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January 17, 2014

"Family to file lawsuit after troubled execution"... seeking what remedy?

The title of this post is the headline of this breaking news from my own Columbus Dispatch coming less than 24 hours after the great state of Ohio carried out an execution using a novel two-drug execution protocol.  Here are the details:

The family of Dennis McGuire will file a federal lawsuit against the state of Ohio over his troubled execution yesterday. Amber and Dennis McGuire, the executed man’s children, scheduled a press conference this morning in Dayton to announce their intention to go to court. The suit will claim McGuire’s 8th Amendment rights under the U.S. Constitution to avoid “cruel and unusual punishment” were violated when he gasped for air, choked and struggled against his restraints for about 10 minutes before being declared dead at 10:53 a.m.

“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” Amber McGuire said in a statement. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.” McGuire’s children were witnesses at his lethal injection at the Southern Ohio Correctional Facility near Dayton.

McGuire, 53, was executed for the brutal 1989 murder of Joy Stewart, 22, who was newly married and 30 weeks pregnant at the time of her death. McGuire raped Stewart vaginally and anally, choked her, stabbed her in the chest, and slit her throat. He dumped her body in the woods near Eaton, Ohio, where it was found the next day by two hikers.

There was no clear indication that the drug combination — never before used in a U.S. execution — triggered McGuire’s death struggles. But Allen Bohnert, one of McGuire’s federal public defenders, called the execution a “failed, agonizing experiment by the state of Ohio.” McGuire died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The two drugs had never been used before in an execution in the U.S. The state switched to the new drugs because pentobarbital, the single drug used before, is no longer available as manufacturers will not sell it for use in executions....

Ohioans to Stop Executions called for an immediate death-penalty moratorium after what it called the “horrific events.”

I will be very interested to see the specifics of this federal lawsuit, and I am especially interested in the remedy that will be sought in this matter. Because the person whose constitutional rights were allegedly violated is now dead, I do not think any kind of injunction concerning future executions would be a possible remedy to seek. In addition, the family cannot make a wrongful death claim because McGuire's death was his lawful punishment. Consequently, it would seem the family can only be making a claim for damages based on the alleged pain McGuire suffered over a twenty minute period. (And, I do not believe the family can seek any kind of punitive damages under usual federal civil rights laws for state constitutional violations.)

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In a non-death penalty context, did a family (let's move aside from spouses) gain any relief in such a wrongful death suit in any comparable way?

These lawsuits also result in some change in policy that might not be compelled by the suit but used to settle things somehow. They also repeatedly have in effect message functions to make a point, including as a sort of "petition" to the government, with some press attention (as here) in the process. This too sometimes leads to some pressure to change certain things.

The controlling opinion in Baze v. Rees pointed to popular pressures being the primary means to change and possibly improve means of punishment and though legal means are being used, this is sort of that too by a sort of other means. These days especially various groups, not just liberals or "abolitionists," use the courts in this fashion. Anyway, I appreciate you keeping us up to date.

Posted by: Joe | Jan 17, 2014 11:32:58 AM

$ $ $

Posted by: Adamakis | Jan 17, 2014 12:23:43 PM

It is a good thing that this evil murderer was eliminated,
though it took too long to bring him to the gurney.

He denied the DNA-proven rape and torture of the innocent pregnant women
for a decade after the crime.

For his children to do anything other than distance themselves from this unrepentant scum,
is spooky and should be a warning to others to stay far away from them.

Posted by: Adamakis | Jan 17, 2014 12:33:16 PM

It would be interesting to look at the State protocol more fully to see how what occurred matches the expectations and criteria for which it was approved. It would seeem, on the face of it, that the unusual length of process, now stated to have been around 25 minutes, would be deemed to be excessive and represent cruel and unusual punishment, even if the pain and obvious discomfort were not (though in most civilized nations I would hope that too would be considered cruel and unusual!). Any Ohio, or indeed US citizen, who is aware now of what happened in this appalling execution, should be outraged at the incompetence permitted by the legal establishment in the face of known risk. I hope the call for a State moratorium is echoed by all, and especially by those who advise the Ohio legislature on matters pertaining to the death penalty, including Professor Berman. It's time to look outside of the box for a change.

Posted by: Peter | Jan 17, 2014 12:50:19 PM

Mr. McGuire's attorneys coached him prior to execution on what symptoms he should exhibit. This was known and expected by the employees who carried out the punishment for the state.

Posted by: RK | Jan 17, 2014 12:50:26 PM

not sure how this claim can succeed in light of 1) the impossibility of proving that the inmate actually suffered, and 2) the following from baze: "an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”"

Posted by: HGD | Jan 17, 2014 1:32:24 PM

The argument, perhaps, is that this is not "an isolated mishap," but a product of a wrongful protocol in part given there were alternatives available that met all the relevant penological purposes. As to proof of suffering, in other wrongful death cases, was there never a finding that objective criteria exist that it occurred? Or, is HGD saying as a factual matter that here it is impossible?

Posted by: Joe | Jan 17, 2014 1:43:42 PM

As to Peter's comment as to length, that was raised in Baze v. Rees' oral argument, including by Justice Stevens. Length alone might not be enough to fault a procedure if the improper pain and suffering is not in place. As a thought experiment, consider a totally painless procedure that takes twenty minutes.

Posted by: Joe | Jan 17, 2014 1:45:54 PM

Gasping and snoring noises are not uncommon in executions and don't definitively prove he was in pain. Is there any way to know he was in pain or even conscious?

As for his children, I don't think what they have to say should be taken at face value since they have two strong motives to lie: anger at the state for executing their father and a potential cash settlement.

Posted by: MikeinCT | Jan 17, 2014 5:49:19 PM

HGD - since a “substantial risk of serious harm” was predicted, based on expert medical advice, and clearly did occur in this case, I see no rational impediment here. There is no reason to suppose that, if this protocol is followed again, the same thing will not happen.

Posted by: Peter | Jan 17, 2014 5:57:07 PM

This will indeed be interesting, and I'm sure the family of the victim who was killed, apparently just as horrifically, will be interested in finding out about this result.

That said, there are incidents of families of prisoners who are killed in prison by other prisoners winning lawsuits. Here in California, the average settlement (they rarely go to trial, if ever) is well over a million dollars. This case, though is horrific as the state is the one who instigated the execution.

Posted by: Eric Knight | Jan 17, 2014 7:11:10 PM

Lawyers always claim the execution will be painful and we've yet to see that proven.

Posted by: MikeinCT | Jan 17, 2014 7:59:07 PM

Joe's back--notice how he didn't take me on in previous threads.

The whole "controversy" seems very manufactured.

Query: is it impossible that completely unconscious people whose breathing does not satisfy their bodies' demand for oxygen can move about and "gasp" for breath?

Query: how much midazolam had he gotten when he started to thrash about? Was it sufficient to make an adult male unconscious?

This isn't hard. If he got enough to knock him out, then where is the issue?

What is really interesting is the fact that we know that Joy's baby died a horrible death by suffocation (that's what happens to babies in utero when the mom stops breathing) and this was the very thing this subhuman scum complained of. (Maybe he would have preferred a Brazilian prison--they're so kind down there to guys who rape and murder pregnant women.) Of course, the news media in general has very little to say about fetal pain. Funny how the NYTimes cares more about the puffed up allegations of the suffering of a murderer than the real suffering of a 25 weeker who is ripped limb from limb. Funny that. Let's see some libs take that on.

Posted by: federalist | Jan 17, 2014 8:53:11 PM

Beam me up Scotty! No humanity left on plant earth.

Posted by: Mary | Jan 17, 2014 9:13:25 PM

But Mary, as your former First Lady & Sec. Of State reminded you --
not to mention the preumptive First Female President --

“With all due respect, the fact is we had four dead Americans.
Was it because of a protest or was it because of guys out for a walk one night
decided to go kill some Americans? What difference at this point does it make [how or why they died]?” H. Clinton

Posted by: Adamakis | Jan 17, 2014 9:29:43 PM

Mary, it is easy to sniff at those of us whom you deem morally inferior. Why don't you try argument? Probably because you are like most liberals--bereft of the ability to reason.

Posted by: federalist | Jan 17, 2014 9:44:20 PM

I would like to know if it is medically possible for McGuire to fake gasping for air and choking for about 10 minutes before being declared dead at 10:53 a.m. as suggested by RK i.e., "Mr. McGuire's attorneys coached him prior to execution on what symptoms he should exhibit. This was known and expected by the employees who carried out the punishment for the state."

Posted by: ? | Jan 17, 2014 10:00:30 PM

Seriously? This is absurd. Completely absurd. Can you imagine being the victims' family? Your innocent wife/daughter/sister is BRUTALLY raped and butchered, your unborn child/grandchild/niece suffers and dies, you endure years and years of litigation all aimed at protecting this monster, and then the monster's family and his attorneys have the audacity to complain because he gasped for breath as he died? Please.

Posted by: Seriously | Jan 17, 2014 10:20:44 PM

A newspaper in Missouri reports that a Bill has been introduced in their Legislature to mandate executions be carried out by firing squad of five. I would caution that firing squad of six is more in tune with the Sixth Commandment. But, shooting is more human than all this injection apCray. Six shots to the head. Quick and easy. As to this schmuck who just got killed, his family needs to get sterilized so that the bad genes do not carry on. Round em up.

Posted by: Liberty1st | Jan 18, 2014 1:25:22 AM

Scotty --

Please comply with Mary's request. Promptly.

Posted by: Bill Otis | Jan 18, 2014 3:04:20 AM

The Missouri bill seems like a good idea to me. Let's stop trying to make this a medical procedure. If a pain free death is really what the defense bar wants, surely it can be achieved.

Posted by: Steve Erickson | Jan 18, 2014 9:44:18 AM

The suit will likely be a Section 1983 action, where only attorney fees may be awarded, naturally.

If the estate of the condemned gets any payout, the estate of the victim should claim it.

Posted by: Supremacy Claus | Jan 18, 2014 11:06:31 AM

Eric Knight briefly alludes to a relevant comparison. Thanks.

Posted by: Joe | Jan 18, 2014 12:27:39 PM

Please post the lawsuit news and a copy of the Complaint if it is filed. I wonder if they will plead their real names or if we will get a list of Roes and Does.

Posted by: Liberty1st | Jan 18, 2014 1:41:59 PM

Is there a video of this guy croaking? If so, it needs to be posted. Then we can compare it to firing squad executions (killings) and see which one is more civilized. Guns are cheaper. We don't want them shot while they lay on gurneys. Stand em up or tie em up to a pole. Six rifles aimed at the head. One to the lower anatomy if he was a rapist.

Posted by: Liberty1st | Jan 18, 2014 1:44:47 PM

"a relevant comparison"? Hardly.

First of all, there's no wrongful death here, as the state carried out a court judgment. Second, absent evidence that the protocol wasn't followed there doesn't seem to be a breach of duty.

Then, there's the unseemliness factor--the condemned's daughter is trying to profit from justice.

Posted by: federalist | Jan 18, 2014 1:59:54 PM

federalist --

In the vastly unlikely event decedent's estate proves its case of wanton infliction of pain, and recovers a money judgment, I would recommend that the estate of the murdered woman (or her heirs) turn right around and sue decedent's estate for every last dime of it. I would happily represent the murdered woman's estate in such a suit pro bono, and would invite you along as my co-counsel.

Of course, every lawyer on this blog should want to join as co-counsel. Which party -- the executed prisoner or the grotesquely murdered woman -- actually suffered the most?

Good grief.

Posted by: Bill Otis | Jan 18, 2014 2:18:04 PM

The "relevant comparison" is a reference to my original question as to the ability of families of prisoners getting judgments for some sort of wrongful death. It is not meant to be that they are on all fours.

The reply also notes that it is not a wrongful death because the state carried out a court judgment. The court didn't say "make sure that the guy struggled the breathe etc." They authorized a certain punishment. The claim -- which I'm not saying should win out -- is that when carrying out the punishment, the state violated the 8A (going by the quick summary provided).

"Second, absent evidence that the protocol wasn't followed there doesn't seem to be a breach of duty."

Granting this, this would be a factual question -- you have to determine if the protocol was followed. The thanks was to a case that in some fashion showed that a family member other than a spouse (my question) could bring a wrongful death suit. It wasn't that they should win on the merits.

Finally, there is the distaste for trying to profit "from justice." This assumes the conclusion. If, e.g., the person executed (which is 'justice' in the eyes of federalist etc.) but the protocol WASN'T followed or the person died and Baze v. Rees was violated, such as if it took an hour of lingering death that was easily replaced with a more legally appropriate procedure, would it be "unseemingly" for a family member to try to sue for damages? The rejoinder continuously is "that didn't happen."

But, that's the point of allowing lawsuits -- to provide a forum to make sure that when it does happen, there is some deterrence and relief. Even when the law is violated to harm prisoners. Thus, Bill Otis readily noted in the past that obviously prisoners -- even heinous child killers -- should be protected from rape in prison. It would not be 'unseemly' to sue if guards aided and abetted such rape. The point here is that people think there is no case here.

That is a FACTUAL question though. The ability of family members to sue is a relevant point and I thank Eric Knight again for the brief reference. I provided various comments included a long one here. So, I will end here. This is not, to reassure some people, because I'm unwilling to "take on" people.

Posted by: Joe | Jan 18, 2014 2:38:08 PM

Joe, try not to be so f'in pedantic. First of all, the point, generally, of filing a lawsuit is to get money. The unseemliness of a given lawsuit impacts the value (so to speak) of the case. Second, the death wasn't wrongful--wrongful death doesn't seem to be a proper claim--it's the manner of death. Third, violating Baze isn't really the point--Baze deals with evaluating a protocol more than what happens if things go south, execution-wise so to speak. Fourth, there's going to be a lot of qualified immunity here.

Once again, long on pseudo-analysis short on erudition.

I also note, Joe, how you turned tail and ran on previous threads when challenged. Weak.

Posted by: federalist | Jan 18, 2014 3:05:33 PM

Bill, if wrongful death is the claim, it depends on what kind of wrongful death statute Ohio has--is it a "survival of action" state or a families get the claim state.

ANything that flows through the estate should, of course, go to the family of Joy Stewart.

Posted by: federalist | Jan 18, 2014 3:07:32 PM

Carotid severing with super sharp scalpel would cause a quicker and probably painless death.

I suggested beheading to the Ohio Department of R & C representative at the recent Joint Task Force on Ohio’s capital punishment ; she politely told me no way .

Docile Jim Brady / Kind Soul® ¦ Klumbis, Ahia 43209
Nemo Me Impune Lacessit

Posted by: Just Plain Jim (Just Another Guy) | Jan 18, 2014 3:15:44 PM

The McGuire kids should be showing much more sympathy and concern for Joy Stewart and her family.

Think of what horror and pain Joy went through, her own horror as well as the horror of her babie's death.

The innocent rape/torture/murder victim, Joy Stewart, 22, was about 30-weeks pregnant when McGuire raped her, choked her, and slashed her throat so deeply it severed both her carotid artery and jugular vein. At the same point, her unborn child died, too.

Based upon pharmacological realities, McGuire was probably unconscious within 30 seconds and stayed that way until death. People cough, wheeze, snort, groan, move and talk in their sleep, all the time.

Close your eyes . . .

Think of what horror and pain Joy went through, her own horror as well as the horror of her babies death.

How long was it before she was unconscious?

My sincere condolences to Joy's family.

The McGuire children are threatening to sue the state over their dad's execution. They have learned so very little.

Posted by: Dudley Sharp | Jan 18, 2014 5:20:41 PM

To "?' - I thought it was of note that he had been coached. Not saying that he faked it. Of course, his attorneys are arguing that he could experience discomfort, so maybe they thought he would be able to mimic a certain response. Also, Dispatch reporter had the most negative story of the execution. AP was much less negative.

Posted by: RK | Jan 18, 2014 6:58:20 PM

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