Friday, September 14, 2007

Disturbing reversal on lethal injections

Angel Diaz

A Times Editorial
Published September 14, 2007

Bizarre may be the best way to describe the 180-degree turn of Marion County Circuit Judge Carven Angel on the state's lethal injection protocols. In July, the judge had made it clear that he was very uncomfortable with Florida's updated execution procedures, worrying aloud over whether they comported with "evolving notions of decency." But in a ruling on Monday, he put his stamp of approval on those procedures and then went further by proclaiming that the execution of Angel Diaz was not botched.

The change of heart is hard to fathom, since to suggest that Diaz's execution was not botched is an assertion unsupported by the facts.

It took Diaz 34 minutes to die, twice the normal time. The execution team had to inject the three-drug lethal chemical cocktail in both arms before Diaz died. Later, an autopsy confirmed that the executioner had torn through Diaz's veins and delivered the chemicals to his soft tissue instead.

Even the state's own expert said in the hearing before Angel that the people who did the Diaz execution were incompetent, according to Neal Dupree, an attorney for death row inmate Ian Deco Lightbourne, who is challenging the constitutionality of Florida's lethal injection procedure.

But Angel brushed all this aside. He found that Diaz suffered no pain because he didn't scream or yell during the injections.

The judge conveniently ignored the fact that the paralyzing agent could have made any such display impossible. Had the sodium pentothal, the drug that renders the inmate unconscious and pain-free, not been fully effective, Diaz could have been in excruciating pain but would have been paralyzed by the pancuronium bromide and unable to express it.

We know this happens because reports have come from surgical patients who regain consciousness but are unable to alert doctors to their agonizing pain due to the paralyzing effects of pancuronium bromide.

If Florida is not going to end the death penalty entirely, it should at least eliminate pancuronium bromide from the injection mix. Even veterinarians won't even use that drug to put down pets, and it is a continuing puzzle why the state insists on using such a controversial and potentially cruel drug.

Another confounding part of the judge's ruling is that the issues he so passionately raised during a July hearing were barely mentioned in his September findings. Angel had expressed concerns that Department of Corrections procedures were not clear enough and that the only qualification listed for the executioner was that he or she be at least 18 years old.

In response, DOC made changes to its written protocols to require that the executioner be "sufficiently trained" to administer the flow of chemicals. Yet, this additional statement is little more than pro-forma, since DOC still doesn't require that a licensed medical professional be enlisted. The judge should have remained skeptical about the medical knowledge and expertise required of the executioner.

The issue of whether Florida's lethal injection protocols are unconstitutional does not end in Angel's court. The Florida Supreme Court will be hearing oral arguments in the case on Oct. 11. But Angel's flip-flop on the Diaz execution should render his fact-finding suspect and the high court should not rely on it.

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