Botched execution offers new evidence to attorneys

JIM SALTER Associated Press Published:

ST. LOUIS (AP) -- A bungled execution in Oklahoma provides death penalty opponents with a fresh, startling example of how lethal injections can go wrong. But the odds of successfully challenging the nation's main execution method will probably hinge on exactly what caused the apparent agony of inmate Clayton Lockett.

If the four-time convicted felon suffered because of a collapsed vein or improperly inserted IV, the legal landscape might not change much. If the drugs or the secrecy surrounding them played a role, defense attorneys for other prisoners could have powerful new evidence to press the Supreme Court to get involved, legal experts say.

A day after the execution went awry, some attorneys for death-row inmates began planning new appeals or updating existing cases based on events in Oklahoma. Many called for moratoriums and independent investigations.

"Every prison is saying, 'We have it under control, trust us,'" said Texas attorney Maurie Levin, who spent Wednesday preparing new briefs questioning that state's execution practices. "This just underscores in bold that we can't trust them, and prisons have to be accountable to the public and transparent in the method by which they carry out executions."

The 38-year-old Lockett, convicted of shooting a woman and watching as two accomplices buried her alive, was declared unconscious 10 minutes after the first of three drugs was administered Tuesday. Three minutes later, he began breathing heavily, writhing, clenching his teeth and straining to lift his head off the pillow. Authorities halted the execution, but Lockett died of a heart attack more than 40 minutes after the process began.

An autopsy was conducted Wednesday to determine his precise cause of death, and Oklahoma Gov. Mary Fallin called for an independent review of the state's execution protocols. The White House said the execution fell short of the humane standards required.

Courts, including the Supreme Court, have been reluctant to halt executions over arguments that they violate an inmate's constitutional guarantee against cruel and unusual punishment. In four rulings over the past 135 years, the Supreme Court has upheld the use of the firing squad (1879), the electric chair (1890), the ability of a state to try to execute a condemned inmate by electrocution again after a first attempt failed (1947) and lethal injection (2008).

The Constitution "does not demand the avoidance of all risk of pain in carrying out executions," Chief Justice John Roberts said in the court's 2008 decision upholding Kentucky's lethal injection system.

Still, a minority of the high court has shown some recent trepidation about the secrecy of the process used by many states.

Many states -- Oklahoma, Texas and Missouri among them -- purchase execution drugs from lightly regulated compounding pharmacies and refuse to name the supplier, whether the drug has been tested, even who is part of the execution team.

In February, three justices -- two short of the required five -- said they would have blocked the execution of Michael Anthony Taylor in Missouri. A month later, four justices fell one vote short of blocking the execution of another Missouri inmate, Jeffrey Ferguson. They offered no explanation for their vote.

If Tuesday's problems were caused by a collapsed vein, the Supreme Court "probably won't feel a lot more pressure to step in," said Thomas Goldstein, an experienced Supreme Court lawyer who also has represented death row inmates. But if the injection chemicals themselves and the state's secrecy emerge as important factors, "there will be great pressure for them to hear a case and require transparency."

Madeline Cohen represents Charles Warner, an Oklahoma inmate who was scheduled to be executed just hours after Lockett. She said she plans new appeals on behalf of Warner, whose execution was stayed for at least two weeks.

She also is pressing for an independent investigation of Lockett's death, including examination of his remains by an independent pathologist.

In Missouri, convicted killer Russell Bucklew is scheduled to die by an injection of pentobarbital on May 21. His attorney, Cheryl Pilate, said she will file new appeals next week seeking to halt the execution or at least postpone it until the state's procedures and protocol "are subject to full disclosure."

The potential for something to go wrong is escalated for Bucklew, Pilate said, because he suffers from a lifelong medical condition that has left his blood vessels malformed and weakened. It's so bad that he often bleeds from the eyes, Pilate said.

"Executions are not medical acts," Pilate said. "They are experiments conducted on human subjects with no accountability or oversight."

The White House stopped short of suggesting a moratorium. Legislatures and governors could also order investigations or a temporary halt to executions. So far, only Oklahoma's governor is taking action.

Ansley Channing, a spokeswoman for Missouri Gov. Jay Nixon, said in an email that Missouri's protocol has been upheld by the courts and Nixon continues to support "the ultimate punishment" for the "most merciless and violent crimes."

Ohio planned to follow its normal procedures, including an examination of the condemned inmate three weeks before the execution to evaluate his veins and plan for the insertion of intravenous needles.

Jerry Cox, president of the National Association of Criminal Defense Lawyers, said the botched Oklahoma execution should "shock the conscience of all Americans," even those who previously supported the death penalty.

"Most of the world and virtually all democracies have abandoned the death penalty," Cox said. "This is just horrific, and it's not the first time there's been a botched attempt to kill somebody."

The Lockett execution marked the third time this year that an execution raised concerns about whether inmates suffered.

In January in Ohio, inmate Dennis McGuire took 26 minutes to die, gasping repeatedly as he lay on a gurney with his mouth opening and closing. That same month, Oklahoma inmate Michael Lee Wilson's final words were, "I feel my whole body burning."

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