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January 27, 2014

"Officials investigate whether executed killer faked suffocation"

The title of this post is the headline of this notable new Columbus Dispatch article, which includes these interesting details and developments:

One of Dennis McGuire’s state public defender attorneys was temporarily suspended last week while officials investigated whether he told the condemned man to fake symptoms of suffocation during the early stage of his execution.  Attorney Rob Lowe was scheduled to return to work today after the inquiry found “no wrongdoing,” Ohio Public Defender Tim Young said in a memo sent last Thursday to his staff and obtained by The Dispatch. McGuire was represented by Lowe, from Young’s office, plus two federal public defenders.

Young took the initial allegation so seriously that he called back his attorneys who were scheduled to attend the Jan. 16 execution at the Southern Ohio Correctional Facility near Lucasville. Young’s initial memo, sent about six hours after McGuire’s execution, said he had been contacted by Gov. John Kasich’s legal counsel with information that “a correctional officer overheard Mr. McGuire tell family members that an OPD attorney had encouraged him to feign suffocation when the lethal injection drugs were first administered.”

Incident reports obtained by The Dispatch from the Department of Rehabilitation and Correction show two officers said they overheard McGuire talking with his ex-wife, Darlene Thomas, the day prior to the execution describing what he had been instructed to do by his attorney when he began feeling the effects of the chemicals. “When I begin to gasp for air I will have my thumb in the air per my attorney...If it wasn’t for my daughter I would really put on a show.”

A third, more detailed report came from the unidentified execution team leader recounting a conversation he had with McGuire the night before his execution. McGuire said Lowe told him that if things went wrong during the execution, he “would be the sole reason that executions no longer happen in Ohio and all his buddies on death row would be saved.”

McGuire angrily rejected Lowe’s request to be allowed to witness the execution, the report said. “He (Lowe) wants me to put on this big show in front of my kids all right when I’m dying. I ain’t gonna do this. It’s about me and my kids, not him and him and his cause.” McGuire declined to let Lowe witness, but did as he was requested, giving a “thumbs up” briefly as he looked toward his family members before turning his head away and apparently losing consciousness.

Minutes later, he repeatedly gasped for air, snorted, choked and clenched his fists before succumbing to a lethal two-drug combination that had not previously been used in a U.S. execution. McGuire’s struggles did not begin immediately, but several minutes after the chemicals began flowing into his veins.

Amber and Dennis McGuire, the executed man’s children, who witnessed the execution, filed a lawsuit last week in U.S. District Court claiming their father’s constitutional rights were violated because the two-drug lethal injection triggered a reaction that amounted to “cruel and unusual punishment.” The lawsuit also goes after Hospira Inc., the Chicago drug manufacturer.

In a Dispatch interview today, Young confirmed the details of what happened, but vehemently denied that Lowe or anyone on his staff urged McGuire to fake suffocation. “Absolutely not,” he said. “We would never in any way try to corrupt this process or ask our client to feign any symptoms.”

An internal investigation led by Elizabeth Miller, deputy director in Young’s office, involved interviews with 11 people and reviews of emails and phone messages. “We concluded that there wasn’t any substantial proof or evidence” that McGuire was coached to feign symptoms, Young said. Young said that in McGuire’s execution, as with all death penalty cases, public defenders discuss the process step-by-step with the inmate. “We want to make sure we tell them exactly what is going to occur.

“We did ask Mr. McGuire to signal us so we would know when he lost consciousness,” Young said.

Some recent related posts on Ohio's recent controversial execution:

January 27, 2014 at 05:25 PM | Permalink


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Guns are quicker.

Posted by: Liberty1st | Jan 27, 2014 9:12:03 PM

One quite interesting thing about this is that it's unclear to me that, if McGuire's lawyers told him to fake it, that would violate any of the canons of ethics governing defense work.

Does anyone know the answer to that?

There was no case pending, this was not in court, McGuire was not told to SAY anything that was false. All the adjudicating was over.

Defense lawyers are allowed -- indeed, they are required -- to seek the acquittal of a defendant even if they know point-blank that he's guilty. That being the case, I don't know of any reason why encouraging outside-of-court deceptiveness, when all the litigation has ended, would be an ethical violation.

Posted by: Bill Otis | Jan 27, 2014 10:37:23 PM

"he's guilty"

Bill Otis' comment is interesting, but as to this point.

Yes, the defense is there to provide the best defense possible. The government needs to prove the person guilty beyond a reasonable doubt. A person can be "guilty" as in doing it, but even the prosecutor has an obligation to only prosecute when there is a reasonable case to be made the proof beyond a reasonable doubt can be proven. "I just know he's guilty" isn't enough, especially if evidence is tainted.

The alleged act here would appear to be intended to commit a fraud particularly to advance the litigation by the family members. I would find it curious, though don't know, that it would not violate ethics to encourage him to fake discomfort in this fashion.

Until he's dead, isn't his "case" technically pending? And, merely not "saying" something isn't enough, is it? And, you can "say" something with more than words. Also, again, why was the deception allegedly made? Did it have no connection to the later lawsuit by the family? Is not the defense attorney an officer of the court generally and obligated not to do this?

But, it doesn't sound like there was any fraud.

Posted by: Joe | Jan 28, 2014 10:56:54 AM

Subsequent use of any faked acts, as the context of the allegations suggests would have been the purpose, sounds like a straightforward violation the duty of candor to me.

There's a duty to zealously represent the client and the client has a constitutional right to testify. My understanding is that it is only in the context of a defendant's testimony that a defense attorney is permitted to not correct the record about material evidence that s/he knows to be false.

Posted by: John | Jan 28, 2014 12:26:08 PM

I think that we should have a video of the entire killing of the guy aired on Fox News. Ask the fair and balanced viewers to decide if he faked his gestures. Then ask the viewers if it would be more humane to kill him and others with guns by firing squad and not with the pins and needles routine.

Posted by: Liberty1st | Jan 28, 2014 1:43:47 PM

I'm skeptical that someone who had recently been injected with lethal doses of hydromorphone and midazolam would have clear enough cognitive functioning to act this out in an even halfway-convincing manner up until the point that he lost consciousness. This is by necessity speculative, but think about what your cognitive functioning was a few minutes after your last colonoscopy (as these are generally performed with midazolam plus a different narcotic that is safer than hydromorphone, and at a non-lethal dose too).

Posted by: Jason S. | Jan 28, 2014 3:40:54 PM

Sterilize the kids. Three generations of imbeciles are enough. So says Justice Holmes.

Posted by: Liberty1st | Jan 28, 2014 5:41:09 PM

|“He [Attorney Rob Lowe] wants me to put on this big show in front of my kids.”|

--> Rob Lowe hasn't sunk this low since "St. Elmo's Fire"

Posted by: Adamakis | Jan 29, 2014 11:31:07 AM

Regarding ethical violations, there's always the catch-all 8.4(c). Future use could be other problems. I'm not convinced how credible this account is (I would have to know more about these drugs to know if they would overpower your ability to do this and, if not, why not). It also sounds like the statement indicated he would not follow through, so it's a wash whether or not the account is true (certainly, the declarant can't be asked). It's also a little odd to ask him to give a thumbs up, which could look suspicious and blow your whole plan (it's more plausible that he would throw that in without being asked, but it sounds like the claim is the attorney asked specifically for that. Anyway, I think this is something that just can never be known with certainty.

I understand that this was one of the longest executions in Ohio history. While not itself a bar, it's certainly problematic and independent of the suffocation. In fact, if Ohio doesn't want prisoners to appear to be suffering for a long period of time, they need something that will act more quickly.

Posted by: Erik M | Jan 29, 2014 11:53:18 AM

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