*1 hоld that that finding not clearly was As Matthews has failed to show the erroneous. deal, existence of preexisting Brady his claim necessarily fails. Id. at 707-08. We reasoning find the per- Williams IY Williams,
suasive. Like Matthews has not offered sufficient evidence to rebut the For reasons, the preceding we RE- presumption of correctness afforded the VERSE the grant district court’s of con- Appeals’ Ohio Court factual finding. ditional corpus habeas to Matthews and The fact Roulette entered into a favorable direct the district court to dismiss his pe- plea bargain within two weeks after Mat- tition.
thews’s conviction and sentence is not evi-
dence, or at most is weak circumstantial
evidence, that a deal at the existed time of
trial. Jones, See Abdur-Rasheed v. (6th Cir.2004)
Fed.Appx. (relying on finding
Williams and being subse-
quently charged with a offense lesser not evidence a witness a preexisting had Philip WORKMAN, Petitioner- agreement prosecution). with the Further- Appellee, more, Williams, like prose- the assistant cutor'testified categorically that there was no preexisting deal with Roulette. Given Governor BREDESEN, al., Phil et prosecutor’s assistant admission that Respondents-Appellants. supported he subsequent Roulette’s plea bargain partly based on testimony his but No. 07-5562.
also out of fear for prison, his safety United States Court of Appeals, approval of plea bargain is not unusual Sixth Circuit. or exceptional. Like the prose- assistant cutor, judge who accepted Roulette’s Decided and Filed: May plea and sentenced him testified that he did not any know of preexisting deal for
testimony, although he was aware Roulette
received some consideration his testi-
mony. context, When considered in this
the judge’s comments during made Rou-
lette’s hearing are not direct evidence of a
preexisting agreement, only but of his un-
derstanding that one of the bases for the
plea agreement was the prior defendant’s
cooperation. Finally, Williams, like in we
view Roulette’s recanting testimony with suspicion.”
“extreme put, Simply Mat-
thews has failed to come forward with
sufficient direct or circumstantial evidence
to rebut state court’s finding of no
preexisting deal. *3 on the for success prospects
Workman’s Court Supreme are dim. also merits chosen a State’s invalidated has never court has invali- No of execution. method SUTTON, COLE, SILER, Before: used three-drug protocol dated Judges. Circuit (and jurisdictions). 29 other up- have courts federal state and Several opinion J., SUTTON, delivered (includ- three-drug protocol same held this J., SILER, joined. court, which 2005). Court Supreme the Tennessee ing 921-931), delivered COLE, (pp. J. stay decision a similar vacated Our court dissenting opinion. separate *4 challenge to a similar respect in 2006 the to execute the State permitted and
OPINION Notwithstand- protocol. the inmate under Supreme the Tennessee Judge. of SUTTON, the decision ing Circuit this court and the decision 2005 in Court to be is scheduled Ray Workman Philip an effort 2006, undertook the State on of Tennessee by the State executed procedure. the improve and to review 2007 a.m., for the murder 2007, 9, at 1:00 May pro- new that the acknowledges Workman 4,May On Ronald Oliver. Lieutenant from the different only slightly cedure is tempo- a motion for a 2007, filed Workman explana- no he offers and procedure, old district in federal restraining order rary anything has done how three-drug the State’s court, claiming that less procedure the new make more than penal- the implementing Every- errors. implementation prone Fourteenth) (and Eighth the ty violates in re- indeed, has done the State thing, court day the Amendment, later that and shows procedure revising and the viewing same later that Still motion. the granted from Workman prevent trying it is the of Tennessee the day, Governor execution, during his any pain suffering appeal from- an filed defendants other a to allow willing trying or it is not that 2007, 7, Gov- the May Early today, order. unnecessary and imposes procedure 19-page motion filed and others ernor and those these reasons For pain. wanton court’s district the to vacate court district below, the vacate we elaborated morning, Work- later this A little order. restraining order. temporary court’s response. brief 45-page filed man 25-year-old arises dispute This I. court’s sentence, district the
capital
A.
Workman’s
order,
would
upheld,
if
Work-
1981,
10:00
5,
p.m.,
at
August
On
date set
an execution
stay of
sixth
Wendy’s restaurant
into
man walked
At no
years.
seven
over
last
State
Tennessee,
employees
held
2007,
Memphis,
4,
did
May
Friday,
last
until
point
them
gunpoint, herded
a customer
method
challenge the State’s
Workman
and ordered
office
manager’s
into
components
though
execution,
even
into a
receipts
day’s
empty
manager
challenges
Workman
44,
Workman,
667 S.W.2d
bag. State
main
in the
in existence
been
today have
employees
(Tenn.1984).
instructed
He
escape
cannot
He thus
since
office,
employee’s
stole
in the
to remain
limita-
court’s
and this
Court’s
Supreme
started
the door
keys, locked
car
an execution
challenges to
dilatory
on
tions
Id.
restaurant.
leave the
procedure.
Responding to a
alarm
successful,
silent
that one of
Bell,
see Workman v.
178 F.3d
the еmployees had triggered,
(6th
Lt. Oliver
Cir.1998),
denied,
cert.
528 U.S.
stopped the defendant as he was exiting. 913,
264,
120 S.Ct.
(1999),
L.Ed.2d 221
Id. At
point,
some
broke away
Workman
he filed several
petitions
other
in federal
from Lt. Oliver and fled. Additional offi- court, which
proved
also
unsuccessful. See
cers at
grabbed Workman,
the scene
who
Bell,
Workman v.
man v.
873,
469 U.S.
105 S.Ct.
(Tenn.Ct.Crim.App.2002).
226,
(1984).
1986,
L.Ed.2d 155
In
2003,
In
Workman returned to federal
Shelby County Criminal Court denied
court. He filed a motion for relief from
Workman’s
petition
first
post-convic
for
the district court’s denial of his first feder-
relief,
tion
which the Tennessee Court of
al
petition,
habeas
see
60(b),
Fed.R.Civ.P.
Criminal Appeals affirmed. Workman v.
claiming that the Tennessee Attorney Gen-
State,
111,
C.C.A. No.
In scheduled Workman’s execu- Workman a peti- filed second May tion for tion for relief, post-conviction which also
was
State,
unsuccessful. See Workman v.
1,
February
On
Governor Bredesen is-
In 1994, Workman petition filed a for a tion procedures and to a develop pro- new writ of federal habeas corpus in the by United tocol May 2. Tennessee, See State of States District Court for the Western Dis- Executive Order by the Governor No. 43 trict of (Feb. Tennessee. proved 2007). When that 1, un- In April 30), late (April 7, (last May visited chronology-rev0905.pdf lethal-injec- new announced Governor criminal code 2007). a adopted State State, left the which for procedure the sole hanging as 1829, codified which main, in the unchanged procedure prior penalty. Id. the death imposing of method of components some formalized though it the method of hanging remained Death improved others. 1913, when until in Tennessee execution granted court 27, district April On with the replaced gallows the State appealability a certificate Workman last execution Tennessee’s chair. electric denial court’s district review seek In in 1960. place took by electrocution Work- 60(b) denied but motion Rule his Georgia, U.S. v. of Furman aftermath appeal. stay pending a for request man’s (1972), 2726, L.Ed.2d 238, 92 S.Ct. appeal an filed Workman May On Assembly passed General Tennessee stay 60(b) sought motion Rule which statute penalty new 4,May court. On his declared later Court Supreme the State’s stay, the motion denied we an- enacted The State unconstitutional. shown had not concluding Workman still which law in death-penalty other the dis- reversing of success likelihood State’s as the electrocution authorized 60(b) Work- decision. Rule court’s trict Dep’t Tennessee of execution. method 837, 842 Cir. Bell, F.3d v. man Chronology. Corr., Punishment Capital 2007). made le- legislators In a new filed day, Workman That same capital inmates option thal court—the federal in a different
complaint allow inmates continued though 82- In an Tennessee. District Middle Abdur’Rahman electrocution. *6 choose constitu- challenged he complaint, page M2003-01767-COA-R3-CV, Bredesen, No. pro- lethal-injection tionality of the State’s (Tenn.Ct.App. *3 at WL retraining temporary a sought and tocol Ann. Tenn.Code. 2004); also Oct.6, see execution May 9 his suspending order As- 40-23-114(a). General The State’s § 4), (still May day same Later that date. Department the Tennessee sembly vested re- temporary granted court district pro- “to authority with Corrections of injunc- order, a preliminary set straining regulations rules and necessary mulgate regarding 14May for hearing tion by death of implementation” facilitate ef- and constitutionality of § 40-23- TenmCode injection. lethal May 9 execu- fectively stayed Workman’s Corrections 114(c). of Department The date. tion mod- three-drug protocol use decided be- adopted that Texas the one after eled B. experience the most had “Texas cause chal- Workman’s the nature Given injec- by lethal out executions carrying history of review brief lenge, a Abdur’Rahman, WL tion.” in or- procedures Tennessee’s *3. at State, became 1796, Tennessee In der. consti challenged the 2003, an inmate In mentioned constitution the first its and lethal-injection State’s of the tutionality law per- common The offenses.” “capital Amendment. Eighth under the protocol the State which penalty, death mitted the Court Supreme 2005, the Tennessee In Tennes- hanging. by out carried generally Abdur’Rah See challenge. rejected Corr., Capital Punishment Dep’t see 292, 314 Bredesen, S.W.3d man http://www.state. at Chronology, available (Tenn.2005). tn.us/correction/newsreleases/pdf/ 1, 2007,
On February the Governor di- ministration of the Report chemicals. at 4. rected the Department of Corrections to The committee met 19 times from Febru- engage in “comprehensive ary review” of through April 2007 and public held a Tennessee’s penalty protocol death hearing in April issuing before findings. its procedures, injection both for Report lethal at 5.
for electrocution. See Executive Order Chemical selection and amounts. Ten- 43; No. Report on Administration of nessee decided to retain the three-drug Death Sentences in Tennessee (Report) at protocol it had аdopted a protocol 2007) (see A). 3 (Apr. Appendix The that 29 other jurisdictions, including the Commissioner Department of the formed a Government, Federal employ. Report at committee, which research, conducted ob- 6. The involves the of 5 input tained experts, sought informa- grams thiopental sodium by followed jurisdictions from other updated 100 milligrams of pancuronium bromide its execution manual for carrying out the (Pavulon) followed 200 millequivalents penalty. death Report at 3. potassium chloride, all delivered intrave- updated nously. execution manual Report at includes: 6. The dose of sodium thiopental,
(cid:127) a barbiturate that ox- “reduces Detailed descriptions of each step of ygen flow to the brain and causes respira- the electrocution and lethal-injection tory depression,” Execution Procedures processes. Injection Lethal quickly anesthe- (cid:127) Detailed descriptions qualifica- tizes the inmate is sufficient to cause tions, processes, selection and training the absence of the two additional requirements execution team chemicals in protocol. Pancuronium members. bromide is a “muscle paralytic” that “as- (cid:127) A detailed description of the services sist[s] the suppression of breathing and provided family members of the death.” ensure[s] Id. The amount of pan- condemned inmate’s victims. curonium bromide the State administers (cid:127) requirements Enhanced for contempo- proves also own, fatal on its and the State raneous documentation of signifi- each drug selected the *7 because it hastens death cant stage of an execution as it is “prevents and involuntary muscular move- carried out. ment that may interfere with proper the (cid:127) Enhanced accountability in connection functioning of the IV equipment,” thus with the procurement, storage, and “contributing] dignity to the of the death disposition of legal-injection the chem- process.” Report at 7. Potassium chlo- icals. ride, salt, a interferes with function, heart Report at 1. causing “cardiac arrest rapid and death.” Report 6; at Execution Procedures for
In reviewing the State’s lethal-injeсtion Injection Lethal at 35. If administered protocol, the (1) committee focused on properly, the sodium thiopental anesthe- what chemicals should be used the pro- tizes inmates they before receive the re- cedure (2) and in quantities, what what maining two drugs. Report at 7. training qualifications and the executioner and (3) the IV team possess, should what Before deciding to using continue method the IV team should use to adminis- three-drug protocol, the committee consid- drugs ter if unable to establish “peripheral ered two variations on procedure this —a access,” (4) venous what documenta- two-drug option and a one-drug option. tion should be required regarding the ad- The two-drug option would have eliminat- IV certification with Technicians Medical proto- bromide pancuronium ed at but Report paramedics,” or af- certified approach this rejected The State col. not con- manual did execution previous of “the administration that concluding ter to team members requiring language tain preceding a without chloride potassium qualifica- training and these possess typi- would bromide pancuronium of dose to manual updated the The State tions. which involuntary movement cally result in Id; express. requirements these make anor as a misinterpreted seizure be might for Lethal Procedures also see Execution at 8. Report consciousness.” indication fact the Despite the at 32-33. Injection one-drug protocol, rejected The State mem- IV team has mandated State thiopental sodium have used which would re- continuing education to adhere bers down slow alone, it would because and cer- licences keep their quirements to effect and because “the process required that current, as as well tification thiopental of sodium dosage required estab- “regularly practice team members varia- and more predictable would be less training during execution lishing IV access sole mecha- as the it used [was] when ble had not exercises,” requirements these topOn death.” Id producing for nism manual. in the contained been noted that concerns, the cоmmission these requirements these made State also The two-drug one- or used State had no 9; Proce- Execution at Report express. execution, leaving carry to out protocol 33, 50. Injection at for Lethal dures or studies no data case with Tennessee previ- its Tennessee, finally, formalized would work bet- options these indicate humanely must that executors more rule operate ously unwritten and would ter they can therapy so that Id IV protocol. trained in three-drug than to estab- have faded they when recognize the benefits also considered State The 9; Execution at Report IV access. lish protocol three-drug protocol —that at 32-33. Injection Lethal Procedures all courts past, that in the well had worked team If IV had procedure. Cut-down reviewed had an exe- during vein a usable dozens locate and that cannot it constitutional deemed (due use drug example provide cution it thus could used had States for Le- Procedures inmate), Execution about their see information, expertise data and uses cut- Injection it. refinements thal with experiences phy- means procedure these considerations down balanced State —which obtain order an incision the three- sician makes the risks associated against cut-down reviewing the After different access. using three IV drug protocol—that sever- “with its alternatives complicated” “most chemicals is *8 that “cut- concluded the State experts,” a remote is al that “there options, three diffi- particularly are not procedures implementation down an error chance of and there- perform,” to pain” physicians incur brief cult to the inmate may cause its as keep to requires decided fore bromide pancuronium and lethal-injec- during refrig- plan contingency it must be attention because special 9; Pro- at Execution Report Balancing process. these at Report 7-8. erated. 41, 20, Injection at to for Lethal benefits, chose con- cedures Tennessee and costs three-drug protocol. using tinue its revised Tennessee Documentation. documen- “enhanced require procedures TV team qualifications Training of the storage procurement tation” for IV teams Tennessee’s executioner. Re- injection. for lethal used chemicals “Emergency consisted always have 904
port at 9. The State also amended its
the trial court’s order does not affect an
manual
include a “contempo-
important
interest
State is untena
raneous
requirement—
documentation”
ble. The order “has the practical effect of
meaning that a member of the IV team
injunction,”
an
which simultaneously oper
must document the administration of the
stay
ates to
long-delayed
Workman’s
exe
three-drug protocol
an
during
execution.
cution and to
us
give
authority to review it.
10;
Id. at
Execution Procedures
Coal.,
for Lethal N.E. Ohio
1005;
182 Fed.Appx.
II.
cating temporary restraining order that
stayed execution, reasoning that “[tjhough
jurisdiction,
haveWe
as an initial
the order is denominated a TRO rather
matter, to review the district court’s tem
injunction,
than an
jurisdiction
we have
porary restraining order. See N.E. Ohio
pursuant
1292(a)(1)”);
§
Coal,
U.S.C.
see
Homeless & Serv. Employees
Brands, Inc.,
also Carson v. Am.
450 U.S.
Union,
Int'l
Blackwell,
Local 1199 v.
79, 84,
993,
(1981)
101 S.Ct.
by order of the Tennessee Supreme (6th Cir.2006) Court. (explaining that we See Sup.Ct. 12.4(E). Tenn. R. To suggest, “weigh the merits of the district court’s does, as Workman that the district stay court’s [of an ... execution] based on the *9 order enjoin does not Tennessee from exe- reason furnished in opinion.”). its We will cuting May 9, Workman on that the State find an abuse of discretion only when left has meaningful appellate options for im- with “a definite and firm conviction that posing 25-year-old this sentence other the trial court committed a error clear of than through interlocutory review and that judgment.” Logan Dayton v. Hudson Cir.1989). (6th hearing, 82-page filed his com Workman 865 F.2d
Corp., discretion when an hour later the court plaint, “A court abuses its district district findings (without of clearly holding hearing) granted it on erroneous a relies new the law fact, improperly applies or when it any The did not waive the motion. State legal standard.” or uses erroneous challenges the motion these cir to under USA, Inc., 362 Philip Morris Tompkin cumstances, and no Workman offers rele Cir.2004). 882, 891 F.3d to authority suggest vant otherwise. de reviewing In the district court’s did not waive these The State also cision, four factors we consider the same in the that it filed our arguments motion (1) court considered: the district delay, As to undue morning. court this a the has demonstrated
whether claimant makes one of the State that consideration merits, on of success the strong likelihood (if key key of motion not the the the points (2) irrepa the claimant will suffer whether motion). to point of the As the likelihood (3) stay, of a injury in the absence rable proce that a would strike down this court stay will cause sub granting whether grounds, on the State dure constitutional (4) others, and whether stantial harm to on throughout heavily its relies our motion by grant served public interest best Alley and the Tennessee Su decision Coal., at stay. F.3d ing the N.E. Ohio preme decision Abdur’Rah- Court’s this man—one of which found that same objections have to the district We two on claim had little likelihood success that the district court court’s order—one merits, rejected the and the other of which four-page order briefly considered its specif also claim on the merits. State (whether three-drug protocol Tennessee’s ically reliance critiques the district court’s Amendment) Eighth likely violates the grounds Dr. Heath as opinions on (whether has that it did not Workman one success,” a establishing “likelihood of challenge). this long bringing too waited failed to objecting that district court issues, however, we these we Before reach Alley de address the and Abdur’Rahman address Workman’s contention must cisions, they though addressed the even right challenge to any has waived the State they though and even found same issue on these two the district court’s decision reports this same doc unpersuasive grounds. Motion at procedure. tor about the same A. Again, 14 n. 12. no waiver occurred. re challenging power
After our order, district view the court’s Workman B. to contest challenges power the State’s court that prior Like a panel on Friday morning, for it. Last bases challenge a le considered Tennessee’s motion May Workman served thal-injection ago, we year temporary restraining order on has “a small likeli think that Workman State, hearing and the court on held respect this chal hood” success At the State took hearing, motion. lenge “unsup contention is because his had no position that the court legitimate law, offers no by current which ported authority order because grant finding protocols his basis for lethal yet complaint filed Workman had Fed.Appx. Alley, 181 com unconstitutional.” respond that it would not to a panel, like we think that plaint had not After the 513. And seen. *10 906 certiorari) dissenting abused its
the district court
discretion
from denial of
(gas
chamber).
concluding otherwise. Id.
In
lethal-
contending that Tennessee’s
Second,
the experience of the lower
injection
likely
Eighth
violates the
state and federal courts is similar. No
imposing
on
prohibition
Amendment’s
court
our knowledge
to
has issued a final
punishments,”
“cruel
unusual
U.S.
declaring
lethal-injection
decision
a State’s
Const,
VIII, Workman
sev-
amend.
faces
protocol unconstitutional. And several
First,
Supreme
Court
eral obstacles.
lower courts
upheld
specific
have
(or
has never invalidated
State’s
See,
three-drug,
lethal-injection protocol.
Government’s)
Federal
chosen
of
method
Abdur’Rahman,
e.g.,
Amendment to the
Since these
411,
644 A.2d
(Del.Super.Ct.1994);
421
decisions,
oppor-
has had ample
Court
Moen,
45, 98-99,
State v.
309 Or.
786 P.2d
tunities to constrain methods of execution
(1990);
State,
111
v.
Hopkinson
798 P.2d
greater
seem to raise far
risk
cruel
of
1186,
(Wyo.1990).
One cannot credi
punishment
injec-
and unusual
than lethal
bly
establish
likelihood of
success
at
tion,
See,
but it has
to do
e.g.,
declined
so.
tacking
a death-penalty
when
Wood,
Campbell
1119, 1119,
v.
511 U.S.
theory
yet
of success has
succeed
(1994)
2125,
114 S.Ct.
657-58,
1652,
112 S.Ct.
tional cology Society, among others. See Report at 4-5. Fifth, though even Tennessee has “The significant most issue” the commit- adopted a method of execution designed to tee faced was “the selection the chemi- eliminate rather pain, than cause even dosage cals and to be injec- used lethal though the majority vast of executions car- executions Tennessee.” Id. at 6. ried out in modern times have pro- moved “After considerable research and consulta- gressively to procedure, this though even tion with medical experts,” it “retained a no state or federal court has issued a final protocol.” three-chemical Id. While sever- invalidating decision three-drug proto- al considerations drove the committee’s de- col under Eighth Amendment, even cision (including weaknesses in the one- though the Supreme Court in drug two-drug and options), para- 2005 held that three-drug protocol did mount consideration was the reality that not inflict “unnecessary physical psy- or “the three-chemical has been used chological pain suffering,” Abdur’Rah- all of the almost lethal execu- man, 181 S.W.3d at though and even tions that have taken place in country, this our court in permitted the State to allowing Tennessee to upon draw the con- Sedley execute Alley under the three-drug experience siderable jurisdictions of other protocol, Alley, 181 Fed.Appx. at in implementing protocol.” Id. at 7. State has not left it at that. In The committee also sought improve Tennessee Governor initiated a review practices Tennessee’s by “developing] up- to ensure “that death sen- dated execution manuals injec- for lethal tences are in a administered constitutional tion ... incorporate practices” best appropriate manner.” Executive Or- jurisdictions. from other Id. end, der No. at 1. To that Governor Bredesen directed the corrections commis- requirements Call the Eighth sioner to comprehensive undertake “a re- you Amendment what avoiding the will— view of the manner in which death sen- “unnecessary and wanton infliction of tences are administered pain,” Tennessee” refraining from “deliberate indiffer- ness.”). keeping majority of inmates or Like vast of States to the needs
ence” Government, result, decency”— as a np “evolving standards Federal imple- pancuronium prohibit adoption, Tennessee uses bromide to they do lethal-injec- Id. prevent happening. of a at 7 mentation and refinement *13 (“[P]ancuronium man- comprehensive speeds in as bromide ... the procedure prevents involuntary process, of the death mus ner as this. The efforts Governor may a suggest cular movement that interfere with department and the corrections just satisfying functioning the re- the IV proper equip State intent not on the ment, Eighth dignity Amendment but contributes to the of the quirements of the and process.”). exceeding on them. far employees That of the corrections to off this conclu Attempting fend department, physicians, who are not per sion, use of Workman maintains the in a procedure typical form the execution (the the pancuronium bromide second of one, change case For does matters. Tennessee) drugs by must be three used running requires one alleges no an IV even cruel and unusual because veterinari another, a a doctor. For the State has euthanizing ans refuse use it animals. any problems doctor on hand to address if refleсtion, however, is this contention On employee the cannot start the trained IV. a point legitimate a than more of debater’s Injection for Execution Procedures Lethal three-drug protocol. the In eu- attack on (A must “be at the physician present at 20 animals, just use thanizing veterinarians “perform and precise time execution” drug—a one not unlike sodium barbiturate procedure the should the IV cut-down (the by drug first used Tennes thiopental adequate Team unable find a vein be see), except that the barbiturate used on catheter”). insert As the re the State’s The slowly. problem acts more animals confirms, procedures cent review of its alone, a using barbiturate moreover, requires employees it its to en determined, long, takes too is training in considerable to handle gage no uses a barbiturate itself. other State Report executions. at 9. While Workman Report (noting multi-drug pro at 8 that a the employees claims that doctor “likely rapid in a result[s] tocol more during next to him the adminis should be and that “to no other state has death” date (rather than in an tration of [one-drug] protocol”). a In its recent used room), countervailing are adjacent there protocol, of the Tennessee also con review work. As the state trial court interests at option eliminating for sidered other procedure: upholding observed procedure- pancuronium from the bromide paramount As A concern an execution is drugs. use the first and third the State however, commit- two-drug security. The condemned has explained, protocol convulsions, act, facing he phenomenon ted violent is termi- would lead to avoid nation of life. Under these circum- understandably wished to State necessary indi it is to deviate from respect dignity out for the stances proximity. surgical physical norm of presumably respect vidual and out of reasons, necessary, security anyone, family, It is including inmate’s (Lethal securely is executioner watching the execution. Id. assure sep- The injection removed from the condemned. pancuronium without bromide and the involuntary of the executioner typically result arateness “would containing dosages, the lethal might misinterpreted syringes movement which executioner’s while it does decrease the as a seizure or an indication conscious ability to (“Dr. monitor intake of the Pento- he is executed.” See id. at 308 thal, good is for To up reason. make for Heath expert] [Workman’s ... testified separateness executioner, that a lesser of two dosage grams of sodi- injection Tennessee lethal method has a um Pentothal would cause unconsciousness room, TV monitor in the execution in all ‘very but rare’ cases and that a camera above gurney, and the war- dosage grams of five would ‘almost cer- den located the execution room ”). tainly cause death.’ also a foot within of the condemned’s head. calls for training require- certification The warden has been trained on detect- ments that reduce risk of error in ing problems such crimping as of the IV administering drugs. Although the line, or failure of the to go into protocol does not contain *14 explicit an in- the vein. struction to monitor Workman’s conscious- Abdur’Rahman v. Sundquist, No. 02- ness, it require does the participation aof 2236-III, (Tenn. Order at 9 Ch. Ct. 20th certified presence IV team and the of a 2, 2003), Dist. June available at http:// doctor. This sug- combination factors www.tsc.state.tn.us/OPINIONS/TSC/Cap gests that ample there is recourse if 5- the (last visited Cases/Rahman/Rahman.htm gram dosage of sodium thiopental' —14 2007). 7,May For exceedingly practical times the dosage used anesthetize hos- reasons, no carry State can out an execu- pital patients fails to render —somehow tion in the same manner hospital that a Workman unconscious. operation. monitors an Under circumstances, these we cannot Nor, relatedly, does Eighth accept the district court’s conclusion that require Amendment an anesthesiologist to lethal-injection Tennessee’s protocol “cre- be on hand to monitor the inmate’s con ates a foreseeable likely unnecessary during sciousness every execution. While risk that the Plaintiff will incur constitu- may it good well be a practice for State tionally excessive pain suffering when to hire an anesthesiologist for each execu he is executed.” Temporary Restraining (assuming one willing is to handle the Only Order at 3. thing one has changed task), the Constitution require not does it. since panel court convincingly this pain risks of complains Workman demonstrated that this challenge to the (and about remain remote do not occur procedure Tennessee has a “small likeli- when properly is imple success,” hood of ... Alley, 181 Fed.Appx. mented), and no one has shown that they at and accordingly vacated a similar have occurred Tennessee in the past. stay order —the State has reevaluated and lethal-injection its Under protocol, Tennes improved procedure. Then, its now, as see grams administers 5 of sodium thio- remains the case that no state or pental federal to anesthetize the inmate. See Exe court has issued a final decision cution Procedures invalidat- Injection for Lethal at ing the protocol, three-drug 35. That lethal dosage represents several highest decisions level use, (including that other States and it Su- preme 2005) renders the Court’s inmate decision in up- unconscious have “nearly immediately],” Abdur’Rahman, held procedure. defense, this In its at S.W.3d 308. 5-gram This district court of just dose thus course had a half day reduces, if completely eliminates, not this, any consider all of which brings us to risk that Workman would “incur constitu our objection second to Workman’s ac- tionally pain excessive and suffering when delay. tion—undue time as to allow consideration of the merits
C.
stay.”
requiring entry of a
Nel
without
any
absence of
mean
While the
son,
Even
541 U.S.
S.Ct.
of success on
merits
ingful chance
challenge
had
filed this
on
Workman
Janu
matter, Workman
to resolve this
suffices
17, 2007,
ary
still
have
would
been
far
problem:
too
faces a second
He waited
“too
in the
Hill
day,”
McDonough,
late
v.
days
five
long
bring
challenge—-just
this
—
-,
2096, 2104,
126 S.Ct.
U.S.
what
now
sixth
before
(2006),
to allow the trial and
L.Ed.2d
has
him. The
date the Tennessee
set for
appellate
any
to reach
merits of
courts
this reason
district court did
consider
Jones,
subsequent challenge. See
(perhaps
because it
denying
motion
2 (“[Adjudicating
F.3d at 639-40 n.
perhaps
had
little time to do so and
too
claim
[lethal-injection-protocol]
Jones’s
only
party’s—Work
it had
one
because
more
three
would take much
than
months
man’s—brief),
though
Supreme
even
subsequent appeal
... a
would add
considering
that in
Court has indicated
months, if not
years,
litigation.”)
execution,
remedy of
equitable
staying
(internal
omitted);
quotation marks
Har
...
“a
court must consider
district
Johnson,
ris
F.3d
*15
has delayed
extent
to which the inmate
(“The
Cir.2004)
brief
of
be
window time
unnecessarily in
claim.” Nel
bringing the
denial of
and the
tween the
certiorari
649-50,
637,
v.
U.S.
124
Campbell,
son
541
case,
this
state’s chosen execution date-in
(2004)
2117,158
(empha
S.Ct.
L.Ed.2d 924
period
four
an insufficient
in
months-is
added);
F.3d at
Tompkin,
sis
see
362
891
complaint,
which to serve a
conduct discov
(abuse
district
of discretion occurs when
ery,
the
depose experts,
litigate
issue
law).
court makes a mistake of
merits.”).
a
on
He thus cannot revive
the
he filed this
responds
Workman
that
only
dilatory action when the
concrete
days
receiving
the
lawsuit within four
challenges
procedure
to the new
were fea
lethal-injection protocol. See TRO
revised
the old procedure.
tures of
But
ac-
Motion at 52-53.
as Workman
protocol
only
is
knowledges,
the new
opportunities to avoid this
Workman’s
protocol,
from
“slightly different”
the old
only way
litigate
to
scenario—where
3,
point
at
he
not
Complaint
does
validity
three-drug protocol
is to
any
that
revision
makes
stay
many. The
his execution—were
Ten
worse, only to revisions that could have
his
Supreme
nessee
Court affirmed
been made but were not. Workman’s
Workman,
1984,
see State v.
sentence
then,
just
not
that he waited
problem,
(Tenn.1984),
667
44
the state
S.W.2d
execution;
days
until
his
his
five
before
petition
post-eonvie
courts denied his
even
challenge would have been late
had
State,
1993,
v.
tion relief
see Workman
immediately
after
he filed it
before or
(Tenn.Ct.Crim.App.1993),
913 bring to petition habeas federal (1998) his first event L.Ed.2d —an the action. in occurred case Workman’s which in Bell, Cir. No. 96-6652 v. Workman
see time, has in State point At some At 12, 1999), at the latest. or 2000 Oct. just be- impose a sentence-not to right finality in interest the State’s point, finality are the “State’s interests cause moral dimension. “an added acquired there is because but also compelling,” the victims finality can real Only with pun- interest legitimate “powerful moral knowing the forward crime move to “the attaches guilty,” which ishing Calderon, out.” be carried judgment will alike.” Cal- of crime the victims State Indeed, S.Ct. 523 U.S. deron, 118 S.Ct. U.S. at point, rely on need not while we omitted). (internal Twen- quotation marks to that, one looks whether adding bears of this imposition after ty-five years timeliness of determining the the test us, has time, sentence, it seems action death-penalty-procedure § 1983 come. majority or dissent by the adopted Strickland, Cooey recent decision our IV. by (6th Cir.2007), challenge 479 F.3d reasons, the district we vacate these For three-drug protocol
Workman restraining order. temporary court’s have been would seemingly January approach. under either barred time A APPENDIX and as out true, points as Workman It is DEPARTMENT TENNESSEE out, a few pointed court the district OF CORRECTION stays litigate granted have courts case, Death not seen a But we and Administration Report have question. case, to a us in Tennessee pointed has not Sentences and Workman many op- on as passed inmate where the April 2007 three-drug challenge portunities Department Prepared the inmate has and as Workman of Correction completion *17 long after so has waited OF CONTENTS TABLE Summary.914
Executive
Introduction.915
Methodology.915 Injection .917 Inquiry Areas of
Selected —Lethal Selection.917 Injection Chemical Injection ChemicalProcurement A. Lethal Lethal IV Storage.919 B. Training.919 Qualificationand Team C. Procedure.920 D. Use of Cut-Down Training.920 Qualificationsand E. Exucutioner Documentation.920 Administration F. Chemical Inquiry Areas of Selected — Electrocution.920 Chair.920 Electric History of A. B. Electrocution Electrocution Tennessee’s Settings.920 Equipment Control Testing.920 Equipment Maintenance C.
Appendix.921
A. Executive Order No. 43 . B. Florida Governor’sCommissionon Injection.921 Administration of Lethal Transcript April C. 2007Public Hearing.921 Summary Executive injection als for lethal and electrocution incorporate best practices from the In response to Executive Order No. Department’s experience own and that of George Commissioner M. appointed Little jurisdictions. other Highlights includes: a committee to review the administration (cid:127) Detailed descriptions of step each of death sentences Tennessee and revise injection electrocution and lethal pro- the Department’s Protocols and Manual. cesses The Committee utilized a number of re- (cid:127) Detailed descriptions of qualifica- sources to, but not including, limited tions, processes, selection and training following: requirements for execution team mem- (cid:127) The Office of Attorney General and bers Reporter (cid:127) A detailed description of the services (cid:127) Participants in past Tennessee execu- provided family members the con- tions, including Riverbend Maximum Se- demned inmate’s victims curity Bell, Institution Warden Ricky (cid:127) requirements Enhanced contempora- team, members of the IV physician and a neous documentation of significant each (cid:127) professionals Corrections and legal ex- stage of an execution as it is carried out perts jurisdictions from other (cid:127) Enhanced accountability connection (cid:127) Anesthesiologists pi'ocurement, storage, and dis- (cid:127) An Engineer electrical position of the lethal chemicals. (cid:127) The Report Final of Florida’s Governor’s protocol The injections for lethal employs Commission on Administration of Lethal the following chemicals in sequence Injection shown: (cid:127) Court opinions (cid:127) execution 5 Grams of Sodium Thiopental 200 cc
cases from jurisdic- Tennessee and other of sterile water tions. (cid:127) (1 100 Mg of Pancuronium Mg/ Bromide ml) Department public also held a hearing *18 on April purpose for the (cid:127) receiv- mL of mEq/ml Potassium Chlo- ing input fi’om persons with relevant ex- ride, a total mEq. of 200 pertise on the issue of how to best ensure After chemical, the infusion of each the IV that the Department’s execution protocol line is flushed with 50 cc saline solution. provides appropriate constitutional and ex- At least jurisdictions, 29 other including ecutions. attorneys Two presenta- made Prisons, Federal Bureau of have le- tions at the hearing, and comments were injection thal protocols consisting of sodi- also taken from other attendees. um thiopental, pancuronium bromide, and upon Based its research and input it potassium chloride in varying amounts. sources, receive from various the Depart- Sodium thiopental ais barbiturate that ment developed updated rapidly execution manu- general induces anesthesia. Pan- component As a of Tennessee. outside a neuromuscular is bromide curonium review, is the Commissioner of this and paralysis that induces
blocking agent per- and to research further directed Potassium to cease. breathing causes used practices best analysis form that interferes a salt is chloride аdministering by other states to normal essential signaling electrical penalty. death listed In the amounts function. heart chemicals, later than independent- but no above, practical, as each of 2. As soon 2, 2007, of Cor- the Commissioner May ly, is lethal. and to establish is directed rection grams to use has chosen and protocols the new to me provide used largest amount thiopental, sodium for admin- procedures related written enhanced provide to jurisdictions, by other Tennessee, death sentences istering inmate will the condemned assurance that electrocu- injection and by lethal both chemi- remaining unconscious when addition, In the Commissioner tion. are cals infused. report provide me with directed to injection and electrocu- lethal The revised review of the outlining the results provide will protocols and manuals paragraph one pursuant to completed are that death sentences further assurance (1) above. appro- and a constitutional administered 43, Com- Executive Order response In to in Tennessee. manner priate a Committee appointed missioner Little and required review to undertake Introduction for the protocols prepare recommended Phil Bre- February Governor On penalty death of the administration 43 di- No. Executive Order issued desen research After extensive Tennessee. of Correction Department recting the in rele- input experts from receiving after review comprehensive complete a developed new fields, Committee vant is ad- penalty the death in which manner written incorporating execution manuals The Executive in Tennessee. ministered own ex- on Tennessee’s procedures based follows: provided as Order jurisdictions, that of other perience experts. medical input well as hereby the Commissioner as I direct (“Commissioner”) initi- Correction Department’s report This describes re- comprehensive immediately ate new manu- developing the methodology in which the manner in view of various it received from the input als and in Tennes- signifi- are administered sentences sources, the most and summаrizes in- specifically shall review see. This in the manuals. cant issues addressed any re- protocols state’s clude the Methodology or written whether procedures, lated
otherwise,
administra-
related
No.
Order
Executive
response
In
sentences,
lethal
by
both
appointed
tion of death
George M. Little
Commissioner
In
required
electrocution.
to undertake the
a Committee
review, the
procedures
Commis-
completing this
manual
review of the
*19
in Ten-
injection
relevant
all
lethal
directed
utilize
and
sioner is
electrocution
Dep-
resources,
including
The
consisted
nessee.
Committee
and appropriate
Assistant
Gayle Ray,
uty
and medi-
Commissioner
limited to scientific
but not
Col-
Roland
Operations
and Correc- Commissioner
legal experts,
experts,
cal
Security Institu-
son,
Maximum
Riverbend
both from within
professionals
Bell,
Bell,
Ricky
Ricky
tion Warden
Executive Assis manual.
Warden of the River-
Davis,
Institution,
Maximum Security
tant
bend
an-
to the Commissioner Julian
questions
swered
from other Committee
Inglis.
and General Counsel Debra K.
process
members about the
used
Initially,
Department
received guid
injection
state’s two recent
lethal
execu-
Attorney
ance from the State
General’s
questions
tions as well as
about the elec-
concerning
legal challenges
Office
process.
trocution
The Committee also
protocols
and other
with
participants
met
other
in Tennessee’s
jurisdictions
possible
inquiry
and
areas of
injection
two lethal
executions about spe-
for the Committee. The Committee re
cific areas.
opinion
by
viewed the
issued
the Tennes
The Committee consulted a number of oth-
Supreme
see
Court Abdur’Rahman v.
jurisdictions
er
for information on their
Bredesen,
(Tenn.2005),
equipment. thesiologists concerning lethal The Committee Depart- reviewed the and an electrical engineer concerning elec- previous ment’s protocol and execution trocution. The Committee also consulted
917
has
Department
experts,
medical
at Ten- with
present
who is
physician
with
protocol.
retained
three-chemical
pronounce
executions
nessee’s
if
procedure,
a cut-down
perform
and
summary of the three
following is
The
necessary.
De-
by the
considered
best alternatives
findings regarding
and its
partment,
Report
the Final
reviewed
Committee
The
of each.
disadvantages
advantages and
is-
Recommendations
and
Findings
with
Commission
by Florida’s Governor’s
sued
(5
Protocol
Grams
1. Three Chemical
Injection on
of Lethal
on Administration
Mg
100
Thiopental,
Sodium
of
of
1, 2007.
March
Bromide, and 200
Pancuronium
hearing
public
also held
Department
The
Chloride)
mEq.
Potassium
of
of the
5,
Representatives
April
on
including the
jurisdictions,
At
least 30
Association, Tennessee
Medical
and Tennessee
Bureau
Prisons
Federal
of
Association, University of Tennessee
Bar
a three-
protocol, have
previous
its
under
Medicine,
Phar-
of
Southeastern
College
injection protocol consist-
lethal
chemical
Public De-
Society, the Federal
macology
thiopental, pancuronium
ing of sodium
Tennes-
of
the Middle District
fender
vary-
bromide,
chloride
potassium
and
of
see,
Services
The Federal Defender
thiopental is bar-
ing amounts. Sodium
Inc.,
Tennessee,
specific
and
Eastern
rapidly
general
induces
anes-
biturate
invited
bar were
the defense
members
thiopental
of sodium
grams
Five
thesia.
how to best ensure
input on
provide
is,
itself,
lethal.
intravenously
given
pro-
protocol
Department’s
a neuromuscular
is
Pancuronium bromide
execu-
appropriate
constitutional and
vides
paralysis
induces
blocking agent that
attorneys
presentations
Two
made
tions.
An
breathing to cease.
intrave-
causes
were also
and comments
hearing,
at the
of Pancuronium
Mg
of 100
nous
transcript
A
from other attendees.
taken
Potassium chloride
Bromide is also lethal.
attached.
hearing is
electrical
is a salt that interferes
The
February
February
jection were
February
February
The
Selected
Committee
following
6,
20,
15,
[2007]
Areas of
[2007]
among
issues
March
Marсh
March 14,
March
March
March
March 28,
March
met on
Inquiry
those
5,
8,
16,
relating to lethal
[2007]
[2007]
April 16-17,
[2007]
2007 April 25,
2007 April
[2007]
given
—Lethal
following dates:
April
April
April
April
particular
2,
5,
10,
12,
[2007]
[2007]
[2007]
Injec-
in-
venously causes cardiac
tion.
inmates
tential
signaling essential
The issues
the three-chemical
death.
ly agreed
sult
without error
in a relatively
A 200
for error in
have
raised on
mEq
generally
if
dose
protocol.
administered
to normal
painless
the administration
behalf of death
administered intra-
protocol
focused on
arrest and
death.
It is
heart func-
would
correctly
general-
In
rapid
row
po-
re-
researching
practices:
best
attention
the three-
challenge to
Amendment
8th
brought by a Tennessee
chemical
Selection
Injection Chemical
A. Lethal
death, the Ten-
inmate under sentence
summarized
Appeals
Depart-
nessee Court
issue to
significant
most
follows:
position
inmate’s
as
the selection
addressed was
ment
essentially
in lethal
uncontradict-
be used
dosage
The evidence
chemicals
either Pavulon
injection of
After
that the
in Tennessee.
ed
injection executions
potassium
or
bromide]
[pancuronium
consultation
research
considerable
*21
themselves,
chloride, by
in the dosages
death. Accordingly,
Department
required by
three-drug pro-
Tennessee’s
found that
protocol,
the three chemical
excruciating
tocol
when
pain.
appropriately,
would cause
administered
will re-
sedation,
injection
sult in
potas-
Without
a humane death.
would, in the
sium chloride
words of the
weigh
Several factors
retaining
favor of
anesthesiologist
testifying on Mr. Ab-
protocol.
the three-chemical
Tennessee’s
behalf,
dur’Rahman’s
“deliver the maxi-
experience in implementing the protocol
pain
mum
amount of
veins can de-
positive.
has been
protocol
Tennessee’s
Similarly, persons
liver.”
receiving a
upheld by
has been
all courts that have
Pavulon
massive dose of
without seda-
upon
ruled
constitutionality.
its
In addi-
they
would be conscious while
as-
tion, the
protocol
three-chemical
has been
Thus,
phyxiated.
the ultimate determi-
used
all
injection
almost
of the lethal
regarding
nation
whether Tennessee’s
executions that
place
have taken
in this
three-drug protocol
unnecessary
causes
country, allowing Tennessee to
upon
draw
physical suffering depends on the effica-
experience
the considerable
juris-
of other
cy
injection
of the
of Sodium Pentothal
in implementing
dictions
protocol.
thiopental]
precedes
[sodium
that
the Pancuronium bromide is
included
injections
potassium
of Pavulon and
protocol
it speeds
because
pro-
chloride.
cess, prevents involuntary muscular move-
Bredesen,
Abdur’Rahman v.
2004 WL
may
ment that
interfere with
proper
(Tenn.App.2004), aff'd,
*16
Ab-
functioning of
equipment,
the IV
and con-
Bredesen,
dur’Rahman v.
jurisdictions, the Court concluded: retaining the protocol. three-chemical The In light of the evidence the Sodium procedure complicated is the most Pentothal is administered before the Pa- protocols, three and there is a remote chloride, vulon potassium and the and chance of an in implementation error that it remains effective until death oc- may cause the inmate to incur pain. brief curs, agree we with the trial court’s Finally, the three-chemical protocol pres- conclusion that Mr. Abdur’Rahman ents greatest difficulty in accounting failed prove injection chemicals, for the lethal particu- chemicals in accordance with Tennes- larly pancuronium because bromide re- three-drug protocol see’s would cause quires refrigeration. unnecessary physical pain psychologi- or cal suffering. (Sodium 2. Two-Chemical Protocol Id. at 16. Thiopental and Potassium Chlo- ride) findings Consistent with the of the Court Abdur’Rahman, experts consulted Department considered a two-
by the agreed Committee all that the in- chemical protocol consisting of sodium thi- travenous grams administration of 5 of opental potassium chloride. pro- This sodium thiopental persоn would be tocol an advantage has over the three- lethal, person would render chemical in that it eliminates the seconds, unconscious within a few and that pancuronium result, use of bromide. As a its anesthetic effect would continue until that, it would allegation address the al- *22 experience is no unconscious, injection executions there a con- appearing though draw. Tennessee can upon which in fact be conscious might inmate demned from the administra- experience pain and Procure- Injection Chemical B. Lethal also It would chloride. potassium of Storage ment and faster death in likely result a somewhat oth- On the protocol pro- protocol. Department’s previous than a one-chemical The potassium hand, injection of the administration the lethal er vided assurance pan- of dose in preceding without a and stored procured chloride chemicals would be in result typically would curonium bromide minimize the way as to further such might be contamination, dilution, which involuntary movement or possibility indica- or an as a seizure misinterpreted An or of the chemicals. adulteration loss This two-chemical consciousness. tion of from other practices examination of best any by used not been has also protocol however, that ac- suggests jurisdictions, carry out execu- jurisdiction other through countability would be enhanced tion. process- of these improved documentation protocol includes en- Accordingly, es. (Sodium Protocol
3. One-Chemical with requirements hanced documentation Thiopental) procurement storage to the and regard considered the Finally, Department lethal chemicals. consist- protocol
merits of a one-chemical Qualifications Training Team C. TV thiopental. grams of sodium ing of 5 ju- practices from other A review of best one-chemi- advantage of the primary The responsible persons reveals risdictions simpler is much protocol cal should have establishing IV access an even lower risk provides administer therapy, prefer- training in IV quality com- As error its administration. in a or licensure ably certification possess pro- two- and three-chemical pared to the includes establish- field that health-related eliminating tocols, advantage of it has the scope practice. its ing IV access within which, injected if of the chemicals both always used Tennessee has Although pain. cause person, would into a conscious with IV Medical Technicians Emergency in animal process used It is similar to the paramedics to es- or certified that does certification chemical Using euthanasia. one access, previous Execution tablish IV greatly simplifies require refrigeration require- such a did not include accounting Manual maintaining process expressly re- updated The manual ment. injection chemicals. for the lethal responsible for estab- persons quires dis- has several The one-chemical training and such lishing IV access have First, three- the two- and advantages. certification. likely result in a protocols chemical would re- jurisdictions in other Second, practices Best the effect and rapid death. more that, continuing to the quire addition thiopental sodium required dosage of certi- maintain their required to more varia- education predictable and would be less licensure, IV team members fication and the sole mechanism when it is used as ble establishing practice regularly should also than it would when producing training exer- during access pancuronium IV used combination Third, always has been practice This cises. chloride. potassium bromide and Tennessee, writing. but not place in used a similar no other state has date it. expressly requires manual updated of lethal The the context protocol, and thus in History D. Procedure A. of Tennessee’s Electric Chair Use of Cut-Down the use of Department The also considered In Tennessee’s electric chair was a cut-down and various alterna- sys- refurbished and a new electrocution experts. with several procedures tive tem was installed Fred A. Leuchter *23 Department determined cut-down Associates, system Inc. Later the under- procedures particularly are not difficult for went modifications at the rec- substantial physicians especially for those perform, Morse, PhD, ommendation of Dr. Michael prior experience performing who have Weichert, Jay professional electrical Accordingly, it has been procedure. re- engineer who has with a nonsuited number option gain tained as an if needed to IV protocols. states on electrocution access. Through subsequent years Mr. Weichert Depart- has consulted with the Tennessee Qualifications E. Executioner and Train- ment concerning opera- of Correction ing system tion of its electrocution and has system tested and maintained the in work- Although jurisdictions require not all ing order. training therapy, executioner to have in IV training prepares such the executioner to The Mr. Committee met with Weichert at recognize adequate- when IV access is not Security Riverbend Maximum Institution established, ly allowing him to take appro- explained on March He detail priate long-stand- action. The corrective system how operates, the recom- ing practice but unwritten settings, mended respond and how to always has been to use executioner contingencies. various His recommenda- therapy. Department
trained in The IV incorporated tions have been into the elec- important require- considers this to be an manual. trocution expressly incorporated ment and has protocol. into the B. Equipment Electrocution Control Set- tings F. Chemical Administration Documenta- Expert input
tion received Department indicates that the equipment electrocution An practices examination of best from oth- should be set to render 1750 at volts jurisdictions suggested post-execu- er cycled seconds, amps, on for 20 off for 20 injection tion review of lethal executions is seconds, and on for an additional 15 sec- by contemporaneous facilitated documen- settings onds. These have been retained. tation of the administration of the lethal express require- chemicals. An C. Electrocution Equipment Maintenance contemporaneous ment for documentation Testing by a member of the IV teаm has been updated manual.
incorporated into the Although required by previ- the state’s ous written protocol, Department has Inquiry Selected Areas of —Electrocu- system tested its electrocution least tion quarterly regular and has conducted main- following relating required. issues electrocu- tenance as The Department among given particular were those considers to be adequate this schedule attention in researching practices: expressly incorporated up- best has it into the Appendix also updated manual manual. The dated of test- documentation requires
expressly
No. 43
A. Executive Order
maintenance,
in a
and modifications
ing,
on
B. Florida Governor’s Commission
ledger.
permanent
Injection
of Lethal
Administration
April
2007 Public
Transcript
C.
References
Selected
Hearing
(10th
Jones,
472 F.3d
Hamilton
COLE, JR.,
Judge,
R. GUY
Circuit
.2007)
Cir
dissenting.
Crawford,
death-penalty
457 F.3d
time in a
Taylor v.
For the first
case,
knowledge,
vacates
.2006)
my
this Court
*24
Cir
restraining order —an order
a temporary
(4th
Beck,
752
Cir.
445 F.3d
v.
Brown
incompetent
review
Court
2006)
20,
2006),
filed, (April
cert
pet. for
so
appealable
not
in
because it is
—and
05-10482)
(No.
way
Philip
doing clears the
Workman’s
Hickman,
9,
926
May
438
v.
F.3d
execution on
Morales
cert, denied,
Cir.2006),
126
U.S.-]
[-
the extensive
troubling, despite
Just as
(2006)
1314, 163L.Ed.2d 1148
S.Ct.
allegations Workman raises
and detailed
that Tennessee’s
le-
tending to
new
show
Tilton,
F.Supp.2d
465
972
v.
Morales
subject
thal-injection protocol will
him
(N.D.Cal.2006)
suffering in violation of
pain and
(D.Md.
Saar,
519
F.Supp.2d
412
Evans v.
Amendment; despite that Work-
Eighth
2006)
allegations with testimo-
supports
man
his
Reid
Blaze [Baze]
2006
(E.D.Va.2004)
WL
v.
3386544
Johnson,
v.
Rees,
(Ky.2006)
333
[217]
F.Supp.2d 543
S.W.3d
[207],
injection protocols,
ny
evidence from
despite
courts across
from
physicians
the United States
statements
recent
medical
familiar with lethal-
botched
studies,
executions;
express-
federal
lethal-
skepticism with similar
ing deep
Bredesen,
v.
181 S.W.3d
Abdur'Rahman
adopted
other
cert,
injection protocols
(Tenn.2005)
denied,
U.S.
[-
292
states;
despite the deference that
[2288],
L.Ed.2d
164
S.Ct.
-]
of a
judgment
to the
owes
appellate court
(2006)
court,
concludes that
majority
district
M2000-00897-SC-
v.
No.
Sundquist,
Coe
insufficiently
are
concerns
Workman’s
2000)
(Tenn.)
(April
R9-CV
five-day
a brief
to warrant
compelling
quo
the status
deter-
preservatiоn of
Webb,
A.2d 448
252 Conn.
State v.
have merit.
his claims
mine whether
(2000)
end,
cannot
simply
I
conclude
In the
Ex-
Challenges Propriety
Substantive
disturbing
face of Workman’s
Injection
Capi-
in State
by Lethal
ecution
legitimate
interest
allegations,
State’s
(2007)
21 A.L.R.
Proceedings,
6th
tal
to its crimi-
“finality”
giving
effect
Deborah,
Dele-
Denno,
Legislatures
When
im-
irretrievably
will be
judgments
nal
Be-
Paradox
Troubling
Death: The
gate
Indeed,
here.
by the TRO
paired
and Le-
Electrocution
State Uses
executing
hind
Workman
State’s interest
Us,
About
Says
“will, worst,
delayed
and What It
but
Injection
simply
thal
(2002)
the State’s
if
Court denies
St. L.J.
denied”
Ohio
Little,
Alley
motion to vacate the
v. Pro
lished
TRO. Skillern
decision
v.
181 Fed.
(6th Cir.2006)
cunier,
Appx. 509
involved
469 U.S.
105 S.Ct.
—which
(1985)
a preliminary injunction entirely inappo-
(Brennan,
The district court’s TRO cannot be Workman; State’s conviction of does magically preliminary transformed into a imposi- interfere with the State’s ultimate injunction, order, an appealable which is sentence; tion of the death and it does not though even majority the State and a indefinitely preclude the State from exe- may this Court wish it. This cuting makes the Workman. The TRO does no more majority’s heavy reliance on unpub- prohibit than Workman’s execution on preliminary whether a in- may de- which to decide court the district May so that And if the district junction should issue. days five later —whether mere termine —a injunction, I preliminary court denies the should issue. injunction preliminary hardly complain can interest— the State that the State’s conclude cannot delay delay minimal entailed the issuance avoiding or as described whether materially posi- it in worse put as to the TRO compelling so achieving finality—is proceed free to manifestly a tion. The State will be is treating what necessitate and, Indeed, under Ten- execution injunction. with Workman’s preliminary aas TRO law, required two it will not be take right nessee conclusion cannot such a so, applying to do such as any action reasons. cоurt for a new death war- supreme state matter, con- First, the State’s legal as a Supreme Court will rant. The Tennessee converting grounds provides
tention date, execution automatically set a new injunction, preliminary into a every TRO days little as seven could be as which fixed be- eviscerating the distinctions thereby court’s new from the date Par- devices. procedural these two tween 12.4(E). If the Sup.Ct. R. order. Tenn. have an invariably subjected to TRO’s ties grants Workman’s motion for district court on schedule proceeding interest injunction, that order will be preliminary they intended to under- activity whatever Court, immediately appealable to The es- being prior to restrained. take way in the stand nothing would the status to preserve of TRO is sence of its expedited review requesting State then, definition, is to purpose its quo; by appeal. happening an event prevent If an interest that there is no doubt happen. I otherwise Because believe would brief, how a TRO and any delay, no matter that the district court issued avoiding *26 deny determining injunction, in I would a legitimate preliminary a consideration not substantively jurisdiction. lack of prelimi- a motion for a TRO is the State’s whether always could nary injunction, then TRO’s Abuse of Dis- of Review: II. Standard injunc- characterized as preliminary
be cretion majority’s mis- exactly This is tions. view, prevents any TRO
take: in its grant a decision “The district court’s as scheduled “ef- taking place act from an order, appeal- when restraining temporary injunc- fectively operates” preliminary as a abuse of able, by this Court for is reviewed can therefore reviewed. tion Ne. Coalition discretion.” Ohio Homeless, This Court matter, at 1009. Second, F.3d practical a the State’s as many times that abuse-of- type has stated “finality” simply not the in is interest “highly is deferential” discretion standard irreparably or even interest that can be See, court. of the district delay judgment to the by one-week seriously harmed Owens, F.3d e.g., Al- States v. court’s TRO. United by the district imposed (6th Cir.2006); v. Smith Gen. effect giving though the State’s interest Botsford Cir.2005). (6th 513, 516 certainly Hosp., 419 F.3d is to Workman’s sentence Indeed, of discre- will find abuse appli- strong “[w]e one under recognized to be a definitе and firm only we have law, tion when strong it is so as case not cable that the trial court committed conviction interest execut- to an inviolable amount v. judgment.” Mitchell clear error May 9. As described Workman on ing Cir.2006). (6th Boelcke, 440 F.3d above, give more than the TRO does no Thus, court acted long as district days in so five additional district court discretion, may may tion protocol sound we not be unconstitution- within its even if we would al—can make a sufficient judgment showing reverse its to satis- differently. matter fy five-day delay have decided the that a Court brief Dep’t, Police 80 F.3d Ky. prelimi- EEOC v. State warranted to determine whether a (6th Cir.1996). 1086, 1100 nary injunction majori- should issue. The ty extraordinarily bar high, sets the may be about the Whatever else said unnecessarily given so the limited nature majority’s the district court’s review of of a TRO. order, it is not for an abuse of discretion. the district court an put
Workman
before
III. The Four Traditional
Factors
TRO
record,
impressive
particularly when con-
Each of the four traditional factors for
only at the
sidering that he was
TRO
equitable
weighs
relief
Workman’s fa-
stage,
preliminary-injunction
judge
vor. The district
was well within his
below,
stage. As discussed more detail
discretion to so conclude.
82-page complaint
Workman filed an
de-
tailing
allegations
respect
extensive
1. Success on the Merits
infirmity
to the constitutional
of Tennes-
Eighth
Amendment bars executions
see’s Revised Protocol. He further filed a
unnecessary
that “involve the
and wanton
55-page
support
memorandum
of his
pain,”
infliction of
Gregg Georgia,
v.
TRO,
motion for a
supported
48 exhib-
153, 173,
U.S.
96 S.Ct.
49 L.Ed.2d
its, including, among
things,
other
the Re-
(1976),
or that “involve torture or a
Protocol,
testimony
vised
affidavit
from
death,”
Kemmler,
lingering
In re
136 U.S.
lethal-injec-
physicians
two
familiar with
(1890).
436, 447,
10 S.Ct.
927 injunction thiopental agreed preliminary eral has to amount of sodium an effective challenging seat- for federal inmates the federal improperly lines were the IV because (Workman’s lethal-injection protocols In as unconstitution- Mem. ed his veins. (Flori- Gonzales, TRO, Ex 21 al. Roane v. No. 05-2337 for Support of Motion (D.D.C. 2007). Governor, 16, Feb. As the court in Report to at 8- da Commission 9).) Gooey explained, “This would that Diaz “looked v. Court Observers stated Taft if it note of pain,” “gasping was be remiss did not take like he was in a lot of ... minutes,” evidence other “grimacing” [from states] [that] air for 11 was (I'd, grave Ex. 20 raises concerns about whether a speak.” “seem[ed] (Second Inmate, sufficiently at condemned inmate would be Needed to Kill Dose 1).) exеcution, protocol] prior Governor anesthetized under Following [this stayed being F.Supp.2d and while executed.” 430 ordered all executions while Bush (S.D.Ohio 2006) (vacated 702, 707 on other reviewed this execution and committee Strickland, (Id., 21, Cooey lethal-injection protocols. grounds by Ex. v. F.3d 2007)). Cir. March 2.) suggesting a lack of Similar incidents majority raises the unremarkable have in Cali- proper anesthesia occurred yet that no court made a final point has 22) (Id., (noting that inmate’s fornia Ex. lethal-in ruling on the merits these than and chest “heaved more stomach jection procedures Eighth violate the times,” suggests improper which anestheti- Amendment. This is of course not sur (Brown Beck, zation); v. North Carolina prising considering lethal-injec that these 3914717, 2006 Dist. LEXIS 2006 WL U.S. challenges infancy are in their —the (E.D.N.C. 2006)) (noting April Mc-Donough, Supreme decision Hill v. Court’s convulsing, twitching, accounts of inmates - -, U.S. 126 S.Ct. (Workman’s choking); Ohio gagging, and (2006), year less than a 165 L.Ed.2d TRO, In Ex. Support Mem. of Motion (See, life claims. ago, breathed into these (Trouble Finding Inmate’s Vein Slows Stout, Open Door to e.g., David Justices (noting that after Injection Lethal in Ohio Injection Challenges, New York Lethal up began flowing, chemicals inmate sat 2006.) Times, majority But the June say working” “it’s not several times point also misses the that more more “something by if asked he could have have determined that there is a courts this”; after execution team mouth to end proce likelihood that these substantial curtain, cries reported closed the witnesses Amendment. Eighth dures violate the minutes))); Arkan- pain for five or ten See, Crawford, v. 2006 U.S. e.g., Taylor (Stoic (Id, His sas Ex. 30 Murderer Meets (“Mis (D.Mo.2006) Dist. LEXIS 51008 Quiet inmate By (noting Fate Means injection procedure souri’s current lethal after coughed sporadically cried out and subjects to an unnec condemned inmates into appearing to nod off unconscious- pain of unconstitutional essary risk ness))). monitor suffering. appropriate Without anesthesia, concerns, many ing strong there is light In of these of these might fur- these executions stayed pending argument have executions states torturous.”). See, Ultimately, regard e.g., even be procedures. ther review of these Hickman, judicial scorecard on F.Supp.2d 1037 less of the currеnt Morales Norris, (N.D.Cal.2006); lethal-injection challenges, compelling Nooner v. No. 06- (E.D. 2006). is sub evidence remains that Workman Ark. June Addi- jected unnecessary risk of a torturous tionally, Attorney Gen- the United States *30 Harm to and therefore has shown substan- Others death on the merits. tial likelihood of success Tennessee no doubt has an interest law, finality justice; the under if that majority Eighth The also states constitutional, execution is it should be car- regarding evolving concern Amendment’s ried out. But the here is the issue addi- decency help “does not Work- standards of by adding days harm five tional caused there is a consensus that man” because row; years on that Workman’s 25 death injection lethal is the most humane method Workman, outweigh cannot harm to everyone But knows that of execution. may put through proce- who be to death entirely per- on the this consensus is built much pain dure inflicts so cannot be process actually pain- that the is ception on non-livestock used animals. dignified. challenge less and The here is injection; lethal proper, painless not to 4. The Public Interest challenge grave is to the risk this injection predom- Lethal has become the lethal-injection particular procedure causes large part inant method of execution in suffering exactly opposite true of what — public perceived because the it to consensus believes method most humane form of execution. But the achieves. perhaps by drug-induced veiled method — that, Additionally, majority
929 Thus, § filed his 1983 com- had Workman public made on Protocol was the Revised majority maintains he 30, plaint filed his ad- when promptly Workman April have, would have presumably it with the should grievance ministrative and, Moreover, May 2 had Work- on been dismissed. of Correction Department pending § been on Febru- reme- man’s 1983 case his administrative having exhausted 1, Bredesen rescinded dies, ary § in the district when Governor his 1983 action filed (See very In is a real prior protocol, Mem. there May 4. Workman’s court on 11.) TRO, dis- Ex. In- that it would have been possibility of Motion Support that time. The State moved to stead, that Work- missed at majority determines lethal-injection § chal- delayed beсause he did dismiss two 1983 unreasonably man in the Tennessee federal lenges pending after the promptly §his 1983 suit not file grounds they that were proceedings, courts on the of his habeas conclusion view, moot, Executive which, light terminated in of the Governor’s majority’s in the Little, Payne v. No. 06-00825 Order. See in 2000. Little, (M.D.Tenn.); v. No. 06- Harbison lightly Supreme I do not take (M.D.Tenn.). Harbison, the 1206 In State that we must ensure admonition Court’s argued timely pursue death-row inmates cur- injection protocol There is no lethal engage in last- rather than available relief effect;, thus, nothing in there is rently that could have been requests minute this, light pre- the issues litigate. In instances, many appli- In brought earlier. moot, present action are sented sufficiently lodged can challenges cable controversy, no actual case or as there is stays already-sched- in advance to avoid jurisdiction under and this Court lacks instances, In how- executions. some uled Article III of the United States Consti- ever, necessary proper. stays such are tution. is one of those instances. This Harbison, Support In Of Defen- Mem. legally begin, it would have been To (emphasis add- Motion To Dismiss dants’ § bring his
futile for Workman to ed). made the iden- Payne, In State lethal-injection challenge Tennessee’s prior argument tical because conclusion of his habeas protocol at the “[tjhere rescinded, had been majority is assuming that the proceedings, currently injection protocol no lethal terminated right proceedings that those effect; nothing litigate.” thus there is activity subsequent rather than with Support Of Defendants’ Payne, Mem. In Supreme Court’s in this Court. Until To Dismiss. Motion Camp- v. May 2004 decision Nelson in no Next, execution was bell, 637, 645-47, Workman’s 124 S.Ct. 541 U.S. § his way imminent when (2004), law of this 158 L.Ed.2d he cognizable, because challeng- claims first became inmates from precluded Circuit and death litigating his conviction through was still lethal-injection protocols ing stayed was and his execution F.3d sentence Sapp, § actions. See In re Williams, September (6th Cir.1997); two-year period between re 359 a In 17, 2006. Workman (6th Cir.2004); 2004 and October Cooey see also F.3d 811 Cir.2007) from the district Strickland, filed his motion for relief 479 F.3d denying peti- his habeas judgment (Gilman, (agreeing with the court’s dissenting) J. 27, 2004. At the same August оn was holding petitioner court’s district stay. time, a motion for § he filed bring his 1983 method- required Nelson). stay Septem- on granted the district court challenge prior to of-execution 1, 2004, lethal-injection proto- ordered to remain scinded Tennessee’s ber *32 February col disposed until the court had on 2007 and moved to effect judg- pending lethal-injection challenges for relief from dismiss Workman’s motion September this Court the Tennessee federal courts on the ment. On moot; stay. grounds they Because that were and where declined to vacate lethal-injection deny protocol court did not Workman’s mo- the actual under district until judgment tion for relief from October which Workman will be executed was not 17, 2006, stay expire April simply did not until that established until I date. cannot conclude that unreason- Workman ably delayed § his action. bringing say
It makes no sense to
that Workman
First,
challenge
points
§
have
to
Two final
remain.
the rec-
should
filed his
lethal-injection
that
protocol
diligently applied
even before he
ord shows Workman
on
to the
Supreme
knew whether he would succeed
his
Court to vacate
pending challenge
precisely
grounds
in the district court to his execution date on
sentence,
complains, namely,
his conviction and
or on his state
about which he now
petition.
requirement
setting
just
coram nobis
Such a
his execution date within
inmates,
Workman,
days
to
forces
such as
si
few
of the establishment of the
multaneously litigate
they
their
prevent
claims
Revised Protocol would
him from
challenging
constitutionality
are entitled to relief from their convictions
of that
(See
sentences,
that,
if
protocol.
Sup-
even
not enti
Workman’s Mem. In
4.)
TRO,
port
tled to relief from their
convictions
Motion For
Ex.
The State
sentences,
(See id.,
they
opposed
are nonetheless entitled to
motion.
Workman’s
Ex.
5.)
particular
doing,
represented
relief from a state’s
In so
the State
methodology.
Cooey,
Supreme
See
Workman filed Supreme majority before and the urge State Court’s 2004 decision Nelson would not that the time has come to execute Work- have cognizable been under the law of this man because his conviction years is now 25 Circuit; where Workman’s execution was old and he has multiple stays received course, not stayed past. imminent because it was Congress Of neither nor years court; than more two the district have fit limita- specify courts seen where actively pursuing long may Workman was re- tions on how death-row inmates that, granted, executions, lief if kept prior would have mooted his be alive to their or claims; § 1983 stays where the Governor re- limitations on the number of that a minimum, majority 1. To circumspect the extent that the State and the we should be about argue following Cooey yet § 1983 statute-of-limitations where it is not a final analysis judgment owing pendency petition in this Court’s recent divided deci- to the of a here, Cooeyapplies agree. rehearing sion in I cannot At en banc. court, deny the State’s motion Thus, I would I am to. may be entitled defendant the TRO. that, of them- vacate in and persuaded simply row
selves, years on death Workman’s I dissent. Accordingly, respectfully bearing on any stays have past his properly issued district court whether to minimize the This is not TRO here. victims in and the of the State
interests out. sentence carried
seeing Workman’s *33 justice that while must remember
But we injustice is not “prompt prompt,
should be v. Refugee Ctr. the answer.” Haitian DUNHAM, A. Petitioner- Todd Smith, 1040 n. 43 676 F.2d Appellant, Cir.1982) added); also Ev- see (emphasis v. 927, 930, 111 S.Ct. Muncy, 498 U.S. ans (1990) (Marshall, J., 112 L.Ed.2d America, UNITED STATES in- that the state’s dissenting) (explaining Respondent-Appellee. court to permit a finality does not terest 04-2567, 05-1897. Nos. late-arriving evi- way “look the other when par- upsets its determination dence Appeals, United States Court lawfully can be execut- ticular defendant Sixth Circuit. ed”). 19, 2007. Argued: April 8,May Decided and Filed: Conclusion V. majority
It is unfortunate inquiry— limited to foreclose the
chooses pre- no more than inquiry that does days— for a mere five quo the status
serve conclusion very well its
that could confirm nothing to fear has Philip Workman lethal-injection pro- Tennessee’s new doing so majority’s reasons for
tocol. harm the unconvincing. Whatever
are by the issuance might sustain
State can called— “harm” it indeed
TRO—if to our damage done next
pales allowing single defen-
Constitution under a method of perish
dant course, at this rights. Of violates his cannot stages we preliminary
most ulti- allegations whether Workman’s
know task is meritorious. Our
mately prove will allegations
only to ascertain whether disturbing to war- sufficiently raises are
he halt to his temporary a brief and
rant in this Considering the record
execution. to the district and the owed
case deference notes de- paralysis may public be horrific. The de- — spite overwhelming what it sees as evi- serves assurances that this is not the case. dence that lethal is indeed as As the explained, Tennessee Governor has intends, “The administration of the penalty humane as the consensus Tennes- in a appropriate constitutional and manner unprompted see has—as if the af- —taken responsibility highest impor- re-evaluating appar- firmative act of this (Workman’s Support tance.” Mem. In ently impeccable procedure somehow (Governor’s TRO, Motion for Ex. 3 Execu- it even more. “refined” What course 43).) tive Order No. really happened here is that Tennessee recognized that numerous courts across IV. Timeliness country enjoining were Eighth majority on The grounds Amendment because of further contends that the district court failing the real risk of a torturous death. And for erred to consider that, filing § whether of his Workman’s applauded. Tennessee should be At matter, timely. action was As an initial time, however, present there is no despite majority’s the State’s and the concluding basis for that Tennessee has heavy reliance on the contention that Indeed, sufficiently lessened this risk. unreasonably delayed Workman has suggests pro- evidence the risk remains suit, § bringing his the State failed to nounced. raise this as a defense before the district (Tr. court. Proceedings, Dist. Ct. Mo- 2.Irreparable Injury 2007.). TRO, 4,May tion for See Thur- Nobody contests Workman will suf- Freight Sys., man v. Yellow 97 F.3d (6th Cir.1996) fer if irreparable harm his execution is not (holding arguments stayed. simply than the harm of Worse not raised before the district court are execution, waived). however, Workman also faces majority does not contend excruciating pain substantial risk of in the dilatory challenging that Workman was Protocol, process. the Revised nor could it. Once