Speaker 1: If you will place your left hand on the Bible
Speaker 1: and raise your right hand, and please repeat after me,
Speaker 1: and I do solemnly swear, then titled action find the
Speaker 1: defendant guilty of the time. It makes no sense, it
Speaker 1: doesn't fit. If it doesn't fit, you must a quit.
Speaker 1: We all took the same of office. We're all bound
Speaker 1: by that common commitment to support and defend the Constitution,
Speaker 1: to bear true faith and allegiance to the same that
Speaker 1: you faithfully discharge the duties of our office. Do you
Speaker 1: solemnly swear or affirm that the testimony you are about
Speaker 1: to give will be the truth, the whole truth, and
Speaker 1: nothing but the truth. From Tenderfoot TV and I Heart Radio,
Speaker 1: this is sworn. I'm your host, Philip Holloway. Let me
Speaker 1: just explain that there is this thing that we call
Speaker 1: lethal injection. Lethal injection is a method of executing prisoners
Speaker 1: here in America. It basically involves the collecting and injecting
Speaker 1: of certain kinds of chemicals through an intravenous that would
Speaker 1: circulate in the body of a prisoner and would cause
Speaker 1: them to die. And lethal injection uses things that in
Speaker 1: my hand would be a medicine, but in the hand
Speaker 1: of the state it becomes a poison. That was Dr Zivitt,
Speaker 1: an anastasiologist here in Atlanta, Georgia. We sat down with
Speaker 1: doctor Zivitt and his colleague, Dr Edgar to get their
Speaker 1: medical opinions on lethal injection, how it works, and whether
Speaker 1: or not in their professional medical opinions it falls under
Speaker 1: the category of cruel and unusual punishment. My name is
Speaker 1: is Joel's Zivitt. I'm a physician and I'm on the
Speaker 1: faculty at every university. Traditionally, the mainstay of execution involved
Speaker 1: a class of a drug called a barbiturate, of which
Speaker 1: penta barbital is an example. It's an old drug. It
Speaker 1: used to be an old sleeping pill. Pena barbital is
Speaker 1: uncommonly used in hospitals, but periodically it's used. Certain states
Speaker 1: have had difficulty obtaining pender barbital. Pender barbital is in
Speaker 1: short supply, and also manufacturers vendors don't want it to
Speaker 1: necessarily get into the hands of states that are going
Speaker 1: to be using it for execution. Some states have sought
Speaker 1: alternatives dependent barbital, and one of the alternatives dependent barbital
Speaker 1: is the use of a drug called medazzy lamb, and
Speaker 1: medaz lam is something called a benzo diazepine. You may
Speaker 1: have heard of drugs like medas lam and the class
Speaker 1: of medazzy lamb, for example, a drug called valium. It's
Speaker 1: actually hard to kill people with medazzy lamb. It's not
Speaker 1: made for that. It's made not to kill people. And again,
Speaker 1: to be clear to none of this is the practice
Speaker 1: of medicine, nor does medicine have any comment or assistance
Speaker 1: in any of this. This is the state collecting, gathering
Speaker 1: on its own, making investigations and making claims. States who
Speaker 1: are needing to find chemicals for which to produce death
Speaker 1: use medaz lam as a part of a three drug
Speaker 1: or two drug combination to cause death. Pena barbatrol is used,
Speaker 1: actually as the soul agent. Pena barbatol is used in
Speaker 1: a large quantity here in Georgia. That's the that's the
Speaker 1: chemical that's used, and by itself it can cause death.
Speaker 1: Medazzy lamb by itself does not easily cause death, and
Speaker 1: so it's mixed with other chemicals. You usually a combination
Speaker 1: of something called potassium chloride, which is intended to stop
Speaker 1: the heart, and another drug called a paralytic paralyzing drug,
Speaker 1: and what that drug does is when it's given, a
Speaker 1: person will be motionless, they will not be able to move,
Speaker 1: not be able to breathe, but inside they'll be very
Speaker 1: much awake and could experience any kinds of feeling. When
Speaker 1: you're given a paralyzing drug. If you're not given the antidote,
Speaker 1: or if you're left in the presence of this drug,
Speaker 1: you will die of asphyxiation. And there is some concern
Speaker 1: that execution using medazzy lamb and paralyzing drug is really
Speaker 1: death by asphyxiation. I'm trying to make a case that
Speaker 1: pina barbital is a cruel form of death, and the
Speaker 1: court is saying, show us the evidence. Maybe um two
Speaker 1: years ago now, I think I was given a aisle
Speaker 1: of autopsies, autopsies performed on executed prisoners here in Georgia.
Speaker 1: When I look through the file, it struck me that
Speaker 1: there was something unusual. It seemed to me that there
Speaker 1: was some organ damage, specifically to the lungs, to the heart,
Speaker 1: to the liver. None of this I had expected, and
Speaker 1: so I began to do some investigations of what these
Speaker 1: organ system failures might suggest, what we find in majority
Speaker 1: of these these inmates or these prisoners, rather, are these
Speaker 1: fluid filled in the lungs, And if you could imagine,
Speaker 1: it's more akin to what you might find in the
Speaker 1: circumstances when someone drowns to death. It also looks interesting
Speaker 1: similar to when someone overdoses on heroin, and you could
Speaker 1: ask yourself is that cruel? By way of legal background,
Speaker 1: the eighth the Moment to the Constitution, provides protection against
Speaker 1: cruel and unusual punishment at the hands of the government
Speaker 1: in the context of criminal sentencing. When the founding fathers
Speaker 1: were drafting the Constitution, they did not have to look
Speaker 1: back very far at all to find instances of torture
Speaker 1: and other criminal punishments that were certainly cruel, even if
Speaker 1: not so unusual for their time. Thus, the eighth Amendment
Speaker 1: is a direct protection against the kinds of punishment the
Speaker 1: King and Crown used to dole out once upon a time.
Speaker 1: The problem is, as capital punishment and prison conditions have
Speaker 1: changed and evolved over time, the vague meaning of the
Speaker 1: eighth Amendment is consistently challenged, as courts have had to
Speaker 1: decide just what is and is not cruel and unusual punishment.
Speaker 1: Like so many things in the Constitution, it is a
Speaker 1: constantly changing legal standard that is open to debate and
Speaker 1: interpretation as societal norms evolve. It should come as no
Speaker 1: surprise that lethal injection and capital punishment is the major
Speaker 1: leagues of criminal litigation when it comes to the rights
Speaker 1: of the accused under the Eighth Amendment. This is Dr
Speaker 1: Mark Edgar. He is a pathologist and associate professor of
Speaker 1: Pathology and laboratory Science. So I spend my day mostly
Speaker 1: looking at specimens removed from the operating room from patients
Speaker 1: who are having surgery for cancer or a variety of
Speaker 1: other non cancerous things. I teach residents here. I also
Speaker 1: do autopsies. When there are autopsies to be done, I
Speaker 1: teach medical students, and I sometimes interpret some genetic tests.
Speaker 1: That's basically what I do. My involvement in the justice
Speaker 1: system is extracurricular. I get permission from the Dean's office
Speaker 1: to consult with the Federal Defender's office. I have compiled
Speaker 1: this group of autopsy reports that show pulmonary edema in
Speaker 1: the majority of inmates that have been executed using lethal
Speaker 1: injection over the past I don't know five years, so
Speaker 1: Pulmonary edema is the movement of fluid into the air
Speaker 1: spaces of the law when you have something like heart failure.
Speaker 1: For instance, blood backs up behind the heart and produces
Speaker 1: increased pressure in the tiny capillaries of the lung and
Speaker 1: that oozes out into the air spaces. The drugs that
Speaker 1: are administered for lethal injection, apart from the potassium chloride,
Speaker 1: would not be expected to affect the heart, so it
Speaker 1: was surprising to me to find in these autopsies that
Speaker 1: there was pulmonary aedema. Inmates being executed by lethal injection
Speaker 1: have experienced a variety of symptoms and signs indicating respiratory
Speaker 1: distress during the administration of the first drug, a three
Speaker 1: drug cocktail involving medazz A lamp. I wanted to see
Speaker 1: this firsthand. The word autopsy means to see for oneself,
Speaker 1: and so this was an opportunity for me to see
Speaker 1: for myself what was really going on in the lungs
Speaker 1: of these inmates who are being executed with these drugs.
Speaker 1: I saw firsthand exactly what was described. The lungs were heavy,
Speaker 1: much heavier than normal, maybe twice the normal weight. They
Speaker 1: were filled with fluids, so when you cut into them,
Speaker 1: fluid oozed out. When you cut into a normal lung,
Speaker 1: there's just air there. There was bloody froth in the
Speaker 1: large airways. These are not findings that I expect to
Speaker 1: see in someone who has just been given something to
Speaker 1: go to sleep, something to stop the breathing, and then
Speaker 1: something to quickly stop their heart. This again fit into
Speaker 1: our concept that medas lamb is doing something to cause pulmonaridema.
Speaker 1: Medazz in order to be solubilized, has to be placed
Speaker 1: in an acid solution, so it has a pH of three.
Speaker 1: The normal body phs seven point four. It seems very
Speaker 1: likely that that acid is essentially burning the tiny blood
Speaker 1: vessels and the lungs, and that's allowing fluid to escape.
Speaker 1: We also have looked at pentobarbital executions done here in Georgia.
Speaker 1: Anti Barbatall, on the other hand, is highly alkaline, so
Speaker 1: it has a pH of something like twelve or something
Speaker 1: like that. It too results in pulmonary edema, the same
Speaker 1: kind of finding, not as frequent, but the same kind
Speaker 1: of finding. I would say that what I've learned from
Speaker 1: this experience is that the current lethal injection protocol exposes
Speaker 1: inmates to a significant risk of severe suffering. I'm not
Speaker 1: someone who has expertise in anthesiology or pain management, but
Speaker 1: I think that has to be changed. There has to
Speaker 1: be some way to render inmates who are being executed
Speaker 1: by lethal injection not just unconscious but completely insensate. The
Speaker 1: current protocol calls for the medas a lamb to be
Speaker 1: administered and then for someone to come in and do
Speaker 1: what's called a consciousness check. So they poke you, they
Speaker 1: yell your name, they touch your eyes, and if you
Speaker 1: don't respond to that, you're considered to be unconscious enough
Speaker 1: to have the other drugs administered. The problem is that
Speaker 1: none of those stimuli are noxious or painful enough to
Speaker 1: rouse someone into awareness the way that Paul manary adema is,
Speaker 1: or the way that the second and third drugs aren't.
Speaker 1: Medass Lam is not an anesthetic. It's not approved for
Speaker 1: use as an anesthetic. It's approved for sedation and colonoscopies
Speaker 1: and things like that, but it's not it's not used
Speaker 1: to bring about general anesthesia, according to my anesthesiologist colleagues.
Speaker 1: So that's the problem is that we have every reason
Speaker 1: to suspect that inmates executed using the three drug medas
Speaker 1: lam procedure are aware of significant pain. So this the
Speaker 1: second drug is a paralytic. It's a neuromuscular blocking agent,
Speaker 1: and we know from cases of awareness during anesthesia what
Speaker 1: those patients experience. There are times when a patient is
Speaker 1: not given sufficient anesthetic drug and they wake up during surgery.
Speaker 1: When they do so under the influence of a neuromuscular
Speaker 1: blocking agent, they describe often sensations of terror and an
Speaker 1: inability to move, an inability to express their their pain,
Speaker 1: and a sensation of being buried. Alive. Those patients are
Speaker 1: not suffocating because their airway is taken care of by
Speaker 1: the anesthesiologist, but if you didn't have an open airway,
Speaker 1: you would sense suffocation. We know that if you give
Speaker 1: potassium chloride, which is the drug most often used, if
Speaker 1: you give that in any significant concentration to a live patient,
Speaker 1: they experienced severe burning pain. So that drug has to
Speaker 1: be diluted so that it doesn't cause extreme pain when
Speaker 1: it's given by mistake in high concentrations. We know exactly
Speaker 1: what it does, and it's extremely painful. The court and
Speaker 1: the law of the land requires that punishment be not cruel.
Speaker 1: That's the Eighth Amendment that specifically proscribes cruelty and punishment.
Speaker 1: Cruel is a concept that will naturally evolve with the
Speaker 1: maturation and evolution of civil society. With respect to punishment,
Speaker 1: we used to think it was okay to say drawn
Speaker 1: quarter people as part of their punishment, and now we
Speaker 1: think that that feels cruel to us. This is Dr
Speaker 1: Joel Zibert. Lethal injection was very effective at creating the
Speaker 1: outward impression of a death that would not be cruel
Speaker 1: because it is so bloodless, whereas death by firing squad
Speaker 1: or death by electrocution, or death by hanging or death
Speaker 1: by gas chamber was all very much a spectacle to observe.
Speaker 1: The court is interested in the experience of the person
Speaker 1: who is executed with respect to cruelty, but that's of
Speaker 1: course the person that one cannot ask, because once dead,
Speaker 1: there could be no opinion. And so it turns out
Speaker 1: that what cruelty evaluation turns on is the experience of
Speaker 1: the observer. The individuals who have made the observation will
Speaker 1: report on what they've seen. By design, lethal injection doesn't
Speaker 1: show much. I can't know what the experiences because the
Speaker 1: only person that can really know is the person that
Speaker 1: has died. I have actually witnessed the pen of arbit execution.
Speaker 1: I was asked by the prisoner as part of his
Speaker 1: legal defense. What I saw actually was quite striking on
Speaker 1: a number of places. First of all, when you go
Speaker 1: to the prison to be a witness of an execution,
Speaker 1: you are a prisoner yourself. You really have to go
Speaker 1: where you're told. Hours go by, and I'm invited now
Speaker 1: to the execution house. It's now probably eleven thirty at night.
Speaker 1: We walk into a room which is the viewing area,
Speaker 1: which is set up a bit like church pews. And
Speaker 1: as part of being a witness to an execution here
Speaker 1: in Georgia, I'm not allowed to have a pen and paper, watch, phone, nothing.
Speaker 1: We're looking through a glass now, and there's the prisoner.
Speaker 1: His name is Marcus Wellens. He's lying on a gurney.
Speaker 1: You can't hear the sound through the glass. I can
Speaker 1: see a couple of different intravenous puncture sites that are taped,
Speaker 1: and one where there is an intervene is attached. The
Speaker 1: tubing is attached and it snakes around and through a
Speaker 1: hole in the back wall of the execution room. I
Speaker 1: can't see the people who are going to be injecting
Speaker 1: the medication or the chemical. Again. See, it's hard not
Speaker 1: to use these kinds of words because of the way
Speaker 1: this is designed. Even I find it difficult to be
Speaker 1: careful about the language within the room. Here. There's now
Speaker 1: Marcus Wellens lying on a gurney covered in a sheet,
Speaker 1: and there are two Corrections officers on either side of him.
Speaker 1: The warden is in the room. The sound comes on,
Speaker 1: I assume, and the warden asks Marcus Wellens if he
Speaker 1: has anything to say, and I can't even recall what
Speaker 1: he says. He says something. The warden leaves, and I'm
Speaker 1: assuming now that the execution has begun. There's nothing that's
Speaker 1: as one to three go or something. It begins. Now,
Speaker 1: there's nothing to see, and so I start. Because I
Speaker 1: have no watch, I have no way of making any
Speaker 1: record of this. I started my head to count silently
Speaker 1: to myself the seconds as I can imagine them, to
Speaker 1: try to figure if I can get some sequence of
Speaker 1: the time here of what's going to take place. Maybe
Speaker 1: thirty seconds into this, one of the Corrections officers collapses
Speaker 1: forward onto the legs of Marcus Wellens and the room
Speaker 1: fills with people. Suddenly rushing in, and the corrections officer
Speaker 1: is dragged out and replaced by another corrections officer. The
Speaker 1: execution proceeds maybe ten minutes later. Two what I believe,
Speaker 1: our physicians walk into the room. One is wearing a
Speaker 1: lab coat. I don't know what the lab coat is for.
Speaker 1: And the physicians make a show of examining Marcus Wellens
Speaker 1: listened with the stethoscope and see we're now told that
Speaker 1: Marcus Wellens has died and the curtains closed. When I
Speaker 1: consider that several things. First of all, I couldn't see much,
Speaker 1: and I'm an expert in looking at these sorts of things,
Speaker 1: and I could not see much. There was not much movement.
Speaker 1: I know that the prisoner is strapped down by straps
Speaker 1: that go from top to bottom, including his arms, including
Speaker 1: his fingers. Actually, his fingers are taped, so even if
Speaker 1: he was wanting to indicate something, there would be no
Speaker 1: way for him to do it. The doctor with a
Speaker 1: lab coat. I found that as a physician quite disturbing,
Speaker 1: because when the corrections officer collapsed, there was a patient there.
Speaker 1: Whether or not a prisoner is a patient is a
Speaker 1: matter of opinion. I would say a prisoners not a patient,
Speaker 1: and so a doctor has no mandate to begin with.
Speaker 1: But that corrections officer collapse for some medical reason. And
Speaker 1: I did not see the doctor Russian at that time,
Speaker 1: So what was the doctor doing there if not to
Speaker 1: help someone who became ill. As a physician in the
Speaker 1: state of Georgia, I have a license to practice medicine.
Speaker 1: The way that I get a license is that the
Speaker 1: state legislature uses something called a Medical Practice Act, and
Speaker 1: the Medical Practice Act, a medical board is put together
Speaker 1: and the state says, we're not doctors here. You are.
Speaker 1: You regulate yourself. But remember that the medical board, of course,
Speaker 1: is subservient to the state. It's a creation of the state.
Speaker 1: So now the state wants to use physicians to be
Speaker 1: involved in executions, and the medical board will say, well,
Speaker 1: we don't want the physicians to be involved in executions
Speaker 1: because we think that's a violation of ethical physician conduct.
Speaker 1: State can use physicians in any way that the state desires,
Speaker 1: even if it is adverse to what the medical board
Speaker 1: may want, and can further protect the identity of these
Speaker 1: physicians through secrecy. So you, as a member of the public,
Speaker 1: might want to know whether or not your doctor participates
Speaker 1: in execution. You would have no way of knowing individuals
Speaker 1: that the state has decided need they need to use
Speaker 1: the things that doctors know. The state can do that.
Speaker 1: In a sense, the chief physician, if you will, of
Speaker 1: the State of Georgia is the governor, not the medical board.
Speaker 1: With respect to the rightness or wrongs of capital punishment.
Speaker 1: I'm agnostic that my view here concerns this method of
Speaker 1: execution and methods of execution that I think impact on
Speaker 1: the way the state uses medicine and science for its purposes.
Speaker 1: I would request that the state free up its relationship
Speaker 1: or end its relationship with science and medicine. It can
Speaker 1: execute individuals in another way, and whether or not states
Speaker 1: choose to carry out executions by another method, again, that's
Speaker 1: the purview of the state. That's not me. But my
Speaker 1: position here is that I'm against lethal injection in all
Speaker 1: of its forms. I think it's clearly cruel, and I
Speaker 1: asked the state to again to end its relationship with
Speaker 1: science and medicine and stop usurping or impersonating science and
Speaker 1: medicine as if to suggest that there's some level of
Speaker 1: safe oversight or some kind of accreditation or some some
Speaker 1: approval of this kind of technique of execution where there
Speaker 1: is not. The debate on the death penalty is extremely complicated,
Speaker 1: to say the least. At its core, it comes down
Speaker 1: to a couple of points. The first point, from my perspective,
Speaker 1: hinges on the idea that defense attorneys are charged to
Speaker 1: act as zealous advocates for their clients. That means leaving
Speaker 1: no stone unturned. We're looking for any legal or factual
Speaker 1: defense available to help their client reach a favorable result
Speaker 1: in a capital case. Mounting a constitutional challenge to the
Speaker 1: death penalty is one such legal defense. In order to
Speaker 1: attempt to avoid the death penalty, defense counsel has an
Speaker 1: ethical obligation to explore and pursue an Eighth Amendment cruel
Speaker 1: and unusual challenge. The other point really goes into what
Speaker 1: the purpose of a prison is, and that varies from
Speaker 1: state to state and city to city. The three main
Speaker 1: purposes of prisons are punishment, rehabilitation, and deterrence. Both the
Speaker 1: death penalty and life without parole effectively rule out the
Speaker 1: idea of rehabilitation because that person, one way or the
Speaker 1: other will be spending the rest of their life in prison.
Speaker 1: There's some debate about whether life in prison or the
Speaker 1: death penalty is the more punitive of the two, and
Speaker 1: I think personally that that varies from one person to
Speaker 1: the next. Some defendants have actually expressed a preference for
Speaker 1: the death penalty once they see what life in prison
Speaker 1: is all about, while others fight hard to avoid the
Speaker 1: death penalty at trial. But the idea of punishment isn't
Speaker 1: completely black and white. What this then comes down to
Speaker 1: is deterrence. In other words, does the death penalty stop
Speaker 1: people from committing crimes? On the one hand, you have
Speaker 1: absolute certainty that the person who was convicted for the
Speaker 1: crime will not commit that crime again once they have
Speaker 1: been killed by the state. But by looking at states
Speaker 1: like Georgia or even Texas that happens to have an
Speaker 1: express lane to the death penalty, we've seen no proof
Speaker 1: that it makes other people in society think twice about
Speaker 1: committing other serious crimes. In my opinion, as a practical matter,
Speaker 1: we need to rethink the death penalty and think harder
Speaker 1: about what is actually preventing people from committing these crimes
Speaker 1: in the first place. It is also impossible to overlook
Speaker 1: the known fact that people are wrongfully convicted. This season
Speaker 1: on this show, we spoke with people who were convicted wrongfully,
Speaker 1: in prisoned wrongfully for crimes that they did not commit.
Speaker 1: As it is, there is no way to get them
Speaker 1: their lost time back. But if they had been executed,
Speaker 1: the injustice would have been truly irreversible. According to the
Speaker 1: Death Penalty Information Center, there have been one hundred sixty
Speaker 1: six individuals exonerated from death row in the United States
Speaker 1: since nineteen seventy three. That's one and sixty six people
Speaker 1: who were sentenced to death for crimes that they did
Speaker 1: not commit. With the death penalty comes finality, there is
Speaker 1: no more room to right a wrongful conviction once someone
Speaker 1: has been executed. As for me, if I ever find
Speaker 1: myself looking down the barrel of the choice between a
Speaker 1: life sentence without parole or the death penalty, I think
Speaker 1: I would probably choose life in prison. I don't think
Speaker 1: I could sleep at night knowing that the date of
Speaker 1: my assigned death was right around the corner. But I
Speaker 1: think other people might think differently, that a life in
Speaker 1: prison is really no life at all. The debate rages on.
Speaker 1: Sworn is a production of Tenderfoot TV and I Heart Radio.
Speaker 1: Our lead producer is Christina Dana Executive producers are Payne
Speaker 1: Lindsay and Donald Albright for Tenderfoot TV, Matt Frederick and
Speaker 1: Alex Williams for I Heart Radio, and myself Philip Holloway.
Speaker 1: Additional production by Trevor Young, Mason Lindsay, Mike Rooney, Jamie
Speaker 1: Albright and Hallie Beat. All original music and sound designed
Speaker 1: by Makeup and Vanity Set. Our theme song is Blood
Speaker 1: in the Water by Layup. Show art and design is
Speaker 1: by Trevor Eisler, editing by Christina Dana, mixing and mastering
Speaker 1: by Mike Rooney and Cooper Skinner. Special thanks to the
Speaker 1: team at I Heart Radio from u t a or
Speaker 1: In Rosenbaund and Grace Royer, Bryan Nord and Matthew Papa
Speaker 1: from the Nord Group, back Media and Marketing, and Station sixteen.
Speaker 1: I'd also like to extend a very personal and special
Speaker 1: thanks to all of our contributors and guests who have
Speaker 1: helped to make all of these episodes possible. You can
Speaker 1: find Sworn on Facebook, Twitter, and Instagram at Sworn podcast
Speaker 1: and follow me your host, Philip Halloway on Twitter at
Speaker 1: phil Holloway e s Q. Our website is sworn podcast
Speaker 1: dot com, and you can check out other Tenderfoot TV
Speaker 1: podcasts at www dot tenderfoot dot tv. If you have
Speaker 1: questions or comments, you can email us at sworn at
Speaker 1: tenderfoot dot tv or leave us a voicemail at four
Speaker 1: zero four for one zero zero four four one. As always,
Speaker 1: thanks for listening