September 23, 2020 • 29 mins
Phil and his team enlist the expertise of two doctors studying the effects of lethal injection on inmates to dig into the definition of cruel and unusual punishment.
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Episode Transcript
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Speaker 1 (00:03):
If you will place your left hand on the Bible
and raise your right hand, and please repeat after me,
and I do solemnly swear, then titled action find the
defendant guilty of the time. It makes no sense, it
doesn't fit. If it doesn't fit, you must a quit.
We all took the same of office. We're all bound
(00:23):
by that common commitment to support and defend the Constitution,
to bear true faith and allegiance to the same that
you faithfully discharge the duties of our office. Do you
solemnly swear or affirm that the testimony you are about
to give will be the truth, the whole truth, and
nothing but the truth. From Tenderfoot TV and I Heart Radio,
this is sworn. I'm your host, Philip Holloway. Let me
(00:51):
just explain that there is this thing that we call
lethal injection. Lethal injection is a method of executing prisoners
here in America. It basically involves the collecting and injecting
of certain kinds of chemicals through an intravenous that would
circulate in the body of a prisoner and would cause
(01:13):
them to die. And lethal injection uses things that in
my hand would be a medicine, but in the hand
of the state it becomes a poison. That was Dr Zivitt,
(01:33):
an anastasiologist here in Atlanta, Georgia. We sat down with
doctor Zivitt and his colleague, Dr Edgar to get their
medical opinions on lethal injection, how it works, and whether
or not in their professional medical opinions it falls under
the category of cruel and unusual punishment. My name is
(01:53):
is Joel's Zivitt. I'm a physician and I'm on the
faculty at every university. Traditionally, the mainstay of execution involved
a class of a drug called a barbiturate, of which
penta barbital is an example. It's an old drug. It
used to be an old sleeping pill. Pena barbital is
(02:15):
uncommonly used in hospitals, but periodically it's used. Certain states
have had difficulty obtaining pender barbital. Pender barbital is in
short supply, and also manufacturers vendors don't want it to
necessarily get into the hands of states that are going
to be using it for execution. Some states have sought
(02:35):
alternatives dependent barbital, and one of the alternatives dependent barbital
is the use of a drug called medazzy lamb, and
medaz lam is something called a benzo diazepine. You may
have heard of drugs like medas lam and the class
of medazzy lamb, for example, a drug called valium. It's
(02:56):
actually hard to kill people with medazzy lamb. It's not
made for that. It's made not to kill people. And again,
to be clear to none of this is the practice
of medicine, nor does medicine have any comment or assistance
in any of this. This is the state collecting, gathering
on its own, making investigations and making claims. States who
(03:22):
are needing to find chemicals for which to produce death
use medaz lam as a part of a three drug
or two drug combination to cause death. Pena barbatrol is used,
actually as the soul agent. Pena barbatol is used in
(03:43):
a large quantity here in Georgia. That's the that's the
chemical that's used, and by itself it can cause death.
Medazzy lamb by itself does not easily cause death, and
so it's mixed with other chemicals. You usually a combination
of something called potassium chloride, which is intended to stop
(04:05):
the heart, and another drug called a paralytic paralyzing drug,
and what that drug does is when it's given, a
person will be motionless, they will not be able to move,
not be able to breathe, but inside they'll be very
much awake and could experience any kinds of feeling. When
you're given a paralyzing drug. If you're not given the antidote,
(04:27):
or if you're left in the presence of this drug,
you will die of asphyxiation. And there is some concern
that execution using medazzy lamb and paralyzing drug is really
death by asphyxiation. I'm trying to make a case that
(04:48):
pina barbital is a cruel form of death, and the
court is saying, show us the evidence. Maybe um two
years ago now, I think I was given a aisle
of autopsies, autopsies performed on executed prisoners here in Georgia.
When I look through the file, it struck me that
(05:10):
there was something unusual. It seemed to me that there
was some organ damage, specifically to the lungs, to the heart,
to the liver. None of this I had expected, and
so I began to do some investigations of what these
organ system failures might suggest, what we find in majority
of these these inmates or these prisoners, rather, are these
(05:32):
fluid filled in the lungs, And if you could imagine,
it's more akin to what you might find in the
circumstances when someone drowns to death. It also looks interesting
similar to when someone overdoses on heroin, and you could
ask yourself is that cruel? By way of legal background,
(05:54):
the eighth the Moment to the Constitution, provides protection against
cruel and unusual punishment at the hands of the government
in the context of criminal sentencing. When the founding fathers
were drafting the Constitution, they did not have to look
back very far at all to find instances of torture
and other criminal punishments that were certainly cruel, even if
not so unusual for their time. Thus, the eighth Amendment
(06:19):
is a direct protection against the kinds of punishment the
King and Crown used to dole out once upon a time.
The problem is, as capital punishment and prison conditions have
changed and evolved over time, the vague meaning of the
eighth Amendment is consistently challenged, as courts have had to
decide just what is and is not cruel and unusual punishment.
(06:42):
Like so many things in the Constitution, it is a
constantly changing legal standard that is open to debate and
interpretation as societal norms evolve. It should come as no
surprise that lethal injection and capital punishment is the major
leagues of criminal litigation when it comes to the rights
of the accused under the Eighth Amendment. This is Dr
(07:08):
Mark Edgar. He is a pathologist and associate professor of
Pathology and laboratory Science. So I spend my day mostly
looking at specimens removed from the operating room from patients
who are having surgery for cancer or a variety of
other non cancerous things. I teach residents here. I also
(07:30):
do autopsies. When there are autopsies to be done, I
teach medical students, and I sometimes interpret some genetic tests.
That's basically what I do. My involvement in the justice
system is extracurricular. I get permission from the Dean's office
(07:54):
to consult with the Federal Defender's office. I have compiled
this group of autopsy reports that show pulmonary edema in
the majority of inmates that have been executed using lethal
injection over the past I don't know five years, so
Pulmonary edema is the movement of fluid into the air
(08:19):
spaces of the law when you have something like heart failure.
For instance, blood backs up behind the heart and produces
increased pressure in the tiny capillaries of the lung and
that oozes out into the air spaces. The drugs that
are administered for lethal injection, apart from the potassium chloride,
(08:40):
would not be expected to affect the heart, so it
was surprising to me to find in these autopsies that
there was pulmonary aedema. Inmates being executed by lethal injection
have experienced a variety of symptoms and signs indicating respiratory
distress during the administration of the first drug, a three
(09:00):
drug cocktail involving medazz A lamp. I wanted to see
this firsthand. The word autopsy means to see for oneself,
and so this was an opportunity for me to see
for myself what was really going on in the lungs
of these inmates who are being executed with these drugs.
I saw firsthand exactly what was described. The lungs were heavy,
(09:24):
much heavier than normal, maybe twice the normal weight. They
were filled with fluids, so when you cut into them,
fluid oozed out. When you cut into a normal lung,
there's just air there. There was bloody froth in the
large airways. These are not findings that I expect to
see in someone who has just been given something to
(09:45):
go to sleep, something to stop the breathing, and then
something to quickly stop their heart. This again fit into
our concept that medas lamb is doing something to cause pulmonaridema.
Medazz in order to be solubilized, has to be placed
in an acid solution, so it has a pH of three.
(10:07):
The normal body phs seven point four. It seems very
likely that that acid is essentially burning the tiny blood
vessels and the lungs, and that's allowing fluid to escape.
We also have looked at pentobarbital executions done here in Georgia.
(10:27):
Anti Barbatall, on the other hand, is highly alkaline, so
it has a pH of something like twelve or something
like that. It too results in pulmonary edema, the same
kind of finding, not as frequent, but the same kind
of finding. I would say that what I've learned from
(10:51):
this experience is that the current lethal injection protocol exposes
inmates to a significant risk of severe suffering. I'm not
someone who has expertise in anthesiology or pain management, but
I think that has to be changed. There has to
(11:13):
be some way to render inmates who are being executed
by lethal injection not just unconscious but completely insensate. The
current protocol calls for the medas a lamb to be
administered and then for someone to come in and do
(11:34):
what's called a consciousness check. So they poke you, they
yell your name, they touch your eyes, and if you
don't respond to that, you're considered to be unconscious enough
to have the other drugs administered. The problem is that
none of those stimuli are noxious or painful enough to
(11:55):
rouse someone into awareness the way that Paul manary adema is,
or the way that the second and third drugs aren't.
Medass Lam is not an anesthetic. It's not approved for
use as an anesthetic. It's approved for sedation and colonoscopies
(12:17):
and things like that, but it's not it's not used
to bring about general anesthesia, according to my anesthesiologist colleagues.
So that's the problem is that we have every reason
to suspect that inmates executed using the three drug medas
lam procedure are aware of significant pain. So this the
(12:44):
second drug is a paralytic. It's a neuromuscular blocking agent,
and we know from cases of awareness during anesthesia what
those patients experience. There are times when a patient is
not given sufficient anesthetic drug and they wake up during surgery.
(13:04):
When they do so under the influence of a neuromuscular
blocking agent, they describe often sensations of terror and an
inability to move, an inability to express their their pain,
and a sensation of being buried. Alive. Those patients are
not suffocating because their airway is taken care of by
(13:26):
the anesthesiologist, but if you didn't have an open airway,
you would sense suffocation. We know that if you give
potassium chloride, which is the drug most often used, if
you give that in any significant concentration to a live patient,
they experienced severe burning pain. So that drug has to
(13:48):
be diluted so that it doesn't cause extreme pain when
it's given by mistake in high concentrations. We know exactly
what it does, and it's extremely painful. The court and
(14:18):
the law of the land requires that punishment be not cruel.
That's the Eighth Amendment that specifically proscribes cruelty and punishment.
Cruel is a concept that will naturally evolve with the
maturation and evolution of civil society. With respect to punishment,
(14:40):
we used to think it was okay to say drawn
quarter people as part of their punishment, and now we
think that that feels cruel to us. This is Dr
Joel Zibert. Lethal injection was very effective at creating the
outward impression of a death that would not be cruel
(15:04):
because it is so bloodless, whereas death by firing squad
or death by electrocution, or death by hanging or death
by gas chamber was all very much a spectacle to observe.
The court is interested in the experience of the person
who is executed with respect to cruelty, but that's of
(15:25):
course the person that one cannot ask, because once dead,
there could be no opinion. And so it turns out
that what cruelty evaluation turns on is the experience of
the observer. The individuals who have made the observation will
report on what they've seen. By design, lethal injection doesn't
(15:48):
show much. I can't know what the experiences because the
only person that can really know is the person that
has died. I have actually witnessed the pen of arbit execution.
I was asked by the prisoner as part of his
legal defense. What I saw actually was quite striking on
(16:10):
a number of places. First of all, when you go
to the prison to be a witness of an execution,
you are a prisoner yourself. You really have to go
where you're told. Hours go by, and I'm invited now
to the execution house. It's now probably eleven thirty at night.
(16:33):
We walk into a room which is the viewing area,
which is set up a bit like church pews. And
as part of being a witness to an execution here
in Georgia, I'm not allowed to have a pen and paper, watch, phone, nothing.
We're looking through a glass now, and there's the prisoner.
(16:56):
His name is Marcus Wellens. He's lying on a gurney.
You can't hear the sound through the glass. I can
see a couple of different intravenous puncture sites that are taped,
and one where there is an intervene is attached. The
tubing is attached and it snakes around and through a
hole in the back wall of the execution room. I
(17:18):
can't see the people who are going to be injecting
the medication or the chemical. Again. See, it's hard not
to use these kinds of words because of the way
this is designed. Even I find it difficult to be
careful about the language within the room. Here. There's now
Marcus Wellens lying on a gurney covered in a sheet,
(17:38):
and there are two Corrections officers on either side of him.
The warden is in the room. The sound comes on,
I assume, and the warden asks Marcus Wellens if he
has anything to say, and I can't even recall what
he says. He says something. The warden leaves, and I'm
assuming now that the execution has begun. There's nothing that's
(18:00):
as one to three go or something. It begins. Now,
there's nothing to see, and so I start. Because I
have no watch, I have no way of making any
record of this. I started my head to count silently
to myself the seconds as I can imagine them, to
try to figure if I can get some sequence of
the time here of what's going to take place. Maybe
(18:23):
thirty seconds into this, one of the Corrections officers collapses
forward onto the legs of Marcus Wellens and the room
fills with people. Suddenly rushing in, and the corrections officer
is dragged out and replaced by another corrections officer. The
(18:45):
execution proceeds maybe ten minutes later. Two what I believe,
our physicians walk into the room. One is wearing a
lab coat. I don't know what the lab coat is for.
And the physicians make a show of examining Marcus Wellens
listened with the stethoscope and see we're now told that
(19:08):
Marcus Wellens has died and the curtains closed. When I
consider that several things. First of all, I couldn't see much,
and I'm an expert in looking at these sorts of things,
and I could not see much. There was not much movement.
I know that the prisoner is strapped down by straps
(19:28):
that go from top to bottom, including his arms, including
his fingers. Actually, his fingers are taped, so even if
he was wanting to indicate something, there would be no
way for him to do it. The doctor with a
lab coat. I found that as a physician quite disturbing,
because when the corrections officer collapsed, there was a patient there.
(19:55):
Whether or not a prisoner is a patient is a
matter of opinion. I would say a prisoners not a patient,
and so a doctor has no mandate to begin with.
But that corrections officer collapse for some medical reason. And
I did not see the doctor Russian at that time,
So what was the doctor doing there if not to
help someone who became ill. As a physician in the
(20:22):
state of Georgia, I have a license to practice medicine.
The way that I get a license is that the
state legislature uses something called a Medical Practice Act, and
the Medical Practice Act, a medical board is put together
and the state says, we're not doctors here. You are.
You regulate yourself. But remember that the medical board, of course,
(20:47):
is subservient to the state. It's a creation of the state.
So now the state wants to use physicians to be
involved in executions, and the medical board will say, well,
we don't want the physicians to be involved in executions
because we think that's a violation of ethical physician conduct.
(21:09):
State can use physicians in any way that the state desires,
even if it is adverse to what the medical board
may want, and can further protect the identity of these
physicians through secrecy. So you, as a member of the public,
might want to know whether or not your doctor participates
(21:30):
in execution. You would have no way of knowing individuals
that the state has decided need they need to use
the things that doctors know. The state can do that.
In a sense, the chief physician, if you will, of
the State of Georgia is the governor, not the medical board.
(21:55):
With respect to the rightness or wrongs of capital punishment.
I'm agnostic that my view here concerns this method of
execution and methods of execution that I think impact on
the way the state uses medicine and science for its purposes.
I would request that the state free up its relationship
(22:20):
or end its relationship with science and medicine. It can
execute individuals in another way, and whether or not states
choose to carry out executions by another method, again, that's
the purview of the state. That's not me. But my
position here is that I'm against lethal injection in all
of its forms. I think it's clearly cruel, and I
(22:40):
asked the state to again to end its relationship with
science and medicine and stop usurping or impersonating science and
medicine as if to suggest that there's some level of
safe oversight or some kind of accreditation or some some
approval of this kind of technique of execution where there
(23:01):
is not. The debate on the death penalty is extremely complicated,
(23:23):
to say the least. At its core, it comes down
to a couple of points. The first point, from my perspective,
hinges on the idea that defense attorneys are charged to
act as zealous advocates for their clients. That means leaving
no stone unturned. We're looking for any legal or factual
defense available to help their client reach a favorable result
(23:45):
in a capital case. Mounting a constitutional challenge to the
death penalty is one such legal defense. In order to
attempt to avoid the death penalty, defense counsel has an
ethical obligation to explore and pursue an Eighth Amendment cruel
and unusual challenge. The other point really goes into what
(24:06):
the purpose of a prison is, and that varies from
state to state and city to city. The three main
purposes of prisons are punishment, rehabilitation, and deterrence. Both the
death penalty and life without parole effectively rule out the
idea of rehabilitation because that person, one way or the
(24:27):
other will be spending the rest of their life in prison.
There's some debate about whether life in prison or the
death penalty is the more punitive of the two, and
I think personally that that varies from one person to
the next. Some defendants have actually expressed a preference for
the death penalty once they see what life in prison
(24:49):
is all about, while others fight hard to avoid the
death penalty at trial. But the idea of punishment isn't
completely black and white. What this then comes down to
is deterrence. In other words, does the death penalty stop
people from committing crimes? On the one hand, you have
absolute certainty that the person who was convicted for the
(25:12):
crime will not commit that crime again once they have
been killed by the state. But by looking at states
like Georgia or even Texas that happens to have an
express lane to the death penalty, we've seen no proof
that it makes other people in society think twice about
committing other serious crimes. In my opinion, as a practical matter,
(25:34):
we need to rethink the death penalty and think harder
about what is actually preventing people from committing these crimes
in the first place. It is also impossible to overlook
the known fact that people are wrongfully convicted. This season
on this show, we spoke with people who were convicted wrongfully,
(25:55):
in prisoned wrongfully for crimes that they did not commit.
As it is, there is no way to get them
their lost time back. But if they had been executed,
the injustice would have been truly irreversible. According to the
Death Penalty Information Center, there have been one hundred sixty
six individuals exonerated from death row in the United States
(26:18):
since nineteen seventy three. That's one and sixty six people
who were sentenced to death for crimes that they did
not commit. With the death penalty comes finality, there is
no more room to right a wrongful conviction once someone
has been executed. As for me, if I ever find
(26:41):
myself looking down the barrel of the choice between a
life sentence without parole or the death penalty, I think
I would probably choose life in prison. I don't think
I could sleep at night knowing that the date of
my assigned death was right around the corner. But I
think other people might think differently, that a life in
(27:02):
prison is really no life at all. The debate rages on.
Sworn is a production of Tenderfoot TV and I Heart Radio.
Our lead producer is Christina Dana Executive producers are Payne
Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and
(27:23):
Alex Williams for I Heart Radio, and myself Philip Holloway.
Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie
Albright and Hallie Beat. All original music and sound designed
by Makeup and Vanity Set. Our theme song is Blood
in the Water by Layup. Show art and design is
(27:43):
by Trevor Eisler, editing by Christina Dana, mixing and mastering
by Mike Rooney and Cooper Skinner. Special thanks to the
team at I Heart Radio from u t a or
In Rosenbaund and Grace Royer, Bryan Nord and Matthew Papa
from the Nord Group, back Media and Marketing, and Station sixteen.
(28:06):
I'd also like to extend a very personal and special
thanks to all of our contributors and guests who have
helped to make all of these episodes possible. You can
find Sworn on Facebook, Twitter, and Instagram at Sworn podcast
and follow me your host, Philip Halloway on Twitter at
phil Holloway e s Q. Our website is sworn podcast
(28:30):
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tenderfoot dot tv or leave us a voicemail at four
zero four for one zero zero four four one. As always,
(28:53):
thanks for listening
If you will place your left hand on the Bible
and raise your right hand, and please repeat after me,
and I do solemnly swear, then titled action find the
defendant guilty of the time. It makes no sense, it
doesn't fit. If it doesn't fit, you must a quit.
We all took the same of office. We're all bound
(00:23):
by that common commitment to support and defend the Constitution,
to bear true faith and allegiance to the same that
you faithfully discharge the duties of our office. Do you
solemnly swear or affirm that the testimony you are about
to give will be the truth, the whole truth, and
nothing but the truth. From Tenderfoot TV and I Heart Radio,
this is sworn. I'm your host, Philip Holloway. Let me
(00:51):
just explain that there is this thing that we call
lethal injection. Lethal injection is a method of executing prisoners
here in America. It basically involves the collecting and injecting
of certain kinds of chemicals through an intravenous that would
circulate in the body of a prisoner and would cause
(01:13):
them to die. And lethal injection uses things that in
my hand would be a medicine, but in the hand
of the state it becomes a poison. That was Dr Zivitt,
(01:33):
an anastasiologist here in Atlanta, Georgia. We sat down with
doctor Zivitt and his colleague, Dr Edgar to get their
medical opinions on lethal injection, how it works, and whether
or not in their professional medical opinions it falls under
the category of cruel and unusual punishment. My name is
(01:53):
is Joel's Zivitt. I'm a physician and I'm on the
faculty at every university. Traditionally, the mainstay of execution involved
a class of a drug called a barbiturate, of which
penta barbital is an example. It's an old drug. It
used to be an old sleeping pill. Pena barbital is
(02:15):
uncommonly used in hospitals, but periodically it's used. Certain states
have had difficulty obtaining pender barbital. Pender barbital is in
short supply, and also manufacturers vendors don't want it to
necessarily get into the hands of states that are going
to be using it for execution. Some states have sought
(02:35):
alternatives dependent barbital, and one of the alternatives dependent barbital
is the use of a drug called medazzy lamb, and
medaz lam is something called a benzo diazepine. You may
have heard of drugs like medas lam and the class
of medazzy lamb, for example, a drug called valium. It's
(02:56):
actually hard to kill people with medazzy lamb. It's not
made for that. It's made not to kill people. And again,
to be clear to none of this is the practice
of medicine, nor does medicine have any comment or assistance
in any of this. This is the state collecting, gathering
on its own, making investigations and making claims. States who
(03:22):
are needing to find chemicals for which to produce death
use medaz lam as a part of a three drug
or two drug combination to cause death. Pena barbatrol is used,
actually as the soul agent. Pena barbatol is used in
(03:43):
a large quantity here in Georgia. That's the that's the
chemical that's used, and by itself it can cause death.
Medazzy lamb by itself does not easily cause death, and
so it's mixed with other chemicals. You usually a combination
of something called potassium chloride, which is intended to stop
(04:05):
the heart, and another drug called a paralytic paralyzing drug,
and what that drug does is when it's given, a
person will be motionless, they will not be able to move,
not be able to breathe, but inside they'll be very
much awake and could experience any kinds of feeling. When
you're given a paralyzing drug. If you're not given the antidote,
(04:27):
or if you're left in the presence of this drug,
you will die of asphyxiation. And there is some concern
that execution using medazzy lamb and paralyzing drug is really
death by asphyxiation. I'm trying to make a case that
(04:48):
pina barbital is a cruel form of death, and the
court is saying, show us the evidence. Maybe um two
years ago now, I think I was given a aisle
of autopsies, autopsies performed on executed prisoners here in Georgia.
When I look through the file, it struck me that
(05:10):
there was something unusual. It seemed to me that there
was some organ damage, specifically to the lungs, to the heart,
to the liver. None of this I had expected, and
so I began to do some investigations of what these
organ system failures might suggest, what we find in majority
of these these inmates or these prisoners, rather, are these
(05:32):
fluid filled in the lungs, And if you could imagine,
it's more akin to what you might find in the
circumstances when someone drowns to death. It also looks interesting
similar to when someone overdoses on heroin, and you could
ask yourself is that cruel? By way of legal background,
(05:54):
the eighth the Moment to the Constitution, provides protection against
cruel and unusual punishment at the hands of the government
in the context of criminal sentencing. When the founding fathers
were drafting the Constitution, they did not have to look
back very far at all to find instances of torture
and other criminal punishments that were certainly cruel, even if
not so unusual for their time. Thus, the eighth Amendment
(06:19):
is a direct protection against the kinds of punishment the
King and Crown used to dole out once upon a time.
The problem is, as capital punishment and prison conditions have
changed and evolved over time, the vague meaning of the
eighth Amendment is consistently challenged, as courts have had to
decide just what is and is not cruel and unusual punishment.
(06:42):
Like so many things in the Constitution, it is a
constantly changing legal standard that is open to debate and
interpretation as societal norms evolve. It should come as no
surprise that lethal injection and capital punishment is the major
leagues of criminal litigation when it comes to the rights
of the accused under the Eighth Amendment. This is Dr
(07:08):
Mark Edgar. He is a pathologist and associate professor of
Pathology and laboratory Science. So I spend my day mostly
looking at specimens removed from the operating room from patients
who are having surgery for cancer or a variety of
other non cancerous things. I teach residents here. I also
(07:30):
do autopsies. When there are autopsies to be done, I
teach medical students, and I sometimes interpret some genetic tests.
That's basically what I do. My involvement in the justice
system is extracurricular. I get permission from the Dean's office
(07:54):
to consult with the Federal Defender's office. I have compiled
this group of autopsy reports that show pulmonary edema in
the majority of inmates that have been executed using lethal
injection over the past I don't know five years, so
Pulmonary edema is the movement of fluid into the air
(08:19):
spaces of the law when you have something like heart failure.
For instance, blood backs up behind the heart and produces
increased pressure in the tiny capillaries of the lung and
that oozes out into the air spaces. The drugs that
are administered for lethal injection, apart from the potassium chloride,
(08:40):
would not be expected to affect the heart, so it
was surprising to me to find in these autopsies that
there was pulmonary aedema. Inmates being executed by lethal injection
have experienced a variety of symptoms and signs indicating respiratory
distress during the administration of the first drug, a three
(09:00):
drug cocktail involving medazz A lamp. I wanted to see
this firsthand. The word autopsy means to see for oneself,
and so this was an opportunity for me to see
for myself what was really going on in the lungs
of these inmates who are being executed with these drugs.
I saw firsthand exactly what was described. The lungs were heavy,
(09:24):
much heavier than normal, maybe twice the normal weight. They
were filled with fluids, so when you cut into them,
fluid oozed out. When you cut into a normal lung,
there's just air there. There was bloody froth in the
large airways. These are not findings that I expect to
see in someone who has just been given something to
(09:45):
go to sleep, something to stop the breathing, and then
something to quickly stop their heart. This again fit into
our concept that medas lamb is doing something to cause pulmonaridema.
Medazz in order to be solubilized, has to be placed
in an acid solution, so it has a pH of three.
(10:07):
The normal body phs seven point four. It seems very
likely that that acid is essentially burning the tiny blood
vessels and the lungs, and that's allowing fluid to escape.
We also have looked at pentobarbital executions done here in Georgia.
(10:27):
Anti Barbatall, on the other hand, is highly alkaline, so
it has a pH of something like twelve or something
like that. It too results in pulmonary edema, the same
kind of finding, not as frequent, but the same kind
of finding. I would say that what I've learned from
(10:51):
this experience is that the current lethal injection protocol exposes
inmates to a significant risk of severe suffering. I'm not
someone who has expertise in anthesiology or pain management, but
I think that has to be changed. There has to
(11:13):
be some way to render inmates who are being executed
by lethal injection not just unconscious but completely insensate. The
current protocol calls for the medas a lamb to be
administered and then for someone to come in and do
(11:34):
what's called a consciousness check. So they poke you, they
yell your name, they touch your eyes, and if you
don't respond to that, you're considered to be unconscious enough
to have the other drugs administered. The problem is that
none of those stimuli are noxious or painful enough to
(11:55):
rouse someone into awareness the way that Paul manary adema is,
or the way that the second and third drugs aren't.
Medass Lam is not an anesthetic. It's not approved for
use as an anesthetic. It's approved for sedation and colonoscopies
(12:17):
and things like that, but it's not it's not used
to bring about general anesthesia, according to my anesthesiologist colleagues.
So that's the problem is that we have every reason
to suspect that inmates executed using the three drug medas
lam procedure are aware of significant pain. So this the
(12:44):
second drug is a paralytic. It's a neuromuscular blocking agent,
and we know from cases of awareness during anesthesia what
those patients experience. There are times when a patient is
not given sufficient anesthetic drug and they wake up during surgery.
(13:04):
When they do so under the influence of a neuromuscular
blocking agent, they describe often sensations of terror and an
inability to move, an inability to express their their pain,
and a sensation of being buried. Alive. Those patients are
not suffocating because their airway is taken care of by
(13:26):
the anesthesiologist, but if you didn't have an open airway,
you would sense suffocation. We know that if you give
potassium chloride, which is the drug most often used, if
you give that in any significant concentration to a live patient,
they experienced severe burning pain. So that drug has to
(13:48):
be diluted so that it doesn't cause extreme pain when
it's given by mistake in high concentrations. We know exactly
what it does, and it's extremely painful. The court and
(14:18):
the law of the land requires that punishment be not cruel.
That's the Eighth Amendment that specifically proscribes cruelty and punishment.
Cruel is a concept that will naturally evolve with the
maturation and evolution of civil society. With respect to punishment,
(14:40):
we used to think it was okay to say drawn
quarter people as part of their punishment, and now we
think that that feels cruel to us. This is Dr
Joel Zibert. Lethal injection was very effective at creating the
outward impression of a death that would not be cruel
(15:04):
because it is so bloodless, whereas death by firing squad
or death by electrocution, or death by hanging or death
by gas chamber was all very much a spectacle to observe.
The court is interested in the experience of the person
who is executed with respect to cruelty, but that's of
(15:25):
course the person that one cannot ask, because once dead,
there could be no opinion. And so it turns out
that what cruelty evaluation turns on is the experience of
the observer. The individuals who have made the observation will
report on what they've seen. By design, lethal injection doesn't
(15:48):
show much. I can't know what the experiences because the
only person that can really know is the person that
has died. I have actually witnessed the pen of arbit execution.
I was asked by the prisoner as part of his
legal defense. What I saw actually was quite striking on
(16:10):
a number of places. First of all, when you go
to the prison to be a witness of an execution,
you are a prisoner yourself. You really have to go
where you're told. Hours go by, and I'm invited now
to the execution house. It's now probably eleven thirty at night.
(16:33):
We walk into a room which is the viewing area,
which is set up a bit like church pews. And
as part of being a witness to an execution here
in Georgia, I'm not allowed to have a pen and paper, watch, phone, nothing.
We're looking through a glass now, and there's the prisoner.
(16:56):
His name is Marcus Wellens. He's lying on a gurney.
You can't hear the sound through the glass. I can
see a couple of different intravenous puncture sites that are taped,
and one where there is an intervene is attached. The
tubing is attached and it snakes around and through a
hole in the back wall of the execution room. I
(17:18):
can't see the people who are going to be injecting
the medication or the chemical. Again. See, it's hard not
to use these kinds of words because of the way
this is designed. Even I find it difficult to be
careful about the language within the room. Here. There's now
Marcus Wellens lying on a gurney covered in a sheet,
(17:38):
and there are two Corrections officers on either side of him.
The warden is in the room. The sound comes on,
I assume, and the warden asks Marcus Wellens if he
has anything to say, and I can't even recall what
he says. He says something. The warden leaves, and I'm
assuming now that the execution has begun. There's nothing that's
(18:00):
as one to three go or something. It begins. Now,
there's nothing to see, and so I start. Because I
have no watch, I have no way of making any
record of this. I started my head to count silently
to myself the seconds as I can imagine them, to
try to figure if I can get some sequence of
the time here of what's going to take place. Maybe
(18:23):
thirty seconds into this, one of the Corrections officers collapses
forward onto the legs of Marcus Wellens and the room
fills with people. Suddenly rushing in, and the corrections officer
is dragged out and replaced by another corrections officer. The
(18:45):
execution proceeds maybe ten minutes later. Two what I believe,
our physicians walk into the room. One is wearing a
lab coat. I don't know what the lab coat is for.
And the physicians make a show of examining Marcus Wellens
listened with the stethoscope and see we're now told that
(19:08):
Marcus Wellens has died and the curtains closed. When I
consider that several things. First of all, I couldn't see much,
and I'm an expert in looking at these sorts of things,
and I could not see much. There was not much movement.
I know that the prisoner is strapped down by straps
(19:28):
that go from top to bottom, including his arms, including
his fingers. Actually, his fingers are taped, so even if
he was wanting to indicate something, there would be no
way for him to do it. The doctor with a
lab coat. I found that as a physician quite disturbing,
because when the corrections officer collapsed, there was a patient there.
(19:55):
Whether or not a prisoner is a patient is a
matter of opinion. I would say a prisoners not a patient,
and so a doctor has no mandate to begin with.
But that corrections officer collapse for some medical reason. And
I did not see the doctor Russian at that time,
So what was the doctor doing there if not to
help someone who became ill. As a physician in the
(20:22):
state of Georgia, I have a license to practice medicine.
The way that I get a license is that the
state legislature uses something called a Medical Practice Act, and
the Medical Practice Act, a medical board is put together
and the state says, we're not doctors here. You are.
You regulate yourself. But remember that the medical board, of course,
(20:47):
is subservient to the state. It's a creation of the state.
So now the state wants to use physicians to be
involved in executions, and the medical board will say, well,
we don't want the physicians to be involved in executions
because we think that's a violation of ethical physician conduct.
(21:09):
State can use physicians in any way that the state desires,
even if it is adverse to what the medical board
may want, and can further protect the identity of these
physicians through secrecy. So you, as a member of the public,
might want to know whether or not your doctor participates
(21:30):
in execution. You would have no way of knowing individuals
that the state has decided need they need to use
the things that doctors know. The state can do that.
In a sense, the chief physician, if you will, of
the State of Georgia is the governor, not the medical board.
(21:55):
With respect to the rightness or wrongs of capital punishment.
I'm agnostic that my view here concerns this method of
execution and methods of execution that I think impact on
the way the state uses medicine and science for its purposes.
I would request that the state free up its relationship
(22:20):
or end its relationship with science and medicine. It can
execute individuals in another way, and whether or not states
choose to carry out executions by another method, again, that's
the purview of the state. That's not me. But my
position here is that I'm against lethal injection in all
of its forms. I think it's clearly cruel, and I
(22:40):
asked the state to again to end its relationship with
science and medicine and stop usurping or impersonating science and
medicine as if to suggest that there's some level of
safe oversight or some kind of accreditation or some some
approval of this kind of technique of execution where there
(23:01):
is not. The debate on the death penalty is extremely complicated,
(23:23):
to say the least. At its core, it comes down
to a couple of points. The first point, from my perspective,
hinges on the idea that defense attorneys are charged to
act as zealous advocates for their clients. That means leaving
no stone unturned. We're looking for any legal or factual
defense available to help their client reach a favorable result
(23:45):
in a capital case. Mounting a constitutional challenge to the
death penalty is one such legal defense. In order to
attempt to avoid the death penalty, defense counsel has an
ethical obligation to explore and pursue an Eighth Amendment cruel
and unusual challenge. The other point really goes into what
(24:06):
the purpose of a prison is, and that varies from
state to state and city to city. The three main
purposes of prisons are punishment, rehabilitation, and deterrence. Both the
death penalty and life without parole effectively rule out the
idea of rehabilitation because that person, one way or the
(24:27):
other will be spending the rest of their life in prison.
There's some debate about whether life in prison or the
death penalty is the more punitive of the two, and
I think personally that that varies from one person to
the next. Some defendants have actually expressed a preference for
the death penalty once they see what life in prison
(24:49):
is all about, while others fight hard to avoid the
death penalty at trial. But the idea of punishment isn't
completely black and white. What this then comes down to
is deterrence. In other words, does the death penalty stop
people from committing crimes? On the one hand, you have
absolute certainty that the person who was convicted for the
(25:12):
crime will not commit that crime again once they have
been killed by the state. But by looking at states
like Georgia or even Texas that happens to have an
express lane to the death penalty, we've seen no proof
that it makes other people in society think twice about
committing other serious crimes. In my opinion, as a practical matter,
(25:34):
we need to rethink the death penalty and think harder
about what is actually preventing people from committing these crimes
in the first place. It is also impossible to overlook
the known fact that people are wrongfully convicted. This season
on this show, we spoke with people who were convicted wrongfully,
(25:55):
in prisoned wrongfully for crimes that they did not commit.
As it is, there is no way to get them
their lost time back. But if they had been executed,
the injustice would have been truly irreversible. According to the
Death Penalty Information Center, there have been one hundred sixty
six individuals exonerated from death row in the United States
(26:18):
since nineteen seventy three. That's one and sixty six people
who were sentenced to death for crimes that they did
not commit. With the death penalty comes finality, there is
no more room to right a wrongful conviction once someone
has been executed. As for me, if I ever find
(26:41):
myself looking down the barrel of the choice between a
life sentence without parole or the death penalty, I think
I would probably choose life in prison. I don't think
I could sleep at night knowing that the date of
my assigned death was right around the corner. But I
think other people might think differently, that a life in
(27:02):
prison is really no life at all. The debate rages on.
Sworn is a production of Tenderfoot TV and I Heart Radio.
Our lead producer is Christina Dana Executive producers are Payne
Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and
(27:23):
Alex Williams for I Heart Radio, and myself Philip Holloway.
Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie
Albright and Hallie Beat. All original music and sound designed
by Makeup and Vanity Set. Our theme song is Blood
in the Water by Layup. Show art and design is
(27:43):
by Trevor Eisler, editing by Christina Dana, mixing and mastering
by Mike Rooney and Cooper Skinner. Special thanks to the
team at I Heart Radio from u t a or
In Rosenbaund and Grace Royer, Bryan Nord and Matthew Papa
from the Nord Group, back Media and Marketing, and Station sixteen.
(28:06):
I'd also like to extend a very personal and special
thanks to all of our contributors and guests who have
helped to make all of these episodes possible. You can
find Sworn on Facebook, Twitter, and Instagram at Sworn podcast
and follow me your host, Philip Halloway on Twitter at
phil Holloway e s Q. Our website is sworn podcast
(28:30):
dot com, and you can check out other Tenderfoot TV
podcasts at www dot tenderfoot dot tv. If you have
questions or comments, you can email us at sworn at
tenderfoot dot tv or leave us a voicemail at four
zero four for one zero zero four four one. As always,
(28:53):
thanks for listening
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