Taylor v. Crawford

• Decision Date: 04 June 2007
• Docket Number: No. 06-3651.,06-3651.
• Citation: 487 F.3d 1072
• Parties: Michael Anthony TAYLOR, Appellee, v. Larry CRAWFORD, Director, Missouri Department of Corrections; James D. Purkett, Superintendent, Eastern Reception Diagnostic & Correctional Center, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

487 F.3d 1072

Michael Anthony TAYLOR, Appellee, v. Larry CRAWFORD, Director, Missouri Department of Corrections; James D. Purkett, Superintendent, Eastern Reception Diagnostic & Correctional Center, Appellants.

No. 06-3651.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2007.

Filed: June 4, 2007.

James R. Layton, Asst. Atty. Gen., argued, Jefferson City, MO (Michael Pritchett and Stephen D. Hawke, Missouri Atty. General's Office, on the brief), for appellant.

Ginger D. Anders, argued, Washington, DC (C. John Pleban and Lynette M. Petruska,

St. Louis, MO, Donald B. Verrilli Jr. and Matthew S. Hellman, Washington, DC, on the brief), for appellee.

Before RILEY, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

The State of Missouri, through its officers Larry Crawford and James D. Purkett (collectively "the State"), appeals the district court's judgment, which concludes that Missouri's lethal injection protocol is unconstitutional. Finding no wanton infliction of cruel and unusual punishment in violation of the Eighth Amendment, we reverse.

I.

Michael Anthony Taylor pleaded guilty and was sentenced to death in Missouri state court for the abduction, abuse, and brutal murder of 15-year-old Ann Harrison.¹ His convictions and sentence have withstood judicial scrutiny on direct appeal, see State v. Taylor, 929 S.W.2d 209 (Mo.1996) (en banc), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997), and in federal habeas corpus proceedings, see Taylor v. Bowersox, 329 F.3d 963 (8th Cir.2003), cert. denied, 541 U.S. 947, 124 S.Ct. 1681, 158 L.Ed.2d 375 (2004). Mr. Taylor filed this 42 U.S.C. § 1983 action in the federal district court, the timeliness of which was not contested, challenging the State's three-chemical procedure used in carrying out a sentence of death by lethal injection. See Mo.Rev. Stat. § 546.720 (describing the manner of execution as either the administration of lethal gas or lethal injection, and authorizing the department director to make sufficient provisions for carrying out either method).

At the time Mr. Taylor brought suit, the State intended to use its unwritten procedure of administering a lethal combination of three chemicals through an intravenous line (IV) placed in the femoral vein. In prior executions, a physician placed the IV and prepared the chemicals, and nonmedical prison personnel administered the injections in a three-step process. First, a 5-gram dose of sodium pentothal (also known as thiopental) was injected to render the inmate unconscious. Second, a 60-milligram dose of pancuronium bromide was administered to paralyze the inmate's muscles, and third, a 240-milliequivalent injection of potassium chloride was injected to stop the heart. A saline flush followed each injection. Mr. Taylor now asserts that Missouri's procedure creates a significant risk that he might suffer the wanton infliction of pain because if the first chemical, thiopental, does not sufficiently anesthetize him, he will feel the pain of the third chemical, potassium chloride, which indisputably will cause an excruciating burning sensation as it travels through his veins to induce a heart attack, and yet he would be unable to indicate that he is experiencing pain due to the paralyzing effects of the second chemical, pancuronium bromide.

The district court failed to set a hearing on the merits of Taylor's complaint in a timely fashion, and this court ultimately ordered the chief district judge to reassign the case to a different judge who would hold an immediate hearing and make a ruling.² In an order dated January 31 2006, the district court initially concluded that the three-chemical sequence was not unconstitutional, and Mr. Taylor appealed. Concluding that justice was not served by the expedited nature of that hearing, though the district court had fully complied with our prior order requiring it, we remanded for additional discovery and a continuation of the evidentiary hearing to provide Mr. Taylor an adequate opportunity to fully present the merits of his claim.

On remand, the district court permitted the parties to engage in a period of additional discovery and reconvened the evidentiary hearing on June 12-13, 2006. The additional discovery permitted access to the Department of Correction's documents and logs pertaining to the last six executions and a limited anonymous deposition of John Doe I ("Dr. Doe I"), the physician in charge of mixing the chemicals and inserting the IVs for the past six executions. The execution logs reveal that Missouri does no toxicology reporting following an execution to ascertain the amount of chemicals actually in the body at the time of death. Dr. Doe I indicated that the chemical amounts listed in the execution logs are not always accurate as they represent only "an approximation" of the chemicals used and disposed of; he does not record the amount of the dose actually administered to the inmate as the logs are used only for prison inventory and DEA reporting requirements. (See Appellants' App. at 647-49.) In each of the past six executions, however, death occurred in five minutes or less from the time the first chemical was administered, and there was not a scintilla of evidence that any prisoner ever suffered any pain other than what was necessary to acquire access to the prisoner's circulatory system through the insertion of the needed intravenous lines.

Dr. Doe I revealed that he has dyslexia, which causes him to transpose letters and numbers, but he asserted that his condition is not significant to his work. "I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (Id. at 660.) As he understood Missouri's unwritten procedure, he had the independent authority to alter the chemical doses at will based on his medical judgment, and that in fact, there were occasions when he chose to give a dose of only 2.5 grams of thiopental without notifying the director, but in his opinion, this dose was sufficient. Under the unwritten procedure, Dr. Doe I would monitor the anesthetic depth of the inmate to ensure he was fully unconscious solely by observing the inmate's facial expression through an observation window.

The district court allowed the plaintiff to conduct a Rule 34 inspection and videotaped tour of Missouri's execution chamber. The inspection revealed that the operations room in which the chemicals are mixed and administered is lit when the chemicals are mixed but dark during the execution, though the execution chamber remains lit during the execution. The observation window from which Dr. Doe I observes the procedure is partially obstructed by blinds, and the inmate faces away from the window. During the procedure, the inmate's face is left uncovered, but the rest of his body, including the femoral vein injection site, is completely covered by a sheet.

At the continued evidentiary hearing, Mr. Taylor presented the testimony of Dr. Mark Heath, an anesthesiologist, and Dr. Thomas Henthorn, an expert in pharmacokinetics. These experts agreed that the third injection (the potassium chloride) would be exceedingly painful if administered without having first achieved adequate anesthetization of the condemned inmate.

Dr. Heath criticized the State's lack of a written protocol, asserting that a clearly written protocol is important so the procedure can be rehearsed and to ensure a humane execution. He noted that significant variations from the articulated procedure had occurred, citing Dr. Doe I's testimony that he had in fact prepared a dose of only 2.5 grams for the previously carried out execution, as well as for Taylor's previously scheduled execution despite the State's representation that it used a 5-gram dose. Dr. Heath noted that Dr. Doe I admitted he did not keep accurate chemical logs, contrary to standard practice. In Dr. Heath's opinion, Dr. Doe I, a board-certified surgeon, is not competent to oversee the induction of general anesthesia and would not be hired at any hospital in the United States as an anesthesiologist.

Dr. Heath opined that a humane execution under this three-chemical protocol requires a state of anesthesia deep enough for surgery. He admitted that a dose of either 2.5 or 5 grams of thiopental would be sufficient to reach this depth and that, in fact, rapid induction of anesthesia for surgery is generally achieved in the average adult with a 0.28-gram dose. He expressed concern, however, that setting a high dosage level alone does not guarantee the successful delivery of that dose into circulation and urged the use of additional independent monitoring to ensure successful delivery of the chemical into the bloodstream.

Dr. Henthorn testified that an anesthetic depth known as "burst suppression," which is deeper than that required for surgery, must be reached for a humane lethal injection protocol because absent this depth, it is possible to be unconscious and still feel pain. He testified that burst suppression will be achieved in one minute and 45 seconds using a 5-gram dose of thiopental and in just under three minutes using a dose of 2.5 grams. He was of the opinion that the State's past practice did not include a long enough wait time to ensure adequate anesthetization before administering the second and third chemicals. He also stated that once burst suppression is achieved with a 5-gram dose of thiopental, it will be maintained for at least 45 minutes with no additional monitoring necessary. He identified several potential problems that can adversely affect the proper delivery of the anesthetic, such as an improperly prepared dose, a leaking tube that could not be detected if the IV site is covered by a sheet, or an IV insertion error that could cause the anesthetic to be administered into tissue rather than the bloodstream.

Mr. Taylor also presented the testimony of Dr. Stephen Johnson, a radiologist and expert in femoral line...