IN THE SUPREME COURT OF MISSISSIPPI No DR SCT

Transcription

1 E-Filed Document Jun :56: DR SCT Pages: 12 IN THE SUPREME COURT OF MISSISSIPPI No DR SCT THOMAS EDWIN LODEN, JR., Petitioner v. STATE OF MISSISSIPPI Respondent. SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF MOTION FOR REHEARING AND FOR LEAVE TO SUPPLEMENT PETITION Stacy Ferraro, MSB No N. Lamar Street, Suite 604 Jackson, MS (601) (p) (601) (f) Attorney for Petitioner Loden 1

2 PETITIONER S MOTION FOR REHEARING AND FOR LEAVE TO SUPPLEMENT PETITION Pursuant to Miss. R. App. P. 40, Petitioner Thomas Edwin Loden, Jr. moves this Court for rehearing of the Order entered May 23, 2017 in this case, and for leave to supplement the successive post-conviction petition. The Rule instructs the movant to state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended.... Miss. R. App. P. 40. The motion shall contain such argument in support of the motion as movant desires to present. Id. Petitioner Loden respectfully submits that, in assessing whether the April 2017 amendments to Miss. Code Ann rendered his petition moot, the Court did not apprehend the breadth of his claim for relief. Mr. Loden s successive petition for post-conviction relief raises one claim: enforcement of the statutory boundaries on the State of Mississippi s authority to execute the death sentence upon him. Specifically, Mr. Loden alleges that where the Mississippi Department of Corrections (MDOC) intends to execute him using midazolam as the first drug in a three drug series, such punishment is unlawful as midazolam cannot meet the statutory definition contained in Miss. Code Ann , the method of execution statute. The original petition filed in July 2016 asserted that midazolam is not an other similar drug (to an ultra short-acting barbiturate ) as required by the pre-amendment statute because, among other things, it cannot render the condemned prisoner unconscious prior to the injection of the second and third drugs. The factual underpinnings of this legal claim are contained in Mr. Loden s successive petition, and are supported by the expert report of Dr. Craig Stevens which was submitted as Exhibit 8 to that petition. 1 1 Dr. Stevens affidavit was attached as Exhibit 8 to the Successive Petition. His corresponding report was attached as Exhibit 8-A, and his CV was attached as Exhibit 8-B. For purposes of this filing, exhibits to the Successive Petition 2

3 But for this same reason, and based on the same pharmacological analysis, midazolam is also not an appropriate anesthetic or sedative under the newly-amended statute, where the first drug to be used in Mississippi s three drug series is specifically defined as one likely to render the condemned inmate unconscious. Thus, for the same factual reasons pled in Mr. Loden s successive petition, midazolam is not encompassed by either the original or the amended statutory definition of the first drug to be used in the three drug series. It follows that Mr. Loden s claim that the State is barred by Section from using midazolam in its lethal injection series has not been mooted by the amendment. As Mr. Loden s claim for relief is not moot, rehearing should be granted with leave to file an amended and supplemental petition (attached to this motion as Exhibit A) which specifically addresses the revisions to Miss. Code Ann A. The April 2017 amendments to Miss. Code Ann On April 5, 2017, House Bill 638 was approved by Governor Bryant and took effect. The act amends portions of Miss. Code Ann , the method of execution statute, including revisions of the statutory directive regarding the lethal injection drug series. Prior to its amendment, Section provided that the first drug administered in executions by lethal injection be an ultra short-acting barbiturate or other similar drug. Replacing this language, the April 2017 amendment to the method of execution statute now provides that the first drug be an appropriate anesthetic or sedative, mean[ing] any substance that... is likely to will be referenced using their original numbering. New exhibits to this motion for rehearing will begin with Exhibit A and will continue accordingly. 3

4 render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain. As provided by their current lethal injection protocol, 2 MDOC intends to execute Mr. Loden using midazolam as the first drug in a three drug series. B. In dismissing the petition as moot, this Court overlooked the breadth of Mr. Loden s claim for relief and did not apprehend that this claim is viable and at issue, even after the amendments to the statutory language. This Court s May 23, 2017 Order dismisses Mr. Loden s petition as moot: Restated, Loden s issue was whether the State s use of midazolam as part of the three-drug, lethal-injection protocol violates Mississippi Code Section (Supp. 2016) because it is not an ultra-short acting barbiturate or other similar drug. However, the Legislature has since amended Section See 2017 Miss. Laws H.B The statute now requires an appropriate anesthetic or sedative, as defined by the new statute. The statute having been amended, Loden s issue becomes moot. Order at 1. To be sure, this Court has long held that it will not adjudicate moot questions, see e.g. Fails v. Jefferson Davis County Public School Board, 95 So.3d 1223, 1226 (Miss. 2012). But in dismissing Loden s petition as moot, the Court did not apprehend that Mr. Loden s claim for relief remains viable, even after revision of the statutory language. When Mr. Loden s petition for successive post-conviction relief was filed on July 6, 2016, Miss. Code Ann provided that the first drug administered in executions by lethal injection be an ultra short-acting barbiturate or other similar drug. The petition pled a single claim for relief: that the State of Mississippi intends to punish Mr. Loden unlawfully, in that the Mississippi Department of Corrections execution protocol uses a drug (midazolam) as the first 2 On July 28, 2015, MDOC provided notice of change to its lethal injection protocol. For the first time, MDOC authorized the use of midazolam as the first drug in its three drug series, in the event of the unavailability of pentobarbital. The lethal injection protocol has not been changed since July

5 drug in its lethal injection series that is incapable of meeting the statutory definition and boundaries. The petition states: The unambiguous nature of the statutory language controls the selection of drugs for lethal injection executions in Mississippi. 3 Quoting from Palermo v. LifeLink Foundations, Inc., 152 So.3d 1099, 1105, and citing to other Mississippi case law, the petition continues: This Court does not decide what a statute should provide, but determines what it does provide. If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute As such, Mr. Loden argues he has the right to enforcement of [the] statutory command of Mississippi s lethal injection statute regarding the drugs to be used in his execution. Id. In support of this legal claim, Mr. Loden attached to his original petition the March 2016 expert affidavit and accompanying report of Dr. Craig Stevens. 5 Among other associated findings, Dr. Stevens report establishes that midazolam is unable to induce general anesthesia, the state where one is rendered unconscious and insensate to pain. 6 This expert finding is explicitly incorporated in Mr. Loden s petition for relief: In short, midazolam, unlike thiopental, does not produce the depth of anesthesia scientifically associated with unconsciousness. 7 When the amendments to went into effect on April 7, 2017, the language defining the first drug to be used in Mississippi s three drug lethal injection series changed from an ultra short-acting barbiturate or other similar drug to an appropriate anesthetic or sedative, mean[ing] any substance that... is likely to render the condemned inmate unconscious, so that 3 Successive Petition for Post-Conviction Relief at Successive Petition at The affidavit and report are Exhibit 8 and Exhibit 8-A to Successive Petition. 6 Exhibit 8-A to Successive Petition at Successive Petition at 19 (emphasis added). 5

6 the execution process should not entail a substantial risk of severe pain. But the revised language did not alter Mr. Loden s claim for relief, nor its factual underpinnings as pled in the successive petition. As Mr. Loden s claim remains viable and at issue, this Court should grant this motion for rehearing and provide leave to supplement, as described in Section C of this filing below and in the amended and supplemental petition attached as Exhibit A. C. MDOC s use of midazolam still does not comply with the requirements of Miss. Code Ann as midazolam is not likely to render the condemned inmate unconscious. The expert affidavits of Craig Stevens, Ph.D., establish that midazolam is not an appropriate anesthetic or sedative because midazolam is not likely to render the condemned inmate unconscious. 8 As detailed in Mr. Loden s successive petition, Dr. Stevens is a Professor of Pharmacology, a full-time faculty member in the department of Pharmacology and Physiology at the College of Osteopathic Medicine, a unit of the Oklahoma State University, Center for Health Sciences campus in Tulsa, Oklahoma. He received his Ph.D. in Pharmacology from the Mayo Clinic, in Rochester, Minnesota. Dr. Stevens works part-time as a litigation consultant/expert witness on cases involving pharmacological issues. He has consulted in both civil and criminal cases, working with both the prosecution or plaintiff and the defendant. With regard to the pharmacological issues of lethal 8 The March 2016 affidavit and report of Dr. Stevens was attached as Exhibit 8 and Exhibit 8-A to the Successive Petition. Dr. Stevens affidavit and supplemental report of April 2017 are attached to this Motion as Exhibit B and Exhibit B-1; Dr. Stevens curriculum vitae (CV) is attached as Exhibit B-2. The April 2017 report addresses the specific question of whether midazolam is likely to render the condemned inmate unconscious, as now required by the explicit language of the amended statute. 6

7 injection, he has consulted with state departments of corrections as well as with attorneys representing death-sentenced prisoners. a. June 2017 Supplemental Report To supplement his original report on MDOC s use of midazolam as the first drug in its three drug protocol, Dr. Stevens assessed whether midazolam is an appropriate anesthetic or sedative as defined by the revised Mississippi method of execution statute. While Dr. Stevens recognizes that midazolam is classified as a sedative, he concludes that it does not meet the statutory definition of an appropriate anesthetic or sedative for use as the first drug in Mississippi s lethal injection executions, as midazolam is not likely to render the condemned inmate unconscious. Ex. B-1 at 2. As Dr. Stevens explains, and as provided by a table from the American Society of Anesthesiology (ASA) at page 3 of Exhibit B-1, there are four levels defined for the Continuum of Depth of Sedation. Of these four levels, there are three levels of sedation and only one level of general anesthesia. *** All three levels of sedation include only a drug induced depression of consciousness and response to painful stimuli... *** Beyond the deepest level of sedation, the Table lists a single state called General Anesthesia. It is only in this state that there is a drug-induced loss of consciousness... and lack of response to painful stimuli.... Exhibit B-1 at 4 (emphasis added). While midazolam is a sedative drug and is capable of producing a level of sedation, [m]idazolam is not an anesthetic drug because it cannot produce the state of general anesthesia. Ex. B-1 at 4 (emphasis in original). An anesthetic drug is not the same as a sedative drug. A sedative drug, by its very nature and definition, cannot meet the criteria of an appropriate drug that is likely to render the inmate unconscious. Ex. B-1 at 4, n 2 (emphasis in 7

8 original). As defined by the ASA, general anesthesia is a drug-induced loss of consciousness during which patients are not arousable, even by painful stimulation. Ex. B-1 at 3. [G]eneral anesthetics are drugs that produce a state of General Anesthesia characterized by loss of consciousness and [being rendered] insensate to pain. Ex. B-1 at 4. By contrast, midazolam cannot render the condemned inmate unconscious and impervious to pain. Id. MDOC s July 2015 lethal injection protocol which has not been amended since its introduction two years ago provides for the use of midazolam as the first drug in a three drug series with vecuronium bromide (a paralytic agent) and potassium chloride. The effects of the second and third drugs on a human body are well-known and include paralysis with conscious suffocation followed by internal burning resulting in cardiac arrest. 9 Where a prisoner is not rendered unconscious and insensate to pain prior to the injection of the second and third drugs, these substances exert painful stimuli which would arouse one not in the state of general anesthesia. Of course, the paralyzing effect of vecuronium bromide would destroy the prisoner s ability to show response to these painful stimuli, even while the prisoner is conscious and sensate to the pain. b. March 2016 Report In his supplemental report, Dr. Stevens asserts that his original March 2016 report supports the finding that midazolam is incapable of rendering one unconscious and insensate to pain. Specifically Dr. Stevens points to the examination of the pharmacological classification of midazolam, the mechanism of action of midazolam, the ceiling effect of midazolam, and the 9 Baze v. Kentucky, 553 U.S. 35, 53 (2008) (plurality op. of Roberts, C.J.) ( [i]t is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. ) 8

9 therapeutic used of midazolam.... Ex. B-1 at 4, referring to Section 2 of Ex. 8-A to the successive petition. In the March 2016 report, Dr. Stevens assessed Mississippi s use of midazolam as the first drug in its lethal injection series given the statutory requirement of (at that time) that the first drug be an ultra short-acting barbiturate or other similar drug. While this report was authored prior to the recent amendment to , the analysis and the expert opinions expressed continue to hold true and to apply to the State s use of midazolam under the revised statute. This is because Dr. Stevens principal finding in the March 2016 report is that midazolam is incapable of producing general anesthesia, and thus is incapable of rendering a person unconscious and insensate to pain the same conclusion reached in the June 2017 report. These findings were based on a lengthy assessment of the pharmacological nature of midazolam and relevant studies. In assessing whether midazolam is a similar drug to an ultra short-acting barbiturate such as sodium thiopental Dr. Stevens compares the effects of midazolam and thiopental on consciousness. 10 He explains, [s]cientific models of consciousness rely on the measurement of activity in different areas of the brain and the known functions associated with them... consciousness is correlated to activity in brain association areas and therefore unconsciousness is correlated to lack of activity in these brain association areas. 11 Dr. Stevens testifies that, unlike thiopental, midazolam does not decrease activity in brain functions to a sufficient degree to ensure the level of anesthetic depth associated with loss of consciousness: 10 Ex. 8-A to Successive Petition at Ex. 8-A to Successive Petition at 24. 9

10 i. Studies show a link between unconsciousness, anesthesia, and decreased activity in brain association areas. ii. Thiopental and other barbiturate anesthetics decrease activity in these brain association areas, and are potent in decreasing the BIS value which is associated with depth of anesthesia. 12 iii. There are few studies of midazolam s depth of anesthesia because midazolam cannot produce the same anesthetic effects as thiopental on the brain, and midazolam is less potent in reducing BIS values. 13 iv. Scientific studies show that a cautious and conservative approach is warranted in positing an anesthetic action of midazolam, as a significant number of patients are found to be under-anesthetized and conscious during surgery even when using the strongest general anesthetic agents are used. 14 In short, midazolam, unlike thiopental, does not produce the depth of anesthesia scientifically associated with unconsciousness. Given this extensive analysis, Petitioner Loden has met his burden to establish that midazolam is not an appropriate anesthetic or sedative, as defined and required by Miss. Code Ann , because it is not only unlikely but incapable of render[ing] the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain. MDOC does not have authority to inject Mr. Loden with midazolam in place of a substance likely to render the condemned inmate unconscious. At a minimum, Mr. Loden is entitled to an evidentiary hearing to prove that the use of midazolam as the first drug in MDOC s lethal injection series violates Mississippi law. Under this 12 According to Dr. Stevens, BIS (bispectral analysis) is a measurement of the depth of general anesthesia using EEG recordings of the frontal lobe brain and computer processing. BIS values range from 100 (completely awake and alert) to 0 (coma and total EEG burst suppression). BIS values under 60 correlate to the depth of anesthesia associated with lack of awareness. Ex. 8-A to Successive Petition at In fact, multiple studies based on BIS support the finding that midazolam does not induce general anesthesia. BIS values in the range of were reported after repeated IV doses of midazolam in a surgical outpatient study. In surgery patients, the lowest BIS score for IV midazolam was 65. Ex. 8-A to Successive Petition at 25. This is above the BIS cutoff of 60 which is the threshold of awareness during anesthesia. Id. 14 Ex. 8-A at

11 Court s precedent, if a petition for post-conviction relief presents a claim procedurally alive substantially showing denial of a state or federal right, the petitioner is entitled to an in court opportunity to prove his claims. Neal v. State, 525 So. 2d 1279, 1281 (Miss. 1987). See also Batiste v. State, 184 So. 3d 290, (Miss. 2016) (same). Both the original and supplemented version of Mr. Loden s petition meet the Neal standard. Thus Mr. Loden is entitled to an evidentiary hearing where a Circuit Judge can receive evidence and determine in the first instance whether midazolam is excluded from the statutory definition of the first drug in the three drug series. D. Judicial economy favors granting the motion for rehearing and leave to supplement petition. In the alternative, Petitioner Loden has filed a second successive petition for post-conviction relief, alleging the claim for relief at issue in this case under the revised language of Section Mr. Loden s successive petition for post-conviction relief was filed July 6, On December 12, 2016, after multiple motions for enlargement of time, the State of Mississippi filed its response to the petition. Mr. Loden filed his reply and briefing was concluded on January 10, The case was submitted without oral argument on March 8, As the claim has been fully briefed by both parties, judicial economy favors grant of this motion for rehearing with leave to supplement, thus providing an opportunity to specifically address the new statutory language. In the alternative, Petitioner Loden has today filed a Second Successive Petition for Post- Conviction Relief, alleging the claim for relief at issue in this case under the revised language of the method of execution statute. If this motion for rehearing is granted, that second successive petition can be consolidated with this case. 11

12 CONCLUSION For the foregoing reasons, in addition to those contained in the Successive Petition for Post- Conviction Relief, Petitioner Loden respectfully requests that this Court grant rehearing and leave to supplement claim, and enter an order forbidding the Mississippi Department of Corrections from using any drug as the first drug in its lethal injection series including specifically midazolam which is not likely to render the condemned inmate unconscious. At a minimum, Mr. Loden is entitled to an in-court opportunity to prove that midazolam is not an appropriate anesthetic or sedative, likely to render the condemned inmate unconscious, as defined and mandated by Section Respectfully submitted, /s/stacy L. Ferraro Stacy L. Ferraro, MSB No N. Lamar Street, Suite 604 Jackson, MS (601) (p) (601) (f) lifestoryms@gmail.com Attorney for Petitioner Loden CERTIFICATE OF SERVICE I hereby certify that I have served this Petition on the Office of the Attorney General, by electronic mail to Jason Davis, Special Assistant Attorney General, jdavi@ago.state.ms.us, and by mail delivery to Post Office Box 220, Jackson MS This, the 22nd day of June, /s/stacy L. Ferraro 12