender, in motions filed yesterday in state and federal courts, contends that the botched attempt to execute Romell Broom on Sept. 15 - coupled with problems in two previous executions - warrants postponing the scheduled lethal injection of Lawrence Reynolds next week.

"Until a thorough and proper review of Ohio's lethal injection protocol is conducted, executions should not be allowed to proceed in the state," Kelly L. Schneider, head of the public defender's death-penalty section, told The Dispatch yesterday. "It seems like the logical thing to do is to take a step back and see what's going on here."

The prison execution team "demonstrated that it is wholly incapable of administering Ohio's lethal injection protocol" in line with the federal and state constitutions and Ohio law, the public defender said in a motion filed in the Ohio Supreme Court. A motion also was filed in the 6th U.S. Circuit Court of Appeals in Cincinnati.

Further, the public defender cited the "inadequacy of Ohio's lethal injection protocol" and lack of a contingency plan in its attempt to get a stay of execution for Reynolds.

Ohio Attorney General Richard Cordray's office, in a response to the federal filing, countered that "the difficulties in accessing Broom's veins and the postponement of (his) execution are not indications that the execution of Reynolds or other prisoners cannot be conducted appropriately."

Further, the state said, Broom was not subjected to "cruel and unusual punishment in violation of the Eighth Amendment. The relatively minor pain he experienced does not rise to the level of extreme pain or torture prohibited by the Eighth Amendment."

The Ohio Supreme Court has set four additional execution dates in the following four months: Darryl Durr of Cleveland on Nov. 10, Kenneth Biros of Trumbull County on Dec. 8, Vernon Smith of Lucas County on Jan. 7 and Mark Brown of Mahoning County on Feb. 4.

In her appeal, the public defender cited two previous problem executions. Joseph Clark was stuck 19 times during his execution in 2006, and the next year Christopher Newton's IV process took so long that he was allowed to take a bathroom break.

With Broom's execution now pushed back by at least 60 days, the attention has turned to Reynolds. Barring court intervention, the 43-year-old killer from Akron will be put to death at 10 a.m. Oct. 8 at the Southern Ohio Correctional Facility near Lucasville. He was convicted and sentenced to death for murdering Loretta Foster, a 67-year-old neighbor, on Jan. 1, 1994.

The court late last week set a hearing in Broom's case for Nov. 30. A new execution date would have to be after that date.

Broom, 53, of Cleveland, was sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton on Sept. 21, 1984.

Broom's would-be executioners struggled unsuccessfully for two hours to attach IV lines, reportedly sticking the convicted killer 18 times, sometimes striking muscle and bone and causing severe pain, according to the inmate's deposition. The execution was abandoned when Gov. Ted Strickland granted a temporary reprieve.

Within hours, Ohioans to Stop Executions called for a halt to executions, saying Broom's case made it "obvious that no amount of adjustment to the death penalty process can achieve an outcome absent of pain and suffering for victims' family members, witnesses, corrections workers and the condemned inmate."

The American Civil Liberties Union also weighed in on the Broom case, and the death-penalty center at the University of California, Berkeley School of Law is providing resource and communications support to the public defender.

Source: The Columbus Dispatch, Sept. 29, 2009

Changing your mind about the death penalty

A lot of people opposed to the death penalty have stories of conversion, but none could possibly be more powerful than those who have been victimized by the crimes eligible for such a punishment.

The family members of murder victims are often assumed to be of one mind on the death penalty. I know of no study that quantifies what percentage may be opposed, and I doubt we could ever really know, but the group Murder Victims' Families for Human Rights has asked some of its members to walk us through their own conversion stories. It's powerful reading.

Here's part of one mother's story: "It was expected by everyone that I would want the death penalty. Not a single person ever sat down and talked with me about other options..."

Click here to read this feature in full.

Source: The Dallas Morning News, Sept. 29, 2009

All eyes on Lucasville in next execution attempt

COLUMBUS – Will it fail again? Will there be another last-minute court stay or reprieve ordered by the governor? Or will Ohio move ahead and try to execute Romell Broom for the second time in December?

Whatever happens, the attention of death penalty opponents and supporters nationwide is focused on the Southern Ohio Correctional Facility in Lucasville – home to the Death House and 32 executions by lethal injection since 1999.

The attempted execution of Romell Broom, 53, on Sept. 15 was the first lethal-injection ever stopped due to problems finding a usable vein.

The only other time a U.S. execution failed after the process began was more than 50 years ago when Louisiana tried to electrocute 17-year-old Willie Francis. A 5-4 U.S. Supreme Court ordered a second try in the electric chair on May 9, 1947.

A plan to try a second time was halted Tuesday by a federal judge after Broom’s attorneys sued the state, saying a repeat attempt would be “cruel and unusual punishment” and “double jeopardy,” prohibited under the U.S. and Ohio Constitution.

The 25th anniversary of Broom’s crime was Monday, but the family of 14-year-old Tryna Middletown, abducted at knifepoint, raped and murdered while walking home from a football game, will have to wait at least two more months to find out whether her killer will be executed or spend the rest of his life in prison.

U.S. District Court Judge Gregory Frost on Tuesday rescheduled a hearing planned for Monday until Nov. 30. The state did not contest Frost’s order.

Broom was taken back across the state, from Lucasville to the Ohio State Penitentiary – a super-maximum security prison that houses most Death Row inmates in Youngstown – last Sunday.

After prison medical staff couldn’t keep a vein open on Broom’s arms and legs so they could hook him up to the tubes carrying lethal chemicals, Gov. Ted Strickland, a former prison psychologist at Lucasville, ordered a week-long reprieve. No Ohio governor has issued a similar last-minute reprieve since the state resumed executions in 1999.

Strickland has asked his prison director for recommendations on how to proceed. “They are putting together recommendations for the governor. … There’s not a set deadline,” said Amanda Wurst, Strickland’s spokeswoman.

Broom told his attorneys he counted 18 puncture wounds on his arms after emergency medical technicians from Lucasville prison struggled to keep a vein open during two hours of attempts.

“The pain, suffering and distress to which Broom was subjected went well beyond that which is tolerated by the United States and Ohio Constitution,” the court complaint says. “It was a form of torture that exposed Broom to the prospect of a slow, lingering death, not the quick and painless one he was promised …”

Any repeat attempt is expected to attract heightened protests by those opposed to capital punishment in Ohio and media attention.

Sister Alice Gerdeman of Cincinnati, president of Ohioans to Stop Executions, stood outside Lucasville prison Sept. 15, but hopes she doesn’t have to return. “We’re there to be there in support and in prayer with the person who is being executed, with the family members of both the executed and the victims.”

Sister Helen Prejean, during a Monday speech at Xavier University, likened Broom’s treatment to torture.

Prejean, author of “Dead Man Walking” and “The Death of Innocence,” said, “Ohio has become a killing field … When that needle is put in, our hand is on it.”

The lethal injection setbacks also sparked national debate among death penalty observers and legal scholars.

“No state has said, ‘We have a better method,’ ” said Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington, D.C.

“There are a lot of issues that could prevent this from happening,” Dieter said. “You may not be able to do it, period.”

“Every state has gone to lethal injection as presumably the more humane way,” Dieter said. “What’s at issue here is what’s palatable or acceptable for the guards, the witnesses, the victim’s family members (and) the public.”

Theoretically, a firing squad – still offered as an alternative to lethal injection in Utah – works 100 percent of the time, Dieter said, “But whether people want that bloody scene, or electrocution or gas chamber with all that it represents from the past, I doubt it. So lethal injection may be the only real alternative. But that doesn’t mean it couldn’t be changed. … There will be other executions in Ohio, and some other change may have to be made.’’

In an interview with The Enquirer two days after the failed execution, attorney S. Adele Shank said Broom’s arms “were still swollen and red. There were many, many red welts. … It was very traumatizing for him. His anxiety is high.”

Bessye and David Middleton, who witnessed the attempted execution in memory of their daughter, Tryna, have said they want her killer’s execution to proceed.

Complaints filed in the U.S. District Court on Sept. 18 name Strickland, state Department of Rehabilitation and Correction Director Terry Collins, Lucasville Warden Phil Kerns and 12 unnamed members of the execution team, prison employees identified as John and Jane Doe.

During and after the unsuccessful execution attempt Sept. 15, Collins and his department praised the execution team for its professionalism and compassion while carrying out their legal duties.

Collins said Broom was asked if he wanted to take any breaks, but said no. The inmate helped the team locate veins several times, rolling onto his side and massaging his arms.

“They are all experienced and trained,” DRC spokeswoman Julie Walburn said of the prison employees who volunteer for execution duty.

“We are never 100 percent perfect 100 percent of the time,” Collins said after Strickland ordered the reprieve. “This is an extremely trying time for lots and lots of people.”

In a separate development, Shank denied a report that Broom used intravenous drugs before entering prison more than 25 years ago. Prison officials speculated that that would have damaged his veins, making them more vulnerable to collapse.

“Romell has told us that he never used IV drugs,” Shank said.

Lethal injection experts, including an attorney from the University of California at Berkeley, said Broom’s decision not to take a sedative, an option offered by the state, could have helped raise his anxiety level and helped collapse veins.

After convicted killer Joseph Clark experienced some of the same delays in locating veins during his May 2006 execution, the doctor performing his autopsy suggested the prison’s medical team might have lacked technical skills.

Dr. L. J. Dragovic, chief medical examiner for Oakland County, Mich., wrote a letter to Clark’s attorney, saying, “The presence of 19 needle puncture wounds is indicative of technical difficulties the execution team encountered during this execution procedure … Multiple injection attempts (to find a vein) suggests inadequate technical skills of the personnel involved in carrying out this procedure.”

“It would be cruel to go forward,” Shank said after the failed execution. “His veins would all be injured now.”

Source: Jon Craig and Lisa Preston, The Cincinnati Enquirer, September 26, 2009

Texas: Death row con gets 10 years in senator threat

Death row killer Richard Lee Tabler, whose cell phone calls to a state senator sparked a statewide shakedown of all state prisons nearly a year ago, pleaded guilty this morning to threatening the lawmaker and possessing contraband.

During a brief courtroom appearance in Livingston, in East Texas, Tabler got 10-year sentence stacked atop his death sentence.

"The message here is that we take these possession of contraband cases seriously especially cell phones on death row and that we will prosecute them to the fullest extent of the law," said Gina DeBottis, chief prosecutor with the Special Prosecutions Unit that handles prison cases.

"(Tabler) got the maximum sentence possible."

Both crimes of which Tabler was charged retaliation and possession of contraband in a state prison were 3rd-degree felonies, punishable by 2-10 years in prison. He could have received 20 years under a special enhancement provision in state law, but because his death sentence is still on appeal that was not possible, DeBottis said.

In October 2008, Tabler phoned state Sen. John Whitmire, D-Houston, and this reporter several times to complain about conditions on Texas's death row. Whitmire, chairman of the Senate committee that oversees prisons, reported the calls to authorities and Tabler got busted in his cell with a cell phone. His mother and sister were also arrested for allegedly assisting him by adding minutes to the phone.

After the arrests, Tabler threatened to kill Whitmire and this reporter in a letter to prison investigators. He was indicted and had earlier pleaded not guilty.

About a month ago, prison officials were shocked to learn that Tabler had smuggled out a 2nd letter threatening Whitmire and ordered 14 prisons including the one where death row is located locked down and searched for contraband in a new crackdown.

Tabler's mother and sister are awaiting trial in mid-October. Whitmire said prosecutors told him both are to receive probation in exchange for their agreement not to commit any additional crimes.

"I think they were used by him, and I think we're all ready to put this incident behind us," Whitmire said. "The point here is that Tabler needs to be secure on death row with no contact with the outside world where he can threaten me or any other Texan.

"I have been assured those are the conditions under which this plea was accepted from him this morning."

Tabler, 30, was sentenced to death for the November 2004 slayings of 2 men in Bell County, outside Killeen. Tabler and a co-defendant drove up next to a vehicle driven by 2 men, and Tabler shot both men point blank with a .45 Ruger as his partner videotaped the last shot fired, authorities said.

Source : Austin American-Statesman, Sept. 28, 2009

The high cost of vengeance

As far as I know, I've made eye contact with only one serial killer, Darrell Keith Rich, in the summer of 1978. I was a 23-year-old reporter, notebook in hand, covering his pretrial proceedings in Shasta County. He was a 23-year-old biker, hands and legs bound in shackles, accused of a two-month rampage of kidnapping, rape and murder. He killed four of the nine females he attacked. His youngest victim, 11 years, old, was abducted, sexually assaulted and thrown off a bridge. She fell 105 feet, hit the rocks and crawled to her death.

A year earlier, the California Legislature had reinstituted the death penalty, five years after it had been invalidated by the state Supreme Court as cruel and unusual punishment. The specter of the death penalty did not deter Darrell Rich in the summer of 1978. His crimes were as horrific as those of any villain in a Dirty Harry movie: He used rocks to crush the skulls of two of his victims; he shot a mother twice in the mouth as she pleaded for her life. He glowered through the initial court appearances I covered.

On March 15, 2000, the 45-year-old Rich was put to death by lethal injection at San Quentin. His last word to the warden: "Peace."

Executions are so rare infrequent in this state that they are more spectacle for the masses than plausible deterrent. The executed tend to be the worst of the worst, with truckloads of aggravating details to their crimes. None was stopped by the threat of state-sanctioned death.

We must ask ourselves: Is this really worth it?

Rich's was just the eighth execution since the reinstatement of the death penalty. Five more killers have been executed since. Today, California has nearly 700 inmates on death row, more than any other state, with their cases in varying levels of appeal. The housing of an inmate on death row is more than triple the $40,000 annual cost of incarcerating others. This state is contemplating a new, $400 million death row. And none of this includes the legal bills for the trials and appeals that are - by constitutional right - more exhaustive in capital cases. Rich's death came relatively fast: The average wait from conviction to execution is 25 years.

At some point, California needs to have a forthright debate about the cost and the efficacy of the death penalty. That moment may be coming in 2010.

It has long been a matter of faith that statewide candidates needed to embrace the death penalty.

Jerry Brown, the last governor to oppose the death penalty, remained adamantly evasive on the subject in his 2006 campaign for attorney general. He refused to directly answer the question on whether his view had changed. "I will follow the law," was his mantra.

Enter Kamala Harris, the San Francisco district attorney who ran for office as a death penalty opponent - and stood firm against heavy criticism when she refused to seek it against the gang member accused of killing Officer Isaac Espinoza in April 2004.

Harris, now a Democratic candidate for state attorney general, last week again decided not to pursue the death penalty in the highly charged case of another gang member, Edwin Ramos, an illegal immigrant accused of murdering a father and his two sons in June 2008.

Harris insisted her decision was not based on her well-established philosophical and practical objections to the death penalty, but was the result of "a very meaningful, very long, very well-thought-out" review of the case.

"My position has not changed, but my position as D.A. requires that I review the evidence and the facts in each case - and make an honest assessment of what is in the best interest of the prosecution of the case," she said.

Still, the political fallout came fast. Within hours of Harris' announcement of her decision on the Ramos case, the likely Republican nominee for attorney general, state Sen. Tom Harman, fired out a full-page news release suggesting that she is "out of touch" with California voters. While the field of Democrats is six deep, Harris' death-penalty stance offers the clearest choice on what Harman assumes is a winning issue for him.

"I don't see how she can duck it," Harman said by phone Friday. "I'm going to keep bringing it up. You can take that to the bank."

Two recent polls do show that two-thirds of California voters support the death penalty. However, that support has dropped within the past two decades from a high of nearly 80 percent. The percentage of Californians who believe in capital punishment's deterrent value has fallen from 74 percent in 1989 to 44 percent this year.

Also, within the survey just completed by a UC Santa Cruz researcher are other indications that a forthright, facts-based debate might change minds. Most Californians believe - wrongly - that it is cheaper to execute condemned prisoners than to keep them locked up for life. Also, support for the death penalty plummeted to 26 percent when respondents were offered the alternative of sentencing an offender to life without the possibility of parole - and forcing him to work to provide restitution to victims and their families.

If the death penalty is not about deterrence or cost effectiveness, then surely it must be about closure for the victims' relatives or even vengeance for society. Right? Not quite. Even on that level, its results are less than satisfying.

"It was too easy for Darrell Keith Rich after what he put us through for 22 years," a sister of one of his victims, Annette Edwards, said after the execution. Florence Allen, whose daughter's skull was crushed by Rich, had told the Redding newspaper just before the execution that "they should let me go in there with a big rock."

We can empathize with the relatives' fury, while agreeing that lethal revenge with rocks is not an option in a civilized society. It's time for an honest discussion of whether death by an injection of poison sufficiently separates us from the barbarity we presume to condemn.

Story by John Diaz. John Diaz is The Chronicle's editorial page editor.

Source: San Francisco Chronicle, Sept. 13, 2009

High Cost of Death Row

To the many excellent reasons to abolish the death penalty — it’s immoral, does not deter murder and affects minorities disproportionately — we can add one more. It’s an economic drain on governments with already badly depleted budgets.

It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row. Others would do well to consider evidence gathered by the Death Penalty Information Center, a research organization that opposes capital punishment.

States waste millions of dollars on winning death penalty verdicts, which require an expensive second trial, new witnesses and long jury selections. Death rows require extra security and maintenance costs.

There is also a 15-to-20-year appeals process, but simply getting rid of it would be undemocratic and would increase the number of innocent people put to death. Besides, the majority of costs are in the pretrial and trial.

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole. North Carolina has put 43 people to death since 1976 at $2.16 million per execution. The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life. The state has executed 13 people since 1976 for a total of about $250 million per execution. This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells. Some lawmakers, heeding law-enforcement officials who have declared capital punishment a low priority, have introduced bills to abolish it.

A Republican state senator in Kansas, Carolyn McGinn, pointed out that her state, which restored the death penalty in 1994, had not executed anybody in more than 40 years. In February, she introduced a bill to replace capital punishment with life without parole. The bill gained considerable attention but stalled. Similar arguments were made, unsuccessfully, in states such as New Hampshire and Maryland. Colorado considered a bill to end capital punishment and spend the money saved on solving cold cases. But this year, only New Mexico went all the way, abolishing executions in March.

If lawmakers cannot find the moral courage to abolish the death penalty, perhaps the economic case will persuade them to follow the lead of New Mexico.

Source: The New York Times, Sept. 28, 2009

Some Examples of Post-Furman Botched Executions

NOTE: The below is not intended to be a comprehensive catalogue of botched executions, but simply a listing of examples that are well-known. There are 42 examples listed: 2 by asphyxiation, 10 by electrocution, and 30 by lethal injection.

1. August 10, 1982. Virginia. Frank J. Coppola. Electrocution. Although no media representatives witnessed the execution and no details were ever released by the Virginia Department of Corrections, an attorney who was present later stated that it took two 55-second jolts of electricity to kill Coppola. The second jolt produced the odor and sizzling sound of burning flesh, and Coppola's head and leg caught on fire. Smoke filled the death chamber from floor to ceiling with a smoky haze.[1]

2. April 22, 1983. Alabama. John Evans. Electrocution. After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans's leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans's left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans's body charred and smoldering.[2]

3. Sept. 2, 1983. Mississippi. Jimmy Lee Gray. Asphyxiation. Officials had to clear the room eight minutes after the gas was released when Gray's desperate gasps for air repulsed witnesses. His attorney, Dennis Balske of Montgomery, Alabama, criticized state officials for clearing the room when the inmate was still alive. Said noted death penalty defense attorney David Bruck, "Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press)."[3] Later it was revealed that the executioner, Barry Bruce, was drunk.[4]

4. December 12, 1984. Georgia. Alpha Otis Stephens. Electrocution. "The first charge of electricity ... failed to kill him, and he struggled to breathe for eight minutes before a second charge carried out his death sentence ..."[5] After the first two minute power surge, there was a six minute pause so his body could cool before physicians could examine him (and declare that another jolt was needed). During that six-minute interval, Stephens took 23 breaths. A Georgia prison official said, "Stephens was just not a conductor" of electricity.[6]

5. March 13, 1985. Texas. Stephen Peter Morin. Lethal Injection. Because of Morin's history of drug abuse, the execution technicians were forced to probe both of Morin's arms and one of his legs with needles for nearly 45 minutes before they found a suitable vein.[7]

6. October 16, 1985. Indiana. William E. Vandiver. Electrocution. After the first administration of 2,300 volts, Vandiver was still breathing. The execution eventually took 17 minutes and five jolts of electricity.[8] Vandiver's attorney, Herbert Shaps, witnessed the execution and observed smoke and the smell of burning. He called the execution "outrageous." The Department of Corrections admitted the execution "did not go according to plan."[9]

7. August 20, 1986. Texas. Randy Woolls. Lethal Injection. A drug addict, Woolls helped the execution technicians find a useable vein for the execution.[10]

8. June 24, 1987. Texas. Elliot Rod Johnson. Lethal Injection. Because of collapsed veins, it took nearly an hour to complete the execution.[11]

9. December 13, 1988. Texas. Raymond Landry. Lethal Injection. Pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms.[12] Two minutes after the drugs were administered, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. The curtain separating the witnesses from the inmate was then pulled, and not reopened for fourteen minutes while the execution team reinserted the catheter into the vein. Witnesses reported "at least one groan." A spokesman for the Texas Department of Correction, Charles Brown (sic), said, "There was something of a delay in the execution because of what officials called a 'blowout.' The syringe came out of the vein, and the warden ordered the (execution) team to reinsert the catheter into the vein."[13]

10. May 24, 1989. Texas. Stephen McCoy. Lethal Injection. He had such a violent physical reaction to the drugs (heaving chest, gasping, choking, back arching off the gurney, etc.) that one of the witnesses (male) fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction. The Texas Attorney General admitted the inmate "seemed to have a somewhat stronger reaction," adding "The drugs might have been administered in a heavier dose or more rapidly."[14]

11. July 14, 1989. Alabama. Horace Franklin Dunkins, Jr. Electrocution. It took two jolts of electricity, nine minutes apart, to complete the execution. After the first jolt failed to kill the prisoner (who was mildly retarded), the captain of the prison guard opened the door to the witness room and stated "I believe we've got the jacks on wrong."[15] Because the cables had been connected improperly, it was impossible to dispense sufficient current to cause death. The cables were reconnected before a second jolt was administered. Death was pronounced 19 minutes after the first electric charge. At a post-execution news conference, Alabama Prison Commissioner Morris Thigpen said, “I regret very very much what happened. [The cause] was human error."[16]

12. May 4, 1990. Florida. Jesse Joseph Tafero. Electrocution. During the execution, six-inch flames erupted from Tafero's head, and three jolts of power were required to stop his breathing. State officials claimed that the botched execution was caused by "inadvertent human error" -- the inappropriate substitution of a synthetic sponge for a natural sponge that had been used in previous executions.[17] They attempted to support this theory by sticking a part of a synthetic sponge into a "common household toaster" and observing that it smoldered and caught fire.[18]

13. September 12, 1990. Illinois. Charles Walker. Lethal Injection. Because of equipment failure and human error, Walker suffered excruciating pain during his execution. According to Gary Sutterfield, an engineer from the Missouri State Prison who was retained by the State of Illinois to assist with Walker's execution, a kink in the plastic tubing going into Walker's arm stopped the deadly chemicals from reaching Walker. In addition, the intravenous needle was inserted pointing at Walker's fingers instead of his heart, prolonging the execution.[19]

14. October 17, 1990. Virginia. Wilbert Lee Evans. Electrocution. When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure.[20]

15. August 22, 1991. Virginia. Derick Lynn Peterson. Electrocution. After the first cycle of electricity was applied, and again four minutes later, prison physician David Barnes inspected Peterson's neck and checked him with a stethoscope, announcing each time "He has not expired." Seven and one-half minutes after the first attempt to kill the inmate, a second cycle of electricity was applied. Prison officials later announced that in the future they would routinely administer two cycles before checking for a heartbeat.[21]

16. January 24, 1992. Arkansas. Rickey Ray Rector. Lethal Injection. It took medical staff more than 50 minutes to find a suitable vein in Rector's arm. Witnesses were kept behind a drawn curtain and not permitted to view this scene, but reported hearing Rector's eight loud moans throughout the process. During the ordeal Rector (who suffered from serious brain damage) helped the medical personnel find a vein. The administrator of State's Department of Corrections medical programs said (paraphrased by a newspaper reporter) "the moans did come as a team of two medical people that had grown to five worked on both sides of his body to find a vein." The administrator said "That may have contributed to his occasional outbursts." The difficulty in finding a suitable vein was later attributed to Rector's bulk and his regular use of antipsychotic medication.[22]

17. April 6, 1992. Arizona. Donald Eugene Harding. Asphyxiation. Death was not pronounced until 10 1/2 minutes after the cyanide tablets were dropped.[23] During the execution, Harding thrashed and struggled violently against the restraining straps. A television journalist who witnessed the execution, Cameron Harper, said that Harding's spasms and jerks lasted 6 minutes and 37 seconds. "Obviously, this man was suffering. This was a violent death ... an ugly event. We put animals to death more humanely."[24] Another witness, newspaper reporter Carla McClain, said, "Harding's death was extremely violent. He was in great pain. I heard him gasp and moan. I saw his body turn from red to purple."[25] One reporter who witnessed the execution suffered from insomnia and assorted illnesses for several weeks; two others were "walking vegetables" for several days.[26]

18. March 10, 1992. Oklahoma. Robyn Lee Parks. Lethal Injection. Parks had a violent reaction to the drugs used in the lethal injection. Two minutes after the drugs were dispensed, the muscles in his jaw, neck, and abdomen began to react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag until death came, some eleven minutes after the drugs were first administered. Tulsa World reporter Wayne Greene wrote that the execution looked "painful and ugly," and "scary." "It was overwhelming, stunning, disturbing -- an intrusion into a moment so personal that reporters, taught for years that intrusion is their business, had trouble looking each other in the eyes after it was over."[27]

19. April 23, 1992. Texas. Billy Wayne White. Lethal Injection. White was pronounced dead some 47 minutes after being strapped to the execution gurney. The delay was caused by difficulty finding a vein; White had a long history of heroin abuse. During the execution, White attempted to assist the authorities in finding a suitable vein.[28]

20. May 7, 1992. Texas. Justin Lee May. Lethal Injection. May had an unusually violent reaction to the lethal drugs. According to one reporter who witnessed the execution, May "gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze ..."[29] Associated Press reporter Michael Graczyk wrote, "Compared to other recent executions in Texas, May's reaction was more violent. He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down. After he stopped breathing, his eyes and mouth remained open."[30]

21. May 10, 1994. Illinois. John Wayne Gacy. Lethal Injection. After the execution began, the lethal chemicals unexpectedly solidified, clogging the IV tube that lead into Gacy's arm, and prohibiting any further passage. Blinds covering the window through which witnesses observed the execution were drawn, and the execution team replaced the clogged tube with a new one. Ten minutes later, the blinds were then reopened and the execution process resumed. It took 18 minutes to complete.[31] Anesthesiologists blamed the problem on the inexperience of prison officials who were conducting the execution, saying that proper procedures taught in "IV 101" would have prevented the error.[32]

22. May 3, 1995. Missouri. Emmitt Foster. Lethal Injection. Seven minutes after the lethal chemicals began to flow into Foster's arm, the execution was halted when the chemicals stopped circulating. With Foster gasping and convulsing, the blinds were drawn so the witnesses could not view the scene. Death was pronounced thirty minutes after the execution began, and three minutes later the blinds were reopened so the witnesses could view the corpse.[33] According to William "Mal" Gum, the Washington County Coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Foster to the execution gurney; it was so tight that the flow of chemicals into the veins was restricted. Foster did not die until several minutes after a prison worker finally loosened the straps. The coroner entered the death chamber twenty minutes after the execution began, diagnosed the problem, and told the officials to loosen the strap so the execution could proceed.[34] In an editorial, the St. Louis Post-Dispatch called the execution "a particularly sordid chapter in Missouri's capital punishment experience."[35]

23. January 23, 1996. Virginia. Richard Townes, Jr. Lethal Injection. This execution was delayed for 22 minutes while medical personnel struggled to find a vein large enough for the needle. After unsuccessful attempts to insert the needle through the arms, the needle was finally inserted through the top of Mr. Townes's right foot.[36]

24. July 18, 1996. Indiana. Tommie J. Smith. Lethal Injection. Because of unusually small veins, it took one hour and nine minutes for Smith to be pronounced dead after the execution team began sticking needles into his body. For sixteen minutes, the execution team failed to find adequate veins, and then a physician was called.[37] Smith was given a local anesthetic and the physician twice attempted to insert the tube in Smith's neck. When that failed, an angio-catheter was inserted in Smith's foot. Only then were witnesses permitted to view the process. The lethal drugs were finally injected into Smith 49 minutes after the first attempts, and it took another 20 minutes before death was pronounced.[38]

25. March 25, 1997. Florida. Pedro Medina. Electrocution. A crown of foot-high flames shot from the headpiece during the execution, filling the execution chamber with a stench of thick smoke and gagging the two dozen official witnesses. An official then threw a switch to manually cut off the power and prematurely end the two-minute cycle of 2,000 volts. Medina's chest continued to heave until the flames stopped and death came.[39] After the execution, prison officials blamed the fire on a corroded copper screen in the headpiece of the electric chair, but two experts hired by the governor later concluded that the fire was caused by the improper application of a sponge (designed to conduct electricity) to Medina's head.

26. May 8, 1997. Oklahoma. Scott Dawn Carpenter. Lethal Injection. Carpenter was pronounced dead some 11 minutes after the lethal injection was administered. As the drugs took effect, Carpenter began to gasp and shake. "This was followed by a guttural sound, multiple spasms and gasping for air" until his body stopped moving, three minutes later.[40]

27. June 13, 1997. South Carolina. Michael Eugene Elkins. Lethal Injection. Because Elkins's body had become swollen from liver and spleen problems, it took nearly an hour to find a suitable vein for the insertion of the catheter. Elkins tried to assist the executioners, asking "Should I lean my head down a little bit?" as they probed for a vein. After numerous failures, a usable vein was finally found in Elkins's neck.[41]

28. April 23, 1998. Texas. Joseph Cannon. Lethal Injection. It took two attempts to complete the execution. After making his final statement, the execution process began. A vein in Cannon's arm collapsed and the needle popped out. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, "It's come undone." Officials then pulled a curtain to block the view of the witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed.[42]

29. August 26, 1998. Texas. Genaro Ruiz Camacho. Lethal Injection. The execution was delayed approximately two hours due, in part, to problems finding suitable veins in Camacho's arms.[43]

30. October 5, 1998. Nevada. Roderick Abeyta. Lethal Injection. It took 25 minutes for the execution team to find a vein suitable for the lethal injection.[44]

31. July 8, 1999. Florida. Allen Lee Davis. Electrocution. "Before he was pronounced dead ... the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair."[45] His execution was the first in Florida's new electric chair, built especially so it could accommodate a man Davis's size (approximately 350 pounds). Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that "the color photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida."[46] Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (q.v.), calling the three executions "barbaric spectacles" and "acts more befitting a violent murderer than a civilized state."[47] Justice Shaw included pictures of Davis's dead body in his opinion.[48] The execution was witnessed by a Florida State Senator, Ginny Brown-Waite, who at first was "shocked" to see the blood, until she realized that the blood was forming the shape of a cross and that it was a message from God saying he supported the execution.[49]

32. May 3, 2000. Arkansas. Christina Marie Riggs. Lethal Injection. Riggs dropped her appeals and asked to be executed. However, the execution was delayed for 18 minutes when prison staff couldn't find a suitable vein in her elbows. Finally, Riggs agreed to the executioners' requests to have the needles in her wrists.[50]

33. June 8, 2000. Florida. Bennie Demps. Lethal Injection. It took execution technicians 33 minutes to find suitable veins for the execution. "They butchered me back there," said Demps in his final statement. "I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is not an execution, it is murder." The executioners had no unusual problems finding one vein, but because Florida protocol requires a second alternate intravenous drip, they continued to work to insert another needle, finally abandoning the effort after their prolonged failures.[51]

34. December 7, 2000. Texas. Claude Jones. Lethal Injection. Jones was a former intravenous drug abuser. His execution was delayed 30 minutes while the execution team struggled to insert an IV into a vein. One member of the execution team commented, "They had to stick him about five times. They finally put it in his leg." Wrote Jim Willett, the warden of the Walls Unit and the man responsible for conducting the execution: "The medical team could not find a vein. Now I was really beginning to worry. If you can't stick a vein then a cut-down has to be performed. I have never seen one and would just as soon go through the rest of my career the same way. Just when I was really getting worried, one of the medical people hit a vein in the left leg. Inside calf to be exact. The executioner had warned me not to panic as it was going to take a while to get the fluids in the body of the inmate tonight because he was going to push the drugs through very slowly. Finally, the drug took effect and Jones took his last breath."[52]

35. June 28, 2000. Missouri. Bert Leroy Hunter. Lethal Injection. Hunter had an unusual reaction to the lethal drugs, repeatedly coughing and gasping for air before he lapsed into unconsciousness.[53] An attorney who witnessed the execution reported that Hunter had "violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth like this repeatedly. ... He suffered a violent and agonizing death."[54]

36. November 7, 2001. Georgia. Jose High. Lethal Injection. High was pronounced dead some one hour and nine minutes after the execution began. After attempting to find a useable vein for "15 to 20 minutes," the emergency medical technicians under contract to do the execution abandoned their efforts. Eventually, one needle was stuck in High's hand, and a physician was called in to insert a second needle between his shoulder and neck.

37. May 2, 2006. Ohio. Joseph L. Clark. Lethal Injection. It took 22 minutes for the execution technicians found a vein suitable for insertion of the catheter. But three or four minutes thereafter, as the vein collapsed and Clark’s arm began to swell, he raised his head off the gurney and said five times, “It don’t work. It don’t work.” The curtains surrounding the gurney were then closed while the technicians worked for 30 minutes to find another vein. Media witnesses later reported that they heard “moaning, crying out and guttural noises.”[55] Finally, death was pronounced almost 90 minutes after the execution began. A spokeswoman for the Ohio Department of Corrections told reporters that the execution team included paramedics, but not a physician or a nurse.[56]

38. December 13, 2006. Florida. Angel Diaz. Lethal Injection. After the first injection was administered, Mr. Diaz continued to move, and was squinting and grimacing as he tried to mouth words. A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease.[57] After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz’s liver was undamaged, but that the needle had gone through Mr. Diaz’s vein and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein. Two days after the execution, Governor Jeb Bush suspended all executions in the state and appointed a commission “to consider the humanity and constitutionality of lethal injections.”[58]

39. May 24, 2007. Ohio. Christopher Newton. Lethal Injection. According to the Associated Press, “prison medical staff” at the Southern Ohio Correctional Facility struggled to find veins on each of Newton’s arms during the execution. Newton, who weighted 265 pounds, was declared dead almost two hours after the execution process began. The execution “team” stuck Newton at least ten times with needles before getting the shunts in place were the needles are injected.[59]

40. June 26, 2007. Georgia. John Hightower. Lethal Injection. It took approximately 40 minutes for the nurses to find a suitable vein to administer the lethal chemicals, and death was not pronounced until 7:59, 59 minutes after the execution process began.[60]

41. June 4, 2008. Georgia. Curtis Osborne. Lethal Injection. After a 55-minute delay while the U.S. Supreme Court reviewed his final appeal, prison medical staff began the execution by trying to find suitable veins in which to insert the IV. The executioners struggled for 35 minutes to find a vein, and it took 14 minutes after the fatal drugs were administered before death was pronounced by two physicians who were inside the death chamber.[61]

42. Sept. 15, 2009. Ohio. Romell Broom. Lethal Injection. Efforts to find a suitable vein and to execute Mr. Broom were terminated after more than two hours when the executioners were unable to find a useable vein in Mr. Broom’s arms or legs. During the failed efforts, Mr. Broom winced and grimaced with pain. After the first hour’s lack of success, on several occasions Broom tried to help the executioners find a good vein. “At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.[62] Finally, Ohio Governor Ted Strickland ordered the execution to stop, and announced plans to attempt the execution anew after a one-week delay so that physicians could be consulted for advice on how the man could be killed more efficiently.[63] The executioners blamed the problems on Mr. Broom’s history of intravenous drug use.

ENDNOTES

[1]. Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century, 35 WILLIAM & MARY L. REV. 551, 664-665 (1994).

[2]. For a description of the execution by Evans's defense attorney, see Russell F. Canan, Burning at the Wire: The Execution of John Evans, in FACING THE DEATH PENALTY: ESSAYS ON A CRUEL AND UNUSUAL PUNISHMENT 60 (Michael L. Radelet ed. 1989); see also Glass v. Louisiana, 471 U.S. 1080, 1091-92 (1985).

[3]. David Bruck, Decisions of Death, THE NEW REPUBLIC, Dec. 12, 1984, at 24-25.

[4]. Ivan Solotaroff, The Last Face You'll Ever See, 124 ESQUIRE 90, 95 (Aug. 1995).

[5]. Two Charges Needed to Electrocute Georgia Murderer, N.Y. TIMES, Dec. 13, 1984, at 12.

[6]. Editorial, N.Y. TIMES, Dec. 17, 1984, at 22.

[7]. Murderer of Three Women is Executed in Texas, N.Y. TIMES, March 14, 1985, at 9.

[8]. Killer's Electrocution Takes 17 Minutes in Indiana Chair, WASH. POST, Oct. 17, 1985, at A16.

[9]. Indiana Executes Inmate Who Slew Father-In-Law, N.Y. TIMES, Oct. 17, 1985, at 22.

[10]. Killer Lends A Hand to Find A Vein for Execution, L.A. TIMES, Aug. 20, 1986, at 2.

[11]. Addict Is Executed in Texas For Slaying of 2 in Robbery, N.Y. TIMES, June 25, 1987, at A24.

[12]. Drawn-out Execution Dismays Texas Inmates, DALLAS MORNING NEWS, Dec. 15, 1988, at 29A.

[13]. Landry Executed for '82 Robbery-Slaying, DALLAS MORNING NEWS, Dec. 13, 1988, at 29A.

[14]. Witness to an Execution, HOUS. CHRON., May 27, 1989, at 11.

[15]. John Archibald, On Second Try, Dunkins Executed for Murder, BIRMINGHAM NEWS, July 14, 1989, at 1.

[16]. Peter Applebome, 2 Jolts in Alabama Execution, N.Y. TIMES, July 15, 1989, at 6.

[17]. Cynthia Barnett, Tafero Meets Grisly Fate in Chair, GAINESVILLE SUN, May 5, 1990, at 1; Cynthia Barnett, A Sterile Scene Turns Grotesque, GAINESVILLE SUN, May 5, 1990, at 1; Bruce Ritchie, Flames, Smoke Mar Execution of Murderer, FLORIDA TIMES-UNION (Jacksonville), May 5, 1990, at 1; Bruce Ritchie, Report on Flawed Execution Cites Human Error, FLORIDA TIMES-UNION (Jacksonville), May 9, 1990, at B1.

[18]. Bill Moss, Chair Concerns Put Deaths on Hold, ST. PETERSBURG TIMES, July 18, 1990, at 1B.

[19]. Niles Group Questions Execution Procedure, UNITED PRESS INTERNATIONAL, Nov. 8, 1992 (LEXIS/NEXUS file).

[20]. Mike Allen, Groups Seek Probe of Electrocution's Unusual Events, RICHMOND TIMES-DISPATCH, Oct. 19, 1990, at B1; Mike Allen, Minister Says Execution Was Unusual, RICHMOND TIMES-DISPATCH, Oct. 20, 1990, at B1; DeNeen L. Brown, Execution Probe Sought, WASH. POST, Oct. 21, 1990, at D1.

[21]. Karen Haywood, Two Jolts Needed to Complete Execution, THE FREE-LANCE STAR (Fredericksburg, Vir.), Aug. 23, 1991, at 1; Death Penalty Opponents Angry About Latest Execution, RICHMOND TIMES-DISPATCH, Aug. 24, 1991, at 1; Virginia Alters its Procedure for Executions in Electric Chair, WASH. POST, Aug. 24, 1991, at B3.

[22]. Joe Farmer, Rector, 40, Executed for Officer's Slaying, ARKANSAS DEMOCRAT-GAZETTE, Jan. 25, 1992, at 1; Joe Farmer, Rector's Time Came, Painfully Late, ARKANSAS DEMOCRAT GAZETTE, Jan. 26, 1992, at 1B; Sonja Clinesmith, Moans Pierced Silence During Wait, ARKANSAS DEMOCRAT GAZETTE, Jan. 26, 1992, at 1B; Marshall Frady, Death in Arkansas, THE NEW YORKER, Feb. 22, 1993, at 105.

[23]. Gruesome Death in Gas Chamber Pushes Arizona Toward Injections, N.Y. TIMES, Apr. 25, 1992, at 9.

[24]. Charles L. Howe, Arizona Killer Dies in Gas Chamber, S.F. CHRON., Apr. 7, 1992, at A2.

[25]. Id.

[26]. Abraham Kwok, Injection: The No-Fuss Executioner, ARIZONA REPUBLIC, Feb. 28, 1993, at 1.

[27]. Wayne Greene, 11-Minute Execution Seemingly Took Forever, TULSA WORLD, Mar. 11, 1992, at A13.

[28]. Another U.S. Execution Amid Criticism Abroad, N.Y. TIMES, Apr. 24, 1992, at B7.

[29]. Robert Wernsman, Convicted Killer May Dies, ITEM (Huntsville, Tex.), May 7, 1992, at 1.

[30]. Michael Graczyk, Convicted Killer Gets Lethal Injection, HERALD (Denison, Tex.), May 8, 1992.

[31]. Scott Fornek and Alex Rodriguez, Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, CHICAGO SUN-TIMES, May 11, 1994, at 5; Rich Chapman, Witnesses Describe Killer's 'Macabre' Final Few Minutes, CHICAGO SUN-TIMES, May 11, 1994, at 5.

[32]. Rob Karwath & Susan Kuczka, Gacy Execution Delay Blamed on Clogged IV Tube, CHICAGO TRIB., May 11, 1994, at 1 (Metro Lake Section).

[33]. Because they could not observe the entire execution procedure through the closed blinds, two witnesses later refused to sign the standard affidavit that stated they had witnessed the execution. Witnesses to a Botched Execution, ST. LOUIS POST-DISPATCH, May 8, 1995, at 6B.

[34]. Tim O'Neil, Too-Tight Strap Hampered Execution, ST. LOUIS POST-DISPATCH, May 5, 1995, at B1; Jim Slater, Execution Procedure Questioned, KANSAS CITY STAR, May 4, 1995, at C8.

[35]. Witnesses to a Botched Execution, ST. LOUIS POST-DISPATCH, May 8, 1995, at 6B.

[36]. Store Clerk's Killer Executed in Virginia, N.Y. TIMES, Jan. 25, 1996, at A19.

[37]. The involvement of this anonymous physician violated rules of both the American Medical Association and the Indiana State Medical Association. Sherri Edwards & Suzanne McBride, Doctor's Aid in Injection Violated Ethics Rule: Physician Helped Insert the Lethal Tube in a Breach of AMA's Policy Forbidding Active Role in Execution, INDIANAPOLIS STAR, July 19, 1996, at A1.

[38]. Id.; Suzanne McBride, Problem With Vein Delays Execution, INDIANAPOLIS NEWS, July 18, 1996, at 1.

[39]. Doug Martin, Flames Erupt from Killer's Headpiece, GAINESVILLE SUN, March 26, 1997, at 1. Medina was executed despite a life-long history of mental illness, and the Florida Supreme Court split 4-3 on whether to grant an evidentiary hearing because of serious questions about his guilt. This puts to rest any conceivable argument that Medina could have been guilty "beyond a reasonable doubt." Medina v. State, 690 So.2d 1241 (1997). The family of the victim had joined in a plea for executive clemency, in part because they believed Medina was innocent. Id., at 1252, n. 6. Even the Pope appealed for clemency. Martin, op. cit.

[40]. Michael Overall & Michael Smith, 22-Year-Old Killer Gets Early Execution, TULSA WORLD, May 8, 1997, at A1.

[41]. Killer Helps Officials Find A Vein At His Execution, CHATTANOOGA FREE PRESS, June 13, 1997, at A7.

[42]. Cannon was executed for a crime committed when he was 17 years old. 1st Try Fails to Execute Texas Death Row Inmate, ORLANDO SENT., Apr. 23, 1998, at A16; Michael Graczyk, Texas Executes Man Who Killed San Antonio Attorney at Age 17, AUSTIN AMERICAN-STATESMAN, Apr. 23, 1998, at B5.

[43]. Michael Graczyk, Reputed Marijuana Smuggler Executed for 1988 Dallas Slaying, ASSOCIATED PRESS, August 27, 1998.

[44]. Sean Whaley, Nevada Executes Killer, LAS VEGAS REVIEW-JOURNAL, Oct. 5, 1998, at 1A.

[45]. Davis Execution Gruesome, GAINESVILLE SUN, July 8, 1999, at 1A.

[46]. Provenzano v. State, 744 So.2d 413, 440 (Fla. 1999).

[47]. Id.

[48]. Id., at 442-44.

[49]. Mary Jo Melone, A Switch is Thrown, and God Speaks, ST. PETERSBURG TIMES, July 13, 1999, p. 1B.

[50] Ron Moore, At Last I can be with my Babies, SCOTTISH DAILY RECORD, May 4, 2000, at 24.

[51]. Rick Bragg, Florida Inmate Claims Abuse in Execution, N.Y. TIMES, June 9, 2000, at A14; Phil Long & Steve Brousquet, Execution of Slayer Goes Wrong; Delay, Bitter Tirade Precede His Death, MIAMI HERALD, June 8, 2000.

[52] Sarah Rimer, Working Death Row, N.Y. TIMES, Dec. 17, 2000, at 1.

[53]. David Scott, Convicted Killer Who Once Asked to Die is Executed, ASSOCIATED PRESS, June 28, 2000.

[54]. Letter from attorney Cheryl Rafert to Missouri Governor Mel Carnahan, June 30, 2000.

[55] Alan Johnson, ‘It Don’t Work,’ Inmate Says During Botched Execution, Columbus (Ohio) Dispatch, May 3, 2006.

[56] Adam Liptak, Trouble Finding Inmate’s Vein Slows Lethal Injection in Ohio, N.Y. Times, May 3, 2006; John Mangels, Condemned Killer Complains Lethal Injection ‘Isn’t Working,’ Plain Dealer (Cleveland), May 3, 2006.

[57] Terry Aguayo, Florida Death Row Inmate Dies Only After Second Chemical Dose, New York Times, Dec. 15, 2006.

[58] Adam Liptak & Terry Aguayo, After Problem Execution, Governor Bush Suspends the Death Penalty in Florida, New York Times, Dec. 16, 2006.

[59]Associated Press, May 24, 2007.

[60] Lateef Mungin, Triple Murderer Executed After 40-minute Search for Vein, Atlanta Journal-Constitution, June 27, 2007.

[61] Rhonda Cook, Executioners had Trouble Putting Murderer to Death: For 35 Minutes, They couldn’t find good Vein for Lethal Injection, Atlanta Journal-Constitution, June 4, 2008.

[62] Alan Johnson, Effort to Kill Inmate Halted - 2 Hours of Needle Sticks Fail; Strickland Steps In, Columbus Dispatch, Sept. 16, 2009.

[63] Bob Driehaus, Ohio Plans to Try Again as Execution Goes Wrong, New York Times, Sept. 17, 2009; Stephen Majors, Governor Delays Execution After Suitable Vein Can’t Be Found, Chillicothe Gazette, Sept. 16, 2009.

Michael L. Radelet, University of Colorado, Radelet@Colorado.edu, September 16, 2009

Source: Death Penalty Information Center, Sept. 28, 2009

With little oversight in Texas, autopsies often careless

The man almost took the dirty secret of his death to his grave. The Tarrant County medical examiners office said injuries from a pickup wreck killed him. But after a funeral director hundreds of miles away found a bullet in the mans head, authorities realized a killer was on the loose.

Worse has happened in the autopsy suites of Texas medical examiners.

A child molester faked his own death and almost got away with it after the Travis County medical examiner mistook the burned body of an 81-year-old woman for the 23-year-old man.

A woman was on her way to Death Row in Alabama after a medical examiner now working in Texas said she had suffocated her newborn. The sad truth, other experts said, was that the baby was stillborn.

An Austin baby sitter has spent years on death row for a baby's murder. The medical examiner whose testimony helped put her there now says the baby's death may have been an accident.

The medical examiner is the doctor-detective who is supposed to extract truth from the hodgepodge of details about a death. By examining body tissues, organs and fluids, gathering data from a crime scene and examining lab results, the medical examiner provides insight into how and why someone has died. Those judgments are of consequence for violent or suspicious deaths, as well as for unexplained deaths and those that might result from negligence or improper care.

County officials say the state's system works well by unraveling questions surrounding death at a reasonable cost to taxpayers. In the courtroom, much of the work, they say, stands up to scrutiny.

But over the years, Texas medical examiners have misidentified bodies, botched examinations and had to do a double take on cases of individuals later exonerated by law enforcement. That has opened the door for innocent men and women to go to prison and killers to go free. The slapdash work of some medical examiners could also allow public health threats, wrongful deaths and preventable medical errors to go undetected, experts warn.

"The work of the medical examiner's office is just so slipshod," said Tommy Turner, the former special prosecutor who put a Lubbock medical examiner behind bars for falsifying autopsies.

Critics say the medical examiner's office is "the last bastion of junk science." The problems, they say, are similar to those that plagued the states crime labs for years: lack of performance standards, poor documentation, a shortage of qualified personnel and lax oversight.

"The state does not keep track of MEs in any shape, form or fashion," Bexar County Chief Medical Examiner Randall Frost said. The state doesn't even know how many certified forensic pathologists work in government offices, he added.

And a medical examiner doesnt have to be trained in forensics or pass a specialty exam to do an autopsy. All that's required is a state medical license. That's akin to having your family doctor do brain surgery, says a growing chorus of medical examiners.

"It's a travesty for Texas," Frost said. "Most people are horrified that there are no qualifications for this field under the law. They are shocked when I tell them that."

Thoroughness questioned

How often do autopsy blunders occur? No one knows because there are no state data to track when a medical examiner recants a previous determination or when colleagues resoundingly disagree with him or her, leading to different outcomes on death certificates or death row.

The Texas Medical Board keeps records on physicians found to have fallen short of the standards of care or to have committed other violations. But for years, it didn't consider the performance of an autopsy as the practice of medicine because an autopsy has no potential to harm the patient. The board reversed its position in 2000 when it disciplined an unlicensed physician working at the Harris County medical examiner's office. The office was the target of whistle-blower lawsuits and complaints from the district attorney.

Still, the board said it receives few complaints about medical examiners.

County officials, among others, say that if there are problems with medical examiners opinions, the adversarial system of the courts will help ensure that they are exposed. By and large, there have been no such revelations, the officials say.

"We've not had district attorneys coming and saying, 'We're losing because we're not getting quality autopsy work,'" said Donald Lee, executive director of the Texas Conference of Urban Counties. "If there was a widespread problem with the autopsy process, you would think that DAs would be coming to their fellow county officials and raising the alarm."

In Tarrant County, officials say there may be problems elsewhere in Texas, but they are confident in Chief Medical Examiner Nizam Peerwani's office.

"I've heard horror stories from other counties about their medical examiner," County Commissioner Gary Fickes said. "But I have not been made aware of any major problems, just a few little items, but I don't think they are of any magnitude."

Turner sees flaws in such arguments. Who would complain, he asks. "First of all, the person that you're performing the work on is dead," he said. "They're not going to complain."

And grieving families may not know whether a licensed physician examined their loved one or whether appropriate tests were conducted, he noted.

Concerns are being pushed into the limelight, though. Convictions have been overturned or called into question because of incomplete or sloppy autopsy records, failure to conduct vital tests and preserve key evidence, or the use of flawed methods.

A half-dozen forensic pathologists have criticized Webb County Chief Medical Examiner Corinne Stern's autopsy of a newborn when she worked in Alabama. She said the infant was suffocated, but other experts said that her finding was based on junk science and that the boy was stillborn. As a result, a capital murder charge against the mother was dismissed.

Some medical examiners themselves question the thoroughness of some autopsies. Their concerns were echoed in a report by the National Academy of Sciences to Congress this year. It said the quality of forensic science work including crime labs and medical examiners' offices is undermined by inadequate training, inconsistent practices and a lack of oversight.

"These shortcomings pose a threat to the quality and credibility of forensic science practice and its service to the justice system," the report warns.

Major blunders

Elizabeth Gard's husband died within 48 hours of being admitted to an El Paso hospital. She waited 2 1/2 months for the autopsy report, wondering whether his death resulted from injuries in a traffic accident 6 weeks earlier or poor medical care after the wreck.

When she finally saw the report, she was shocked to see her husband identified as Hispanic.

"He was white, blue eyes, really white. He was pink, a big white guy," she said. "There's no mistake he was a white man."

She called the medical examiner, and the error was corrected. But other problems surfaced that made her question the cause of death, and she was disturbed that no toxicology test was performed.

Medical examiners have goofed up eye color and gender. They've made mistakes on the locations of scars and tattoos, described gallbladders and appendixes that had long since been removed even confused one body for another.

Some medical examiners say such minor oversights don't indicate that the case has been bungled. Typos occur, and the eyes turn cloudy after death, Peerwani said.

An appendix may have been removed, but a fingertip-size portion could remain, he said.

But such errors call into question the integrity of death investigations, said Burnet County Justice of the Peace Peggy Simon, who caught numerous blunders by the Travis County medical examiner's office when it was headed by Dr. Roberto Bayardo.

Burnet County doesn't have a medical examiner, so like other counties with populations under 1 million, it relies on justices of the peace to sign death certificates. Simon goes to death scenes to perform the inquest, an inquiry to determine the cause of death.

Once, she saw a car crash victim's dentures lying next to his body. But when she read the autopsy report, it said the man's teeth were natural and in good condition.

Four years ago, she saw a charred body pulled from a car that was set on fire. Police identified the body as that of a man sentenced to prison for molesting a child. Apparently, he had killed himself. Final identification depended on findings by the medical examiner, which conducted autopsies not only for Travis but also for more than 40 other counties.

The autopsy, by Dr. Vladimir Parungao, reported that the body had a penis, as well as urine in the bladder. But Simon, who had observed the size of the body at the scene, challenged the autopsy and ordered DNA testing. Turned out the body was that of an elderly woman who had died more than a year earlier.

"A penis? Urine in the bladder? That would be pretty unlikely, I would think," Simon said.

The convicted man, Clayton Wayne Daniels, had dug up the body of the 81-year-old to fake his death.

"I wonder ... what mistakes your office has made?" Simon wrote the medical examiner.

Parungao told the Star-Telegram that when he received the body, police had identified it as Daniels. The body was so charred, he said, he had trouble identifying organs.

"I should have been very careful," he said. "I let my guard down."

He also said that Bayardo required pathologists to quickly issue autopsy reports, even before tests were completed; if new information came up, the policy was to amend the reports.

Bayardo, who has since retired, said that even competent medical examiners, like Parungao, can make mistakes. "He got bad information and took it 100 %," Bayardo said of his deputy in a recent interview.

Such inaccuracies can be corrected, he said; medical examiners can change their opinions, as he has done. Others say the willingness of some medical examiners to alter their conclusions shows their shaky foundation. In May 2007, Bayardo changed the original testimony that helped put Austin baby sitter Cathy Lynn Henderson on death row. In 1995, he testified that the baby died from intentional blows. But after experts hired by Henderson's attorneys challenged the opinion, Bayardo said he could not tell whether that had been the case or whether Henderson had accidentally dropped the child, as she claimed.

A criminal appeals court granted Henderson a reprieve 2 days before her scheduled execution. Her case was sent back to the trial court, where it is pending.

A team of other experts, including Galveston County Chief Medical Examiner Stephen Pustilnik, has reviewed the case for the state and said Bayardo was right the 1st time. Pustilnik said the baby's skull had been shattered and the death was clearly a homicide.

It took much probing to discover flaws in autopsies by former Lubbock Chief Medical Examiner Ralph Erdmann. After families raised concerns about errors in his work, Turner got court permission to disinter bodies so another pathologist could review the deaths. As the bodies were dug up, truths were unveiled.

A bullet was found inside the head of man whose autopsy report had noted an exit wound on the top of his head. A baby was found with intact intestines, though Erdmann had said the baby's bowels had been ruptured when he was struck.

Missing evidence

Lax laws and poor oversight allow such lapses, critics say.

One significant weakness: Texas law doesn't require medical examiners to take notes, produce body diagrams or photograph evidence.

Such documentation is essential, said Dr. Ray Fernandez, chief medical examiner for Nueces County. Without it, a medical examiner can't back up an autopsy in court or show the validity of conclusions if challenged.

"A good report is based on how well that person documents their observations, so that another pathologist looking at the photographs, the diagrams, the report looking at all of it can at least assess the accuracy of what was done," said Dr. LeRoy Riddick, a retired forensic pathologist who is a professor at the University of South Alabama. "The interpretations are something else."

In one of the state's most high-profile cases the 1991 murders of 4 teenage girls at an Austin yogurt shop pathologist Tommy Brown, who did the autopsies for Travis County, told jurors that he did not take crime scene photographs but relied on those taken by police.

He also said that "a lot of times" information he dictated didn't get into his autopsy reports or he didn't dictate information that should have been included. 2 men convicted in the slayings, based largely on their confessions, were released this summer after new DNA tests showed that another man could have been involved.

Bayardo told the Star-Telegram that he never took notes because he feared they would be subpoenaed.

"That's always a problem," he said.

Instead, he would create an autopsy report by dictating information on tape.

In another case that drew in the Tarrant medical examiners office, capital murder charges against a young couple were dismissed 2 years after their babys death when some evidence apparently disappeared.

That case offered up a merry-go-round of opinions.

Bayardo declared the cause of death undetermined. Peerwani, who was asked for a separate opinion, released a report saying that the baby died of head trauma and that the case was a homicide.

Bayardo questioned how Peerwani who didn't examine the brain because it was apparently misplaced came to that conclusion.

"How can you say she died of head injuries when you have no brain?" Bayardo said in a recent interview.

Peerwani has said he had slides with brain specimens and sent them to a specialist for review. The charges were dropped when the slides could not be found.

In a recent interview, Peerwani supported his preliminary finding of homicide: "A kid that little doesn't have so many rib fractures." The Texas Medical Board did take action after whistle-blowers complained about former Harris County Medical Examiner Joye Carter. Initially, it sought to revoke or suspend her license after finding that she used an unlicensed pathologist to conduct hundreds of autopsies. Eventually, though, she was fined $1,000.

Questions about her work continued to be raised.

Numerous pathologists, including Dr. Lloyd White of the Tarrant County medical examiner's office, have questioned Carters findings in the slaying of Conroe college student Melissa Trotter.

The time of the womans death was a critical piece of evidence. Carter said the young woman had been dead for 25 days or more when her body was found north of Houston. That helped persuade a jury to convict an ex-con. He could not have committed the crime if the woman had been dead a shorter time, because he was in jail for traffic violations.

But forensic pathologists testifying for the defense pointed to evidence that they said showed the body could not have been in the forest for more than 2 weeks. The young woman's weight before she died was just 4 pounds more than when Carter performed the autopsy. Had Trotter been dead for 25 days, her body would have been in more advanced stages of decomposition and weighed much less, the pathologists said.

Dr. Glenn Larkin, a former medical examiner in Pennsylvania, also called Carters autopsy "sloppy," "irresponsible" and "misleading," noting that key medical records were missing and that some tissue samples had disappeared.

After the criticism, Carter signed an affidavit agreeing that Trotter could not have been dead for more than 2 weeks. She blamed problems on not having key evidence during the autopsy. A video of the crime scene and medical records were not available to her, she wrote.

Carter did not respond to repeated requests for comment.

The convicted man's execution was postponed, but prosecutors are standing by Carter's original autopsy report. The defense team, clamoring for the appeals court to intervene, points out that the state is rejecting opinions from some of the very pathologists prosecutors have relied on in other criminal cases.

"If all [these] medical examiners are all wrong on Melissa Trotter, how can they be right on all other cases?" said private criminal investigator Tina Church.

"There's no room for error when somebodys life depends on their findings."

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Autopsies required


In Texas, inquests by medical examiners are required when:

- A person dies within 24 hours of admission to a hospital or institution.

- A person dies in prison or jail.

- A person is killed or dies an unnatural death.

- A person dies in the absence of one or more good witnesses.

- A body part or body of a person is found and the cause or circumstances of death are unknown.

- The circumstances of the death are suspicious.

- A person commits suicide or is suspected of having done so.

- A person dies without having been attended by a physician and the cause of death is unknown.

- A child younger than 6 dies and the death is reported under state law dealing with child welfare services.

- The attending physician is not certain about the cause of death.

[source: Texas law]

Source: Fort Worth Star-Telegram, Sept. 28, 2009