Panel finding answers elusive
By CHRIS TISCH
Published February 23, 2007
TAMPA - A panel reviewing Florida's execution procedures over the last few weeks has heard testimony that is part spy novel and part horror film.
Anonymous executioners have testified over speakerphone with their voices electronically disguised. Some have refused to say much about their backgrounds out of fear they will be identified.
Doctors have revealed details of lethal injection executions gone awry, including one expert who showed grisly photos of inmates whose deaths did not appear to come smoothly.
Former Gov. Jeb Bush formed the commission to study Florida's lethal injection protocols after the Dec. 13 execution of Angel Diaz took more than twice as long as usual.
The 11-person commission is not questioning whether to put inmates to death, but only how best to do so. In several meetings over the last few weeks, the commission has heard conflicting testimony over how well lethal injection works and how badly the Diaz execution was botched.
The commission will meet perhaps for the final time Saturday in Tampa to discuss recommendations that are due by March 1 to Gov. Charlie Crist.
Here are some of the key questions the group has confronted, and answers that have emerged.
What went wrong with the Diaz execution?
While most condemned Florida inmates stop moving within a few minutes after an execution begins and are pronounced dead within 15 minutes, Diaz moved for about 26 minutes and was not pronounced dead until 36 minutes after the curtain opened.
An autopsy showed that needles inserted into Diaz's left arm pierced through the vein, causing chemicals to spill into his flesh. The execution team realized something was wrong and switched to the right arm, but that needle also passed through the vein.
The team injected a rare second dose of chemicals, and Diaz eventually died.
Foot-long chemical blisters or burns were found on Diaz's arms at his autopsy the next day.
Had the chemicals gone directly into the vein, Diaz quickly would have stopped moving and died. But the chemicals were absorbed much more slowly through the flesh.
The medical examiner who performed the autopsy and several medical experts testified that the needles tore through the vein early in the process, probably when they were inserted by a staff member.
This was rebutted by a medically trained member of the execution team who testified that he believes the veins were compromised after Diaz was dead, perhaps when his arms were moved.
He declined to offer any other explanation for the extended time it took Diaz to die. This man, whose voice was disguised, said he had participated in 84 executions in several states.
At least some members of the panel weren't convinced by his testimony.
"It's hard for me to believe that," Dr. Peter Springer, a member of the panel, said after the last hearing Monday. "I think we all know what went wrong."
Immediately after the execution, the Department of Corrections attributed Diaz's slow death to liver problems. The autopsy didn't support that, and doctors have dismissed that explanation as preposterous.
An important question for the panel will be whether the Diaz case was an anomaly that can be avoided in the future, or whether the protocols are so flawed that they allow the possibility of this happening again.
Did Diaz feel pain? And why is that important?
The question of whether Diaz felt pain is important because the Constitution forbids the government from inflicting unnecessary pain or suffering onto anyone, even the worst of criminals. That notion is designed to prevent society from stooping to the level of its worst offenders.
The panel likely will discuss whether they think Diaz felt pain because if he did, Florida's lethal injection protocols may have constitutional problems.
Ultimately, the only person to know whether Diaz felt pain is Diaz himself. And the panel obviously can't ask him the question.
The panel could rely on witness accounts of the execution, but they vary substantially.
News accounts written by reporters who witnessed the execution seem to indicate Diaz was in distress or pain. Stories said Diaz grimaced, winced, squinted and tried to talk for several minutes.
Those accounts closely match the testimony of Neal Dupree, a capital defense attorney who sat in the front row of the witness room. Dupree's office represented Diaz.
One doctor, Mark Heath, testified that he believes Diaz did feel pain.
But Department of Corrections officials who participated in the execution, along with a Florida Department of Law Enforcement agent who witnessed it, testified that they saw no signs of distress or pain.
Some panelists have suggested witnesses' recollection may vary based on their beliefs about capital punishment or their affiliations.
"Perception is not lying," said Circuit Judge Stan Morris, a member of the panel. "You have to consider if there is an institutional bias. But what's the institution? Is it the Department of Corrections? Is it journalism? Is it Neal's commitment to his client?
"I have a sinking feeling there are some unanswerable questions in this," he said.
Doesn't the Department of Corrections have records of what happened?
Not really. The execution team marks off a checklist of steps, but the only people who write detailed notes are the news reporters in the witness room.
No recordings are made of Florida executions.
Some panelists have expressed frustration that the DOC doesn't record more information. The commission also may scrutinize whether more of the execution process should be open to public record. Currently, much is not.
"Open government is a right too essential to be ignored on an issue of this importance," Mary Berglund of the League of Women Voters of Florida urged the panel during public remarks. "All your efforts here will be for nothing if the curtain of secrecy again descends on state executions."
Why do we use lethal injection in the first place?
Lethal injection was adopted in Florida in 2000 after electric chair executions caused inmates to bleed and catch fire.
The procedure calls for a three-drug cocktail. The first drug is a powerful sedative designed to put the inmate to sleep.
The second drug causes paralysis, which some experts believe is used only for aesthetic purposes so witnesses will not be disturbed by shuddering that would naturally occur upon death.
The third drug causes a fatal heart attack.
If the first drug is not properly administered, experts say, the second drug can cause the inmate to feel he is suffocating; the third drug can cause a severe burning pain.
What is the role of medical professionals during executions?
Some experts say that if the state wants lethal injection to go more smoothly, doctors need to be more involved. But ethical guidelines forbid doctors from any involvement in capital punishment.
The practice is so frowned upon within the medical community that doctors and other medical professionals who participate in executions usually demand steps to keep their identities a secret - thus the disguised voices during testimony.
The belief from the American Medical Association and other professional organizations is that doctors should not participate in anything that harms a patient because it erodes the trust people can have in their physicians.
"The doctor that does this not only defiles himself but the whole medical community," said Dr. Jonathan Groner, an associate professor of surgery at Ohio State University who has testified in death penalty cases. "Because he's anonymous it could be anyone. It could be the anesthesiologist who treats your for your gall bladder surgery. You don't know and it reflects bad on all of us."