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Tennessee execution: Billy Ray Irick tortured to death, expert says in new filing

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Editor's note: Reporter Dave Boucher was one of seven state-required media witnesses at Irick's execution. 
Billy Ray Irick felt searing pain akin to torture before he died in a Tennessee prison in August, but steps taken in carrying out his execution blocked signs of suffering, according to a doctor who reviewed information about the lethal injection.
In new court filings entered late Thursday amidst an ongoing legal challenge of Tennessee’s lethal injection protocol, Dr. David Lubarsky said statements from people who witnessed the execution indicated the controversial drug midazolam failed to ensure Irick could not feel pain during his death.
As a result, the death row inmate “experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride,” Lubarsky wrote in the filing.
The document also says the state did not follow its own lethal injection protocol, raising questio…

Two Murder Convictions for One Fatal Shot

Gun and bullets
In dozens of criminal trials, prosecutors have put the same gun in the hands of more than one defendant.

Late one spring night in 1984, the doorbell rang at the home of Norman and Mary Jane Stout. The Stouts, married thirty years, with three grown kids, lived in Guernsey County, Ohio, about a hundred yards off Interstate 70. Norman was a heavy-equipment operator; Mary Jane, who once worked as an office manager, was a collector of Holly Hobbie plates and figurines. They were at the kitchen table, paying bills. Norman opened the door to find two men, who looked to be in their mid-twenties. They said that their car had broken down on the highway and asked to use the telephone.

Norman invited them in, then watched as one of the men, after finishing the call, took out a handkerchief and wiped off the receiver. The two men—their names were John David Stumpf and Clyde Daniel Wesley—pulled guns. “Oh, by the way, this is a stickup,” Wesley said. When Norman rushed at Stumpf, Stumpf shot him twice in the head; the first shot, Norman later recalled, hit “the bridge of my glasses, right between my eyes.” He lost consciousness and fell to the ground. Afterward, one of the robbers shot and killed Mary Jane. Norman came to in time to hear the men’s voices in another room, and then the shots that killed his wife. But he couldn’t see who fired the gun.

Stumpf and Wesley were both charged with aggravated murder, and were prosecuted separately at the Guernsey County Courthouse. Stumpf’s case went to court in September, 1984. A county prosecutor, urging the death penalty, argued that Stumpf had shot Mary Jane: “Believing that he had killed Mr. Stout, this defendant then turned the same chrome-colored Raven automatic pistol upon Mary Jane Stout as she sat on the bed and shot her four times. Three times in the left side of the head and neck and one time in the wrist, obviously in order not to leave anyone available to identify him.” Stumpf was convicted and sentenced to death.

“Due process doesn’t mean perfection. It doesn’t mean that each jury has to always reach the right result.” - Antonin Scalia

Seven months later, the prosecutor returned to court for Wesley’s trial. Again seeking the death penalty, he argued this time that Wesley had fired the fatal shots: “Believing that he had killed Mr. Stout, John David Stumpf pitched the gun aside.” At that point, the prosecutor continued, “this defendant, whose own gun was jammed, picked that chrome-colored Raven up and, as Mrs. Stout sat helplessly on her bed, shot her four times in order to leave no witnesses to the crime.” Wesley was convicted and sentenced to life.

Several years ago, a lawyer contacted me about a case in which he said prosecutors had argued contradictory theories of a crime. Looking into the subject, I didn’t find much—a few law-review articles and the occasional news story. The author of an article from 2001, a professor emeritus at Villanova University’s law school named Anne Bowen Poulin, told me that when she began her research a colleague said to her, “This is stupid. It never happens.” The next day, Poulin got a call from a former student, now a defense attorney, who had just such a case, in Philadelphia. “It does happen,” Poulin said. “And probably more often than we’d like to think.”

There’s no saying exactly how often. But, in a recent canvass of court rulings, I turned up more than four dozen cases, from California to Massachusetts, in which the defense attorney argued in an appeal that the prosecution had told conflicting stories about the crime. Prosecutors have offered contradictory theories about which defendant stabbed someone with a knife, or chopped a woman’s skull with a hatchet, or held a man’s head underwater. The most common scenario involves a fatal shot: the prosecutor puts the gun in the hand of one defendant, then another. Under the legal principle of accomplice liability, a defendant can be convicted of murder without being the killer. But, if the prosecutor says that a defendant pulled the trigger, it’s easier to ask a judge or a jury for a death sentence. At least twenty-nine men have been condemned in cases in which defense attorneys accused prosecutors of presenting contradictory theories. To date, seven of those twenty-nine have been executed.

In 2004, the Sixth Circuit Court of Appeals overturned John David Stumpf’s conviction in the murder of Mary Jane Stout, writing, “Inconsistent theories render convictions unreliable.” The state appealed, and on April 19, 2005, the Supreme Court heard oral arguments in Stumpf’s case. Justice David Souter said, of the prosecution’s contradictory theories, “It has to be the case that one of those arguments, if accepted, would lead to a false result.” Souter asked how the use of conflicting arguments could square with due process. Justice Antonin Scalia said that he saw no such problem: “Due process doesn’t mean perfection. It doesn’t mean that each jury has to always reach the right result.” Scalia’s language was so blunt that even Ohio’s State Solicitor saw a need to soften it. “I agree with that, Your Honor, and I hate to argue against my position, so I do this gently,” he said. “One of the old saws of American law is, it’s better one guilty person should go free than that one innocent person should be punished.”

Two months later, the Supreme Court issued a unanimous opinion, written by Justice Sandra Day O’Connor, affirming Stumpf’s conviction while avoiding the due-process question. Under Ohio’s law on aiding and abetting, Stumpf could have been convicted of aggravated murder no matter who fired the gun. The question, the Court determined, was whether the prosecution’s inconsistency should invalidate Stumpf’s death sentence. The Sixth Circuit had not tackled that issue, so the Supreme Court sent the case back for an answer. To this day, the Supreme Court has not ruled squarely on the validity of conflicting prosecution theories.

➤ Click here to read the full article

Source: The New Yorker, Ken Armstrong, November 13, 2017 Issue


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but by the punishments that the good have inflicted." -- Oscar Wilde

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