SUNDAY EDITION | Flawed executions in other states cause more de - WDRB 41 Louisville News

SUNDAY EDITION | Flawed executions in other states cause more death penalty scrutiny in Kentucky

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LOUISVILLE, Ky. (WDRB) -- Local attorneys representing a Louisville woman accused of murder recently took a novel approach -- and one ripped from current events -- in arguing why she shouldn’t face the death penalty.

No one can provide details on how she would be put to death, Ellen Crawley’s lawyers said, including whether Kentucky would inject the same drug cocktail used in a flawed execution in Ohio earlier this year in which an inmate gasped and convulsed for more than ten minutes before dying.

Attorney Jon Heck told Jefferson Circuit Judge Charles Cunningham on April 15 that Kentucky’s current death penalty protocol is “part of the uproar nationally.” The Ohio defendant was "clearly suffering and that’s exactly (the drugs) Kentucky calls for," Heck argued, asking for a hearing in which the Department of Corrections would explicitly say how an execution would occur here.

"Every week there is more and more coming out from defense attorneys who are challenging" the death penalty nationally, Heck said, pointing to problematic executions in other states and the fact that there is a moratorium on executions existing in Kentucky while several issues are tied up in court.

In fact, David Barron, an assistant state public advocate who represents five Kentucky death penalty inmates, is now arguing in Franklin Circuit Court that botched executions in Oklahoma and Ohio this year show that similar protocols that would be used here are flawed, potentially dragging out litigation that has been ongoing for years. The execution in Ohio, which uses the same two drugs Kentucky may use, was "an utter disaster," Barron wrote in a court motion.

While there are 33 men on death row -- about half of whom have been there for two decades or more -- Kentucky has not executed anyone since 2008, when Marco Allen Chapman died by lethal injection for the 2002 stabbing deaths of two children after a two-day crack binge. In total, three men have been executed since 1976, including Harold McQueen in 1997 and Edward Lee Harger in 1999.

And few expect anyone to face capital punishment anytime soon in Kentucky.

Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C.-based nonprofit organization that opposes executions and tracks the issue, said the flawed executions this year have renewed the debate over the death penalty nationwide.

"There's a lot of concern about how it can be fixed or if it should just be ended," he said in an interview, arguing that it is a slow process, difficult to find the drugs needed and there are still errors in convictions. "No one is particularly happy with the way the death penalty is working now."

Dieter noted that six states in the last six years have abolished the death penalty, including Illinois. (Thirty two states still allow the death penalty.) And only five states have carried out executions this year and that’s “probably not going to grow by much,” he said.

"There are a lot of states in limbo right now," Dieter said, adding that Kentucky is one of several states that technically has the death penalty but rarely uses it.

Rev. Patrick Delahanty, a Catholic priest who serves as chairman of the Kentucky Coalition to Abolish the Death Penalty, said "people are clearly moving away from the death penalty in Kentucky," noting that conservatives like Rep. David Floyd, R-Bardstown, unsuccessfully filed legislation in the House this year to end executions in Kentucky.

"The government needs to be infallible when it comes to killing people and it's not," Floyd said in an interview, adding that the death penalty is extremely expensive and rarely used.

The state Department of Public Advocacy has estimated that Kentucky spends as much as $8 million a year prosecuting, defending and incarcerating death-row inmates.

"The alternative of life in prison is much more cost effective," Floyd said, though acknowledging that there is still support for capital punishment in Kentucky.

In fact, Rob Sanders, the commonwealth attorney in Kenton County, says he does not think public sentiment is changing about the death penalty.

"I think the media is doing their best to stir controversy so it gives them something to talk about during lulls in the 24-hour news cycle. Nevertheless I think the public approves of the death penalty as an option for the worst offenders," Sanders said.

Executions in Kentucky on Hold Since 2010
The main obstacle to executions in Kentucky right now is not changing attitudes, but an injunction by Franklin Circuit Judge Phillip Shepherd in 2010 that barred capital punishment. Shepherd, who is reviewing the state's lethal injection protocol, halted lethal injections in 2010 as the state prepared to execute Gregory L. Wilson for a 1987 murder in Kenton County.

The judge had expressed concerns about whether the use of a then used three-drug mixture caused an unconstitutional amount of pain and suffering and wanted more information on how the state determined if an inmate was mentally disabled.

The lawsuit filed by seven condemned Kentucky inmates had claimed that executions using the three-drug combination violate the Eighth Amendment protection against cruel and unusual punishment, citing evidence that some put to death that way have suffered.

In 2012, Kentucky changed from a three-drug method to both a one and two-drug method for carrying out lethal injection.  If the single-drug injections are not available seven days before a scheduled execution, a mixture of midazolam and hydromorphone would be permitted, but the warden must notify the condemned seven days in advance of which option would be used.

The lawsuit is ongoing, for various reasons, including how to determine if inmates are mentally disabled and when they have access to counsel, and Barron has filed recent motions about the current protocols violating the Eighth Amendment.

Convicted murderer and rapist Dennis McGuire appeared to gasp and convulse for more than ten minutes before dying from the drug cocktail used in his execution in Ohio earlier this year. Ohio used the sedative midazolam and the painkiller hydromorphone in McGuire's January execution.

In a motion filed May 5 in Franklin Circuit Court, Barron argues that Kentucky’s plan to use a smaller dosage of midazolam and hydromorphone during executions is "not enough to prevent the condemned person from feeling pain."

In the Oklahoma case, a convicted killer began writhing, clenching his teeth and straining to lift his head off the pillow after he had supposedly been rendered unconscious by the first of three drugs in the state's new lethal injection combination, the Associated Press reported.

The execution was halted, and 38-year-old Clayton Lockett died of an apparent heart attack 10 minutes later on April 29, authorities said. They later blamed a collapsed vein, not the drugs themselves.

Barron's motion said it took 51 minutes for the execution team to insert an IV, eventually placing one in Lockett's groin, which witnesses were not allowed to see.

Kentucky also closes a curtain, prohibiting witnesses from watching the process of inserting an IV, which he argues violates the Frist Amendment, among others.

And like Oklahoma, Kentucky does not have equipment to reverse the effects of the drugs if something goes wrong or the proper resuscitation equipment, which is "crucially important to ensure that what transpired in Oklahoma does not occur" here, Barron wrote in his motion.

Ohio has postponed further executions to investigate the problems with the two-drug protocol,and all other states with executions scheduled over the next three months using those drugs have been stopped either by a federal court or governor, Barron wrote.

Asked about the status of the case and Barron’s most recent arguments, Allison Martin, a spokesperson for the Attorney General’s office, said, "It’s the policy of our office that we cannot comment on pending litigation."

However, the state argued in its response to Barron that federal courts have already ruled on the two-drug protocol and approved its use, asking Shepherd not to hear the latest argument from the defense, according to a motion filed by Assistant Attorney General Heather Fryman.

Fryman also said the two-drug protocol has been "studied and effectively prevent severe pain."

And the Attorney General's office noted that courts have ruled inmates are not "entitled to a painless death and the state is not a scientific forum for searching for a method of death that is free from any discomfort. Certainly, the victims of the horrendous murders perpetrated by the plaintiffs to this action did not have the luxury of opting for the least painful alternative. It is certain that those victims suffered indescribable pain, sorry and agony."

Such is the point made by Katherine Nichols, president of Kentuckians Voice for Crime Victims.

"My brother was stabbed at least 15 times," she said of Jim Duckett, a Gulf War veteran who was tied up and stabbed to death inside his Shelby County home in 2008. No one has been arrested. "I guarantee that he did a whole lot more than moaning."

Nichols said she is ready for the state to move on with executions and until people "stand in victims’ families’ shoes, they shouldn’t give an opinion."

Future of Capital Punishment in Kentucky Still Unclear
The next hearing in the state case is in September, although it is unclear if Shepherd will set a trial date at that time.

It is also unknown if Kentucky can even get the lethal injection drugs right now.

Tennessee has responded to a nationwide scarcity of lethal injection drugs for death-row inmates by deciding to use the electric chair, according to a recent Associated Press story.

Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, said that because of the injunction, Kentucky is "prohibited from taking any steps regarding execution -- and this would include the purchase of the drugs, so we don't know if they are available because we haven't tried to purchase."

In the local case of Ellen Crawley, who allegedly strangled her grandmother and put her body in the trash by the curb two years ago, Heck said because of the ambiguity with Kentucky's death penalty process right now, he, Crawley and the jury will be deprived of key information that could help jurors understand what is happening and help him inform Crawley on matters of defense strategy and settlement negotiations.

"I can’t even advise her, 'Here's what happens if we go to trial and lose, this is how they are going to kill you,'" Heck told Cunningham on April 15.

Cunningham responded that it would be more important to tell jurors exactly what the death penalty would entail.

But Assistant Commonwealth's Attorney Lisa Cartier Giroux said she has never seen a defense attorney explain to a jury how the lethal injection would kill someone and she is not even sure it is permissible.

"Right now, the law is the death penalty is legal in Kentucky," she told Cunningham. "The Supreme Court has affirmed that. I don't think this is something that should hold up the trial."

Cunningham set a hearing on the issue for next month, saying, however, that perhaps the issue would be resolved by the time Crawley goes to trial in June.

"They could come out with a ruling in the next two months," he said of the Franklin Circuit Court case, "but I doubt it."

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