The de-facto moratorium on executions in Indiana has some prosecutors doubting that even a successful sentencing will be carried out, and defenders concerned for the convicted who live years under threat of death.
Meanwhile, other states such as Texas and Oklahoma have moved forward with executions this year.
Four of the men on Indiana’s death row have exhausted all their appeals and have no other recourse, according to the Indiana Public Defender Council’s website. But Indiana’s Department of Correction has no orders for executions and no dates set, according to spokeswoman Annie Goeller.
Indiana hasn’t put a man to death since December 2009, when it executed Matthew Eric Wrinkles. All the men reside in the Indiana State Prison in Michigan City.
That’s because the agency has no supply of the three drugs — methohexital, pancuronium bromide and potassium chloride — it would use in its lethal injection drug cocktail, Goeller confirmed.
Indiana and other governments have in recent years struggled to acquire the drugs from pharmaceutical manufacturers who don’t want their products — which have therapeutic purposes — to be used in executions. Some, like Texas, have switched to a single-drug protocol of Pentobarbital.
“Indiana, like many states, is looking into available options,” Goeller wrote in an email.
‘My responsibility is to move forward’
Madison County Prosecutor Rodney Cummings has pursued the death penalty in two of at least four cases since he took office in 1994.
Cummings announced his second on Aug. 17. But he’s skeptical of how it’ll unfold.
Carl Roy Webb Boards II, 42, Anderson, is accused of shooting Elwood Police Officer Noah Shahnavaz, 24, Fishers, to death during a 2 a.m. traffic stop on July 31.
“The process in this case is, “Is this case among the worst of the worst?” And I’ve never seen anything like this before in a police shooting, basically,” Cummings said. “I mean, he shot him 36 times.”
Cummings said he made the decision to pursue the death penalty after taking a hard look at the evidence himself, getting experienced prosecutors from around Indiana to evaluate the case and asking Shahnavaz’s family if they’d like to move forward with it.
“I think the likelihood of conviction is fairly — very high,” Cummings said.
Still, he added, “I think the likelihood that this defendant would ever be executed is unlikely. But we all have our responsibilities in the process, and my responsibility is to move forward in an appropriate case.”
Cummings’ office asked for an additional $50,000 in its 2023 budget to cover the early costs of a case that’s likely to stretch for years to come.
A cruel wait?
Eric Koselke defended his first death penalty case in 1985, six months out of law school. Since then, Koselke told the Capital Chronicle, “I’ve done it all.”
That Indiana has no executions planned and no drugs in stock offers him little comfort.
“They could get them at any time. I mean, we don’t know what’s going on with that, as defense attorneys. They’re not going to tell us,” said Koselke, who’s a death penalty consultant for Indiana’s Public Defender Council in addition to running his own cases.
The wait changes no calculations, he said, because for defense attorneys, chances of success peak at trial and drop with each appeal.
But the wait for death concerns him.
“I still think the sentences should be commuted,” Koselke said. “Those guys are just sitting there, captive, to people who they know, one day, are going to kill them, and they don’t even know when they’re going to die.”
“In my opinion … I think that’s cruel and unusual punishment,” he said. “I mean, they’ve been there for years waiting to be executed, and I can’t imagine living under that kind of pressure.”
Four of the men sitting on Indiana’s death row have run out of appeals. Three have appeals pending, and another was found incompetent to be executed.
Other states moving forward
Not everyone’s struggling to obtain drugs used for lethal injections.
Five states have executed 10 people in 2022, as of Aug. 25, according to the Death Penalty Information Center, a nonprofit that tracks death penalty data and disseminates reports.
Texas’s Department of Criminal Justice — which has conducted two executions this year — uses only pentobarbital, according to Director of Communications Amanda Hernandez.
Asked if her agency had experienced any difficulties in procuring the drug, Hernandez wrote simply, “We have ample supply.”
The Indiana Department of Correction didn’t respond to questions about its procurement attempts, and declined multiple requests for interview.
But in a years-long lawsuit, the agency’s staff argued that without confidentiality for manufacturers and distributors, it was “practically impossible” to get the drugs.
Washington, D.C. lawyer Katherine Toomey asked for information related to lethal injections in 2014 under Indiana’s Access to Public Records Act.
“The Department of Correction wrote her a letter that essentially said, ‘Take a long walk off of a short pier,’” said Peter Racher, a partner at Indianapolis-based Plews Shadley Racher & Braun. He and Josh Tatum eventually litigated Toomey’s case, filed in 2016.
Debra Lynch, a federal judge for the U.S. District Court for the Southern District of Indiana, wrote an order in Toomey’s favor in 2017. But behind the scenes, the Department of Correction was working with the governor’s office to devise a legislative solution Racher believes was aimed at Toomey’s request.
On the last day of 2017’s legislative session, lawmakers inserted a provision exempting information related to lethal injections from the state’s public records law into a lengthy budget bill. Lynch granted summary judgement to the agency instead.
When the Indiana Supreme Court took it up, its four members — one recused himself — split, affirming Lynch’s decision in 2021.
But the records Toomey had requested showed Indiana hadn’t successfully procured drugs for years beforehand.
“Even if, you know, The New York Times published on the front page the records that we got, there was no way that that information was going to have any current impact on anything,” Racher said.
“They made it sound like if these records were released, that’ll be the end of the death penalty in Indiana,” he added. “But I don’t think you can say it’s because of Kate Toomey’s request for public records.”
Indiana’s death row
- Eric D. Holmes, sentenced March. 26, 1993; no appeals left.
- Joseph E. Corcoran, sentenced Aug. 26, 1999; no appeals left.
- Michael D. Overstreet, sentenced July 31, 2000; found incompetent to be executed.
- Benjamin Ritchie, sentenced Oct. 15, 2002; no appeals left.
- Roy Lee Ward, sentenced June 8, 2007; no appeals left.
- Kevin Charles Isom, sentenced March 8, 2013; pending federal habeas corpus review.
- Jeffrey Alan Weisheit, sentenced July 11, 2013; pending federal habeas corpus review.
- William Clyde Gibson III, sentenced Nov. 26, 2013 and April 15, 2014; pending federal habeas corpus review.
Sources: Indiana Public Defender Council
Source: indianacapitalchronicle.com, Leslie Bonilla Muñiz, August 30, 2022
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde