Bush orders in-depth look at Diaz execution
By CHRIS TISCH
Published December 15, 2006
TALLAHASSEE - Gov. Jeb Bush on Thursday ordered corrections officials to investigate the execution of an inmate who appeared to wince in pain before taking 34 minutes to die from lethal injection.
Corrections Secretary James McDonough appointed a four-person panel to review Angel Diaz's Wednesday execution, which has drawn harsh criticism from defense lawyers and triggered nearly one-fifth of the state's death row inmates to petition the Florida Supreme Court to outlaw lethal injection.
Bush said he asked for the investigation "given the unusual length of time it took for the process to be complete."
Corrections officials said they had to take the rare step of administering a second dose of a three-drug cocktail to Diaz, who was condemned for a 1979 murder in Miami.
Officials said Diaz, 55, suffered from liver disease, which hampered the drugs' effectiveness. But three medical experts interviewed by the St. Petersburg Times said liver disease wouldn't lessen the drugs' effectiveness.
"If anything, it would make you more susceptible to it, not more resistant," said Dr. David Varlotta, a Tampa anesthesiologist.
The doctors and several legal experts said they believe something else went wrong, perhaps a bad insertion into a vein or a poor mixture of the drugs.
Corrections officials said they would not comment on the case until the review was complete.
Death penalty defense lawyers have argued for years that Florida's method of lethal injection, which many other states also use, puts inmates at great risk of suffering excruciating pain, which violates the U.S. Constitution.
Those challenges have largely been denied, though the issue is still percolating in several other states.
Neal Dupree, supervisor of the Capital Collateral Regional Counsel in South Florida, witnessed the Diaz execution and described it as horrifying. One of Dupree's underlings filed petitions with the Florida Supreme Court on Thursday on behalf of 70 of the state's 374 death row inmates. The petitions ask the court to declare lethal injection unconstitutional.
"It's a gruesome I-told-you-so," said private defense lawyer D. Todd Doss, who took a lethal injection challenge all the way to the U.S. Supreme Court this year.
Doss, who eventually lost his appeals and saw his client executed, is now representing Diaz's family.
"It's a shame it had to play out this way to get someone's attention," Doss said.
Doss said McDonough should have summoned outside experts to conduct the investigation. The four-person team McDonough appointed includes two DOC officials.
"It appears at this point to be mere window dressing," Doss said.
Diaz was Bush's last death warrant, giving him 21 executions, the most of any governor since the state resumed capital punishment in 1979.
Gov.-elect Charlie Crist said Thursday that he had some questions about the Diaz execution.
"You wonder about the dosage and if there may have been some better medical diagnosis prior to that," Crist said.
Still, Crist said he will sign death warrants when he is sworn in.
Charles Rose, a professor at the Stetson University College of Law, said he shouldn't.
"It seems to me that the prudent thing to do is wait until the investigation is complete to make sure the procedures are appropriate," Rose said.
Liver disease cited
So what happened to Diaz?
When the curtains opened at 6 p.m., Diaz made a short statement that was heard by several witnesses including a Times reporter. He proclaimed his innocence for the 1979 murder of a topless bar manager during a robbery.
The intercom clicked off at 6:02 p.m. Normally, the condemned inmate stops moving within a few minutes and they are pronounced dead within 15 minutes.
But Diaz kept moving for 24 minutes, sometimes appearing in pain. He grimaced, coughed, tried to talk and licked his lips. His head eventually slipped to the right, but he kept breathing heavy, his chin bobbing and his mouth flexing like a fish out of water.
It wasn't until 6:26 p.m. that he stopped moving. He was pronounced dead 10 minutes later.
After the execution, corrections officials said they had administered a second dose of drugs, but didn't record when. They said a second dose wasn't unexpected because Diaz had a liver disease, which they said rendered the first dose less potent.
But the doctors interviewed by the Times said it makes no sense that liver disease would slow the drugs. They were baffled by witness descriptions of Diaz's death.
"I'm at a loss to explain all those occurrences," said Dr. Rafael Miguel, a University of South Florida professor who is president of the Florida Society of Anesthesiologists. "It just makes it hard to make any conclusion about what happened."
Varlotta, the Tampa anesthesiologist, said he thinks the guards may not have stuck the needle into a good vein. That has been a problem in other executions, including one in Ohio earlier this year in which the inmate said "it don't work" when the execution began.
An autopsy, which the Florida Supreme Court said Thursday could be attended by a representative of death penalty defense lawyers, likely will answer some of the questions.
Inmates facing execution are supposed to receive three drugs in sequence: a painkiller, a drug that causes paralysis and a drug that causes a fatal heart attack.
The doses of all three drugs are much more than doctors would give even the largest patient and they should have had an immediate, coma-like effect.
"If he really moved for that amount of time, there was some huge problem," said Dr. Jonathan Groner, an associate professor for surgery at Ohio State University who has testified in death penalty cases. "One can only surmise that he did not become unconscious and he felt pain."
And that's a problem. The courts have been uncomfortable with any form of execution that causes unnecessary pain or suffering.
The third drug in the cocktail causes excruciating pain if the person isn't knocked out. "It's like fire," Groner said.
Which leads to this problem: Death penalty defense lawyers and many doctors have said prison guards are not qualified to perform the medical procedures required for an execution. But medical organizations forbid any doctor from assisting in an execution because it is a violation of the Hippocratic Oath.
For that reason, almost no doctor will participate in an execution. The ones who check the inmates' vital signs to ensure they are dead wear blue hoods to conceal their faces and are not identified by the DOC.
More records sought
Defense lawyers also are fighting the DOC over records of executions the agency either doesn't keep or won't turn over.
"It keeps it in the dark," said Rose, the Stetson law professor. "That's not illegal, and there is no requirement to track this information. But like most things that are hidden, there's usually a reason, and it's usually not a good one."
Defense lawyers will be especially eager to get records from Diaz's execution.
"This is the problem with the wall of secrecy they keep erecting," said Martin McClain, one of the state's most experienced death penalty lawyers. "When they have secrecy like this, it always comes back to bite them."
Legal experts said Diaz's execution also will set off a slew of new challenges to lethal injection that could eventually wind up at the U.S. Supreme Court.
"The procedures are designed to prevent us from becoming the animal that the person put to death has been identified by the court as being," Rose said. "How do you take a life without becoming the monster you are destroying? That's the philosophical question. And this just adds fuel to that fire."