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A new National Public Radio (NPR) analysis of more than 200 autopsies of death-row prisoners executed by lethal injection has found that 84% of those executed showed evidence of pulmonary edema, a condition in which a person’s lungs fill with fluid that creates the feeling of suffocation or drowning that experts have likened to waterboarding.
The pulmonary edema findings were endemic to deaths by lethal injection, remaining consistent irrespective of the state that that carried out the execution or the drug protocol employed in putting the prisoner to death. Autopsy results showed the presence of pulmonary edema in lethal injections involving sodium thiopental, pentobarbital, midazolam, and etomidate.
Midazolam, the controversial drug employed by eight states that was the focus of the U.S. Supreme Court’s 2015 lethal-injection decision, Glossip v. Gross, caused the highest prevalence of pulmonary edema of any lethal-injection drug. NPR reports that doctors who reviewed the autopsy reports said the findings “raised serious concerns that many inmates are not being properly anesthetized and are therefore feeling the suffocating and drowning sensation brought on by pulmonary edema.”
Autopsies also showed froth and foam found in many prisoners’ lungs, an indication that they were struggling to breathe as their lungs were filled with fluid caused by pulmonary edema. The froth provided evidence that the first drug in the lethal-injection protocol causes the pulmonary edema, since the second drug paralyzes the lungs and stops the defendant’s breathing. The third drug usually stops the heart.
Frothing was found in prisoners executed by a single drug, as well as by multi-drug protocols. Executions with midazolam had the highest rate of frothing and fluid build-up.
The U.S. Court of Appeals for the Eleventh Circuit has denied habeas corpus relief to three Georgia death-row prisoners in a series of opinions that narrowly interpreted the scope of a defendant’s right to effective representation in the penalty phase of a capital trial. The decisions, issued in unrelated cases over the course of 36 hours on September 15 and 16, 2020, absolved court-appointed counsel of significant failures in investigating, presenting, and arguing to the jury reasons to spare their clients’ lives.
On September 15, a three-judge appeals court panel ruled without dissent In Ledford v. Warden that court-appointed defense counsel to Michael Ledford had not been ineffective for telling the jury during his May 2009 sentencing proceeding that Ledford had Anti-Social Personality Disorder, was amoral, and lacked empathy. The jury also heard from the defense mental health expert that Ledford was a “sexual sadist” and a psychopath. The circuit court ruled that was not an unreasonable strategy to spare Ledford’s life, that counsel’s performance had not been deficient, and that counsel therefore was not ineffective.
One day later, the court unanimously ruled in Franks v. Warden that, despite “undeniable … overwhelming evidence of their client’s guilt,” trial counsel were not ineffective for arguing in the penalty phase of David Scott Franks's 1998 capital trial that the jury should spare his life based on residual doubt over who was the killer. Franks’ court-appointed counsel focused on doubt as to guilt and testimony asserting his “good character,” instead of investigating and presenting evidence of Franks’ chronically traumatic childhood and abusive father, his substance abuse, or his cognitive defects and mental illness. Deferring to the factfinding of the Georgia trial court, the circuit panel said that the Georgia courts had not unreasonably applied Supreme Court law in denying Franks’ ineffectiveness claim. Because trial counsel had not been ineffective, the panel said, Franks’ court-appointed direct appeal counsel also could not have been ineffective for failing to investigate mitigating evidence and challenge trial counsel’s performance claim.
Also on September 16, a third panel of the court ruled in Presnell v. Warden that Virgil Presnell's court-appointed trial counsel had not been ineffective in the penalty phase of his 1999 resentencing trial for failing to investigate and present evidence that Presnell’s mother drank bourbon to excess throughout her pregnancy and that, as a result, Presnell suffered from fetal alcohol spectrum disorder. The court unanimously held that counsel’s failure to further explore the issue was not unreasonable once Presnell's mother told his trial investigator that she “did not drink except socially” during the pregnancy.
