As noted in today's News Scan, Florida is scheduled to resume executions tomorrow by finally carrying out the thoroughly deserved and long overdue sentence of Jerry Correll. Correll tortured his ex-wife, stabbed her, and raped her as she lay dying of an abdominal wound. Her also murdered her mother and sister. Then he murdered their five-year-old daughter. According to the trial judge (quoted in the federal district court opinion),
Correll should have been executed in January. What held it up?
[The medical examiner] testified Tuesday Correll lived approximately five minutes before losing consciousness. It is difficult to imagine the degree of emotional anguish suffered by that dying child. She had apparently witnessed the brutal murder of her mother and experienced the horror of her own father repeatedly driving a sharp knife into her chest.* * *There is no reasonable explanation for her murder other than to permanently silence her as a witness to the death of her mother.* * *This five year old child was clad only in her nighty and was clutching her cloth doll when she was brutally and repeatedly attacked by her own father.
Correll should have been executed in January. What held it up?
After the U.S. Supreme Court took up the Warner/Glossip v. Gross case to review Oklahoma's very similar protocol, it was reasonable for Florida to put its own executions on hold, as the protocols are essentially the same. Why did the Florida Supreme Court not grant the state's motion to vacate the stay after Glossip came down?
According to the Florida Supreme Court's October 2 opinion in Correll's case, it sent the case back to the circuit (trial) court only on "Correll's claim that the administration of midazolam as applied to him would result in a paradoxical reaction in light of his alleged brain damage and history of alcohol and substance abuse." The trial court held a hearing on this individual-specific claim on August 19 and rejected it.
"Paradoxical reaction" means that even though midazolam is a sedative, in a few patients it produces "agitation, hyperactivity, and combativeness." See Glossip footnote 3. That footnote continues, "Moreover, the mere fact that a method of execution might result in some unintended side effects does not amount to an Eighth Amendment violation. '[T]he Constitution does not demand the avoidance of all risk of pain.' Baze, 553 U. S., at 47 (plurality opinion)."
Correll's expert testified that due to his combination of risk factors "these factors together would have a synergistic effect that could theoretically increase the likelihood that he will suffer a paradoxical reaction, possibly up to 100%." "Could theoretically ... up to"? What the heck does that mean? One of the first things any intelligent consumer learns is that "up to" in an advertisement means that the number that follows is utterly meaningless.
If this execution goes forward, as it should, Correll should be watched carefully for any sign of paradoxical reaction after injection of midazolam. If there is none, and if Dr. William "Up To 100%" Morton testifies in such a case again, he should be grilled with it on cross-examination.
How about the Glossip requirement to show an available alternative? After Glossip there was much wailing about how inmates couldn't possible argue for methods of their own execution, but Correll's lawyers did. Sort of. From the Florida Supreme Court opinion:
If you really want to ditch midazolam, anti-DP folks, we are with you. Just help us break down the barriers to getting pentobarbital or thiopental. Until these drugs are readily available states can continue to use midazolam.
According to the Florida Supreme Court's October 2 opinion in Correll's case, it sent the case back to the circuit (trial) court only on "Correll's claim that the administration of midazolam as applied to him would result in a paradoxical reaction in light of his alleged brain damage and history of alcohol and substance abuse." The trial court held a hearing on this individual-specific claim on August 19 and rejected it.
"Paradoxical reaction" means that even though midazolam is a sedative, in a few patients it produces "agitation, hyperactivity, and combativeness." See Glossip footnote 3. That footnote continues, "Moreover, the mere fact that a method of execution might result in some unintended side effects does not amount to an Eighth Amendment violation. '[T]he Constitution does not demand the avoidance of all risk of pain.' Baze, 553 U. S., at 47 (plurality opinion)."
Correll's expert testified that due to his combination of risk factors "these factors together would have a synergistic effect that could theoretically increase the likelihood that he will suffer a paradoxical reaction, possibly up to 100%." "Could theoretically ... up to"? What the heck does that mean? One of the first things any intelligent consumer learns is that "up to" in an advertisement means that the number that follows is utterly meaningless.
If this execution goes forward, as it should, Correll should be watched carefully for any sign of paradoxical reaction after injection of midazolam. If there is none, and if Dr. William "Up To 100%" Morton testifies in such a case again, he should be grilled with it on cross-examination.
How about the Glossip requirement to show an available alternative? After Glossip there was much wailing about how inmates couldn't possible argue for methods of their own execution, but Correll's lawyers did. Sort of. From the Florida Supreme Court opinion:
Alternatively, Correll states that he has satisfied this requirement by suggesting that the State use properly compounded pentobarbital, which is used by other states that conduct executions.* * *Further, Correll has failed to offer evidence regarding the availability of compounded pentobarbital. Correll's assertion that he has demonstrated the availability of compounded pentobarbital rests on the following propositions: (1) other states use compounded pentobarbital; (2) the State has a pharmacy that could import compounded pentobarbital; and (3) the State could apply for a sterile compounding license. Although these statements may be correct, they do not amount to competent, substantial evidence of the drug's ready availability as a feasible alternative, much less satisfy the heavy burden that Correll must bear in order to successfully challenge the use of midazolam. See Troy v. State, 57 So. 3d 828, 840 (Fla. 2011) ("Conclusory allegations are not sufficient to establish a legally sufficient claim for postconviction relief." (citing Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000))); cf. Howell, 133 So. 3d at 521-23 (rejecting Howell's attempt to satisfy the burden of proof regarding the constitutionality of midazolam by demonstrating weaknesses of the State's testimony). Therefore, Correll's challenge to the use of midazolam fails.
If you really want to ditch midazolam, anti-DP folks, we are with you. Just help us break down the barriers to getting pentobarbital or thiopental. Until these drugs are readily available states can continue to use midazolam.
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