Lawyers for death row inmate Vernon L. Evans Jr. expect to bring into federal court this week the men and women who have participated in Maryland's previous executions to ask them what they did and how they were trained and to inquire about any past problems with the lethal injection procedures that the convicted killer is challenging.
The attorneys argue that Maryland's execution protocol violates the constitutional ban against cruel and unusual punishment, and that decades of intravenous drug use by Evans - including as recently as four years ago when he was incarcerated in a federal prison in Atlanta - have so ravaged his veins that he is at a particular risk of excruciating pain.
By calling medical and veterinary experts to testify - and even a witness to a botched execution in Ohio during which the condemned man lifted his head and declared, "It don't work" - Evans' lawyers are hoping to persuade U.S. District Judge Benson E. Legg to direct Maryland officials to change the state's execution procedures and to require that trained medical personnel be involved.
"This court will be following well-traveled ground in granting relief to Vernon Evans," attorney A. Stephen Hut Jr. told the judge during yesterday's opening statements in the case. He noted that courts in California, Missouri and North Carolina have required corrections officials to modify lethal injection procedures and that judges in Ohio and Arkansas have halted scheduled executions because of pending legal challenges.
But an attorney for the state countered yesterday in her opening statement that an execution is not a medical procedure and should not be held to the standards for the practice of medicine.
"It is the antithesis of medical treatment. It is not undertaken to cure, heal or ameliorate any illness or deformity," said Laura Mullally, an assistant attorney general for the Department of Public Safety and Correctional Services.
"The plaintiffs will attempt to present evidence that ... what has happened in other states is a true foreshadowing of what is inevitable in Maryland," Mullally said. "But other states' errors, if there are any, are other states' errors."
Evans, 56, was sentenced to death 14 years ago for the 1983 contract killings of David Scott Piechowicz and his sister-in-law Susan Kennedy at a Pikesville motel where they worked. Piechowicz and his wife, Cheryl, who was also a motel employee, were scheduled to testify in federal court against drug kingpin Anthony Grandison.
Grandison, also sentenced to death for the fatal shootings, remains on Maryland's death row.
With Evans scheduled to be put to death in February, the inmate's defense team initially asked for an emergency injunction to challenge Maryland's lethal injection procedures. Legg declined.
But when Maryland's highest court postponed Evans' execution - scheduled for the week of Feb. 6 - to hear four legal challenges, Evans won time to pursue the federal lawsuit. A decision from the Court of Appeals is pending.
Deborah Denno, a Fordham Law School professor and national lethal injection expert, said the legal landscape for death row inmates has changed significantly in recent months.
Lending "particular momentum" to inmates' lethal injection lawsuits, she said, was a California judge's Feb. 14 order in the Michael Morales case. U.S. District Judge Jeremy Fogel directed state prison officials there to either use only a fatal dose of anesthetic to execute Morales or else have an anesthesiologist on hand to ensure he was unconscious before the delivery of paralyzing and heart-stopping chemicals.
That combination of anesthetic, paralytic and heart-stopping drugs is used by most of the 37 states, including Maryland, with lethal injection statutes.
The Morales case is scheduled for a four-day evidentiary hearing next week. Fogel has also visited California's execution chamber.
Legg, the judge overseeing Evans' case, similarly examined Maryland's execution chamber in person over the summer, lawyers involved in the case said. He is scheduled to hear seven days of testimony in Evans' case.
"With all these hearings, departments of correction are really being pressed to the wall to describe in explicit detail what they do," Denno added.
Hut, one of Evans' attorneys, told the judge that testimony from members of Maryland's execution team will highlight not only their actions during past executions but also what he characterized as the cursory screening process for their selection.
A correctional officer responsible for mixing the chemicals has "an extensive record" of disciplinary problems, including mistreating an inmate and falsifying a report to cover his actions, Hut said.
A former state trooper responsible for injecting the fatal mixture into the IV line was forced to retire after failing to cooperate with an internal affairs investigation after he was charged with assaulting a teenager, Hut said.
Testimony is scheduled to begin today and continue through the week. Attorneys for the state are scheduled to present their case over three days in October.