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July 10, 2013

Talk in Missouri of turning to gas chamber due to lethal injection litigation

This new ABC News article, headlined "Missouri Death Row Legal Battle Could Bring Back Gas Chamber," reports on new talk of a possible return to an older execution technology.  Here is how the article starts:

Twenty-one inmates on Missouri's death row have sued the state's Department of Corrections in federal court, alleging that the state's new lethal injection protocol -- which calls for a single injection of the powerful sedative propofol -- constitutes cruel and unusual punishment.

The Missouri Supreme Court has since halted all executions by lethal injection in the state as a result of the lawsuit, and now state Attorney General Chris Koster has hinted at bringing back the gas chamber.

The inmates claim in their lawsuit filed last August that Missouri cannot execute by lethal injection, because the injections now contain propofol, which has never been used before in any U.S. execution. The effects of propofol at lethal doses, they argue, are unknown and can never be tested in a clinical trial.

Koster said the federal litigation raises an "artificial hurdle … to prevent the state from carrying out the death penalty. Unless the court changes its current course, the legislature will soon be compelled to fund … alternative methods of execution to carry out lawful judgments," he said last week in a statement.

"Our state legalizes only two methods of execution, execution by lethal injection or execution by lethal gas," Nanci Gonder, a spokeswoman for the attorney general's office, told ABC News. "So if we couldn't execute by lethal injection, the alternative would be by lethal gas."

July 10, 2013 at 07:39 AM | Permalink

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As if that wouldn't engender its own round of litigation, one that would have a far greater likelihood of success no less.

We may not have a great deal of experience using single anesthetic agents for executions but we have millions of experiences using them for rendering people unconscious (indeed the real trick with using such drugs is in _not_ killing the patient). We also have experience with cyanide based substances (which to my knowledge are what is used in gas chamber executions), and from what I have read about that it may well properly meet the Baze standard.

Posted by: Soronel Haetir | Jul 10, 2013 11:56:53 AM

Once again Soronel nails it. It makes no difference what method is used; defense lawyers will claim ANY method is excessively painful, because they know there will be no penalty for lying in the pleadings, and because the name of the game is delay, pure and simple. They would claim that singing a lullaby is too painful.

Soronel also makes an excellent point that we have plenty of relevant experience with using anesthesia.

Prosecutors should not be bullied by this latest shake and jive; if they are, they're just asking for more, and they'll get it.

Posted by: Bill Otis | Jul 10, 2013 12:13:36 PM

If this was to change, I wonder how criminal defense attorneys in Merrillville would react? Gas chambers seem like a pretty inhumane way to go.

Posted by: jimstout7878 | Jul 10, 2013 12:37:34 PM

It surprises me that a former prosecutor has such a view about his opposite numbers and how they "lie" so blithely. It would shock me if defense attorneys would say the same thing as well about prosecutors.

The claims - attorneys of any caliber raising possibly weak claims to delay ... I'm shocked beyond belief here - might be invalid. But, the experience in the medical context is not simply the same thing as usage in a different context. The usage in executions, including without similar medical personnel involvement, is at least somewhat different.

The 8A has a certain bias against the 'unusual' and concern about possible 'cruelty' of means. It to me seems proper to test new means in the courts. If they uphold the practice, fine. The appeals itself are proper though.

Posted by: Joe | Jul 10, 2013 2:27:43 PM

Guess we could add a new method. Take em out back and beat em to death! I'm sure there are plenty of cops out there who could walk em though the procedure.

Posted by: rodsmith | Jul 10, 2013 3:40:47 PM

Joe --

"It surprises me that a former prosecutor has such a view about his opposite numbers and how they 'lie' so blithely."

It wouldn't surprise you if you practiced law. As one defense attorney commenter, Michael Drake, has quite correctly said, defense counsel aren't there to get at the truth. They're there to serve the client, and the truth can go its own way. The prosecutor's job is the opposite: To establish the truth regardless of what the client might want. This is the reason that Mike Nifong was correctly viewed as a total disgrace for his misleading behavior, while the lawyer who won the preposterous acquittal for Casey Anthony is viewed in the profession, not as a scoundrel, but as a hero. He beat the rap; that's all that counts in Defenseland. If a two year-old gets murdered, well, hey, look......

"It would shock me if defense attorneys would say the same thing as well about prosecutors."

Of course it would. See above. (Although a relatively small minority of defense lawyers regard prosecutors as self-righteous fascists and say so all the time).

"The claims - attorneys of any caliber raising possibly weak claims to delay ... I'm shocked beyond belief here - might be invalid."

To the extent this sentence is comprehensible, it's self-contradictory. The part of it that apparently concedes that defense lawyers raise phony claims for dilatory purposes is correct, however. Have you ever thought there's a reason that delay in criminal cases is almost always sought by the defense, and not the prosecution? Wanna take a guess as to what that reason might be?

"The 8A has a certain bias against the 'unusual' and concern about possible 'cruelty' of means."

The punishment of death is neither cruel nor unusual, and the single-drug means proposed in this case was suggested years ago BY THE DEFENSE SIDE. That, however, was when they were attacking the three-drug means. Now that their attack has been repelled (in Baze), they turn on a dime and rip into their own suggestion!

As noted, they'll say anything. Self-contradiction is just not a problem. Anything for Mr. Nicey, dontcha know!!!

"It to me seems proper to test new means in the courts. If they uphold the practice, fine."

So it will be "fine" with you when this latest fiction is rejected and the execution proceeds?? No, of course it won't, despite what you say now. You're a DP opponent under any and all circumstances, which is the real reason you have no problem with the current evidence-free, throw-it-up-against-the-wall challenge. If justice for these butchers can't be defeated, at least it can be delayed.

How wonderful.

Posted by: Bill Otis | Jul 10, 2013 3:44:41 PM

Joe,

We know very well what these substances will do when introduced into the human body, for many of them we have very fine information about safe and unsafe dosages. As I said, the trick with them is to not kill the patient. And when you don't want to kill the patient, or want to make sure they don't go into a non-recoverable coma, then yes, lots of training is required.

I could well see challenges to execution protocols succeeding on some of the issues that you raise, insufficiently trained personnel for instance, who have trouble getting an IV started.

But challenges against the anesthetic agents themselves -- for which we have vast amounts of data -- is an entirely different matter to my mind.

And yes, I do think plenty of these cases are brought in bad faith with no other purpose than to produce delay.

Posted by: Soronel Haetir | Jul 10, 2013 3:46:17 PM

I appreciate Bill Otis' response though its tenor suggests it missed some of my sarcasm. Not quite sure though. Yes, the defense attorney -- BY THE SYSTEM -- is there to defend the client. Since this is the point, I continue to not quite get his tone when talking about defense attorneys.

It is not their problem specifically. The system is what he should be focusing his spleen against. The defense attorney still has ethical and legal responsibilities here and cannot under them just "lie" and such. They repeatedly, and prosecutors know this too, are restrained by the rules in ways that can hurt their clients. But, again, I'm not surprised Bill Otis as a prosecutor provides a professional bias to one side. The system encourages it.

This statement is singled out for bad phrasing:

"The claims - attorneys of any caliber raising possibly weak claims to delay ... I'm shocked beyond belief here - might be invalid."

The first part makes a basic point that attorneys of all types, including both sides in civil cases, make weak arguments. So, it is not in the least unique to defense attorneys for an attorney to make a weak claim in the midst of litigation. The sarcasm is in response to singling out defense attorneys here; to remind that they are far from alone. The second part accepts the claim here might be invalid. Doesn't seem too hard to understand, but mea culpa if it is.

The use of one argument at a certain stage and another argument at another stage, even if they can be conflicted, is yet again something attorneys as a whole do. There is nothing special as a whole about defense attorneys do it here. My opposition to the death penalty (or someone's opposition to affirmative action or whatever thing) still allows various levels of argument. It is not all/nothing. A claim that the DP is unconstitutional is a weak one under current precedent. The claim regarding a specific means of execution is not the same thing. Bad or not, Baze leaves things more cloudy there.

Finally, it is true that prosecutor is in a different place. S/he represents the power of the state ('the people'), which is different than a single person being defended. Prosecutors do have a "side" all the same and repeatedly are not simply concerned about "the truth," or at least, simply some above the fray view of it. They have biases as much as everyone else in the system. That's why there are two sides with a referee (court). This know all of this, of course.

And, again, the defense has legal and ethical obligations not to "lie" to the court etc. It is not a 'lie,' e.g., to make a defense even if the person is factually guilty, if there is reasonable doubt. It is not a 'lie' to make a legal argument that might or might not be weak, putting the evidence in the best light. At times, the prosecution does this too.

---

SH, each side is able to make legal claims that might ultimately be "to produce delay," so it would not surprise me that these claims might be of that caliber. It is unclear how to cleanly draw the line there. The execution protocols you might agree might be invalid are challenged by the same caliber of people. It is up to the courts to separate the wheat from the chaff like always.

When you want to kill the patient, you still need to have training to ensure the drugs are used correctly. A major difficulty here is the ethical issues that block some involvement (a recent post had a good essay challenging the position) of medical personnel. The precedents you speak involve such involvement, so there is that complication. The precedents also as you say aren't about killing the patient. So, even if they are weak claims, I'm sort of unclear just the two are like things.

Posted by: Joe | Jul 11, 2013 12:21:33 PM

Actually joe in this case your pretty much full of it!

In an execution ANYTHING that quickly and cleanly kills the subject should be legal.

Posted by: rodsmith | Jul 11, 2013 7:48:42 PM

Joe --

The idea that prosecutors and defense lawyers are morally equivalent and act in pretty much the same way is way off base. One way to see this (although only one) is to ask yourself the question you whistled past: Why is it that defense lawyers, vastly more than prosecutors, seek delay? (Hint: If the deserved punishment can't be defeated, at least it can be put off).

The central reason for the different behavior of the two sides is easy to state, but you seemingly want to talk all around it. The reason is that the defendant is, in the huge majority of cases, factually guilty.

What this means is that the prosecution ordinarily wins when the whole truth comes out, and the defense has a much better chance of winning depending on how much of the truth can be suppressed (thus suppression motions), distorted (thus theatrics) or intimidated from showing up (thus the low clearance rate in DC homicide cases, given the difficulty of persuading witnesses to take the risks of being seen talking to the cops).

In other words, the incentives of the two sides are vastly different, if not opposite. This means that their behavior is vastly different, contrary to your repeated suggestions that everybody does pretty much the same thing.

Or, to put it in operational terms: I will think differently about the truthfulness of the defense function when defense lawyers embrace the following as an ethical requirement: "All counsel in a criminal case must be fully truthful, straightforward and forthcoming with the court, the jury and each other. No counsel shall engage in behavior or advocacy intended or reasonably likely to be misleading, or to produce a conclusion at variance with the truth about the conduct of any party."

You know full well that the defense is not about to agree to anything like that. And why not? Because when the truth is that your client did it, which is almost always the case, the name of the game is to obscure, not reveal, the truth.

I'm one of those who thinks that truth is better than deceit. Aren't you?

Posted by: Bill Otis | Jul 12, 2013 11:39:02 AM

I suppose if you are a Christian that you have heard of the Ten Commandments. The Sixth Commandment states: Thou Shalt Not Kill. There is no southern states exception that "Y'all Can". If you are a citizen of a state that kills in the name of The People, then you are liable when your time comes for hearing as to whether you get into Heaven or get sent to Hell or Limbo. This happens at the Pearly Gates. If you are going to kill then use heroin. It is known to be fun and not painful.

Posted by: Liberty1st | Jul 17, 2013 1:35:38 AM

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