Missouri announces new execution plan

ST. LOUIS — The state of Missouri is defending its proposed procedures for executing condemned prisoners as humane and constitutional, saying the revised protocol would eliminate the need for a federal judge to monitor future executions.

But nowhere in the court papers, filed Tuesday, did the state say whether it planned to contract for future executions with a surgeon whose court admission of dyslexia sparked a federal judge’s concerns about Missouri’s procedures.

Concern the state may use Jefferson City surgeon Alan Doerhoff was on the minds of attorneys for convicted murderer Michael Taylor, whose impending execution in February sparked the debate in the first place.

“The proposed protocol may retain John Doe I as part of the execution team,” Taylor’s attorneys wrote in rejecting the state’s proposal. Doerhoff was referred to as John Doe I when he testified anonymously in federal court earlier this year, as corrections officials wanted to protect his identity. Doerhoff has since acknowledged he assisted in dozens of executions.

“Given his track record of error and misrepresentations, and the extreme extent to which the execution team deferred to him, it is doubtful whether any execution procedure that includes John Doe I, without oversight by a doctor to whom he would report and defer, could provide meaningful, contemporaneous checks and balances that ensure that the procedure goes as planned and as stated,” Taylor’s attorneys wrote.

Scott Holste, spokesman for Attorney General Jay Nixon, said in an e-mail response that “we’re not advocating the use of John Doe I in future executions.”

In July, Doerhoff said he felt obligated to help the state. He also denied he is dyslexic.

Ruling in the Taylor case in June, U.S. District Judge Fernando Gaitan Jr. in Kansas City ordered the Missouri Department of Corrections to make sweeping changes to its execution protocol and halted executions until he was satisfied that Missouri’s procedures posed no risk of unnecessary pain and suffering.

Gaitan’s order specifically required the state to use a board-certified anesthesiologist to mix the lethal drugs; to administer them or observe those who do; and determine and monitor the inmate’s level of consciousness.

But when the state couldn’t find an anesthesiologist to lead the execution team, it offered an alternative plan — use of a medical team to carry out executions. In defending that alternative, the state wrote Tuesday that the corrections department prefers the assistance of a physician, but if none is available, a nurse or emergency medical technician is just as capable of determining a condemned prisoner’s level of consciousness.

At issue is finding someone qualified to determine whether a condemned prisoner is “sufficiently unconscious” from the first drug, an anesthetic, before two subsequent drugs to paralyze the prisoner and stop his heart are administered.

The last of the drugs is painful, and unless the condemned prisoner is unconscious it could result in executions that “might even be torturous,” Gaitan wrote in late July.

Condemned inmates around the U.S. are arguing that the three-drug execution model is unconstitutional. But only Missouri has been required by a federal judge to involve an anesthesiologist as a safeguard.

On July 25, Gaitan wrote that Missouri’s revised execution proposal is an improvement but still falls short of ensuring inmates are executed humanely. His opinion was not a final order, and he deferred to the 8th U.S. Circuit Court of Appeals.

But the appeals court in August sent the case back to Gaitan, saying it couldn’t rule on the constitutionality of Missouri’s revised protocol without his formal order. Gaitan’s formal ruling could come at any time.