Cooey v. Strickland (610 F. Supp. 2d 853, 2009)

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court upon remand for consideration of whether the Court should continue a previously granted stay of execution to intervening plaintiff Kenneth Biros in light of Baze v. Rees, — U.S. —, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). For the reasons that follow, this Court finds that Biros is not entitled to a continued stay and VACATES the stay of execution prohibiting the State of Ohio and any person acting on its behalf from implementing an order for the execution of Kenneth Biros.

I. Background

A. Procedural Background

The captioned case is a 42 U.S.C. § 1983 civil rights action that challenges multiple facets of the lethal injection protocol used by the State of Ohio. The State executed Richard Cooey, the original plaintiff in this litigation, subsequent to the December 8, 2004 inception of this case. Additional plaintiffs remain in this litigation, including Kenneth Biros, whom the Court permitted to intervene in a November 9, 2006 decision. (Doc. # 126.) On November 30, 2006, at the State’s request, the Supreme Court of Ohio set an execution date for Biros of January 23, 2007. (Doc. # 144-4.) Biros then filed a December 5, 2006 Emergency Motion for Preliminary Injunction. (Doc. # 144.) This Court granted Biros a preliminary injunction that stayed his execution on December 21, 2006. (Doc. # 151.) Defendants appealed the grant of the preliminary injunction. (Doc. # 152.)

On appeal, Defendants asked the Sixth Circuit to vacate the preliminary injunction in light of the United States Supreme Court’s decision in Baze v. Rees, — U.S. —, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). On July 8, 2008, a three-judge panel of the court of appeals “conelude[d] [that] the question of whether the preliminary injunction should remain in effect following the Baze decision is an issue that should be addressed initially by the district court.” (Doc. #278, at 1.) Accordingly, the panel remanded the appeal with instructions to this Court to “schedule whatever briefing and hearing schedules it deems necessary for consideration of this matter.” (Id. at 2.) This Court therefore proceeded to deny Defendants’ motion to dismiss Biros and to schedule discovery and additional briefing leading to a scheduled December 15, 2008 in-court hearing on the preliminary injunction issue. (Doc. # 361.) Following a period marked by numerous discovery disputes, the parties jointly requested and obtained a change in the case schedule so that the hearing would proceed on March 2, 2009. (Doc. #418.) After even additional discovery issues, the parties again jointly requested a change in the hearing schedule that this Court granted. (Doc. # 449.) The Court scheduled the Baze preliminary injunction hearing to commence on March 23, 2009. (Id. at 2.)

B. Hearing Testimony

Beginning on March 23, 2009, this Court conducted a five-day hearing on, in the language of the court of appeals, “whether the preliminary injunction issued on December 21, 2006, should be vacated in light of the Baze decision.” (Doc. # 278, at 1-2.) The following account summarizes all of the witnesses’ testimony offered at that hearing through in-court testimony, testimony by video conference, and testimony by deposition; By order of this Court and agreement of the parties, all references to members of Ohio’s execution teams are by generic identifiers established by the parties and employed to address anonymity and safety concerns.

1. Team Member # 19

Team Member # 19 was the first witness called by Biros. He oversees the general operations of an Ohio prison and ensures that proper procedures are adhered to by the staff. Team Member # 19 also functions as the Incident Commander on the execution team. He has been a member of the execution team since 1999. In that capacity he oversees the execution process, maintains the time lines set for the execution, processes visitors, and completes the required documentation. Team Member # 19 testified that he has held several positions on the execution team before becoming the Incident Commander. He stated that he is familiar with all of the activities associated with the execution process.

According to Team Member # 19, the overall execution team consists of two separate teams: the security team, which is comprised of approximately fifteen members, and the medical team, which consists of three members. Normally, only seven of the fifteen security team members participate in an execution. All of the members are volunteers.

Team Member # 19 explained the application process for a security member. When a vacancy occurs, the position is posted and applicants submit an application. The applicants are generally employees of the Ohio Department of Rehabilitation and Correction (“DRC”) and have other jobs within the system. The applicants’ work history, absentee history, and disciplinary record are reviewed and, if satisfactory, the names are presented to the team for its review. If the team is comfortable with an applicant, then the commander and eventually the warden review the application. If a team member no longer wants to be on the team, that member submits a letter of resignation that is processed through appropriate channels. Team Member # 19 testified that he was not aware of any screening for mental or physical health issues.

Team Member # 19 was then asked to review, in general, the steps leading up to an execution and the responsibilities of the team members. He related the following procedures. Two transportation team members travel to the facility where the condemned inmate is located and transport the inmate to the Southeastern Ohio Correctional Facility (“SOCF”) in Lucasville, Ohio. This is approximately twenty-four hours before the execution. The inmate is placed in a special holding cell and a team member begins to log on a computer all of the events involving the inmate. The incident commander reviews with the inmate various matters including the inmate’s last meal request, personal property arrangements, and funeral arrangements, as well as the execution procedures. Team Member # 19 indicated that the team members try to treat the inmate with respect. Normally, five or more security team members stay at the holding cell site and observe the inmate at all times. They constantly observe the inmate in the cell, monitor the visitors who are permitted in to see the inmate, and talk with the inmate. Support staff escorts the visitors — normally family members, lawyers, and clergy — to the holding cell area to visit with the inmate.

On the morning of the execution, after the warden reads the death warrant to the inmate, two medical team members insert catheters into veins on both the left and right arms, which are the preferred sites, and attach heparin locks to the catheters in order to administer drugs into the inmate in the execution chamber. The heparin locks are held in place with tape. Security members are in the holding cell as the medical team performs its duties. A decision is made as to which of the two sites is the better site for the injection and that information is relayed to the medical team member in charge of injecting the drugs.

The security team members in charge of escorting the inmate into the execution chamber and securing the inmate to the bed are referred to as the strap down team. The bed has four straps used to secure the body to the bed and one strap on each arm used to secure each arm to extensions to the bed used to support the arms. After the strap down is completed, some of the security team members exit the room and some members remain while the two medical team members attach an intravenous line to each of the heparin locks. The intravenous lines are connected to tubing that traverses through the wall of the chamber into the equipment room. After the lines are inserted, the medical team and security team members exit the death chamber. The drugs are injected from the equipment room, through the tubing, and into the intravenous sites.

Team Member # 19 then explained the former drug injection protocol. It has been modified by procedures that are unwritten but that are nevertheless followed. The medical team member selected to inject the drugs, who has always been Team Member # 18 in all but one execution since 1999, normally stays in the equipment room. Prior to the execution, Team Member # 18 mixed the first drug under the observation of the health care administrator, who is not a member of the execution team, and then prepared eight syringes, five with the three different drugs and three with saline solution. In the equipment room with Team Member # 18 is a narrator who records everything that takes place via telephone to another office. Along with the narrator, normally the Director of Corrections, the Assistant Director of Corrections, and sometimes the Regional Director are also present. Team Member # 18 has a backup medical team member in the equipment room in the event something should happen to Team Member # 18.

In the meantime, witnesses are seated behind glass windows in the viewing area. There is a room for the inmate’s selected witnesses and a room for the victim’s witnesses in which the media representatives also view the execution. On the morning of the execution, television monitors in both viewing rooms are turned on so that the witnesses may view the medical team members inserting the catheters in the holding cell before the inmate is led down the hallway to the execution chamber. Once the inmate is inside the execution chamber, the television monitors are turned off.

Team Member # 19 was asked several questions about the Joseph L. Clark execution conducted on May 2, 2006. Team Member # 19 stated that he had performed the narrator function during that execution. Team Member # 19 recounted that the medical team members were having no success in establishing catheters and heparin locks because it was difficult to access the inmate’s veins. Finally, a vein was found and the process proceeded with only one catheter in one arm instead of one catheter in each arm. The decision to proceed with the execution with only one insertion point established was made after discussions with the warden and the commander and after they had been advised by the medical team that the one site appeared to be sufficient. Inmate Clark was then taken to the execution chamber, placed on the bed, and strapped down. Clark made a last statement, and the warden gave the signal to proceed. The warden, the team leader, and inmate Clark were the only people in the execution chamber. Team Member # 18, who was in the equipment room and watching through the window, began to administer the drugs. The red light in the death chamber was switched on, which is the indication to those in the chamber that the process has begun. Team Member # 18 noticed that the drug was not having its intended effect at about the same time as when inmate Clark raised his head and stated, ‘Tour drugs are not working.” The curtain was closed and the medical team was summoned.

The medical team concluded that inmate Clark’s vein had collapsed and that the first drug had infiltrated the tissue rather then entering the vein and bloodstream. The three medical team members, some security team members, and possibly other administrators entered the execution chamber. The medical team began looking for new insertion points. According to the time line that was generated as a result of the ongoing narration during the Clark execution, Team Member # 19 testified, the curtain was closed at 10:37:46 a.m. when it was determined that something was wrong. At 11:09:49 a.m., the curtain was re-opened and the signal was given by the warden to restart the execution process. The injection process was completed at 11:23:58 a.m., and the time of death was announced to be 11:26 a.m. Team Member # 19 testified that he did not observe any indication that inmate Clark was in severe pain. From his observation point in the equipment room, Team Member # 19 stated, he believed that Clark was asleep by the time they started the injection process the second time.

Team Member # 19 identified Ohio’s written execution protocol (Pl.’s Hrg. Ex. 12) and indicated that there were some changes made to the written protocol since the Clark execution. He also testified that there are several additions to the protocol that are not in writing and that have been adopted by custom and practice.

Team Member # 19 explained that after every execution, the team has a debriefing with selected staff members and a crisis intervention team. An execution team member can request mental health counseling if the member believes that it would be helpful.

Finally, Team Member # 19 recounted the schedule for execution team practices. Four weeks before a scheduled execution all of the members of the team practice. They rehearse all the steps that will be taken on the day of the execution. The team normally rehearses one or two times per week during the four weeks leading up to the execution.

2. Team Member # 12

The next witness to testify was Team Member # 12, who stated that he had been a member of the execution team for approximately four years. He testified that he is a member of the security team and that he has performed all of the duties associated with that status except for serving as an escort to an inmate. Team Member # 12 stated that he has been with the DRC for thirteen years.

Team Member # 12 testified that he has participated in numerous executions, beginning with the execution of Herman Ash-worth. Much of his testimony centered around the execution of Joseph L. Clark. During that execution, Team Member # 12 testified, he was a member of the strap down team. He stated that he was in room J-l of the death house during the execution when he was asked to reenter the death chamber. Team Member # 12 testified that upon entering the chamber, he observed that Team Member'# 11 was holding Clark’s arm and rubbing it. Team Member # 12 stated that he took over the massaging of Clark’s arm and that his understanding of the situation was that Clark had blown a vein and the massage was necessary to prevent knotting up. In addition to Clark, Team Member # 12 testified, there were six to seven other individuals in the death chamber at that time, including Team Member # 10, Team Member # 11, Team Member # 18, and the warden. Team Member # 12 explained that the medical team was looking for another site in which to insert a new IV. He testified that he did not see what Team Member # 18 was doing during this time. After a period of time, Team Member # 12 testified, he moved to Clark’s other side and gently squeezed the inmate’s bicep until a vein popped up that could be used for a new IV. Team Member # 12 stated that there had been no training for such an event and that there was no emergency plan in place; further, he explained that no one had suggested that he squeeze Clark's bicep. After the medical team utilized the new vein to start a second IV, Team Member # 12 testified, he returned to the death' house room designated J-l and prayed. Following the Clark execution, Team Member # 12 testified, there was a debriefing in which the crisis intervention team was made available to the execution team. He testified that he does not know of any member of the security team who has ever taken advantage of the crisis intervention team.

Since the Clark execution, Team Member # 12 explained, there has been a different protocol in place as team members now take as much time as they need to perform their roles, slowing the process down. Team Member # 12 testified that he was also a member of the strap down team for the execution of Christopher Newton. He stated that he could not recall that any member of the execution team resigned during the debriefing on the Newton execution. Team Member # 12 also testified that he did not detect suffering on the part of either Clark or Newton.

3. Team Member # 10

Team Member # 10 is the execution team leader. He testified that he first joined the team in 1999 with the execution of Wilford Berry and that he has served as the team leader since approximately 2002 with the execution of Alton Coleman, supervising a total of twenty-four executions. The team leader, Team Member # 10 testified, makes the assignment for each member of the execution team and is in the death chamber with the warden during an execution.

Team Member # 10 described the execution process as follows: the warden reads the death warrant to the inmate, who is confined in the death house holding cell; team members then enter the cell and proceed to establish the heparin locks; the inmate is then escorted down the hallway to the death chamber and strapped down, where one medical team member establishes the IVs; two security team members then leave the chamber, leaving only the inmate, the warden, and the team leader in the room; and one medical team member is positioned in the equipment room as a backup to the executioner, Team Member # 18, who is also in the equipment room.

When asked about training, Team Member # 10 responded that he had received some training on how the protocol drugs affect the human body several executions ago — he thought perhaps after the Joseph Clark execution — and he stated that he has received no medical training or training on how to determine whether the drugs are actually working. Team Member # 10 described the rehearsals that the team undertakes, which involve practicing on a fake arm, with water being pushed through IV lines at least two times. He stated that there is no practice mixing of the protocol drugs and that Team Member # 18 mixes the actual drugs during the executions.

When then asked about the written execution protocol, Team Member # 10 explained that he does not think that the written protocol addresses what to do when both IV lines fail — something he stated has never happened — nor does he think the protocol addresses switching lines during the execution. According to Team Member # 10, the protocol does not limit where IV sites can be established, so the neck, head, or anywhere on the body could be used. He also stated that there is no written time limit on how long the team can engage in trying to establish IV sites, although there have been discussions that set the time limit at forty-five minutes to one hour. Team Member # 10 stated that the team will not begin the execution process until two IV sites are established, but this policy is not included in the written protocol. Although all team members receive a copy of the written protocol, Team Member # 10 testified, there is no formal testing on the protocol and it is possible but not probable that some team members have never read the protocol.

When asked about qualifications and individual team members, Team Member # 10 testified that all team members reported to him. He explained that one team member is a phlebotomist, but there is no requirement that she perform daily IVs to be on the team. She is required to have a certification, Team Member # 10 explained, but only as part of a verbal understanding and not as a written protocol requirement; nothing in the written protocol requires periodic checking or monitoring of this team member’s certification.

Team Member # 10 testified that another team member, Team Member # 18, also has a day-to-day job that does not involve TVs. The team leader stated that so far as he knows, it is not a requirement that the person who mixes and pushes the drugs has a day-to-day medical function. He also testified that no one on the execution team performs an assessment of Team Member # 18’s competence to perform his medical job as part of the team. Team Member # 10 stated that he believed that Team Member # 18 had to have — and has — advanced certification status that permits him to administer the protocol drugs. When told that Team Member # 18 had intermediate emergency medical technician (“EMT”) status, Team Member # 10 responded that he had learned that fact for the first time that day. When asked whether an individual with intermediate EMT certification has the authority under Ohio law to administer the drugs, Team Member # 10 responded that this is apparently so. When then asked whether it was acceptable to him as team leader that Team Member # 18 had not informed him that the executioner’s classification had dropped from advanced to intermediate, Team Member # 10 answered that he would have preferred to have known.

Team Member # 10 explained that he cannot see Team Member # 18 during the actual execution because the latter man is positioned behind a mirrored window. It is important to Team Member # 10 as team leader to know of any history of mental illness, he testified, but he has not looked into the issue and was not aware of any mental health issue or concern with team Member # 18. When asked about information related to Team Member # 18’s mental health issues, including depression, that the executioner had provided on a disability request form, Team Member # 10 answered that he would have wanted to know about the information. If Team Member # 18 were currently in the condition described on the disability form, Team Member # 10 testified, then he would not want Team Member # 18 serving as Ohio’s executioner.

Questions also addressed former team members, with counsel for Biros inquiring as to why eleven of thirteen (fourteen when a warden is included) retired team members had left for disability retirements. Team Member # 10 testified that he did not know the cause of the majority of these disability retirements, that he would be interested in the reasons behind the disabilities, and that he did not think he has the ability to learn this information. He explained that he knew that two retirees had retired for reasons unrelated to the execution process.

Team Member # 10 also testified that other than relying on sodium thiopental to put an inmate to sleep and his observation that the inmate was asleep, nothing else is done to ensure that there is no pain to the inmate in the execution process. He stated that during an execution, he looks at the inmate’s breathing pattern, which slows and often results in deep snoring by the inmate. Team Member # 10 testified that he is not trained to make an assessment of whether the first protocol drug is working, but that he has spoken with other team members about the signs to observe. He also noted that in the Joseph Clark execution, there was no physical contact with Clark or shouting of the inmate’s name after the administration of the first drug, but that the warden now shakes the inmate and calls out the inmate’s name after the sodium thiopental is given. There is still no touching of the inmate’s eyelashes or the giving of commands designed to elicit a response from the inmate, Team Member # 10 explained. The team leader also testified that the warden’s post-Clark practices of touching and calling to the inmate are not in Ohio’s written protocol.

Team Member # 10 testified that it was part of his duties to assess whether there is a problem with the drugs during the execution. He explained that he focuses on the line used and that he looks for infiltration around the IV site. Team Member # 10 stated that he did not know how many inmates’ IV sites had been covered up during an execution and that he could not see during the Clark execution whether the TV site was fine because he could not see above the site due to the inmate’s clothing. He also testified that he has never observed an infiltration and that he has not been provided training as to what to look for other than what the medical team members had told him.

In further addressing the Clark execution, Team Member # 10 recounted that Clark was conscious at the beginning of the process in the death chamber, that he watched as Clark’s arm was massaged following the problem with the first IV line, and that while they worked on Clark, the inmate had closed his eyes, raised his head and appeared to try to speak, and then put his head back down. Team Member # 10 testified that Clark was making some sounds — described as a “dull moan” — as if the man were trying to speak but could not say words. The team leader also stated that he watched the massaging of Clark’s arm and was told that massaging the area might cause Clark to experience an uncomfortable burning sensation. Team Member # 10 testified that he would rely on Team Member # 18’s testimony as to whether Clark was then capable of being aroused. He also explained that he did not know which stage of the drug administration process Team Member # 18 was at when the curtain was closed, which was approximately four minutes into the execution. After about forty minutes of working on Clark — he was told that Clark was stuck with needles nineteen times — Team Member # 18 ultimately found a new IV site, Team Member # 10 testified, and the process was restarted using that site. He explained that the new site was on Clark’s right forearm, lower and more to the side than the prior site, and that he could not see the site when they restarted the execution, although the warden could. Team Member # 10 stated that to his knowledge, it was not discussed whether proceeding with only one site was prudent. In every execution prior to Clark, he explained, there had been two sites and no infiltration.

Team Member # 10 additionally testified that during an execution, there is always saline running through all the IV lines. He explained that he can hear when sodium thiopental is pushed through the line because it makes a distinctive sound, and he stated that the drug has a milky white appearance. Team Member # 10 also testified that he did not know whether he was present for any execution in which Team Member # 18 had switched lines. He stated that he believed that any switch should be recorded on the timeline record of the execution, but noted that the written protocol does not mandate such reporting.

When asked whether he knows whether any team members take medication, Team Member # 10 stated that he does not and that he thinks that he is not allowed to inquire. He also testified that he does not know the criteria for selecting medical team members other than the requirement that they be certified to administer drugs. The witness additionally stated that he does not have the authority to make changes in the execution process, but that he could make suggestions to the warden who could then discuss the proposed changes with his own bosses and legal counsel. Team Member # 10 testified that he would recommend postponing an execution to the warden if the inmate were in severe discomfort.

In later testimony, the team leader stated that after the Clark execution, he had voiced concerns over the amount of people who were in the death chamber and over the perceived time pressure that existed in that execution. He testified that he had also voiced concerns at times over the comfort of the medical team members, which had resulted in their receiving softer cushions to sit on when they were starting the heparin locks, and going from a high pressure to a low pressure flush of the lines. There had also been discussion of the need to roll up an inmate’s sleeves to allow better viewing of the IV site, Team Member # 10 testified, although he stated that he does not know who raised the issue.

Team Member # 10 testified that he thinks it is important that the inmate is unconscious during the execution and that there are steps he takes to ascertain unconsciousness that are not in the written protocol. He stated that it does not make a difference to him whether the steps or procedures in this regard are in the written protocol. Team Member # 10 also testified that he would not wait until a procedure was in the written protocol to incorporate it into the execution process if the procedure had been approved by the warden. He stated that he takes it seriously that it is his responsibility to ensure that an inmate is executed humanely and that he would not participate in the process otherwise.

4. Stephen Huffman

Former Warden Stephen Huffman was next called by Biros to testify. He was the warden at SOCF from 1997 through 1999 and was warden during the Wilford Berry execution in February 1999 when Ohio resumed its executions. Huffman indicated that the execution team was already in place when he became the warden. He reviewed the file on each member when he became warden. No one was replaced.

The former warden recounted the steps taken to reinstitute the execution procedure in Ohio. Huffman had many discussions with the Ohio Attorney General’s office and the Governor’s office concerning the protocol. He traveled to Indiana and shadowed a warden in Indiana during an execution. Huffman met with DRC directors, assistant directors, and deputy directors to review the policies and procedures. Huffman indicated that he had no formal training on the three-drug protocol but that he did practice with the execution team. Huffman’s function on the team as warden was to give the signal to begin the injection of drugs and to observe the inmate throughout that process. He testified that he would look for regurgitation and snoring. In the Berry execution, because he was a “volunteer,” a stopcock was inserted in the intravenous lines to stop the injection of drugs if Berry changed his mind at the last second.

Huffman left as the warden and became the DRC deputy director. In that capacity, Huffman was involved in twenty-three executions. He was present at the Joseph Clark execution in May 2006. Huffman believed that the process had progressed into the second syringe of the first drug when inmate Clark indicated that the drugs were not working. Huffman testified that the inmate appeared to be in and out of consciousness when the team began to look for a new injection site. Clark said something about just giving him something by mouth to complete the execution. Then, Huffman indicated, the inmate became unconscious and thereafter a vein was found that was thought to be sufficient to complete the process. A catheter was inserted, the process started over, and the inmate was executed.

Huffman testified that he believed that Team Member # 18 was originally selected to be on the team by the Central Office. The former warden observed Team Member # 18 during rehearsals as well as during executions. Huffman testified that he had no special concerns regarding Team Member # 18. Huffman confirmed that any team member could obtain professional assistance if needed or requested.

Finally, the former warden described the death chamber. Huffman estimated the tubing length to be eight to ten feet from Team Member # 18 to the inmate. He believed that that much tubing was needed because the bed in the chamber was arranged in such a fashion so that the witnesses could see.

5. James Haviland

James Haviland testified that he had been the former warden of SOCF for approximately thirty-nine months. During this period of time, he explained, he had overseen fourteen executions, with the last being the execution of William Smith.

When questioned about the training he had received to prepare for these executions, Haviland testified that he had spent one day with the former warden and the execution team. He explained that he had received no training on the drugs utilized in the three-drug protocol and no training on the detection of consciousness. In later testimony, Haviland stated that the team leader had no better training than the warden.

Haviland explained that during executions, he would stand behind and at the right shoulder of the inmate while the team leader would stand at the inmate’s head. He stated that he viewed his role as making sure that the execution process was carried out. Haviland testified that he neither employed a tactile stimulus test on the inmate during the execution nor did he call out the inmate’s name. He stated that his observations as a layperson were enough to determine whether the inmate was experiencing pain.

In response to questioning concerning Team Member # 18, Haviland testified that because Team Member # 18 is the “expert,” the former SOCF warden left the medical aspect of the execution to him. Haviland stated that he believed Team Member # 18 had sufficient training to carry out his role in the execution process and that the team member has full and complete discretion over the speed at which the protocol drugs are administered, which TV line to use, and if and when to switch lines. He also testified that once during an execution — Haviland could not remember which execution — the former warden had observed a bump on an inmate’s arm at the IV insertion point. Haviland stated that he had assumed that Team Member # 18 had switched the line used because the bump did not get bigger. The former warden testified that after the execution, Team Member # 18 had told him that there had indeed been a switch during the administration of drugs because Team Member # 18 had felt pressure when pushing a drug through the first line.

During another execution, Haviland testified, he had observed approximately three-and-one-half minutes of twitching by an inmate. Haviland stated that he thought the twitching was odd, but that he did not to do anything to address it such as consulting Team Member # 18. Haviland testified that he was later told that the twitching was probably involuntary muscle twitching, although he could not recall who had told him that information.

Haviland also testified that he cannot say that any of the fourteen inmates executed under his watch were sufficiently unconscious so as not to experience pain. He noted that in the case of the inmate referenced above, he had not observed the inmate grimace or wince. The inmate had snored and had turned blue around his lips, Haviland testified. Haviland testified that from conversations and from what he had read in the paper, he knew that the second and third protocol drugs could cause pain. If he had felt that the drugs were not working, Haviland testified, he would have walked to the death chamber door to signal Team Member # 18 of the problem.

When the questioning turned to mental health issues, Haviland testified that from his practical experience in the “people business,” he has experience in reading how people deal with stress. He stated that he had never observed signs from team Member # 18 that led him to inquire into the team member’s mental health or treatment. Haviland explained that there were no specific mental health diagnoses performed on the team members, but that there was a mental health psychology supervisor on the team. When asked whether it was that individual’s duty to assess the team members, Haviland answered that it was not. Haviland stated that he did not know Team Member # 18 well outside his being a member of the team and that he did not know about any mental health diagnosis involving Team Member # 18. Haviland testified that he thought that issue was relevant and that it would be good information to know. Although he had thought about the stress on Team Member # 18, Haviland explained, he did not do anything other than ask the team member how he was. In response to a hypothetical, Haviland stated that if he had known about Team Member # 18’s depression or thoughts of suicide, he would have talked to the member’s supervisor and looked into the issues. Finally, Haviland stated that the certification of the team member was what mattered and that no active medical service was required to serve on the execution team.

6. Edwin Voorhies

Edwin C. Voorhies, who was the warden at SOCF from 2005 until 2008, testified next. Voorhies testified that he holds associates, bachelors, and masters degrees; that he began working for the DRC in 1994 and is presently the warden at Noble Correctional Institute; and that he has never had any medical education or training. Voorhies further testified that he accessed a copy of the execution protocol upon accepting appointment as warden of SOCF because he knew that one of his responsibilities in that position would be overseeing executions. The execution of Herman Dale Ashworth in September 2005 was the first over which Voorhies had presided as warden at SOCF. Prior to that, Voorhies had attended the execution of William Smith, over which former warden James Haviland presided. Voorhies had observed the Smith execution from the equipment room and had no duties whatsoever. Leading up to the Smith execution, Voorhies also met with Haviland and attended all four rehearsal sessions by the execution team. In all, Voorhies presided over ten executions during his tenure. After he left as warden of SOCF, he oversaw two more executions in an “incident command” role from the command center. He did so, he testified, to provide some experience and continuity because the team for those executions included a new warden and several other new members.

Voorhies confirmed that although he undertook no additional formal education or training prior to the Ashworth execution, beyond what he had done leading up to the Smith execution, he did take such actions as engaging in administrative oversight, examining Ashworth’s case to determine any dynamics unique to Ashworth that might arise, and attending Ashworth’s clemency hearing. Voorhies explained that Ashworth’s status as a “volunteer,” or someone who had elected to forgo legal remedies that were otherwise available to him and to allow his execution to go forward without challenge, required additional steps or safeguards in the execution process. Specifically, as Voorhies testified, the two IV lines running from the equipment room to the heparin locks inserted in the volunteer’s arms required an additional “stopcock” within reach of Voorhies in the event that the volunteer decided at the last minute to stop the execution and avail himself of the legal remedies still available to him. Voorhies further explained that each of the two IV lines are not only marked clearly with “L” and “R,” but also identified prior to the execution as to which will be the “primary” line into which the drugs would initially be injected and which will be the “secondary” line to which the executioner would switch in the event that a problem arose with the primary line. Voorhies testified that at least one rehearsal leading up to the Ashworth execution included a practice of Voorhies stopping the execution at the last second.

Voorhies also confirmed that the execution team had in place a contingency plan in the event that Ashworth exercised his right to stop the execution at the last second. That contingency plan involved Team Member # 18 calculating how much of the drugs had been administered to Ashworth and the dispatching of emergency services to engage in any life-saving measures required, assisted by the “medical” members of the execution team if necessary. Regarding the dispatching of emergency medical services, Voorhies explained that every DRC prison, including SOCF, has an emergency response system in which emergency medical personnel can reach any site within the prison in no more than four minutes and that every DRC prison, including SOCF, practices that emergency response on a regular basis. Voorhies conceded that no particular “lifesaving” equipment was on hand for the Ashworth execution, that the medical team member who was a phlebotomist had no “life-saving” training of which Voorhies was aware, and that the contingency plan that he had described was not written in Ohio’s execution protocol. That said, Voorhies testified that the same contingency plan was in place for all executions, minus the additional stopcock.

Voorhies testified that it was the warden’s responsibility to fill any medical team and security team vacancies on the execution team. On that point, Voorhies testified that he, his deputy warden, and the team leader would screen any applicants and then, assuming the applicant was to fill a vacancy on the security team, the name of that applicant would be provided to the remaining members of the execution team to secure their approval. According to Voorhies, any applicant receiving a majority of votes would still have to be approved by the entire execution team. Voorhies explained that the process for screening applicants for the execution team included a review of job performance evaluations, attendance records, training records, and any disciplinary actions against the applicant. Voorhies also explained that he would look for in any applicant good communication skills, experience in a maximum security facility, and a sense of empathy for the inmate. Voorhies confirmed that he had never removed anyone from the execution team.

Voorhies then explained that he was the first SOCF warden to develop a written application process for applying for a position on the execution team and that he did so after educating himself about the Morales method-of — execution litigation in California. In this regard, Voorhies testified that he undertook a great deal of self-education concerning the execution process because he did not take lightly the responsibility of overseeing executions. He explained that he studied the various method-of-execution cases being litigated around the country, as well as the three drugs that Ohio uses in its protocol. He testified that he learned everything he could and then shared it with everyone he could. Voorhies stated that he used the information he learned as a benchmark for possible improvements in Ohio’s protocol. He agreed that none of the efforts he undertook were mandated by the DRC. The changes that occurred to Ohio’s execution process during his tenure as SOCF warden, according to Voorhies, included placing a checklist in the holding cell of items and duties related to the insertion of heparin locks in the inmate’s arm, modifying the signaling system employed between the warden and executioner during the administration of the drugs, and preparing and having ready a second dose of sodium thiopental. Voorhies also testified about certain changes in the current version of the written protocol that include the labeling of the syringes, using a continuous low pressure saline drip rather than an injected saline flush between the three drugs, and specifying that the warden and the team leader will observe the injection sites for signs of infiltration.

Voorhies testified about the change in Ohio’s protocol that took place prior to his tenure at SOCF, calling for the insertion of the heparin locks to take place in the holding cell rather than in the execution chamber. Voorhies explained that a “legal intervention” had made it necessary for witnesses to be able to view the process of inserting the heparin locks. He explained that the holding cell is equipped with a camera that transmits images to monitors not only in the equipment room but also in the witness rooms that are adjacent to the execution chamber and separated by a wall with windows. It was decided, Voorhies testified, that the medical team members tasked with inserting the heparin locks would feel less pressure if they could perform their duties in the holding cell instead of in front of the witnesses. Voorhies conceded that any concerns about the heparin locks being dislodged while the inmate is walked from the holding cell to the execution chamber had been discussed and accounted for during rehearsals. To that point, Voorhies testified that no inmates during his tenure were taken from the holding cell to the execution chamber by force and that the only execution involving an inmate (Lewis Williams) who put up “passive resistance” by not supporting his own weight did not compromise the integrity of the heparin locks.

Voorhies testified about the process of implementing changes to the written version of the protocol. He explained that any proposed changes would be discussed and then proposed to the director. If the director was in agreement, the changes would be written into the protocol and then ultimately signed by the director. At that point, Voorhies testified, the written protocol becomes administrative law pursuant to Ohio statute. Voorhies agreed that anything that is not specifically written in the protocol does not have to be followed.

Voorhies also testified in detail about the executions of Joseph Clark and Christopher Newton; Voorhies presided over both. Regarding Clark, Voorhies recounted that he went to the holding cell and read the death warrant to Clark, then went to the equipment room to ensure that the monitor was operating, and then returned to the holding cell to see how the medical team members were progressing with the insertion of the heparin locks. Voorhies recalled that the team had found a site in Clark’s left arm for the first heparin lock in a reasonable amount of time, but were not able to find a site in the other arm for another heparin lock. Voorhies testified that the medical team member who had successfully inserted the lock in the left arm assured Voorhies that the site was strong and had a good flow. Voorhies then briefed the director, who agreed with Voorhies and the medical team that it would be fine to proceed with the execution with only one site (even though the preference was to obtain two). That decision made, Voorhies testified that the team then escorted Clark from the holding cell to the execution chamber and secured him to the execution bed. After giving Clark the opportunity to make a final statement, Voorhies then signaled to the equipment room by buttoning or adjusting his jacket to begin the administration of the drugs. Voorhies recounted that Team Member # 18 activated a red light from the equipment room to signal back to Voorhies that Team Member # 18 had started the drugs. Voorhies testified that, absent that signal, he typically would know from observing the inmate that the drugs had begun, but that he would not be able to determine from observing the tubing whether the drugs had begun.

Voorhies testified that he knew what to expect in the way of an inmate’s reaction to the administration of the sodium thiopental and that he was not seeing signs from Clark that the administration of the first drug was rendering Clark unconscious. Voorhies testified that the team leader had made the same observation. Voorhies stated that as he proceeded to look for any indications that the drug had leaked, such as wet spots or drops on the ground, Clark lifted his head and said that the drugs were not working. At that point, according to Voorhies, the team leader closed the curtain on the window between the execution chamber and the witness rooms. Voorhies testified that the only indication that he had that Clark had received any of the first drug was that Clark’s speech was slurred. Voorhies stated that as the team leader closed the curtain, Voorhies noticed that the injection site in Clark’s arm was raised, indicating an infiltration. Voorhies remarked that the injection site had been partially concealed by the sleeve of Clark’s smock and that the problem has since been corrected, insofar as the strap down team now rolls up the inmate’s sleeves to the upper biceps. Voorhies did not believe, however, that that change was part of the written protocol.

Voorhies reiterated that the execution team had practiced in rehearsals a scenario involving infiltration during the administration of the drugs before and after the incident with Clark. Voorhies explained that other possible areas for injection sites included the lower forearm, the top of the hands, the feet, and the ankles. Returning to the Clark execution, Voorhies testified that once the team leader had closed the curtain, Voorhies summoned medical team members back into the execution chamber to search for new injection sites. Voorhies recalled observing Team Member # 18 on Clark’s left side, massaging the injection site in an effort to alleviate the infiltration blockage. Voorhies thought that it would be possible for the first drug to be absorbed by Clark through the tissue, but Voorhies thought that any such absorbtion would be slow. Still, Voorhies stated, he assumed that must have happened with Clark, due to the fact that Clark kept drifting in and out of consciousness during the time period that the medical team members were searching for new injection sites. Voorhies clarified that it was primarily Team Member # 17 and Team Member # 18 who were looking for new injection sites on Clark. Voorhies was unable to recall how much time elapsed from the time that the team leader had closed the curtain until the time that the curtain was reopened and the execution resumed. Voorhies described the scene as intense, but testified that he was struck even now by the professionalism and compassion that he observed on the part of everyone involved. In that regard, Voorhies recalled that there were “several” people in the room during the incident, but that most of them stayed back and out of the way. Voorhies testified that he, too, tried to stay out of the way and that it was primarily Team Member # 18 leading the process of trying to locate new injection sites.

Voorhies testified that he did not know how many times Clark was “poked” during the process. He testified that he focused during the incident on observing Clark and that Clark was unconscious during most of the incident. Voorhies could not recall observing anyone attempt to locate a site in Clark’s neck, but he thought he recalled seeing an attempt to access a site around Clark’s collarbone. Voorhies also recalled observing a security team member squeeze Clark’s right bicep, but Voorhies did not know who instructed the security team member to do that. Voorhies testified that he recalled seeing the same security team member holding Clark’s head and chin at one point at the direction of Team Member # 18. Voorhies confirmed his belief that the team had exhausted and disposed of its supply of the rubber tourniquets usually used in the process of administering IV sites; he was not able to say how many total they had had. Voorhies testified that he had no idea how much of the first drug Clark had received, but that Clark was unconscious and respirating slowly during most of the incident. Voorhies testified that it was his understanding from his studies that an inmate who received 25 % of the amount of sodium thiopental that Ohio’s protocol prescribed would reach a surgical plane of anesthesia. Voorhies testified that Clark was never unstrapped during the process, except along his lower arms so that the team could look for injection sites.

Voorhies testified that he did not know whether Team Member # 18 had ever switched from the primary to the secondary lines once an execution had begun and that Voorhies would not be able to see that. Voorhies stated that he did not remember Team Member # 18 ever discussing having done so.

Voorhies testified that, following the Clark execution and in conjunction with various court cases that Voorhies had reviewed, Voorhies implemented the use of a second signal by the warden to the executioner to ensure that the second drug, pancuronium bromide, would never be administered until the warden signals to the executioner to do so. Voorhies explained that, following the Clark execution, the “signal” process consisted of the warden buttoning or adjusting his jacket as a signal to the executioner to begin the administration of the first drug, the executioner turning a red light on to indicate to the warden that the administration of the first drug had in fact begun, and the executioner turning the red light back off to indicate that the first drug had been administered in its entirety, which should, according to Voorhies, coincide with when the warden and the team leader should see clear signs of unconsciousness in the inmate. Voorhies continued testifying that (presumably upon ensuring that the inmate was unconscious) the warden would then signal to the executioner, again by adjusting his jacket, to trigger the saline flush, after which the executioner would turn the red light back on to indicate to the warden that the administration of the second drug had begun. Voorhies testified that no additional signals were employed or necessary after that because the execution process would have reached “the point of no return.”

Voorhies confirmed that he was aware that Team Member # 18’s day-to-day activities did not involve medical responsibilities. Voorhies also testified that it was probably Team Member # 17 who had advised Voorhies that the one site that the team had originally accessed on Clark in the holding cell was strong and that it would be okay to proceed with the execution with just that one site. Voorhies testified that although Team Member # 17 was trained and certified to administer drugs, Voorhies was not aware whether Team Member # 17 ever had.

With respect to the execution of Christopher Newton, Voorhies testified that the team knew at the outset that they would have difficulties locating injection sites on Newton. Voorhies explained that they were aware of the problems they might face due to changes they had made in the process for assessing sites and potential problems. Explaining that changes in the process also included planning for breaks for the medical team members and the inmate if the process for locating and accessing injection sites became prolonged, Voorhies testified with respect to Newton that the team found and accessed one injection site very quickly, but took a great deal of time to find a second site. Voorhies testified that during the time that the team sought a second injection site, the team used saline drips on the first site to verify the continued viability of that site. Voorhies further testified that, during the process, Newton remained light-hearted and even joked with the team members. Voorhies confirmed that he observed the process the entire time.

Voorhies testified that he had never received any additional formal training in the execution process beyond what he had learned from former warden James Haviland and from attending the execution team’s rehearsals. Voorhies confirmed his understanding that Ohio, in implementing a lethal injection protocol, had “imitated” Oklahoma and Texas, and that it was probably the DRC director who had made that decision.

Voorhies testified that Team Member # 18 served in the role of executioner because he always had. Voorhies further testified that Team Member # 17 was trained and available as a back-up in the event that Team Member # 18 was unavailable. Voorhies testified that in the event that a last minute problem rendered Team Member # 18 unable to make it to an execution, Voorhies’ plan would have been to have Team Member # 17 fill the role as executioner with supervision from a member of the SOCF medical staff, mostly likely the registered nurse who served as the health care administrator and who was responsible for obtaining and delivering the drugs, as well as overseeing the drug mixing. Voorhies also testified that this particular scenario had never been rehearsed. Voorhies testified that it was his understanding that Team Member # 17 required that supervision because he was licensed as only an intermediate EMT. Voorhies also testified that he was not aware that Team Member # 18 had at some point let his EMT certification drop to that same level. Voorhies testified that he had the team leader annually check the certification of the medical team members and that he himself had done so once in response to a specific request from officials related to or otherwise monitoring method-of-execution litigation in California. Voorhies testified that, in addition to those steps, he relied on execution team members to “self-report” any relevant changes in their qualifications.

On cross examination, Voorhies testified that the last time he had checked the Ohio statute to determine what level of certification a medical team member was required to have to administer drugs without any supervision was when he had been warden at SOCF. He further testified that although it was his understanding that an intermediate EMT would require some sort of supervision to administer some or all of the drugs used in the execution process, he could be mistaken. Voorhies further testified that it was routine for him (and presumably for other similarly situated supervisors) to rely on those they supervised to self-report relevant changes in their qualifications or employment status.

Voorhies also testified during cross examination regarding his understanding that his expertise and knowledge about executions were widely known around DRC. On that point, Voorhies testified that he has always been willing to assist or offer input in any way that DRC might request and that DRC has in fact requested his assistance and advice concerning executions. Voorhies explained that any order given by the warden overseeing an execution would be binding, even if it were not written in the protocol, unless it was a direct and obvious violation of something in the written protocol. Voorhies also explained that if he ever had any ideas or changes to suggest for the written execution protocol, his procedure would be to first discuss those with the chief legal counsel and then ultimately propose them to the DRC director. That said, Voorhies explained, if there were any changes that he felt were necessary, he would not wait for those to be written into the protocol before implementing them in the actual execution process. He testified that Ohio law, to his understanding, afforded him that latitude. In response to questioning, Voorhies stated that he was unaware whether making formal changes to the written protocol, as opposed to implementing changes in custom and practice, would have legal consequences such as “re-starting” the statute of limitations on any legal challenges to a given written protocol. Voorhies agreed on cross examination that during the execution of William Smith, which Voorhies had attended in an observational role only, Voorhies witnessed from the equipment room and had the opportunity to observe Team Member # 18 carry out his duties as the executioner. Voorhies also agreed that prior to the Smith execution, Voorhies had had the opportunity to observe Team Member # 18 during four rehearsals leading up to the execution. Voorhies explained that the execution team conducted two to four “run throughs” per rehearsal. Thus, Voorhies confirmed, he had observed Team Member # 18 on many occasions and had had many conversations with Team Member # 18. Voorhies testified that typically, because Team Member # 18 did not live near SOCF, Team Member # 18 would stay in a local hotel the night before an execution. Voorhies also testified that he always spoke to Team Member # 18 the night before and immediately following every execution (presumably those over which Voorhies presided). Voorhies testified that he had been in an “excellent position” to observe Team Member # 18 and all of the execution team members in terms of their ability to handle stressful situations. Voorhies testified that he had had no concerns “whatsoever” regarding Team Member # 18’s ability to carry out his duties during and in relation to an execution.

Voorhies testified that a medical team vacancy on the execution team would be filled not only by posting an internal notice but also by consulting with the chief medical commander in an effort to broaden the search pool beyond SOCF. Voorhies stressed that anyone he selected to fill a medical team vacancy would be required to have proper certification but would also have to possess the qualities that Voorhies previously testified that he preferred in execution team memb