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Death-row inmates sue state over execution procedures

Arizona needed an executioner in 2010 when several death-row inmates were at the end of their appeals. Getting one was simply a matter of a single phone call.

Department of Corrections Director Charles Ryan called the doctor at the clinic where he worked and he agreed to be paid $6,000 a day to mix the deadly batch of chemicals for the lethal injections and other medical tasks related to the executions.

Ryan and the doctor had never met, but his name was on file with the department since he participated in the May 2007 execution of Robert Comer as an observer. On Oct. 24, 2010, Ryan picked up the doctor in the parking lot of an East Valley hospital and the two drove to the state prison at Florence to begin preparations for the execution of Jeffrey Landrigan that would happen two days later.

Attorneys for a group of death-row inmates who went to trial this week in a federal lawsuit say the department didn’t interview or check the background and licensing of the doctor or a medical assistant, neither of whom were qualified under the department’s protocol or procedures for execution. The doctor and assistant worked on five executions together from October 2010 to July 2011, and their participation is just one example of the department’s disregard for its procedures, which puts condemned prisoners at risk for pain and suffering during executions, attorneys allege.

The executioner and his assistant’s identities are being kept secret by the state.

The trial in Judge Neil V. Wake’s courtroom in U.S. District Court ended Dec. 6, and he is expected to issue a decision by Dec. 16 on whether the department is violating the rights of death-row inmates by not following the procedures that were agreed upon in 2009 by inmates, the department and the court in a separate lawsuit.

The Arizona Supreme Court put on hold two death warrants for Robert Moorman and Robert Towery until after the trial. Moorman was convicted of dismembering his mother and Towery was convicted of a murder in which he injected battery acid into a friend before strangling him.

The trial in Wake’s courtroom stems from a previous lawsuit that ended in 2009. The inmates back then also challenged the constitutionality of the state’s execution procedures. In that case, Wake found in the state’s favor, but all of the parties agreed to make changes that were supposed to ensure executions don’t inflict pain and suffering.

Wake said in 2009 that he couldn’t fathom the department would ever disregard the procedures, a statement attorneys reminded him of in opening statements of the trial on Dec. 5.

Lawyers with the Federal Public Defender’s Office, Dale Baich and Cary Sandman, said in opening statements that the safeguards in the procedures that came with the endorsement of the court were cast off by the department during a spate of five executions beginning with Landrigan’s.

Their case focuses on two points: deviation from the procedures and the importation of illegal drugs for use in executions.

Sandman said the procedures require that the medical team consist of volunteers who normally administer intravenous lines as part of their regular job.

The medical assistant whose task during executions was to set IV lines in the inmate’s arms hadn’t done that in 15 years, Sandman said.

And the medical doctor, who set the IV line into all five condemned inmates’ femoral arteries, didn’t do that procedure as part of his regular job.

Setting the line to the femoral artery, located in the groin, is an invasive procedure.

According to the deposition of the doctor, a government employee who works in a clinic said he never places femoral lines in his regular job and only placed them in patients during a short stint in an emergency room in 2010.

An emergency-room physician, Dr. Eric Katz, testified that the medical doctor didn’t know what he was doing when it came to setting the femoral line, using the drugs or assessing whether a person is sedated.

The execution procedures also require that the lethal injection go into the arms and only through the femoral artery after attempts have been made to insert a line in the arms, wrist and ankles first. Four of the executions performed by the state’s doctor were through the femoral artery and in the last one, the inmate was injected in the arms, but a line was still hooked to his groin.

“This was a promise made and a promise ignored,” Sandman said.

The doctor testified in deposition that he placed the femoral line because that’s what he preferred.

Because the identities of the doctor and the medical assistant are being kept secret, they testified in a locked courtroom Dec. 5.

The doctor testified that he was paid in cash, although a state attorney wouldn’t allow him to say how the transaction took place. In all, he made $102,000 for the five executions.

He announced at the end of his deposition that he wasn’t planning to do anymore executions because of the lawsuit.

“Because this process is very unpleasant, and it’s not really anything that I care to go through again,” the doctor said.

Baich said the department also took “deliberate and calculated” steps to illegally obtain drugs used in executions.

For instance, Baich said the department got the drugs in three separate shipments of less than $1,500 from foreign sources to avoid a tougher scrutiny by U.S. customs officials.

Wake said it appeared to him to be like “structuring,” a technique in which criminals make bank transactions of slightly less than the amount that banks are required to report to federal authorities.

Baich said Ryan filed several affidavits swearing to the Arizona Supreme Court that the drugs were legally obtained, when he knew they weren’t. The department got sodium thiopental, the first drug used in the series of three given to the prisoner, from a pharmacy in the United Kingdom when there was a shortage in the U.S.

On May 24, the Department of Justice told the Department of Corrections it couldn’t use the drug because it was imported in violation of the Controlled Substances Act.

Assistant Attorney General Jeffrey Zick said in opening statements that the department doesn’t contest that there were deviations from the procedures, sometimes intentionally and sometimes mistakenly, but no inmate suffered substantial pain from it.

And when it came to importing the sodium thiopental, there were hundreds of emails and lots of documentation showing what was being done.

“The department was in fact in transparent,” Zick said.

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