It Would Be Impossible to Understand the Horror of Executing Angel Nieves Diaz This Holiday

Angel Diaz

Broad Issues

December 4, 2006

Angel Diaz

Broad Issues

It would be impossible to understand the horror of executing Angel Nieves Diaz this holiday season without a good close look at what is going on with the Florida Death Penalty these days. There are so many unanswered questions.

Why are so many inmates are being executed in Florida this holiday season?

The death penalty was reinstated nationwide with the ruling of a United States Supreme Court case Gregg v Georgia, 428 US 153 (1976). Executions in Florida were reinstated in 1979. Since then there have been 63 killings carried out over the years. Deaths in the recent past were few and usually only with “volunteers” who wanted to commit suicide by State. Last year, in 2005, there was only one execution, of inmate Glen Ocha who was considered a “volunteer.” He claimed he wanted to die. In 2004, there was also only one execution of “volunteer” John Blackwelder. Some think he was wrongfully executed, as a man sitting on death row still claims he is the real murderer.

Why are government-sanctioned killings now being carried out in Florida at breakneck speeds, against the advice of our nation’s highest court, the United States Supreme Court who believes there is are serious issues with lethal injection in Florida?

Three executions have occurred since September using secret protocols, devised by the Florida Department of Corrections, that questionably violate the Administrative Procedure Act. Why are medical doctors in attendance at these executions wearing black hoods? Isn’t this a violation of the American Medical Association’s ethics and of the Hippocratic oath, “to do no harm,” that these doctors swore to uphold when they got licensed to practice medicine? Why did Gov. Bush thumb his nose up at the United States Supreme Court? Why did Gov. Bush and the Florida Courts allow the execution of Clarence Hill take place when the issues of lethal injection had not been heard in a court of law? Why did Mr. Hill’s execution go forward the very day after the American Bar Association released a 450 page report called for a moratorium on Florida’s death penalty due to a substantial number of critical flaws?

The recent spate of questionable executions were carried out just in time for Election Day 2006. Jeb Bush thereby gave a big edge to his favored successor, then Attorney General Charles Crist, who grandstanded constantly as being “tough on crime.”

The Recent Lethal Injection Issue

However, the lethal injection studies came out and subsequently became noticed by the Appellate Courts.

The story begins in January 2006 with inmate Clarence Hill, the first man with a 2006 execution date certain, laid strapped to a gurney waiting to be executed. Mr. Hill did not want to die. He was convicted for the 1982 murder of a Pensacola police officer in a savings and loan robbery. Mr. Hill’s attorney, T. Todd Doss, was, seeking a last minute stay of execution, and raised a claim showing that recent studies proved that Florida’s lethal injection procedures were cruel and unusual punishment in violation of the Constitution’s Eighth and Fourteenth Amendments. Mr. Hill claimed that execution by lethal injection by the Florida Department of Corrections (FDOC) (three injections, including an anesthetic (sodium thiopental), a paralytic agent (pancuronium bromide), and potassium chloride to stop the heart) would cause him a lengthy and painful death because defense attorneys said it, “creates a foreseeable risk of the gratuitous and unnecessary infliction of pain on a person being executed.” Mr. Hill did not contest the legality of capital punishment, the facts of his own case, nor did he assert that lethal injection per se was unconstitutional. He only claimed the way it was carried out would be cruel. Mr. Hill cited a new study co-authored by David A. Lubarsky and Dr. Leonidas Koniaris that was published in a recent article in The Lancet, “Inadequate Anaesthesia in Lethal Injection for Execution,”, Vol. 365, The Lancet 1412-14 (April 16, 2005). In this study it was found that without proper administration of the anesthesia one experiences asphyxiation, a severe burning sensation, massive muscle cramping and finally cardiac arrest in full awareness and yet is paralyzed and unable to express pain.

So literally at the final hour, the United States Supreme Court granted a stay of execution. Mr. Hill won the right to have the courts review the question of whether or not federal civil rights law (42 USC Sec. 1983 Civil Rights) could be used to challenge the state’s execution methods. In June this year, the USSC ruled again and allowed the claim to go forward in the federal courts, and sent it to the United States District Court – Northern District in Tallahassee Division, in Florida.

A right to file a civil rights claim cleared a path for death row inmates nationwide to file lawsuits that would otherwise have been prohibited by tight restrictions on habeas corpus since the federal statute, Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), was enacted. Not in Florida it turned out.

The Supreme Court ruling caused several other Governors to halt executions in their home states or Courts to issue orders addressing serious Eighth Amendment questions raised by lethal injection. This includes South Dakota, Missouri, Arkansas, Ohio and California, and even federal cases. Oklahoma and North Carolina responded by changing their protocols. However, Texas and Virginia, who carry out the most executions per year, did not.

On June 13, 2006, in the Pensacola News Journal article, “Court OK’s injections appeal,” Carolyn Snurkowski, Assistant Deputy Attorney General seemed uncannily to foreshadow what the Courts’ rulings would be. Ms. Snurkowski said, “Mr. Hill certainly has the wherewithal to go back (to federal court) and ask that his claim be entertained. How far he gets with that remains to be seen. They could say he’s too late.” How could she know?

Arthur Rutherford, a Viet Nam veteran and carpenter was convicted of killing Stella Salamon on August 22, 1985 by strangling and then drowning her in the bathtub of her Santa Rosa County home. In addition to the lethal injection issue, Mr. Rutherford’s attorney Martin McClain raised an innocence claim. A woman living with Mr. Rutherford at the time of the homicide, Mary Heaton, had recently confessed to the killing. The Associated Press reported on January 26, 2006 that one dissenting jurist, Justice Harry Lee Anstead said, “How can we make these evaluations without an evidentiary hearing?” Mr. Rutherford won a stay, however, on the lethal injection issue.

In an article September 19, 2006, the Associated Press reported that Richard C. Dieter, Executive Director of the Death Penalty Information Center, said “Nationally there is an inconsistency in the review of lethal injection challenges. If the Florida case was that serious for the Supreme Court, I would think that at a minimum in Florida they would hold an evidentiary hearing to hear from both sides about whether there are particular problems.”

However, Gov. Jeb Bush defied the United States Supreme Court rulings, killed Mr. Hill and Mr. Rutherford, which mooted the lethal injection issue. No claimants no case.

Just in time for Election Day so his chosen successor Attorney General Charles Crist, could be elected Governor of Florida.

This scheme began on August 17, 2006 when Attorney General” Christ, wrote an Advisory Opinion to Florida Governor Jeb Bush determining that it is “legally sufficient to support the issue of a warrant” for the execution of Clarence Hill. That very same day Gov. Jeb Bush wrote a letter to Randall Bryant, the Warden of Florida State Prison, the prison that holds Florida’s executions. In his letter Gov. Bush set Mr. Hill’s execution for September 20, 2006.

Both Gov. Bush and Attorney General Christ acknowledged in their letters of August 17, 2006 that the lethal injection claim was still viable in the higher courts, but they both noted the same loophole. There was no existing stay of execution in place at that time. The reason for this is that the 25- day period for rehearing of that matter lapsed before the Eleventh Circuit Court of Appeals had called the case to calendar. It was August, and Courts are rarely in session at that time because lawyers, witnesses and jurists are on vacation. But on that technicality Mr. Hill’s stay got taken away from him.

In spite of the impending death date, his attorneys forged ahead and filed a claim before the federal US District Court in Tallahassee. In it Mr. Hill stated that Florida lethal injection procedures are “substantially similar” to those used by the states found overly painful in The Lancet study. Mr. Hill claimed Florida has no standardized procedures to administer the chemicals, insufficient guidelines for the unqualified personnel and no plan for medical assistance if needed.

The federal Court, in its Order of September 1, 2006 written by Stephan P. Mickle, United States District Judge, denied Mr. Hill’s claim, stating that a civil rights claim is an equitable remedy and not a matter of right and because Mr. Hill raised the claim too late. As to the first reason, the Court said that since there was a stay in place, it “must be sensitive to the State’s strong interest in enforcing its criminal judgments without due influence by federal courts.” Judge Mickle also stated that though the Lancet study is relatively new, Mr. Hill’s attorneys should have raised this issue sooner because Florida’s lethal injection methods were subject to a full evidentiary hearing in 2000 in Sims v. State, 754 So. 2d 657 (Fla. 2000). “Hill has offered no reason for his delay,” the Court stated. The defense argument that the Lancet study was new because it was scientific proof not conjecture, and that federal law recently held hearings questioning lethal injection protocols fell on a deaf Court. Nevertheless, the District Court denied Mr. Hill’s claim on September 11, 2006 because “it appears that Hill is engaging in dilatory tactics to delay a death sentence.”

Mr. Hill then asked the United States Court of Appeals for the Eleventh Circuit In Atlanta to delay the execution and expedite his appeal. On September 15, 2006, the Court (Circuit Judges Tjoflat, Hull and Pryor) denied his claim stating, “With Hill’s execution schedule to be carried out within a matter of days from (your) receipt of the instant motion, we decline to engage in that protracted, and untimely futile, sequence of events. “ This Court again accused Hill of waiting until the final hour to raise the lethal injection claim calling his case “dilatory.”

The conundrum is how was Mr. Hill able to file a claim when his seasoned Florida attorneys knew no court in Florida would consider anything credible except hard scientific evidence, which was not published until The Lancet study came out in April 2005?

In the meanwhile, several organizations pleaded with Jeb Bush to halt the execution until the lethal injection issue was resolved in Florida. Human Rights Watch U.S. Director Jamie Fellner, in a letter to Gov. Bush dated September 18, 2006, stated that U.S. veterinarian guidelines prohibit the use of potassium chloride when euthanizing a domestic animal unless they are sure the animals are deeply anesthetized and that Florida Department of Corrections does not have protocols to safeguard such danger. The Human Rights Watch Director also wrote specifically about a botched Florida execution that occurred on June 8, 2000 when it took execution technicians 33 minutes to find suitable veins to inject inmate Bennie Demps, whose last words were an expression of agony.

On September 18, 2006, Mr. Bush told the Associated Press that the delays in Mr. Hill’s case had made “a mockery” of the judicial system.

Mr. Hill was killed on September 20, 2006. In Pensacola News Journal article September 21, 2006, reporter Paul Flemming wrote “a blue-cloaked and hooded medical staffer came in at 5:11 p.m. to check Hill’s vitals, followed by a similarly clothed doctor to check Hill with a stethoscope. After two nods to Bryant (Randall Bryant the warden of Florida State Prison), the warden declared Hill dead (See Pensacola News Journal, 9/21/06, “Hill Executed. Death Brings Little Relief to Victim’s Family,” by Paul Flemming.)

This eye-witness report makes it seem like a lynching. In reality, doctors wearing hoods just obviates an unsolvable problem with the death penalty. In order to carry out a painless killing, a medical doctor should be present; but according to our medical standards, it is unethical for a doctor to participate in the unnatural homicide of a healthy person.

The American Medical Association Finds that it is Unethical for Doctors to

Participate in Executions

It is a violation of the American Medical Association’s ethics and of the Hippocratic oath, “to do no harm,” that these doctors swore to uphold when they got licensed to practice medicine to participate in an execution in any way, from preparations to checking for vital signs of the deceased before the jailer pronounces death. So says the Council on Judicial Affairs “Physician Participation in Capital Punishment,” Journal of the American Medical Association, 1993, p. 270, 365-368.

Both the American Medical Association and the American Society of Anesthesiologists refuse to participate in executions on ethical principles. In July 2006, William G. Plested, President of the AMA, stated, "The American Medical Association is troubled by continuous refusal of many state courts and legislatures to acknowledge the ethical obligations of physicians, which strictly prohibit physician involvement in a legally authorized execution. The AMA's policy is clear and unambiguous — requiring physicians to participate in executions violates their oath to protect lives and erodes public confidence in the medical profession.”

"A physician is a member of a profession dedicated to preserving life

when there is hope of doing so. The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine — first, do no harm.”

"The guidelines in the AMA Code of Medical explicitly prohibits

selecting injection sites for executions by lethal injection, starting intravenous lines, prescribing, administering, or supervising the use of lethal drugs, monitoring vital signs, on site or remotely, and declaring death.”

One of the recent studies on lethal injection revealed disturbing facts. "As it's practiced now, lethal injection is cruel and could even be called torture in some cases," said Dr. Leonidas Koniaris, a cancer specialist at the University of Miami and lead author of a study published by the prominent British medical journal Lancet. Without anesthesia, a condemned person would experience "asphyxiation, a severe burning sensation, massive muscle cramping, and finally cardiac arrest" because of the other drugs commonly used in executions, the Lancet paper said.

The more important point, co-author Dr. David Lubarsky, chairman of the department of surgery at the University of Miami, suggests, is that execution chambers have no systems to monitor how drugs are administered and whether they are effective. In a hospital, machines track a patient's vital signs and brain activity, indicating when an anesthetic is taking effect. In the prisons, "you can't tell if they're botching it. They do nothing," The study suggests that the current practice of lethal injection for execution fails even to meet veterinary standards for putting down animals.

Yet, anesthesiologists are opposed to lethal injection as well and pointed out very serious problems with laypeople attempting to competently carry out an execution. Dr. Orin Guidry, President of the American Society of Anesthesiologists, said, “Each of us, as anesthesiologists, would say that five grams of thiopental (the usual dose administered during lethal injection) should be sufficient to anesthetize anyone. Why are these executions “botched”? The inmates may not be getting this dose intravenously. IV access is often difficult. The persons preparing and administering the drugs usually are not observing the inmate. The process is divided into a number of steps done by different individuals to minimize the onus on any one person. The nature of the inmate or the situation may require a larger dose. Many of the personnel involved lack formal training or clinical experience in providing sedation or anesthesia care to patients.”

The ASA has adopted the AMA ethical code that physicians cannot participate in executions. Dr. Guidry asks, “Are anesthesiologists stopping capital punishment and making public policy? Not in my opinion. Lethal injection was not anesthesiology’s idea. American society decided to have capital punishment as part of our legal system.”

Does Florida have doctors who exempt themselves from this oath of office and pay them to oversee executions? We may never know because the FDOC and Governor Bush's office can easily put a hood over the truth of what goes on during executions. They are not videotaped, although they should be.

American Bar Association Report Says Florida’s Death Penalty System is Flawed

On September 17, 2006 the American Bar Association released a 403 page report highlighting so many critical flaws in Florida’s Death Penalty system that it called for a moratorium until the problems could be addressed. The ABA panel was comprised of both prosecutors and defense attorneys. The 8-member committee included retired Florida Supreme Court Justice Leander J. Shaw Jr. and FloridaStateUniversity professor Mark Schlackman, Esq., the Director of Center for the Advancement of Human Rights.