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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Georgia death row on my mind

Clive Stafford Smith
Clive Stafford Smith
I got Brandon Jones off death row 20 years ago. On Tuesday, the state of Georgia ended his life.

I knew I wouldn't sleep on Tuesday, when the state of Georgia geared up to execute Brandon Jones. At 72, Jones was the oldest prisoner to ever be killed there, and to me, he was no anonymous condemned prisoner: Jones was an old client of mine. More than 20 years ago, I got him off death row. Then, I moved away from Georgia, and some local lawyers managed to get him back on. His appeals failed; they made plans to end his life. So even though I was in London some 4,261 miles away, on Tuesday, my mind was on the Georgia Diagnostic and Classification Center, its euphemistic name for death row.

Brandon always insisted that while he had taken part in his alleged crime - a robbery of a convenience store in 1979 - his co-defendant, Van Solomon, was the one who shot Roger Tackett, the unfortunate and entirely innocent attendant. Solomon was electrocuted in 1985, despite the heroic efforts of my good friend, lawyer George Kendall. I was more fortunate: In 1989 I managed to persuade a federal judge to order a new sentencing trial to decide whether Brandon would live or die.

It was a curious issue that seemed to save Brandon's life. In talking to the jurors, I learned that they had illegally taken a Bible into their deliberations. They had not turned to Matthew 5:7 and read that "Blessed are the merciful, for they shall obtain mercy." Rather, they had relied on Exodus 21:24: "You shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. ..." Because of this smuggled guidance, Brandon got a new sentencing trial.

By the time Brandon was on trial again, in 1994, I had moved to Louisiana to set up a death penalty charity, and could not commute hundreds of miles to Cobb County, Georgia, for the case. I found him an excellent lawyer, but he and Brandon had a falling out, and Brandon ended up with 2 court-appointed lawyers who had no idea what they were doing. Tom Charron, a bloodthirsty local District Attorney who seems to relish the association of his name with the mythological ferryman Charon on the River Styx, successfully urged the jury to call for a second death sentence. I have participated in the retrials of every other client whose sentence I managed to reverse, and won every time. Brandon was the solitary exception. In that way, I, too, failed him.

On the morning of Tuesday, February 1, Brandon's death had been sanctioned by the narrowest of margins. The issue was whether Georgia's new secrecy laws were valid: The state now refuses to allow access to information about the drugs being used in executions after a spate of embarrassing challenges to the execution protocol - some concerning botched executions, some concerning the right of pharmaceutical companies to object to the government using their life-saving drugs to kill people.

5 of the 11 judges on the federal court of appeals voted for a stay. "Today Brandon Jones will be executed, possibly in violation of the Constitution," Judge Robin Rosenbaum predicted. "He may also be cruelly and unusually punished in the process. But if he is, we will not know until it's too late - if ever."

Brandon Jones
Brandon Jones
Even at the 11th hour, the battle was not over. Sickening as it sounds, I have often received a stay from some judge, anywhere between Atlanta and Washington DC, within an hour of an execution. Here, Brandon's execution was set for midnight GMT, [7 p.m. in Georgia]. His current lawyers filed a flurry of last minute pleadings, and they won Brandon extra time and extra life - albeit perhaps only temporarily. So the clock edged around as Brandon sat in the holding cell, close by the execution chamber.

Almost 30 years ago, in 1987, I sat with Edward Johnson, the young man immortalized in the BBC documentary "14 Days in May" as he awaited death in Mississippi's gas chamber. But society has moved on, and we are even less civilized, now. So Brandon, a septuagenarian, had to wait alone, with perhaps a guard stopping by his cell door for company. I have been in those rooms before, watching the clock move at once too fast and too slow towards the dial of the appointed hour. It is excruciating.

It was 4 a.m. GMT when Justice Clarence Thomas, at the Supreme Court in Washington, vacated the final stay of execution. Now, after 36 years, this allowed the "Diagnostic Center" to set about killing Brandon. Problem is, despite their appetite for death, they are not very good at it. No doctor may take part - the Hippocratic Oath forbids it - so some inept technician probed and prodded Brandon for an hour, trying to find a vein. In the end, they had to insert the needle in his groin.

A journalist who was present from the local paper wrote that Brandon "fought death." I know he would have, but that was another euphemism. What she meant was that they botched it. Georgia uses 1 drug to execute its prisoners - a medicine originally designed for patients with severe epilepsy. Since the medicine is made to save the lives of patients, not end the lives of prisoners, the manufacturer had forbidden its sale to prisons for use in executions. But instead of heeding the manufacturer's wishes, the state turned to a shady compounding pharmacy and paid the pharmacist to mix up unapproved versions of the product so they could go ahead with executions; presumably this was the same pharmacist that had previously mixed up drugs for Kelly Gissendaner's execution, which were found to have "white chunks" in what ought to have been a transparent solution.

Secrecy surrounding Georgia's execution protocol means that the public could obtain no assurances regarding the quality of the drugs injected into Brandon's groin in the early hours of this morning. Anecdotal evidence doesn't inspire confidence: While Brandon's eyes closed within a minute of the warden leaving the execution chamber, a full 6 minutes later, his eyes popped back open. According to the witnesses, he looked at a clock on the wall, and then appeared to look at the man who prosecuted him in 1979, Tom Charron, who was sitting on the front row of the witness area.

How I hate to think of what was happening then. Charron was sitting in the same chair when they executed Nicky Ingram 20 years ago. I remember the bald patch at the back of Charron's head, and how he could not keep eye contact when I looked at him. I doubt he could hold Brandon's eye either.

When I would leave that execution chamber, always in the early hours, I invariably looked up at the stars - the same stars looking down on Brandon as he died were hovering over London last night.

And I have always asked myself: Did that ghastly event in there really make it a more civilized world?

Source: Al Jazeera America, Clive Stafford Smith, Feb. 4, 2016. Clive Stafford Smith is the founder and director of Reprieve.

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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning