Baze v. Rees
Q & A
The adoption of lethal injection protocols throughout the United States can best be described as a cascade of misinformation whereby authorities in one jurisdiction copied, sometimes verbatim, the procedures in another. Beginning in Oklahoma, the protocols were adopted without independent research or consultation with qualified experts. For more information about the development of the protocols, see Brief for Petitioners, at 4-7; Fordham Amicus Brief, at 3, 15-16; Amicus Brief for Michael Morales, Michael Taylor, et al., at 13-20.
Dr. A. Jay Chapman, then Oklahoma’s chief medical examiner, assisted two state legislators in drafting Oklahoma’s lethal injection procedure. At the time he commented that he “‘was an expert in dead bodies but not an expert in getting them that way.’” Fordham Amicus Brief, at 18 (quoting Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled The Death Penalty, 76 Fordham L. Rev. 49, 65-66 (2007)). The first lethal injection statute, enacted in Oklahoma in 1977, “was purposefully vague.” Fordham Amicus Brief, at 22. The legislature delegated responsibility for lethal injection executions to the department of corrections. “This ad hoc process required no specific implementation procedures, no record-keeping, no reporting, no studies, no vetting of experts—in other words, no oversight of any kind.” Id. Dr. Chapman’s original protocol called for only two drugs – a sedative and a paralytic. Several years later, potassium chloride was added as the third chemical. Id.
Between 1977 and 2002, thirty-seven states switched to lethal injection, adopting Oklahoma’s three-drug combination, “without conducting any independent studies or research. As the [Baze] trial court found: “[T]here is scant evidence that ensuing States’ adoption of lethal injection was supported by any additional medical or scientific studies . . . [Rather] the various States simply fell in line relying solely on Oklahoma’s protocol.’” Fordham Amicus Brief, at 24, quoting Brief for Petitioners, at 7; Joint Appendix, at 755-56.
Missouri
After a botched execution in the mid-1990’s, the Missouri Department of Corrections gave responsibility for the development of a new protocol to a surgeon identified in court documents as “Dr. Doe” See Amicus Brief for Michael Morales, Michael Taylor, et al., at 13. The Director of the Missouri Department of Corrections instructed Dr. Doe to “keep [the Director] looking good…so [the Director] does not have to go out and explain why we made a mistake or we may have a problem or why it didn’t go smoothly.” Tr. of Test. of John Doe No.1 at 62, Taylor v. Crawford, No. 05-4173 (W.D. Mo. June 5, 2006).Although Dr. Doe was given absolute authority to develop a written protocol, he never did so. Id. at 70. Dr. Doe supervised 54 executions in Missouri. See Jeremy Kohler, Behind the Mask of the Execution Doctor, St. Louis Post-Dispatch, July 30, 2006, at A1.
By his own admission, Dr. Doe is dyslexic, which he testified explains “inconsistencies in what I call drugs.” Tr. of Testimony of John Doe 1 at 25, Taylor v. Crawford, No. 05-4173 (W.D. Mo. June 5, 2006). Dr. Doe has been sued for malpractice more than 20 times and in 2003, the State Board of Healing Arts publicly reprimanded him for concealing malpractice suits from a hospital where he was a treating physician. See Kohler, Behind the Mask, at A1.
Federal Government
Notwithstanding Dr. Doe’s admissions and history of reprimands, public records in the Federal lethal injection challenge reveal that the Federal Government retained Dr. Doe to develop its protocols, place and monitor intravenous lines, and monitor levels of consciousness. Plaintiffs’ Opposition to Defendant’s Motion for Judgment on the Pleadings and Motion to Lift the Stay of the Plaintiffs’ Executions, at 38-40, Roane v. Gonzalez, No. 05-2337 (D.D.C. July 10, 2007).
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