Case Targets Florida Death Penalty Sentencing

The U.S. Supreme Court this fall will hear arguments in a challenge to the way Florida sentences people to death — a challenge backed by 3 former Florida Supreme Court justices and the American Bar Association.
The case, which stems from the 1998 murder of an Escambia County fast-food worker, focuses on the role that juries play in recommending death sentences, which ultimately are imposed by judges.
Attorneys representing death row inmate Timothy Lee Hurst, including former U.S. Solicitor General Seth Waxman, contend that Florida’s unique sentencing system is unconstitutional. Supporting that position in friend-of-the-court briefs are former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett and Gerald Kogan, along with the American Bar Association and seven former Florida circuit judges.
Part of the argument centers on what are known as “aggravating” circumstances that must be found before defendants can be sentenced to death. Hurst’s attorneys argue, in part, that a 2002 U.S. Supreme Court ruling requires that determination of such aggravating circumstances be “entrusted” to juries, not to judges.
Also, they take issue with Florida not requiring unanimous jury recommendations in death-penalty cases. A judge sentenced Hurst to death after receiving a 7-5 jury recommendation.
“Florida juries play only an advisory role,” Hurst’s attorneys wrote in a May brief. “The jury recommends a sentence of life or death based on its assessment of aggravating and mitigating circumstances, but that recommendation has no binding effect. Moreover, the jury renders its advisory verdict under procedures that degrade the integrity of the jury’s function. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”
But in an earlier brief, attorneys for the state argued that the U.S. Supreme Court and the Florida Supreme Court have repeatedly denied challenges to the sentencing process, including the Florida Supreme Court rejecting Hurst’s challenge. The state attorneys argued that a jury, in recommending the death penalty, has found facts that support at least one aggravating factor — which can be the basis for sentencing a defendant to death.
“Therefore, because the jury returned a recommendation of death, this court may infer the jury did find at least one aggravating circumstance beyond a reasonable doubt,” state attorneys wrote in a January brief in the U.S. Supreme Court.
The U.S. Supreme Court this week scheduled oral arguments in the case for Oct. 13, according to an online docket. The court agreed in March to take up the case.
Hurst, now 36, was convicted in the 1998 murder of Cynthia Lee Harrison, who was an assistant manager at a Popeye’s Fried Chicken restaurant where Hurst worked. Harrison’s body was discovered bound in a freezer, and money was missing from a safe, according to a brief in the case.
In sentencing Hurst to death, a judge found 2 aggravating circumstances — that the murder was committed during a robbery and that it was “especially heinous, atrocious or cruel,” according to the brief filed by Hurst’s attorneys. That brief, along with others in the case, were posted on an American Bar Association website and on SCOTUSblog, which closely tracks U.S. Supreme Court proceedings.
Much of the October hearing could focus on how to apply the 2002 U.S. Supreme Court decision — a major case known as Ring v. Arizona — to the Florida law. Hurst’s attorneys contend that the 2002 decision held that “findings of fact necessary to authorize a death sentence may not be entrusted to the judge.” They said Florida’s system undermines the juries’ constitutional “functions as responsible fact-finder and voice of the community’s moral judgment.”
The brief filed on behalf of Anstead, Barkett and Kogan raised similar arguments and said there is “no assurance that Florida death sentences are premised on a particular aggravating circumstance found by the jury.”
“And because jury unanimity is not mandated during the sentencing process, there is no assurance that a Florida jury’s death recommendation represents a reliable consensus of the community,” the brief said. “As a consequence, (the former justices) believe that the jury’s role is impermissibly denigrated and that there is an unacceptable risk that Florida death sentences are erroneously imposed, in violation of the Sixth and the Eighth Amendments to the Constitution of the United States.”
Source: WUSF news, August 1, 2015

Florida man struggles to build life after death row exoneration

Seth Penalver dropped to the floor and wept into his chair when a Florida jury declared him not guilty in the shooting deaths of three people during a 1994 home invasion.
After 3 trials and 18 years in prison – including 13 on death row – a Broward County jury in 2012 found Penalver not guilty of capital murder in the 1994 slayings of Casmir Sucharski, 48, Marie Rogers, 25, and Sharon Anderson, 25.
Little did he know about the struggles that lay ahead. His release from prison marked a new chapter, one that’s been filled with ups and downs, given his prolonged absence from society. Despite his acquittal, he says he struggles to find work because of his background, which includes 2 prior nonviolent felonies.
“You Google my name and it lights up the screen. I’m 20 years minus a resume, so it’s hard,” he said.
Experts say Penalver’s struggles with reintegration are typical for death row exonerees or people found to be wrongly convicted. On paper, they’re no longer offenders, but they’re not quite free of the stigma or psychological impact of their incarceration. The duration of their incarceration can strain personal relationships, creating a void in support systems after their release. Additionally, they often lack access to the same career or counseling services available to parolees because technically, they’re not on parole.
“The media attention tends to focus on how people got wrongly convicted, what in the system led to these cases, and those are important stories worthy of attention,” said University of North Carolina at Greensboro professor Saundra Westervelt, author of “Life After Death Row: Exonerees’ Search for Community and Identity.”
“But the story doesn’t end there. There’s a slew of practical problems they have to figure out how to manage.”
The state could help improve prospects for exonerees by providing monetary compensation and reintegration services, said Westervelt, a board member of Witness to Innocence, which works to abolish the death penalty and provide support to former death row inmates.
Only 30 states have laws that provide monetary compensation to wrongly convicted people, which can include death row exonerees. And in many states, including Florida, they come with limits. In some states, access to monetary compensation is available only for people exonerated by DNA evidence, who receive an official gubernatorial pardon or who don’t have prior felonies.
A crime unfolds on video
Local media dubbed the triple slayings the “Casey’s Nickelodeon murders” because Sucharski was an owner of Casey’s Nickelodeon, a Miramar nightclub where he met aspiring models Rogers and Anderson. The 3 were shot dead in Sucharski’s home in Miramar, Florida, early in the morning of June 26, 1994.
Penalver and co-defendant Pablo Ibar were charged in the crime after witnesses identified them in grainy home surveillance video showing 2 men breaking into Sucharski’s home. Penalver surrendered to law enforcement in August 1994 after a warrant was issued for his arrest.
Penalver stood trial three times for the murders. His first trial with Ibar in 1997 ended in a mistrial after the jury deadlocked 10-2 in favor of guilt. The cases were severed, and Penalver was tried again in 1999 and sentenced to death on charges of murder, attempted robbery and burglary.
The Florida Supreme Court overturned Penalver’s verdict in 2006 based on a series of evidentiary and constitutional errors related to witness testimony and identification. Given the absence of physical evidence connecting Penalver to the crime and questions about the identification of the men in the surveillance video, “the witnesses’ statements presented at trial were of paramount importance,” the judges wrote in their ruling.
An expert witness who viewed the tape said that he couldn’t identify anyone from it, but that the person in the video had facial characteristics inconsistent with Penalver’s facial structure. Some people who knew Penalver said the video wasn’t him or they couldn’t tell. One said she couldn’t tell from the face, but the subject’s gait was like Penalver’s. Another told the police that it was Penalver, but then testified in court that she couldn’t say whether it was him or not.
With respect to this last witness, the prosecution argued that she changed her testimony after meeting with the defense, improperly suggesting — with no evidence to support it — that the defense had tampered with her, the court found. The court also found that the prosecution improperly admitted hearsay testimony that an alternate suspect was out of state, when there was no evidence that the suspect was out of state. The prosecution also presented evidence implying that Penalver had been suicidal and wrongly used that suggestion to imply consciousness of guilt, the court said.
“In light of the scant evidence connecting Penalver to this murder and the consequent importance of identifying the individual depicted on the videotape in sunglasses and hat, we conclude that the improperly admitted evidence and the State’s suggestion that the defense tampered with or suborned perjury by an identification witness meet the cumulative error requirements outlined above and require reversal,” the court said in its opinion.
The video magnified the uncertainty, making the strength of the remaining evidence all the more important, said Temple University law professor Jules Epstein, who specializes in forensics. Appellate courts assess error based on the magnitude of the mistakes and their cumulative impact.
“The weaker the rest of the evidence, the more significant the mistakes are. Conversely, the stronger the remaining evidence, the impact of mistake goes down,” Epstein said.
Stepping up for the wrongfully convicted
Penalver says he gets by on odd jobs and government assistance in the form of food stamps. He would like to attend school or learn a trade, but living hand to mouth makes it impossible to find time or money for education, he said.
Compensation from the state would help, but under the “clean hands” provision of Florida’s Victims of Wrongful Incarceration Compensation Act, Penalver is ineligible because of his 2 prior nonviolent felonies, which are unrelated to the triple slayings he was accused of.
“Just because I had prior felonies in the past, that shouldn’t mean I can’t be compensated for what was done to me,” he said. “It’s hard getting back on your feet; anything would help.”
Source: Las Vegas Review-Journal, August 1, 2015

Florida’s lethal-injection drug gets Supreme Court nod

June 29, 2015

The Supreme Court’s decision Monday to uphold the use of a controversial drug in lethal-injection executions will have ramifications for the 395 people on Florida’s death row as well as on the upcoming execution of a man who killed four family members in Orlando in 1985.

Florida Supreme Court justices stayed the Feb. 26 execution of Jerry Correll pending the high court’s ruling over midazolam — the first drug administered during a three-step process to execute inmates in a handful of states, including Florida.

Monday’s decision prompted a motion from Florida officials state to lift the stay.

Executions in other states have raised concerns the sedative did not perform its intended task of putting inmates into a comalike sleep. Correll’s attorneys argued that point in an emergency motion to delay his execution at least until the Supreme Court offered its opinion. A jury convicted their client of stabbing and killing his 5-year-old daughter, ex-wife, mother-in-law and sister-in-law.

But Monday’s ruling just preserves the status quo in Florida and in the other 31 states that use capital punishment, said Orlando attorney Steven Laurence. It means midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

“The Florida Supreme Court acknowledged when they granted a stay that there has been some issues [with the drug], and they wanted to the U.S. Supreme Court to speak to that issue,” said Laurence, who’s been trying death-penalty cases at the state Supreme Court for more than a decade.

“Now they’ve spoken to that issue, and from the perspective of a Florida practitioner such as myself, it’s back to business as usual.”

Florida remains among the most active states using the death penalty, putting 16 people to death in the past three years, according to the Death Penalty Information Center, a national nonprofit research group.

Florida Gov. Rick Scott has signed more death warrants than any other modern Florida governor in a single term.

The Orange-Osceola State Attorney’s Office is seeking the death penalty in seven cases this year, according to a spokeswoman. Defendants in those cases include Sanel Saint Simon, the Orange County man accused of beating his girlfriend’s 16-year-old daughter to death, and Bessman Okafor, the suspected mastermind behind a witness-execution plot.

This won’t be the last time a U.S. Supreme Court ruling affects Florida’s death penalty.

The high court agreed to hear in its next term a case called Hurst v. Florida, a challenge to the state’s procedure for determining a death sentence.

Florida is the only state that doesn’t require a unanimous jury to recommend death. Rather, a majority vote, after a special hearing on factors that could justify or mitigate the death penalty, will send a convict to death row.

A trial judge must either approve or reject that recommendation.

Laurence said this case has a better chance at affecting Florida’s procedures because the practice is an outlier among other states.

“It seems contrived that to find a person guilty of the death penalty requires a unanimity, but to actually execute them does not,” he said. “To me, that’s a much more compelling issue.”

In its ruling on Correll’s execution, Florida Chief Justice Jorge Labarga wrote in the majority opinion that the stay was justified because the Oklahoma protocol under review by the U.S. Supreme Court is “virtually identical” to Florida’s process.

“Without the stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy.”

Clarification came Monday in a 5-4 decision by the Supreme Court as two dissenting justices said for the first time that they think it’s “highly likely” that the death penalty itself is unconstitutional.

Justice Samuel Alito said arguments the drug could not be used effectively as a sedative in executions are speculative.

In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer’s opinion.

Information from The Associated Press was used in this report.

Florida. death penalty faces scrutiny from Supreme Court

June 28, 2015

— Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment.

“Florida’s capital sentencing system is unique among all 33 American jurisdictions that permit capital punishment,” the American Bar Association says in a brief filed before the nation’s highest court. “Indeed, the Florida Supreme Court has characterized Florida as ‘the outlier state.’ ”

Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute.

The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.

In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole.

In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.

But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death. Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations.

Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.

No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate.

The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present. The association wants the high court to require jurors to unanimously agree on the imposition of death sentences.

The American Bar Association reviewed the state’s death penalty system in 2006 and found the need to improve its fairness and accuracy.

Among the findings was that there was significant confusion among jurors in capital cases. “Research establishes that many Florida capital jurors do not understand their role and responsibilities when deciding whether to impose a death sentence,” the association’s report stated.

The ABA also concluded that not requiring jurors to be unanimous “reduces the jury’s deliberation time and thus may diminish the thoroughness of the deliberations.”

The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death.

Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional.

The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision.

That Florida appeal involved Amos Lee King, who was later executed for the 1977 murder of Natalie “Tillie” Brady inside her Tarpon Springs home. Brady was raped, stabbed and beaten while King was in a nearby prison work-release program.

The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations. But state lawmakers didn’t act.

In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional. One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998.

The state Supreme Court initially upheld Hurst’s conviction and death sentence but later granted him a new penalty phase hearing on the grounds his original defense lawyer failed to properly pre­sent and investigate mitigating evidence relating to his borderline intelligence and possible brain damage. At the conclusion of the second sentencing hearing, jurors returned a verdict of 7-5 in favor of death.

Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.

The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.

Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty. After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled.

The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.

Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.


Man on Florida death row for 2006 murder to be set free – Derral Hodgkins

A man on death row for the murder of a Pasco County waitress will soon walk free.
The Florida Supreme Court ruled Thursday that there wasn’t enough evidence to convict Derral Hodgkins for the 2006 murder of 46-year-old Teresa Lodge.
Lodge was found dead in her Land O’Lakes apartment.
She had been beaten, choked and stabbed multiple times.
Hodgkins’ skin was found under her fingernails, but investigators didn’t find a weapon or other evidence that placed Hodgkins at the scene.
The court said the skin found raises suspicion, but it wasn’t enough to convict Hodgkins.
The two dated years earlier and Hodgkins said they remained close. He told investigators they had sex about three days before the murder and Lodge dug her nails into his back during the act.
Source: Associated Press, June 19, 2015


Florida’s gruesome execution theater

march 19, 2014

In the decades he spent filing stories from Jacksonville after visits to Florida’s execution chamber, former AP reporter Ron Word saw a lot that still lingers in the back of his mind. There are the images from the old days of the electric chair: The executioner’s black hood, only visible through a slit in the wall; or the electrician’s thick rubber gloves, worn in the event of mechanical problems. And there are the dramatic episodes: the execution of Ted Bundy; electrocutions in which “there were flames coming off the inmates’ heads”; the botched, bloody death of Allen Lee “Tiny” Davis in 1999, in a special electric chair built for his 344-pound body, then never used again.

There were the times the Florida Department of Corrections (DOC) tried to alter the narrative. Once, Word remembers, in the early days of lethal injection, he got a call from prison officials telling him, “You’re gonna’ have to change the times in your story. They don’t agree with our times.” Word refused. Another time, after the agonizing 34-minute death of Angel Diaz — executioners pushed the IV needles into his flesh instead of his veins — Word says the DOC “pretty much lied to us that night.” Prison officials claimed Diaz had some sort of liver problem, “but as it turned out there was nothing wrong with his liver. It was because of the procedure they used.”

That happened around Christmas of 2006. Afterward, Florida temporarily halted executions and revised its protocol. And that’s when they brought in the moon suits.

“At all Florida lethal injections, a man in a purple moon suit leans over the dying inmate to listen for a heartbeat and feel for a pulse,” Word reported in the summer of 2007. “After a few seconds, he nods, and the witnesses are informed that the death sentence has been duly carried out. The man is a doctor, and the gear shields his identity — not just from the prisoner’s family and friends, but from the American Medical Association, whose code of ethics bars members from participating in executions.”

The moon suits still stick out in Word’s memories. “It kind of surprised me when they first showed up. It was kind of bizarre.” Regardless, he says, “after two or three executions they quit using them.” The moon suits appeared to attract rather than deflect attention. Other states had developed less theatrical ways of hiding the identities of doctors who helped them kill prisoners.

Word was laid off in 2009, after witnessing some 60 executions. Speaking over the phone from Jacksonville, he says that most of them blend together in his mind. Whether they used the electric chair or lethal injection, state officials aimed to make the procedure bear as little resemblance as possible to what was actually happening — the taking of a human life. “The result was the same,” he says, and both involved practiced rituals and procedures that “made it as sanitized as possible.” But Word adds, “I think it used to be more open than it is now. More transparent.” From what he could tell, “lethal injection was kind of a learning exercise.”

A learning curve for killing

“Learning exercise” is a pretty good way to describe Florida’s approach to lethal injection these days. On Thursday, the state plans to execute 55-year-old Robert Henry for a gruesome double murder committed in 1987. To kill him, prison officials will use a new protocol implemented last fall, which introduced the sedative midazolam into the state’s lethal drug mix. Commonly used for a variety of medical purposes, including patients undergoing surgery, midazolam had never before been used in executions until Florida adopted it. It’s also unclear how the state, which is now killing prisoners at a brisk pace, came up with the idea to use the drug in the first place.

Nevertheless, in a letter to Governor Rick Scott last September, Florida Department of Corrections Secretary Michael Crews provided lofty assurances that the new procedure “is compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology, and technology.”

“The foremost objective of the lethal injection process,” Crews wrote, “is a humane and dignified death.”

But the first Florida prisoner executed with the new method, William Happ, died last October “in what seemed like a labored process,” according to a reporter for the Sun Sentinel. “At times his eyes fluttered, he swallowed hard, his head twitched, his chest heaved.” An AP report said “it appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed . . . under the old formula.”

But a circuit court judge later concluded there was “no credible evidence” that Happ had suffered. So Florida stuck with the new process. Barring a last-minute stay of execution, tomorrow Robert Henry will be the fifth prisoner killed in this manner.

In the 2008 case Baze v. Rees, the U.S. Supreme Court upheld the three-drug lethal injection protocol that had been used for years by most death penalty states. Ironically, a couple years after, many states began moving away from it. Shortages of the drugs used in that protocol have since forced states find new ways to kill prisoners. Those shortages are in part due to a campaign by the U.K.-based human rights group Reprieve. The group has enormous success convincing overseas companies to bar their drugs from export to the U.S. for use in executions. “Pharmaceutical companies make medicine to cure people,” Reprieve founder Clive Stafford Smith recently wrote, “so they object to their drugs being used to kill.”

What has followed is chaos, controversy and improvisation, all played out on the bodies of prisoners. States are now choosing new drugs based more on their availability than on medical science. State prison officials have been inventing protocols as they go along and conducting what amount to experimental executions.

The trend began in 2010, when diminishing supplies of sodium thiopental—the first drug in the three-drug “cocktail” upheld by the Court in Rees—prompted death penalty states to get creative in their search for execution drugs. In 2011, I wrote an article for The Nation describing the consequences in Georgia, where two inmates had recently died with their eyes open—a grim indication that the sodium thiopental had not worked as intended, and that the men had likely suffered agonizing deaths. There was also evidence that the drugs had been used past their expiration dates. Lawyers for death row inmates traced source of the drugs overseas to a sketchy pharmaceutical wholesaler named Dream Pharma, which advertised that it could discreetly sell “discontinued” and “hard to find” drugs.

Death penalty states have since given up on getting sodium thiopental — its U.S. manufacturer no longer makes the drug, and European makers are now banned from exporting it for executions — but the scattered, secretive searches have continued. Today, unregulated compounding pharmacies are increasingly the go-to source (despite few guarantees about the effectiveness of the drugs they sell) and pentobarbital — a barbituate like sodium thiopental — has become the go-to drug (despite no guarantees about how it functions in an execution). These changes have come quickly, quietly, and secretively. After Ohio became the first to use a single lethal dose of pentobarbital to kill a prisoner in March 2011, Texas swiftly announced that it would do the same. Lawyers for Cleve Foster, the next in line to die, protested the complete lack of transparency with which the drug had been adopted (which also happened to violate state law). As Foster’s attorney, Maurie Levin, told me the day before his scheduled execution in April 2011, pentobarbital “has not been vetted. It certainly hasn’t been vetted in Texas.” (After several stays from the Supreme Court, Foster was executed in September 2012.) Nevertheless, according to the Death Penalty Information Center (DPIC), fourteen states now plan to use pentobarbital to kill prisoners—and five more plan to use it going forward.

No state has been more eager to experiment than Ohio, which boasts a number of lethal injection “firsts,” according to the DPIC. On January 16, the state killed Dennis McGuire using the unprecedented combination of midazolam and the pain medication hydromorphone. The execution was so dramatically botched that it made international headlines. Horrified witnesses watched as the 253-lb McGuire “repeated cycles of snorting, gurgling and arching his back” and appeared to “writhe in pain,” according to a subsequent lawsuit filed by his family. Making matters worse, state officials had been warned in advance that the use of the untested drugs put McGuire at risk of a horrific, suffocating death. They went ahead with the execution anyway.

As Florida’s execution of Robert Henry approaches, his attorneys warn that he, too, is likely to suffer. At an evidentiary hearing on March 10, Emory University anesthesiologist Dr. Joel Zivot — a vocal critic of this form of lethal injection—said that “science is being misused and misunderstood” in his case. Zivot testified that Henry’s combined health problems—including hypertension, high cholesterol, and coronary artery disease—provide a “high degree of certainty” he will suffer a heart attack on the gurney. The Florida Supreme Court rejected that argument. In response, Henry’s supporters denounced the ruling, pointing out that the court had relied on the testimony of “the Government’s go-to doctor for death,” Dr. Mark Dershwitz. Dershwitz has lent his medical expertise to reassure states of the soundness of their killing protocols in dozens of cases, including the experiments that led to Ohio’s disastrous execution of Dennis McGuire.


State secrets

Earlier this year, the Florida Supreme Court ordered a hearing in which Florida DOC officials explained what precautions they take to ensure that inmates experience “a humane and dignified death.” But instead of discussing why and how the state chose what drugs it uses, the hearing was a farcical discussion of minutia. As A.P. journalist Tamara Lush reported, DOC Assistant Secretary Timothy Cannon testified that DOC officials had come up with a new way of performing a “consciousness check” on a prisoner. In his capacity as the execution “team leader,” Cannon testified that whereas he previously used what he called a “shake and shout”—grabbing an inmate’s shoulders and yelling his name—he now relies on the more subtle “trapezoid pinch,” or squeezing the flesh between a prisoner’s neck and shoulder.

Cannon also explained that as part of their training, members of the execution team would take turns playing the role of the condemned. That practice, he said, generated some helpful feedback. “We’ve changed several aspects of just the comfort level for the inmate while lying on the gurney,” he testified. “Maybe we put sponges under the hand or padding under the hands to make it more comfortable, changed the pillow, the angle of things, just to try to make it a little more comfortable, more humane and more dignified as we move along.”

So while Florida DOC officials proved they have pondered the ways in which gurneys can be turned into a cozier death beds, they provided no answers regarding the efficacy, origin or humaneness of the methods they are using to kill people. In fact, a spokesperson told the National Journal last fall that the official DOC policy is to refuse “to go into any detail about how or why the protocol was designed. Those decisions are exempt from public record because they could impact the safety and security of inmates and officers who are involved in that process.”

But Florida isn’t alone in its secrecy. The Atlantic’s Andrew Cohen has written at length about how “state officials all over the nation have sought to protect this information from public disclosure.” In Missouri, the only state that still carries out executions at midnight, state officials are embroiled in an ugly, ongoing battle to deny inmates any information about the drugs that will be used to kill them. In Georgia, where the federal Drug Enforcement Administration ultimately raided the Department of Correction in 2011 to seize the supply of sodium thiopental the state got from Dream Pharma, lawmakers have responded by pushing legislation that would make the origins and procurement of lethal injection drugs a “confidential state secret.” Other states whose supplies were also raided by the DEA have responded similarly. In Tennessee, which intends to execute ten prisoners beginning later this year, officials waited for such a secrecy law to pass the state legislature before announcing the parade of executions. The DPIC estimates that seven states have passed similar laws.

If today’s executions truly represented the heights of moral advancement suggested by Secretary Crews in his letter to Rick Scott last fall, it may seem odd that state governments would go to such lengths to keep the public from knowing anything about them. Of course, part of that is likely due to the success of groups like Reprieve. If states don’t reveal what drugs they’re using, Reprieve can’t pressure the drugs’ makers to refuse to sell the drugs for executions.

But today’s fight over transparency and lack of concern over botched executions are good reminders of the fundamental lie at the heart of lethal injection: It is a punishment that, by its very design, has always been rooted in secrecy rather than medical science. Never mind the rhetoric about “humane and dignified death.” However brutish the electric chair or gas chamber might appear by comparison, the only thing that truly sets lethal injection apart is that it was devised to mask what it was doing to its victims. As states have been forced to abandon that original design, lethal injection has been exposed for what it actually is: an experimental, unscientific form of premeditated killing.


“To hell with them. Let’s do this.”

Perhaps the best illustration of just how little consideration went into the design of lethal injection is the story behind the development of the protocol later used by most death penalty states and eventually approved by the Supreme Court in Rees. In a 2007 article for the Fordham Law Review, law professor Deborah Denno explained how Oklahoma first came up with the idea in 1977.

Like much criminal justice policy, it was based more on hunches and gut reactions than science and empirical data. “At each step in the political process,” Denno wrote, “concerns about cost, speed, aesthetics, and legislative marketability trumped any medical interest that the procedure would ensure a humane execution.” Although government-appointed commissions in both the U.S. and U.K. had by then studied and rejected lethal injection — with the latter finding “a lack of ‘reasonable certainty’ that lethal injections could be performed ‘quickly, painlessly and decently’”— Oklahoma legislators resurrected the idea after the U.S. Supreme Court reinstated the death penalty with Gregg v. Georgia in 1976. “Seemingly oblivious to prior concerns, American lawmakers emphasized that lethal injection appeared more humane and visually palatable relative to other methods,” Denno wrote.

That the method be “visually palatable” was of particular importance. In Oklahoma, two politicians led the push for lethal injection: State Rep. Bill Wiseman and state Sen. Bill Dawson. Wiseman was disturbed by the ugliness of electrocutions, later telling the Tulsa World they were “kind of a combination of Barnum & Bailey and reform.” Describing himself as a reluctant supporter of executions, he wrote a bill in 1977 to replace the electric chair with lethal injection, which he was convinced would be more humane. According to the World, he then ‘placed on every legislator’s desk an envelope containing two pictures of a man who had been electrocuted. ‘It looked like seared meat,’ he said. ‘Some people just didn’t like it.’”

As Denno explains, Wiseman was eventually told by his own physician, who was also the head of the Oklahoma Medical Association, that the organization wanted no involvement in his lethal injection project. Anxious to give the process even the thinnest medical veneer, Wiseman and Dawson settled on the help of the state’s chief medical examiner, Jay Chapman, who candidly admitted that he was more of “an expert in dead bodies” than “an expert in getting them that way.” Still, he was eager to help. When the lawmakers expressed concerns over what it could mean for his reputation within the medical community, Chapman was cavalier. “To hell with them,” he said. “Let’s do this.”

Despite his lacking credentials, Chapman devised the famed “three-drug cocktail” that would become the established protocol for the rest of the country for years. The first drug (generally sodium thiopental) anesthetized the prisoner. The second (pancuronium bromide) caused paralysis, including of the muscles used for respiration. And the third (potassium chloride) stopped the heart.

In combination, the drugs created the impression of a peaceful and humane process — the pancuronium bromide masked any ugly outward signs of what may have been happening in the prisoners’ bodies. But the states would later discover that if the anesthetic failed to work properly, the inmates would suffocate, and fall into cardiac arrest. They would experience an excruciating death, but the paralytic would prevent inmates from crying out or exhibiting obvious signs of distress. The risk of such suffering was particularly senseless given the lack of evidence that the paralyzing drug played anything other than a cosmetic role in the process. As a Tennessee judge wrote in 2003, pancuronium bromide serves “no legitimate purpose” aside from providing the “false impression of serenity to viewers, making punishment by death more palatable and acceptable to society.” Indeed, as Adam Liptak wrote in the New York Times that year, the “American Veterinary Medical Association condemns pancuronium bromide” for euthanizing animals, “because, an association report in 2000 said, ‘the animal may perceive pain and distress after it is immobilized.’”

In its ruling in Baze v. Rees years later, the Supreme Court dismissed the AVMA’s position, along with the risks inherent in the use of pancuronium bromide, concluding that the drug played a legitimate role in providing a “quick, certain death.” But by then, even Chapman himself — who has expressed disgust at the way his lethal injection protocol has been bungled by “complete idiots” — had acknowledged that the paralyzing agent may have been a mistake. Asked by CNN in 2007 why he included it in the first place, he said, “It’s a good question. If I were doing it now, I would probably eliminate it.”

Given that many states are now doing just that as they move onto other lethal injection protocols, the use of pancuronium bromide has become a mostly moot point. Still, its removal from the process could have one important, if unintended effect: It could make killing look like killing. As Mike Brickner of the ACLU of Ohio told me after Dennis McGuire’s harrowing death, “Now that we’re using drug combinations where there’s no paralytic, maybe we’re seeing inmates die in ways that were always ‘botched’ — except that their body could not physically show it.”

Such bad optics were precisely what Chapman always wished to avoid. (He has called it “ludicrous,” for instance, to allow witnesses to watch as execution teams, “feeling nervous and fiddling around,” look for an inmate’s vein.) As the ongoing controversy over lethal injection continues, Chapman’s legacy as patriarch of the killing cocktail exposes our quest for “humane executions” for what it really is. It’s less about finding a dignified way for prisoners to die, and more about finding a way to kill them that preserves the humanity of the prison staff, the medical professionals, and a public largely indifferent to the Constitutional requirement that prisoners be spared from “torture or lingering death.”

Chapman himself once reflected that indifference in an exasperated email to Denno, “Perhaps hemlock is the answer for all the bleeding hearts who forget about the victims—and their suffering—Socrates style . . . the things that I have seen that have been done to victims [are] beyond belief . . . And we should worry that these horses’ patoots should have a bit of pain, awareness of anything — give me a break.”

One could perhaps understand Chapman’s perspective, given the time he spent up close with the corpses of murder victims. But the law does demand a humane death. The initial decision to turn to a man who doesn’t believe in that principle to devise a method of execution was exceptionally cynical. That Chapman’s lethal injection experiment was then replicated across the country for decades, despite it’s fundamental flaws, is a shameful history.

Worse, we seem to have learned very little from it. As the anesthesiologist Joel Zivot wrote last December, these states are “usurping the tools and arts of the medical trade and propagating a fiction.” The state of Florida plans to kill Robert Henry tomorrow by using a drug designed, tested, and sold for healing. We don’t know its effects when it’s used for killing. To borrow from Zivot, when it comes to the death penalty, “What appears as humane is theater alone.”



Florida’s Death Row For Women Is For Sale

march 7, 2014

You in the market for a new home? How about, instead of buying a house with a pool and a white-picket fence, you buy yourself and your family a prison that used to hold female serial killers? It’s plenty spacious! And it has a yard!


Apparently the old Broward Correctional Institution is going to be put up for sale at the end of March.


There’ll be a 60-day marketing period, of course, but then you’ll be free to own your very own 66-acre prison.

According to the Daily Business Review, Florida Department of Corrections is looking for a buyer for the prison that once held female prisoner’s sentenced to death by the state.


The FDC is even putting together advertisements and bod documents for the prison, which boasts
a 224,497-square-foot prison campus. A property appraisal is still in the works, and there’s yet to be a minimum bid range set, so if you wanna get in on this, do it now while the iron is hot!


The prison, which is located on 20421 Sheridan Street near State Road 27, was opened in 1977, but forced to close in 2012 after budget cuts.


Earlier this month, the state hired real estate brokerage house CBRE Inc. to market the prison and find a buyer.


According to Florida Department of Environmental Protection press secretary Patrick Gillespie, the property must be made available first to other state entities. After that, the county will have the chance to buy it at the appraised price.


If no one wants it then, it’s up for grabs to whoever feels like owning a prison.


And, Gillespie said, there’s virtually anything you can do with this place once it’s yours.


“If the state puts it for sale to a private bidder, there’s typically no restriction on uses,” he said. “It would just depend on the bidder.”


“Our role is really just to sell it” and “get the best value for the state,” Gillespie added.


Let’s all pool together some money and turn it into an amusement park!


SHANK-LAND would be a great name for it, we think.


FLORIDA – Opening statements begin in death penalty case resentencing – Richard Michael Cooper

february 26, 2014 (tampabay)

LARGO — A jury has been selected and opening statements are scheduled to start at 2 p.m. Wednesday in the resentencing of Richard Michael Cooper, who has been on death row for 30 years after being convicted in a triple murder.

A federal appeals court threw out Cooper’s death sentence in 2011 after finding that a jury should have heard evidence of abuse Cooper suffered as a child during the sentencing phase of his trial.

It took a day and a half to seat a jury to hear the evidence on what sentence Cooper should receive for his role in the 1982 deaths of Steven Fridella, Bobby Martindale and Gary Petersen — remembered since as the “High Point murders.”

Cooper’s guilt is not in dispute. On the morning of June 18, 1982, Cooper and three others — Jason Dirk Walton, Terry Van Royal and Jeffrey Hartwell McCoy — drove to Fridella’s Largo residence looking for cocaine or money.

They parked a distance away and, wearing ski masks, crept toward the home at 6351 143rd Ave. Among them they carried a .357 Magnum revolver, a .22 rifle and a 12-gauge shotgun, according to court records.

They had originally planned to rob the men inside while they slept. But someone recognized one of the intruders, and the plan changed.

Fridella, Martindale and Petersen were bound with duct tape and forced to lie on the floor. Cooper, then 18, confessed to shooting Fridella twice with the shotgun. Cooper’s attorneys called no witnesses in his defense, arguing that he was under the spell of Walton, whom Cooper had described as “a Charles Manson-type figure.”

Cooper’s conviction and sentence were upheld on appeal. In 2011, the federal 11th Circuit again affirmed the conviction but tossed out the death sentence because of evidence the first jury never heard. That included frequent beatings at the hands of his hard-drinking father, Phillip “Socky” Cooper, who earned his nickname as a Golden Gloves boxing champion.

The elder Cooper beat his children with “boards, switches, belts and horse whips,” leaving welts all over their bodies, sometimes for offenses as small as not knowing their multiplication tables.

The abuse was so constant, a school principal, fearing he was making things worse, “stopped calling their father when Cooper would get in trouble because Cooper would show up at school beaten and with bruises all over him,” the court said.

Cooper’s stepbrother and sister also said no one had contacted them to testify at the first trial.

Man has witnessed all of Florida’s executions in the past 25 years

february 26, 2014

JACKSONVILLE, Fla. — John Koch has a plastic container of manila envelopes that he sorts through rarely.

Each envelope contains hand-written notes, usually a script, and a piece of audio that is mostly cassette tapes.

“Now I’m putting them on CDs, I’m getting smart now,” said Kock.

The envelopes are dated with name written on them. The names represent every Florida inmate who’s received the death penalty in almost the last 25 years, some of whom have been the subject of Oscar-winning films.

“I saw Aileen Wuornos go,” he said.

Others like Allen Lee Davis of Jacksonville become known for a lavish request.

“His last meal was a large lobster tail, fried potatoes, half a pound of shrimp. This man was a large man,” Koch said.

Koch’s also documented a notorious murderer who went down in state history.

“I watched also the first woman to be executed in the state of Florida,” he said “That was Buenoano.”

Koch landed his front row seat at the hands of a policy within the Florida Department of Corrections. It allows news reporters to serve as witnesses during an execution.

“They give you two pencils and they give you a notebook to write on,” Koch said.

Koch is a Florida native who has been on the radio in the Live Oak area since the mid-1970s. He’s as much as an institution as the Dixie Grille where he likes to grab breakfast from time to time.

Koch began witnessing executions after one of Ted Bundy’s victims was found near Suwanee River State Park.

“I was there the day Robert Leonard, then Sheriff Robert Leonard, brought out the little girl’s body,” he said. “And I broke the story.”

About a decade later when Bundy was set to be electrocuted in 1989 Koch made sure he saw the story through. “And I started fighting on my end to get in there.”

He says he vividly remembers what happened when Bundy walked into the room.

“He looked over at the chair and you could see him give up,” Koch said. “That moment, that moment, he realized he ain’t going nowhere. It’s over.”

Koch says he also realized no one had ever regularly reported on what happens when an inmate is brought in to die. “What was the process? How does it work? What’s going on?”

So, he chose to continue witnessing executions as a way to inform people about a decades-old process that’s largely private and controversial. To this day members of the Catholic Church hold signs outside the Duval County Courthouse to show their opposition to capital punishment.

“Punishment is not the answer. The answer is you get the person to change. And it doesn’t change the horror that’s gone on or the loss that’s gone on,” says a protester outside the courthouse.

Koch though refrains from opinion and tries his best to remove himself from what’s happening in front of him.

“What’s your immediate feeling after watching somebody die? Nothing really,” he said. “Because they would have no feelings for you, none whatsoever.”

Each time he just writes down what he sees.

“I’ve always watched the hands. That always tells me a lot, whether they are nervous, they’re calm,” Koch said. “You can see the communication going back and forth between the team leader and the executioner.

“It’s gory. I hate it. It’s not fun watching people die whether they deserve it or not. I can feel the soul being wrenched early before it’s time. I sense all of that, but I put that aside and I’ve got 30 seconds to tell you a very important story.”

In all Koch has reported on the death of 63 Florida inmates and he doesn’t have plans to stop. He says people tell him to turn what’s inside his manila envelopes into a book.

But for now, he wants to stick to the only job he says that gives him goose bumps.

“Yeah, yeah, see, look at the goose bumps. I still get them and that is the reason I do any of this.”

FLORIDA – Jimmy Ryce’s Killer Appeals SCOTUS To Stay His Execution – Juan Carlos Chavez

February 7, 2014 (cbs)

The South Dade man convicted of killing Jimmy Ryce in 1995 has filed an appeal with the United States Supreme Court to stay his execution, which is currently scheduled for next Wednesday.

Juan Carlos Chavez has been on death row since his conviction in 1998.

The Ryce family declined to comment on the appeal Friday, but Don and Ted Ryce sat down for interviews with CBS4 News earlier in the week ahead of the pending execution.

“I just want it to be over. I want to get it behind us,” Don Ryce said.

Now there is a chance the day Done Ryce has waited almost 19 years for will be delayed.

“There is a reasonable possibility that the Supreme Court would consider a stay in this instance,” Miami-based appeals attorney Richard Klugh said Friday night.

Klugh is not connected to the case, but is familiar with the history and the letter of the law.

“It could take days, it could take a matter of weeks. But most likely the Supreme Court will try to move expeditiously,” he said.

Chavez was convicted in 1998 of the kidnap, rape and murder of 9-year-old Jimmy Ryce.

The farm hand told police he dismembered the boy’s body, put the parts in planters, and then filled them with concrete.

Jimmy’s family held out hope he’d be found alive. Posters with his pictured were plastered all over South Florida.

After Chavez’s arrest, confession and conviction, they waited patiently for justice to be served.

Jimmy’s mother and sister would not live to see the day.

“This person, Juan Carlos Chavez, who’s been on death row for so long, he’s outlived my mother, Claudine. He’s outlived my sister,” Jimmy’s brother Ted said. “Now… Now, it’s time.”

Chavez’s attorneys argue the lethal cocktail administered to death row inmates violates the U.S. Constitution, saying it amounts to “cruel and unusual punishment.”

It’s a punishment Don Ryce thinks is well-deserved, even though it won’t bring his little boy back.

“I hate the word closure because what it implies is that there’s an end and everything is okay,” Ryce said. “And that’ll never happen.”

If the execution moves ahead as planned on Wednesday, Don and Ted Ryce said they plan to be in the viewing gallery at the state prison in Starke.