Ky. death penalty case being watched in N.H.
Lethal injection under scrutiny
CONCORD, N.H. - As the US Supreme Court prepares to hear arguments on whether lethal injection is too painful a way to execute inmates, lawyers in a potential death penalty case in New Hampshire are preparing their own challenge.
Lawyers representing Michael Addison, who is accused of killing a police officer, have already filed numerous challenges to the state death penalty law. Now they are updating arguments they were prepared to make in another case nearly a decade ago that administering the lethal injection itself is "cruel and unusual" punishment.
"Lethal injection is not a kinder, gentler way of killing," a team of public defenders wrote in May 1998. "In truth, it is brutal and cruel."
The brief was filed but never argued in the case of Gordon Perry, because Perry pleaded guilty to first-degree murder in the death of Epsom police officer Jeremy Charron, avoiding a potential death sentence.
Addison is charged with capital murder in the shooting death last October of Manchester officer Michael Briggs. His team includes some of the public defenders who represented Gordon.
"We do intend to challenge lethal injection in New Hampshire as a procedure that is unconstitutional," said Richard Guerriero, a member of the defense team.
The documents are due at the beginning of January.
Addison's lawyers and the attorney general's office are closely watching the US Supreme Court, which agreed last week to hear a challenge to lethal injection from two condemned inmates in Kentucky. The case involves the fundamental question of whether the mix of drugs used in Kentucky and elsewhere violates the Eighth Amendment's ban on cruel and unusual punishment.
"It could be a very far-reaching decision where the court strikes down this method of imposing the death penalty," said Jeffrey Strelzin, New Hampshire's senior assistant attorney general. But, he said, the ruling also could be very narrow, affecting only the Kentucky cases.
All 37 states that perform lethal injections use the same drugs, but at least 10 states suspended lethal injections after opponents alleged it was ineffective and cruel, according to the Death Penalty Information Center.
The drugs are an anesthetic, a muscle paralyzer, and a drug that stops the heart from beating. Opponents argue that if condemned prisoners are not given enough anesthetic, they can suffer excruciating pain without being able to cry out.
"We might like to think that we allow the condemned to slip painlessly into a sleep of death," Perry's defense team wrote in 1998. "That myth is our comfort. It is not reality."
States began using lethal injection in 1978 as an alternative to electrocution, gassing, hanging, and firing squad. Since use of the death penalty resumed in 1977, 790 of 958 executions have been by injection.
New Hampshire adopted lethal injection in 1986, but no one has been executed in the state since 1939.
In the Gordon case, the public defenders cited several studies of botched lethal injections, including gruesome scenes of convulsions and needles popping from arms.
Guerriero said his team has 10 years more of evidence to cite in their Addison challenge.
Death penalty opponents often cite a 2005 study in the British medical journal The Lancet indicating that the anesthetic can wear off before an inmate dies. The study involved 49 US executions. In 21, the study found, inmates were probably conscious when they received the final drug.
"No matter what the worst of our murderers deserve," the defense team wrote in the Gordon case, "we as a community do not deserve to have our values betrayed by the legalization of torture."
Addison's case is one of two potential death penalty cases pending in New Hampshire. The other involves businessman John Brooks, 54, who is accused of orchestrating a plot to kill handyman Jack Reid Sr. in 2005.
A third person - Gary Sampson of Abington, Mass. - was sentenced to death in a federal trial in Massachusetts. The judge ordered that Sampson be executed in New Hampshire, the closest state with a death penalty. He was convicted of killing three men during a crime rampage in Massachusetts and New Hampshire in 2001. 