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

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…

Alabama Death Row inmate's attorneys can't have phones in execution witness room: judge

Tommy Arthur
Tommy Arthur
Attorneys for Alabama Death Row inmate Tommy Arthur can't have access to phones during his execution to call a judge in case they see something go wrong, a federal judge ruled Wednesday.

Arthur is set to be executed May 25 at Holman Correctional Facility for the 1982 murder-for-hire slaying of Troy Wicker, of Muscle Shoals. Arthur has had seven previous executions delayed by courts - the last one on Nov. 3.

The U.S. Supreme Court on Feb. 21 denied Arthur's request for a review of his appeal claiming the state's lethal injection method of execution is unconstitutional. The next day the Alabama Attorney General's Office asked that a new execution be set for Arthur.

Arthur's attorneys are seeking a re-hearing before the U.S. Supreme Court.

U.S. District Court Judge Keith Watkins on Wednesday issued an opinion denying Arthur's attorneys request to have access to cell or landline phones in the witness room at the prison during the execution.

Arthur filed a complaint challenging the Alabama Department of Correction's policy prohibiting an inmate's attorney who is also a designated witness to his execution from having access to a phone during the execution.

"He contends that enforcement of this ADOC policy, in combination with the application of Alabama (law) ... to prohibit his counsel from acting as counsel during an execution, conflicts with his constitutional rights to due process, meaningful access to the courts, and freedom from cruel and unusual punishment, and will leave his counsel unable to contact the courts to seek intervention if something arises during an execution that warrants a stay or other relief," the judge stated in his order.

Arthur's attorneys stated in their complaint that anesthesia problems were reported in the Christopher Brooks and Ronald Bert Smith executions in 2016. One witness to the Jan. 21, 2016 execution of Brooks later stated that Books' left eye opened after the sedation drug, midazolam, was administered and was supposed to have been fully anesthetized. Witnesses to Smith's execution on Dec. 8 reported Smith "clenched his fist after being given the first drug," and "was apparently struggling for breath as he heaved and coughed for about 13 minutes," according to the judge's order.

Watkins ruled that the prison system's phone policy was updated on Aug. 1, 2012 and Arthur didn't file his complaint until 2016, well past the two-year deadline for a legal challenge.

The judge also ruled that Arthur failed to state a plausible claim for which relief can be granted on his implied right-to-counsel claim during his execution. "His allegations are purely speculative," he wrote.

Watkins envisioned this scenario in which a lawyer might use the phone to call a judge during an execution:

Counsel: "His eye just opened."

Judge: "What exactly does that mean?"

Counsel: "I don't know."

Judge: "What are you asking me to do?"

Counsel: "Stop the execution."

Judge: "What drugs have they given?"

Counsel: "I don't know."

Judge: "What volume of unknown drugs have they given?"

Counsel: "I don't know."

Judge: "At what rate over time were the unknown drugs in unknown amounts given?"

Counsel: "I don't know."

Judge: "What would be the effect on your client if I ordered the execution stopped?"

Counsel: "I don't know."

Judge: "Can you tell me with any degree of medical certainty that stopping the execution at this point would not harm your client, cause him pain and suffering, or leave him permanently comatose?"

Counsel: "No, honestly I can't."

Appeals to stay execution

Arthur's attorneys on April 7 updated their request for a re-hearing before the U.S. Supreme Court, noting a ruling in Ohio the day before.

Arthur's attorneys noted the southern district of Ohio granted a preliminary injunction barring Ohio from using a lethal injection protocol "nearly identical" to the one Alabama intends to use on Arthur. On April 6 the U.S. 6th Circuit Court of Appeals affirmed that decision.

The 11th Circuit Court of appeals had ruled differently in Arthur's case.

Arthur's attorney wrote that with a disagreement between the 11th Circuit Court of Appeals and 6th Circuit Court of Appeals, the time is ripe for the U.S. Supreme Court to review the issues and decide the lethal injection protocol issue. 

"The presence of two split decisions with opposed holdings from two different courts of appeals on an issue of national importance warrants review by this court," Authur's attorney, Suhana Han argues. "This review is urgent in Mr. Arthur's case: Mr. Arthur has proffered substantial evidence that his execution ... will be torturous, but because he is in Alabama instead of Ohio that evidence will never be considered absent this court's intervention."

Arthur also has argued in another court filing that the Alabama Legislature, not the Alabama Department of Corrections (ADOC), should be the one to decide what lethal injection drugs should be used for executions, according to Arthur's motion.

Source: AI.com, Kent Faulk, April 12, 2017

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