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Condemned prisoners’ complaint triggers trial for ADC

Thomas Paul West, shown in this undated Arizona Department of Corrections mug shot, is scheduled to be executed Tuesday, July 19, 2011, for beating another man to death in 1987, despite a flurry of last-minute appeals over a sedative used in a previous execution and a challenge over who oversees the state's death penalty, among other issues. (AP Photo/Arizona Department of Corrections)

For the second time in four years the Arizona Department of Corrections will be going to court to defend the way it carries out executions.

A group of death-row prisoners persuaded a federal judge on July 20 to examine whether the state has violated their constitutional rights when executioners deviated from Arizona’s lethal-injection protocol, or policies, during the last five executions.

The same judge, Neil V. Wake of U.S. District Court in Phoenix, had found those policies to be constitutional in 2009 in a separate lawsuit, Dickens v. Brewer, but prisoners raised enough questions in the most recent legal challenge to warrant a trial, which is scheduled for Oct. 11.

Wake wrote in his July 20 order that he previously upheld the constitutionality of the policies in 2009 partly because he didn’t find any evidence the Department of Corrections would not follow them.

“The court noted that ‘it is critical for Arizona to follow the procedures set forth in the Protocol when conducting an execution’ and that evidence of failure to adhere to past execution procedures could cast doubt on Arizona’s ability or willingness to do so in the future,” Wake wrote.

The state has argued in court and in legal documents that the deviations are not significant and don’t present any risk of pain to the prisoner.

The most recent lawsuit was filed on behalf of Thomas West, who was executed July 19, and five other condemned prisoners.

One of the more explosive accusations is that the Department of Corrections experimented on Eric King, 47, who was executed March 29.

The Federal Public Defenders Office, which defends death-row prisoners in federal court, obtained King’s autopsy report July 15, which indicated high levels of the drug pentobarbital. However, the state hadn’t been using pentobarbital in executions yet, but Corrections officials explained the phenomenon.

The Department of Corrections had used sodium thiopental as the first of a three-drug mixture for lethal injection until the eve of the May 25 execution of Donald Beaty. The department made the switch to pentobarbital after the federal government prohibited the state from using sodium thiopental based on legal questions surrounding the importation of the drug.

The state has argued in court and court documents that it is not unusual to find pentobarbital in an executed prisoner’s system because metabolism changes thiopental into pentobarbital, both are barbiturates.

Dale Baich, who heads the Capital Habeas Unit of the Federal Public Defenders Office, said the level in King’s system was “off the chart than in previous executions” and thiopental stops metabolizing when the liver stops working.

Prisoners in the Dickens lawsuit, filed in 2007, agreed that using pentobarbital by itself in an execution is preferable to the

three-drug method using thiopental.

But they are alleging in West’s case that simply switching the drugs in the three-drug method has the potential for causing severe pain. The first drug is used to anesthetize the prisoner before injecting him with a drug to paralyze and one to stop the heart.

Baich said there are medical questions about how effectively pentobarbital anesthetizes people and there are two recent executions in other states in which the drug was used and the prisoners seemed to suffer pain.

Wake wrote that the prisoners have made a plausible claim their Eighth Amendment rights of no cruel or unusual punishment could be violated by switching the drugs.

West’s lawsuit is an extension of sorts of the Dickens lawsuit filed in 2007 that also challenged the constitutionality of the state’s lethal injection policies.

Wake ruled in 2009 on the side of the state, but the Department of Corrections also agreed to make changes to the policy.

One of the changes was to stop using the femoral vein, located near the groin, as the primary place to inject a lethal three-drug mixture, and instead run the line to the arms, hands or feet.

But the prisoners in the recent lawsuit allege the Department of Corrections used the femoral vein in the last five executions.

Barrett Marson, a spokesman for the Department of Corrections, said the femoral vein was used as the primary IV in three of the last five executions and utilized in two of them along with the arms.

Executions in the state had come to a near standstill during the past decade with only one between Nov. 8, 2000, and Oct. 26, 2010.

The Department of Corrections, under the leadership of then-Director Dora Schriro, re-wrote the policies in the months leading up to the May 22, 2007, execution of Robert Comer, according to findings by Wake in the Dickens case.

Schriro, with the advice of a doctor who had previously been banned from working on executions in other states, made the change to the femoral vein.

The present director of the Department of Corrections, Charles Ryan, revised the policy again in 2009 to use the peripheral veins — or the arms, hands or feet — as the primary places to inject.

Ryan wrote in a 2009 affidavit that while he believed the femoral vein injection doesn’t place the prisoner in substantial risk or pain, most states used the peripheral veins and the U.S. Supreme Court had recently upheld the practice.

Baich said placing the line into the femoral vein is a relatively minor surgical procedure and requires a physician, but is risky and potentially fatal.

Assistant Attorney General Kent Cattani argued in court filings that using the femoral vein is not a deviation from policy because policy allows for the director in consultation with the medical team leader for the execution to decide on using the femoral vein.

“The fact that the medical team leader has recommended femoral access to carry out recent executions is not inconsistent with policy,” Cattani wrote.

Marson said each prisoner’s veins were assessed and the medical team leader made a determination on the best place to place an IV.

Prisoners in West’s case also allege the department failed to adequately train executioners on the use of pentobarbital and failed to leave IV insertions uncovered as required by policy.

Wake said he wants the matter closed by Dec. 16. Baich said there likely won’t be any executions until late in the year or early next year.

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