Bjork: The next to last song

For all those of you wishing to  witness an execution, skip Moorman and Towery: here's one worth a few minutes of your time...

 

----------------from the AZ Republic--------------------- 

3 Arizona inmates sue over execution protocol

Michael Kiefer 

Feb. 6, 2012

Arizona Republic

With two executions scheduled in the next month, the Federal Public Defender's Office in Phoenix has again filed a lawsuit against the Arizona Department of Corrections over its procedure for carrying out lethal injections.

The lawsuit, filed Monday on behalf of three Arizona death row inmates by Assistant Federal Public Defender Dale Baich, claims that a new execution protocol put in place last month gives too much discretion to the state's corrections director. It suggests that the slackening of requirements in the new protocol may not pass muster with a U.S. Supreme Court decision regulating executions by lethal injection.

And the office again questions whether execution drugs purchased secretly in Britain are approved by the U.S. Food and Drug Administration.

A spokesman said the department had not yet examined the suit and could not comment on it.

In 2007, the U.S. Supreme Court upheld Kentucky's protocol for lethal injection and invited other states to challenge their own. The Kentucky protocol, in effect, became the baseline for lethal injection, and in 2009, a U.S. District Court judge in Phoenix ruled that Arizona's measured up. That ruling was upheld in the 9th U.S. Circuit Court of Appeals.

But last December, the same federal judge in Phoenix acknowledged that the DOC had frequently varied from the 2009 court-approved protocol. However, he ruled that the variances were excusable or justifiable and did not violate the rights of death-row prisoners.

Issues in the December court case were that the department consistently used a surgically implanted catheter in the groin instead of less-invasive catheters in an arm or leg to inject the chemicals; that the department had not performed adequate background checks on the executioners; and that some of the chemicals used in executions were not lawfully obtained.

In January, the DOC issued a new protocol, this time giving full discretion to director Charles Ryan on how and where the drugs are injected. It also loosens the experience needed by those people who carry out the execution and gives total authority to Ryan for their selection.

The new lawsuit claims that this may put the state out of compliance with the 2007 Supreme Court decision.
Ryan also gets to choose whether to use a barbiturate called pentobarbital or an older drug, thiopental, which is no longer available in the United States.

The federal Drug Enforcement Administration has determined that thiopental imported to Arizona for executions in 2010 and 2011 was not lawfully obtained.

FDA facilitating executions...

------------------------from the AZ Republic-------------------

E-mails detail FDA's efforts to avoid responsibility regarding execution drug

by Michael Kiefer
Aug. 20, 2011 12:00 AM
The Arizona Republic


In late September 2010, the Arizona Department of Corrections obtained the drug sodium thiopental from a small pharmaceutical supply house in London to carry out an execution by lethal injection in October.

The supply house was not registered with the U.S. Food and Drug Administration to export the drug, nor was the drug approved by FDA, but FDA officials in Phoenix nonetheless allowed the drug into the country.

Though the Corrections Department fought hard in court to keep the source of the drug secret, days before the October execution was carried out, The Arizona Republic learned that it had been imported from England.

From documents obtained this week from the FDA under the Freedom of Information Act, The Republic has learned that the revelation touched off inquiries into how the drug made it to Arizona and other states that had already been importing it from England and elsewhere.

Then, the FDA, the U.S. Drug Enforcement Administration and the U.S. Customs and Border Patrol all consulted with the White House to address questions about the legality of the imports and to justify bending the rules to get it to prisons for executions.

The documents released by the FDA offer an insider's view of an agency struggling to keep itself from being dragged into the national legal debate over drugs used in state executions. Some of the released documents were supposed to be redacted to conceal certain details, but encryption failed.

Those e-mails show, among other things, that the FDA, with the approval of unnamed persons at the White House, shifted responsibility for allowing the drug's import to Customs. That was done to avoid legal liability and to shield the FDA from any appearance of involvement with the death penalty.

One high-placed FDA official wrote on Nov. 2 that even if the agency issued a statement that it had not reviewed the drugs for "safety, efficacy or quality . . . it will insert FDA into the death-penalty cases because attorneys will try to use the statement as a means to open proceedings on the safety of the imported drugs."

By the end of 2010, the FDA officially stated it would "continue to defer to law enforcement on all matters involving lethal injection," and the e-mails show that it had deferred approval of the drug imports to Customs.

When asked for comment, Shelly Burgess, an FDA spokeswoman, said in an e-mail response, "This involves a matter in litigation and the agency does not comment on matters of litigation."

Dale Baich of the Federal Public Defender's Office in Phoenix, one of the plaintiffs in a lawsuit seeking to force the FDA to police the drug imports, also received the FDA documents whose redactions were visible. He said he declined to review them because of attorney ethical considerations.

"It is hard for me to say because I have not seen the documents," Baich said. "But it appears that the FDA was concerned, as were we, about how Arizona obtained the drugs. We have alleged the drugs were illegally imported and the FDA fell short in its duty under the law. This information seems to support our claims."

The American Civil Liberties Union of Northern California is also suing the FDA for information about thiopental imports, and this week's FOIA release was partly spurred by the ACLU's requests.

The FDA meanwhile, asked the federal public defender, the ACLU and The Republic to return the unredacted materials. The Republic declined.

By May 2010, sodium thiopental was scarce in the United States, and by late September of that year, as Arizona was preparing to execute its first prisoner in two years, the drug was virtually unavailable domestically because the only U.S. manufacturer had ceased production. Arizona, like other states, scrambled to find it overseas.

The first Arizona thiopental shipment cleared FDA approval on Sept. 28. In a timeline prepared months later, the FDA representative in Phoenix told his superiors that he "assumed entry would be legal."

But then the FDA representative found that Dream Pharma, the British supply house, was not authorized to export it to the U.S. Subsequent e-mails confirmed what Baich and others have said from the beginning: The drug was not approved for use in the United States.

The flurry of intra-agency e-mails of concern began Oct. 27, the day after Arizona executed death-row inmate Jeffrey Landrigan with British thiopental, and two days after The Republic revealed the drug's country of origin. FDA officials began tracking shipments to other states that had been allowed into the country.

By Nov. 5, e-mails were referring to FDA Commissioner Margaret Hamburg's request to investigate how to "extricate FDA from the process." On Nov. 9, the e-mails said the White House wanted the FDA to set up a conference to discuss the matter, even while FDA officials were still trying to figure out how to temporarily defuse the situation with Charles Flanagan, deputy director of the Arizona Department of Corrections. Flanagan was reportedly "very upset" and insisting that FDA personnel return his phone calls about further thiopental shipments that had been detained.

By Nov. 16, the e-mails asked whether the problem could be deferred to the DEA, and then by Nov. 22, the decision seemed made to "defer entirely to Customs." Into mid-December, the White House was asking for a detailed description of the FDA's plan to exercise enforcement discretion and not police thiopental shipments to prisons.

Then the federal government was forced to curtail the imports for another reason. According to one e-mail, the Georgia Department of Corrections asked the DEA to check if that agency had been authorized to import thiopental. It was not, and the DEA was forced to seize its supply of the drug in March. The e-mail goes on to say that the drug might not have been seized had Georgia not asked the question in the first place.

In late June, DEA officials told the Arizona Department of Corrections not to use thiopental in its execution of inmate Donald Beaty. A different drug was used instead and has been used since. It had almost been foretold in a March 16 memo from an FDA attorney.

"I am trying to test a hunch and that hunch is that between bad publicity, lawsuits, and product seizures, there will be less of a desire to bring this product in," he wrote.

Republic reporters JJ Hensley and Yvonne Wingett Sanchez contributed to this article.

AZ executes mentally disabled man: Why haven't we evolved yet?

Thanks to "Anchor Baby" Jorge Mendez, Carlos Galindo, and the whole "thuggish mob" occupying the Capitol for coming to my rescue when the cops questioned me about chalking the Senate sidewalk last night.

AZ State Senate:
Vigil against the death penalty.
Phoenix: March 28, 2011.

"Clerical error" my ass, Horne. Of course they requested the drug for use on an "animal" - they don't care if it's defective. They would have executed him for the first crime if they could have - that was pretty horrific: we could line up thousands of guys if we did that, though, for money that could be used saving lives instead. Besides, the AZ Department of Corrections does a better job assuring that their dogs don't suffer the discomfort of summer than they do preventing wretched deaths from befalling the people in their custody - including the ones not sentenced to be executed.


I bet the director of the ADC has a good sleep tonight, defending the public by assuring this man's death. The Arizona Justice Project didn't pick up Eric King's case for some reason, but not necessarily because he isn't innocent - they go with what they think they can win, and can't afford to pin their name on someone who hasn't been cleared. I wonder if it ever bothers Chuck Ryan that so many people have been exonerated. How utterly unnecessary - and unjust, considering how casual this state is about neglect and abuse befalling the people in its custody.


Our condolences to King's kid. I don't think he was asking too much.


This page has links to death penalty resources.

------------------

Arizona executes Eric John King Tuesday, March 29, 2011 Associated Press

FLORENCE, Ariz. — A man convicted of killing two people in a 1989 Phoenix convenience store robbery was executed Tuesday despite last-minute arguments by his attorneys who raised questions over one of the lethal injection drugs and said they had raised “substantial doubt” about his guilt.

Eric John King’s death at the state prison in Florence was the first execution in the state since October and one of the last expected to use a three-drug lethal injection cocktail.

The 47-year-old had maintained his innocence since his arrest and his lawyers fought until the last minute to get his sentence reversed or delayed.

Defense attorney Mike Burke said before the execution that he visited with King on Tuesday morning.

“Although he’s very calm, he continues to maintain his innocence,” Burke told The Associated Press. “He’s done what he can do. All he has left to do is maintain his dignity.”

The Arizona Supreme Court declined to stay King’s execution Monday after Burke argued that the state should wait until it enacts its new lethal injection protocol. The U.S. Supreme Court refused to intervene.

Corrections Director Charles Ryan announced Friday that Arizona will switch to using just one drug in an effort to allay any “perceived concerns” that sodium thiopental is ineffective, but only after the scheduled executions of King and Daniel Wayne Cook on April 5.

Defense attorney Michael Burke had argued that the Department of Corrections may have engaged in fraud when it imported the sedative from Great Britain by listing it on forms as being for “animals (food processing),” not humans.

Arizona Attorney General Tom Horne said the mislabeling resulted from a clerical error.

Arizona obtained the drug legally, and that’s why it has been able to avoid problems other states have had, Assistant Attorney General Kent Cattani has said. Georgia’s supply of sodium thiopental was seized by federal Drug Enforcement Administration agents on March 15 over questions about how it was obtained.

The drug is part of the three-drug lethal injection cocktail used by nearly all 34 death penalty states, but it became scarce last year after the sole U.S. manufacturer stopped making it.

Some states started obtaining sodium thiopental overseas, and lawyers have argued that potentially adulterated, counterfeit or ineffective doses could subject prisoners to extreme pain.

Texas and Oklahoma recently announced they are switching from sodium thiopental to pentobarbital in their three-drug protocol. Ohio has switched to using only pentobarbital for its executions, and Ryan said that’s the drug Arizona might start using.

Burke also was unable to successfully argue that King be granted clemency at a hearing Thursday. Burke had argued that the two key witnesses who testified against King at his trial have changed their stories, that no physical evidence exists and surveillance video used at trial was of extremely poor quality.

Vince Imbordino, a prosecutor with the Maricopa County attorney’s office, argued that the photographic evidence was clear and that if jurors didn’t believe King was guilty, they wouldn’t have convicted him.

King was convicted of fatally shooting security guard Richard Butts and clerk Ron Barman at a Phoenix convenience store two days after Christmas in 1989. Butts and Barman both were married fathers whose families have testified that their deaths in a robbery that netted $72 devastated them.

Shortly before the killings, King had been released from a seven-year prison term on kidnapping and sexual assault charges. Police say King, who was 18 at the time, and another man kidnapped a woman and took her to an abandoned house, where both repeatedly and brutally sexually assaulted her over six hours.

Before he was sentenced in that crime, deputy adult probation officer Lee Brinkmoeller wrote that King had plans to reform himself.

“The defendant’s plans for the future are to become a machinist and to have his own car, house, family, and start being able to do things for his mother for all the things she has done for him,” Brinkmoeller wrote. “He states that he wants to have his mother be proud of him before she dies and he wants to be somebody.”

Court documents show King had a troubled childhood. Born in a taxi on the way to the hospital in Phoenix, King was one of 12 siblings whose alcoholic, abusive and mentally disturbed father died of a heart attack when King was 11, according to court records.

Records also say King’s mother struggled to provide for the children, who were so hungry at times that they tried to catch crawdads in irrigation canals and frequently were without electricity.

King reported to a prison psychiatrist that he had heard voices on and off his entire life, and suffered from anxiety and insomnia.

His son, 20-year-old Eric Harrison, saw King for the first time Thursday at the clemency hearing and asked the board to spare his father.

“This is the first time I’ve ever seen my dad, ever in life, and I know I love him,” Harrison said. “That’s my dad. He gave me life. Just don’t take him.”

King is the 23rd death row inmates Arizona has executed with the three-drug method since it began using lethal injection in 1993.

The state had previously executed 38 inmates with lethal gas since it started using that method in 1934. Another 28 inmates were executed by hanging between 1910 and 1931.

Source: AP, March 29, 2011

---------------------------

AZ State Senate Lawn:
Vigil against the death penalty March 28, 2011.

Kentucky Executions on Hold

From the New York Times:
----------------

November 26, 2009

Kentucky’s Highest Court Halts Executions in State

By JOHN SCHWARTZ

 

The Supreme Court of Kentucky suspended executions in the state Wednesday, ruling that officials did not follow state law in adopting its procedures for killing inmates.

The decision did not address whether it is inhumane to use a three-drug cocktail in lethal injections, as critics have argued.

The Kentucky case concerned three inmates slated for execution: Brian Keith Moore, Ralph Baze and Thomas C. Bowling.

Mr. Baze’s case made its way to the United States Supreme Court, which stopped lethal injections across the country until last year, when it issued an opinion declaring Kentucky’s death penalty method — using the three-drug cocktail — to be constitutional.

The Kentucky justices said the Department of Corrections must follow the rules of the state’s administrative procedures act in the protocol for lethal injection, which include publication of the details of the procedure and public hearings on the matter.

“The Department of Corrections is required by Kentucky law to promulgate a regulation as to all portions of the lethal injection protocol except those limited issues of internal management that are purely of concern to department personnel,” wrote Justice Lisabeth Hughes Abramson for the majority of the court.

Gov. Steve Beshear issued a statement on Wednesday, saying his administration would “carefully review the decision and consider which steps we need to take.” Kentucky has 36 inmates on death row.

Megan McCracken, a lawyer with the Death Penalty Clinic at the University of California, Berkeley, hailed the Kentucky decision, saying it “will shine light on the lethal injection process and create accountability for the procedures that are used.”

Similar court challenges led to new regulations in California and Maryland, and Nebraska recently published a proposed protocol, Ms. McCracken said.

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento, Calif., a group that supports the death penalty, said, “This has nothing to do with the validity of the protocol, avoiding suffering, or transparency in decision making.” Instead, he said, “It is purely a stalling tactic.”

The dissenting Kentucky justices stated a similar view.

In a partial dissent, Justice Bill Cunningham wrote that the court’s decision “turns on a sterile technicality” and would lead to further challenges and delay — “maybe much more delay” — in death penalty cases. Justice Will T. Scott wrote that all three men’s crimes occurred more than a decade ago, and one, 30 years ago.

“These cases cry out for closure. The families of the victims cry out for closure,” he wrote. “Respect for our law erodes when timely punishment is not given its fair place upon the scales of justice.”

Mr. Baze told The Associated Press that he understood that his execution was likely to go forward eventually, but applauded the decision. “It gets us through Christmas,” he said. “That’s a couple of months. That’s good.”
The Kentucky opinion was handed down on the same day that the United States Court of Appeals for the Sixth Circuit, in Cincinnati, refused to stop an execution in Ohio based on a challenge to that state’s protocol for lethal injection.

The convict in that case, Kenneth Biros, faces death by lethal injection on Dec. 8, but obtained a stay of execution based on his argument that Ohio’s old protocol — which used the three-drug method — constitutes cruel and unusual punishment. But because of the shift to a single drug, the court said, “any challenge to Ohio’s three-drug execution protocol is now moot.” It left open the possibility that Mr. Biros or other prisoners might challenge the new one-drug protocol.

Prof. Douglas A. Berman, an authority on sentencing law at Ohio State University, said judges around the country were coming down on opposite sides of the same question and asked, “Where are we going to let the risk of error lie?”

Judges who are uncomfortable with the death penalty, he said, “will usually want to be shown that every possible error, every possible risk of error has been eliminated” before allowing an execution. Others, he said, “will say, ‘close enough for government work.’ ”